Historical Antecedents

• “Of all systems of the law, the Islamic systems

furnishes from an historical point of view, the most
interesting phenomenon of growth. The small
beginnings from which it grew up, and the
comparatively short space of time within which it
attained its wonderful development, marks its
position as one of the most important judicial
systems in the civilized world.”
- Ameer Ali
 Historical Antecedents
• The first period : Mohammad was born on August 29th 570
A.D.
• From childhood he was a person of disposition.
• In the month of Ramzan in 609 A.D. when prophet was
meditating heard strange voice.
• Its from Angel Gabriel who was sent to him by god.
• Gabriel whispered in the ears of the Prophet – “Read in the name
of Allah…..” This was first message of God (Wahi)
• At 40yrs of age he received first revelation.
• Quran is a collection of all such divine messages revealed to the
Prophet from time to time.
• Basic principles are –
1. God is one and only one, and that Mohammad is His
messenger(Rasool)
2. Islam means – “submission to the will of God”.
3. All human beings are equal.
• Prophet went to Medina in 622 A.D. this journey from Mecca to
Medina called as ‘Holy Mission’(Hejarat)
Historical Development of Muslim Law
• Islamic religion is concerned, it may be said that it was
completely established at the time of Prophet’s death.
1. The First Period (622-632 A.D.)
➢ Most revelations at Mecca were the principles of religious or
spiritual and did not contain positive law (Fiqh).
➢ In 622 A.D. Mohammad went to Medina where he generally
laid down the principles to regulate the conduct of the
people.
➢ Divine messages or the revelations, whether explaining the
concept of God or laying down rules of positive law were
collected and contained in the holy book Quran.
➢ Laws which were not available in the direct words of
God(Quran) were formulated through the traditions of the
Prophet.
➢ According to Abdur Rahim this period has rightly been
called as ‘legislative period’ of Islam when laws were enacted
by the divine legislature and promulgated in the words of
Quran or by the precepts of Muhammad.
II) The Second Period (632-661)
- This is called the period of First four Caliphs (Spiritual
as well as the administrative head of the Muslim State)
of Islam.
➢ First Caliph – Abu Bakr(til 634 A.D.), he was the father
of Ayesha Begum. Caliphs
➢ Second Caliph – Omar (til 644).
➢ Third Caliph – Osman (656). Rightly Guided Caliphs
➢ Fourth Caliph – Ali (til 661)
➢ The first collection of Quran was by Ziad during the rule
of Abu Bakr.
➢ Osman asked Ziad to revise it.
➢ In this period traditions of the Prophet were strictly
followed.
➢ Omar appointed the first Quadi (or Qazi) to decide the
disputes of secular nature.
III) The Third Period (661-900 A.D.)
➢ Ali had two sons, Hasan and Hussain.
➢ Hasan resigned in favour of Muavia of the Umaiyad
family.
➢ Two noticeable events happened during his reign.
1) The seat of Caliphate was shifted from Medina to
Damascus and ;
2) The office of Caliph was made hereditary.
➢ During Umaiyad’s rule, Caliphate became regular
kingship.
➢ These kings were interested in expansion of their
empire rather than in the development of law.
➢ Umaiyad’s dynasty was captured by abbasids who were
the descendants of the Prophet’s uncle Abbas.
➢ Abbasids made their capital at Baghdad and proclaimed
religious, or spiritual headship of the Muslim empire.
➢ The expositions of law was undertaken privately by the
learned scholars at Mecca, Medina and Kufa.
➢ The academic differences among the scholars led to the
formation of different schools of the Sunni Sect.
➢ The four sects were – Hanafi, Shafie, Maliki and Hanbali each
named after the scholars who expounded it.
➢ The Shias are also divided into three sects, Ithna Asharia,
Ismailia and Zaidi.
➢ This period is of great significance from the point of view of
the development of Muslim Law.
➢ The scattered traditions of Prophet were collected and
examined, only authoritative traditions were accepted to be
law.
➢ When the law was not available in Quran or traditions of
Prophet, a theoretical exposition of law was undertaken by
the jurists.
➢ To obtain a law through the consensus opinion of the jurists.
(Ijma)
➢ To deduce a law directly from the texts of Quran or traditions
by establishing similarity between the situations enumerated
in the text the situation for which the law was then required.
➢ Analogical deductions (Qiyas)
IV) The fourth Period (900-1924 A.D.)
➢ The abbasids ruled for 5 centuries and were overthrown
by the Monglols in 1258 A.D.
➢ In 1261 A.D. Abdul Kasim was made the Caliph with
his capital at Cairo and this dynasty ruled for 2
centuries.
➢ Notable feature of this dynasty was that Caliphs had no
administration powers.
➢ Caliphate transferred to Selim-I by a deed of
assignment in 1571.
➢ Subsequently the Sultanate of Turkey was abolished by
Mustafa Kamal Ataturk in 1922 and Caliphate was also
abolished.
➢ In this period, after the death of founders of the four
Sunni Schools, no scholar of their eminence and
learning was available who could propound new
theories of law.
➢ As no jurist was found competent, the law could not be
formulated through Ijtihad (opinion of the jurists).
➢ The opinions of the jurists were followed by the
scholars(muftis) without adding anything new.
➢ These scholars being lower in rank, could not give
independent judgments on a point of law.
➢ Their opinions (Fatwas) cannot be treated as rules of Muslim
Law, yet their worth in explaining law can never be ignored.
V) The Fifth period (1924 A.D. to present day)
➢ The present situation has been tackled by theoretically
separating Islamic law from religion (Shariat).
➢ Efforts were made by modern Islamic countries like Turkey,
Tunisia, Egypt etc. to codify their laws in such a manner that
the inherent character of present society.
➢ In India the modern period begins with the establishment of
the British Courts.
➢ Shariat Act, 1937.
➢ Dissolution of Muslim marriages Act, 1939.
➢ Muslim Women (Protection of Rights on Divorce) Act, 1986.
➢ Muslim law in India includes the traditional law, the
legislative enactments and the judicial precedents.
 Schools of Muslim Law
I) Sunni and Shia Sects
➢ Prophet was the universally acclaimed head of the Islamic
Commonwealth.
➢ Great majority suggested that there should be election, this
view was advocated by Ayesha Begum.
➢ Since prophet exercised absolute command over the Islamic
community, successor too should be a person who could
control the Muslims.
➢ The Prophet’s suggestions or saying are called traditions
(Sunnat).
➢ Accordingly Abu Bakr elected as first Caliph of Sunni Sect
and named it as ‘Ahle-Sunnat-wal-Jamat’. (People of
tradition and assembly)
➢ Another group emphasized upon the spiritual headship of
the Prophet – it is represented by Fatima.
➢ Their contention was the Prophet’s successor should be a
spiritual leader as Prophet himself was.
➢ They argued that this quality comes through the nobility of
blood.
➢ Consequently Ali the son-in-law of Prophet was nominated
as the first Imam. This sect is called Shia’s.(faction)
➢ This resulted in separation on legal principles as well.
The Sunni Schools
➢ During 3rd stage rulers contributed nothing to the
development of the law.
➢ The jurists expanded the Muslim law by giving juridical
interpretations to Quran and traditions.
➢ Principles of the four schools were the same but they merely
differ in matters of detail.
a) Hanafi School – named after its founder Abu Hanifa.
➢ He was recognized for his wide knowledge and outstanding
logical reasoning and technical legal thought.
➢ He was appointed as Qazi but refused to accept the post, he
was imprisoned for such refusal.
➢ His home place Kufa became an important centre of distinct
thinking in Muslim Law.
➢ He tried to find out the law from the text of Quran itself
through analogical deduction.
➢ If justice could not be done under the law then the principle
of juristic equity (Istihsan)may be applied in interpreting
that law.
➢ He is rightly known as the upholder of private judgments
and the founder of Muslim jurisprudence.
➢ His doctrines were further developed by two disciples Abu
Yusuf and Imam Mohammad.
Characteristics
1) It recognizes only those traditions which have passed
through the severe test regarding their originality.
2) Abu Hanifa has depended only on 18 traditions.
3) Qiyas and Ijma’s as sources of law have been given
prominance.
4) For the first time under this school the doctrine of
Istihsan(juristic equity) was used in interpreting the texts.
5) Customs and usages which were not against the texts of
Quran were recognized as proof of practices.
6) The doctrines of this school were always practical and most
suitable to changing society.
7) Important books of Hanafi law are Radd-Al-Makthar, Durr-ul-
Mukthar and Fatwai Alamgiri.
8) This school has been popular since its very beginning and
large no.of muslims were its followers.
b) The Maliki School – established by Malik-ibn-Anas of
Medina.
➢ He was great scholar and is regarded to be an authority on
traditions.
➢ It emphasizes the importance of traditions as a ‘source of
law’.
➢ It recognizes the traditions of the Companions and
successors of the Companions.
➢ New rules should be obtained exclusively from the
traditions, if not, then only Qiyaz and Ijmas should be
obtained.
➢ Malik and subsequent jurists of this school had the privilege
of being judges and had to solve the day-to-day problems of
the public.
➢ A new element called Istidlal (inferring a thing from another
thing for public welfare).
➢ It is the only school in which a married woman and her
properties are always under the control of her husband.
➢ The Important books were Kitab-al-Muwatta – compilation of
traditions.
➢ Khalil-ibn-Ishaq’s , ‘al-Mukhtasar’ important work on Maliki
prinnciples.
c) The Shafi School – Founded by Mohammad-ibn Idris-Ash-
Shafi.
➢ He developed his doctrines at Baghdad and Cairo.
➢ He examined the traditions in the light of legal reasoning
and logic in order to get a very balanced and systematic rule
of law.
➢ He endeavored to systematize the traditons.
➢ There was no single problem of human life which could not
be solved by Quran or traditions.
➢ He made the greatest use of Qiyas and had fully established
it as a source of law.
➢ Qiyas is to be found only after considering Quran, traditions
and Ijma.
➢ It also recognizes the custom and Malik’s principle of
Istidlal.(public welfare)
➢ Most important feature is woman has never regarded to be a
free agent in her marriage even though she is adult.
➢ He first time incorporated usul or principles of law in his
book Kitab-ul-Umma.
➢ Risala contains principles and method of Jurisprudence.
➢ Other important works are Tuhfat-al-Muhtaj by Hajar,
Nihojat-al-Mohtaj by Ramli and Al-Wajiz by Ghazzali.
d) The Hanbali School – Established by Ibn Hanbal.
➢ He rigidly adhered to the traditions of the Prophet. Therefore
he was known as the traditionist rather than jurist.
➢ Ijma and Qiyas were neglected by him.
➢ There is no scope for private judgments and human
reasoning.
➢ Musnad-ul-Imam Hanbal, is an important book consisting of
about fifty thousand traditions.
➢ Other books were Kitab-ul-Mashaekh and Kitab-ul-Alal.
The Shia School
➢ Ali accepted the temporal as well as the spiritual head of the
community.
➢ After his death his two sons Hasan and Hussain became the
second and third Imam.
➢ After Hussain’s Death his son Zain-ul-abdeen succeeded to
be the fourth Imam.
➢ Zain-ul Abdeen had two sons, Zyad and Muhammad Baqir.
➢ First split took place some followed Zyad but the majority
recognized Baqir as fifth Imam.
➢ Zyad found different sect called as Zyadis.
➢ After Md.Baqir his son Jafar Sadiq became the Sixth Imam.
After his death another split took place.
➢ Upon Sadiq’s death his one group recognized Ismail the
elder son as seventh Imam but to the majority Musa Kazim
was the seventh Imam.
➢ Followers of Ismail were called Ismailis and cosntituted
second school of Shia sect.
➢ After 12th Imam of Kazim’s successors Imamship came to an
end.
➢ The followers of Kazim constituted the third school called
Ithna Asharia or the Twelvers.
➢ We found that the dispute is only of leadership but no
contribution to development of law.
a) The Ithna Aharia School – also called as Imamia school.
➢ The followers believe that starting from Ali there had been
twelve Imam who possessed spiritual powers.
➢ Everything that comes from Imam is taken to be law.
➢ This is the only school which recognizes ‘muta’ temporary
marriage.
➢ This school is further divided into two sub-sects i.e,
Akhbari & Usuli.
➢ Akhbari’s are orthodox because they follow rigidly the
traditions of Imam.
➢ Usuli’s interpret the texts of Quran with reference to
the practical problems of day to day life.
b) The Ismailia School –
➢ Some minority Shia’s accepted Ismail as seventh
Imam. So they are called seveners.
➢ They considered the Imams as emissaries of largely ill-
cemented orthodox Islam.
➢ In India it consists of two groups i.e, Khoja and
Bohras.
C) The Zyadi School –
➢ Founder was Zyad.
➢ Zyadi’s were the first to defect from Shia Sect.
➢ Its doctrines incorporate some of the Sunni principles
as well.
 The Motazila Sect
➢ It emerged as a separate sect of Islam around 9th Century.
➢ Established by Ata-al-Ghazzal.
➢ They were the defectors of the Shia community.
➢ The doctrines were almost similar as of Ismailia.
➢ They believe that Quran is the only basis for their doctrines.
➢ This is the only school in Islam which practices strict
monogamy.
➢ There cannot be any divorce without interference of a
Judge. Divorce by Talaq is not recognized under this school.
Application of the Law of School
➢ Before court of law the sect of contesting Muslim parties
should be ascertained.
➢ Each sect has got its own books of authority.
➢ After ascertaining the sect, next step is to ascertain specific
sub-sect or school.
➢ In case, where the parties belong to different schools the law
of the defendant’s school is applied.
 Change of the Sect or School
➢ Every Muslim who has attained puberty (majority) has
got the liberty to change his sect or school and adopt
another school of his liking.
➢ Immediately after adopting the new sect or school,
such a Muslim will be governed by law of the new
school.

