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Muslim law important questions:

Q. 1 Discuss about "Muslim law", discuss its basic principles. Trace


the History and development of Muslim Law.

Ans. Muslim Law is a personal Law. Muslims are governed by it, just as `Hindus' are
governed by their customary as well as codified law. As far as Muslim Law in India is
concerned, Muslim Law means "that portion of Islamic Civil Law which is applied to Muslims
as a personal law." The term Muslim Law is also know as "MOHAMMEDAN LAW" though
there is big difference between two expressions. Eminent author Sir A.A.A. Fyzee, has said
that strictly speaking the religion taught by `Prophet' was `Islam' and not Mohammedanism.
The people who believe in it are Muslims and not Mohammedan. Therefore Mohammedan
Law as applied in India, as personal law for Muslims, is actually part of Islamic Law. It
consists of the injunctions of Quran, of traditions introduced by practice of the `prophet' of
the common opinion of the jurists (Ijma), of the analogical deductions of these
three(Qiyas) and of the pre-Islamie customs not abrogated by Prophet Mohammad. It has
been supplemented by the juristic preference (Ijtihad) and State legislations and judicial
precedents of different High Courts, Privy Council and Supreme Court.
"Quran" the Foundation of Muslim Law Muslim law is founded upon `Al-Quran' which is
believed by the musalmans to have existed from eternity, subsisting in the very essence of
God. The Prophet Mohammad himself declared that it was revealed to him by the
angel "Gabriel" in various portions and at different times. The main characteristic of Muslim
law is that it has always been defined in terms of religion. The word Muslim is a `noun' of
action. Its meaning is that one who adopts the faith of Islam and Islam is a word which in
Arabic term means `Submission to the will of God'. Therefore, one who believes in (a) the
principle of the Unity of God i.e. God is one and (b) Prophet Mohammed is Messenger of
God, is Muslim. There are three important elements of this religion. They are (a) ISLAM i.e.
submission to the will of God (d) TAWHID dogma of the unity of God and (c) AKHWAD i.e.
brotherhood. One who subscribes to these basic elements of Islam is known as Muslim.
It is believed by Muslims that their religion has a divine origin and it is in existence since the
beginning of the world and will exist till dooms day. The only thing is that wherever religion is
corrupted and people forget the real sense of it, God in his infinite mercy sends a RASUL
(Messenger or reformer) in the world. Such Rasuls time to time tried to do away with the
malpracticses prevailing in those days. He warned the people against those evils.

What is Islam :- In the religious sense Islam means "submission to the Will of God" and in
secular sense Islam means the establishment of peace.
History of Islam The History of the development of Muslim law has been divided by various
Muslim scholars in their own ways. Sir A.A.A. Fyzee divided the history of development of
Muslim Law into five periods. On the basis of their study we can divide the history of
development of Muslim law, into following five periods :(a) From AH 1 to AH.10 (Period covering last 10 years of life of Prophet)
(b) From AH.10 to AH.40 (The period of first four caliphates)
(c) From A.H.40 to A.H.300 (Most important period of development of Muslim Law)
(d) From A.H. 300 to 1924 A.D. (Period in which the caliphate was abolished. British rule
was established)
(e) From 1924 Onwards (a) The period of A.H. 1 to A.H. 10 (The first period) - This period
was the last 10 years of the Prophet Mohammed's life. In that period all verses of the
`Koran' were collected and composed. Important `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.

Q. 2 Point out the reasons that led to the formation to the Sunni and
Shia Schools of Mohammedan Law. Bring out clearly the main points
of difference between the two schools.

Ans. - There are two main schools of Muslim Law - The Sunni and Shia. The majority of
Muslim are Sunnis and hence it is presumed that the parties to a suit are Sunnis unless
otherwise is proved.
As Tyabji says : "Where it is not alleged, nor shown that the Parties are Shias, there is a
presumption that they are Sunnis, to which sect the great majority of Mohammedans of this
country belong."
The death of Prophet raised a momentous question - one party advocated the principles of
succession while another pressed for the election of the successor. The Shias advocated
that the pious office should go by the right of succession and thus Imamat (headship)
should be confined to the Prophet's own family or his nominees while the Sunnis were of
the opinion that the office should devolve by election and it should be chosen by votes. The
Shias repudiate the authority of Jamat while the Sunnis advocate it. Thus the difference
between the two was based on political events and not in law by jurisprudence.
Shia School

Sunni School
1. Marriage

(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 (ii) No upper limit.


case there is no stipulation.
(iii) Presumption of prompt dower in absence of any (iii) The part is prompt and the part is deferred.
Stipulation.
Talaq
1) Talaq must be pronounced orally and the words of 1) Talaq can be given orally or in writing
Arabic language to be used.
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 Mere declaration is enough for valid `waqf'
is invalid.
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 Consent of the heirs essential.
his estate and can bequeath that one-third without
the consent of the other heirs.
(ii) In case of the legatee's death in the lifetime of the It lapses.
testator, the legacy passes to his heirs unless it is
revoked by the testator.
11. Inheritance
(i) There are only two classes of heirs namely
sharers and residuaries.

Three classes :
(a) Sharers,
(b) residuaries
(c) Distant kindered.

(ii) According to the law of primogeniture, the eldest The doctrine of primogeniture is not recognised.
son gets the deceased father's garment, the signetring, the sword and the Quran.
(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 Both husband and wife can take by return.
return.
(v) A man is excluded from inheritance if he has
He is excluded from inheritance, no matter, the
intentionally caused the murder of the person whom murder was intentional or unintentional.
he is going to inherit.

Q. 3 What are the main sources of Muslim Law ?

Ans. Following are principal sources of Muslims Law :Primary Sources of Muslim Law
(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.

Q. 4 What is Shariat Act of 1937 ? Describe some of its main


features.

Ans. Shariat Act 1937 - Shariat Act was one of the important enactments passed in 1937
to deal with the application of Mohammedan Law in India. It came in force with effect from 7
October, 1937 in the whole territory of India except in North-West frontier province. As per
Sir A.A.A. Fyzee `Shariat Act' aims at restoring the law of Islam to all communities residing
in India and doing away with customs, contrary to the Shariat (personal laws of Muslim)
Main features - (1) Shariat Act (Act No. XXVI) of 1937 contains only six sections. The main
characteristics of this Act is that it is applicable on all Muslims without having any
consideration on the schools to which they belong.
(2) The another important feature is that the word `Muslim' has not been defined anywhere
in this Act and that too for the limited purposes.
(3) Shariat Act deals with all kinds of properties except the following:
(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.
Q. 5 What are the essential conditions for conversion of India.

Ans. Muslim Law applies to (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.

Q. 6 What is the effect of conversion to Islam on the legal status of


man and woman ?

Ans. Conversion is renunciation of one's religion and adoption of another religion. On


conversion to Islam the status of the converts comes under Mohammedan Law. The effect
of conversion is prospective and not retrospective. A bona fide conversion to and from Islam
substitutes the new religion of the party for his or her previous religion. We shall consider
the effect under the following heads :
1. Effect on marital rights - (a) Conversion of husband. - If the conversion to Islamic
religion is bona fide it may bring the convert under the rules of Mohammedan Law. Thus,
where a married Christian domiciled in India, embraces Islam and marries with another
woman according to the Muslim rules, it has been held that Muslim Law applies to his case
and the second marriage becomes valid, and previous marriage of the husband with the
Christian lady is not dissolved, because Mohammedan Law permits marriage between a
Muslim male and a kitabia woman a follower of one of the scriptural faiths. But if the
conversion is not bona fide and it is merely pretended in order to take advantage of the
personal law so adopted, the court will not allow the validity of such conversion. Thus a
Christian who had a Christian wife living, cohabited with a native Christian woman, in order
to legalise his relation with the latter, he and the woman both embraced Islam and went
through the ceremony of marriage. The marriage was held to be invalid, as the man had
tried to escape the consequences of bigamy by embracing Islam which recognises plurality
of wives. (Skinner v. Orde, (1871) 14 Moor I.A.309, see also Sarla Mudgal v. Union of
India (1995) 3 S.C.C. 653 where a Hindu converted to islam).
(b) Conversion of wife. - A non-Muslim wife cannot merely by conversion to Islam legally
marry a Mohammedan during the lifetime of her non-Muslim husband and her marriage with
the non-Muslim male which was solemnised before conversion is not dissolved merely by
the fact of her conversion to Islam.
(c) Effect of conversion on previous marrige. - If one of the spouses becomes convert to
Islam, the conversion will not dissolve the marriage validly contracted. Thus, if a husband
becomes converted to Islam, his marriage with his non-Muslim wife is not dissolved.
Similarly, if a non-Muslim wife embraces Islam the marriage would not be automatically
dissolved.

2. Effect on right of inheritance. - When a person is converted to Islam, the succession to


his estate will be governed by Mohammedan Law. Thus, if a married Hindu embraces Islam,
his Hindu widow or Hindu children will have no right to succeed to him as the non-Muslim
may not succeed to a Muslim according to Mohammedan Law. (Chedambrian v. Ma-Ne.
Me (1928) 6 Rang 243). A convert to Islam is not governed by his original religion, but is
presumed to have accepted the tenets of the Prophet as well as Muslim personal law.
According to the Shariat Act, 1937, which has abrogated customs and usages of the Muslim
Law, a convert cannot set up any custom relating to intestate succession.
Q. 7 (a) What is the effect of conversion on Marital rights of a
Mohammedan ? Explain with special reference to "Dissolution of
Muslim Marriage Act 1939".
(b) A Hindu woman is converted to Mohammadanism and leaves her
Hindu husband. She marries a Mohammadan according to Muslim
rites. Has she committed any offence ? Discuss.
Ans. Under the pure Muslim law and before enactment of `Dissolution of Muslim Marriage
Act 1939', a Mohammedan after renouncing `Islam' loses all his or her marital right and
apostasy from Islam of either party to a marriage operated as complete and immediate
Dissolution of Marriage.
In Rabian Bibi v. Ghulam Ali, AIR 1941 Lahore 292, it was held that Section 4 of
dissolution of Muslim Marriage Act, 1939 is not retrospective and applies only to
renunciation or conversion which might take place after the Act came in force consequently
apostary of either party to a Muslim marriage prior to coming in operation of Act ipso-facto
dissolves the marriage.
Section 4 of Dissolution of Muslim Marriage Act 1939 provide that marriage of a Muslim
husband with Muslim wife is dissolved ipso facto on renunciation by the husband of the
Islamic religion. However, where Muslim married couple renounce Islam and embrace
another religion their marriage remains intact and is not dissolved.
Renunciation of Islam by Married Muslim Woman on her conversion to faith on any other
religion does not by itself dissolve her marriage. But where woman converted to Islam from
some other faith reembraces her former faith her marriage with Muslim husband stands
dissolved.

(b) The conversion of a Hindu wife to Islam does not ipso facto dissolve her marriage with
her husband. She cannot enter into valid contract of marriage with any other person during
the life time of her husband and if she goes through a ceremony of marriage after
conversion to Islam she will be guilty u/s 494 of Indian Penal Code.
In Ahmad Bux v. Smt. Nathoo, AIR 1969 All. 75, it was held that marriage between a
Hindu couple does not dissolve automatically after a fixed period on the conversion of Hindu
wife to Islam.
In the case of Ram Kumari(1891) 18 Cal.264 a Hindu Married woman embraced Islam in
the belief that her conversion to Islam would ipso facto dissolve her marriage with her Hindu
husband, after conversion she married again with a Muslim. She was prosecuted for bigamy
and convicted.
Q. 8 A Hindu having a wife and two sons, converted to
Mahomedanism and married a Muslim lady and had two sons from
her. State who shall inherit his property on his death and in what
shares ?

Ans. Where a person converts his religion to Islam, then by necessary implication he will
not be Muslim by religion only but he will be subject to Muslim Personal law as regard to
succession or inheritance also. In Controller of Estate Duty Mysore v. Hazi Ahmed
Sattar and others, AIR 1972 SC 2229 Supreme Court held that:
"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.
Q. 9 A Mohammedon becomes convert to Christianity. The wife then
marries another man before the expiration of the period of iddat.
State if she is guilty of bigamy under Section 494 IPC ?

Ans. Before the Dissolution of Muslim Marriages Act, 1939, apostasy from Islam of either
party to a marriage operated as a complete and immediate dissolution of the marriage.
Under Section 4 of the Dissolution of Muslim Marriages Act, 1939, however, mere
renunciation of Islam by a married woman or her conversion to any other religion cannot by
itself operate to dissolve her marriage but she may sue for dissolution on any of the grounds
mentioned in Section 2 of the Act. Section 4 only applies to the case of apostasy from
Islam of a married Muslim woman, and apostasy of the Muslim husband would still operate
as a complete and immediate dissolution of the marriage.
In the case in hand, apostasy from Islam of the husband operates as an immediate
dissolution of marriage and the wife is free to remarry without observing idaat. Therefore,
she is not guilty of bigamy under Section 494, I.P.C.
Q. 10 What is effect of conversion to Islam with colourable,
fraudulent or dishonest intention ? Give your reply with the help of
some decided cases.

