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UNIT - I

APPLICATION OF MUSLIM LAW


Introduction : Laws may be of two kinds, either territorial or personal. A territorial law is that
branch of law which is applied in a particular territory and is applicable upon all persons
living in that territory irrespective of their communities or religion. Thus Indian Penal Code
and the Indian Contract Act are examples of territorial laws, because these laws are
applicable to all the persons living in the territory of India. On the other hand, a personal law
in that branch of law which applies to the entire person of a particular religious community
irrespective of the boundaries of any country. Thus Hindu Law applies upon the Hindu and
Mohammedan Law applies upon the Muslims.
Muslim Law in India means "that portion of Islamic Civil Law which is applied to Muslims as a
personal law."
Mohammedan Law had no existence before Mohammad became a prophet, in Arab there
was no general rule and regulations regarding any matter. Each tribe was governed by its
own laws and matters in dispute were either referred to the chief, or decided by an appeal to
the sword. The conduct of the Arab was regulated by custom which were barbarous and
inhuman. Often the parents burried alive their female child, usury i.e. taking a very high
interest on the debts, was common. Gambling was rampant. These days were of superstition
and idolatory, the position of women was not much better than that of animals; they had no
legal rights; in youth they were the goods and chattels of the father; after marriage the
husband became their lord and master.
Pologamy was universal, divorce was easy and female infanticide was common. Such was
the condition of the Arabian society in which reforms were introduced by Islam by Prophet
Mohammad to bring about a complete transformation of the society.
Prophet Mohammad was posthumous and born at Mecca in 571 A.D., his father Abdullah,
while returning from Syria, where he had gone for some business, died at Medina, so he
brought up by his mother Amina. At the age of six years, the mother expires, he passed into
the care of his grandfather, Abdul Muttalib. Two years later the grandfather also died and the
boy was than brought up by his uncle Abu Talib. After the age of twenty five he spent much
of his time in a cave named Hira in prayers and meditation. He became prophet after
receiving his first wahi or message from god, through angel "Gabriel".
From that time he devoted himself in replanting the only true and ancient religion, in his
endeavours he met with the most bitter persecution from the idolaters whose faith he
attacked. He was absued, spat upon, covered with dust and dragged from the temple of
Mecca by the hair of his head, but still he assiduously preserved in his undertaking and
ultimately succeeded in spreading his religion Islam.
In religious sense–
Islam means– Submission to the will of God
and in secular sense–
Islam means– Establishment of peace
The prophet Mohammad was expired in 632 A.D.
Who is a Muslim : A person, to be known as a Muslim in the society must possess five
pillar's of Islam religion.
1. Profession of Full Faith : A person must have a full faith. Full faith in what? Full
faith in Kalamah, "La ilaha illallah, Mohammad ur rasul-ullah" i.e. there is one god
and Mohammad is his messenger called Rasool.

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2. Prayer (Namaz) : A faithful Muslim is supposed to turn his face towards Mecca and
recite his prescribed prayer five time (dawn, midday, mid afternoon. Sunset and
night-fall) in a day. The Friday noon prayer is public one and is obligatory for all male
adults.
3. Alams-Giving (Zakat) : It is a voluntary act of love and is considered almost
identical with piety.
4. Fasting (Roza) : In the month of Ramzan (sacred one), every Muslim must keep fast
(from all food and drink) from dawn till sunset.
5. Pilgrimage (Hajj) : Once in a lifetime every Muslim of either sex who can afford is
supposed to undertake at a stated time of the year a holy visit to Mecca.
The Arabic word "Islam' means submission to the will of god. Islam is a religion in which it is
believed by persons that
(i) The God (Allah) is one and only one, and
(ii) Muhammad is his messenger called (Rasool).
The word Muslim is derived from Islam and signifies a person who adopts the faith of Islam.
According to the court of law, the only requirement to a person for being a Muslim is the
belief in one God and the prophet hood of Muhammad. If any person does not belief in this
fundamental principle of Islam, he cannot be treated as Muslim. On the other hand, if a
person has a faith but does not follow the culture or practices of Islam, he is legally a Muslim.
But it is difficult to judge whether a person is Muslim or not only on the ground of his faith in
Islam, because it is a matter of feelings. Therefore, according to the courts, a person may be
a Muslim either by birth or through conversion.
(i) Muslim by Birth : A person whose both the parents were Muslims at the time of his
birth is regarded to be Muslim by birth. According to Hedaya, even if one of the
parents is Muslim, the child is to be treated as Muslim, but according to the courts of
India where only one of the parents of a child is Muslim the child is to be regarded as
Muslim only when it is proved that he has been brought up as a Muslim. A person
who is Muslim by birth continues to be a Muslim unless on attaining majority.
(ii) Muslim by Conversion : A person of any religion who has attained the age of
majority and is of sound mind, can become the follower of Islam after renouncing his
original religion and the rules of Muslim personal law begin to apply on him
immediately, he is generally known as a 'converted Muslim' conversion is of two
kind–
a. A person may publicly declare that he has renounced his original religion and is
now professing Islam.
b. The second method is through ceremonies prescribed in the religion of Islam
itself. The non-Muslim goes to a mosque where the Imam may ask him to read a
Kalema and give him a Muslim name.
The purpose of conversion must be bonafide. It is just possible that a person converts his
religion to get some benefit which he has not in his original religion, therefore, that person
cannot regarded as Muslim even if he says that he is professing Islam.
In Spinner V Orde1 A Christian Widow was living and cohabit with Christian male who had
already a wife living. Cohabitation of such kind is illegal, to legalise that they converted to
Islam and became Muslims, because under Muslim Law it is allowed to have four wires at a
time. It was held by Privy council that such a conversion was not bonafide because its
purpose was to commit fraud upon Muslim Law.

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(1871) 14 M I.A. 309

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A person who adopts Islam adopts also the application of the Muslim personal law on his
family-matters. But before 1937, the converted Muslims were allowed to follow some of the
customs of their original religion. However, in 1937 the Shariat Act was enacted which
abolishes all the customs.
Kalema means – La ilaha – ill Allah, Muhammad – ur – Rasool – ullah.
Application of Muslim Law : The entire Muslim Law is not applied by the Indian Courts.
Only such law is applied which regulates the family-matters or personal-matters of the
Muslims. The enactment which authorises the Indian Courts to apply Muslim personal law is
the Muslim Personal Law (Shariat) Application Act, 1937, popularly known as the Shariat
Act, which literal meaning is "the path to be followed" by the human beings. Section 2 of this
Act provides where both the parties are Muslims, Muslim Law shall be govern on them,
involving any of the matters–
(i) Inheritance (ii) special property to the females (iii) marriage (iv) divorce (v) maintenance
(vi) dower (vii) guardianship (viii) gift (ix) wakf (x) trust.
But there are certain cases in which even if both the parties are Muslims and the matter is
one specified in the Shariat Act yet, Muslim law is not applied.
Ex-1: If any marriage took place under the Special Marriage Act, 1954, the mutual rights of
inheritance of the husband and wife are governed by the Indian Succession Act, 1925.
Ex-2: The Child Marriage Restraint Act, 1929, restrains a boy under the age of 21 and a girl
under the age of 18 years, for marriage.
Inspite of all these provisions there are certain matters in which Muslim Law are applied
even if both the parties are not Muslim, the law of the defendant is applied.
Ex-1: A married women who renounces Islam and converts to any other religion ceases to
be Muslim. But, under Section 4 of the dissolution of Muslim Marriage Act, 1939 such a
women (even after conversion to another religion) may obtain a decree for the dissolution of
her marriage on any grounds mentioned in Section 2 of this Act.
Ex-2: The rule of defendant is available in the right of pre-emption.
SOURCES OF MUSLIM LAW
By sources of any law, we mean the original materials where the contents of that law are to
be found and are made available to us. Study of these sources is necessary for having
knowledge of the origin of a law and for its proper explanation and interpretation. Sources of
Muslim Law may be classified into two categories–
(i) The primary sources, and
(ii) Secondary sources.
Primary sources are those which the prophet himself directed to be the sources of Muslim
Law.
Secondary sources explain or modify the primary sources of Muslim Personal Law according
to the changing needs of the Islamic society.
The Primary Sources :
1. Quran : The word Quran is derived from the Arabic word "Qurra" and properly
signifies, "the reading of that which ought to be read". The world Quran is the divine
communication and revelation to the prophet of Islam for the benefit of mankind,
through angel Gabriel. It is the first sources of Muslim Law in point of time because,
before Quran there was no Islamic society as it exists tody. The Quran in its present
form is a book, contained 6237 verses called Ayat and divided into 114 chapters
called Sura. Not more than 200 verses, disclosed at Madina was concerned with
legal principles and nearly about 80 verses were concerned with marriage, dower,

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divorce and inheritance or deal with the philosophy of life and Islamic religion,
disclosed at Mecca. It was given to world in fragments, during a period of 23 years
(609 to 632 A.D.). Quran is the foundation upon which the very structure of Islam
rests. It has retained its purity, without the least change, for the last one thousand
and three hundred years.
2. Sunna or Ahadis (Tradition of the Prophet) : In Islam it is believed that revelations
were of two kinds, manifest (Zahir) and internal (Batin). Manifest or express
revelations were the very words of God contained in Quran. On the other hand
internal or implied revelations, were those which had been 'Prophets own words' but
the ideas contained in the sayings were inspired by God, formed part of Sunna.
Any words used or act done by prophet is called Hadis, if this hadis is followed by a
number of persons become Sunna which has been classified into three categories–
(i) Sunnat-ul-Qaul (Words Spoken) : Traditions about which he enjoyed by
words.
(ii) Sunnat-ul-fail (Conduct) : Which the prophet did himself i.e. his behaviour,
and
(iii) Sunnat-ul-taqrir (Silence) : The things done in his presence without his
disapproval, includes such pre-Islamic customs which were not disapproved
by prophet.
These traditions could become an authoritative source of law, if narrated by
competent and qualified person called Narrator. According to Abdur Rahim,
qualification for being a competent Narrator–
(i) he must have understanding (sane and adult);
(ii) he must possess the power of retention;
(iii) he must be Muslim, and
(iv) he must be of righteous conduct.
Having such qualification following persons were recognised as narrators–
(i) Companions of the Prophet : Such Muslims who had privilege of being in
the close contact during the life-time of the prophet. These narrator were
treated as most reliable.
(ii) Successors of the Companions : Those who were not with the prophet but
had the occasion of being contact with the companions of the prophet were
called the successors.
(iii) Successors of the Successors : Those Muslims who were neither with the
prophet nor with the companions but were in contact with the successors,
were called the successors of the successors of a companion.
On the faith of these narrators Ahadis are classified as–
(i) Ahadis-i-mutwatir (Universally Accepted Traditions) : These traditions
have universal acceptance and are followed by all the sects of Islam.
(ii) Ahadis-i-Mashhoor (Popular Traditions) : These traditions have no
universal acceptance but a great majority has always recognised them as a
source of law.
(iii) Ahadis-i-Ahad (Isolated Tradition) : These traditions have neither been
continuously followed nor followed by majority of the people. Only a certain
section of society has accepted them.

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3. The Ijma (Unanimous Decisions of Jurists) : When Quran or Sunna could not
supply any rule of law for a new problem, the law making person, called Mujtahids
used to give their common opinion or unanimous decision over that point. Such
decision of jurists was termed Ijma. Ijma is of three kinds–
(i) Ijma of the Companions : It was presumed that the companions were the
best persons to act as jurists. Such Ijma being most authoritative, could not
be overruled or modified by any subsequent Ijma. Hanbalis recognise only
this kind of Ijma.
(ii) Ijma of the Jurists : In the absence of any Ijma of the companion, the
unanimous decision of other jurists is recognised as most valuable and
reliable. Hanafies recognise this kind of.
(iii) Ijma of the People : Sometimes the general agreement of the great majority
of Muslims was also accepted as law. This kind of Ijma has little value and
generally relates to fundamental observances of Islam such as to prayers,
fasting, pilgrimage, Zakat etc.
4. Qiyas (Analogical Deduction) : Qiyas means measuring or comparing by analogy
with a similar problem for which solution was given in the texts.
Ex– Wine is haram to Muslims, is cigrate also haram to Mulsims, does cigrate come
within the preview of intoxication the answer of this question can be decided by
analogical deduction. For qiyas two thing were required–
(i) The person who established analogy was a Mujtahids and
(ii) He deduced the law from a definite text of Quran, Sunna or Ijma.
Secondary Sources :
1. Custom (Urf or Taamul) : Before Islam, the Arabs were governed by customary
laws. On being introduced the Islam, many custom was abolished but those custom
which were not expressly repealed during the life-time of the prophet, were held to
have been sanctioned by the law giver by his silence. A customary law exists in
Islam either because of Sunna or Ijma. Requirements of a valid custom are–
(i) General prevalence in the country is necessary.
(ii) It must be territorial.
(iii) It should be immemorial.
(iv) It must be ancient and invariable and
(v) It should not be opposed to public policy.
After passing the Shariat Act 1937, Section 2 of this act provides that all Muslims of
India (except Jammu and Kashmir) will be governed by Shariat Act in 10 matters as
inheritance, special property of female, marriage, dower, divorce, maintenance,
guardianship, gift, walf and trust but according to Section 3 agricultural land,
testamentary succession in certain communities and charities, other than wakfs are
excluded.
However, the states of Andhra Pradesh and Tamil Nadu have included also, the
matter contained in Section 3, in Section 2 of the Shariat Act through their State
Amendments.
2. Judicial Decisions : The decisions of the Privy Council, the Supreme Court, as well
as of the High Courts of India, are regarded as precedents for future cases and
become an authority for subsequent cases arising in subordinate courts. On some
points judicial decision have modified the pure Muslim Law.

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Ex– Hammeera Bibi V Zubaida Bibi2
The taking of interest in a loan is prohibited in Islam, but the Privy Council allowed
simple interest on the amount of unpaid dower.
3. Legislation : According to Islam, the only power to make laws, vested in God and
any legislative modification is treated as an encroachment upon the traditional
Islamic law. In India, Muslims are also governed by the various legislations passed
either by the Parliament or by State legislature as. The Guardians and Wards Act
1890, the Child Marriage Restraint Act, 1929, the Shariat Act, 1937, Dissolution of
Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act,
1986 etc.
4. Justice, Equity and Good Conscience : Under Muslim Law this can also be
regarded as a source. Abu Hanifa, explained that any rule made by Qiyas could be
set aside at the option of the judge on any juristic preference of a particular case.
These principles are known as Istihsan or Juristic equality.
SCHOOLS OF MUSLIM LAW
There was no separation among the Muslims during the life-time of prophet Mohammad
because he was the universally accepted head of the Islamic Commonwealth as well as the
Chief Administrator of the whole body of Muslim.
The division among Muslims originated in the dispute concerning the question of the spiritual
leadership of Islam, which came up immediately on the death of the prophet. A great majority
of Muslims suggested to find out the prophet's successor by way of election by the Jammat
or the universality of the people. This view was advocated by Ayesha Begum, the youngest
wife of the prophet because prophet himself had suggested election and Muslims believed
what prophet did or suggested as sunna therefore they opt to elect caliph. Abu Bakr, the
father of Ayesha Begum ultimately became first caliph by means of votes. Abu Bakr and their
followers are called Sunni.
The rest Muslims who repudiate the authority of Jammat (election), emphasised upon the
spiritual headship of the prophet rather than his administrative control. Fatima, daughter of
prophet, argued that spiritual leadership could come through the nobility of blood and relied
upon the principle of succession. Consequently Ali, who was Fatima's cousin and was also
her husband, was nominated as the first Imam. Ali and his followers are called Shia. Thus
we can say the division among Muslims was due to the difference of opinion as to find out
the successor of the prophet. It was a political event only subsequently it resulted in the
separation on legal principles as well.
Caliph : The heads of Sunni community were called Caliph or Khalifa, who were the elected
chief. Caliph was more an administrative head than a religions chief.
Imam : The heads of Shia community is to be called as Imam. He is administrative as well
as religions head. Imam is a descendant in the male line of the prophet.
Thus the Muslims are divided into three sects and further these sects splitted into several
sub-sects so there are three sects of Muslim law in which Sunni and Shia are main–

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(1916) 43 I.A. 294

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Muslims

Sunni Shia Motazila

Hanafi Ithna Asharia or Imamia

Maliki Akhbari Usuli

Shafei Ismailia

Hanbali Khoja Bohra

Wahabi Zaidya

A. The Sunni School :


1. The Hanafi School : This school is the oldest and supposedly the most
liberal of the four schools. The Hanafi school takes its name from a name of
honour given to its founder, Abu Hanifa. He born and studied Islamic
Jurisprudence in the city of Kufa. During his life, Kufa had became an
important centre of distinct thinking in Muslim Law. Therefore, this school is
also called as Kufa school. Abu Hanifa was an eminent scholar of his time
and possessing an outstanding logical reasoning and technical legal thought,
therefore, they stressed more on Ijma and Istahsan (juristic equity) and also
recognises the authority of customs (urf) but only those which are authentic
and accepted as law. Therefore, Abu Hanafi relied upon eighteen traditions
only. Tis school is followed by a great number of Muslims in India, Pakistan,
Bangla Desh, Afghanistan and Turkey. Some of the important books on
Hanafi law are Rodd-Al-Makhtar, Durr-ul-Muktar, Al-Hidyaya and Eatwai
Alamziri.
2. The Maliki School : This school was founded by Malik Ibn Anas, who was
born and taught in Medina. Where he had the position of Mufti. He always
emphasises the importance of the traditions as a source of law. He was not
only a great traditionist but a jurist also. He recognised Ijma of such jurists
who lived in Medina. Therefore, the scope of Ijma as a source of law is
limited. The main features of this school are that a married woman and her
properties are always supposed to be under the control of her husband, she
cannot deal with her property without the consent of her husband. This
school has a few followers in Upper Egypt in western Sudan, West Africa,
Spain, Kuwait and Bahrain. There are no Malikis in India. Some exhaustive
books are Kitab-al-Muwatta, Khalil-isn-Ishaq's and Al-Mukhtarar.
3. The Shafei School : This school was founded by Muhammad ibn Idris ash-
Shafei, who was born in Ghagga (Palestine). He was remotely connected
with the prophet, he memorized Holy Quran at the age of 10 years, about 20
years he went to Madina and became the pupil of Malik Ibn Anas. Ash Shafei