Continued….
 Sources of Muslim Law
➢ Introduction –
Sources means the original materials where the contents
of that law are to be found and are made available to
us.
Sources of Muslim law can be classified into two
categories :
1) The primary sources, and
2) Secondary sources.

1) Primary sources :
- Primary sources are those which the Prophet himself
directed to be the sources.
- Story of Muadh.
- The whole of Muslim law is based on the primary
sources.
- They are also called as the formal sources.
2) Secondary sources :
- It explain or modify the primary sources to the changing needs
of the Islamic society.
- The rules of the Muslim law are also found in the customs,
legislations and the judicial decisions.
- They are also called as extraneous sources.
The Primary sources
1) Quran –
- It’s derived from the Arabic word “Qurra” – ‘which ought to be
read’.
- Its first source in point of time because, before Quran there
was no Islamic society.
- Its from the first revelation(wahi) came to the Prophet in 609
A.D.
- Since then revelations continued to come to the Prophet in
fragments during a period of 23 years till 632 A.D.
- These communications or messages from God were conveyed
by through his preaching.
- Some of the preaching were in the form of verses and reduced
to writing on palm-leaves, camel hide or even on mud.
- After the death of the Prophet his verses were collected,
consolidated and systematically written by Osman(third Caliph)
- The verses of Quran were believed to be the words of God.
Salient features of Quran as Sources of Law
i) Divine origin – As Quran consists of words of God its words
are unchangeable and its authority is unchallengeable.
ii) First source – the present Muslim religion was born with
words of Quran.
iii) Structure – Its in the form of verses and verses are called as
‘Ayat’. 6237 verses, 114 chapter called as ‘Sura’. The first
sura Surat-ul-fatiha deals with introduction to the holy
book.
iv) Admixture of Religion,Law and Morality – at some places
they are mixed in such a manner it is impossible to separate
them. Not the whole of the Quran but around 200 Ayats
scattered in Quran were considered as sources of law.
v) Different forms of Legal Rules – the objectionable verses and
customs have been removed.
vi) Unchangeable – if any specific meaning is attributed to a
particular verse of Quran, the courts have no power to give
any other meaning.
vii) Incompleteness – It generally contains verses relating to
philosophy of religion. Out of 200 verses of law only 80
deals with personal law.
viii) Silence of Quran – for new problems of society no legal
solutions were available.
2) Sunna or Ahadis (Traditions of Prophet)
- Whatever Prophet said or did without reference to God, is
treated traditions.
- Prophets own saying were believed as sources of law.
- Internal parts of revelations which are inspired by God are
the Sunna’s.
- There are two kinds of revelations i.e, manifest (Zahir) and
internal (Batin).
- Quran contains very words of God and Sunna contains
language of Prophet.
What constitued Sunna?
- Whatever the Prophet said, what he did and also his silence in
a question put before him, was all taken to be authoritative
and become a precedent. They consists of :
i) Sunnat-ul-Qaul (words spoken)
ii) Sunnat-ul-Fail (conduct)
iii) Sunnat-ul-Taqrir (silence)
Narrators of the Traditions
Qualifications :
i) He must have understanding (sane and adult);
ii) Must possess the power of retention;
iii) Must be a Muslim;
iv) Must be of righteous conduct.
Following class of persons were recognized as Narrators :
a) Companions of the Prophet
b) Successors of the Companions
c) Successors of the Successors.
Kinds of Traditions
From the point of view of their authority and acceptance in the
society, traditions may be classified as :
i) Ahadis-i-Mutwatir (Universally accepted Traditions)
- Continuously narrated by indefinite no.of persons.
- They ensures absolute certainty as to their authenticity.
ii) Ahadis-i-Mashhoor
- Narrated by companion of the Prophet but subsequently
accepted by majority of people.
iii) Ahadis-i-Ahad (Isolated traditions)
Drawbacks of Traditions
1) There are many traditions of doubtful origin. Because
narrators are unknown persons.
2) There are several traditions which are contradictory.
3) It is difficult to separate a religious or moral principle.
4) Traditions got their authority from the narrators.
III) Ijma (Unanimous decisions of Jurists)
- The Law-knowing persons’(jurists or Mujtahids) used to
agree unanimously and gave their common opinion over
that point.
- According to Abdur Rahim : ‘Ijma is the agreement of the
jurists among the followers of the Prophet Mohammad on a
particular question’.
- Through Ijma its possible to lay down new principles in
accordance with the changing needs of the society.
Kinds of Ijma
- Better was the category of the jurist greater was the value of
their opinion.
1) Ijma of the Companions – most valuable and reliable.
2) Ijma of Jurists
3) Ijma of the People – the opinions of the majority of the
Muslims
Importance of Ijma
- Quran and traditions were adequate only for the past and
not for the future society.
As a source of law importance of Ijma is two fold :
1) Further explanation and clarification of Quran and
traditions was possible through consensus opinion.
2) New principles of law, not found in the words of Quran and
traditions but possible through opinions of jurists
- Ijma has rightly been termed as a movable element in law
because it is flexible and not rigid.
Defects of Ijma
i) It led to differences in the approach of scholars in arriving at
a decision.
ii) It was doubted whether the consensus or unanimity in the
opinions, was it necessary.
iii) Except the Ijma of the Companions, other two kinds of Ijma
could be modified or overruled by subsequent Ijma.
iv) Its practically difficult to consult all the jurists and obtain
their opinions.
v) Only learned scholars could take part in the formation of
Ijma. The result was that about 10th century, Ijma’s has to
be abondoned.
4) Qiyas (Analogical Deduction)
- In Arabic Language Qiyas means ‘measurement’.
- It means measuring or comparing a thing in relation to a
standard or to establish an analogy.
Methods applied by jurists in obtaining Qiyas :
a) A similarity was established between the new problem and
an identical problem given in the text.
b) After establishing the analogy, the solution of the problem
given in the text was applied to the new problem.
In drawing Qiyas following two essentials are required :
1) The person who established analogy was a Mujtahid (jurist).
2) He deduced the law from a definite text of Quran or Sunna
or the Ijma.
Primary Sources under Shia Law
1) Quran
2) Traditions (only those which have come from the Prophet’s
family)
3) Ijma (only those which were confirmed by Imams.
4) Reason (Aql)
 Secondary Sources
1) Custom (Urf or Taamul)
- Prophet abolished evil and bad customs.
- But there were certain pre-Islamic customs (e.g. dower,
talaq) which were good and tolerable.
- Some good customs became part of the traditions of the
Prophet. i.e. Sunnat-ul-taqrir.
- A customary law exists in Islam either because it has got
the approval of the Prophet or, has been incorporated in
Ijma.
Importance of Customs
- In the absence of a rule of law in the texts of any of the four
primary sources, the customary practices are held as law.
- It has been used as supplement to four primary sources of
Muslim law.
❖ Abdul Hussain v. Sona Dero
- Privy Council observed that if proved, a custom would
prevail over a written text of law provided the custom was
ancient and invariable.
- Muslims demanded there should not be any place for
customs in the Muslim Personal Law as it was un-Islamic.
- Muslim Personal Law (Shariat) Application Act, 1937.
Present Position of Custom Under Muslim Law
- The Shariat Act, 1937 abolishes most of the customs from
Muslim law.
- Sec. 2 of this Act provides that if the parties are Muslim,
only Muslim personal law (Shariat) will be applied to them
in matters of inheritance, special property of females,
marriage, dower, divorce, maintenance, guardianship, gift,
waqf and trust.
- As a result Muslims in India are still be governed by the
customary law except in the ten matters in Sec.2 of the
Shariat Act.
2) Judicial Decisions
- In the absence of any clear text of Muslim Law, the courts
may interpret a rule of law.
- In such cases, the Muslim law becomes what the courts say.
E.g.: interest.
❖ Katheessa Umma v. Narayanath Kunhamu
- S/C held that a gift by a husband to his minor wife above
the age of 15yrs but under 18yrs is valid.
❖ Begum Subanu v. Abdul Gafoor
- First wife’s right to maintenance.
➢ Sec.2 of the Dissolution of Muslim Marriages Act, 1939
provides eight grounds on the basis of any one of which a
wife may seek dissolution of her marriage.
❖ Muhammad Usman v. Sainba Umma
- Kerala H/C held that Sec.2(ix) is a ‘residuary clause’ under
which the court at its discretion may dissolve the marriage.
➢ Law of Pre-emption.
- Unless overruled or negatived by some legislative
enactment, these rules through the decisions, continue to
be a source of Muslim law.
3) Legislation
There are certain enactments which modify or otherwise lay
down principles of Muslim law, for modern courts in India.
Some important enactments are discussed below :
i) The Mussalman Waqf Validating Act, 1913.
- It has not changed the rule of pure Muslim Law but simply
re-establishes family waqfs which was modified by
judiciary.
ii) The Child Marriage Restraint Act, 1929
iii) The Muslim Personal Law (Shariat) Application Act, 1937
- This enactment confirms the general principle of Muslim
jurisprudence that customs have no place in Muslim Law.
iv) Dissolution of Muslim Marriages Act, 1939 - It has
modified the pure Muslim law.
v) Muslim Women(Protection of Rights on Divorce) Act,
1986
 Who is a Muslim
- Muslim is a person who adopts the faith in ‘Islam’
- The literal meaning of Islam is “Submission to the will of
God”
- The only requirement for being a Muslim is the belief in one
god and prophethood of Muhammad.
i) Muslim by Birth
- A person whose both the parents were Muslims at the time
of his birth is regarded to be a Muslim by birth.
- If only one of the parent is Muslim then a child will be
muslim if it has been brought up as Muslim
- A Muslim by birth remains Muslim till he renounces Islam
on one’s own choice.
- He can do so by public declaration
ii) Muslim by Conversion
- Any person of any religion who is of sound mind and has
attained the age of majority, can become Muslim.
- He is called a ‘converted Muslim’
- Conversion may be two ways :
1) A person may publicly declare that he has renounced his
original religion and now professing religion
2) The second method is through ceremonies
- The object of conversion should always be faith
❖ Skinner v. Orde
- Privy Council held such conversion is not bona fide because
its purpose was to commit fraud upon Muslim law.
❖ Sarla Mudgal v. Union of India
- A Hindu husband converted to Islam and contracted
marriage with Muslim girl without divorcing his first Hindu
wife.
- The S/C held second marriage amounts to bigamy
punishable U/S.494 of IPC.
Problem: Karmendar a married Hindu Male falls in love with
RamaMalini. For the sake of getting married both of them
converts to Islam. The first wife of Karmendar sued him for
the offence of bigamy. Does she succeed. Decide.
Step 1 : Answer must be to the Point – Yes or NO.
Step 2 : Analyse the Principle of Law.
Step 3 : Support your answer by quoting precedents.
Step 4 : Conclude with final remarks.
 Marriage
I) Introduction
- In the Pre-Islamic Arabian Society, the position of
women was very bad.
- Women in those days were not better than the slaves
and had no existence of their own in the society.
- When Islam came into force, the females were given
due social status and they were regarded as dignified
members of the society.
- Islam prescribed definite form of marriage i.e, Nikah.
- Polygamous Nature of Muslim-marriage
- Under Muslim law polygamy of four wives is legally
permissible.
- As a result of war females outnumbered males in the
society.
- Quran lays down this condition in very clear words :
‘marry of the women, who seem good to you, two or three or
four, if you fear that you cannot do justice (i.e, treat equally)
to so many, then one (only).’
Definitions of Marriage
Under Muslim law- “marriage is a civil contract for legalisation
of the intercourse and for legitmisation of the children.”
According to Hedaya – “Marriage (Nikah) implies a particular
contract used for the purpose of legalising children
(generations).”
Acc. to Justice Mahmood – “Marriage among Mohammedans is
not a sacrament (sanskar) but purely a civil contract”.
Objects of Marriage :
a) To provide legal validity to the sexual relationship of
husband and wife, and
b) To legalise the children.
- Without marriage the intercourse between a man and woman
is unlawful (zina)
- Legal Aspect
- Social Aspect
- Nikah is a well established social institution which gives to
the women a separate and dignified status in the society.
Dower, limited polygamy, prohibition of marriage in close
relatives.
- Religious Aspect
Acc. to Quran Marriage is such a act of nature that if a person
does it, he gets religious benefits; if he abstains from doing
it, then he commits a sin.
- So far as the nature of Muslim marriage is concerned, in
form or appearance it is contractual but in essence its
nature is undoubtedly socio-religious.
Essentials of a valid Marriage
The marriage to be valid (sahih) must fulfill following essentials
–
1) The parties to the marriage must be competent
2) The consent of the parties, or of their guardians, must be a
free consent.
3) The required formalities are duly completed, and
4) There must not be any prohibition or impediment in
contracting the marriage.
I) Competency of the Parties.
The parties are competent if they are –
a) Of the age of puberty
b) Of sound mind,
c) Muslims.
a) Age of puberty.
In Muslim law age of majority for marriage is not 18yrs but is
considered to be equal to the age of puberty.
Age of puberty is an age at which a person is supposed to
acquire the sexual competency.
❖ Ms.Atika Begum v. Mohd. Ibrahim
According to Mohd. Law a girl becomes major on the happening
of either of the two events :
i) The completion of her 15th year or
ii) On her attainment of a state of puberty at an earlier period.
After attaining 15yrs a person becomes mature enough to give
consent for his or her marriage, no consent of the guardian
is necessary to validate the marriage.
Minor’s Marriage
A minor’s marriage without the consent of guardian is void. Under Muslim
Law the following persons are recognized as guardians for contracting
the marriage of Minors –
1) father,
2) Paternal grand father, how high so ever,
3) Brother or other male members of the father’s family,
4) Mother,
5) Maternal uncle, aunt or other maternal relations.
- Guardian appointed by court is not guardian for marriage without
previous permission of the court.
- Nearer guardian is given priority.
Shia Law
The only guardians for marriage are –
1) The father; and
2) The paternal grand father, how highsoever.