Ans. The effect of conversion to Islam with dishonest fraudulent or colourable Intention One of the essential conditions for a non-Muslim for conversion to Islam is that there must
be good and bonafide intention behind such conversion. If it is found that the object of
conversion was not bonafide, a converter can be punished in law. For example, in the case
of skinner is example [(1871) 14, MIA 309] one Christian woman was cohabiting with a
married Christian man. In order to legalise their living as wife- husband both of them

converted to Islam and then re-married. Later on when the question of validity of their
marriage arose in the Court, Privy Council in that case held that the such marriage was `null
and void' on the ground that the conversion of the parties to Islam was a fraud upon the law
and it was not bona fide. In one other case (Rakeya Bibi v. Anil Kumar, (1948) 2 Cal. 119)
it was held by Calcutta High Court that where the party puts forward his or her conversion to
a new faith as creating a right in his favour to the prejudice of another, it is proper and
necessary for a Court of Law to enquire and find out whether the conversion was a bonafide
one. In the instant case since the conversion of the plaintiff (woman) was with a view to get
rid from the unhappiness caused in her mind due to her husband's impotency, her
conversion to Islam was not bonafide. In the case of [Ram Kumari (1891) 18 Cal. 254] a
Hindu woman assumed that if she adopts Islam, her marriage, took place earlier according
to Hindu Law, will automatically be dissolved and as such she adopted Islam. Her
conversion to Islam was therefore held non- bonafide by the Court and she was prosecuted
and convicted for bigamy.
In view of the decision of the above cases, a question arises what is the true test of
conversion :
"The actual position in this regard is that any religion depends upon belief. It is inner thought
or feeling of a man but a partial difficulty in this regard is that the internal thoughts of a
person can neither be measured nor be tried in the Court. Due to this reason only no `hard
and fast' rule can be laid down even for the external tests too. Only circumcision is one of
the test but it is also not a final and conclusive test or guage the sincerity of religious belief."
The Court, however, can find out the true intention of person lying behind his acts. So far
the genuineness or bonafideness of the conversion of the Islam is concerned, it can be
found out by the Court from the circumstances of the case whether a pretended conversion
was really a means to some further ends. If conversion is not inspired by religious feelings
and it is done for the sake of achieving one's own motive or purpose, it will not be
recognised as bonafide.
Summarily it can be said that the conversion to Islam is valid and bonafide if converter
professes Islam and that it is not pretended or colourable one for the purpose of
perpetrating a fraud upon the law and (b) the whole of the converter's conduct and the
evidence of surrounding factor is such as to run counter to the presumption of his or her
conversion to Islam.

Q. 11 `Marriage among Muhammadans, is not sacrament but purely a


civil contract. Discuss the statement with reference to contractual
nature of Muslim Marriage.

Ans. Marriage among Hindus is a sacrament tie between Man and Woman. It is considered
to be holy union of husband and wife for the performance of religious, social and spiritual
duties. However, Marriage under Muslim Law is not a sacrament but is a civil contract.
Marriage or `Nikah' under Mohammedan law may be defined as `legal process by which
sexual intercourse and procreation and legitimation of children between man and woman is
perfectly lawful and valid."
According to Dr. Jang "Marriage though essentially a contract is also a devotional act, its
object are rights of enjoyments and procreation of children and regulation of social life in the
interest of society."
Juristically speaking, Marriage among Mohammedans, being civil contract require following
essentials:
Firstly Marriage like any other contract constituted by offer and acceptance (Ijaboqabool) to
other party and Marriage becomes complete only when other party has accepted that offer
(Qabool). Such offer and Acceptance must be in one meeting in the presence of witnesses.
It is also necessary that parties contracting marriage must be acting under their free will and
consent.
Secondly parties to marriage must have capacity of entering into contract. In other words
they must be competent to marry. Every Muslim who is of sound mind and who has attained
puberty may enter into contract of marriage. Parties must be able to understand the nature
of their act. Marriage of a minor may be solemnized provided with the consent of guardian.
Thirdly there should be no legal disability to enter into contract of marriage. Legal disability
means the existence of certain circumstances under which marriage is not permitted. These
disabilities have been classified into following three heads:
(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.
Q. 12 What marriages are void and invalid and what marriages are
mere irregular under Muslim Law ? Briefly discuss the legal
consequences of such marriages.

Ans. Void marriage in Muslim Law - Due to the following reasons the marriage (Nikah)
are deemed void (a) Consanguinity (Batil) in Muslim law. If a person contracts marriage with (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.
Q. 13 Akbar an NRI resides in London offers to marry Waheeda in
Delhi by long distance call over the phone. Waheeda accepts the
offer on phone. Is this a valid marriage under Muslim Law ? Discuss.

Ans. The essentials of a valid marriage under Mahomedan law as described in Section
252 at p. 224 of Mulla's "Principles of Mahomedan Law", 19th Edn., are as: "It is essential to
the validity of a marriage that there should be a proposal made by or on behalf of one of the
parties to the marriage, and an acceptance for the proposal by or one behalf of the other, in
the presence and hearing of two male or on male and two family witnesses, who must be
sane and adult Mahomedan.
The proposal and acceptance must both be expressed at one meeting. A proposal made at
one meeting and an acceptance made at other meeting do not constitute a valid marriage.

In the case in hand, the offer and acceptance have not been made in the presence and
hearing of witnesses. Therefore, the marriage cannot be said to be valid. However a
marriage contracted without witness is irregular and not void under Sunni law. Such
marriage can be validated by consummation. Under Sunni law, the presence of witness is
not necessary in any matter regarding marriage.
Q. 14 State concisely what do you understand by option of puberty
of a Muslim Girl.

Ans. The marriage in Muslim law is a civil contract. Therefore competency of the parties to
marriage with regard to their age is one of the essential requirements. However in case of a
minor, the consent of marriage of a girl or a boy can be given by respective guardian on
their behalf. It, however does not mean that contract of marriage entered into by guardian of
a minor on his or her behalf will finally be imposed on such minor throughout his or her life.
Muslim law gives power to minor to repudiate or continue his or her marriage if he or she so
likes after attaining the age of majority. Such right is called `The option of Puberty' (Khyarul
Bulugh). Thus `option of puberty' is the right to a minor boy or girl whose marriage has been
contracted through guardian, to repudiate or confirm the marriage on attaining puberty.
Old Law of Option of Puberty : In old law if the marriage of minor had been contracted by
his/her father or grandfather, he/she had no right to repudiate the marriage after attaining
the age of puberty.
Present Law on Option of Puberty : The above said disability in old law has been
removed by Section 2(7) of Dissolution of Muslim Marriage Act, 1939 which provide as
under:
"A woman married under Muslim law shall be entitled to obtain decree of divorce on the
ground that she having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the age of
eighteen years.
Provided that the marriage has not been consummated."
Time of Option of Puberty : For the sake of convenience, man's or woman's life can be
divided into three stages, for understanding time for exercising the option of puberty.
(a) SAGHIR : It is the first stage when the boy or girl is below seven years of age. In this
stage the marriage is void ab initio.

(b) SARIR : It is the second stage when his or her age is above seven years but
below 15 years. In this stage though he or she can be married, but his or her consent for
marriage is not recognised. He or she can validly be married only by his or her guardian.
(c) BULUGH : It is the third stage when he or she is above 15 years of age .It is now when
he or she can enter into contract of marriage on his or her own free consent.
In case of a girl who is aware of her marriage, she must exercise her right to the option
immediately on attaining puberty. Any unreasonable delay would deprive her right of option.
But if she does not know that she has this right then it is prolonged until she is acquainted
with the fact that she has such right. The option of puberty can be exercised through
substantive suit filed by wife. But she cannot exercise such option when her husband has
filed suit for restitution of conjugal rights. The option is lost if she after having attained
puberty permits the marriage to be consummated.
A male has the same right of option of puberty. This option can be ratified by him on
attaining puberty by:
(i) Express declaration
(ii) Payment of dower
(iii) Cohabitation
Q. 15 Nazma a Muslim girl was married to Ahmed when she was 13
years old. After 6 months she went back to her father's house and
refused to come back to Ahmed's house. Ahmed filed a petition for
restitution of conjugal rights. Nazma pleaded she is no longer his
wife as immediately on attaining the puberty she had repudiated the
marriage with him. In rejoinder Ahmed pleaded consummation of
marriage and stated that she had lost the right of option to
repudiate the marriage on attaining puberty. Decide who will
succeed. Give reasons.

Ans. Under Muslim law, a boy or girl who has not attained puberty, is not competent to
enter into a contract of marriage, but he or she may be contracted in marriage by his or her
guardian. When a minor has been contracted in marriage by the father or father's father, the
contract of marriage is valid and binding, and it cannot be annulled by the minor on attaining

puberty. When a marriage is contracted for a minor by a guardian other than the father or
father's father, the minor has the option to repudiate the marriage on attaining puberty.
By the "Dissolution of Muslim Marriages Act, 1939", all restrictions on the options of puberty
in the case of a minor girl whose marriage has been arranged by a father or grandfather
have been abolished, and under Section 2(vii) of the Act a wife is entitled to the dissolution
of her marriage if she proves the following facts, namely, (1) the marriage has not been
consummated, (2) the marriage took place before she attained the age of 15 years, and (3)
she has repudiated the marriage before attaining the age of 18 years.
"Puberty" under Muhammadan law is presumed, in the absence of evidence, on completion
of the age of 15 years. It would, therefore, necessarily follow that the minor should exercise
the option after the age of 15 years unless there is evidence to the contrary that puberty had
been attained earlier and the burden of proving this shall lie upon the person so pleading.
Anything done by the minor during the minority would not destroy the right which can accrue
only after puberty. The cohabitation of a minor girl would not thus put an end to the "option"
to repudiate the marriage after puberty. The assent should come after puberty and not
before, for the simple reason that the minor is incompetent to contract; nor should the
consummation have taken place without her consent.
Therefore, the consummation of marriage before attaining the age of puberty does not
destroy the right of Nazma to repudiate the marriage after she has attained the age of
puberty.
Q. 16 A Muslim girl is given in marriage by her father. When she
attained the age of 17 years she repudiated the marriage and
brought a suit for dissolution of her marriage. What facts she is
required to prove in order to succeed ? Can the husband successfully
resist the suit on any ground ? Would it make any difference if the
party repudiating the marriage is the husband.

Ans. Before the enactment o the Dissolution of Muslim Marriages Act, 1939, a minor girl
given in marriage by the father or the father's father, had no option to repudiate it on the
attainment of her puberty. But after the passing of the said Act, the contract of the father or
the father's father stands on no higher footing than that of any other guardian and the minor
can repudiate or ratify the contract made on her behalf during the minority, after the

attainment of puberty. Section 2(7) of the Dissolution of Muslim Marriages Act, 1939
provides as under:
"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.
Q. 17 What do you understand by a valid retirement ? Describe its
legal effect.

Ans. Valid retirement - The consummation of marriage is one of the essential


requirements of a valid Muslim marriage. A presumption of such consummation of marriage
can be raised only `Us-Sahih'.
The term valid retirement or `Khilwat-Ul-Sahih' has been defined by the various jurists and
the doctors of the Muslim law. Some of the important definitions are as follows `Radd-ul-Mukhatr, said that "If the parties having no physical, moral or legal bar, retire into
privacy, it raises a presumption of consummation of marriage."
According to Fatwai-Alamgiri, "A valid retirement is equivalent to the actual consummation
for the various purposes."
Ameer Ali defined it in these words "When the husband and wife are together at a lonely
place under such circumstances which present not legal, moral or physical impediments to
material intercourse, they are said to be in valid retirement."
The retirement will not be valid under the following circumstances -

(1) When the parties are observing the obligatory fast of `Ramzan'. Or
(2) Either husband or wife is suffering from an illness or physical incapacity which prevents
connubial relationship. Or
(3) A third person is present in that room even though such person is blind. Or
(4) Any other legal, moral or physical impediments which cause or likely to cause
disturbance in free intercourse between the spouses.
Therefore as per Amar Ali, merely the retirement into the nuptial chamber is not sufficient to
give rise to the presumption of consummation of marriage. More particularly when the place
for that purpose is exposed to public view or it has a public access or if it is open,
unenclosed place, the presumption of consummation of marriage does not arise. What
actually needed for a valid retirement is the absolute privacy for the spouses.
Legal effect of the valid retirement - According to `Fatwai Alamgiri', a valid retirement is
equivalent to actual consummation for the purpose of(i) Confirmation of dower
(ii) Establishing paternity
(iii) Observation of Iddat.
(iv) Observance of time in repudiation of marriage.
It is, however, not applicable for the following purposes (a) For making a person `Muhsan' or a daughter unlawful.
(b) For making the divorced woman lawful to her first husband.
(c) For revoking repudiation of marriage.
(d) For inheritance.
(e) Replacing actual consummation for the purpose of impairing virginity.
Amir Ali said that if a man should retire with a virgin and then repudiate her, she would
subsequently marry as virgin.
Q. 18 What do you understand by `Muta Marriage" ? Describe its
legal effects.
Also distinguish Muta Marriage with valid (Sahih) Marriage.
Ans. Muta Marriage. Muta is a kind of temporary marriage recognised in the Shia school of
Muslim Law. The term `Muta' implies "enjoyment" or `use'. Muta marriage is a marriage for a

temporary but a fixed period after specifying dower. According to Heffening in its legal
context it may be rendered as a "marriage for pleasure".
It is not recognised in Sunni Law because according to this school the marriage contract
should not be restricted in its duration and the words used at the time of proposal and
acceptance must denote an immediate and permanent union. Thus, under Sunni Law, a
marriage specifically declared for a limited period is void but under Shia Law such marriage
is valid.
Essentials of Muta Marriage 1. The period for which the union is to last should be fixed at
the time when the Muta is contracted. It may be for a day, a month, a year or for a number
of years.
2. Some dower should be specified in the contract. If the term of the cohabitation is not
specified but the dower is fixed the contract would be void as Muta but may be valid as
Nikah. But if dower is not fixed, neither Muta nor Nikah is valid.
Therefore where the term of the marriage was not fixed, it is not Muta and as also the dower
is not fixed the Nikah is also not there. Therefore the cohabitation is illegal and no legal
effects of such a marriage will be there. It is essential for a Muta that the period must be
fixed though the marriage is temporary.
According to Baillie "the rule of limiting the number of wives to four as regards regular
marriage, does not apply to Muta marriage."
Legal incident of a Muta marriage The legal incidents of a Muta marriage are as follows (i) It does not confer on the wife or husband mutual rights of inheritance, but children
conceived while it exists, are legitimate and capable of inheriting from both parents.
(ii) Where cohabitation originates in a Muta marriage, but there is no evidence as to the
original term for which Muta marriage was contracted, or the cohabitation continue after the
fixed period expires, the proper inference is that Muta continued during the whole period of
cohabitation and the children conceived during such period are legitimate.
(iii) If the Muta marriage is not consummated, the wife is entitled to half of the dower.
(iv) If the marriage is consummated, the wife is entitled to full dower even if the husband
puts an end to the marriage before the expiry of the fixed term by "making a gift of the term"
to her.
(v) If the wife leaves the husband before the expiry of the fixed term she is entitled to the
proportional dower only.
(vi) A Muta marriage does not entitle the wife to maintenance under her personal (Shia
Mohammedan) law.