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also relied upon traditions of prophet after examining in the light of ligal
reasoning and logic in order to get a very balanced and systematic rule of
law. Shafei doctrines are definitely less favourable to women than either the
Hanafi or the Maliki. The followers of this schools are in lower Egypt, South
Arabia, Cairo, Indonasia, Malaysia and South East Asia. There are very few
Shafeis in India except of west coast. The books are Kitab-ul-umm, Risala
and Muhtaj.
4. The Hanbali School : This School was founded by Ahmed ibn Hanbal, born
at Baghdad. He was a pupil of Ash Shafii. The peculiar feature of this school
to rigidly believed on the traditions of the prophet than other sources, Ijma
and Qijas were neglected by him. Therefore, Hanbal was called traditionist
rather than a jurists. Hanbalis are to be found in Syria and Palestine. In India
Hanbalis are not found. The book is Musnad-ul-Imam Hanbal in which about
fifty thousand traditions were collected.
5. The Wahabi School : This is the last and most latest Sunni school, which is
generally not accepted by Sunni scholars to be Sunni but they are governed
by Sunni (Hanafi) law for their practical problems. Mohammad Ibne Abdul
Wahab was the founder of this school.
B. The Shia School : Ali, the son in law of Prophet, was acknowledged to be the first
Imam of Shia's. After his death, his two sons Hasan and Hussain became Imam.
After Hussain death, his son Zain-ul Abdeen succeeded upto this stage there was no
conflict among Shia community but afterwards there had been divisions and sub-
division–
1. Ithna Asharia or Imamia : Majority of Shia's are of this school. They are
called twelvers, because of there believe to be twelve Imam's in Shia
community and that the twelfth Imam who disappeared in the childhood
would reappear in future. A special feature of this school is to recognises
"Muta" or a temporary marriage. Twelve Imam's are–
(i) Ali (ii) Hasan (iii) Husain (iv) Ali Asghar Zainul-abdin (v) Mohammad-al-
Baqir (vii) Jafar-as-Sadiq (vii) Musa-ul-Kazim (viii) Ali-ar-Raza (ix)
Mohammad-al Taqia-al-Jawad (x) Ali-an-Naqi-al-Hadi (xi) Al-Hasan-al-Askari
(xii) Mohammad-al-Muntazar.
This school is sub-divided into two schools namely (a) Akhbari (b) usuli.
Akhbaris are recognised as rigid traditionalists of Imam's while, Usuli,
interpret the texts of quran on the practical problems of day to day life. These
Shia's are found in Iran, Iraq, Lebnon, Pakistan and India.
2. The Ismailia School : They are called seveners. Sixth Imam Jafar-as Sadiq
had two sons, Ismail and Musa ul-Kazim. Musa ul-Kazim became seventh
Imam but a number of Shia's did not accept them as their Imam. They
recognised Ismail as seventh Imam. They are found in Syria, Central Asia,
Pakistan and India.
3. The Zaidys School : They are called fivers. Forth Imam Ali Asghar Zainul-
abdin left two sons, Zaid and Mohammad al-Baqir. Mohammad al-Baqir
became Vth Imam but some Shia's accepted Zaid as their Vth Imam. They
are the first who separated from Shia community. They are found mostly
Yemen in South Arabia not in India.
C. The Motazila : The Motazila sect came into force around 9th century A.D. by Ata-al-
Ghazzal. They were the defectors of Shia community. They believe only on the
principle of Quran and mostly traditions have been rejected. This is only the sect in

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which monogamy is highly practiced and divorce cannot take place without the
interference of judge.
IMPORTANT QUESTIONS :
Q.1 What is the extent of applicability of Muslim Law?
Q.2 What are the main sources of Muslim Law? Discuss the role of Quran as a sources of
Law.
Q.3 What are the basic primary sources of Muslim Law?
Q.4 Who are Mohammedans and what are their main sects?

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UNIT - II
MARRIAGE (NIKAH)

In the pre-Islamic Arabian society, all customary laws were in favour of the males. The
females were treated as properties and not as human beings. When Islam came into being,
the females were given due social status and they were regarded as dignified members of
the society. Prior to Islam, several kinds of marriages were recognised but they were almost
the different forms of prostitution. Islam prescribed the concept of marriage called, Nikah
which is not only a matrimonial contract but also a social institution giving dignified
independent status to married women. Nikah literally means "to tie up together" for ever.
Under Muslim Law, a husband is allowed to marry four wives at a time, subject to a very
strict condition in very clear words.
Marry of the women, who seem good to you, two, three or four if you fear that you cannot do
justice (i.e. treat equally) to so many, then only one.
Definition of Marriage : The Arabic words Nikah (marriage) literally means the union of the
sexes and in law this term means 'marriage'. Under Mohammedan Law, marriage (Nikah) is
a civil contract, the object whereof is to legalise sexual intercourse and the procreation of
children. The word marriage has been defined by the different jurists at different times in a
different manner.
According to Ashabah : Marriage is a contract underlying a permanent relationship based
on mutual consent on the part of a man and women.
Wilson : Marriage is a contract for the purpose of legalising sexual intercourse, and for
procreation of children.
J. Mahamood : Marriage among Mohammedan is not a sacrament (Sanskar) but purely a
civil contract.
Baillie : It is a contract which has for its design or object the right of enjoyment and the
procreation of children.
Abdur Rahim : The marriage as partaking both of the nature of ibadat or devotional acts
and muamalat or dealings among them.
The prophet of Islam : Marriage is my Sunna and those who do not follow this way of life
are not my followers and there is no monkery in Islam.
Shah Muhammad Sulaiman : Muslim marriage, apart from being a contract is also a
religious sacrament.
Nature and Concept of Marriage : There are divergence of opinion with regard to the
nature of Muslim marriage. According to some jurists Muslim marriage is purely a civil
contract while others say that it is a religions sacrament in nature. In Islam marriage is also a
social and religious institution. A Muslim marriage has the three following aspects–
1. Legal Aspect : Muslim marriage is treated as a mere civil contract and not a
sacrament. This observation seems to be based on the fact that Muslim marriage
has similar characteristics as a contract for instance–
(i) As marriage requires proposal (Ijab) from one party and acceptance (qubul)
from the other.
(ii) There must be a free consent of the parties or of their guardians.
(iii) The parties to the marriage must be competent.
(iv) The terms of the marriage – contract may be settled by the parties
themselves.

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(v) There is also a provision for the breach of marriage known as divorce.
Justice Mahmood observed "Marriage among Mohammedans is not a sacrament
but purely a civil contract.
Justice Mitter in Subrunnisa's case1 :
Marriage under Muslim Law is a civil contract and is like a contract of sale. Sale is a
transfer of property for a price. In contract of marriage the wife is the property and
dower is price.
2. Social Aspect : Nikah is a social institution by which a definite and dignified status
has been conferred upon the women in the society, some points regarding social
aspect–
(i) In civil contracts, general rule is that there is no liability to pay consideration if
it has not been specified in the contract on the other hand in Muslim marriage
even if the amount of dower has not been specified, the law requires that
something (proper dower) must be paid by the husband to the wife as a mark
of respect towards her.
(ii) Unlike civil contract, it cannot be made contingent on future event.
(iii) Unlike civil contract, it cannot be for a limited time (muta marriage is an
exception).
(iv) Unlike civil contract, a Muslim male cannot marry with more than four wives
at a time.
(v) Unlike civil contract, a marriage cannot take place between certain close
relatives. Ex.- with real sister.
(vi) Unlike civil contract, a marriage cannot take place in certain circumstances
Ex.- A Shia Muslim is not allowed to marry during a religions journey (Haj)
3. Religious Aspect : Quran, which is a collection of the words of God, directs every
Muslim to marry a suitable woman of his liking. It is, therefore, a religions duty of
every Muslim to marriage according to the rules of Islam. Any person who does not
marry without any reasonable excuse, disobeys the words of God. According to Islam
marriage is a Sunnat muwakkidah. This means that it is an act of such a nature that if
a person does it, he gets religious benefits; if he does not do it, then he commits a
sin. Taking religious aspect into account Muslim marriage is an ibadat (devotional
act) "He who marries completes half of his religion it now rests with him to complete
the other half by leading a virtuous life in constant fear of God."
There is no monkery in Islam.
According to Prophet : I keep fast and break it. I pray and I sleep and I am married, so
whoever inclines to any other way than my Sunnah, he is not of me.
In Anis Begam vs Mohd. Istafa2 : C.J. Sulaiman has pointed out that apart from being a
contract, a Muslim marriage is also a religious sacrament.
According to M.C.J. Jung : "Marriage is an institution of Ibadat clothed in the legal form of
contract regulating sexual intercourse; but its continuance is dependent upon the
maintenance of conjugal affection."
In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil
contract nor as a sacrament.
Object of Marriage : A glossary on Tarmizi sets out five objects of marriage–

1
AIR 1934 Cal. HC.
2
(1933) 55 All 743, 756.

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1. The restraint of sexual passion,
2. The ordering of domestic life.
3. The increase of family.
4. Keeping discipline of the family and responsibility of wife and children.
5. The upbringing of virtuous children.
The Prophet Said : Men marry women for their piety, or their property, or their beauty, but
you should marry for piety.
Essentials of a Valid Marriage : Though in the Muslim communities certain social functions
and ceremonial rites are performed at the time of marriage, such functions or rites are not
legally necessary. The solemnization of marriage requires certain forms and formulas called
the essentials of valid marriage. If any of these requirements is not fulfilled the marriage
becomes either void or irregular, as the case may be. Thus, in short, the essentials are as
follows–
1. Proposal and Acceptance : Proposal, offer or Ijab signifies willingness of a person
to contract a marriage and is generally made from the side of the boy or his guardian.
Acceptance (Qabool) is made by girl or her guardian. It was held in Mst. Zainaba vs
Abdul Rahman, AIR 1945 that there is no particular or in which the proposal and
acceptance should be made it may be either oral or in writing. Where the words of
offer and acceptance are laid down in a written document, called Kabin-nama which
is an important documentary evidence of marriage. Proposal and acceptance must
be expressed at one meeting in each other's presence or in the presence of their
agents, called Vakils. Offer and acceptance must be reciprocal to each other. The
acceptance must not be conditional or with modification. Where A offers to marry B
on Rs.1000 as dower, B must accept in the same manner under their free will and
consent.
Under Sunni Law, the proposal and acceptance must be made in the presence of
two males or one male and two female witnesses who are sane, adult and Muslims.
Absence of witnesses does not render marriage void but irregular. Under Shia Law,
witnesses are not necessary at the time of marriage.
Proposal and acceptance must not depend upon uncertain future event. In case of a
boy or girl who has not attained the age of puberty, the legal guardian must
consented to it either express or implied. A marriage should not take place either by
fraudulent misrepresentations or under a mistake of fact relevant to their marriage.
Under Hanafi Law, even if the consent has been given under compulsion or the offer
and acceptance even if pronounced without any intention to effect a marriage, are
valid. This rule is based on the following traditions. Apostle of God said, there are
three things which whether done in joke or earnest, shall be considered as serious
and effectual, one marriages, second divorce and third the taking back.
Under Muslim personal law, registration of marriage is not necessary. All the matters
discussed above can be classified into different heads like–
(i) Specific forms not necessary (ii) Presence (iii) One meeting (iv) Reciprocity (v)
Free consent (vi) Consent under compulsion (vii) Witnesses (viii) Fraud (ix)
Registration of marriage (x) Conditional or contingent marriage.
2. Competent Parties : The parties to the marriage should have either (i) the capacity
to marry, or (ii) the capacity to be married. Under Muslim law, every Muslim who is of
sound mind and who has attained majority, has the capacity to marry and the person
who does not possesses these essentials, can be contracted in marriage by their
respective guardians. A marriage contracted by a lunatic (majnoon) is void except

- 11 -
when it is contracted in lucid intervals. However, lunatics can be contracted in
marriage by their respective guardians.
Age of Majority : Under Muslim law, majority is attained at puberty. It is to be noted
that the provisions of the Indian Majority Act 1875, do not apply to matters relating to
marriage, dower and divorce.
Puberty : Puberty means the age at which a person is supposed to acquire the
sexual competency, means a person becomes capable of performing sexual
intercourse and procreating children. Puberty and majority are in the Muslim law one
and the same; and supposed to attain at the age of 15 but according to Hedaya
earliest age for a boy is 12 and a girl 9 years. In the case of Shia female, the age of
puberty begins with menstruation.
Minor's Marriage : A Muslim child of either sex who has not attained the age of
puberty is incompetent to marriage such marriage is null and void unless consented
by his or her guardian. The guardianship for the purpose of marriage is as follows–
(i) Father.
(ii) Paternal grandfather how highsoever, and
(iii) Brother and other paternal relatives, in the same order as for inheritance.
(iv) The mother.
(v) The maternal uncle or aunt and other maternal relations without the prohibited
degrees, and
(vi) The State or Kazi.
Under Shia Law, the only guardians for marriage are the father and the paternal
grand-father, how highsoever. A marriage contracted by unauthorised person (Akd-
Fazuli) must be expressly confirmed by the minor on attaining puberty.
Option of Puberty (Khyar-ul-Bulugh) : Any person who is major and sound mind is
capable of contract to marriage while a minor is not. A Muslim minor can be
contracted in marriage by his or her guardian but on attaining the age of puberty he
has a right to approve or disapprove the marriage contracted by a guardian who was
neither father nor paternal grandfather. This is called the option of puberty for the
sake of convenience we may divide a man's or women's life into three stages.
Saghir is the first stage when, the boy or girl is below seven years of age, the
marriage is void-ab-initio and in no circumstances a marriage can be recognised.
Sariri is the second stage; the age is above seven years but below 15 years. In this
stage a minor can be married by his or her guardian they cannot marry on his or her
own free consent.
Bulugh is the third stage, the age is above 15 years and any person can enter into
contract for marriage on his or her own free consent.
Rules Regarding Option of Puberty :
(i) This option cannot be exercised by husband if his marriage was contracted by
father or grandfather in the case of Agiz Bano Vs Muhammad Ibrahim3 it was
held that where the father or grandfather had contracted the marriage either
fraudulently or negligently, the minor has a right to repudiate the marriage on
attaining puberty.
(ii) Before 1939 a Muslim wife had no option of puberty if the marriage was
contracted by father or grandfather. But the dissolution of Muslim Marriage

3
(1925) 47 All. 823.

- 12 -
Act 1939 has now modified the law in this regard and a women can exercise
this right even against his father or grandfather.
(iii) This right must be exercised by a wife immediately on the attainment of
puberty or if she has no knowledge that she has this right, it is prolonged until
she acquainted of this right. According to dissolution of Muslim Marriage Act
1939 a Muslim wife has this right upto 18 years of age. The husband also
have the same right of option of puberty, the right continues till he approves
the marriage either expressly or impliedly. Ex.- Express declaration, payment
of dower or cohabitation.
(iv) After consummation of marriage, the husband's right of option is lost because
consummation is regarded as implied consent. The wife's right is also lost
after the consummation of marriage provided it was not (i) before attainment
of her age of puberty, or (ii) against her will.
(v) For the dissolution of marriage by option of puberty confirmation by court is
necessary. However, only a formal approval is sufficient, decree is not
necessary.
(vi) Where any spouse dies after the exercise of the option but before court's
confirmation, the surviving spouse is entitled to inherit the properties of the
deceased.
3. No Legal Disability : Legal disability means the existence of certain circumstances
under which marriage is not permitted. These prohibitions are of two kinds–
(A) absolute, i.e., those which prohibit a marriage and render it void (Batil);
(B) relative, i.e., those which don't impose an absolute prohibition, so that a
marriage contracted is merely invalid or irregular (fasid), but not void.
(A) Absolute Incapacity or Prohibition : Absolute prohibition in the marriage
are mandatory in nature. A marriage contracted in voilation of any of the
absolute prohibitions is null and void under all the schools of Muslim Law
absolute incapacity to marry arises from–
(a) Consanguinity (Qurabat) (Relation by Blood) : Under consanguinity or
blood-relationship, a Muslim cannot marry with any of his or her following
relations–
(i) One's Own Ascendant : Father and mother of a person are his (her)
ascendant. Ascendant's of higher degree from the side of father are father's
father, father's father's father, etc, how highsoever. Similarly as from the
mother are mother's mother and mother's mother's mother etc how
highsoever a man is prohibited to marry his mother's ascendant similarly a
women is restricted to marry her father's ascendant.
(ii) One's Own Descendants : Son's and daughters of a person are his (her)
descendants. Thus, a man cannot marry his daughter, daughter's daughter or
(son's daughter) etc. in any lower degree. Similarly a women is not allowed to
marry her son, son's son (or daughter's son) etc in any lower degree.
(iii) His Sister Whether Full, Consanguine or Uterine : A sister or a brother is
not allowed to marry their brother or sister whether full, consanguine or
uterine.
Full- Where mother and father is common.
Consanguine- Where mother's are different but father is same.
Uterine- Where mother is common but fathers are different.