The Child Marriage Restraint Act, 1929 (as amended in 1978)

- Sec.2 of Amended Act provides the age limit.
- Sec.7 provides offenses under the Act are cognizable.
- Effects of this enactment on minor’s marriage are :
a) The marriage is not void, it exists and perfectly valid.
b) But a person who performs minor’s marriage is to be punished.
c) It can be prevented by means of previous injunction of the court.
Option of Puberty (Khyar-ul-Bulugh)
- A minor on attaining the age of puberty, has a right to approve
or dis-approve the marriage contracted by guardian who was
neither father nor paternal grandfather.
- Presumption of approval.
Shia Law – Minor’s marriage must be approved by the minor on
attaining puberty.
Rules relating to ‘Option of Puberty’
i) It cannot be exercised by husband if his marriage contracted
by father or grandfather.
ii) Wife can exercise the option of Puberty.
iii) The option must be exercised by a wife immediately after the
attainment of puberty.
iv) If consummation takes place husband’s right of option is lost.
v) Confirmation of the court is necessary – formal approval and
not a decree.
b) Soundness of Mind
- Unsoundness of mind is of two kinds idiocy and lunacy.
- Idiocy – an abnormal state of mind in which a person
completely incapable of knowing consequences.
- Lunacy – Mental disease which can be cured.
- Marriage by a lunatic during ‘lucid intervals’ is valid.
Marriage of Insane Persons
- A person of unsound mind may be contracted in lawful
Marriage by a ‘Marriage Guardian’.
- In such case same rules of option of puberty are applicable.
- If marriage was contracted by a guardian other than father
or grandfather, such person can repudiate it on recovering
his or her reason.
c) Religion of the Parties –
- Both the parties have a right to marry a Muslim irrespective
of sect and sub-sect.
- Intersect marriages are perfectly valid.
Inter religious Marriage
Sunni Law –
- A Sunni male has a right to contract a lawful marriage with a
Christian or a Jew woman.
- If a Sunni male marries a Fire Worshipper (Parsi) or a Hindu
girl is merely irregular.
Shia Law –
- Shia male has no right to contract a marriage with any non-
Muslim female.
- The marriage of a Shia man with a Hindu, Jew, Christian or
a Fire Worshipping woman is void.
Marriage of Muslim Female with a Non-Muslim Male
- A Muslim female whether Shia or Sunni has no right to enter into any
contract marriage with non-Muslim.
- Law relating to inter-religious marriage is summerised as below :
i) Muslim Male(of any sect) + MF ( of any sect) = valid
ii) SM + KF = Valid
iii) SM + Non Muslim Female = irregular
iv) Shia Male + Non-Muslim Female = void
v) MF + Non-Muslim Male = void
- The Special Marriages Act, 1954
- A muslim can lawfully marry a non-muslim under this Act, its called
as ‘Court Marriage’.

II) Free Consent of the Parties

- Consent is an essential element of Muslim marriage.
- Hanafi Law - even if consent has bee given under compulsion, the
marriage is valid.
- Shia law – void.
- Fraud – it’s a dishonest concealment of certain relevant facts or a false
statement in obtaining the consent for a marriage.
- the marriage is voidable at the option of the party defrauded.
- Mistake of Fact
- There is no consent and marriage is void.
III) Formalities in the marriage :
Acc. to Ameer Ali, a Mohemmadan Marriage requires no
particular or essential formal rites (sacrament) to constitute
it valid in law.
- The only essential formalities are offer and acceptance made
at the same sitting.
Offer and Acceptance
- Offer (Ijab) signifies a willingness of a person for marriage.
Generally made from the side of boy or his guardian.
- Acceptance (Qabool) is made by girl or her guardian.
Oral or Written
- Offer and Acceptance are either Oral or in writing.
- Where it is in writing it is called as ‘Kabinnamah’ which is
an important documentary evidence of the marriage.
At the same sitting
- The offer and acceptance must be simultaneous to each
other so that they may form part of the same transaction.
- If both are isolated, there is no formation of marriage
contract.
- If both parties are not at one place but there is a proximity
or continuity in the offer and acceptance so that there is one
transaction, the marriage is valid.
Reciprocity
- The acceptance must be exactly for the proposal and nothing else.
- If the acceptance is conditional or with modification, it is no
acceptance of the proposal.
Conditional or Contingent Marriage
- If the offer or acceptance is conditional or depends upon uncertain
future event, there is no marriage.
- A conditional marriage is simply a promise to marry in future.
Presence of Witnesses
- Two competent witnesses.
- Any male Muslim who is of sound mind and has attained puberty, can
act as witness.
- One male together with two adult female Muslims of sound mind, may
fulfill this legal requirement.
- Marriage without witness or with incompetent witnesses, is irregular
(fasid)
Shia law – A marriage without witnesses is valid under Shia law.
Registration of Muslim Marriage
- As registration being optional, validity of marriages or divorce is not
affected if they have not been registered.
Indian-Christian Marriage Act, 1872
Under this Act if any party to marriage is a Christian, the marriage must be
registered and it must take place before the Registrar.
IV) Absence of Prohibition
There must not exist any of the prohibitions laid down under Muslim
personal law.
The prohibitions under Muslim Law are of two kinds:
i) Absolute Prohibition
ii) The relative Prohibition

i) Absolute Prohibition
- A marriage contracted in violation of any of the absolute prohibitions is
null and void.
- There is an absolute prohibition for a Muslim to marry a person who is
within his or her ‘prohibited relationship’.
Two persons are said to be within ‘prohibited relationship’ if they are
related to each other by :
i) consanguinity;
ii) Affinity; or
iii) Fosterage.

i) Consanguinity (Relation by blood)