(vii) If the children are born out of such marriages, they are legitimate and have the right of
inheritance from the both the Parents.
(viii) The Marriage is dissolved if so facts on the expiry of the fixed period or by mutual
consent.
How dissolved - A marriage is dissolved :
(a) automatically by the expiry of the term fixed, or
(b) at any time by the husband "making a gift of the term" to the wife even before the expiry
of the term. This gift is known as hiba-i-muddan.
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.

Q. 19 It is often said that "Muslim Marriage is a Civil Contract". Can


parties to this contract put any condition to contract they like ?
Discuss.

Ans. Marriage among Hindus to a sacrament tie between man and woman. A sacramental
marriage is considered to be holy union between man and woman for the performance of
religious and spiritual duties. However marriage under Muslim law is not essentially a
sacrament but is a civil contract. Every Mohammedan of sound mind who has attained
puberty may enter into contract of marriage. Muslim marriage being civil contract involves
essential requirement of proposal made by one and acceptance of proposal by other party
to marriage (IjaboQabool) at one meeting in the presence of two male or one male and two
female witnesses. It is also necessary under Muslim law that the parties contracting a
marriage must be acting under their free consent. Muslim law puts certain expressed
prohibitions in respect of marriage. Muslim marriage also involves essential condition of
payment of Dower (Mahr) by husband to his wife in consideration of Marriage. Such Dower
(Mahr) may either be prompt (Mu'ajial) or deferred (Mu'wajjal). So Muslim Marriage,
basically is a civil contract.
Since marriage among Mohammedans is a civil contract. It is possible for the parties to
attach reasonable conditions to matrimonial contract, so much so that on breach of any of
these conditions the court will have power to enforce the premarital agreement provided the
conditions are not against public policy or opposed to principles of Islam. Where the parties
to marriage are minor or lunatic the agreement may be made on their behalf by their
respective guardians. So if the agreement is not against the public policy or against the
principles of Islam, it is legal and enforceable.
Thus an agreement made before or after the marriage by which it is provided that wife shall
be at liberty to divorce herself if husband contracts second marriage without her consent.
Such agreement is valid and enforceable because it is not against public policy or is not
opposed to Islamic principles. Similarly premarital agreement between husband and wife
that husband shall immediately on marriage will pay certain amount of dower and will keep
on giving his earning to his wife and husband will take his wife to her parental house four
times in a year, are valid and enforceable because it is not opposed to Islamic principles.

However any agreement providing for future separation or taking away husband's freedom
to pronounce divorce are not enforceable since such agreements are in violation of Islamic
principle.
Q. 20 (a) Explain the validity of following agreements entered into
between husband and wife at the time of their marriage under
Mohammadan Law :
(i) That the parties shall not follow the Muslim law of inheritance.
(ii) That the husband shall have no right to divorce the wife.
(b) M, a Sunni Muslim marries W, a sunni female without the
presence of any witness, will it make any difference if the parties
were Shias?
Ans. (a) Muslim Marriage is a civil contract. It is possible for the parties to attach
reasonable conditions to the matrimonial contract so much so that on breach of any these
conditions the court will have power to enforce the premarital agreement provided the
conditions are not against public policy or against the principles of Islam. Thus conditions of
Marriage contract may be classified into (i) legal and (ii) Illegal. Legal conditions are valid
and enforceable and illegal conditions are such as to affect the validity of the contract and
render the contract of marriage voidable unless consummation takes place and if
consummation takes place, the condition alone is void.
Now coming to case in hand.
(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.
Q. 21 Explain the concept of Iddat under Muslim Law.

Ans. Iddat is the period during which it is incumbent upon a woman whose marriage has
been dissolved by divorce or death of her husband, to remain in seclusion and to abstain
from marrying another husband. So Iddat is an interval which the woman is bound to
observe between the termination, by death or divorce of one matrimonial alliance and
commencement of other.
Object of Iddat is to ascertain the pregnancy of wife so as to avoid confusion of parentage
under Sunni law marriage with woman undergoing Iddat is irregular and not void. But under
Shia law marriage with woman who is undergoing Iddat is void.
So `Iddat' is described as a period during which a woman is prohibited from marrying again
after the dissolution of her first marriage. Object of `Iddat' is to ascertain the pregnancy of
the wife so as to avoid the confusion of parentage.
DURATION OF IDDAT
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 4months 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.
Q. 22 Discuss the validity or otherwise of the following :

(a) A Sunni male marries a Shia woman in a desert where there are
no witnesses.
(b) Marriage of A, a Shia woman was dissolved on Jan. 1, 1980 on
account of death of her husband B. The marriage was not
consummated. A married D on Jan. 26, 1980.
(c) A, a Shia married B, a Shia female in the presence of a witness Q
on Jan. 12, 1980. In June 1980 he married D, who was B's sister.
(d) A, a Sunni male marries B, a Sunni female but no Mahr was
specified.

Ans. Under the Muslim law marriage is a civil contract. Marriage (Nikah) literally means the
union of the sexes and in law this term means "Marriage is a legal process by which the
sexual intercourse and procreation and legitimation of children between man and woman is
perfectly lawful and valid."
According to Dr. Jang
"Marriage though essentially a contract is also a devotional act, its object are rights
of enjoyments and procreation of children and regulation of social life in interest of
society." (a) It is essential amongst the "Sunnis" that at least two male witnesses or one
male and two female witnesses must be present at the time of proposal and acceptance of
marriage contract between bridegroom and bride. However absence of witnesses does not
render the marriage void (Batil) but voidable and could be validated by consummation of
marriage.
Under Shia law witnesses are not necessary at the time of marriage. So marriage in present
problem is valid if consummated or voidable if not consummated.
(b) Among Muslims, it is incumbent upon a woman whose marriage has been dissolved by
divorce or death of her husband to remain in seclusion and to abstain from marrying
another husband for certain term which is called `Iddat'. So `Iddat' is described as a period
during which a woman is prohibited from marrying again after the dissolution of her first
marriage. Object of `Iddat' is to ascertain the pregnancy of the wife so as to avoid the
confusion of parentage.
DURATION OF IDDAT

(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: If the widow is pregnant at the time of death of her
husband, Iddat will not terminate until delivery or miscarriage.
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.
In present problem, marriage of A, the Shia woman, was dissolved by the death of her
husband. Therefore, she is bound to observe `Iddat' for period of 4 months and 10 days
irrespective of fact whether marriage was consummated or not. But she married D before
the expiry of period of `Iddat' therefore, according to Shia law her second marriage was
void.
(c) Under Shia law, marriage prohibited by reason of unlawful conjunction is void. Unlawful
conjunction means marrying two women so related to each other by consanguinity; affinity
or fosterage, that they could not have lawfully inter-married with each other if they had been
of different sexes. Thus Muslim can not marry two sisters or an aunt and her niece.
In present case A has married with sister of her first wife who is alive and living with him so
marriage between A and D is void because parties were subjected to Shia Law. Legal
position under Sunni law is different on this point. Bar of unlawful conjunction renders the
marriage under Sunnis irregular not void.
(d) Mahr or dower is a sum of money or other property which the wife is entitled to receive
from the husband in consideration of the marriage. Under the Mohammendan law, dower is
an obligation imposed upon the husband as a mark of respect to the wife. The husband
may settle any amount he likes by way of dower upon his wife, though it may be beyond his
means, and though nothing may be left to his heirs after the payment of the amount. But he
cannot in any case settle less than ten Dirhams. The main object of the dower is to protect
the wife against the arbitrary exercise of power of divorce by the husband and the amount
of dower is often high. Therefore, the non-specification of Mahr before or at the time of
marriage shall not affect the validity of the marriage.

Q. 23 Define `Dower'. Explain its Importance under Muslim Law.


Discuss different categories in which dower can be divided.

Ans. Dower is anything whether money or other property which the wife is entitled to get
from her husband in consideration of entering into marriage contract. According to Muslim
Law, Marriage is a civil contract and dower is necessary result of it being a part of the
consideration of her agreement to become her husband's wife by consummating the
marriage.
According to Amir Ali. - Dower is a consideration for his wife's sole and exclusive use and
benefit.
Baillee observed that the fact of marriage having been contracted involves as a necessary
consequence that the wife can claim from the husband by way of consideration for the
surrender of her person.
According to Wilson, "Dower" is a consideration for the surrender or person by the wife. It is
the technical Anglo-Mohammedan term for its equivalent `Mahr' in Arabic."
According to Mulla, "Dower is a sum of money or other property which the wife is entitled to
receive from the husband in consideration of the marriage.
In Mst. Nasra Begum v. Rijwan Ali, AIR 1980 All. 118, it was observed that `Under
Mohammedan Law, Mehar or Dower means a sum of money or other property which the
wife is entitled to receive from the husband in consideration of her marriage. However,
Expression "Consideration" is not to be understood in the sense in which the word is used
in the Contract Act. In effect dower is an obligation imposed upon a husband as mark of
respect for the wife. Normally the extent of such obligation is determined by the contract
entered into between husband and wife either before or at the time of marriage. It may be
fixed after the marriage has taken place. If the amount of dower is not fixed or marriage has
been performed on express condition that wife will not claim any dower, still, wife is entitled
to receive proper dower (Mehr-i- misi).
Nature. - The following points may be noted with respect to the nature of dower :
(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.
Q. 24 Explain the widow's right of retention in lieu of her dower debt
in Muslim law.

Ans. Dower or Mahr is a sum that becomes payable by husband to the wife on marriage
either by agreement between the parties or by operation of law. Dower may be defined as
sum of money or other property which the wife is entitled to receive from the husband in
consideration of the marriage. It may be either prompt or deferred. Husband may settle any
amount he likes by way of dower upon his wife. But he cannot in any case settle less than
ten dirhams.
Jagdish Narayan Sharma v. Katoridevi, 1994(3) RCR 728 (MP): Dower or Mehar can be
defined as sum of money or other property which the wife is entitled to receive from the
husband in consideration of marriage, however gifts made to wife at the time of marriage
are not part of dower or mehar.

Object of dower is three fold firstly to impose an obligation on the husband as mark of
respect of wife. Secondly to put a check on capricious use of divorce on the part of husband
and thirdly and importantly to provide for her subsistence after the dissolution of her
marriage, so that she may not become helpless after divorce or death of her husband.
Dower ranks as a debt and the wife is entitled along with other creditors to have it satisfied
on the death of the husband out of his estate. If the widow has lawfully and without force
and fraud obtained in lieu of her dower actual possession of the property of deceased
husband, she is entitled to retain that possession as against other heirs and as against
other creditors of her husband until her dower is paid.
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.
In Shaikh Salma v. Mohd. Abdul Kadar, AIR 1961 A.P. 428, it was held that widow in
possession of her husband's property in lieu of dower debt is liable to account to other
sharers of income from such property in her possession.
Q. 25 What is the provision of Muslim Law regarding the following
issues connected with dower :(a) Can the amount of dower be increased after marriage?
(b) Is it necessary to specify the amount of dower at the time of
marriage ?
(c) Is a Muslim wife entitled to any other dower when the specified
dower is unlawful ?
(d) Whether the contract of dower made by a father on behalf of his
minor son make him (son) liable to pay such dower ?

(e) Can a Muslim wife remit the whole or part of the dower in favour
of her husband ? If so when and how?