- 13 -
Note : There is, however no prohibition in the marriage of cousine – brother
and sister. That is to say, Chachere, Mamere, Phuphere or Mausere brother
and sister can lawfully marry each other.
(iv) His Niece or Great-niece How Lowsoever : A man or a woman is prohibited
to marry the daughters or grand daughters and son or grand son of his
brothers and sisters. Thus, a man cannot marry his Bhatiji or Bhanji and the
daughter of such Bhatiji or Bhanji. Similarly a woman is not allowed to marry
her Bhatija and Bhanja and the son of such Bhatija and Bhanja.
(vii) His Aunt (Father's Sister, Mother's Sister) or Great Aunt, How
Highsoever, Whether Paternal or Maternal : A man cannot marry his Booa
(Phuphi) or his Mausi (Khala). Similarly a woman is not allowed to marry her
paternal or maternal uncle (Chacha or Mama).
A man is also prohibited to marry the Booa or Mausi of either of his parents,
Similarly a woman cannot marry Chacha or Mama of her parents.
Note : There is no prohibition in marrying the wife of one's parents brother.
Thus a man is lawfully allowed to marry his divorced or widowed Mami or
Chachi.
(b) Affinity (Mushaarat) (Relation by Marriage) : Affinity means nearness it is
created through marriage. A marriage cannot take place in any of the
following conditions–
(i) Ascendant of One's Wife or Husband (Wife's Mother or Grant-mother
how Highsoever) : A man is prohibited to marry his wife's mother or wife's
mother's mother how highsoever. Similarly woman cannot with husband's
father or husband's father's father how highsoever.
(ii) Descendant of One's Wife or Husband (Wife's Daughter or Grant
Daughter How Lowsoever) : A man cannot marry his wife's daughter or
wife's grand daughter, how lowsoever and a woman is not permit to marry her
husband's son or husband's son's son how lowsoever.
Note : A man can marry the descendant of his wife if his own marriage with
his wife has not been consummated.
(iii) Wife of his Father or Paternal Grandfather how Highsoever : A man is
restricted to marry the wife of his father or grandfather how highsoever and it
is same for a woman also as husband of her mother or husband of her
grandmother, how highsoever.
Note : The prohibition is of stepmother (i.e. the other wives of his father if
any).
(iv) Wife of his Son or Son's Son or Daughter's Son how Lowsoever : A man
is also restricted to marry the wife of his son, or wife of his grand son of how
lowsoever. Similarly, a woman cannot marry the husband of her daughter or
the husband of her grand daughter how lowsoever.
(c) Fosterage (Riza) (Relation by Milk) : When a child under the age of two
years has suckled the milk of any woman (other than its own mother), the
woman becomes the foster-mother of the child. Although there is no blood
relation between them. A man is prohibited to marry his foster-mother or
foster mother's daughter.
Exception : Under Sunni law, there are few exceptions and a marriage may
be contracted with–
(i) Sister's foster – mother (ii) Foster – sister's mother

- 14 -
(iii) Foster – son's sister (iv) Foster – brother's sister.
(d) Polyandry : Under Muslim law, a man has a legal capacity to marry with four
women at a time. But a Muslim women has no such right. A Muslim woman is
not permitted to contract second marriage during the continuance of the first
marriage if she marrying in contravention of this rule shall be liable to be
punished under section 494, I.P.C. and the issues from such marriage will be
illegitimate under Shia law as well as under the Sunni Law.
(B) Relative Incapacity or Prohibition : Relative prohibition are those
prohibitions the compliance of which is not mandatory. The violation of any
prohibition makes the marriage irregular not void. There are as follows–
(i) Unlawful Conjunction : A man may not have 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 a male, they could not have lawfully inter-married.
Thus, a person cannot marry two sisters, aunt (Booa or Mausi) or niece of the
wife. Under Shia law, marriage with wife's aunt is permitted but he cannot
marry with wife's niece without consent of the wife. However, a man can
lawfully marry his wife's sister after the death or divorce of the wife.
(ii) Polygamy or Marrying a Fifth Wife : A Muslim male can only have four
wives. He can marry a fifth wife only after divorcing one of the four or the
death of the one. Under Sunni law marriage with fifth wife is irregular while in
Shia law it is void.
(iii) Absence of Proper Witnesses : A marriage contracted in the absence of two
male or one male and two female witnesses is invalid by Sunni law on the
other hand, no witnesses is required under Shia law.
(iv) Difference of Religion : Law relating to inter-religions marriages under
Muslim law may now be summarised, as under–
(a) Muslim male (of any sect) + Muslim female (of any sect)- Marriage is valid
(b) Sunni male + Kitabia female- Valid
(c) Sunni male + Female who is neither Muslim nor Kitabia- Irregular
(d) Shia male + Non-Muslim female (either Kitabia or not)- Void
(e) Sunni female + Non-Muslim male- Irregular
(f) Shia female + Non-Muslim male- Void
Note : A Muslim, whether male or female, can lawfully marry a non-Muslim
under the Special Marriage Act, 1954, marriage contracted under this Act is
called 'Court Marriage'.
(v) Marriage During Iddat : Iddat is a period of chastity which a Muslim woman
is bound to observe after the dissolution of her marriage by the death of her
husband or by divorce, before she can lawfully marry again. Iddat is in the
interest of the certainty whether she is pregnant by the husband–
Duration of Iddat :
1. Iddat of Death : 4 months and 10 days, if the woman is pregnant, the
iddat will be till delivery or miscarriage, whichever period is longer.
2. Iddat of Divorce : If she is subject to menstruation is three courses,
otherwise three lunar months if pregnant, the iddat will not terminate till
delivery.

- 15 -
3. If the marriage is not consummated, iddat has to be observed in the
case of death, but not in the case of divorce.
4. The period of iddat begins from the date of the divorce or death of the
husband and not from the date on which the woman gets the
information if she gets the information after the expiry of the specified
term she need not observe the required iddat.
5. Where a woman is in iddat of divorce and the husband is expired
before the completion of the iddat, the woman is required to undergo a
fresh iddat for 4 months and 10 days.
Miscellaneous Prohibitions : This may arise from–
1. Marrying a Woman 'Enceinte' : It is unlawful to marry a woman who is already
pregnant by her former husband.
2. Remarriage Between Divorced Couple : Re-union is prohibited except a lawful
provision called Halala. The divorced wife should first contract a valid marriage with
some other person, marriage is consummated, thereafter wife should be divorced
voluntarily, wife should observes iddat. Now she can re-marry.
3. Marriage During Pilgrimage : Under Sunni law is valid while in Shia law is void.
4. Marriage with a Sickman: Marriage with a sickman suffering from disease which is
likely to be fatal is invalid.
Kinds of Marriage : On the basis of the validity a marriage may be of three kinds either
under Sunni law or under Shia law.
Marriage

Sunni Law Shia Law

Valid marriage (Sahih) Valid (Sahih)


Void (Batil)
Void (Batil) Muta (Temporary)
Irregular or invalid (fasid) Marriage or marriage
for pleasure
Under Shia law, irregular marriages are not recognised. What is irregular in Sunni law that is
void in Shia law.
1. Valid Marriage (Sahih) : A marriage which is neither void nor invalid is valid this
marriage is recognised under all the schools of Muslim law. To be a marriage valid
some requirements must be satisfied.
(i) The offer and acceptance must have been made according to law.
(ii) The parties must be competent to contract marriage i.e. they should be (a) of
sound mind (b) major (c) capable to give free consent. If they are minor or
lunatic, it should be through their guardians.
(iii) The consent of the parties or of their guardians should be free.
(iv) Their should be no restriction's for marriage between the parties.
2. Void Marriage (Batil) : A marriage which has no legal results is called a void
marriage. It is an illegal union.

- 16 -
Following marriages are void–
(i) Marriage in violation of absolute incapacity (i.e. consanguinity, affinity or
fosterage).
(ii) Marriage with the wife of another person, whose marriage is still subsisting.
(iii) Remarriage with one's own divorced wife, when there is a legal bar.
Note : What is irregular in Sunni law are to be added in void marriage of Shia law.
3. Irregular Marriage or Invalid (Fasid) : This marriage is recognised only under
Sunni law. It is an incomplete marriage because of some illegality or irregularity and
becomes perfectly valid as soon as that illegality or irregularity is removed. The
violation of any of the relative prohibitions made the marriage irregular. Following
marriages are regarded as irregular–
(i) Marriage against the rule of unlawful conjunction.
(ii) Marriage with the fifth wife.
(iii) Marriage without competent witnesses.
(iv) Marriage with a woman who is neither Muslim nor Kitabia.
(v) Marriage with a woman undergoing iddat.
Note: There is nothing like irregular marriage under Shia law, hence what is irregular
in Sunni law that is void under Shia law.
Consequences of a Void Marriage : A void marriage is of no legal effect either before or
after consummation and does not create any rights or obligations between the parties. The
wife is not legally entitled to maintenance. One cannot inherit from the other but the woman
is entitled to dower if the void marriage has been consummated. The offspring's of a void
marriage are illegitimate and the parties can separate from each other at any time without
divorce and may contract another marriage lawfully.
Consequences of Irregular Marriage : May be understand under two different heads–
(i) Before Consummation : If the marriage is not consummated, it has no legal effect
and regarded as void marriage.
(ii) After Consummation :
a. Wife has to observe iddat, but the duration of iddat both on divorce or death is
three courses.
b. The wife is entitled to get specified or proper dower, which ever is less.
c. The wife is not entitled to maintenance during iddat.
d. The offspring's are legitimate but does not create mutual rights of inheritance
between husband and wife even after consummation of marriage.
Consequences of Valid Marriage : A valid marriage creates certain rights and duties
between the wife and the husband.
(a) Mutual Rights and Obligations : It legalize sexual intercourse and the children born
out up it are legitimate. Husband and wife get a right of mutual inheritance and
prohibited degree of relationship are created so that they cannot marry within such
degree.
(b) Right of Wife and Duties of Husband :
(i) Maintenance from her husband.

- 17 -
(ii) She is legally entitled to get her dower and to refuse cohabitation if prompt
dower is not paid.
(iii) Equal treatment and separate sleeping apartment, if there are more than one
wife.
(iv) She is entitled to visit and be visited by her blood relations within the
prohibited degrees at least once a year.
(v) She has a right to use an apartment and to exclude all other persons except
her husband.
(c) Rights of a Husband Duties of Wife :
(i) She is bound to observe strict conjugal fidelity.
(ii) She is bound to allow her husband conjugal union with her, with due regard to
her own health, decency and place.
(iii) She has to obey his legal commands.
(iv) She has to reside in his house and to observe purdah if necessary.
(v) She has to observe iddat on her husband death or divorce.
Muta Marriage : The word Muta literary means 'enjoyment'. Or 'Use'. It may be rendered as
marriage for pleasure. This marriage is for a fixed period with a certain reward paid to
woman and recognised by only Shia law (Ithana Ashari School). Muta marriage is an ancient
Arabian custom. A Shia male can contract any number of muta marriages along with a
Kitabia woman (professing Muslim, Christian or Jewish religion) or even with a fire-
worshipper, but not with the follower of any other religion. But a Shia woman may not with a
non-Muslim. All the requisite formalities of a marriage, have to be observed in the muta
marriage.
Essentials :
(i) The period of cohabitation should be fixed (a day, month year or years) and that.
(ii) Some dower should be specified (otherwise the marriage will be void).
Note : If the period is not specified, though dower is specified, it should be considered as a
permanent union.
Shohrat Singh V Jafri Bibi4
Main Incidents :
1. No mutual rights of inheritance created between the spouses, but children
considered legitimate and capable of inheriting from both parents.
2. Wife is not entitled to maintenance (unless specified). However, entitled to
maintenance as a wife under the Cr.P.C.
3. If the marriage is not consummated, the wife is entitled to only half of the dower. If
consummated then full dower.
4. On the expiry of the term of marriage, if the marriage has been consummated, the
wife is required to undergo iddat of three courses.
5. Husband is entitled to refuse procreation.
6. Marriage comes to an end ifso-facts on the expiry of the term (unless extended) or by
mutual consent or by death of the either party.

4
AIR 1933 Myd. 6.

- 18 -
7. Divorce is not recognised, but marriage can be terminated earlier, if terminate by
husband, can be terminate by making a gift of the unexpired term called hiba-i-
muddat, in such case the wife is entitled to full dower, if wife leaves the husband, the
husband has a right to deduct the proportionate part of the dower for the unexpired
period.
DOWER (MAHR)
Before the advent of Islam in Arabia, generally there was two types of marriage in practice
i.e. Ball & Beena. In Ball marriage, a man who wanted to marry a girl used to approach her
guardian and after giving him some money or property as compensation or price of the girl
called Mahr (sale price), used to take the girl with him as his wife. On the other hand in
Beena marriage the man used to approach the girl directly and after giving her money or
property called Sadaq, the wife was called Sadeeqa (girl friend), lived with her. She did not
accompany the husband. When Islam was promulgated, prophet retained the practice of
payment with different idea as an obligation to pay to the wife and not to her guardian, as not
a gift or price but as a mark of respect towards her.
Definition : Mahr or dower is a sum, which is payable by the husband to the wife on
marriage, either by agreement between the parties or by operation of law.
Justice Mahmood : In Abdul Kadir V Salima5 defines 'Dower under the Mohammedan Law,
is a sum of money or other property promised by the husband to be paid or delivered to the
wife in consideration of the marriage and even where no dower is expressly fixed, the law
confers the right of dower upon the wife as necessary effect of marriage.
Ameer Ali : Dower is a consideration which belongs absolutely to the wife.
Object :
1. To impose an obligation on the husband to give something as a mark of respect of
the wife.
2. To place a check on the capricious use (unrestricted right) of divorce on the part of
husband; and
3. To provide a wife help or subsistence after the dissolution of her marriage, so that
she may not become helpless after the death of the husband or termination of
marriage by divorce.
Classification of Dower : The basis of classification of dower is–
(a) Whether it has been fixed by parties or is fixed by operation of law, and
(b) Whether the dower may be claimed by wife any time or only upon the dissolution of
marriage.
Dower (Mahr)

Specified Dower Unspecified Dower


(Mahr-i-Musamma) (Mahr-i-Misl)
or
Proper Dower
(Mahr-i-Muajjal) (Mahr-i-Muwajjal) or
Prompt Dower Deferred Dower Customary Dower

5
I.L.R. (1886) 8 All. 149 (157).

- 19 -
1. Specified Dower (Mahr-i-Musamma) : The sum of money or any property which is
fixed at the time of the marriage, is called the specified dower. It may be fixed by the
parties either before the marriage or at the time of marriage or even after the
completion of the marriage. A dower may be settled either orally or may be specified
in a written agreement called (Mahr-nama). If any marriage of a minor or lunatic is
contracted by a guardian, such guardian can fix the amount of dower and it is binding
on the minor and on attaining the age of puberty he cannot take plea that he was not
a party to it. Dower may be fixed even after the marriage of such minor or lunatic,
provided that at the time of settlement, the boy is still minor or lunatic. Any kind of
property, movable or immovable, tangible or intangible, and of any value may be
settled, but that money or property should be in existence. The minimum amount of
the specified dower under Sunni Law is 10 Dirhams (between 3 and 4 Rupees) while
in Shia Law no minimum amount of specified. Those Muslims who are not in position
to pay even 10 Dirhams, the prophet has directed them to teach Quran to the wife in
lieu of dower. Now no limit to the maximum, minimum has become obsolete. The
amount of the dower may be increased subsequently by the husband and the wife is
entitled to claim this additional amount, but the husband cannot reduce the amount.
However, the wife can herself reduce or remit her claim to the whole or a part of the
specified dower. This is called remission of dower. Specified dower is again
subdivided into- (i) Prompt dower (ii) Deferred dower.
(i) Prompt Dower (Muajjal Mahr) : Prompt dower is payable immediately after
marriage on demand, unless delay is stipulated for or agreed. The wife may
refuse to cohabit with her husband. If the wife is minor, her guardian has a
right to not to send her to her husband's house till the payment of prompt
dower. In such conditions, the husband is bound to maintain the wife,
although she is living apart from him. A husband becomes entitled to enforce
the conjugal rights only after the payment of prompt dower unless the
marriage is already consummated. If any delay is caused in the payment, the
wife is entitled to get a simple interest on that amount. The period of limitation
for the suit 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.
(ii) Deferred Dower (Muwajjal Mahr) : It is to be paid on dissolution of marriage
either by death or divorce or upon the happening of a specified event, if so
agreed. If the specified dower has been fixed as deferred, the wife cannot
claim it before the termination of marriage. If the marriage is dissolved by the
death of wife, her legal heirs are entitled to claim the deferred dower. The
widow may relinquish her dower at the time of her husband's funeral by the
recital of a formula. If the amount of dower does not show, what portion is
prompt and what is deferred, under Shia law the whole of the dower is
regarded as prompt while in Sunni law half of the total is regarded as prompt
and half as deferred.
2. Unspecified Dower or Proper Dower (Mahr-i-Misl) : If the amount of dower is not
fixed by the parties at the time of marriage contract or even if the marriage has been
contracted that she would not demand any dower, the wife is entitled to proper
dower, fixed by the courts of law. There is no definite amount but following principles
of law are taken into consideration–
(i) The personal qualifications of the wife i.e. her age, beauty, fortune,
understanding and virtue.
(ii) The social position of wife's father.
(iii) Dower given to her female paternal relations.