A Muslim cannot marry with any of his or her following relations :
a) One’s own ascendant or descendent, how highsoever.
b) Descendants of one’s father and (or) mother how lowsoever.
c) Brothers or sisters of one’s ascendants how highsoever.
a) One’s own ascendants and descendants, how highsoever or
lowsoever.
- Father, Father’s Father, Father’s Father’s Father.
- Mother, Mother’s Mother, Mother’s Mother’s Mother.
- Son, Son’s son, Son’s son’s son
- Daughter, daughter’s daugher, daughter’s daughter’s daughter.
b) Descendants of one’s father and (or) mother how lowsoever.
- Brothers and sisters of full,half or uterine blood.
c) Brothers and sisters of ones Ascendants, how highsoever.
- Sisters of his father and mother.
(2) Affinity – Affinity means nearness, created by marriage. One
cannot marry –
a) Ascendant or descendant of one’s wife or Husband.
b) Wife or husband of one’s ascendant or descendant.
a) Ascendant or descendant of one’s wife or Husband.
- wife’s mother, mother’s mother how highsoever.
- Wife’s daughter, daughter’s daughter how lowsoever.
(3) Fosterage – Where a child, under the age of two years, has been
feeded milk of any woman (other than its own mother) such
woman is the foster-mother of that child.
- She treated as real mother for all prohibitions in the marriage.
- A man is prohibited to marry his foster-mother, her daughter.
Relative Prohibitions
- Compliance of these is not mandatory but their presence is
deemed to be unjust.
- A marriage contracted in violation of these prohibitions is
merely irregular, not void.
- Under Shia Law which doesn’t recognises irregular marriages,
such marriages are either void or perfectly valid. The relative
prohibitions are given below :
1) Unlawful Conjuctions
- A Muslim is prohibited to have two wives at a time if they are
related to each other (by consanguinity, affinity or fosterage).
- In such a manner that if they had been of different sexes, they
could not have inter-married.
- A marriage against the rule of unlawful conjunctions is
irregular.
Shia Law – marriage with wife’s aunt is not unlawful conjunction.
- But cannot marry wife’s niece without wife’s consent.
- A marriage against the rule of unlawful conjunctions is void
under Shia law.
2) Marriage with Fifth Wife – among sunni’s its irregular, after the
death or divorce of any of the four wives, this irregularity
doesn’t exists.
Shia law – Marriage with the fifth wife is void.
3) Marriage with non-Muslim –
Shia law – void.
4) Marriage During Pilgrimage –
This prohibition is recognised only under shia law.
5) Marriage Without Witnesses –
Sunni law – Irregular
Shia law – presence of witness is not necessary, it valid.
6) Marriage During Iddat.
- Iddat is that period which a woman has to undergo after
divorce or death of her husband.
Sunni law – marriage with a woman observing Iddat, is merely
irregular.
Shia law – its totally void.
Iddat
- Iddat is an Arabic word and its literal meaning is ‘counting’.
- Counting the days of possible conception to ascertain
whether a woman is pregnant or not.
- The object of Iddat is to ascertain the paternity of a possible
conception by her former husband.
a) Dissolution of Marriage by Divorce
i) When valid marriage is dissolved by divorce and consummation
has taken place, the duration of Iddat is three monthly
courses. If the woman is not subject to menstruation, this
period is three lunar months.
ii) If marriage is not consummated, Iddat is not required.
iii) If woman in pregnant Iddat extends till delivery or abortion.
b) Dissolution of marriage by Death of Husband
i) Duration of Iddat will be 4months and 10days or incase of
pregnancy till delivery.
ii) Incase of death Iddat is 4months and10dys eventhough
marriage is not consummated.
c) Death of Husband During ‘divorce – Iddat’
- She has to start fresh Iddat of 4months and 10days from the
date of husband’s death.
d) Commencement of Iddat
- It begins from the date of the divorce or death of the husband
and not from the date of communication of information.
Shia Law – Iddat is not necessary if woman has past the age of
child bearing or has not attained puberty or if her
menstruation is irregular or absent.
- The marriage with a woman observing Iddat is void.
Valid Retirement
- Under Sunni law if husband and wife are together for sometime
in privacy and there is no social, moral or legal restriction in
their intercourse, they are said to be in valid retirement
(Khilwatus-Sahiha).
- It is presumed that actual consummation has taken place.
Sunni law – divorce-Iddat is necessary.
Shia law – divorce-Iddat is not necessary.
Husband prohibited from remarrying during Iddat
- The husband need not wait and he is free to remarry
immediately after the divorce.
- If husband has four wives then he is also prohibited from
remarrying during the Iddat.
Miscellaneous Prohibitions
a) Rule of Equality (Al-kafat) – it’s a restriction by society rather
than a law.
- Where the husband and wife are not of equal status, the
marriage is perfectly valid but the Kazi or court may invalidate
the marriage.
Shia law – this prohibition is not recognised.
b) Re-marriage between divorced couple –
- After divorce if the husband and wife wants to remarry each
other a peculiar condition need to be fulfilled.
c) Polyandry –
- Muslim woman is prohibited to contract second marriage
during the continuance of the first marriage.
Legal Effects of Valid(Sahih) Marriage
1) Cohabitation becomes lawful.
2) Legitimacy of children.
3) Mutual rights of inheritance arises.
4) Prohibited relations comes into existence.
5) Wife’s right to claim dower is fully established just after the
completion of marriage.
6) Right of maintenance with immediate effect.
7) In case of divorce or death of husband the wife needs to
observe Iddat during which she cannot remarry.
8) Even after the marriage she continuous to belong to the
same school to which she belonged to.
9) Husband has marital right to guide and control the
movements of his wife in a reasonable manner.
10) Marriage agreement, it comes into force on the completion of
marriage.
 Marriage Agreement
If there is any agreement among the parties it will come into effect on
completion of marriage if it is not illegal. All illegal agreement does not
affect the validity but, the condition itself is void such as –
1) The wife is not entitled to claim dower;
2) Wife shall not claim maintenance from her husband;
3) Husband and wife shall not have no mutual rights of inheritance;
4) Husband and wife would be free to live separately in future.
If the conditions in a marriage-agreement are not against principles of
Islam, the agreement is legal and is binding upon the parties:
i) Husband shall not contract second marriage during continuance of the
first.
ii) Husband shall not remove wife from conjugal domicile without her
consent.
iii) The shall not be absent from the conjugal home beyond specified
period.
iv) Husband and wife shall live in a specified place.
v) Husband shall pay fixed maintenance to wife.
vi) Certain portion of dower shall be paid at once and reminder on the
dissolution of marriage.
vii) Husband shall maintain the children of the wife by former husband.
 KINDS OF MARRIAGE
According to Sunni law marriage may be classified into 3 categories –
1) Valid (Sahih)
2) Void (Batil)
3) Irregular (Fasid)
Under Shia law the categories are –
1) Valid (Sahih)
2) Void (Batil)
3) Temporary (Muta)
- A marriage contracted in violation of any of the essential legal
conditions, is no marriage.
Valid (Sahih) Marriage
Marriage is valid when :
1) Parties are competent;
2) Consent of parties or guardians is free;
3) Offer and Acceptance has been made according to law;
4) There is no prohibition of marriage between parties.
Void (Batil) Marriage
A void marriage is not marriage at all. It exists neither in fact nor in law.
1) Marriage in violation of absolute prohibitions.
2) Marriage with any lawfully married woman.
Shia law – In addition to the previous situations, following
marriages are also void :
1) Against the prohibition of unlawful conjunction;
2) Marriage with fifth wife;
3) During pilgrimage;
4) With a non-Muslim;
5) With a woman undergoing Iddat.
Legal Effects of Void Marriage
- It does not create any conjugal right or obligation between
parties.
- Cohabitation is unlawful and the children are illegitimate.
- No mutual rights of inheritance.
- Wife neither entitled to dower nor maintenance.
Irregular (Fasid) Marriage
It is recognised only under Sunni Law. Following marriages are
considered as irregular marriages :
1) Marriage against rule of unlawful conjunction;
2) Fifth wife;
3) Absence of witnesses.
4) Marriage with non-Muslim.
5) Marriage with a woman undergoing Iddat.
Legal Effects of an Irregular Marriage
1) Cohabitation is lawful.
2) Children are legitimate and have right of inheritance.
3) Husband and wife have no mutual rights of inheritance.
4) Wife is not entitled to Dower if marriage is not
consummated.
5) In case of consummation wife is entitled for specified or
proper dower, whichever is less.
6) If marriage has not been consummated, the wife is not
required to observe any Iddat.
7) If marriage is consummated, the wife is required to observe
an Iddat only of three monthly courses.
8) Irregular marriage being unholy union, the Kazi or the
Court need to separate them and dissolve their marriage.
Shia law – Irregular marriages are not recognized under Shia
law.
Temporary Marriage (Muta)
- Muta is a distinct kind of marriage recognised only by Ithna
Asharia Shias.
- It may be defined as temporary union of male and female for
specified duration, on payment of some consideration.
- Literal meaning of ‘Muta’ is ‘enjoyment’ – ‘marriage of
pleasure’
- Caliph Omar made an attempt to suppress it.
Essentials of Muta Marriage
1) Parties must be competent. Guardian cannot contract such
marriage.
2) Shia male may contract a Muta with any Muslim. But Shia
woman cannot contract Muta with any non-Muslim. No
restriction on no.of Muta marraiges.
3) Free consent.
4) Formalities – offer & acceptance is necessary, witnesses are
not essential.
5) There must not exist prohibited relationship.
6) Period of Muta marriage must be specified.
❖ S.A.Hussain v. Rajamma
- Court held that, Muta without a specified duration of period
will be considered as permanent marriage (Nikah).
❖ Shahjada Qanum v. Fakhar Jahan
- Muta for life is muta for unspecified period and to be treated
as permanent marriage (Nikah).
7) Dower must be specified at the time of contract.
- Specification of the dower is necessary for the validity of
Muta form of marriage.
Legal effects of Muta Marriage
1) Cohabitation is lawful.
2) Children’s are legitimate and inherit the property.
3) The wife is entitled to full dower even if husband does not
contract cohabit for full term.
4) If wife leaves husband, then husband has a right to deduct
the amount of dower proportionately.
5) Muta-wife cannot get any maintenance under Shia law but
she may get it in Cr.P.C.
6) Incase of consummation not taken place no need to observe
Iddat.
7) There is no divorce in this form of marriage. Marriage
dissolves :
a) By death of either of the parties ; or
b) On the expiry of the specified period; or
c) The husband leaves wife before expiry of the term. Its
considered as he has made a gift of remaining period in
favour of wife.
Restitution of Conjugal Rights
- It means restoring the right of a spouse to live the other.
- If court finds that the spouse who is living seperately
without any reasonable justification, it shall compel him
(her) to live together.
Under Muslim Law, a wife can take following defences against
husband’s claim for restitution of conjugal rights:
1) False charge of adultery by her husband.
2) Non payment of prompt dower.
3) Repudiation by wife through ‘option of puberty’.
4) Renunciation of Islam by husband or using objectionable
words against Prophet.
5) The husband has been declared out caste.
6) Violation of a condition laid down in the marriage agreement.
7) Physical or mental cruelty by husband.

Dower
Introduction
- A marriage was contracted by purchasing the girl from
guardian – Ball marriage.
- The payment was considered as ‘compensation’ or ‘price’ of
the girl.
- In Beena marriage man used to approach the girl directly
and gave her some money or property to live with her.
- ‘gift for marriage’ is called as sadaq and the wife was called
as sadeeqa (girl-friend)
- Prophet prescribed a definite form of marriage (Nikah), be
retained the practice of payment of ‘something’ by the
husband.
- Firstly he declared in every marriage the husband is under
an obligation to pay ‘something’ to wife and not to guardian
- Secondly this payment to the wife is neither a ‘gift for
marriage’ nor’ price of girl’ but to acknowledge her dignity.
- It should be paid to the wife as a mark of respect.
Definition of Dower
Mahr or dower is that sum of money or property which a
Muslim wife is entitled to get from her husband on
marriage as a token of respect towards herself.
Concept of Dower
- A husband must pay to the wife to acknowledge her
dignity as his wife.
- Non specification of the dower does not affect the
validity of marriage.
The object of Dower
It is to provide a method by which the husband admits the
truth of his wife’s dignity.
Purpose of Dower is two-fold –
- First, dower is a consideration moving from the
husband in favour of the wife for her sole and
exclusive benefit.
- It also serves as an indirect check upon the husband’s
unrestricted right of pronouncing talaq.
Classification of Dower
Basis of classification :
a) Whether it has been fixed by parties or is fixed by operation
of law.
b) Whether the dower may be claimed by wife any time or only
upon the dissolution of marriage.
- Unspecified or proper dower.
Dower

Unspecified Dower Specified Dower

or Proper or Customary

Prompt Deferred

Unspecified or Proper Dower (Mahr-i-Misl)

- When the dower unspecified in a marriage, the wife is
entitled to get the Proper Dower.
❖ Hamira Bibi v. Zubaida Bibi –
Dower is an essential incident under Mussalman law to
the status of marriage, if it unspecified at the time of
marriage, the law declares that it must be adjudged on
definite principles.
❖ Marina Jatoi v. Nuruddin Jatai –
- Wife is entitled to get the Proper Dower if it was not
specified at the time of marriage.
While fixing the Proper Dower, following principles of law
are taken into consideration :
i) Personal qualifications of the wife,
ii) Social position of the wife’s father,
iii) The custom or tradition which prevails inn the wife’s
paternal family in respect of the amount of dower.
Acc. To Hedaya – regard must be paid to the age, beauty,
fortune, understanding and the virtue of the wife.
Shia law – the Proper Dower must not exceed 500
Dirhams.
Specified Dower (Mahr-i-Musamma)
The some of money or any property which is fixed as dower is
called Specified Dower.
- Dower may be specified before the marriage contract, at the
time of the marriage, or even after the completion of the
marriage.
Dower may be fixed by guardian
- When the parties are sane and have attained puberty, they
are competent to settle the amount of dower themselves.
- In case of incompetency of parties marriage guardian can
also fix the amount of dower.
- The dower fixed by the guardian is binding on boy to the
marriage.
Shia law – if marriage is contracted by guardian, the guardian is
personally liable to pay the dower.
What may be settled as dower?
It may be certain some of money or a specific property.
It must be in existence and reasonably certain.
If any future property is fixed it is presumed that there is no
dower at all.
Dower should not be un-Islamic.
Rents, profits or other beneficial interests of movable or
immovable property may also be settled as dower.
Under Sunni law personal service rendered by husband is not
dower.
Amount of Dower
- Any some of money or a property of any valuation may be
settled as Specified Dower.
- Its an indirect control over the husband.
- Minimum amount under Sunni law is 10 Dirhams.
Change in the amount of Dower
- Any time after marriage, parties may lawfully enhance
specified dower.
- But husband cannot reduce it subsequently.
- Wife may remit – remission of dower.
Prompt Dower
- Specified dower may either be Prompt or Deferred.
- Usually some portion of the Specified Dower is fixed as
Prompt and the rest as Deferred.
Characteristics of Prompt Dower
1) It may be demanded by the wife any time she likes, whether
consummation has takes place or not.
2) It need to be paid soon on demand or else interest need to be
paid.
3) Wife may refuse consummation till the prompt Dower is paid.
- It does becomes deferred only because it has demanded very
late.
Deferred Dower
A Deferred Dower is payable –
i) On the dissolution of marriage, or
ii) Upon the happening of a specified event, if so agreed.
- If marriage is dissolved by death of husband then wife’s
legal heirs are entitled to claim the Deferred Dower.
If not certain whether Prompt or Deferred
Ascertained according to following rules :
1) Sunni Law - What portion is Prompt and Deferred, would
depend upon the local custom, amount of the Dower and
status of parties.
2) Shia Law – The whole amount is regarded as Prompt.
3) The court has authority to treat the whole amount as
Prompt whether the parties are Shia’s or Sunni’s.
What amount of Dower is payable?
The amount of Dower to which wife is entitled in different
situations, is given below:
A) Valid marriage
i) If marriage has not been consummated, wife is entitled
to half of the specified amount.
- If option of Puberty is exercised – no dower is payable
ii) In case of consummation wife is entitled for full dower.
B) Irregular Marriage
i) In case of non-consummation wife is entitled to get
nothing.
ii) In case of consummation either Specified or Proper
whichever is less.
Remission of Dower
- She may remit her right to dower in favour of her
husband.
- Remitting of dower before marriage is void.
Conditions for remission of Dower
1) A wife must be adult and sane at the time of remission
of dower.
2) Free consent.
3) Remission is regarded as a release of the dower in
favour of her husband.
Absolute or Conditional Remission
- The remission may be Absolute or Conditional
- After the death of husband a widow can claim it from
legal heirs of the husband.