Ans. (a) Increase or decrease of dower - A Muslim husband may increase the dower at
any time after his marriage but once the amount of dower is agreed by the wife and
husband, it becomes a contract. Such contract then becomes binding on the husband.
(b) Determination of the specific dower - It is necessary in a Muslim marriage that the
amount of Dower (mehr) should be specified. In case it is not done so, the legality of the
marriage is not adversely affected due to the same.
If the amount of dower is not specified at the time of marriage it can be determined in
proportion to amount of dower given to the other woman of the bride's house.
(c) Entitlement of a Muslim wife for other dower - If the amount of dower (Mehr) in a
Muslim marriage is unlawful, the marriage itself will not be invalid or void. It is a general rule
that the amount of dower for Muslim wife will be fixed on the basis of social position of her
father's family and her own personal qualifications.
(d) Liability of son to pay dower fixed by his father - If contract of marriage of Muslim
minor is entered by his or her father or guardian, the amount of dower fixed in consideration
of marriage becomes binding on the boy (bridegroom). In case such father or guardian
stood as security for the payment of such dower, he can be held liable to pay the same in
case the boy (bridegroom) fails to do so.
(e) Remission of Mehr by wife - A Muslim wife can remit the dower or any part thereof in
favour of the husband or his heirs. Even if such remission is without consideration it is held
valid in the eye of law. In this connection it is, however, necessary that the remission must
have been made with the free consent. `Free consent' in reference means (a) Without coercion
or
(b) Undue influence.
In the case of Nurrannessa v. Khoje Mohammad (1930, 47, Cal 537) it was held by the
court that if the remission of dower is made by the wife when she is in a great mental
distress owing to her husband's death, it will not be deemed to have been done with free
consent of wife. It is also necessary that remission of dower must be made only by such a
wife who is not minor. According to Allahabad High Court in the case of `Quasim Hussain
v. Bibi Kaniz (1932, 54 All 806) that Indian Majority Act (section 2) 1875 does not effect on

the capacity of only or any person `to act in the matter of marriage or dower'. Therefore, a
Muslim girl who has attained the puberty is competent to relinquish her dower, though she
may have not attained the age of majority (18 years) within the meaning of Indian Majority
Act. This view is correct as per `Mulla'.
Q. 26 A Sunni widow who was a convert to Islam, sued, the heirs of
her husband for recovery of Rs. 51,000 as her dower, alleging that
this was the amount fixed at the time of marriage. The heirs pleaded
that she was a concubine and not a married wife. The court found
the marriage to be proved but held that the dower alleged by her
was not proved. What decision would you record in respect of the
amount of dower, if any ?

Ans. Three things are to be noted in this case. They are :(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.
Q. 27 What are the remedies open to the wife on non-payment of
dower ?

Ans. The rights which dower confers on the wife are three-fold :
1. Refusal to cohabit.
2. Right to dower as a debt.

3. Retention of husband's property.


1. Refusal to cohabit. - If the marriage has not been consummated, she has a right to
refuse to cohabit with the husband so long as the prompt dower is not paid. Before
consummation, the wife is entitled to refuse to live with her husband and refuse to him
sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of
conjugal rights by the husband, the non-payment of prompt dower is a complete defence if
the marriage is not consummated. If the wife is minor or insane, her guardian can refuse to
allow the husband to take her with him till the payment of prompt dower. If the minor wife is
already in her husband's custody, such guardian can take her back on the ground of nonpayment 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.
Q. 28 Discuss the principle underlying `talaq'. How is it made ?

Ans. What is `Talaq' ? - The word `Talaq' originated from the word `tallaqa' which means to
release an animal and Talaq is releasing wife from the bondage of marriage.
Talaq means the exercise of the absolute power which the husband possesses of divorcing
his wife at all times. According to Muslim Law, any husband, who is of sound mind and has
attained puberty may divorce his wife whenever he desires without assigning any reason, at
his mere whim or caprice. Under Shia Law, free will and intention are essential for valid
talaq which is not necessary under Sunni Law. It may be oral or in writing. In India, no
decree of Court is necessary for making the Talaq effective. But in many Islamic countries of
the world, this arbitrary power of the husband has been controlled to a large extent by
reforming the Islamic law on this point. Thus, in Turkey, Cypres, Tunisla, Algeria, Iraq and
Iran a husband desiring to divorce his wife has to apply to a court of law.
Sunni Law : Oral talaq. - The husband may give talaq by mere words without any
talaqnama or deed of divorce and no particular form of words is necessary. If the words are
express and well understood as implying divorce, no proof of intention is required. If the
words used are ambiguous, the intention of the user must be proved. The words "I have
divorced thee" or "I divorce my wife for ever and render her haram for me" clearly indicate
an intention to dissolve the marriage and no proof of intention is necessary. But the words,
"Thou art my cousin, the daughter of my uncle, if thou goest", or "I give up all relations and
would have no connection of any sort with you" are ambiguous and as such, the intention
must be proved.
Talaq given in the absence of wife. - It is not necessary that the talaq should be
pronounced in the presence of the wife or even addressed to her. The absence of wife does
not make it void or ineffective, but in case of her absence, she must either be referred to by
name or the words of repudiation must clearly refer to her. Hence, where merely the words
of divorce alone were pronounced, the talaq was held to be invalid.
The talaq given in the absence of the wife must be communicated to her within a
reasonable time.
Talaq in writing (Talaqnama). - A Talaqnama may only be the record of the fact of an oral
talaq or it may be the deed by which the divorce is effected. Talaqnama may be executed in
the presence of the Qazi, or of the wife's father or of other witnesses. Wife's presence is not
necessary. If the deed is properly subscribed and addressed or is in a customary form,
intention is not necessary to be proved. If it is ambiguous or words are unintelligible, the
intention must be proved.

Divorce by Talaqnama takes effect from the date of the document and not from the date of
its receipt by the wife.
Talaq under compulsion or intoxication or in jest - Sunni Law. - (a) Talaq is valid and
effective even if pronounced under compulsion. Hence, a Talaq given by husband to please
his father, in spite of the fact that the husband did not intend to divorce his wife was held to
be valid. [Rasid Ahmad v. Anisa Khatun, (1931) 59 I.A. 21].
(b) Talaq given under intoxication is also valid unless the drug was given against his will.
(c) A Talaq uttered in sport or jest or by mere slip of tongue is valid.
Shia Law. - A Talaq under Shia Law must be pronounced orally in the presence of two
competent witnesses. A Talaq communicated in writing is not valid, unless the husband is
physically incapable of pronouncing it orally. Talaq under intoxication, jest or compulsion is
not valid in Shia Law. The particular form of Talaq must be pronounced in Arabic language,
unless the husband has no knowledge of this language in which case it must be
pronounced in his mother-tongue. In Dilshada Masood v. Gh. Mustaffa (A.I.R. 1986
Jammu and Kashmir 80), the High Court of Jammu and Kashmir held that under Shia Law,
divorce must be pronounced only in Arbic and that too in a specific form. It is not, however,
necessary that the husband himself must be knowing Arbic. He can engage the services of
an agent who knows Arabic to pronounce the same in his behalf. It was also observed that it
is a established principle of Shia Law that pronouncement of Talaq must be uttered orally in
presence and hearing of two male witnesses who are Muslims, however it is no where
written in any texts of Shia Law that divorce must be pronounced in presence of Imam.
Written Talaq (Talaqnama) is not valid in Shia Law, unless husband is dumbman or
otherwise incapable of speaking. Talaq in the absence of wife is valid under Shia Law also
provided name of wife is expressly referred to in pronouncement of Talaq.
Q. 29 What are revocable and irrevocable divorces under Muslim Law
? Can the parties to these divorces remarry ?

Ans. Under the Muslim law, a Marriage is dissolved either by death of husband or wife or by
divorce. Divorce can be classified in following:
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.
Q. 30 (a) How Talaq (Divorce) takes place by the conduct of Wife and
Husband ?
(b) Distinguish between `Khula' and `Mubarat'.
Ans. Divorce by the conduct of spouse - Marriage in Muslim Law is a civil- contract
based on the mutual good will and cooperation of wife and husband. As such either a
Muslim wife or husband can take divorce by their conduct. In such cases, the following
types of Talaq can take place :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 1. Where the desire for separation is expressed from
the side of wife, it is called Khula.
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 3. It can be effected by the offer of any of the
the husband, if she is released by him from the
spouse.
marital tie.
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.

Q. 31 Is a stipulation between husband and wife conferring the right


on the wife to divorce herself permissible under Mohemmedan law ?
`If so, is it conditioned by prerequisites ? What are the principles on
which Mohammedan law recognises such a stipulation ?

Ans. Marriage under Muslim law being essentially a contract, there can be an agreement
between Muslim husband and wife providing that wife will be at liberty to divorce herself
from her husband under certain specified conditions or contingencies. However for the
enforceability of such agreement it is essential that conditions or contingencies in which wife
will be entitled to divorce herself from her husband, should not be opposed to public policy
or to the principles of Islam. Under Muslim law power to give divorce is primarily lies with
husband. Husband under an agreement made either before or after the marriage delegates
this power to his wife. This is called "Talaqe Tawfeez".
It must be borne in mind that in case "Talaqe Tawfeez" the wife does not divorce her
husband as this she can not do under Muslim law but infact she divorces herself on behalf
of her husband under his powers delegated to her. When wife is empowered to divorce
herself in specific contingencies, which she will exercise at the happening of any of them,
the divorce will take effect to same extent as if it had been pronounced by the husband.
In Buflatan Bibi v. Abdul Salim, AIR 1950 Cal. 304, it was held that the wife exercising her
power under the agreement must establish that the conditions entitling her to exercise the
power have been fulfilled.
Therefore an agreement between husband and wife whether entered into before or after the
marriage by which the husband authorises the wife to divorce herself from him in the event
of his marrying a second wife without her consent is valid. Because conditions are of
reasonable nature and are not opposed to policy of Muslim law.
Q. 32 (a) Two Muslims A and B were married on 18.6.85. It was
agreed by the parties that if A took a second wife, B will have right
to pronounce divorce on 20.4.87. Is it a valid divorce ?

Ans. (a) Under Muslim Law husband can lawfully delegate his power to divorce his wife to
any third person or even to his own wife to divorce herself. This concept is known as
`Talaqetaweez'. According to this concept the talaqi husband may enter into an agreement
with his wife that under certain specified conditions wife would be at liberty to divorce
herself from her husband. However such agreement to be valid, it is necessary that option
is not absolute and unconditional and secondly conditions are reasonable and not opposed
to public policy.

In Mohd. Khan v. Shahmali, AIR 1972 J and K 8 Agreement under which husband agreed
to live in his wife's parental house and if he would leave that house he would pay certain
specified sum. Default of this condition would operate as divorce. It was held that the
condition was not opposed to public policy, violation of such term would operate as divorce
between husband and wife.
However it is important to point out that in case of Talaqetaweez the wife does not divorce
her husband under his power delegated to her by him. Under Muslim law when under the
contract; the wife is empowered to divorce herself in specific contingencies which she
exercises at the happening of any of them. The divorce will take effect to same extent as if it
had been pronounced by the husband.
So divorce pronounced by B to herself when A solemnized second marriage is not opposed
to public policy and being TalaqeTaweez is valid.
Q. 33 A Muslim wife misbehaved with her husband. She was
addressed thrice the word `Talaaq' pronounced by her husband.
Thereupon she apologized for her misbehaviour. They continued
cohabitation. A son was born to the woman from him. He was got
admitted to the school by her father as his own son and brought him
up as such.
After the death of the man, his full brother laid exclusive claim to his
estate. Decide the suit. The defences raised are that divorce was
revoked and that paternity of the son was acknowledged.
Ans. Under Muslim Law, one of the forms of Talak (Divorce) is "Talaqulbiddat'. Such form of
Talaq is recognised under Sunni Law, but is considered to be irregular form of Talaq.
Under Shia law `Talaqeul biddat' is not recognised. In order to be in this form of Talaq
following requirements are required:
(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."

Q. 34 Under what circumstances a Muslim wife is entitled to decree


of dissolution of her marriage under the Dissolution of Muslim
Marriage Act, 1939 ? What is effect of apostasy from Islam ?

Ans. Grounds of Dissolution of Muslim Marriage - Section 2 of Dissolution of Muslim


Marriage Act, 1939 lays down nine grounds on which a woman under Muslim Law is entiteld
to decree of divorce, it says"A woman married under Muslim Law shall be entitled to obtain decree for dissolution of her
marriage on any one or more of the following grounds namely 1. Absence of Husband - As per section 2(i) when the where-abouts of the husband have
not been known for period of four years;
However Section 2(i)(b) of Act says that a decree passed on this ground shall not take
effect for a period six months from the date of such a decree and if the husband appears
either in person or through authorised agent within that period and satisfies the court that he
is prepared to perform his conjugal duties, court shall set aside the decree.
2. Failure To Maintain - The Husband has neglected or has failed to provide for her
maintenance for period of 2 years (Section 2(ii))
3. Imprisonment of Husband - The husband has been sentenced to imprisonment for
period of seven years or upwards. No decree shall however be passed on this ground until
the sentence become final. (Section 2(iii)(a))
4. Failure to perform mortal obligation - The husband has failed to perform, without any
reasonable cause, his marital obligations for a period of three years. [Section 2(iv)].
5. Impotency of husband - The husband was impotent at the time of the marriage and
continues to be so; but on an application by the husband, the court shall make an order
requiring the husband to satisfy the court, within one year from the date of such order, that
he has ceased to be impotent; and if the husband so satisfies the court within such period
no decree shall be passed on this ground. [Section 2(iv)(c)].
6. Insanity, leprosy or veneral disease - The husband has been insane for two years or is
suffering from leprosy, or a virulent disease [Section 2(vi)].
7. Reproduction of marriage by wife - She (the wife) having been given in marriage by
her father or other guardian before she attained the age of 16 years, repudiated the
marriage before attaining the age of 18 years, provided the marriage has not been
consummated. [Section 2(vii)].