- 20 -
(iv) Economic conditions of her husband.
(v) Circumstances of times.
Under Sunni law there is no limit to the maximum amount of proper dower while in
Shia law the amount should not exceed 500 Dirhams, which was fixed by prophet in
the marriage of fatima (daughter).
Wife's Rights and Remedies on Non-payment of Dower : Muslim law confers upon a wife
(or widow) some rights to compel payment of her dower i.e.–
1. Refusal to Cohabit : If the marriage has not been consummated and the dower is
prompt, the wife has a right to refuse to give her company to the husband till the
prompt dower is paid. If the wife is minor or an insane, her guardian also has right
not to send her to her husbands house till payment of prompt dower and during such
period if she is living apart the husband is bound to maintain her. If the minor wife is
already in the custody of her husband, such guardian can take her back. Where the
consummation has taken place even once, the wife's right to refuse consummation is
lost but the husband's suit for restitution of conjugal rights will not fail. However, the
court has a discretion, even in such a case, to pass a decree for restitution of
conjugal rights subject to the condition of payment of prompt dower. In Anis Begum V
Muhammad Istafa Wali Khan6 the court held that a wife has a right to take simple
interest of unpaid dower.
2. Right to Dower as a Debt : If the marriage has been consummated, the wife has no
right to claim the dower by refusing conjugal rights but she can recover her unpaid
dower by refusing conjugal rights but she can recover her unpaid dower by
maintaining an action in a court of law. Unpaid dower is an actionable claim and she
may realise it in the same manner as a creditor recovers his loan. So, if the husband
is alive and dower remains unpaid, she may recover it by maintaining suit against
him. If the husband dies, she is entitled to recover it from the legal heirs of the
husband but the legal heirs are not personally liable. Their liability is to extent to
which they get the property of the deceased. Ex. If the unpaid dower is Rs.6000/-
and a legal heir's share in the property is 1/6 then he is liable to pay only Rs. 1000/-
to the widow.
3. Widow's Right of Retention to the Husband's Property : After the death of the
husband the most effective method of recovering the dower is the exercise of right of
retention the husband property till her dower debt is paid. No greater than that of any
other unsecured creditor. If she lawfully obtains possession of the whole or part of his
estate, she is entitled to retain that possession as against others heirs and as against
other creditors of her husband. This right of retention does not give her any title to
the property i.e. she cannot alienate the property in any manner (either by sale or by
gift). This right is for a special purpose, to get her unpaid dower speedy. If she is not
in possession or has lost possession, she cannot claim to obtain it.
Some special features of this rights are–
(i) No Right During Marriage : This right is available only on the dissolution
of the marriage either by after the death of her husband or by divorce, but
not before.
(ii) Actual Possession : This right means the right to continue in the
possession. To get this right, the property must be in the possession of
the husband at the time of the termination of the property and continued to
be on. If she has no actual possession at that time, she cannot afterwards
acquire possession in lieu of this right. This right can be acquired by her

6
(1933) 55 All. 743.

- 21 -
during the subsistence of marriage. It is not a right to obtain possession.
The wife should have obtained possession lawfully and without force or
fraud.
(iii) Only Possessory Right : This right is simply a possessory right and does
not give any title or right of ownership to the widow. Her right is to retain
possession against the legal heirs of the husband and ownership vests in
the husband's legal heirs including herself.
(iv) Property is Non-transferable : The property in possession of the widow
in lieu of unpaid dower cannot be transferred by her. Not being the owner
she has no right to transfer the property (either by sale or gift). Any such
transfer will be void and the transferee will not get any title or interest in
the property.
Maina Bibi v Chaudhri Vakil Ahmand7
Muinuddin and Maina Bibi were lawfully married husband and wife. After
the death of Muinuddin in 1890, Maina Bibi retained certain immovable
properties of her deceased husband in lieu of her unpaid dower. No
payment of her dower was made by the legal heirs of the husband
including Vakil Ahmad and she continued in her possession. In 1907,
Maina Bibi made a gift of those properties to others and also gave
possession to the donees. After this Vakil Ahmad and others heirs filed
the suit for getting possession over the properties on the ground that the
gift was void because during retention widow had no right to transfer the
properties.
It was held by Privy Council that a widow who is in possession of her
husband's estate in lieu of unpaid dower is not owner of the properties.
The only right is to continue to hold the possession till the dower is not
paid by the heirs. The court further observed that failure of the payment of
dower by the heirs would not make her an absolute owner of the
immovable property of which she had been in possession. Any kind of
transfer of the retained property, whether it is sale, gift or exchange etc is
void and cannot take effect.
(v) Widow in Possession Liable to Account : A widow who is in
possession of her husband's estate is liable and bound to give account to
the other heirs of her husband for the rents and profits received by her out
of the state, on the other hand she is legally entitled to charge interest on
the dower due to her and to set it off against the net profits.
(vi) Transferability of the Right of Retention : It is an exclusive right,
available to a widow only because her dower remains unpaid. According
to Patna High Court this right is not transferable and the Allahabad,
Mysore and Andhra Pradesh High Courts held that, it can be transferred.
This Supreme Court took a view by Patna High Court i.e. the right of
retention is not transferable.
(vii) Heritability of the Right of Retention : This right can be inherited by the
legal heirs of the widow provided her own retention was lawful and she
died during such retention.
DISSOLUTION OF MARRIAGE

7
(1924) 52 IA 145.

- 22 -
Under the Muslim Law a marriage is dissolved either by the death of the husband or wife, or
by divorce. After the death of the wife, the husband may remarry immediately while the
widow cannot before a certain specified period. Generally, both the parties to the marriage
contract have an option for divorce, but he husband has much greater right than that of the
wife. The husband can divorce his wife without any misbehaviour on her part and without
assigning any cause. Moreover, even if he makes a promise not to exercise such an
absolute power of divorce, he will not be prevented from exercising it, and a divorce
pronounced by him in violation of such a promise will be effectual. Generally people
considers Talaq as divorce while Talaq means not divorce. Talaq is a simple mode of
divorce like Ila and Zihar. Thus, there is a much way of dissolution of marriage. They are as
follows–
Dissolution of Marriage

By the act of God By the act of the


(By the death of the Parties (Divorce)
Husband or wife)

Without Court With Court (By wife only,


under the dissolution of
Muslim Marriage Act,
1939)
By husband By wife By mutual consent

Delegated Talaq Khula Mubarat


(Talaq-e-tafwiz)

Talaq Ila Zihar

Talaq-ul-Sunnat Talaq-ul-Biddat (Talaq-ul-Bain)

Talaq-i-Ahsan Talaq-i-Hasan Written Divorce Triple Divorce


(Most Proper) (Proper)

Talaq : Talaq is an Arabic word and its originally means is repudiation or rejection or to
release (an animal). Under Muslim Law Talaq means repudiation of marriage by the
husband or a release from the marriage tie or to free her from the bondage of marriage
immediately or eventually. It is an arbitrary power of a husband to repudiate his marriage at
his own pleasure at any time with or without cause and not necessary for him to obtain the
prior approval of his wife. A revocable pronouncement of talaq does not dissolve the
marriage till the period of iddat has expired, but an irrevocable pronouncement dissolves the
marriage immediately on its pronouncement.
Note : The basic idea of talaq, whenever a husband finds that the marriage cannot be
continued happily (either because of the misconduct of the wife or because of his own fault)
he is entitled to dissolve the marriage.
Capacity for Talaq : Every Muslim husband of sound mind, who has attained the age of
puberty, is competent to pronounce Talaq against his wife, whenever he likes. Talaq by
minor or insane husband is void and ineffective. However, if Talaq is pronounced by insane

- 23 -
husband during their "lucid interval" is valid. The guardian is not entitled to pronounce Talaq
on behalf of a minor.
Free Consent : For a valid Talaq, consent must be free. On the other hand under Sunni
Law, a Talaq even pronounced under compulsion, coercion, undue influence, proud or
voluntary intoxication etc. is valid and dissolves the marriage. This rule is based on the
tradition of the prophet where he is reported to have said thus. "There are three things which
whether done in joke or earnest, shall be considered as serious and effectual; one marriage,
the second divorce, and the third taking back."
Involuntary Intoxication : If the husband was forcibly made drunk, and has pronounced
Talaq, such a Talaq will not take effect under all the school of Muslim Law.
Formalities :
Under Sunni Law–
(a) A Talaq may oral or in writing, if it is written or called Talaqnama.
(b) No particular words or specific formula is required to constitute a valid Talaq. Any
expression which clearly indicates the husband's desire to break the marriage is
sufficient to dissolve the marriage through Talaq.
(c) A Talaq either oral or in writing, need to be made in the presence of any witnesses.
Such Talaq is valid.
Under Shia Law–
(a) Talaq must be uttered orally, unless the husband is unable to speak. If the husband
has capacity to utter the words but gives in writing, the Talaq is void and ineffective.
(b) Some particular Arabic words in the specific formula is required in the
pronouncement of Talaq.
(c) Talaq must be pronounced in the presence of either two competent male witnesses
or one male and two female witnesses. A Talaq without witnesses or in presence of
incompetent witnesses is void.
Note : Every male Muslim who is of sound mind and has attained the age of puberty, is
competent witnesses.
Presence of Wife : For the validity of a Talaq the presence of wife is not necessary and the
Talaq pronounced by the husband in the absence of wife is valid and effective. Its notice to
wife is not necessary and it becomes effective from the moment of its pronouncement and
not from the date on which the wife comes to know about it. However, knowledge of Talaq is
required for the claim of dower and for claim of maintenance from former husband.
Conditional and Contingent Talaq : A Talaq may either be absolute (i.e. unconditional) or
subject to a condition or contingency. An uncertain future event is called contingency. Under
Sunni Law a conditional or contingent Talaq is valid provided that the conditions must not be
un-Islamic (against the principle of Islam). If the condition is void, Talaq cannot take place.
Under Shia law, conditional or contingent Talaq is void and ineffective, either the condition or
contingency is valid and lawfull. However Talaq must be unconditional.
Kinds of Talaq : There are two kinds of Talaq–
Talaq

Talaq-ul-Sunnat Talaq-ul-Biddat
(Revocable) (Irrevocable)

- 24 -
Talaq-i-Ashan Talaq-i-Hasan
(Most Proper) (Proper)
1. Talaq-ul-Sunnat (Revocable Talaq) (Talaq-ul-Raje) : Talaq-ul-Sunnat is regarded
to be the approved or of Talaq, based on the prophet's tradition (Sunna). According
to prophet, Talaq was an evil. The prophet recommended only Talaq-ul-Sunnat
(revocable Talaq), because in this form the evil consequences of Talaq do not
become final at once and there is still a possibility of compromise and reconciliation
between husband and wife. Talaq-ul-Sunnat is also known as Talaq-ul-raje and only
this kind of Talaq was in practice of the prophet's life time. This mode of Talaq is
recognised both by Sunnis as well as by the Shia's. This Talaq has been further
divided into–
(i) Talaq-i-Ahsan (Most Proper) : The Arabic word 'ahsan' means best or very
proper. Thus the talaq uttered in the ahsan form is the best kind of talaq. In
talaq-i-ahsan certain conditions must be satisfied.
(a) Talaq is an evil word, the husband must uttered the formula of divorce
in a single sentence.
(b) The pronouncement of divorce must be in a state of purity (tuhr); tuhr
is a period when a women is free from her menstrual course.
(c) He must abstain from intercourse for the period of iddat.
If the marriage has not been consummated, talaq may be pronounced even if
the wife is in her menstruation but if any woman is not subjected to
menstruation either because of old age or due to pregnancy or the spouses
are away from each other for a long period, the condition of tuhr (purity) is not
applicable, i.e. a Talaq against her may be pronounced any time. A
pronouncement made in the ahsan form is revocable during iddat, either by
express words or by implied (cohibition with the wife). After the expiration of
iddat the divorce becomes irrevocable.
(ii) Talaq-i-Hasan (Good or Proper) : The Arabic word Hasan means 'good or
proper'. This form of talaq is lesser worth than that of Ahsan form but there is
also a provision for revocation. In this talaq certain conditions are to be
followed.
(a) There must be three successive pronouncements of the divorce.
(b) If the wife is under the menstruation, the first pronouncements should
be made during tuhr period, the second during the next tuhr and the
third during the third tuhr.
(c) If there is no menstruation, the pronouncement should be made during
the successive intervals of 30 days.
(d) There must not be any sexual intercourse during these three periods
of tuhr.
It is to be noted that the husband may revoke his talaq after the first and
second pronouncement either by expressly or by impliedly. If no revocation is
made then lastly the husband is to make the third pronouncement in the third
period of purity and after making the third declaration, the talaq becomes
irrevocable and the wife has to observe the required iddat.

- 25 -
2. Talaq-ul-Bidaat (Irrevocable) (Talaq-ul-Bain) : It is a disapproved mode of divorce
and becomes effective as soon as the words are pronounced. There is no possibility
of reconciliation between the parties. Prophet never approved this talaq, hence it was
not in practice during their life time. This talaq is also called Talaq-ul-Bain. Only
Sunni Law recognises talaq-ul-biddat, though they think it to be sinful. In this talaq
the following requirements are necessary–
(i) Three declaration of talaq are to made during a single tuhr by saying "I
divorce thee, I divorce thee, I divorcee thee. He may declare his triple-talaq
even in one sentence by saying "I divorce thee thrice." Or I pronounces my
first, second and third talaq.
(ii) A single declaration made during a tuhr with clear irrevocable intention to
dissolve the marriage by saying "I divorce thee irrevocably or I divorce thee in
Bain."
Ila (Vow of Continence) : Where a husband, who has attained puberty and is of sound
mind, swears by God that he will not have sexual intercourse with his wife for a period of four
months or more or for an unspecified period, he is said to make ila. Thus, if any husband
says to his wife, "I swear by God that I shall not approach thee," it is a valid ila. After the
expiration of these four months, the marriage dissolves irrevocably. But, if the husband
resumes cohabitation within the prescribed period of four months, ila is cancelled and the
marriage does not dissolve. The custom of ila is however, more less absolute now. Ila is not
a practice in India.
Under Shia law, Ila cannot take place without the order of the court of law. After the
expiration of the prescribed period the wife may file suit either for the restitution of conjugal
rights or for the dissolution of marriage. If she does not obtain the decree of court, the
marriage does not dissolve.
Note : In ila husband is called Mula and the wife is called Muli.
Zihar (Injurious Assimilation) (Unlawful Comparison) : When a husband (sane and adult)
compares his wife with a woman whom he cannot cohabit e.g. mother or sister etc. The
husband would say that from today the wife is like his mother or sister and does not make a
relation upto four months. The wife has a right to refuse herself to him until he has performed
penance by (i) freeing a slave (ii) fasting, for two months (iii) feeding, sixty poor persons.
After the expiry of four months, the Zihar is complete but marriage does not dissolve. She
may go to the court either for the restitution of conjugal rights or for a judicial divorce.
Delegated Divorce (Talaq-e-Tafweez) : A Muslim husband has unlimited power to divorce
his wife at any time on any ground. This power or right is so absolute that he may exercise it
either himself or may delegate to other person, including his own wife. When the right of
talaq is exercised by any person other than the husband himself is called Talaq-e-Tafweez
or delegated divorce and that talaq is as effective as made by husband himself. The
delegated of the power of divorce to the wife may either be permanent or temporary i.e. only
for a specified period. A temporary delegation of power is irrevocable but a permanent
delegation may be revoked by the husband.
The delegation may be conditional or subject to certain condition or contingency. If the
delegation is conditional, the talaq cannot take place until that condition is fulfilled. It is to be
noted that the mere fact, where husband delegates to his wife the right of pronouncing talaq,
does not deprive the husband himself of his right to pronounce talaq.
Divorce by Mutual Consent ; Under Muslim Law whenever the husband and wife feel that it
is now impossible for them to live with mutual love and affection as is desired by God. They
may get separated from each other either by Khula or Mubarat.