Absolute or conditional Remisson

Nature of the right to Dower
1) Once the right to dower is vested, it is never lost
Wife’s right to dower is not lost even if –
1) She renounces Islam, or
2) Commits suicide, or
3) Commits adultery, or
4) Commits the murder of her husband.
2) Unpaid dower is an unsecured debt
❖ Kapor Chand v. Kadar Unnisa
- Unpaid dower is like ordinary debt as a unsecured debt.

Enforcement of the Right to Dower

1) Refusal of conjugal rights
- If marriage is not consummated and dower is prompt wife may
refuse for consummation.
❖ Nasra Begum v. Rizwan Ali
- Prompt dower may be demended before the cohabitation.
- Guardian can take her back.
❖ Anis Begum v. Muhammad Istafa Wali Khan
- Wife left the husband till he pays the prompt dower.
- Courts have discretion to decide the matter of R/C/R.
2) Enforcement of Dower as debt
- Wife may recover it by maintaining an action in court of law.
- She may realise it as a creditor.
- If husband dies widow can claim it from legal heirs.
3) Widow’s right of retention
- The widow has a right to retain the properties of the husband
in lieu of unpaid dower.
Characteristics of Widow’s Right of Retention
i) Possession of the husband’s properties.
- Possession of the husband’s property only in lieu of unpaid
dower.
- Right to retain possession is to continue the possession and
not to acquire after the death of husband.
- Wife should have obtained the possession of husband’s
properties with his consent.
ii) Only possessory right
- It does not give any title or right of ownership to the widow
over the property possessed.
- Muslim law gives widow only a effective realisation of unpaid
dower from legal heirs.
iii) Payment of Dower from Income of Property
- Income or benefit also belongs to legal heirs.
- She must keep all the accurate account of all the
properties.
iv) Property is non-transferable
- widow’s right to retain the property is simply a possessory
right.
- Any transfer by widow is void.
❖ Maina Bibi v. Choudhary Vakil Ahmad
- In 1890 on the death of husband Maina Bibi retained
certain properties.
- In 1907 she gifted those properties and given the
possession.
- Non-payment of dower by legal heirs doesn’t makes her
absolute owner. The gift was held to be void.
v) Once possession is lost it is lost forever
- If widow transfers and delivers the property retained, the
possession does not come back to her.
- Possession goes to the legal heirs of the husband according
to their respective shares.
vi) Transferability of the right of retention
- There is a different view with Patna High Court and
Allahabad High Court.
- The right to retain the property against unpaid dower is
purely personal in nature and non-transferable.
vii) Heritability of the right of retention
- It can be inherited by the legal heirs of the widow if her
own retention was lawful and she died during such
retention.
❖ Tahirunnisa v. Nawab Hasan
- A widow died during the retention, leaving her daughter as
her heir.
- Court held that the daughter is entitled to hold the
possession of the property till the dower of her mother is
going to be paid.
Limitations of Suit for Dower
- The suit must be filed within the period of limitation.
- The suit must be filed within 3years from the date on
which dower was demanded or dissolution.
 Dissolution of Marriage
Introduction
A marriage may dissolve :
1) By act of God i.e. death of the husband or wife, or
2) By act of the parties i.e. divorce.
- Where a marriage terminates by act of the parties, the
dissolution is called divorce.
- Divorce being the evil, must be avoided as far as possible.
- Basis of the Islamic law of divorce is the inability of the
spouses to live together.
- A husband may divorce his wife by repudiating the marriage
without giving any reason.
- A wife cannot divorce husband on her accord.
- False charge of adultery(lian), insanity or impotency.
- Dissolution of Muslim Marriages Act, 1939 lays several
grounds.
Divorce by the Husband
Talaq
- Its an Arabic word which means ‘to release’. It means
repudiation of marriage by the husband.
- The law gives husband an absolute authority to terminate the
marriage.
- Talaq is permitted only when the wife by her conduct or her
words does injury to the husband or happens to be
impious.
Conditions for a valid Talaq
1) Capacity
- Talaq by minor or insane husband is void and ineffective.
- Talaq pronounced during lucid interval is valid.
- Guardian has right to pronounce Talaq incase of insanity
of minor only in the interest of minor.
- Talaq against minor or insane wife is also void and
ineffective.
2) Free consent
- There are three things which, whether done in joke or
earnest, shall be considered as serious and effectural ; one,
marriage, the second, divorce, and the third taking back.
Involuntary intoxication
- Involuntary or unintentional pronouncement of Talaq is
void in all the schools of Muslim law.
3) Formalities –
a) According to Sunni law Talaq may be oral or in writing.
b) Any expression by husband to dissolve the marriage through
Talaq.
c) No need of witness.
Shia law
a) Talaq must be pronounced orally.
b) Talaq must be pronounced in the presence of two competent
witnesses.
c) Shia law requires use of specific Arabic words.
4) Express words.
- Where husband clearly used the word Talaq he cannot say
that he did not mean divorce.
Presence of Wife
- Presence of Wife at the time of Talaq is not necessary.
- Wife must be specifically referred in Talaq
Notice of Talaq
- For its validity its notice to wife is not necessary.
- The Talaq is effective from the moment of its pronouncement.
- Knowledge of Talaq is needed to claim Dower and
maintenance of farmer husband.
Conditional and Contingent Divorce
Talaq may either be absolute or conditional.
❖ Bachchoo v. Bismillah –
on failure of payment of agreed maintenance Talaq will come into
effect.
❖ Mirjan Ali v. Maimuna Bibi –
failure of the husband to take the wife back within 90days.
❖ Bilquees Begum v. Manzoor Ahmed –
if wife goes to her female friend’s house there would be Talaq.
Shia Law – Its void.
Kinds of Talaq
1. Talaq –ul – Sunnat or revocable Talaq
i) Talaq Ahsan (most proper)
ii) Talaq Hasan (Proper)
2. Talaq ul Bidaat or irrevocable Talaq
1. Talaq –ul – Sunnat or revocable Talaq – approved form of
Talaq. There should be possibility of revoking the evil.
i. Talaq Ahsan (most proper) – Tuhr is a period of wife’s purity.
ii. Talaq Hasan – proper and approved form of Talaq.
Husband has to make single pronouncement of Talaq during
each period of Tuhr.
❖ Ghulam Mohyuddin v. Khizer
II. Talaq ul Bidaat – Irrevocable or Talaq ul Bain
It becomes effective as soon as the words are pronounced and
there is no possibility of reconciliation between the parties.
Shia Law – Irrevocable Talaq is not recognized.
‘I divorce thee’ , ‘I divorce thee thrice’, ‘I divorce thee
irrevocably’, ‘I divorce thee in Bain’.
❖ Marium v. Md. Shamsi Alam – Talaq pronounce thrice can
be revoked – Talaq pronounced in single breath is
considered as Talaq Ahsan which was revocable.
- As husband expressly revoked the Talaq before Iddat he
cannot be said to have serious regarding Talaq.
❖ Rahmatullah v. State of U.P. – Irrevocable (Talaq-ul-Bidaat)
Talaq is unlawful because this kind of Talaq is against the
dictates of Holy Quran.
- Irrevocable Talaq is violative of Articles 51-A(a), (e), (f), (h)
and Article 372.
Written Talaq –
- Under Shia Law - Talaq must be pronounced orally &
under Sunni Law Talaq must be oral or writing.
- It may be a letter, plea taken during suit proceeding, it may
also be in the form of an application to the Khazi.
- If date is specified Talaq becomes effective from that date or
happening of the specified event. “When my letter reaches
thee”
- But talaq Hasan shall be completed only after third
pronouncement.
2. Ila – Husband may not expressly repudiate the marriage but
his conduct dissolves the marriage. E.g.: If husband takes
an oath not to have intercourse with the wife followed with
no consummation takes place for further 4months, at the
expiry of 4th month marriage gets dissolved irrevocably.
- Shia Law – Ila does not operate as divorce without order of
the court of law.
- Zihar – It’s a constructive divorce.
- Husband compares his wife with a woman within his
prohibitted relationship e.g. mother or sister.
- After expiry of 4th month wife may claim for judicial divorce
or for restitution of conjugal rights.
- Shia Law – Declaration of Zihar must be made in presence
of two competent witnesses.
Divorce by Wife – A Muslim wife doesn’t have independent
right of divorce. She may divorce only under following
situations –
a) Where husband delegates to wife right of Talaq (Talaq
Tahfeez)
b) Where she is a party to divorce by mutual consent (Khula
and Mubarat)
c) Where she wants to dissolve the marriage under the
Dissolution of Muslim Marriage Act, 1939.
a) Delegated Divorce (Talaq-e-Tafweez) –
- Husband is having unrestricted and absolut right to
divorce his wife or even he may delegate it to another
person.
❖ Sainuddin v. Latifunnessa –
Husband delegated right to pronounce Talaq in the event of his
marrying second wife without permission of the first.
- Court held that divorce by wife was effective and the
marriage must dissolve.
Difference between Conditional Talaq and Talaq by Tafweez
1. Its subject to a condition or upon happening of a future
event ; Its authorised by the husband to do so.
2. Mere happening of that event is sufficient to dissolve the
marriage; marriage dissolves only if the wife has actually
exercised her right of divorce.
3. Not recognised by Shia law; Its recognised by both the
schools.
Divorce by mutual Consent
1. Khula – ‘to take off the clothes’ – divorce by the wife with
the consent of her husband on payment of something to
him.
❖ Munshee Buzlul Raheem v. Luteefutoon Nissa
Essentials of a Valid Khula
1) Competence of the Parties
2) Free consent
3) Formalities
- Ones offer and acceptance is complete it becomes
irrevocable.
- Presence of witness is necessary
- Shia law – Khula is revocable by wife during Iddat.
4) Consideration
- May be paid even on future date.
Mubarat
- In Mubarat both the parties are equally willing to dissolve
the marriage.
- Willingness of both the parties to get rid of each other.
- The parties must be competent and their consent must be
free.
Legal Consequences of Khula and Mubarat
 Judicial Divorce (Faskh)
- Islam provides for dissolution of a marriage by a Kazi or
Judge.
- ‘If a woman be prejudiced by a marriage, let it be broken
off’
The Dissolution of Muslim Marriages Act, 1939
The wife’s right of divorce was restored to her under this Act.
Salient features of enactments are as follows :
a) Sec.2 contains 9 different grounds on which a wife may file
petition for divorce.
b) The above stated grounds are available only to the wife.
c) Wife must have attained 18 years.
d) U/S 7 the apostasy of wife doesn’t affects her right under
this Act.
e) It applies to Muslim wives of any sect or schools.
Grounds of Judicial Divorce by Wife
The benefits of the enactment were available to wife even
though her marriage was solemnized before or after the
commencement of the Act.
The grounds of Divorce U/S. 2 are as given below :
1) If the husband is missing for 4years.
2) Husband’s failure to maintain wife for more than 2years.
❖ Yousuf Rowthan v. Swarmma
- Even if wife lives separately without any reasonable excuse
she is entitled to get a decree or dissolution of the
marriage.
3) Imprisonment of the Husband for 7 years.
4) Husband’s failure to perform marital obligations for 3yrs.
5) Husband’s Impotency
Wife need to prove –
i) The husband was impotent at the time of marriage.
ii) He continues to be impotent till the filing of the suit.
❖ Gulam Mohd. Khan v. Hasina
- The husband produced Medical Certificate to prove his
potency.
6) Husband’s insanity, leprosy or venereal disease
7) Option of Puberty by wife
8) Cruelty by Husband
a) Habitual assault on the wife
❖ Syed Ziauddin v. Parvez
- Ziauddin refused to support Sultana for her studies.
b) Association of the husband with women of evil repute
c) The husband attempts to force his wife to lead an immoral life.
d) The husband disposes the property of wife or prevents her from
exercising her legal rights over it.
❖ Zubaida Begum v. Sardar Shah
The husband sold the ornaments of his wife with her consent.
Court held that conduct of the husband cannot be treated as
cruelty.
- The real test is, whether the disposal hurts the feelings of the
wife or not.
e) Husband obstructs her in the observance to her religious
practices.
❖ Aboobecker v. Mamu Koya