8. Cruelty of husband - The husband treats her with cruelty that is to say (a) habitually assaults her or makes her life miserable by cruelty of conduct, even if such
conduct does not amount to physical ill-treatment; or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her lead an immoral life, or
(d) disposes of her property or prevents her from exercising her legal rights over it; or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. [Section 2(viii)].
9. On any other ground which is recognised as valid for the dissolution of marriages under
Muslim Law. [Section 2(ix)].
This clause covers the divorces Illa, Zihar, Khuba, Mubarat and Tafweez. Imputation of
unchastity or a false charge of adultery against the wife makes a good ground for the
dissolution of her marriage. This ground falls in clause (ix) of section 2 of the Dissolution of
Muslim Marriage Act 1939.
Effect of Apostasy from Islam on Marriage Section 4 of the Dissolution of Muslim
Marriage Act mentions about the effect of apostasy from Islam on marriage. The
renunciation of Islam by a married Muslim woman or her conversion to a faith other than
Islam, shall not by itself, operate to dissolve her marriage. But after such renunciation or
conversion, the woman shall be entitled to obtain a decree for dissolution of her marriage on
any of the above mentioned grounds.
Although apostasy of a Muslim woman shall not, by itself, be a ground for dissolution of her
marriage, the conversion of a woman converted to Islam from some other faith to her former
faith shall, by itself, operate as automatic dissolution of her marriage.
Q. 35 The husband is not providing maintenance to his wife because
of her refusal to live with him. State whether the wife can claim
decree of dissolution of marriage under Dissolution of Muslim
Marriage Act, 1939. Refer to decided cases.

Ans. Section 2 of Dissolution of Muslim Marriage Act 1939, provides grounds for decree of
dissolution of Marriage. Clause (ii) ofSection 2 of the Act lays down that a woman married
under Muslim law shall be entitled to obtain decree for dissolution of her marriage on the

ground that the husband has neglected or has failed to provide for her maintenance for
period of two years.
Clause (iv) also says where husband has failed to perform without reasonable cause his
marital obligations for period of three years.
So where the husband has neglected or has failed to provide his wife with maintenance for
the period of 2 years, wife is entitled to decree of dissolution of marriage. Section
2 (ii) contemplates an unbroken period of two years next before the suit.
It is to be noted that divorce can be granted on grounds which do not necessarily involve
any deliberate default on the part of the husband, it is absolutely immaterial whether the
failure to maintain is due to poverty, failing health, loss of work, imprisonment or any other
cause. (Manak Khan v. Mulkhan Bano, AIR 1941 Lah. 167). However in Mahiya
Khatoon v. Shaikh Answer, AIR 1971 Cal. 218 it was held that where the wife voluntarily
stayed away from her husband's house and despite the husband's request to return to his
house and live with him and despite also his offer maintaining her there she chose to stay in
the house of her relation it cannot be said that these circumstances indicate neglect or
failure on the part of husband to maintain.
So legal position is clear that wife is entitled to decree of dissolution of marriage u/s 2(iv) of
the Act, if husband has neglected or failed to provide for her maintenance for period of
continuous two years, wife is still entitled to this relief even when husband fails to maintain
not because of his own failure or incapacity but because of other resons and beyond his
control. However where wife deliberately deserts the husband; and husband is prepared to
maintain her provided she live with him.
Q. 36 What are the legal effect of a divorce ? Also describe the rights
and obligations of the parties on divorce.

Ans. The following are the legal effects of a divorce (i) Right to contract another marriage - If the marriage was not consummated, the wife is
not bound to observe Iddat, and she may marry again immediately. But if the marriage
consummated then the wife is bound to observe iddat which is three menstrual periods. If
she is not subject to menstruation, then three lunar months. If the wife is pregnant at the
date of divorce, the period of iddat is until delivery, or three months, whichever is longer.

(ii) Maintenance - During the period of iddat, the husband is not bound to maintain the wife.
If the divorce is not communicated, the wife is entitled to maintenance even after the expiry
of that period until she is informed of the divorce.
(iii) Dower - If the marriage was consummated, the wife is entitled to the whole of the
unpaid dower, whether prompt or deferred.
But if the marriage is not consummated, the wife is entitled to half of the specified dower.
Prompt dower becomes payable immediately and deferred dower also becomes due.
(iv) Right of inheritance - When the divorce becomes irrevocable, mutual rights of
inheritance between husband and wife cease to exist. There is one exception to this, viz. in
case of a divorce given during death-illness (Marz-ul-maut), in which case, the wife's right to
inherit continues, till the period of iddat is over.
(v) Remarriage with divorced wife - After iddat, the parties can re- marry each other,
except when divorce is given by triple pronouncement of talaq. In that case, before they can
remarry, the wife must be married to another person in the interval and divorced by him.
Rights and obligations of parties - Until the divorce becomes irrevocable (a) the husband
can revoke, and (b) either party is entitled to inherit the order.
But as soon as the divorce becomes irrevocable, the wife may marry another husband (a)
immediately, if the marriage was not consummated (b) After the completion of iddat, if the
marriage was consummated.
Where husband has four wives including the divorced wife at the date of the divorce, he can
marry another wife immediately if his marriage with the divorced wife was not consummated
and after the completion of period of Iddat, where the marriage was consummated.
Wife is entitled to maintenance during Iddat or until she is informed of divorce.
In Rashid Ahmad v. Anisa Khatun (1932) Bom.L.R. 475, it was observed that sexual
intercourse with divorced wife is unlawful and the issues of such an intercourse are
illegitimate, that paternity cannot be acknowledged.
Mutual rights of inheritance ceases after expiry of period of Iddat. Wife's right of inheritance
continues only if (i) Divorce was pronounced during Husband's death illness and (ii) It was
not repudiated at her own request, until expiry of the iddat.
Wife become entitled to whole of the dower if the marriage was consummated and half of
specified dower if marriage is not consummated.

Q. 37 The law of adoption is unknown to Muslim Law. In this


connection explain the meaning of acknowledgement of paternity
under Muslim Law.

Ans. Muslim law does not recognise the institution of adoption which is recognized by other
systems. On the other hand, Muslim law recognize the institution of `Ikrar' or
acknowledgement. Acknowledgement is not legitimation. In Muslim law an
acknowledgement of legitimacy is a declaration of legitimacy and not legitimation.
The Muslim law of acknowledgement of parentage with legitimating effect has no reference
whatsoever to cases in which illegitimacy of a child is proved or established either by
reason of a lawful union between the parents of child being impossible or by reason of
marriage necessary to render the child legitimate being disproved. The doctrine of
acknowledgement applies only to cases of uncertainty as to legitimacy but the effect of
acknowledgement always proceeds upon assumption of a lawful marriage between parents
of acknowledged child.
In Mohammad Khan v. Ali Khan, AIR 1981 Mad. 209 Madras High Court observed that
the doctrine of acknowledgement could be invoked only where the factum of marriage or
exact time of the marriage could not be proved and not to cases where the lawful union
between parents of child was not possible or an adulterous connection and where the
marriage necessary to render the child legitimate was disproved.
Hence a man expressly or impliedly acknowledges another as his lawful child, the paternity
of the child will be established in the man, provided following conditions are fulfilled:
(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.
Q. 38 What are the rules for presumption of legitimacy under
Mohammedan Law ? Is legitimacy contrary to any provision of Indian
Evidence Act 1872 ?

Ans. Presumption of legitimacy - The following are the rules for presumption of legitimacy
according to Muslim Law (1) A child born within six months of the marriage is illegitimate unless the father
acknowledges him.
(2) A child born after six months of the marriage is legitimate unless the father disclaims
him.
(3) A child born after the termination of marriage is legitimate if such child born According to Hanafi Law
According to Shafi'i and Maliki law
According to Shai law

within 2 lunar years.


within 4 lunar years.
within 10 lunar months

The reasons of divergent periods - The main reasons of such divergent periods are as
follows (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.

Q. 39 What are the various kinds of guardianship according to


Muslim Law ? Describe in brief about each.

Ans. Guardianship - One of the remarkable features of Muslim Law is that the rules for the
guardianship of a minor (a) of his person, (b) property and (c) with guardianship, have been
well defined. The `guardianship' and `custody' of the minors are two different things and the
same have been recognized in the verses of Koran (Quran) as well as in Ahdis. `Raddul
Mukhtar' also recognized the right of a father and, in his absence, of an executive, of the
guardianship over the person and properties of his minor. In the same way, `Father-iAlamgiri' also recognized the same thing in these words - "The executor of a father is in the
place of father and also the executor of grandfather is in the place of grandfather and the
executor of the grandfather's executor is in the place of the grandfather's executor and the
executor of the judge is in the place of a judge, when his appointment is in general."

Appointment of Guardian - A Muslim, other than father, can become a guardian of a minor
even without the previous orders of the court. There is nothing to prevent him from applying
in the court under `The Guardians and Wards Act' for declaration as guardian under this Act.
The fact is that any person desirous of being or claiming to be the guardian of a minor and
any relative or a friend of minor can apply, on the form prescribed under Section 10 of the
Act to a court. The orders for the appointment of guardian should, however, not be made by
the court without giving proper notice of application to all such persons interested in the
Minor.
Kinds of Guardianship - Guardians, according to Muslim Law, are divided into the
following categories (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 nonMuslim 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.
Q. 40 Who are the guardian of a Muslim minor under Mohammedan
law.

Ans. The term `Guardianship' (Wilayat) connotes the guardianship of minor. A minor is one
who has not attained the age of majority. Puberty and majority are one and same under the
Muslim law. Puberty is presumed to have been attained on the completion of 15th year. A
minor can not manage his or her estate education, career etc. As such a guardian is
required in order to look after his or her welfare till such minor attains the age of puberty.
Under Mohammedan law, the mother is entitled to the custody (Hizanat) of minor's person.
The mother is entitled in Sunni law to the custody of her male child until his age of seven
years and in case of female of female child until she attain puberty. In Shia law mother is
entitled to custody of her male child till the age of 2 years and in case of female child
upto 7 years of her age. This right of mother shall continue even if she is divorced by the
father of child and will continue until she marries a second husband and in that eventuality
the custody belongs to father of child.
In Imambandi v. Mustadi, (1918) 45 I.A. 73 Privy Council had observed "Under
Mohammedan law the mother is entitled only to the custody of person of her minor child
upto certain age. She is the defacto guardian and she is not natural guardian of minor child.
Under Sunni law failing the mother custody of boy under the age of 7 years and of girl who
has not attained puberty goes to
(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.
Q. 41 Who is entitled to guardianship of a Muslim wife who has not
attained the age of puberty ?

Ans. Under Muslim Law the mother of a girl who is married but has not attained puberty is
entitled to the custody of the girl as against the husband of the girl. The court has no power
under the Guardian and Wards Act to appoint a Guardian of the person of a minor, where
the minor is a married woman and her husband is not in the opinion of court unfit to be
guardians of her person. If it be a rule of Mohemaddan Law that a husband is not entitled to
the custody of his wife until he has attain puberty it must be taken to rest on the hypothesis
that he is unfit by that law for that custody. If so the court may hold u/s 19 of Guardian and
Wards Act that a Mohammadan husband is `unfit' within the meaning of that Section to be
guardian of the person of his wife until she has attained puberty and may consistently with
the provision of that Section appoint her mother as her guardian until she attains puberty.

Q. 42 Describe the powers of a guardian on the property of a minor.

Ans. The power of a guardian on the property of a minor are as follows(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.
Q. 43 Discuss the law regarding custody of Minor under Muslim Law?

Ans. Hizanat : This term means the custody. Under Sunni law mother is entitled to custody
(Hizanat) of her male child until he has completed the age of 7 years and in case of female
child unless she has attained puberty. Under Shia law, mother is entitled to custody of male
child till the age of two years and for her female child till the age of 7 years.
Mother's right of `Hizanat' continues though she is divorced by the father of the child unless
she marries a second husband in which case the custody belongs to the father.
Under Sunni law; failing the mother, Hizanat (custody) of a boy under the age of 7 years
and girl who has not attained puberty goes to following female relatives (a) Mother's mother
(b) Father's mother (c) Full sister (d) Uterine sister (e) Consanguine sister (f) Full sister's
daughter (g) Uterine sister's daughter.
However right of Hizanat of mother or any female relative is lost if (i) she lead an immoral
life or (ii) if she marries a person not related to the child within prohibited degree (iii) if
during the subsistence of marriage she goes and resides at a distance from the father's
place.
In case of absence of mother or female relatives, the right of Hizanat under Sunni law
belongs to (i) father (ii) Nearest paternal grandfather (iii) full brother (iv) consanguine
brother (v) full brother's son (vi) consanguine brother's son etc. Provided, no male is entitled
to custody of unmarried girl unless he stands within prohibited degree of relationship to her
and if there is none of the above guardian, it is for court to appoint guardian of the person of
a minor.
Under Shia law, failing mother, the father and failing the father the father's father is entitled
to the custody of minor's person.
In case of boy over the age 7 years and unmarried girl who has attained puberty, father is
entitled under Sunni law to the custody and under Shia law, father is entitled to Hizanat of
male child above 2 years and unmarried girl of 7 years or more.

Q. 44 Define `Gift' What are the essentials of a valid gift ?

Ans. In Muslim Law `Gift' is called `Hiba' which is a well defined legal concept. The term
`Hiba' according to Mulla is - "A Hiba or a gift is transfer of property made immediately and
without any exchange by one person to another and accepted by or on behalf of latter."
Section 122 of Transfer of Property Act 1882 says - "A gift is transfer of certain existing
moveable or immoveable property made voluntarily and without any consideration by one
person called `Donor' to another called the `Donee' and accepted by or on behalf of the
donee."
In Abdul Manan v. Md. Murad Ali and others, 1999 Family Law Cases 108 Patna High
Court lays down 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.
So from above discussion, it is clear that following are essentials of gift:(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.
Q. 45 C a Muslim executed a deed of gift of a house in favour of D. At
the time of gift the house was in possession of A who claimed it
adversely to C. D sues A to recover possession of the house as donee
of the property and joins C also as defendant. C in his written
statement admits claim of D. A contends that the gift is void since C
had no possession of the house at the date of the Gift and no
possession was ever given to D. Decide.