- 26 -
Khula (Divorce at the Request of Wife) : The literal meaning of the word Khula is, to lay
down or to take off the clothes. In law, it means a wife obtains the divorce from her husband
with his consent, on payment of something to him. There was no khula in pre-islamic
legislation.
Essentials :
(i) There must be on offer from the wife (only wife's desire)
(ii) The offer must be accepted with the consideration (evaz) for the release.
(iii) The offer must be accepted by the husband.
(iv) The husband and wife must be competent (sound mind, sane and has attained the
age of puberty.
(v) The offer and acceptance must be made with free consent.
Mubarat (Divorce by Mutual Consent) : In Mubarat both the parties wants separation from
each other. Therefore, in this form of divorce, the offer may be either from the side of wife or
from the side of husband, to be accepted by the other. In mubarat, no party is legally
required to compensate the other by giving some consideration. When an offer is accepted,
it becomes an irrevocable divorce (talaq-ul-bain) and iddat is necessary.
Judicial Divorce (Faskh) : By judicial divorce we mean a divorce by the order of a court of
law. Islam provides for the dissolution of a marriage by a Kazy or Judge. On the application
of a wife if the marriage was found to be harmful or undesirable for her, the Kazi could
dissolve the marriage. A Muslim wife has no absolute right to obtain a divorce, her rights
extend only under certain specific contingencies and conditions before the passing of
dissolution of Muslim Marriage Act, 1939–
(a) Before the Shariat Act of 1937–
(i) Impotency of the husband.
(ii) Lian (false charge of adultery) i.e. when the husband charged his wife with
adultery, and the charge was proved to be false.
(iii) Option of puberty (Khar-ul-Bulugh).
(b) After the Shariat Act of 1937–
(i) Ila (ii) Zihar.
But now the dissolution of Muslim Marriage Act, 1939, has introduced a revolutionary
change in this respect and had restored to her, right of divorce granted to her under
Shariat. This Act came into force on 17th March, 1939. It extends to the whole of
India.
Under Section 2 of the Act, a woman married under Muslim Law is entitled to obtain a
decree for the dissolution of her marriage on any one or more of the following nine grounds–
1. The Husband is Missing for Four Years : Section (2)(i), if the husband is missing
and his whereabouts are not known for a period of four or more years. The decree
passed by the court on this ground becomes effective only after the expiry of six
months, from the date of such decree. If before the expiry of six months, the husband
reappears in person or communicates to the court through his agent and satisfies the
court that he is prepared to perform his conjugal duties, the court shall set aside the
said decree and the marriage is not dissolved.
2. Husband's Failure to Maintain the Wife for Two Years : Section 2(ii), if the
husband has neglected or failed to provide maintenance to the wife for two (or more)
years. Failure to maintain the wife need not be wilful. It may be due to poverty, weak

- 27 -
health, loss of work, imprisonment or any other cause. Even if the wife is rich, she is
entitled to maintenance.
It is to be noted that husband's obligation to maintain his wife is subject to wife's own
performance of matrimonial obligations. Therefore, if the wife lives separately without
any reasonable cause, she is not entitled to get judicial divorce on the ground of
husband's failure to maintain her because her own conduct disentitles her for
maintenance.
3. Imprisonment of the Husband for Seven Years : Section 2 (iii), if the husband has
been sentenced into imprisonment for a period of seven years or more, no decree
can be passed on this ground unless the sentence has become final.
4. Failure to Perform Marital Obligations : Section 2(iv), if any husband fails to
perform his marital obligations for a period of three years without any reasonable
excuse. The Act does not define marital obligations but for the purpose of this clause
only conjugal obligation may be taken into account.
5. Husband's Impotency : Section 2(v), a wife has to prove (i) that the husband was
impotent at the time of the marriage and (ii) that he continues to be impotent till the
filing of the suit. But before passing a decree of divorce, the court is bound to give to
the husband one year's time to prove his potency provided he makes an application
for it, if he is successful in proving, divorce cannot be passed but if he fails, marriage
will be dissolved.
6. Insanity, Leprosy or Venereal Disease : Section 2(iv), if the husband has been
insane for a period of two years or is suffering from leprosy or a virulent venereal
disease. It is to be noted that leprosy and virulent venereal diseases need not be two
years old, it may be even recent.
7. Option of Puberty by Wife : Section 2(vii), any wife whose marriage was contracted
by her father or any other guardian before the age of 15 years can repudiate her
marriage before attaining the age of 18 years, provided the marriage has not been
consummated.
8. Cruelty by the Husband : Section (viii) if the husband treats his wife with cruelty,
that is to say–
(a) Habitually assaults her or makes her life miserable by cruelty or bad conduct
even if such conducts does not amount to physical ill-treatment.
(b) Association of the husband with woman of evil repute or that he leads an
infamous life.
(c) The husband attempts to force his wife to lead an immoral life.
(d) The husband disposes off her property or prevents her from exercising her
legal right over it.
(e) The husband obstructs her in the observance to her religious profession or
practice.
9. Any other ground which is recognised as valid for the dissolution of marriage under
Muslim Law – Section 2(ix).
This clause covers the divorces by Ila, Zihar, Khula, Mubarat and Tafweez. Imputation of
unchastity or a false charge of adultery against the wife (lien) is also a good ground for the
dissolution of her marriage.
IMPORTANT QUESTIONS
Q.1 Define the concept of marriage (Nikah) according to Muslim Law.
Q.2 What is the nature and object of Muslim Marriage?

- 28 -
Q.3 Is marriage according to Mohammedan Law a civil contract and not a sacrament?
Discuss.
Q.4 What are the essentials of a Muslim Marriage? What marriages are prohibited under
Muslim Law?
Q.5 What is option of puberty (Khar-ul-Bulugh)?
Q.6 How many types of marriages are recognised under the Muslim Law?
Q.7 What is Muta Marriage?
Q.8 Define Dower (Mahr) and their kinds.
Q.9 Discuss the Muslim wife's rights and remedies on non-payment of dower.
Q.10 What are the different modes of divorces known under the Muslim Law?
Q.11 On what grounds a Muslim wife can obtain a decree for judicial divorce?

- 29 -
UNIT - III
ACKNOWLEDGEMENT OF PATERNITY

Parentage: Parentage is the legal relation between a child and the parents. The mother and
father of a child called the parents of the child. These legal relationships are associated with
certain rights and duties, such as, mutual rights of inheritance, maintenance and
guardianship.
Maternity, How Established : The maternity, a relation of child and his mother is
established under Sunni Law, in the woman who gives birth to the child irrespective of
whether the birth was the result of a wedlock or Zina (adultery) and such child is entitled to
inherit the mother's properties. On the other hand under Shia Law, mere birth is not sufficient
to establish maternity, the child must be the result of a lawful marriage and such child cannot
inherit the mother's property.
Paternity, How Established : The paternity, a relation of child and his father, cannot be
established by fact. It can only be established by marriage with the mother of the child. The
marriage may be either valid or irregular but it must not be void. Maternity is fact whereas
paternity is a presumption. If paternity is established the child is to be legitimate.
An illegitimate child has only maternity and no paternity under Sunni Law on the other hand
such child has neither paternity nor maternity under Shia Law.
Legitimacy : A child to be known as legitimate must be the result of lawful wedlock. Muslim
Law insist on the existence of a valid marriage between the begetter and the bearer of the
child at the time of its conception. The main point in the case of legitimacy of a child is
marriage between its parents.
The Privy Council held in the case of Habibur Rahman Chowdhari v Altaf Ali Chowdhari1
A son to be legitimate must be the offspring of a man and his wife or of a man and his slave,
any other offspring is the offspring of the gina, that is, illicit connection, and cannot be
legitimate.
Therefore, under Muslim law, direct or indirect marriage between the father and mother of
the child can establish the legitimacy of a child. If no direct proof, the existence of a lawful
marriage may be presumed by–
(i) a prolonged cohabitation of a man and a woman(not prostitute);
(ii) a man acknowledges a woman as his wife;
(iii) that man acknowledges himself as father of a child.
In Sadiq Husain v Hashim Ali2 – An acknowledgement cannot legitimate a child who is
proved to be illegitimate.
Presumption of Legitimacy under Islamic Law :
(i) A child born within six month of the marriage is illegitimate unless the father
acknowledges it.
(ii) A child born after six month of the marriage is presumed to be legitimate, unless the
putative father disclaims it by lian.
(iii) A child born after the dissolution of marriage is legitimate if born–
(a) Under Shia law, within 10 months.

1
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.

- 29 -
(b) Under Hanafi Law, within 2 years.
(c) Under Shafie Maliki Law, within 4 years.
These rules have now become outdated because Islamic law of the presumption of
legitimacy is not applicable in India.
The Present Law of Legitimacy : In India, the conclusive proof of the legitimacy of a child
(whether Muslim or Non-Muslim) is determined under the provisions of the Indian Evidence
Act, 1872–
(i) that any person born during the continuance of a valid marriage between his mother
and any man;
(ii) the person born with in 280 days after the dissolution of marriage, the mother
remaining unmarried.
Note : Unless it can be shown (in both the cases) that the parties to the marriage had no
access to each other at any time when the person could have been begotten.
Difference Between Present Law and Islamic Law :
(i) Under Muslim law, a legitimate child should not only be born but also be conceived
during a valid marriage while under the Evidence Act, a child is presumed to be
legitimate even if it is born the next day after the marriage unless it is shown that
parties could not have access to each other when it could have been begotten.
(ii) Under Muslim Law a child born within 2 years (or in 4 years under Shafie & Maliki
schools) after the dissolution of the marriage may be legitimate whereas in Evidence
Act a child born after 280 days can never be treated as legitimate.
Acknowledgement of Paternity (Ikrar-e-Nasab) : Where the paternity of a child, i.e. its
legitimate descent from its father, cannot be proved by establishing a marriage between its
parents at the time of its conception or birth, such marriage and legitimate descent may be
established by acknowledgement. Acknowledge here means a declaration ascertaining the
paternity where, although the marriage exists but the child's paternity is doubtful because no
direct proof of marriage. An acknowledge need not be express, it may be presumed from the
fact that one person has habitually and openly treated another as his legitimate child. The
child may be a son or a daughter.
Muhammad Allahdad Khan v Muhammad Ismail3 : The father of Allahdad Khan, a Sunni,
died leaving behind two sons and three daughters. Allahdad filed a suit to be the eldest son
of the deceased and was therefore entitled to a 2/7 of the share in the estate. The defence
was that the plaintiff was only step-son of father having been born of their mother before she
married their father, the deceased. The plaintiff contended that even if he failed to prove the
son of the deceased but he had been acknowledged as the son of deceased on several
occasions. Justice Mahmood, held that the plaintiff had established himself as the legitimate
son of the deceased and was, therefore entitled to succeed to him.
Conditions of a valid acknowledgement : The paternity of a child will be established in a
man, if the following seven conditions are fulfilled–
1. Intention to Confer Legitimacy : The acknowledgement must not be merely of
sonship, but of a legitimate sonship. Mere casual acknowledgement, not intended to
confer the status of legitimacy, will not be a legal acknowledgement.
2. Age of the Acknowledger : The age of the parties must be such that they may be
father and son, i.e. the acknowledger must be at least twelve and a half years older
than the person acknowledged.

3
1LR (1987) 10 All. 289.

- 30 -
3. Child of Others : The child so acknowledged must not be known to be the child of
another.
4. Person Acknowledged Should Confirm Acknowledgement : The acknowledged
person must believe himself (or herself) to be the acknowledger's child and the child
must verify (or at least must not repudiate) the acknowledgement.
5. Legal Marriage Possible Between Parents of the Child Acknowledged : The
parents of the child acknowledged must not be in any prohibited relationship (either
by consanguinity, affinity etc). The marriage should be possible at the time when the
child was begotten.
6. Competency of the Acknowledger : The acknowledger must possess the legal
capacity for entering into a valid contract, that is, he should be adult and sane.
7. Offspring of Zina : The child acknowledged must be the result of lawful wedlock,
that must not born either without marriage, adultery, of a void marriage etc.
Legal Effects of Acknowledgement :
1. By acknowledgement, the child becomes the legitimate issue and its paternity is
established.
2. On being legitimate issue, the child is entitled to inherit the properties of the
acknowledger, its mother as well as of other relatives.
3. Acknowledgement also establishes a lawful marriage between the child's mother and
the acknowledger. The child's mother gets the status of the wife of the acknowledger
and she is also entitled to inherit the properties of her husband (acknowledger).
GUARDIANSHIP (WILAYAT)
The term 'Guardian' as defined by the guardians and wards Act 1890 as- a person having
the care of the person of a minor or of his properties or of both his person and his property,
and no doubt any person having right and duty of disposing of a male or a female in
marriage may be said to have, for that limited purpose, the case of his or her person. The
term guardianship (wilayat) connotes the guardianship of a minor.
Who is a Minor : Law prescribes certain age-limit before which a person is said to be a
minor and after which is called a major. Under Muslim Law, the age of majority is prescribed
by two ways–
1. The Classical Muslim Law : A minor is one who has not attained the age of puberty.
Puberty and majority are same and one presumed to have been attained on the
completion of the fifteenth years but only in matters relating to marriage, divorce and
dower.
2. Statutory Law :
(a) A person becomes major on attending the age of eighteen year under the
Indian Majority Act, 1875 in respect of all matters except marriage, dower and
divorce.
(b) Where a Muslim body or property is within the supervision of the court of
wards, the minority of that child goes upto 21 years.
(c) Where a Muslim wants to file a suit in court of law in matters of marriage,
divorce and dower, the age of majority is eighteen years (not fifteen years)
before the age of eighteen years he cannot file a suit without the next friend.
A minor is supposed to have no capacity to protect his or her own interests. Law therefore,
requires some adult person to protect minor and to do everything on his (her) behalf. A
person who is authorised by law to protect the minor's body or property is called a guardian.

- 31 -
Kinds of Guardianship : Mohammedan law recognizes three kinds of guardianship in
matters relating to–
Guardianship

In marriage (Jabar) of property the person of the minor (Nafs)

Dejure Defacto Certified


1. Guardianship in Marriage (Wilayat-e-Jabar/Nikah) : A Muslim child of either sex
who has not attained the age of puberty is incompetent to contract a marriage. If
such marriage is contracted by a minor, is a nullity. But a minor can be validly
contracted in marriage by his or her guardian. The order of guardianship for the
purpose of marriage is as follows–
(i) Father.
(ii) The father's father, how highsoever.
(iii) Full brother and other paternal relatives, in the same order as for inheritance.
(iv) Mother.
(v) Maternal relations, as maternal uncle (mama) or aunt and other maternal
relations within the prohibited degrees.
(vi) The Quzi or the court.
Under Shia law, only the father and failing him the father's father how highsoever is
recognised as guardian. A marriage contracted by other person is wholly ineffective,
unless it is ratified by the minor on attaining majority.
Effect of Apostasy on Guardianship for Marriage : According to the strict
Mohammedan law an apostate (i.e. a person who has renounced the Muslim religion)
has no right to contract his infant Muslim child. But the Caste Disabilities Removal
Act, 1850, has abrogated this rule of Mohammedan law, according to which no law or
usage can inflict on any person who renounces his religion, any forfeiture of rights or
property. The power to contract a minor in marriage is a right within the meaning of
the Act, and it is not forfeited by conversion from Islam.
(Gul Muhammad v Mussammat Wagir4
2. Guardian of the Person of the Minor (Wilayat-e-nafs) : Guardian of the minor's
person means an overall supervision of the minor's personality during its minority, is
called Wilayat-e-nafs. On the other hand custody of the child (Hizanat) simply means
a physical possession of the child upto a certain age, because except her, no one
else can nurse and handle a child during its infancy. But her custody of the child is
subject to the supervision of the father who as a legal guardian, is under an
obligation to provide means for upbringing of the child.
Mother's Right of Custody of the Child (Hizanat) : This rule is based on the
presumption that a mother is obviously the best person in the world to provide natural
love and affection to a child which he requires during its infancy including its
dependence for feeding. Nature itself has given to the mother the custody of her
child's embryo even before it comes in the worldly existence.
Under Sunni law a mother has the custody of her male child until he has attained the
age of seven years and of her female child until she completes the age of puberty.

4
(1901) 3 Punj. Rec. 191.

- 32 -
Under Shia law she has the custody of her male child upto the age of two years and
the custody of female child till the age of seven years. The right continues even after
she is divorced. Enamul Haque v Bibi Taimunnisa5
A mother is a defacto guardian so she has no right to execute a waqf on behalf of the
minor. The mother's right is not lost even if she ceases to be Muslim. Zaynab V Md
Ghouse6
On being failed the mother the custody of a boy or a girl goes to the following female
relatives in the order given below–
(a) Mother's mother how highsoever.
(b) Father's mother how highsoever.
(c) Full sister
(d) Uterine sister
(e) Consanguine sister
(f) Full sister's daughter
(g) Uterine sister's daughter
(h) Consanguine sister's daughter
(i) Maternal Aunt
(j) Paternal Aunt.
This right of mother or other relatives can be lost if–
(a) She leads an immoral life.
(b) She neglects to take proper care of the child
(c) She marries a person not related to the child within prohibited degrees.
(d) During the subsistence of marriage, she goes and resides at a distance from
the father's place.
Father's Right of Custody of a Child : Under Sunni law the custody of a boy over 7
years and of an unmarried girl who has attained puberty while on the other hand
under Shia law the custody of a male child over 2 years and an unmarried girl of 7
years or more.
In default of the mother and other female relations the right of custody goes to the
father and others as follows–
(a) Father
(b) Father's father
(c) Full brother
(d) Consanguine brother
(e) Full brother son
(f) Consanguine brother's son
(g) Full brother of the father
(h) Consanguine brother of the father

5
AIR (1967) A.P. 344.
6
AIR (1952) Mad. 284.

- 33 -
(i) Son of father's full brother
(j) Son of father's consanguine brother
Provided that no male is entitled to the custody of an unmarried girl, unless he
stands with in the prohibited relations to her.
Under Shia law, failing the mother the father or father's father is entitled to the
custody of the child. It is doubtful who be the guardian failing the father's father.
The husband is not entitled to the custody of his minor wife unless she attains
puberty.
3. Guardianship of Minor's Property : If a minor possesses any property either
movable or immovable, a guardian is required to manage it. Muslim law prescribes
certain persons in an order of preference who can be guardian of a minor's property.
(a) Legal or Natural Guardian (de jure) :
(i) The father
(ii) The executor appointed by the father will
(iii) The father's father
(iv) The executor appointed by the will of the father's father.
Thus, mother, brother, uncle etc are not entitled as of right to be the legal
guardians of the property of the minor. But mother, brother, uncle etc. may be
appointed as an executor or executrise by the father or father's father and
they will have the same power as possessed by father or father's father
himself.
Power of Legal Guardians Regarding Immovable Property : A legal
guardians has a very wide power to deal with movable property while
regarding immovable property he has a very limited right of transfer.
A legal guardian may alienate (sale) the immovable property of the minor only
in the case of urgent necessity like–
(i) When there are debts of the deceased, and no other means of paying
them.
(ii) When he has no other means of livelihood and sale is absolutely
necessary for his maintenance.
(iii) Where by sale, double price can be obtained.
(iv) Where the expenses exceed the income of the property.
(v) When the property falling into decay.
(vi) Where the property is in the hands an usurper (who has wrongfully
assumed its possession) and the guardian has a reasonable belief that
the property cannot be recovered from such person.
(vii) Where there are legacies to be paid, and no other means of paying
them.
(b) Guardian Appointed by the Court (Certified) : In the absence of any legal
guardian, the court may appoint a guardian for the protection and preservation
of the minors property. A guardian appointed by the court may alienate the
movable or immovable property of his ward. However, immovable property
can be alienated only in the case of necessity, and the guardian must also
obtain the previous permission of the court. Without such permission, he
cannot either mortage or charge, or transfer by sale, gift, exchange or

- 34 -
otherwise, any part of the property. But he can lease any part of such property
without the court permission (i) for a term not exceeding five years, or (ii) for
more than one year beyond the date on which the minor will cease to be a
minor, whichever is shorter.
A legal guardian has much power to sell or pledge regarding movable
property for the minor's imperative necessities.
(c) De Facto Guardian : A defacto guardian is a person who is neither a legal
guardian, nor a guardian appointed by the court but has assumed the powers
and functions of a guardian. Usually defacto guardians are relatives of the
minor except father and father's father. A defacto guardian is no guardian in
the eyes of law of law and is simply an unauthorised person who deals with
the minor's properties.
An alienation of minor's immovable property without the authority of the court by a
defacto guardian is absolutely void on the other hand, a defacto guardian has the
same power to sell and pledge movable property, as a legal guardian possesses
himself.
IMPORTANT QUESTIONS
Q.1 Define the acknowledgement of legitimacy. Explain the conditions of a valid
acknowledgement.
Q.2 What are the various kinds of guardians recognised under Muslim Law?
Q.3 What are the powers of the guardians of a Muslim minor in respect of his person,
property and marriage?
Q.4 What is Hizanat? When mother right to the custody is lost?