- Mere departure from standards of suffocating orthodoxy does not
constitute un-Islamic behaviour.
f) If the husband has more wives than one and he does not
treat her equitably in accordance with injunctions of Quran
❖ Itwari v. Asghari
- The test of cruelty is based on universal and humanitarian
standards;
- Conduct of the husband which would cause such bodily or
mental paid as to endanger the wife’s safety or health.
9) Any other ground which is recognised as valid for the
dissolution of marriage under Muslim law.
- Lian (False charge of adultery against the wife)
Clause (ix) : A Residuary Clause
❖ Muhammad Usman v. Sainba Umma
- Although there was no express ground mentioned in the
Dissolution of Muslim Marriage Act, the court held “living
with hostility for considerable number of years, it is
legitimate to draw inference that the marriage has broken
down I reality.
Effects of Apostasy on Marriage
- Renouncing or giving up one’s religion.
Sec. 4 of the Dissolution of Marriages Act, 1939 modifies the effect
as below:
1) Apostasy by Husband
- Wife ceases to be Muslim Wife and free to marry another
person (immediately) without waiting for the Iddat period.
2) Apostasy by Wife
- The marriage is not dissolved.
- If she wants, she may obtain a decree for the dissolution of
her marriage on any of the grounds U/S.2.
3) Exception
- Apostasy by a converted Muslim wife results in the immediate
dissolution of her marriage.
Sec.4 of the Act does not have retrospective effect.
Legal Effects of Divorce
After completion of every form of divorce, the marriage is dissolved
and the parties cease to be husband and wife.
Effects of Divorce :
1) Cohabitation becomes illegal
2) Iddat
3) Maintenance during Iddat
4) Right to Contract Another Marriage
5) Dower – specified dower in case of consummation.
6) Re-marriage of the divorced couple
❖ Rashid Ahmad v. Anisa Khatun
- Court held the union of Ghiyasudin and Anisa Khatun
after the triple divorce, was void.
❖ Khadija v. Muhammad
- The remarriage is not void its mere irregular (fasid), the
child is legimitate.
7) Mutual rights of inheritance ceases
Divorce during Death-illness (Marz-ul-Mout)
- Its an apprehension of death in the mind of a person that
his (her) death is certain and that person subsequently dies
due to that very illness.
Where husband divorces wife during death-illness, the wife’s
rights of inheritance are subject to following rules :
a) Under sunni law, if husband dies during wife’s Iddat wife is
entitled to property. If wife dies during Iddat, the former
husband cannot inherit.
b) Under Shia Law
 PARENTAGE AND LEGITIMACY
Parentage
Importance of this legal relation lies in the fact that it involves
certain rights and obligations in respect of maintenance,
guardianship and inheritance.
Maternity
Legal relation between a child and mother is called maternity.
The fact of giving birth to a child is sufficient. As such, the child is
entitled to inherit the mother’s properties.
Shia Law : Maternity of a child is established in a woman only if
the child is born to her out of lawful marriage.
Paternity
Paternity cannot be established by fact. Maternity is fact whereas
paternity is a presumption.
Paternity depends upon the existence of a marriage at the time of
conception of the child.
Legitimacy
When the paternity of a child is established, its legitimacy is also
established.
Under Muslim law legitimacy is established by proof of marriage
between the father and mother.
The existence of a lawful marriage may be presumed by –
i) A prolonged cohabitation of a man and woman (not
prostitute), or
ii) By the fact that a man acknowledges a woman as his wife ,
or
iii) By the fact that man acknowledges himself as father of a
child.
Marriage between a man and woman and th4e legitimacy of
their off-springs are co-related.
❖ Habibur Rahman v. Altaf Ali
- A son to be legitimate must be the off-spring of a man and
his wife.
Presumption of Legitimacy under Islamic law :
Islamic law of presumption is not applicable in India. Under
pure Muslim Law the presumption of legitimacy are as
under:
1. A child born within 6months of marriage is illegitimate
unless the father acknowledges it.
2. A child born after 6 months of marriage is legitimate unless
father disclaims it.
3) A Child born after the dissolution of marriage is legitimate if
born –
i) Within 10months of dissolution (Shia law);
ii) Within 2years of the dissolution (Hanafi law);
iii) Within 4years of the dissolution (Shafie & Maliki law)
The Present Law of Legitimacy
U/S 112 of the Indian Evidence Act, 1872. Following facts shall be
the conclusive proof of the legitimacy of a person :
1) That the person was born during the continuance of a valid
marriage.
2) That the person born within two hundred and eighty days
after the dissolution of marriage, the mother remaining
unmarried.
Unless it can be shown that the parties to the marriage had no
access to each other.
Difference Between present Law and Islamic Law :
1) Under Muslim Law, a legitimate child is not only born but also
conceived during valid marriage. In Evidence Act a child born
even after a day of marriage is valid.
2) Under Muslim law child born within 2years is legitimate, but
under evidence Act child born after 280 days is not legitimate.
Courts of law in India preferred to rely on Evidence Act instead
of Muslim Law of legitimacy.
❖ A.G.Ramachandran v. Shamsunnisa Bivi
- Sec.112 of the Evidence Act is very general in application
and it applies to all persons.
- But incase of child born out of void marriages its not
applicable to decide legitimacy.
❖ Abdul Raheman Kutty v. Aisha Bivi
- Wife found pregnant after few days of marriage, marriage
was void because of concealment of pregnancy.
- Legitimacy cannot be decided by Evidence Act, because
marriage is not valid.
❖ Dukhtar Jahan v. Mohammad Farooq
- Court held ‘giving birth to a viable child after 28 weeks
duration of pregnancy is not biologically improbable or
impossible.
 ACKNOWLEDGEMENT OF PATERNITY (Ikrar-e-Nasab)
Where the paternity is uncertain because its conception or
birth couldn’t be established at the time of parents
marriage, the husband may by declaration acknowledge
and accept the paternity.
- Acknowledge may establish a valid marriage and also
legitimacy of child.
- A Child born out of Zina or parents marriage being void
because of prohibited degrees of relations,
acknowledgement is void.
❖ Muhammad Allahabad v. Md. Ismail
- Court held – Where the paternity or descent of a child from
father cannot be proved by establishing a marriage between
his parents at the time of his conception or birth, law
recognizes acknowledgement.
Express and Implied Acknowledgement
- A clear proof of the declaration of acknowledgement of
paternity is not necessary.
- Clear intention to confer the status of legitimacy must be
inferred from the conduct of the acknowledger.
Conditions for a Valid Acknowledgement
- Acknowledgement of paternity is a part of substantive Muslim
law. Following conditions are necessary for a valid
acknowledgement :
1) The child acknowledged must not be an offspring of illicit
intercourse (Zina)
2) The child must not be the offspring of any other known
person.
3) There must be such difference in the respective age of the
child.
4) The acknowledgement is not only as son or daughter but its
for all purposes including inheritance.
5) The acknowledged child has an option to repudiate the
acknowledgement.
Acknowledgement of Paternity is Irrevocable
Legal effects of Acknowledgement of Paternity
1) The Child becomes the legitimate issue of the acknowledger
and its paternity is established.
2) The child is entitled to inherit properties.
3) It establishes a lawful marriage between the child’s mother
and the acknowledger.
Adoption in Islam
Muslim law does not recognise adoption.
Quran expressly prohibits adoption as a mode of accepting
other’s child as one’s own.
 GUARDIANSHIP
Introduction
Under Muslim law, the age of majority is regulated by two
systems :
1) The classical Muslim Law and
2) The statutory law.
Under classical Muslim law : attainment of puberty.
a) For purposes other than marriage, dower and divorce the
age of majority is governed by Indian Majority Act, 1875.
b) If guardian appointed by court the age of majority will be
21 years.
c) For the purposes of marriage, dower and divorce age of
majority will be attainment of puberty but for the same
cause to file suit in court minimum age is 18 yrs.
Classification of Guardians
1) Natural and Legal Guardians –
Natural guardian is a person who has a legal right to control
and supervise the activities of child. Father is the natural
guardian.
Natural guardian is also called as DeJure or legal guardian.
- In the absence of father executor appointed by father
will act as guardian.
- In the absence of above paternal grandfather of executor
appointed by him will be the legal guardian.
Shia Law – Father or Paternal Grandfather.
Testamentary Guardian
- A person appointed as guardian under a will. Only father, in
his absence paternal grand father can appoint.
Shia Law – a non muslim cannot be appointed as testamentary
guardian.
Guardians appointed by Court
In the absence of the natural or testamentary guardian, the court
may in accordance with Guardians and Wards Act, 1890
appoint a guardian for minor’s person or property.
Court here means court of the District Judge.
The application for appointing guardian can be made by :
i) Any person desirous of being or claiming to be the guardian,
ii) Any relative or friend of the minor,
iii) The Collector of the District in which the minor generally
resides.
If the court is satisfied it may make an order –
a) Appointing a guardian of minor’s person or property, or both,
or
b) Declaring a person to be such a guardian.
De-facto Guardians
He is neither legal guardian nor testamentary or statutory, but has
himself assumed the custody and care of a child.
Powers and Functions of Guardians
1) Guardianship of the ‘Person’ – (Wilayat-e-nafs)
It means care and welfare of the child including the liability to
maintain it. Custody of the minor is called ‘Hizanat’.
Mother has right to custody of child but subject to supervision of
the father.
Mother’s Right of custody (Hizanat) of the child -
Mother has right to custody of child for certain age.
Incase of boy 7yrs and incase of girl upto attaining puberty.
❖ S.Rehan Fatima v. Syad Badinuddin Perviz
- H/C of A.P. held that, under Muslim Law the mother’s right to
the custody of her child continues even after the dissolution of
her marriage by Talaq.
❖ Zaynab v. Md. Ghouse –
- Court held that conversion of mother does not deprive her of the right
of Hizanat.
When Mother’s Right of Custody (Hizanat) is Lost?
The mother’s right to custody is lost in the following circumstances :
a) Where the divorce or widowed mother remarries.
b) Where the mother leads an immoral life or is of bad character affecting
the interest of child.
c) Where she is unable to take proper care of her child.
In the absence of mother, the following female relations of the child are
entitled to custody in order of priority :
i) Mother’s mother;
ii) Father’s mother;
iii) Mother’s grand mother;
iv) Father’s grand mother;
v) Full sister;
vi) Uterine sister;
vii) Full sister’s daughter;
viii) Uterine sister’s daughter;
ix) Full maternal aunt, and
x) Uterine maternal aunt,
xi) Full paternal aunt.
Father has no right to appoint testamentary guardian, for period
during which custody should be with mother.
Shia law – a mother is entitled to the custody of her infant son
only upto 2years, and of her daughter upto 7 years.
In the absence of father, father’s father is entitled to the custody of
infant.
Father’s right of Custody (Hizanat) of a Child
Father is custody under following two stages :
1) Only in the absence of disqualification mother and other
female relations of child.
2) Incase of boy soon after 7yrs and incase of unmarried girl
after attaining puberty till they become adult(18yrs).
After the age limit in which the mother or her relatives cannot hold
the custody, its father.
❖ In Siddiqunnisa v . Nizamuddin
- Court held that, in the presence of father, who is not ‘unfit’ for
guardianship, the court cannot appoint any other person as
guardian.
- In the absence of the father, the custody of a child belongs to
paternal relations in order of priority.
- The custody by the paternal relations is permitted only if they
stand in prohibited degrees with the girl.
Custody of Illegitimate Child
Only mother is entitled to have the custody of such a child as
natural guardian.
Custody of Minor Wife