Ans. Gift or `Hiba' under Muslim law means transfer of property made immediately without
any consideration. During the life time a Mohammedon can make gift of all or any part of his
property. Word `Hiba' literally means the donation of a thing from which donee may derive
benefits. Every Muslim of sound mind and who has attained majority can make gift.

However under Muslim law, for the validity of Gift following essential conditions must be
fulfilled:
(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.
Q. 46 A gift of a house was made by donor X to donee Y without
delivering the title deed, no mutation of name was effected and the
donor continued to pay the house tax. Comment whether gift is
valid ?

Ans. For the validity of gift or Hiba under Muslim Law it is essential that
(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.
Q. 47 Explain the gift of MUSHAA.

Ans. A `Mushaa' is an Arabic word meaning `undivided' share in a property. The rule as to
`Mushaa' as laid down in `Hedyya' is `gift of a part of a thing which is capable of division is
not valid unless the said part is divided off and separated from the property of the donor', a
gift of an indivisible thing is valid.
There is no unanimity of opinion among different schools of Muslim law; on question of the
validly of the doctrine of Mushaa. According to Shia school a gift of undivided property can
validity be made provided donor must give to donee the possession of undivided property,
on the other hand, Hanifi school does not recognize the doctrine of Mushaa.' In Asha
Shaukat and others v. State of Bihar and others, 1997 Family Law Cases (HC)
282 Patna High Court held Doctrine of Mushaa, if the subject matter of gift is divisible then
an undivided part cannot form the subject of gift, on the principle of `Mushaa'. But if it
cannot be divisible the undivided part can form the part of the subject matter of gift on these
principles.
Kinds of Mushaa :
A `Mushaa' may be either:

(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.
Q. 48 Define `Hiba-bil-iwaz' and `Hiba-bi-Sharti-ul-Iwaz'. What is the
difference in between these two ?

Ans. Hiba-bil-iwaz - Hiba-bil-iwaz is a gift for a consideration. It has almost all the incidents
of a contract of sale. `Hiba-bil-iwaz' has as per Asaf A.A. Fyzee has two separate parts; i.e.
(a) Hiba (original gift by the donor to the donee) and (b) an iwaz (return gift by the donee to
the donor). In short, the `Hiba-bil-iwaz' means a gift with return. Therefore, when both things

i.e. Hiba (Gift) and Iwaz (return) is completed the transaction is called `Hiba-bil-iwaz'. For
example, `A' makes a gift of a cow to `B' and later B makes a gift of a horse to `A'. If `B'
says that the horse was given to him by `A' by way of return or exchange, then both are
irrevocable. The law requires the completion of all the formalities of a valid Hiba in such
transaction. In the case of Rohini Bukhish v. Muhammad Hassan (1888) 11 All. 15, it was
held by the court that the fundamental conception of `Hiba-bil- Iwaz' in Mohammedan Law is
that is a transaction made of two separate acts of the donation i.e. it is a transaction made
up of mutual or reciprocal gift between two persons each of whom is alternatively the donor
of one gifts and the donee of the other. The matter was described by Bailee in these words,
`The transaction which goes by the name of `Hiba-bil-iwaz' in India is therefore, in reality not
a proper Hiba-bil-iwaz of either kind but a sale and has all incidents of the latter contract.
There are two conditions for a valid `Hiba-bil-iwaz' (1) Actual payment of consideration (Iwaz) on the part of 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-bashart-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
(1) In such Hiba the iwaz (return) is not even in the
contemplation of the parties at the time of original
gift.

Hiba-ba-shart-ul-iwaz
(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 (2) It bears the character of sale because the item
not partake the character of sale even when Hiba is can be returned if it is defective.
given.
(3) In such Hiba, no sooner the possession of
(3) It is not so.
subject matter of Hiba is given to donee is iwaz, then
it becomes a sale.
(4) Delivery of possession of subject matter of gift is (4) Delivery of possession is necessary.
not necessary.
(5) There is not such condition.

(5) It can be revoked at any time before the delivery


of possession and if it is completed, a Hiba cannot
be revoked.

Q. 49 Explain the doctrine of MARZULMAUT (Death illness) Gift under


Muslim Law.

Ans. Gift or HIBA literally means donation of a thing from which donee may derive a benefit.
It is the conferring of property without consideration. During the life time of a Mohammdan
he can make gift of all or any part of his property but his right to do so by way of will or while
on the death bed is subject to some restrictions.
Death Bed Illness (MARZULMAUT) When a person is suffering from `Marz' (Illness) and is
under the apprehension of his `Maut' (death) he is said to be suffering from `MarzulMaut'.
In Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538, it was held that crucial test of
`MarzulMaut, is the subjective apprehension of death in the mind of the donor i.e.
apprehension derived from his own consciousness as distinguished from the apprehension
caused in the mind by others of other symptoms or physical incapacities are only indications
but infallible signs of `MarzulMaut'.
Essentials of Death bed Gift A gift that is made during death illness is called a death bed
gift and it subject to certain restrictions. Death bed illness gift transaction essentially and
basically being gift must satisfy all the formalities that are essential for making gift which
are: (a) Declaration of gift by donor (b) acceptance of gift and (c) delivery of subject matter

of gift from donor to donee. It is important to point out that death bed gift is operative as
such after the donor's death.
In Mumtaz Ahmad v. Wasiunnesa, AIR 1948 Oudh. 301. , it was held that doctrine of
Marzulmaut applies to cases where the gift is made under pressure of sense of imminence
of death.
Though a Muslim has unlimited power to dispose of his property by way of gift but donor's
power to dispose of his property by gift during death illness is subject to following restriction:
(i) Gift to non-heir - He cannot make gift of more than 1/3 of his property in favour of nonheir unless the other heirs give consent to the excess taking effect.
(ii) Gift to an heir. The gift to an heir made during death illness is altogether invalid unless
the other heirs consent to it.
(iii) A gift made during death illness is subject to all conditions and formalities necessary to
constitute a gift inter vivos so there must be declaration, acceptance and actual or
constructive delivery of possession.
Q. 50 Rehman is suffering from blood cancer and is bedridden. When
he came to know it he gave all his property in favour of his wife by
way of gift. Six months later he dies. His legal heirs challenge the
gift (Hiba). Will they succeed ?

Ans. Gift or HIBA literally means donation of a thing from which donee may derive a benefit.
It is the conferring of property without consideration. During the life time of a Mohammdan
he can make gift of all or any part of his property but his right to do so by way of will or while
on the death bed is subject to some restrictions.
Death Bed Illness (MARZULMAUT)
When a person suffering from `Marz' (Illness) and is under the apprehension of his `Maut'
(death) he is said to be suffering from `MarzulMaut'. In Safia Begum v. Abdul Rayaz, AIR
1945 Bom. 538. It was held that crucial test of `MarzulMaut; is the subjective apprehension
of death in the mind of the donor i.e. apprehension derived from his own consciousness as
distinguished from the apprehension caused in the mind by others of other symptoms or
physical incapacities are only indications but infallible signs of `MarzulMaut'.
Essentials of Death bed Gift

A gift that is made during death illness is called a death bed gift and it subject to certain
restrictions. Death bed illness gift transaction essentially and basically being gift must
satisfy all the formalities that are essential for making gift which are: (a) Declaration of gift
by donor (b) acceptance of gift and (c) delivery of subject matter of gift from donor to donee.
It is important to point out that death bed gift is operative as such after the donor's death.
In Mumtaz Ahmad v. Wasiunnesa, AIR 1948 Oudh. 301. It was held that doctrine of
Marzulmaut applies to cases where the gift is made under pressure of sense of imminence
of death.
Though a Muslim has unlimited power to dispose off his property by way of gift but donor's
power to dispose off his property by gift during death illness is subject to following
restriction:
(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.
Q. 51 (a) Can a gift once made be revoked ? If so, what is the
provisions for such revocation ?
(b) What are those gifts which cannot be revoked afterwards?
Ans. (a) Revocation of gift - A gift once made can, with a few exceptions, be subsequently
revoked. According to Tyabji in Muslim Law, all voluntary transactions are revocable; since
the revocability is one of the characteristics of the law of gift. Baillie, however, said that all
gifts are not revocable. The text contains a long list of gifts which cannot be revoked if once
perfected by delivery. Ameer Ali and others were of the opinion that gift once completed can

be revoked only by the intervention of the court of law or by consent of donee. A mere
declaration on the part of the donor is not enough.
The revocation of gift can be studied under the following headings :(a) Before delivery of possession.
(b) After delivery of possession.
Revocation of gift before the delivery of possession - Every gift can be revoked under
Muslim Law, if the delivery of possession of the gift property has not been given to the
donee. The reason is that under Muslim Law, a gift is not complete till delivery of
possession is made. Therefore, the revocation of such gift merely means that the donor has
changed his mind and he does not want to complete it by the delivery of possession. The
order of a court is not necessary for such revocation. Fyzee in this connection said that in
such cases, a gift becomes inchoate gift and it is not proper to apply the term revocation to
such gifts.
Revocation of gift after the delivery of possession - A gift 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"
Q. 52 Define `Will', What are the essential elements of a valid "Will" ?
Who can make a will ?

Ans. Meaning of will (Wasiyat). - "A will is the legal declaration of the intention of a
testator with respect to his property which he desires to be carried into effect after his
death." (Section 3 Indian Succession Act). Wills have been declared legal
by Koran.Frman says that "It is an instrument by which a person makes a disposition of his
property to take effect after his demise and which is in its own nature ambulatory and
revocable during his life."
Fatwa-i-Alamgiri defines a will to be "a conferment of a right of property in a specific thing or
in gratuity, to take effect on the death of the testator."
Thus, will denotes the last desire of a person for the distribution of his properties after his
demise.
Thus a will is constituted of two elements (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.
Q. 53 What are the limitations on testamentary powers of creating a
will by a Muslim under Shia and Sunni Law ? In what manner Can a
will be revoked.

Ans. Mohammedan Law has not given unlimited testamentary powers to Muslim. The
limitation as regards the testamentary powers of Muslim are follows (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.
Q. 54 P, a Muslim has a son S, a wife W and a grandson G from a
predeceased son D. P make a will of his whole property in favour of
G. Decide the validity of this bequest.

Ans. The testamentary capacity of a Muslim is limited in two ways. He does not possess an
unlimited power of making disposition of property by will. There are two fold power
restrictions on the power of a Muslim to dispose of his property by will. First restriction is in
respect of person in whose favour the bequest is made and second restriction is as to
extent to which he can dispose of his property.
(i) Limitation as regard the Person: General Rule is that bequest in favour of an heir even
to the extent of one third was not valid under Sunni law unless the other heirs consented to
it, expressly or impliedly after the death of the testator.
Under Shia Law testator may without the consent of other heir give a legacy to an heir so
long as it does not exceed 1/3rd of his estate. The only case in which testamentary
disposition is binding upon the heirs is where the bequest does not exceed the legal third
and it is made to a person who is not an heir but a bequest in excess of legal third may be
validated by the consent of the heirs.
(ii) Limitation As Regard to The Property: General rule with regard to the extent of
property that may be disposed of by will is that no Muslim can make bequest of more
than 1/3rd of his net assets after payment of funeral charges and debt.
In case in hand the grandson is not an heir. Therefore, the bequest to him is valid to the
extent of 1/3rd without the consent of son and the wife.

Q. 55 Mahmood has got property worth Rs. 10 lacs. He has to pay Rs.
one lac to his creditor and 50,000 to his wife as dower. He bequeaths
his entire property by will in favour of his son. Mahmood dies
without discharging his debts. Whether the son will succeed on
`Wasiyat', discuss.

Ans. Under Muslim Law, every adult Muslim of sound mind can dispose of his property by
will. However testamentary capacity of Muslim is limited one and he does not possess
unlimited power of making disposition by will. There are two fold restrictions on the power of
Muslim to dispose his property by will. These are:
(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.
Q. 56 A Muslim dies leaving Rs. 1,80,000/- worth of assets. He
bequeaths Rs. 40,000/- to a friend and Rs. 80,000/- for charitable
purpose. The heirs refuse to confirm the bequests. Discuss the
validity of the bequests both under Sunni and Shia laws.

Ans. The testamentary capacity of a Muslim is limited in two ways. First restriction is in
respect of person in whose favour the bequest is made, second limitation is in respect of
property.
Limitation as regard the person: General rule in this regard has been that in case that
bequest in favour of an heir is not valid unless the other heir consent to bequest after the
death of the testator.
In Fukan v. Mist. Mumtaz Begum, AIR 1971 Raj. 149 Rajasthan High Court had held that
bequest in favour of an heir even to the extent of one third was not valid under Sunni law
unless the other heir consented to it.
According to Shia law testator at may give a legacy to an heir so long as it does not
exceed 1/3rd of his estate such legacy is valid without the consent of other heir. But where
whole estate is to be bequeathed to one heir and other heirs are excluded entirely from
inheritance, the bequest is void in its entirety.
Limitation as Regard 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 asset, after payment of funeral charges and debts.
Q. 57 What is meant by `Waqf' ? Is a Waqf valid without designating
a "Mutawalli" ? How can a Mutawalli be appointed and by whom ?