- 35 -
UNIT - IV
WILLS

A person may transfer of ownership in a property by two ways– first during his lifetime like
gift and second after his death, called will. A gift takes effect immediately after is completion
whereas a will operates only after the death of the transferor.
Will is the Anglo-Mohammedan term for its Arabic equivalent wasiyat and the document
embodying the will is called wasiyatnama.
Definition : Will signifies the last desire of a person regarding the distribution of his
properties after his death, which is ambulatory and revocable during his life.
Indian Succession Act, 1925, Section 2(f)– Will is a legal declaration of the intentions of a
Muslim with respect to his property, which he desires to be carried into effect after his death.
Tyabji : Conferment of right of property in a specific thing or in a profit or advantage or in a
gratuity to take effect on the death of testator.
No formality is required for making a will, it may be either orally or in writing. No need to be in
writing with any particular form of words, an intention is sufficient for making a will. No
specific number or class of witnesses need be present. Even if it is in writing, need not be
signed by the testator or attested by a witness. The burden of establishing an oral will is
always a very heavy one on those who assert, it may be proved with the utmost precision,
and with every circumstance of time and place.
Note : The person who executes the will is called legatos or testator and in whose favour it is
made is called legatee or testatrix.
Requisites of a Valid Will :
1. The testator must be competent to make will.
2. The legatee must be competent to take the legacy or bequest.
3. The subject of bequest must be a valid one.
4. The bequest must be within the limits imposed on the testamentary power of a
Muslim.
1. Testator and His Competence : Every major Muslim (above 18 years) of sound
mind has a capacity to make a will. A minor is incompetent to make a will but a will
made by a minor may subsequently be validated by his ratification on attaining
majority. A will procured by undue influence, coercion or fraud is not valid, and the
court take great case in admitting the will of a pardanashin lady. If the legator was
Muslim at the time of making the will but has subsequently renounced Islam and at
the time of his death he was a non-Muslim, the will is valid. Where a Muslim marriage
took place under the Special Marriage Act, 1954, the will executed by him is
governed by the provision of the Indian Succession Act, 1925.
Suicide Attempt by Legator : Under Sunni Law the will of a person committing
suicide is valid. While Under Shia Law a will made by a person who has done any act
towards the commission of suicide is not valid, but if the will is made before the doing
of any act towards the commission of suicide, it is valid.
2. Legatee and His Competence : Any person capable of holding property (Muslim,
non-Muslim, insane, minor etc.) may be the legatee under a will provided he/she is in
existence at the time of the death of the testator.
Thus sex, age, creed or religion is no bar to the taking of the bequest. A bequest may
be validly made for the benefit of an institution. A bequest for the benefit of a religious

- 36 -
or charitable is valid. The only requisite is a general intention to charity e.g. where a
bequest is made in the way of God, it is valid and the legacy must be spent on good
and pious objects. A class of persons (all the poor of this town) may be made a
legatee. A will may be made in favour of a child in mother's womb but subject to two
conditions.
(i) The child must be in existence in mother's womb at the time of testator's death.
(ii) The child in mother's womb must be born alive within six months from the date
of testator's death.
According to Fygee – a child in mother's womb may be born in any time of its natural
course.
According to Sunni Law – a bequest to a person who caused the death of the
testator whether intentionally or unintentionally is invalid while under Shia law – it is
invalid only if it is caused intentionally and not if accidentally or unintentionally.
Where the legatee dies before the legator's death, the will fails; it is called the lapse
of legacy.
3. Subject of Will and Its Validity : The testator must be the owner of the property to
be disposed by will, the property must be capable of being transferred (movable or
immovable, corporeal or incorporeal) and the property must be in existence at the
time of testator's death, it is not necessary to be in existence at the time of making of
will. A bequest cannot be made of anything to be performed or produced in future.
A bequest has to be unconditional. If a condition is attached, say the legatee shall not
alienate the subject of legacy. The condition is void and the bequest is effective
without condition likewise a bequest in future (intended to take effect not immediately
on the death of the testator but at a later date) is void, and so does a contingent
bequest (bequest to take effect on the happening or non-happening of an uncertain
event).
4. Testamentary Power and Its Limits : A Muslim does not possesses an unlimited
power of making disposition by will. There are two-fold restrictions on the power of a
Muslim to dispose of his property by will, which are in respect of the person in whose
favour the bequest is made and to the extent to which he can dispose of his property.
(i) No Muslim can make a bequest of more than one-third of his net assets after
payment of funeral charges and debts. If the bequeathed property exceeds
one-third the consent of other heirs is essentials (Sunni and Shia laws). A
bequest of entire property to one heir to the exclusion of other heirs is void.
(Husain Begum V Mohd. Mehdi1.
(ii) In respect of bequest of one-third to an heir, the consents of other heir is
required in Sunni Law, but not in Shia law. In case of a non-heir the consent
of heirs is not required in both.
(iii) The above rule of bequeathable one-third will not apply to a case where the
testator has no heir. The right of government to take the estate of an heirless
person will not, in any way, restrict the right of the person to make a
disposition of his property, as he likes. Thus, government is no heir to an
heirless person.
(iv) The rule of one-third limit will not apply if a Muslim marries under the Special
Marriage Act, 1954, because than he has all the powers of a testator under
the Indian Succession Act, 1925.

1
(1927) 49 All. 547.

- 37 -
Bequeathed Heir Non-Heir
Property
Sunni Shia Sunni Shia

Upto one third Valid only if Valid without Valid without Valid without
consent of consent of consent of consent of
heirs heirs heirs heirs

In excess of Valid only if Valid only if Valid only if Valid only if


One-third consent of consent of consent of consent of
heirs heirs heirs heirs
Ex.- A, a Muslim dies leaving behind him property to Rs.4000/- this funeral charges are
Rs.100/- and his debts Rs.900/-. The remaining money is Rs.3000/- and 1/3 of it is Rs.1000/-
which may be the subject of will. The remaining two-third must pass to the heirs of the
testator according to law.
Note : A bequest of more than 1/3rd of the testator's property is valid if the other heirs give
their consent to it.
According to Sunni Law, the consent must be given after the death of the testator. Consent
given during his lifetime is of no legal effect. Under Shia law, consent may be given either
before or after the death of the testator.
Revocation of Will : A will may be revoked by a testator any time during his life time. He
has every right to repudiate a will before it begins to operate. Revocation may either be of
the whole bequest or only of a part of it. A will may be revoked either expressly or impliedly.
GIFT (HIBA)
Under Muslim Law, a person is entitled to make a gift of property to other one during his life
time or he may transfer it by way of will which take effect after his death. The first one is
called a disposition inter vivos and latter is a testamentary disposition. By will a Muslim can
give only 1/3 of his property while in gift he is entitled to give away the whole of his property.
Definition :
Mulla2 : A gift (hiba) is a transfer of property, made immediately, and without any exchange,
by one person to another, and accepted by or on behalf of the latter. It is thus conferring of
property without consideration.
Hedaya3 : Hiba is an unconditional transfer of ownership in an existing property, made
immediately and without any consideration.
(i) The word hiba, literally means the donation of a thing from which the donee may
derive a benefit, the transfer must be immediate and complete.
(ii) A gift under Muslim law is a–
(a) Voluntary, unconditional and immediate transfer of,
(b) Certain specified existing property (movable or immovable).
(c) Without any exchange or consideration (ewaz)
(d) Accepted by or on behalf of the donee.

2
Mulla, op, Cit 134.
3
Ibid.

- 38 -
Requisites of Gift : The requisites or essentials of a valid gift are follows–
1. Parties to a Gift :
Who May Give :
(i) The Donor : The person who makes the gift i.e. donor must be a major of
sound mind, and understanding of the transaction, must have ownership over
the property to be transferred by way of gift. It must be his intentional,
voluntary and free act untrained by fraud, coercion and undue influence.
If a person was in a position to dominate any other person (e.g. fiduciary
relationship – master and servant), the transaction made by such person will
carry no force unless the donee satisfies the court that donor acted
independently. A gift by pardanashin lady is valid, but in case of a dispute the
burden of proving that it was not induced by undue influence, lies on the
donee. The condition is based on the special protection extend by law to the
weak, ignorant and infirm (Sonia Parshni v Sheikh Maula Baksh4. A person in
insolvent circumstances can make a gift provided he has a bona fide intention
to give and the act is not merely intended to defraud the creditors.
(ii) Who May Receive – The Donee : A gift may be made in favour of a Muslim,
non-Muslim, heir, non-heir, minor, insane or a juristic person (e.g. mosque).
Thus any person capable of holding property may be the donee of a gift. Sex,
age, creed or religion is no bar to the taking of a gift. However, the donee
must be in existence at the time of making a gift. Thus, a gift to an unborn
person or a dead person is void.
Note : Gift to a minor or insane person must be accepted by their guardian i.e.–
(i) Father (ii) Father's executor (iii) Paternal grand-father (iv) Paternal grand-father's
executor.
2. Subject of a Gift : There is a general principle, that the subject of a gift can be–
a. anything over which dominion, or the right of property may be exercised; or
b. Anything which can be reduced to possession; or
c. anything which exists either as (i) a specific entity, or (ii) as an enforceable
right; or
d. anything which comes within the meaning of the world mal.
A property in order to be a valid subject of gift must satisfy the following conditions–
a. It can be designated under the term mal.
b. It must be in existence at the time when the gift is made, e.g. the gift of
anything to be produced in future is void.
c. The donor must possess it e.g. gift by a trespasser where the donee cannot get
possession is void.
Muslim law does not make a distinction between ancestral or self-acquired property
for the purposes of a gift. The property can be movable or immovable, corporeal or
incorporeal. The following property can be gifted– money, Mahr (dower), promissory
notes, governments securities, insurance policy, copyright, goodwill, right to
repayment of a debt or equity of redemption, right no amounting to full ownership
(e.g. right to collect rent and profits), etc.

4
AIR (1955) Cal 17.

- 39 -
A gift will not be valid without delivery of possession. Therefore, a Muslim cannot
make a gift of services, but a gift can be made of an actionable claim.
If the property is indivisible, a gift to two or more donees will be always valid. On the
other hand if it is divisible and a gift is made to two or more persons without dividing
the property the gift is irregular. But it may be rendered valid if separate possession
is taken by each donee or the portion of the property is given to him. Oral gift is as
effective as one in writing provided that it fulfils the conditions of a valid gift under
Muslim law.
3. Extent of Doner's Right to Gift – General Rules : The general rule is that the
power of a doner to gift his property is unlimited and unrestricted. He is authorised
not only to give the whole of his property but also to any portion he likes irrespective
of the fact that the disposition of property will adversely affect on the expectant heirs
right to inherit the property. However, there is one exception to the above rule, i.e. gift
made during death illness.
4. Formalities and Modes of Gift : The most important requisite of hiba is that it must
satisfy the rules laid down by Muslim law for making a gift. Mere presence of a donor
and a donee, their ability to make and accept the gift and the existence of a valid
subject of gift will not have the effect of completing the transaction. It will have to
satisfy certain formalities, which in facts are the real tests of the validity of a gift
transaction. There are the follows–
(i) Declaration of Gift : There must be a clear and unambiguous intention of the
donor to make the gift. When there is no clear or real or bonafide intention on
the part of the person making the gift, the alleged gift will be void. There must
be the bona fide intention of divesting himself in prasenti of his proprietary title
in the property gifted by the donor.
(ii) Acceptance : Gift must be accepted either by donee himself or on behalf of
donee. It may be either actual or constructive according to the circumstances
of the case. It may be express or implied. Donee must be a living person on
the date of the transfer.
(iii) Delivery of Possession : Mohammedan law of gifts attaches great
importance to possession or reisin of the property gifted, especially of
immovable property. The other elements of hiba will have no legal effect
unless they are accompanied by delivery of possession
Thus, a registered gift-deed will be ineffective without delivery of possession.
However, there are certain exception to this rule i.e. gift without actual delivery of
possession is valid are follows–
(a) Gift by father to his minor or lunatic son (or daughter) or by a guardian to his
ward.
(b) When both donor and donee reside in the same house which is to be gifted.
(c) Gift by husband to wife and vice versa.
(d) Gift by one-co-sharer to another.
(e) Part delivery.
(f) Where the donee is already in possession.
Void Gifts : The following gifts cannot be validly made, they are void–
(i) Gift to unborn person.
(ii) Gift to a dead person.

- 40 -
(iii) Gift in future
(iv) Contingent gift
(v) Gift with a condition.
Note : The provision of gift under T.P. Act does not apply on the gift made under Muslim law.
Gift of Mushaa : Mushaa is an Arabic word derived from 'saayee or shuyva which literally
means confusion. Under Muslim law Mushaa signifies an undivided share in a joint property.
It is of two kinds–
(i) Mushaa in a Property Incapable of Division : A gift of an undivided share in a
property which is not capable of division is valid.
Ex.– A, who owners a house, makes a gift to B of the house and of the right to use a
stair-case by him jointly with the owner of an adjoining house. The gift of A's
undivided share in the stair-case, though it is a gift of a mushaa, is valid, for a stair-
case is not capable of division.
(ii) Mushaa in a Property Capable of Division : If the property is capable of division
the gift of mushaa will be irregular not void under Hanafi Law. It can be rendered
valid by subsequent partition and delivery. However, in certain cases a gift of
mushaa even in a property, capable of division is valid. There case are as follows–
(a) Gift by one heir to another.
(b) Gift of a share by a co-sharer in a Zamindari or Talaqua.
(c) Gift of share of land in a company.
(d) Gift of a share in the freehold property.
(e) Gift to two or more persons.
According to Shia law gift of mushaa is valid in each case (i.e. whether the property is
divisible or not) provided the donor gives to the donee possession of the property by
vacating and permitting the donee to control it.
Revocation of Gift : Under Muslim law, all voluntary transactions are revocable. So a gift
may be revoked of two kinds–
1. Before Delivery of Possession : The gift is not complete and the donor (not his
heir) has unrestricted right to revoke it. A mere declaration to revoke the gift is
sufficient.
2. After Delivery of Possession : The gift is complete and it cannot be revoked by
donor through declaration.
In Sunni law, it is possible only by the intervention of the court or by the consent of
the donee.
But there are certain cases in which gift can not be revoked even with the
intervention of the court–
(i) A gift by husband to wife or by wife to husband.
(ii) When the donor or the donee is dead.
(iii) Where donor and donee are within the prohibited relationship i.e. brother and
sister.
(iv) When the subject of the gift had been transferred by the donee to other one,
by sale, gift and otherwise.
(v) Where the property is lost or has been destroyed.

- 41 -
(vi) Where the property given is changed beyond identification.
(vii) Where the value of property increases subsequently and the increment is
inseparable.
(viii) When the gift has been made to secure religious or spiritual benefits
(sadaqah).
(ix) When anything has been accepted in return (Hiba-bil-iwaz).
Note : Under Shia law, a gift by husband to wife or vise-versa, is revocable even
after the delivery of possession.
Kinds of Gift : Various kinds of gifts are recognized under Muslim law. They are as follows–
1. Hiba : It is absolute gift of the corpus of the property without any return. It satisfies all
the essentials of a gift laid down by Mohammedan law.
2. Hiba-bil-iwaz : Hiba means gift and iwaz means consideration so its means gift for
consideration already received. The adequacy of consideration is not material. It is a
sale from its inception, and delivery of possession is not necessary to its validity.
There must be payment and delivery of consideration (iwaz) on the part of the donee.
Thus, if A says to B, I have given this book to you in consideration of your paying me
a rupee, it is a hiba-bil-iwaz.
It can be revoked by the donor even after the delivery of possession of hiba but
before delivery of iwaz. It becomes irrevocable when hiba is deliverd and the donor
has accepted the iwaz.
Hiba-bil-iwaz was introduced in India by Muslim lawyers as a device for effecting a
gift of mushaa in property capable of division. Unlike hiba, such a gift of mushaa is
lawful in hiba-bil-iwaz. Where hiba-bil-iwaz affects the immovable property of the
value of a hundred rupees and above, it must be effected by a registered instrument,
as required by Section 54 of the T.P. Act.
A Muslim dies leaving two brothers and a daughter. Subsequently, each brother
relinquishes his share in favour of the daughter in consideration of the other doing so.
It is also hiba-bil-iwaz. Similarly, where a Muslim executed a deed in favour of his
wife, whereby he granted certain immovable property to her in lieu of her dower is
case of hiba-bil-iwaz. (Md. Esuph v Pattamsa Ammal)5
A Muslim gifts certain property to his fiancee in consideration of her promise of
marriage, and subject to the condition that debts due on the property be discharged
by her. The transaction is valid [Ismail Beevi v Sulaikkal Beevi6].
3. Hiba-ba-shart-ul-iwaz : Shart means stipulation, it is a gift made with an express
stipulation (shart) for a return or cosideration voluntarily. It is paid by the donee
because payment of consideration is a prior condition (shart) for the gift. In hiba-bil-
iwaz there is no such express stipulation. In it, as in hiba, delivery of possession is
necessary. It is revocable, but it becomes irrevocable on delivery by the donee of the
iwaz (consideration) to the donor. The transaction when completed by payment of
iwaz, partakes the character of a sale.
Sadaqah : Where the object of the donor is to acquires merit in the eyes of the lord and a
recompense in the next world, the gift is called Sadaquah. It is a religious motive. Like hiba,
it is not valid unless accompanied by delivery of possession. However, it need not be
expressly accepted. Further unlike hiba, it cannot be revoked, whether made to a rich or
poor man. Menas it is irrevocable, once made it cannot be revoked subsequently.