Till wife attains puberty her custody will not be given to
husband.
❖ Nur Kadir v. Zuleikha Bibi
- According to rules of Muslim Law mother or in her absence
a substitute of the mother, is entitled to the custody of a
minor wife against the husband.
- But, U/s 19 of the Act the right lies with Husband
Guardianaship for marriage (Wilayat a Nikah)
A ‘marriage guardian’ is a person, who under Muslim law is
authorised to contract the marriage of a minor.
- A guardian for person or property of the minor cannot
become guardian for marriage.
- Under Muslim Law, the marriage-guardian has a right to
confer the status of marriage on the minors against or
without their consent.
Who are the Marriage Guardians
The following persons, in the order of priority, are entitled to
act as guardian for marriage :
1) Father ;
2) Paternal grand-father, how high soever;
3) Brother or other male members of the father’s family,
4) Mother;
5) Maternal relations,
6) The Kazi or the Court.
Shia Law – the only guardians for the marriage are –
1) The father, and
2) The paternal grand father.
- Order should be followed strictly.
- A nearer guardian excludes the remoter.
- The marriage by remoter, without consent of nearer
guardian invalidates the marriage.
❖ Abdul Ahmad v. Shah Begam
- Marriage is void-ab-initio, but nearer can validate it by
ratification.
Apostasy of Marriage Guardian
- Guardian loses to contract the marriage of minor.
Guardianship of the Property
Legal Guardians of the minor’s property –
1) Father ;
2) Executor appointed by father under a will;
3) Paternal grandfather,
4) Executor appointed by paternal grandfather under a will.
- the father and paternal grandfather can appoint any person as
testamentary guardian.
- Mother or other near relations of the minor have no right of
their own to act as guardians.
❖ Gurubax Singh v. Begum Rafiya
- Mother has no right to enter into any contract on behalf of
minor child’s property.
Powers of the Legal Guardians
- Guardian can deal with the properties of a minor depend upon
the nature of the property and transfer.
- Under Muslim law legal guardian has wide scope for movables
but limited scope for immoveable properties.
Transfer of Immoveable property by Legal Guardian
Courts have laid down specific rules relating to guardian’s
powers over the minor’s immovable properties.
Sale – A legal guardian can sell immovable property of a minor
only under following circumstances.
1) Where by sale, the guardian can get double the value of
property.
2) Where it is necessary to maintain the minor.
3) The sale is necessary for the satisfaction of a debt incurred
by the deceased from whom minor inherited property.
4) General provisions in will for payment of legacies.
5) Where the property ceases to be beneficial property.
6) Where the property is in the hands of usurper and which
cannot be recovered from such person.
7) Where property is decaying or is being destroyed, or there
is an imminent danger of its being lost.
- The only consideration in sale should be the benefit of
minor.
Mortgage – same as of sale.
Lease – it must not exceed the time period of minority.
Transfer by Guardian is Voidable
Transfer of Movable Property by Legal Guardian
The guardian has right to sell, pledge or pawn the movables for
the sake of minor’s necessities.
Right to enter into Contracts
- Legal guardian is competent to enter into contract on
behalf of minor.
❖ Sri Kakulam v. Kurra Subba Rao
- Privy Council held that a de jure or legal guardian is
empowered to enter into contracts on behalf of minor for
his interest.
A legal guardian is competent to exercise the right of pre-
emption on behalf of the minor.
Acknowledgment of debt
Testamentary Guardians of Minors property
- He will also act like a legal guardian under Muslim Law
In the absence of the above the court will appoint the guardian,
he is termed as certificated guardian.
Powers of Testamentary Guardian
Transfer of Immovable Property
U/s 33 of the Act the court has authority to define, extend and
restrict the powers of guardian from time to time.
Such a guardian cannot sell, exchange, mortgage or charge
immovable property of a minor without the previous
permission of the court.
Lease – guardian can lease out the minor’s property for a period
of five years, or for any term not exceeding one year after
the minor attains majority.
Movable property
Guardian must deal with minor’s movables as carefully as a
man of ordinary prudence.
De facto guardian of minor’s property
De facto guardian is no guardian in the eyes of law and is
simply an unauthorised person who deals with the minor’s
properties. Legal effects of his dealings are :
Immovable property
Any transfer of property by a de facto guardian is void ab initio.
❖ Mohd. Amin v. Vakil Ahmad
- Unless the brother, uncle or other relatives of the minor
has been specifically appointed by the court, they have no
authority to transfer immovable property.
❖ Gayasuddin v. Allahtala Waqf Mansooma –
- Allahabad court held that mother whose legal status is
merely a de facto guardian, has no right to execute Waqf of
properties of minor son on his behalf and Waqf is void.
Movable property –
A de facto guardian is empowered to sell and pledge the
movable properties of minor if required for necessities.
 Maintenance
I) Introduction – Maintenance means provisions for fooding,
lodging and other essential requirement for the livelihood.
- Two significant principles of Islamic concept of
maintenance
i. Islam permits only those persons(except wife) to be
maintained by others who are bound to depend on others
because of age or lack of means to livelihood.
ii. The obligation to maintain and to bear the burdon of
fooding, lodging etc., of others is reasonably restricted in
Islam.
Wife being exceptional case can claim maintenance from her
husband even if she has enough property to maintain
herself.
Persons entitled to Maintenance
A person has a right to be maintained by another on the basis
of (a) marriage, and (b) the blood relationship.
Under the muslim law the following persons are entitled to the
maintenance.
1. wife,
2. Young children,
3. The necessitous parents, and
4. Other necessitous relations within the prohibited degrees.
Maintenance of the Wife
The wife’s right to be maintained by her husband is absolute.
It arises out of her status.
Wife is preferred even over the young children because wife is
considered to be the source or root(asl) and a child is the
offspring or a branch(fara).
Conditions for wife’s Right of Maintenance
1) Existance of valid marriage(sahih) or muta
marriage(U/S.125 of Cr.P.C)
2) Husband’s duty begins only from the date of her attaining
puberty.
3) Although its an absolute right yet, wife must be faithful
and obedient to husband.
4) If the wife’s conduct is justified in the eyes of law, the husband
is bound to maintain her.
The wife would lose her right to maintenance in the following cases
:
a) If she refuses access to her husband on some lawful ground,
or
b) Where marriage cannot be consummated
- By Living separately from husband she wont lose her right.
❖ Itwari v. Asghari –
- Second marriage by a husband is a ‘continuing wrong’ against
first wife.
- Muslim wife may also live separately if the husband keeps
mistress.
Maintenance of Wife under Criminal Procedure Code
Muslim wife’s right is also determined by the Criminal Procedure
Code.
Claim of a wife for the maintenance under this Act is an
independent statutory right and is not affected by her
personal right.
❖ Begum Subanu v. A.M.Abdul Gafoor
- Irrespective of a Muslim husband’s right to contract a second
marriage, his first wife would be entitled to claim
maintenance.
Enforcement of Wife’s right of Maintenance
- Wife can file civil suit
Enforcement under Personal Law
- Wife can arrears of past maintenance if any agreement exists.
- Such agreement assures a wife to receive regular pocket-
allowance called Kharch-i-pandan or, Mevakhori.
Enforcement under Cr.P.C .
- Magistrate has an authority to change or cancel the
maintenance.
- The magistrate may issue warrant for levying the amount due
in the manner provided.
Maintenance of the Divorced Wife
a) Muslim Personal Law –
Quran – “for the divorced women let there be a provision in
kindness; this is an obligation for those who are mindful of
God.”
- A divorced wife can claim maintenance from the former
husband only for the period of Iddat.
❖ Mohammad Ali v. Fareedunnissa Begum
- Under Muslim law divorced wife cannot claim her past
maintenance unless the claim is under specific agreement.
- Maintenance of divorced Muslim woman is now governed
by the Muslim Women(Protection of Rights on Divorce) Act,
1986.
- Muslim woman is entitled to claim maintenance from
former husband only upto the period of Iddat.
b) Maintenance of Divorced Muslim Woman Under Cr.P.C
- U/S.125 ‘wife’ includes ‘divorced wife’
- It’s a secular enactment.
U/S 127(3) – woman shall be entitled to maintenance, under
the following circumstances :
a) Remarraige,
b) Where such woman has received whole sum due to her on
divorce under customary or personal law, and
c) Voluntary surrender of right to maintenance.
❖ Bai Tahira v. Ali Hussain –
Divorced Muslim wife is entitled to maintenance even if she has
already received the whole amount due to her under the
personal law.
❖ Mohd. Ahmed Khan v. Shah Bano Begum –
c) Maintenance Under the Muslim Women Act, 1986
Enactment deals with the provisions for the maintenance of a
divorced Muslim woman during and after the period of
Iddat and also for enforcing her claim to unpaid dower.
1) Application of the Act –
Applies to all such woman married according to Muslim law
and has been divorced according to provisions of Muslim
Law.
2) Maintenance during the Iddat –
- Magistrate shall fix amount having regard to the needs of
the divorced woman, standard of life enjoyed by her during
marriage and means of her former husband.
3) Maintenance after the Iddat
Sec.4(2) – A divorced woman who is unable to maintain herself,
has no relatives, the Magistrate may, by order, direct the
State Waqf Board to pay such Maintenance.
❖ Syed Fazal v. Union of India –
Direction Waqf Board to pay maintenance to divorced Muslim
woman, in not violative of Art.26 of the Constitution.
4) Dower and other Exclusive Properties of Wife
5) Option of Sec.125 Cr.P.C.
The Muslim Women Act has made the operation of Cr.P.C.
optional.
6) Cases pending under Cr.P.C.
Sec.7 of the Act provides every application U/S. 125 or 127
shall be disposed off by Magistrate, provided parties have
opted.
❖ Usman Khan Bahmani v. Fatimunnisa Begum
- Operation of Sec.125 or 127 are excluded on the
commencement of Muslim Women’s Act, 1986.
7) Orders already passed under Cr.P.C.
- The orders already passed are not affected.
❖ A.A.Abdulla v. A.B.Mahmuna Saiyad Bhai
- The orders already passed by Magistrate U/S.125 are not
to be nullified.
8) Revision or modification of orders already passed.
Maintenance of the Children
The father is under an obligation to maintain his son till the son
attains puberty.
The father is liable to maintain his daughter till she gets married.
The minor son and unmarried daughter living separate from father
cannot claim maintenance unless they have justifiable
ground.
Father needs to provide maintenance also to his widowed or
divorced daughter if she is unable to maintain herself.
A father is bound to maintain his son or daughter even if they are
not under his custody.
Maintenance of Children under Muslim Women Act, 1986
A divorced wife is entitled to claim maintenance from former
husband also for children under her custody, for a period of
two years.
Sec.125 provides that children are entitled to be maintained by
their father till they attain the age of majority.
Children right to claim maintenance is separate right which is not
dependent on their mother’s claim of maintenance.
❖ Noor Saba Khatoon v. Mohd. Quasim
- The obligation of a Muslim father, is absolute, not
withstanding the fact that the minor children are living with
divorced wife.
Maintenance of Illegitimate Children
As father is not legal guardian, he is under no obligation to
maintain such children.
❖ Pavitri v. Katheesumma
An illegitimate daughter of a Muslim male and a Hindu female was
not entitled to get any maintenance.
However, a father whether Muslim or Non-Muslim, is under an
obligation to maintain his illegitimate children under Cr.P.C.
Maintenance of the Parents
Under Muslim law, the children are bound to maintain their
necessitous parents and grand-parents.
Rules of Muslim law, relating to maintenance of parents may be
stated as under :