Ans. Wakf The term `Wakf' literally means `detention'. "The meaning of Wakf, in legal
sense, according to Abu Hanifa, is the detention of a specific thing in the ownership of the
Wakif or appropriator and the devoting or appropriating of its profits or usufruct in charity on
the poor or other good objects".

Asaf A.A. Fyzee said that Wakf is a pious endowment which is inalienable and therefore
supposed to be perpetual although in actual practice this quality of perpetuity is cut down by
several limitations.
The term Wakf has been defined in Section 2 of the Mussalman Wakf Validation Act, 1913
in these words "Wakf means the permanent dedication by a person professing the
Mussalman faith of any property for any purpose recognized by the Mussalman Law as
religious, pious or charitable."
Essential elements of a Wakf. - The essentials of a Muslim Wakf are:
(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
Q. 58 Define `Mutawalli". How and by whom his appointment is made
? On what grounds he can be removed from his office ?

Ans. Mutwalli - Mutwalli, according to Muslim Law, is a Manager or Superintendent of a


wakf-property. He is not a trustee and as such the wakf- property never vests in him. A
Mutwalli can also not be the owner of a wakf property because once it is dedicated for the
purpose of wakf, it belongs to `Almighty'. In other words, a Mutwalli is a servant of God to
manage the wakf-property for the good of `His' creature. The rights and duties of a Mutwalli
are almost analogous to those of the trustee yet there is quite difference in between these
two. A Mutwalli has not only to bear the legal responsibilities but also to perform moral and
religious duties.
Appointment of Mutwalli

The first Mutwalli is appointed by the founder of Wakf. He (Wakif)


(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.
Q. 59 Explain fully the concept of `Wakf'. Discuss the effects of the
`Mussalman Wakf Validation Acts of 1913 and 1930.'

Ans. The Law of `Waqf' is the most important branch of Muslim Law, as it is interwoven with
the entire religious life and social economy of Muslims. Waqf in its literal sense means
detention or stoppage. According to accepted doctrine of `Hanifi' school `Waqf' is detention
of thing in the implied ownership of almighty God in such a manner that its profits may
revert to or be applied to the benefit of His creature."
Most comprehensive definition of `Waqf' is given u/s 2 of `Mussalman Waqf Validating
Act 1913' as "Waqf means permanent dedication by a person possessing Mussalman faith
of any property for any purpose recognized by Mussalman law as religious pious or
charitable.
According to Hanifi school essentials for creating valid Waqf are
(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.
Q. 60 (a) Is the right of preemption `a right of repurchase from a
buyer, or, is it an incident of property ?' Discuss, bringing out the
true nature of the right of preemption.
(b) What are the formalities that a preemptor must perform in order
to succeed in a suit for preemption by him ?
Ans. (a) The right of preemption or `Shuffa' is a right to acquire by compulsory purchase in
certain cases, an immovable property in preference to all other persons. Law of preemption
is based on the texts of Muslim law and it is well founded doctrine in India. Object of the
preemption is to prevent the introduction of strangers among co-sharers.
Right of preemption is the right which the owner of an immovable property possesses to
acquire another immovable property for price for which it has been sold.
In Govind Dayal v. Inayatullah, I.L.R. 7 All. 775 Mohmood J. defined the right of
Preemption as " a right which the owner of certain immovable property possess as
such for quiet enjoyment of that property, to obtain in substitution for the buyer,
proprietary possession of certain other immovable property not his own on such
terms as those on which such later immovable property is sold to another
person." The main ingredients of this definition are:
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.
Q. 61 Discuss the right of Maintenance of a Muslim Wife ?

Ans. A wife has an absolute right to maintenance. - "It is incumbent upon the husband to
maintain his wife", says the Fattwa-i-Qazi-Khan, "whether she be Muslimah or nonMuslimah, poor or rich, young or old". The wife who is regularly married and who has
attained an age at which she can render to the husband his conjugal rights, is entitled, while
the marriage subsists, to receive from him maintenance, according to her health and
position in life and his means, provided that 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. Her right remains unprejudiced even if she has property or income of her own.
The husband is bound to maintain her if she fulfils the following conditions :
(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.
Q. 62 Discuss the law relating to right of divorced Muslim Women to
claim maintenance.

Ans. Under the Muslim Law a divorced wife is entitled to be maintained by her former
husband during the period of `Iddat'. Dr. Paras Diwan in `Muslim Law in Modern India' has
observed `when marriage is dissolved by divorce the wife is entitled to maintenance during
the period of `Iddat'....on the expiration of period of Iddat wife is not entitled to any
maintenance from her husband'. In Mulla's Mohammadan Law there is a statement to the
effect that after divorce the wife is entitled to maintenance during the period of Iddat. If the
divorce is not communicated to her until after the expiry of that period she is entitled to
maintenance until she is informed of divorce.
Section 125 of the CrPC also provide for maintenance to wives and term wife includes
divorced wife also or wife who has obtained divorce from her husband and has not
remarried. Provisions of Section 125 CrPC are applicable to all irrespective to religion
professed by the spouse or spouses. Therefore Muslim divorce wife can claim maintenance

from her husband underSection 125 CrPC provided she has not remarried and is unable to
maintain herself (Baj Tabira v. Ul Hussain, AIR 1979 SC 362. InShahbano Begam v.
Mohammad Ahmed Khan, AIR 1985 SC 945, Supreme Court gave a landmark judgment
on this point. Five judge bench of SC held that a Muslim husband having sufficient means
must provide maintenance to his divorced wife. Such wife is entitled to maintenance even if
she refuses to live with the Muslim husband because he has contracted another marriage
within the limit of four wives allowed to him by `QURAN'. It was held that religion professed
by the parties has no place in the scheme of Section 125 CrPC. It was also held that
Muslim divorced wife is entitled to maintenance from her former husband till the time she
gets remarried. SC rejected the plea that maintenance is payable only till the period of
Iddat. Liability of the husband to maintain his divorced wife till expiration of Iddat period
extends only in cases where wife is able to maintain herself. Supreme Court also rejected
that contention that on payment of deferred dower, after divorce the Muslim wife loses her
right to claim maintenance u/s 125 in view of provisions of Section 127(3) of Cr. P.C.
This decision led to some controversy as to obligation of Muslim husband to pay
maintenance and in the wake of this controversy Parliament passed `Muslim Women
(Protection of Rights on Divorce) Act 1986.' Section 3 of this Act provides that a Muslim
divorced woman shall be entitled for `reasonable and fair provision and maintenance' within
the period of Iddat by her former husband and in case she maintains the children born to
her before or after her divorce, such reasonable and fair provision and maintenance would
be extended to a period of 2 years from date of birth of children. She will also be entitled to
dower (Mehr) and all the properties given her by relatives, friends husband and husband's
relatives.' Section 4 of this Act further provides that liability to pay maintenance to divorced
woman if she is unable to maintain herself after the period of Iddat devolves upon her
relative as would be entitled to inherit her property on her death, or other relatives and if
relatives are not available, on the Wakf Board. Section 5 of Act provides that the application
filed by divorced wife for maintenance can be governed and disposed of according to
provisions of Sections 125 to 128 of CrP.C., provided on the date of first hearing of
application, the divorced wife or her husband declare by affidavit or any other declaration in
writing either jointly or separately that they would prefer to be governed by said provisions
of Code.
In Smt. J. Muhasak Shaikh v. Muharak Fakruddin Shaikh, 1999(4) RCR(Cri)
686 Bombay High Court held that Muslim husband has to make fair and reasonable
provision for future for his divorced wife which must include the maintenance for future also

beyond the `Iddat' period; however liability of husband to pay maintenance u/s 3(1)(a) can
be restricted, only till Iddat period and if divorced Muslim woman is unable to maintain
herself after period of Iddat, she can proceed against her relatives who are liable to
maintain her in proportion to properties which they inherit from such divorced woman,
including her children and parents and in the event of their inability, State Wakf Board is
liable to pay maintenance.
Q. 63 (a) With the help of decided cases discuss the meaning of
`Reasonable and fair provision and maintenance' as envisaged in
Section 3(1)(a) of Muslim Women (Protection of Rights on divorce)
Act 1986.
(b) Can a Muslim divorced woman claim maintenance allowance
directly against the waqf board or she should follow the procedure
mentioned under Section 4 of the Muslim Women (Protection of
Rights on Divorce) Act 1986. Discuss with reference to case law.
Ans. Under traditional Muslim law, a Muslim woman, after the divorce from her husband is
entitled to maintenance from her husband during the period of `Iddat'. Supreme Court in its
landmark judgment in Shah Bano Begum v. Mohd. Amad Khan, AIR 1985 SC 945 held
Muslim husband, having sufficient means must provide maintenance to his divorce wife and
wife is entitled to maintenance even if she refuses to live with the husband because he has
contracted another marriage within the limits of four wives allowed to him by `Quran'. It was
held that religion professed by parties has no place in the scheme of Section 125
Cr.P.C.and Muslim wife who is unable to maintain herself is entitled to maintenance till she
remarries and Supreme Court rejected the plea that maintenance is payable till the period of
`Iddat'. This decision led to some controversy as to obligation of Muslim husband to pay
maintenance and in the wake of this controversy Parliament passed `Muslim Women
(Protection of Rights on Divorced) Act 1986. Section 3 of this Act provides that Muslim
divorced woman shall be entitled for `reasonable and fair provision and maintenance' within
the period of Iddat by her former husband and in case she maintains the children born to
her before or after her divorce, such reasonable and fair provision and maintenance would
be extended to a period of 2 years from date of birth of children. She will also be entitled to

dower (Mehr) and all the properties given her by relatives, friends, husband and husband's
relatives. Section 4 of this Act further provides that liability to pay maintenance to divorced
woman if she is unable to maintain herself after the period of Iddat devolve upon her relative
as would be entitled to inherit her property on her death, or other relatives and if relatives
are not available, on the Wakf Board. Section 5 of Act provides that the application filed by
divorced wife for maintenance can be governed and disposed of according to provisions
of Sections 125 to 128 of CrP.C., provided on the date of first hearing of application, the
divorced wife or her husband declares by affidavit or any other declaration in writing either
jointly or separately that they would prefer to be governed by said provisions of Code.
`Reasonable and Fair Provision and Maintenance'
The cardinal principle which Section 3 seeks to lay down is that the liability of the husband
to make a fair and reasonable provision and pay maintenance is confined to the duration of
Iddat only.
In Ali v. Sufaira, 1988(3) Crimes 147 it was held that u/s 3(1)(9) of Act of 1986, a divorced
Muslim woman is not only entitled to maintenance for the period of `Iddat' from her former
husband but also to a reasonable and fair provision for her future.
Similarly in A.A. Abdulla v. A.B. Mohmuna, AIR 1988 Guj. 141 it was observed word
`Within as used u/s 3 of Act means on or before "not beyond" and "not later than" and
cannot mean during and one is not permitted to construe the same contrary to natural
meaning of the word and thus word `within' would mean that on or before the expiration of
iddat period husband is bound to make and pay a reasonable and fair provision and
maintenance to wife and if he fails to do so then the wife is entitled to recover it by filing
application u/s 3(2) of Act to Magistrate.
In Kunhammed Haji v. Amina, 1995(2) RCR 720 a Division Bench of Kerala High Court
held that Muslim Divorced wife is entitled to maintenance during period of iddat and
reasonable provision for livelihood after period of iddat under Section 3(1)(a) of Act.
Q. 64 Describe the salient feature of the Muslim law of Inheritance.

Ans. Muslim law of Inheritance - The law of inheritance has its own place in Muslim Law.
Muslim jurists always insisted on its importance and quoted the saying of Prophet that,
"Learn the laws of inheritance and teach them to the people, for they are one half of useful
knowledge" (Sirajiyyah).

Tyabji said that, `The Muslim Law of inheritance has always been admitted for its
completeness as well as the success with which it has achieved the ambitious aim of
providing not merely for the selection of a single individual or homogeneous group of
individuals, on whom the estate of the deceased should devolve by universal succession,
but for adjusting the competitive claims of all the nearest relations'.
As per Dr. Paras-Diwan, "The Muslim Law of inheritance is a superstructure constructed on
the foundation of Pre-Islamic customary law of succession."
Of course, Muslim Law of inheritance is so exhaustive and complete in itself that it has
hardly left any question unsolved on the question of Inheritance.
The Muslim Law of Inheritance is actually based on (a) the customs of ancient Arabia and
(b) rule laid down by the Koran (Quran)and by the founder of Islam. As per Tyabji "Quranic
reform came as a superstructure upon the ancient tribal law. It corrected many of the social
and economic inequalities then prevalent". Mahmood J in the case of Govind Dayal v.
Inayatullah (AIR 1958, SC 338) said that the law (of Inheritance) was founded by the
Prophet upon republican principles at the time when the modern democratic conception of
equality and division of property was unknown even in the most advanced countries of
Europe".
Salient features of the Law of Muslim Inheritance - (1) There is no distinction between
`movable and `immovable' property in Muslim Law of Inheritance.
(2) No distinction has been made between the Ancestral property or self- acquired property.
(3) Muslim Law of Inheritance does not recognise the joint family system and a `tenancy-incommon' in Muslim families.
(4) Birth right is recognised for the purpose of inheritance. The right of an heir however
comes into existence only when a Muslim dies and leaves property behind him.
(5) The relinquishment of a contingent right of inheritance by Muslim is held void in Muslim
Law.
(6) The principle of representation is not at all recognised in Muslim Law. As per `Sunnischool' the expectant right of an heir apparent can an heir pass by succession to his heir
nor it can pass by bequest to a legatee under his `Will'. However according to Shia's it does
pass by Succession in certain circumstances.
(7) The doctrine of `spes succession' is not given cognizance in Muslim Law of inheritance.
(8) Males and females have equal right over the property of the deceased. Even the
daughter does not by reason of her sex, suffer from any disability or deal with the shares of

the property. She is absolute master of her inheritance. The same rule applies to a widow or
a mother.
(9) A line of succession can not be created under this law.
(10) The marriage solomnised under the provisions of the Special Marriage Act, 1954, ousts
the personal law relating to succession. It, however, does not effect on the legal and
religious status of a Muslim.
Q. 65 Enumerate principal points of difference between the Sunni
and Shia rules of inheritance.