5
(1900) 1LR 23 Mad 70.
6
(1967) A.M. 250.

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Ariyat : The grant of a licence (without consideration) revocable at the grantor's option, to
take and enjoy the usufruct of a thing for a definite period is called Aritat. The four essentials
of an ariyat are–
(i) It can be revoked.
(ii) Ownership of property is not transferred.
(iii) It must be for a definite period.
(iv) It does not devolve upon the heir of the donee on his death.
Marz-ul-Maut (Death Illness) : Marz-ul-maut or death illness is made up of two words– (i)
marz (malady or illness) (ii) maut (death). When a person suffering from a marz, under the
apprehension of death in near future, and which actually results in his death, he is said to be
suffering from marz-ul-maut.
A case in which the patient has become familiarized to his illness, which is not then
accounted as sickness, does not cover the expression of marz-ul-maut.
A gift during marz-ul-maut or a death bed gift, is essentially a gift subject to all condition of a
gift.
However the power of a donor to dispose of his property by a gift during marz-ul-maut is
limited. A death bed gift.
(i) When Made to a Non Heir cannot take effect beyond one-third of his estate after
payment of funeral expenses and debts, unless his heirs give their consent to the
excess taking effect.
(ii) When Made to an Heir is altogether invalid, unless the other heirs consent thereto.
Under the Shia law, a death bed gift holds good to the extent of only one-third of the donor's
estate in spite of delivery of possession prior to his death.
WAQF (TRUST)
Literally meaning of waqf is detention, stoppage or tying up. Technically it means a
dedication in perpetuity of some specific property for a pious purpose or succession of pious
purpose. It is the detention of the property so that its produce or income may always be
available for religious or charitable purpose. Perpetuity is the essence of a waqf.
Definition :
Mussalman Waqf Validating Act, 1913 : Section 2(1) of this Act defines "Waqf" means the
permanent dedication, by a person professing Mussalman faith, of any property, for any
purpose recognized by Mussalman Law as religious, pious or charitable.
Ameer Ali : Waqf is a religious act the effect of which is to tie up the corpus or substance of
a thing, and to leave its usufruct free.
Abu Yusuf : Waqf is the detention of a thing in the implied ownership of almighty of God in
such a manner that its profits may revert to or be applied to the benefit of his creatures.
Waqf is a transfer of ownership without any consideration made generally with religious
motives dedicated to God.
Legal Incidents of Waqf :
1. Perpetuity : Is an essential condition of a walf so that its usufruct is always available
for an indefinite period. Therefore it can not be for a limited period.
2. Irrevocability : According to Abu Hanifa a waqf can be revoked by waqif, unless the
declaration has been confirmed by a decree of a court. On the other hand Abu Yusuf
says that, as the property is deemed to vest in God, the waqif can not revoke it
subsequently. This opinion is followed in India.

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3. Pious or Charitable Use of Usufruct : The produce and benefits of the waqf
property are utilised for such purposes which are recognised as religious, pious or
charitable under Muslim Law.
4. Absolutenses : The settlement of the property in waqf is absolute. A conditional or
contingent waqf is void.
5. Inalienability : As the property is vests in the implied ownership of God, no human
being can alienate it for his own purpose. Therefore, waqf property cannot be sold,
transferred or encumbered. An alienation of the waqf property, except for the
necessities of the waqf and without the cout's permission is void.
Essentials of Waqf : There are some main points of a valid waqf. They are as follows–
1. Permanent Dedication of Property : To be a waqf valid, permanent dedication of
the property (movable or immovable) must take place, to charitable, religious or
pious purposes as understood in Muslim Law. No particular from of words is
necessary for making a declaration of dedication. It may be either oral or in writing.
According to Abu Yusuf a dedication of waqf is complete by mere declaration. Neither
delivery of possession nor appointment of mutawalli is necessary. On the other hand
Imam Mohammad, declarers, that, a waqf is not complete unless there is declaration
coupled with.
(i) appointment of mutawalli; and
(ii) delivery of possession.
In India, the view of Abu Yusuf is followed. Perpetuity is a necessary condition for the
validity of waqf. It is for a limited period (e.g. for 20 years), or for a temporary
purpose, is void. Similarly a contingent or conditional waqf is not valid. The subject of
waqf must be any tangible property (mal) capable of being used without being
consumed. Subject to this, no further restrictions are necessary. This means, a valid
waqf can be created not only of immovable property but also of movables such as,
shares in joint stock companies, promissory notes and even money. (Abdul Sakur v
Abul Bakkar, (1930) 54, Bom. 358).
Hanafi law recognises the following as valid subjects of waqf–
(a) immovable property;
(b) accessories to immovable property;
(c) Quran or other books;
(d) Such other things as it is customary to make the subject of waqf.
Provided always that things that are consumed by use cannot validly be the subject
to waqf i.e. the things must be of reasonable character.
The property to be dedicated must be in the ownership of the dedicator (waqif). One
cannot dedicate another's property of waqf. A waqf-nama, by which immovable
property of the value of Rs.100 or more is dedicated by way of waqf requires to be
registered under the Indian Registration Act, 1908.
2. By a Person Professing Mussalman Faith : A valid waqf can be created by a
person professing Muslim faith and who has attained the age of majority under the
Indian Majority Act, i.e., 18 years and who is of sound mind. Such a person is
competent to dedicate the whole or part of his property.
3. The Object or Purpose of Waqf : The waqf must have an object which (i) must not
fail (ii) must be expressly set forth, and (iii) must be recognised by Muslim Law, as
religious, pious, or charitable. This includes a waqf created in favour of the settloris
family, children and descendants (waqf-ul-aulad).

- 44 -
The purpose of a waqf must not be opposed to the general policy of Islam. The following are
the examples of valid objects of a waqf–
2. Mosques and provisions for Imams to conduct worship.
3. Celebrating the birth of Ali Murtuza.
4. Repairs of Immambaras.
5. Maintenance of Khankahs
6. Burning lamps in mosque
7. Reading the Quran in public places and also at private houses.
8. Maintenance of poor relations and dependants
9. Payment of money to fakirs
10. Grant to an Idgah
11. Grant to colleges and provisions for professors to teach in colleges.
12. Bridges and caravan
13. Distributions of alms to poor persons and assistance to the poor to enable them to
perform pilgrimage to Mecca.
14. Keeping Tazias in the month of Moharram.
15. Camels and Duldul for religions, processions during Moharram celebrating the death
anniversary of the settle and of the members of the family.
16. Performance of ceremonies known as Kadam Sharif.
17. The construction of a cobat or free boarding house for pilgrims at Mecca.
18. Performing the annual Fateha of the members of his family.
19. A Durgah or shrine of a pir which has long been held in veneration by the public.
20. Hospitals, alms-houses, schools, universities, or public liabraries.
Illegal Objects : Where the object of waqf is against the principles of Islam or, is prohibited
in Islam, the object is illegal.
(i) Objects which are against the basic principles of Islam. For example, construction or
maintenance of a temple or, a church or provision for idol worshipping, are un-lawful.
(ii) Construction or maintenance of a gambling-den or a wine shop or a shop for the sale
of pork.
(iii) Benefit for the utter stangers.
(iv) Benefit for the lawyers.
(v) Benefit only for rich people.
(vi) Celebrating death anniversary of the settler or his family members without any
provision for reading of Quran and distribution of alms to poors.
Waqf How Created : A waqf can be created by an act of inter-vivos, will, during death illness
(marz-ul-maut) or by immemorial user like, when a land has been from time immemorial
used for the purpose of a burial ground, it is a waqf by immemorial user.
Mutawalli : Under the Muslim Law, the moment a waqf is created, all rights of property
including ownership is vested in Almighty God. and becomes his property. There must be
some person or a human agency who could look after the decicated property on behalf of
God. The person who supervises or takes over the management of a waqf, is called the

- 45 -
mutawalli. He is merely a superintendent or manager, not the trustee of the property. He has
no beneficial interest rather he is bound to distribute the benefit according to the directions
laid down in the waqf. Besides legal duties, a mutawalli has also the religious and moral
obligation to take care of the waqf property. A mutalli has no power, without the permission
of the court to mortgage, sell or exchange waqf property or any part thereof unless he is
expressly empowered by the deed of the waqf to do so.
Who can be Appointed as Mutawalli : Any person whether male or female of any religion,
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. If religious
duties or spiritual functions are part of the duties of a Mutawalli, a female or a non-Muslim
cannot be appointed as a mutawalli. Ex.- a female or non-Muslim cannot hold the offices of
Sajjadanashin, Khatib, Mujawar of a daragah or an Imam of mosque. (Shahar Bano's case).
A minor or a person of unsound mind cannot be appointed as a mutawalli. But, where the
office of the mutawalli is hereditary, and the person entitled to succession is a minor, the
court may appoint another person to discharge the duties of the mutawalli during the minority
of such person.
Who can Appoint Mutawalli : Generally the mutawalli is appointed by the founder of the
waqf at the time of creation of waqf but he may be appointed by the following, in the given
order–
1. By the Founder : The founder of any waqf is authorised to appoint any person as a
mutawalli including himself to be the first mutawalli of the waqf constituted by him. He
is also authorised to lay down the scheme according to which the subsequent
mutawallis are to be appointed in future.
2. Appointment by Executor : If a waqif dies without appointing any mutawalli and the
waqf deed is also silent about this matter, then the executor of the waqif is entitled to
appoint.
3. Appointment by Mutawalli on Death Bed : Generally an existing mutawalli has no
right to appoint his successor. But, where an existing mutawalli finds that there is no
possibility of appointment of his successor, then he himself can appoint subject to
two conditions.
a. that he is on death-bed and there is no chance of his survival; and
b. that the office of mutawalli would remain vacant if he does not appoint his
successor before his death.
4. Appointment by Court : If no mutawalli is appointed by any of the method, then the
District court, within the jurisdiction of which waqf property is situated, is authorised
to appoint a mutawalli subject to some condition.
a. The court should not as far as possible disregard the directions of the settler. But
the primary duty of the court is to consider the interests of the general public, for
whose benefit the waqf is created.
b. Preference should be given to a member of the settler's family over an utter
stranger.
c. In a contest between settler's lineal descendant and one who is not a lineal
descendant, the court is not bound to appoint the lineal descendant, the court is
free to exercise its discretion.
5. By Congregation : Congregation means assembly of specific group of persons and
a mutawalli's appointment, by this method is possible only in the case of a local waqf
such as mosque or a graveyard for the members of a particular locality.

- 46 -
Power and Duties of Mutawalli : A mutawalli may do all acts that are reasonable and
proper for the protection of the waqf property and for the administration of the waqf under the
circumstances of the case. In these circumstances his position is akin to that to trustee but
he is not the owner of the waqf property. He may employ any agent where necessary or
customary. He can not alienate or charge the waqf property except–
a. by provision in the deed of waqf empowering him to do so;
b. by permission of the court;
c. by reason of any urgent necessity;
with the permission of court a mutawalli may–
(i) borrow money;
(ii) sell, mortgage or dispose of waqf property, in any other way;
(iii) to grant a lease–
(a) for more than three years, where the waqf property is agriculture; and
(b) for more than one year, where the waqf property is non-agriculture.
A mutawalli is perfectly competent to file a suit for protecting and for administering waqf
property.
A mutawalli is entitled to remuneration, if any fixed by the settler. If the amount fixed is too
small, the mutawalli may apply to the court for increasing the allowance.
Removal of Mutawalli : Once a mutawalli is duly appointed, he cannot be removed by the
waqif. But he may be removed by the court in certain circumstances in the larger interest of
the waqf.
1. Where a mutawalli has become insolvent.
2. Mismanagement of the waqf property due to negligence or dereliction of duty.
3. Failure of a mutawalli to perform religious service where it is an essentials part of his
duties.
4. Where the mutawalli utilies the waqf-property or its benefits for his private use.
5. Where the mutawalli applies the income of the waqf property against directions of the
waqf-deed.
6. Where a mutawalli otherwise exceeds his power in dealing with the property or
7. Where the mutawalli suffers from any physical or mental incapacity.
Beside the court a mutawalli may be removed by the waqf board from his office under the
condition mentioned therein.
Kazi : Originally, the Kazi was a judge and a very high judicial officer in the State. With the
advent of the British rule, the Kazi lost their judicial status and became religious priests. In
India the place of Kazi has been taken over by the courts. In modern times, the main function
of the Kazi is to officiate at marriages and supervise talaks and to administration of waqf
property.
Family Waqf (waqf-alal-aulad) : A waqf may either be public or private. A public waqf in
that in which the beneficiaries are public generally. Where the beneficiaries are only the
members of the founder's family or his descendants, the waqf is private or family or waqf-
alal-aulad. Through a family-waqf, the founder may make provisions for maintenance of his
children and descendants of coming generations. Prophet told that "a pious offering to one's
family is more pious than giving alms to beggars. The Supreme Court observed in this
regard that in a waqf-alal-aulad, the ultimate benefit is reserved to God but the property

- 47 -
vests in the beneficiaries and the income from the property is used for the maintenance and
support of the founder and his descendants. It is therefore clear that for the validity of a
family waqf there must also be some charity for others, without which the waqf is invalid.
Takia : Literally means a resting place where a fakir i.e. a holy person who has relinquished
the world and who devotes his time to imparting religious instructions to his disciplines and
others. A takia may become waqf by long use. It is, thus, a religious or quasi-religious
institution and a grant of endowment to the same is a valid waqf. All properties attached to
Takia are inalienable and importable, except with consent of all the parties concerned.
Khankah : A Khankah is a Muslim institution which is analogous in many respects, to a Math
of the Hindus. When a Fakir attains sufficient public importance, and a large number of
disciplines begin to collect around him and lodgment in provided for such disciplines, then
the place is called Khankah. Every Khankah is not a waqf, it may become by endowment or
user.
PRE-EMPTION (SHUFA)
Pre-emption, is Shufa which literally means adding. The right of pre-emption (shufa) is a right
to acquire by compulsory purchase, in certain case, adjacent immovable property in
preference to all other persons. The persons who claims this right, is called a pre-emptor or
shufee.
Ex.– A and B are owners of their houses which are adjacent to each other. B sells his house
to C, who may be a stranger for A. Under this right, A who is a pre-emptor can legally
repurchase that house from C at the same price at which B sold it to C. By this method A
may avoid C form being his permanent neighbour. As a matter of fact, an apprehended
inconvenience which may be caused by a stranger, has been the very basis of this right. The
Prophet is reported to have said that- A neighbour has a right, superior to that of a stranger
in the lands adjacent to his own and if he is absent the seller must wait his return.
The right of pre-emption is in the nature of an easement and is annexed to the land under
Muslim Law.
Definition :
Mulla : The right of pre-emption or shufa, is a right which the owner of an immovable
property possesses to acquire by purchase another immovable property which has been
sold to another person.
J. Mahmood : Pre-emption is a right which the owner of certain immovable property,
possesses as such, for the quiet enjoyment of that immovable 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 latter immovable property is sold to another.
Nature of the Right : Pre-emption is a kind of preferential right which is given to the owner
of a property to purchase another property adjoining to his or of which he is the co-owner.
This right arises only in the case of sale and only when such sale is complete. It does not
arises in case of transfer of immovable property without consideration, such as– gifts,
sadaqa, waqf, inheritance, bequest, lease (even though in perpetuity), conditional sale or in
mortgage (even though it may be by obey of conditional sale)
Pre-emption is a right of re-purchase, is decided by Calcutta and Bombay High Courts, while
Allahabad and Patna High Courts held that it is a right of restitution. The view of Allahabad
High Court has been accepted by Supreme Court in Bishan Singh v Khazan Singh7 that is a
right of substitution not of repurchase.