Ans. Principal points of difference in rules of inheritance between Sunni Law

Shia Law
1. Rule of Premogeniture :

The Sunni Law does not recognise the 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 The Shia law adopts the principle of consanguinity
Sunni law. The Sunnis prefer agnates to cognates. 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 Under the Shia law it is more natural.
unnatural.
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
According to Shia, residue is divided amongst the
father, according to the Sunnis, the residue goes to sharers by return.
the father.

Q. 66 Who is competent to inherit ? Describe the principles of


exclusion.

Ans. Competency to inherit - According to Muslim Law of inheritance (a) Every person and (b) every child in womb provided it born alive, is entitled to inherit
unless there is a specific rule of exclusion. According to Mulla, the right of heir (apparent or
presumptive) comes into existence for the first time on the death of the ancestor. He is not
entitled until then to any interest in the property, to which he would succeed as an heir, if he
survived the ancestor.
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.
Q. 67 What do you mean by principle of Representation ? Is this
principle recognised under Muslim Law ?

Ans. What is the Doctrine of Representation ? - The doctrine of representation means


that the descendants of a deceased son, if they are heirs, take the portion which he (the
deceased son) if living, would have taken, and in that sense represents the son.
Thus if A had two sons B and C who are entitled to 1/2 and 1/2 shares and B dies during the
lifetime of A leaving three sons S-1, S-2 and S-3 then these three sons would represent B
and under this doctrine, would take among themselves that half share to which B was
entitled, i.e. each of the sons would get 1/2 x 1/3 = 1/6 while the other 1/2 will go C. Here S1, S-2 and S-3 represent B.
Not recognised in Sunni Law. - According to the Sunni Law, the expectant right of an heirpresumptive does not pass to his heirs. On the death of the heir-presumptive in the lifetime
of the ancestor, the heir of such an heir- presumptive have no right to claim his share in the
property of the ancestor as representing the right of the heir.
Illustration. - A, a Sunni has two sons, B and C. B dies in the lifetime of A leaving a son D. A
then dies leaving his son C and his grandson D. The whole of A's property will pass to C to
the entire exclusion of D. It is not open to D to claim share as the representative of B. [See
for detail the case of Moola Cossim v. Moola Abdul, (1905)] wherein, the Privy Council
observed : "It is a well-known principle of Mohammedan Law that if any of the children of a
man dies before the opening of the succession to his estate, leaving children behind, these
grand children are entirely excluded from the inheritance by their uncles and aunts."
The principle of representation is also applied in determining the question of share of each
heir but this aspect of it is also not recognised under Sunni Law. Thus :

According to the principle of representation, the shares are allotted per stirpes, i.e. C and D
will take between them the share of A which is 1/2, thus each (C and D) getting 1/2 x 1/2 =
1/4 while E, F and G will represent B and take among themselves the share of B i.e., 1/2-E,
F and G each getting 1/2 x 1/3 = 1/6. This principle is recognised under Shia Law.
According to Sunni Law where the shares are allotted per capita, neither C and D, will
represent. A, nor E, F and G will represent C. Each of C, D, E, F and G will get equal shares
i.e., 1/5
Recognised in Shia Law. - The Shia Law accepts the principle of representation as a
cardinal principle throughout for the limited purpose of calculating the shares of each heir.
Thus, the descendants of a deceased son, if they are heirs, take the share which he would
have taken, if he were living at the time when the inheritance opens and in that sense
represent the son. In the same limited sense, the descendants of a daughter represent the
daughter.
Q. 68 State what is meant by Spes Succession is under Muslim Law.

Ans. Spes Succession - The rule of Mohammedan Law is that an heir cannot renounce his
right to inherit. The reason, as per Allahabad High Court in the decision of the case
of Latafat Hussain v. Hidayat Hussain (1936, AA 573), is that a bare renunciation to an
expectation to inherit cannot bind the `expectant-heir's conduct's in future. But if the
`expectant-heir' goes further to receive consideration and so conducts himself as to mislead
the owner into not making disposition of the property inter-vivos, the expectant- heir should
be debarred from setting up his right when it does unquestionably vest in him. The High
Court of Travancore-Cochin was of the opinion that a Muslim heir may by his conduct be
estopped from claiming the inheritance which he or she has agreed to relinquish; if such
release was a part of the compromise or family settlement and if he or she has been

benefited by such transaction. For example, a husband (Muslim) gave his immovable
property to his wife in lieu of her dower or agreed that he will not claim any share of it (as an
heir) on her death. Such agreement was valid and binding on the husband, he could not
claim any right to inherit in the property of his wife in future.
Therefore, Muslim Law does not recognise the chance of a Mohammedan heir as valid
which is apparent and succeeding to an estate only for the purpose of transfer or release.
Q. 69 Write a critical note on "vested inheritance" under
Mohammedan Law.

Ans. What is the vested interest ? - It is a well established rule in Muslim Law that
property never remains in a state of abeyance but on the death of the proprietor it passes at
once to his heirs in their proper shares.
Before the death of the proprietor, persons entitled to shares (i.e. heir- presumptives) have
no interest in the property and they cannot deal with it, nor do their heirs succeed if they die.
On the death of Muslim, the persons entitled to the share do not remain heir-presumptives
but become perfect heirs and take a vested interest in their shares even before distribution.
The share which vested in the heir at the moment of the ancestor's death is called "vested
inheritance".
Legal Consequences.
(i) The estate of the deceased Muslim immediately after his death vests in his heirs in
specific shares. Immediately on the death of a Mohammedan, the property is vested and
vesting of property never gets postponed (Wahab Kumar v. Fateh Kumar, A.I.R. 1986 J.
and K. 94).
(ii) If there be debts of deceased, the property would remain liable for the discharge of those
debts and each heir would be liable to pay a sum proportionate to his share of inheritance.
(iii) If the heir dies before distribution has taken place, his share would pass on to his own
heirs at the time of his death.
(iv) The vested inheritance may be dealt with by the heir at his pleasure.
Illustration. - A dies leaving a son B and a daughter C, B dies before the estate of A is
distributed, leaving a son D. In this case on the death of A, 2/3 of the inheritance vests in B
and 1/3 in C. On distribution of A's estate after B's death the 2/3 which vested in B must be
allotted to his son D.

Q. 70 What are the classes of heirs under the Hanafi Law of


inheritance ? State briefly the order in which they are entitled to
their respective shares.

Ans. The different classes of heirs under Sunni Law of inheritance are given below and they
have been named in the order they succeed.
1. Sharers. - Sharers are those heirs to whom a specified share is allotted by the Law.
2. Residuaries. - Residuaries are those who take in two situations :(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).
Q. 71 Define residuaries and state their classifications.

Ans. Who are Residuaries ? - If there are no sharers, or if there are sharers but there is a
residue left after satisfying their claims, the whole inheritance or the residue, as the case
may be, devolve upon residuaries in the order set forth (Mulla).
Classification of Residuaries. - All residuaries are related to the deceased through a
male. In the order of succession the residuaries are divided into four classes as follows :
Class I. Descendants :
(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.
Q. 72 Who are distant kindreds ? Into how many classes can they be
divided ?

Ans. Definition. - Distant kindreds are those relations by blood who are neither sharers nor
residuaries. They succeed either in the absence of both the sharers and the residuaries or
when there are no residuaries and the only sharer is husband or wife. If the surviving
relations belong to the class of distant kindred, the nearer relation will exclude the more
remote.

Classification. - For the purposes of determining their order of succession, they are divided
into four classes :Class I. Descendants of the deceased :
(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).
Q. 73 Point out the general rules for ascertaining a shares of
sharers.

Ans. The shares of the sharers in ordinary circumstances and as varied by special
circumstances as also the cases when some of the sharers inherit as Residuaries, are
given below :
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

(i) When there is a child or child of a son h.l.s.; or

1/6

(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(ii) no child of a son, and(iii) no father,


and(iv) no true grandfather or full brother.

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).

2. Preceding residuary excludes the succeeding ones. - Each preceding residuary


entirely excludes all the succeeding residuaries, e.g., the ascendant excludes the
descendants. Similarly, full brother will exclude the consanguine sister.
The only simultaneous succession among the residuaries is when a female of equal degree
shares the residue with the male in a ratio of 1:2.
3. Female Residuaries. - The female residuaries are only four in number. They are :
(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.
Q. 74 What are the principles of succession among sharers and
residuaries ?
Or
Explain and illustrate "The nearer in degree excludes the more remote".

Ans. It will be seen from the table of sharers and residuaries that certain relations entirely
exclude other relations from inheritance. This proceeds upon the following principles :
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.

Here B and C are brother and sister of A but this relationship of brotherhood and sisterhood
is not directly with A but through their father X and hence X will exclude B and C.
Exception. - But there is one exception to this rule, namely, the mother does not exclude,
the uterine brothers or sisters though they are related to the deceased through her. (Uterine
brother or sister means brother or sister from the same mother but different fathers).
2. The nearer in degree excludes the more remote. - The person who is nearer in blood to
the deceased excludes the more remote.
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.
Q. 75 (a) Explain the doctrine of `Aul' and `Radd' and give
illustrations.
(b) Explain `false grand father' and `true grand father' and also `true
grand mother'.
Ans. (a) The doctrine of increase (Aul) under : A. Sunni Law. In case of plurality of
sharers it will be seldom that the sum total of the individual sharers of the shares will come
to unity. It often happens that when the sharer of a number of sharers existing together, are
added after the allotment, the some total exceeds the unity. So in order to meet this difficulty
the jurists make a proportionate abatement of all the shares by reducing the fractional
shares to a common denominator, and increasing the denominator so as to make it equal to
the sum of the numerator.
[The doctrine is called `increase' not because the sharers are increased (which is quite
opposite) but because the unity is reached by increasing the denominator of the fractional
shares. Thus the respective shares are reduced by increasing the denominator.]
(i) Husband
2 full sisters

1/9 : 3/6 reduced to


2/3 : 4/6
"

3/7
4/7

7/6

7/7 : 1

Note. - The sum total of 1/2 + 2/3 exceeds unity. The fractions are, therefore, reduced to
common denominator i.e., 6. The sum of the numerators is 7, and the process consists in
substituting 7 for 6 as the denominator of the fractions 3/6 and 4/6 thus coming 3/7 and 4/7
respectively.
(ii) Husband
Father
Mother
3 Daughter
(iii) Widow
Mother

1/4 : 3/12 reduced to


1/6 : 2/12
"
1/6 : 2/12
"
2/3 : 1/12
"

3/15
2/15
2/15
8/15

15/12

15/15

"

1/4 reduced to
1/4
"

4/13
4/13

Full sister

1/2

"

12/13

6/13
13/13 : 1

exceeds unity.

B. Shia Law. The Hanafi doctrine of increase is not recognised in the Shia Law. According
to the Shia Law, if the total of the shares exceeds unity, the fraction in excess always
deducted from the shares of the following heirs and of no others (i) The daughter or daughters; or
(ii) The sister or sisters (full or consanguine).
(i) Husband
Daughter
Father

1/4=3/12
1/2=6/12
reduced to (6/12-1/12)
1/3=4/12

=3/12
=5/12
=4/12

13/12

Note. Here the excess over unity is 13/12 - 1=1/12 and this is to be deducted from the
daughter's share.
(ii) Widow
Mother
Full sister

1/4 no change
1/3
1/2 reduced to

1/4
1/3
5/12

13/13

12/12=1

exceeds unity.

Doctrine of (return) Radd under : Sunni Law - The doctrine of Return is attached only
when (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
Son's daughter

1/2=3/6
1/6=1/6

"
"

3/5
1/5

5/6
(ii) Widow
3 U. sisters
Father's mother

1/4
1/3 increased to 2/3 x 3/4
1/6
"
1/3 x 3/4

1/4
= 1/2
= 1/4

9/12

The total share, i.e., 9/12 is less than one. The widow is not entitled to return. So she will
act only 1/4. Now for the rest two classes of sharers only 1-1/4=3/4 remains. 3 U. sisters
and father's mother are to get the remainder of 3/4 in the ratio of 1/3 : 1/6, i.e., 2/6 : 1/6, i.e.,
2 : 1. The three U. sisters will get 2/3 of 3/4 = 1/2 and father's mother will get 1/3 x 3/4 = 1/4.
These figures, viz., 2/3 and 1/3 have been derived in this way. The ratio is 2/6 : 1/6 and then
2/6 + 1/6 = 3/6. Now make the numerator of this figure i.e., 3, the denominator or original
figures i.e, 2/3, 1/3.
B. Shia Law. - If there is a residue left after satisfying the share of the sharers but there are
no residuaries in the class to which the shares belong, the residue reverts to the sharers in
the proportion of their respective shares, subject to the following exceptions (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.