7
AIR (1958) S.C. 838.

- 48 -
Grounds on Which the Pre-emption Applies : In Digamber Singh v Ahmad8, the Privy
Council held that there are four grounds on which a claim for pre-emption may be based in
India.
1. By statutes : In certain places pre-emption in applied by the Acts of legislature to the
Muslims as well as non-Muslims alike–
(i) Punjab pre-emption Act 1913 (as amended in 1960 and applicable to Haryana
and part of Delhi).
(ii) Agra pre-emption Act, 1922, and the Oudh Laws Acts1876, enforceable in
Uttar Pradesh.
(iii) Bhopal pre-emption Act, 1934, and the Rewa State Pre-emption Act, 1948, in
Madhya Pradesh and
(iv) Rajasthan Pre-emption Act, 1966.
2. By Custom : Where there is no statutory law of pre-emption, the right may be
claimed on the basis of custom and usage, if any, e.g. in Khandesh, Kolaba, Delhi,
Ahmedabad and Malabar.
3. By Contract : This right may be created by contract. even two persons of different
religion may enter into such a contract.
4. By Muslim Law : In the absence of custom or statute regarding the pre-emption, the
right may be claimed under Muslim Law, when both vendor (seller) and the vender
(buyer) are Muslims, on the ground of justice, equity and good conscience.
Under the Muslim Law, non-Muslims are as much entitled to exercise this right as Muslims
by legislation, by custom or by contract.
Classification of Pre-emptors : Who can Pre-empt –
Sunni Law : Under the Sunni Law, this right is available to the following persons–
1. Shafi-i-sharik (co-sharer) : The persons who are entitled to inherit the properties of
a common ancestor are co-sharer, and have the preferential right of pre-emption
against any other class of pre-emptors. A person would not be a co-sharer for the
purpose of pre-emption merely because there is some common burial ground or
chaupal, or same road.
2. The Participators in Immunities and Appendages (Shafi-i-Khalit) : Where two or
more persons enjoy a common privilege e.g. a common right of way or, drainage or
any other common right to use a property, they are participators in immunities (Shafi-
i-Khalit), a person, however, would not become Shafi-i-Khalit merely because he is
only entitled to a right of support from a wall standing on the property, sold or
because he and the vendor are both entitled to draw water from the government
water course. There are three ways in which a person may be considered to be a
Shafi-i-Khalit–
(i) he may be the owner of a dominant heritage;
(ii) he may be he owner of a servant heritage;
(iii) the property sold as also the property of the pre-emptor may be dominant
heritage in respect of a third person's property.
3. The Owner of Adjacent Properties (Shafi-i-jar) : If two properties are adjacent to
each-other, there is a vicinage. The neighbours, who are owners of immovable
properties, constitute a class of pre-emptors, on the basis of vicinage. But this right

8
(1915) 37 All 129 (P.C.)

- 49 -
does not extend to estate of large magnitude and is confined to house, gardens and
small pieces of land.
The pre-emptors of first class, exclude those of the second class and the pre-emptors of the
second class exclude those of the third class.
Shia Law : In Shia Law, the right of pre-emption is available only in cases where there are
only two co-shares in the property.
Application of the Law of Pre-emption
1. When There is a Difference of Religion :
(i) The vendor (Seller) should be a Muslim, no right can be claimed if he is a
Hindu.
(ii) The pre-emptor should be a Muslim not a Hindu. The reason is that as a
Muslim, if he subsequently wishes to sell the property he will be obliged to
offer it to his Muslim neighbours or co-owners.
(iii) Vendu (buyer) should be a Muslim according to Calcutta and Bombay High
Courts (all three parties must be Muslims) but according to Allahabad and
Patna High Courts it is not so (vendee may be non-Musliim).
2. When There is Difference of Sect :
(i) If both the parties, i.e. vendor and pre-emptor are, Sunnies. Sunni Law will
apply, if both are Shias, Shia Law will apply. The sect of vendee is
immaterial.
(ii) If any of the two parties (i.e., either the vendor or the pre-emptor) is Shia,
Shia Law will apply. Because a Shia cannot pre-empt a sale from a Sunni
vendor on the ground of vicinage because a Shia neighbour against whom a
Sunni has not right of pre-emption, cannot enjoy any right of pre-emption
against the Sunni.
Formalities : The person willing to enforce his right of pre-emption must make three
demands after hearing of the sale of the property concerned.
1. Talab-i-Mowasibat (Immediate Demand) : Talab-i-Mowasibat which literally means
a demand by jumping. The moment when the news comes to the person that
property has been sold, immediate demand must be made without delay, whether
there are witness or not. It is a kind of announcement by one entitled to pre-empt of
his intention of making the claim by using such words as "I do claim my shufa". Any
laxity on the part of the pre-emptor will result in loss of his right. It may be either in
person or by an authorised agent or even by a letter. Where there are two or more
buyers, the names of all the purchasers need not be mentioned in making the
demand.
2. Talab-i-Ishhad or Taqrir (Confirmatory Demand) : It is the repetition of first
demand, with invocation of witnesses. The first demand in which the pre-emptor
must–
(i) affirm his intention to assert his right of pre-emption;
(ii) He must make a formal demand–
(a) either in the presence of the buyer or the seller or on the premises
which are the subject of sale; and
(b) in the presence of at least two witnesses, specially called to bear
witness to this demand.

- 50 -
3. Talab-i-Tamlik or Khusumat (Demand for Possession) : It is the final enforcement
of claim by instituting a regular suit within the period prescribed by the Indian
limitation Act, if it is not conceded after the second demand.
Note : The Shia Law does not recognise any distinction between first and second demand.
When the Right of Pre-emption is Lost :
(i) If a pre-emptor dies after the first demand or second demand or even during the
pendency of the suit for pre-emption, his right is extinguished. However under the
Shia and Shafi Laws, if a pre-emptor dies during pendency of the suit, the right is not
lost.
(ii) If the pre-emptor waives his right in favour of the vendee.
(iii) When he fails in the observance, of the formalities.
(iv) When he acquiesces in the sale ex.- he enters into a compromise with the buyer.
(v) When he joins with himself as co-plaintiff a person who has no right of shufa.
When the Right of Pre-emption is Not Lost :
(i) If prior to the sale, the pre-emptor had refused to buy the property in respect of which
the right is claimed, or
(ii) The pre-emptor had previous notice of the sale, and he did not offer to purchase
IMPORTANT QUESTIONS
Q.1 Define Will. What are its essentials? Can a will be conditional and contingent? Can a
will be revoked?
Q.2 Define gift under Muslim Law. What are the essentials and characteristic features of
gift?
Q.3 Explain the various kinds of gifts.
Q.4 Define Waqf. What are its essentials and characteristic features? What are the legal
and illegal objects of waqf?
Q.5 Who is Mutwalli?

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UNIT - V
PROTECTION OF PROPERTY OF DECEASED

192. Person Claiming Right by Succession to Property of Deceased may Apply for
Relief Against Wrongful Possession :
1. If any person dies leaving property, moveable or immoveable, any person claiming a
right by succession thereto, or to any portion thereof, may make application to the
District Judge of the district where any part of the property is found or situate for
relief, either after actual possession has been taken by another person, or when
forcible means of seizing possession are apprehended.
2. Any agent, relative or near friend, or the Court of Wards in cases within their
cognizance, may, in the event of any minor, or any disqualified or absent person
being entitled by succession to such property as aforesaid, make the like application
for relief.
193. Inquiry made by Judge : The District Judge to whom such application is made shall, in
the first place, examine the applicant on oath, and may make such further inquiry, if any, as
he thinks necessary as to whether there is sufficient ground for believing that the party in
possession or taking forcible means for seizing possession has no lawful title, and that the
applicant, or the person on whose behalf he applies is really entitled and is likely to be
materially prejudiced if left to the ordinary remedy of a suit, and that the application is made
bonafide.
194. Procedure : If the District Judge is satisfied that there is sufficient ground for believing
as aforesaid but not otherwise, he shall summon the party complained of, and give notice of
vacant or disturbed possession by publication, and, after the expiration of a reasonable time,
shall determine summarily the right to possession (subject to a suit as hereinafter provided)
and shall deliver possession accordingly–
Provided that the Judge shall have the power to appoint an officer who shall take an
inventory of effects, and seal or otherwise secure the same upon being applied to for the
purpose, without delay, whether he shall have concluded the inquiry necessary for
summoning the party complained of or not.
195. Appointment of Curator Pending Determination of Proceeding : If it further
appears upon such inquiry as aforesaid that danger is to be apprehended of the
misappropriation or waste of the property before the summary proceeding can be
determined, and that the delay in obtaining security from the party in possession or the
insufficiency there of is likely to expose the party out of possession to considerable risk,
provided he is the lawful owner, the district Judge may appoint one or more curators whose
authority shall continue according to the terms of his or there respective appointment, and in
no case beyond the determination of the summary proceeding and the confirmation or
delivery of possession in consequence thereof–
Provided, that in the case of land, the Judge may delegate to the Collector, or to any officer
subordinate to the Collector the powers of a curator–
Provided, further, that every appointment of a curator in respect of any property shall be duly
published.
196. Powers Conferrable on Curator : The District Judge may authorise the curator to
take possession of the property either generally, or until security is given by the party in
possession or until inventories of the property have been made, or for any other purpose
necessary for securing the property from misappropriation or waste by the party in
possession–

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Provided that it shall be in the discretion of the Judge to allow the party in possession to
continue in such possession on giving security or not, and any continuance in possession
shall be subject to such orders as the Judge may issue touching inventories, or the securing
of deeds or other effects.
197. Prohibition of Exercise of Certain Powers by Curators :
1. Where a certificate has been granted under part X or under the Succession
Certificate Act, 1889 (7 of 1889) or a grant of probate, or letters of administration has
been made a curator appointed under this Part shall not exercise any authority
lawfully belonging to the holder of the certificate or to the executor or administrator.
2. Payment of Debts etc., to Curators : All persons who have paid debts or rents to a
curator authorised by a Court to receive them shall be indemnified and the curator
shall be responsible for the payment thereof to the person who has obtained the
certificate, probate or letters of administration, as the case may be.
198. Curator to Give Security and may Receive Remuneration :
1. The District Judge shall take from the curator security for the faithful discharge of his
trust, and for rendering, satisfactory accounts of the same as hereinafter provided,
and may authorise him to receive out of the property such remuneration, in no case
exceeding five percentum on the movable property and on the annual profits of the
immoveable property, as the District Judge thinks reasonable.
2. All surplus money realized by the curator shall be paid into Court, and invested in
public securities for the benefit of the persons entitled thereto upon adjudication of
the summary proceeding.
3. Security shall be required from the curator with all reasonable dispatch, and where it
is practicable, shall be taken generally to answer all cases for which the person may
be afterwards appointed curator; but no delay in the taking of security shall prevent
the Judge from immediately investing the curator with the powers of his office.
199. Report from Collector Where Estate Includes Revenue Paying Land :
1. Where the estate of the deceased person consists wholly or in part of land paying
revenue to Government, in all matters regarding the property of summoning the party
in possession, of appointing a curator, or of nominating individuals to that
appointment, the District Judge shall demand a report from the Collector, and the
Collector shall thereupon furnish the same–
Provided that in cases of urgency the Judge may proceed, in the first instance,
without such report.
2. The Judge shall not be obliged to act inconformity with any such report, but in case of
his acting otherwise than according to such report he shall immediately forward a
statement of his reasons to the High Court, and the High Court if it is dissatisfied with
such reasons shall direct the Judge to proceed conformably to the report of the
Collector.
200. Institution and Defence of Suits : The curator shall be subject to all orders of the
District Judge regarding the Institution or the defence of suits, and all suits may be
instituted or defended in the name of the curator on behalf of the estate–
Provided that an express authority shall be requisite in the order of the curator's
appointment for the collection of debts or rents; but such express authority shall
enable the curator to give a full acquaintance for any sums of money received by
virtue thereof.
201. Allowances to Apparent Owners Pending Custody by Curator : Pending the
custody of the property by the curator, the District Judge may make such allowances

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to parties having a prima facie right thereto as upon a summary investigation of the
rights and circumstances of the parties interested he considers, necessary, and may,
at his discretion, take security for the repayment thereof with interest in the event of
the party being found, upon the adjudication of the summary proceeding, not to be
entitled thereto.
202. Accounts, to be Filed by Curator : The curator shall file monthly accounts in
abstract, and shall, on the expiry of each period of three months, if his administration
lasts so long and, upon giving up the possession of the property, file a detailed
account of his administration to the satisfaction of the District judge.
203. Inspection of Accounts and Right of Interested Party to Keep Duplicate :
1. The accounts of the curator shall be open to the inspection of all parties
interested; and it shall be competent for any such interested party to appoint a
separate person to keep a duplicate account of all receipts and payments by
the curator.
2. If it is found that the accounts of the curator are in arrear, or that they are
erroneous or incomplete, or if the curator does not produce them whenever
he is ordered to do so by the District Judge, he shall be punishable with fine
not exceeding one thousand rupees for every such default.
204. Bar to Appointment of Second Curator for Same Property : If the Judge of any
district has appointed a curator, in respect of the whole of the property of a deceased
person, such appointment shall preclude the Judge of any other district within the
same State from appointing any other curator, but the appointment of a curator in
respect of a portion of the property of the deceased shall not preclude the
appointment with in same State of another curator in respect of the residue or any
portion thereof–
Provided that no Judge shall, appoint a curator or entertain a summary proceeding in
respect of property which is the subject of a summary proceeding previously
instituted under this Part before another Judge–
Provided, further, that if two or more curators are appointed by different Judges for
several parts of an estate, the High Court may make such order as it thinks fit for the
appointment of one curator of the whole property.
205. Limitation of Time for Application for Curator : An application under this Part to
the District Judge must be made within six months of the death of the proprietor
whose property is claimed by right in succession.
206. Bar to Enforcement of Part Against Public Settlement or Legal Directions by
Deceased : Nothing in this Part shall be deemed to authorise the contravention of
any public act of settlement or of any legal directions given by a deceased proprietor
of any property for the possession of his property after his decease in the even of
minority or otherwise, and, in every such case as soon as the Judge having
jurisdiction over the property of a deceased person is satisfied of the existence of
such directions, he shall give effect thereto.
207. Court of Wards to be made Curator in Case of Minors having Property Subject
to its Jurisdiction : Nothing in this Part shall be deemed to authorise any
disturbance of the possession of a Court of Wards, of any property; and in case a
minor, or other disqualified person whose property is subject to the Court of Wards is
the party on whose behalf application is made under this Part, the District Judge, if he
determines to summon the party in possession and to appoint a curator, shall invest
the Court of Wards with the curatorship of the state pending the proceeding without
taking security as aforesaid; and if the minor or other disqualified person, upon the

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adjudication of the summary proceeding, appears to be entitled to the property,
possession shall be delivered to the Court of Wards.
208. Saving of Right to Bring Suit : Nothing contained in this Part shall be any
impediment to the bringing of a suit either by the party whose application may have
been rejected before or after the summoning of the party in possession, or by the
party who may have been evicted from the possession under this Part.
209. Effect of Decision of Summary Proceeding : The decision of a District Judge in a
summary proceeding under this Part shall have no other effect than that of settling
the actual possession; but for this purpose it shall be final, and shall not be subject to
any appeal or review.
210. Appointment of Public Curators : The State Government may appoint public
curators for any district or number of districts; and the District Judge having
jurisdiction shall nominate such public curators in all cases where the choice of a
curator is left discretionary with him under this Part.
REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON SUCCESSION
211. Character and Property of Executor or administrator as Such :
1. No right to any part of the property of a person who has died intestate can be
established in any Court of Justice, unless letters of administration have first been
granted by a Court of competent jurisdiction.
2. This section shall not apply in the case of the intestacy of a Hindu, Mohammedan,
Buddhist, Sikh, Jaina, [Indian Christian or Parsi].
213. Right as Executor or Legatee When Established :
1. No right as executor or legatee can be established in any Court of Justice, unless a
Court of competent jurisdiction in [India] has granted probate of the will under which
the right is claimed, or has granted letters of administration with the will or with a copy
of an authenticated copy of the will annexed.
2. This section shall not apply in the case of wills made by Mohammedans, and shall
only apply–
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such
wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the
Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are
made within the local limits of the [ordinary original civil jurisdiction) of the
High Courts at Calcutta, Madras and Bombay, and where such wills are made
outside those limits, in so far as they relate to immovable property situate
within those limits].
214. Proof of Representative Title a Condition Precedent to Recovery Through the
Courts of Debts from Debtors of Deceased Persons :
1. No Court shall–
(a) pass a decree against a debtor of a deceased person for payment of his debt
to a person claiming on succession to be entitled to the effects of the
deceased person or to any part there-of, or
(b) proceed, upon an application of a person claiming to be so entitled, to
execute against such a debtor a decree or order for the payment of his debt,
except on the production, by the person so claiming of–
(i) a probate or letters of administration evidencing the grant to him of
administration to the estate of the deceased, or

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(ii) a certificate granted under section 31 or section 32 of the
Administrator General's Act, 1913 (3 or 1913), and having the debt
mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt
specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889 (7 of
1889), or
(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if
granted after the first day of May, 1889, having the debt specified
therein.
2. The word "debt" in sub-section (1) includes any debt except rent, revenue of profits
payable in respect of land used for agricultural purposes.
215. Effect on Certificate of Subsequent Probate or Letters of Administration :
1. A grant of probate or letters of administration in respect of an estate shall be deemed
to supersede any certificate previously granted under Part X or under the Succession
Certificate Act, 1889 (7 of 1889), or Bombay Regulation No. VIII of 1827, in respect of
any debts or securities included in the estate.
2. When at the time of the grant of the probate or letters any suit or other proceeding
instituted by the holder of any such certificate regarding any such debt or security is
pending, the person to whom the grant is made shall, on applying to the Court in
which the suit or proceeding is pending, been titled to take the place of the holder of
a certificate in the suit or proceeding–
Provided that, when any certificate is superseded under this section, all payments
made to the holder of such certificate in ignorance of such super session shall be
held good against claims under the probate or letters of administration.
216. Grantee of Probate or Administration Alone to Sue, etc., Until Same Revoked :
After any grant of probate or letters of administration, no other than the person to
whom the same may have been granted shall have power to sue or prosecute any
suit, or otherwise act as representative of the deceased, throughout the State in
which the same may have been granted, until such probate or letters of
administration has or have been recalled or revoked.
IMPORTANT QUESTIONS
Q.1 Who is Curator? By whom he is appointed and why? What are his rights and duties?
Is he bound to maintain accounts?
SUGGESTED READINGS
1) Dr. I.R. Khan "Mohammedan Law".
2) R.K. Sinha ”The Muslim Law".
3) Dr. Nazmi "Mohammedan Law".
4) Mulla "Principles of Mohammedan Law".
5) M.A. Qureshi "Muslim Law".
6) Paras Diwan "Muslim Law in Modern India"
7) Fyzee "Outlines of Mohammedan Law".

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