1) Only need parents are entitled to get maintenance from their
children.
2) Sons and daughters, both are equally liable to maintain their
parents. Liability is joint and equal.
3) A son, though poor is bound to maintain his mother, if she is
poor.
4) If a child is in a position to support only one parents
separately, mother gets priority over father.
5) They may take their parents with them and live together.
6) A son is not bound to maintain his step-mother.
7) Even if the religion of the parents differs from children the
parents are entitled to be maintained.
Maintenance of Grand parents.
Statutory provisions for the Maintenance of Parents.
Maintenance of the Relatives
Collaterals will be responsible to support.
The Muslim law of maintenance is based on the principle of
reciprocity.
The relative, who are entitled to inherit the properties of a
person, have corresponding obligation to maintain them.
Shia law – collaterals are not bound to maintain.
Daughter-in-law
Recovery of maintenance Allowance granged Under Cr.P.C.
❖ Kuldip kour v. Suurinder Singh
- Sentencing a person to jail is a mode of enforcement and
not a mode of satisfaction.
 Waqf
Introduction
Literal meaning of Waqf is detention.
Under law Waqf means detention of a property so that its produce
or income may always be available for religious or charitable
purposes.
The object of detaining the property is to ensure that its usufruct
may continuously be available for religious and charitable
purposes.
It has its origin from traditions of Prophet.
In Islam it is believed that after constituting a waqf, its property
owned by Almighty God and it reaches beyond human activity.
Difference Between Waqf and Trust
1) A waqf may be created only for religious, pious and charitable
purposes, a trust may be constituted for any lawful object.
2) The founder of waqf cannot reserve any benefit for himself,
but the founder of a trust may himself be a beneficiary.
3) Powers of Mutawalli are very limited as compared to the
powers of trustee.
4) Waqf generally perpetual and irrevocable, whereas, a trust
need not be perpetual and may also be revoked.
- A muslim, who transfers his property for a waqf, is called
its founder or Waqif. The person who looks after property
and manages to distribute the usufruct according to its
object is called Mutawalli.
- The beneficiaries are called as Alaihim.
Definition of Waqf
Sec. 2(1) of the Mussalman Waqf Validating Act, 1913 defines
waqf as under :
“Waqf means the permanent dedication, by a person professing
Mussalman faith, of any property, for any purpose
recognised by the Mussalman law as religious, pious or
charitable”.
Charcteristic Features of Waqf
i) Perpetuity
ii) Non-transferable.
iii) Irrevocability
iv) Absoluteness
v) Religious or charitable use of usufruct.
Essentials of a Valid Waqf
1) There must be an Permanent dedication
- Corpus is detained by god and usufruct is utilised
continuously for its objects.
- Under Muslim Law perpetuity is an essential condition.
❖ Mohd. Isamail v. Thakur Sabir Ali
- To constitute a lawful Waqf, it is necessary that there should
be a permanent settlement of the property.
- ‘permanent dedication’ or, vesting of the waqf property in the
God has following legal effects.
a) non-transferability (‘tied up’ forever)
b) Irrevocability – once a waqf always a waqf.
- The Waqif as a human being cannot subsequently revoke it.
- Some alterations as to beneficiaries is not considered as
complete change of waqf or its revocation.
- A testamentary waqf is revocable.
c) Absolute and unconditional – existence of the waqf does not
depend upon any future event.
❖ Muhammad Arif v. State of Gujarat
- If the creation of waqf is dependent on any future event, the
waqf is void ab intio.
2) Competency of the Waqif : Who can make a Waqf?
- A person must possess the capacity, as well as the right to
constitute the waqf.
a) Capacity to Constitute Waqf
- Every Muslim, who is of sound mind and has attained the
age of majority, has capacity to constitute a waqf.
- Waqfs constituted by minors are void-ab-initio and cannot
be ratified.
- A non muslim can also constitute a valid waqf under Waqf
Act, 1954.
- The dedicator must profess Islam and believes in the
principles of Islam.
b) Right to make waqf
- The settlor must be owner of the property dedicated.
- A lessee or a tenant has no right to constitute a waqf.
- Waqf by Pardanashin Lady
- Consent of Waqif must be free
- Amount of property Dedicated
3) Subject-matter of Waqf : The Property
- A movable property cannot be dedicated independently
unless it’s waqf was allowed.
What cannot be Subject-matter of Waqf?
Following kinds of property cannot be subject-matter of a waqf
i) A dower-debt
ii) Right to recover money from debtor under a simple money
decree.
iii) Rights of a usufructuary mortagagee.
Waqf of Mushaa
The sunni doctrine of Mushaa is not applicable to waqf.
A waqf of the Mushaa property is not valid in following cases :
1) Waqf for construction of Mosque
❖ Gayasuddin v. Allahtala Waqf Mausuma
- Since a waqf for Mosque cannot be constituted from
undivided (Mushaa) property therefore, the waqf is not
valid.
2) Waqf for Graveyard
3) Waqf of Leasehold Property
4) The Object of Waqf
- To get spiritual or religious benefits.
- The object of the waqf must not be un-Islamic.
Making provisions for the maintenance of one’s own children and
descendant is also regarded as a pious work.
Such waqf is called a family-waqf, or waqf-al-aulad.
❖ Bikani Mia v. Sukh Lal Poddar
- The benefication bestowed upon descendants, will upon their
extinction, expressly or by implication of law, continue to the
general poor.
Legal objects
Death anniversary (Barsi) of Waqif
Illegal objects
1) Objects which are against basic principles of Islam.
2) Construction and maintenance of gambling Den
3) Benefit for the utter strangers
4) Benefit of lawyers
5) Benefit only for the rich people
6) Celebrating death anniversary of the settler
7) Provisions for feasting Cutchi Memons on death anniversary of
the settlor.
8) Provision for repair of settler’s secular property.
Objects Partly Legal and Partly Illegal
Object must be Certain
The purpose for which a waqf has been created, must be
reasonably clear.
It is not necessary that the name of the particular object must be
specified.
The required thing to make ‘object’ certain is purpose for which
the income of the property is to be spent must not be
ambiguous or vague.
❖ Fazal Sheikh v. Abdur Rahman
- Any object recognised by Shariat to be welfare.
Doctrine of Cypres – ‘As nearly as possible’
Doctrine of Cypres is applicable where :
a) Lapse of time or,
b) Changed circumstances or,
c) Some legal difficulty or,
d) Where the specified object has already been completed.
❖ Salebhai Abdul Kader v. Bai Safiabu
- The income of the Waqf can be made use for very similar
object.
5) The Formalities : Modes of Creation
Formalities
- May be oral or in writing.
- Registration is not necessary
- If waqf of immovable property costing more than Rs.100 is
created, it should be registered
- Delivery and Possission
- Mutawalli may not be appointed simultaneously but even
subsequently.
Shia Law
Delivery of possession of the property is necessary for the
completion a waqf.
1) Declaration
2) Appointment of Mutawalli.
3) Delivery of possession at a Mutawalli.
Modes of Creation
a) By dedicating the property immediately;
b) By dedicating the property immediately;
c) By immoral user.
Testamentary Waqf
Waqf by Immemorial User
The Beneficiaries (Alaihim)1
a) For the benefit of rich & poors
b) For the benefit of rich thereafter poor
c) For the benefit of poors alone
- A non-muslim is a competent beneficiary
Reservation of income for the benefit of Waqif
1) Whole or part can be given
2) Right of residence at dedicated place
3) Income can be reserved for the exclusive benefit of some
specific person.
4) For the payment of debt
Shia law
❖ Abadi Begum v. Kaniz Zainab
- After dedication nothing is left with the dedicator
THE MUTAWALLI
Mutawalli is the manager of the waqf property.
Mutawalli has no beneficial right in the property.
Any mismanagement or negligence on his part amount to
disrespect to God.
Who can appoint Mutawalli
Mutawalli may be appointed by any one of the following :
i) By founder of the waqf,
ii) By executor of the founder,
iii) By a mutawalli on his death,
iv) By the court, and
v) By congregation.
The above list is in the order of preference.
Shia Law – Founder himself has to appoint mutawalli, without
appointment of mutawalli, the waqf under shia is void.
i) Appointment by founder :
- Founder of waqf has absolute power to appoint mutawalli.
- He may appoint himself or executor for such waqf property.
- .
- founder may make office of mutawalliship hereditary.
❖ Ali Ashgar v. Fariduddin
- The founder was competent to appoint any person of his
choice as mutawalli.
ii) Appointment by Executor – Executor will appoint Mutawalli in
the following circumstances.
- When office becomes vacant by death of Mutawalli or his
refusal to hold office, or
- He has been removed by the court.
iii) Appointment by Mutawalli on death bed :
Mutawalli may appoint his successor under 2 conditions –
a) That he is on death bed and there is no possibility of his
survival; and
b) Office of Mutawalli would remain vacant if he doesn’t appoint
his successor.
- Ex necessitates rei – (because of urgent necessary)
iv) Appointment by Court –
- Court here means the District Court.
- If Court finds that existing Mutawalli is not discharging his
duties properly it may remove him and appoint another.
- .
While appointing Mutawalli Court has to taken into account-
a) It should not disregard the directions of the founder.
b) So long the qualified member of the founder’s family is
available, the court should not appoint the stranger.
c) In case of contest between lineal descendant of founder and
non descendant, court is not bound to appoint the non lineal
descendant.
v) Appointment by Congregation –
- An assembly of persons of a particular locality, having
beneficial interest inn the waqf property.
Who may be appointed as Mutawalli:
A person of sound mind and who attained majority may be
appointed as Mutawalli.
- Minor Mutawalli – where office of Mutawalli is hereditary.
Females and non-muslim Mutawalli can be appointed as
Mutawalli under following circumstances.
1) Where office of Mutawalli is purely secular in nature
2) A woman can be appointed as head mujawar of Astan.
3) Women in Nellore District is not disqualified from holding
office of Khatiba.
4) .
In the following cases females and non-muslims cannot be
appointed as mutawalli.
i) Where the Mutawalli is to act as Sajjadnashin or spiritual
head.
ii) Where he has to act as Imam, to lead religious prayers.
iii) Where he is to act as Mulla.
iv) Where he is required to give religious preaching as Khatib.
v) Where he has to act as a mujawar of a Dargah.
Remuneration of Mutawalli
- Mutawalli is entitled to get remuneration and founder himself
provides for the remuneration.
- Founder may provide fixed sum to be paid periodically or
residue of waqf can also be assigned towerds remuneration.
- Remuneration fixed by Court should not exceed one-tenth of
waqf income.
Powers and functions of Mutawalli
- He is manager of waqf property.
- His primary duty is to preserve the property as his own, but
manage and spend it like a servant of God.
- He has to administer the property strictly according to
direction of founder.
Mutawalliship Non-transferable.
- His office is non-transferable during his life.
- If the power given by founder he may assign some of his
works to other person or co-mutawalli.
Possessory Right
Power of Sale and Mortgage
Mutawalli can transfer a property in the following situations:
a) Where founder has authorised him to do so, or
b) Where mutawalli has taken the permission of the court of
law.
Power to grant lease
Mutawalli has power to grant lease, but it is limited as to
period is concerned.
He can grant lease only upto one year incase of house property
and upto 3 years in case of landed property.
For granting lease for longer period, he must have either –
a) Authority under waqf deed, or
b) Prior permission of the court.
- Power of taking loans – personally liable.
Right of pre-emption
Removal of Mutawalli
Mutawalli can be removed from his office in following
circumstances :
i) Where mutawalli became insolvent.
ii) Mismanagement of property by negligence or dereliction of
duty.
iii) Failure of mutawalli to perform religious duties which are
essential parts of duties.
iv) Where he utilises waqf propety or its benefits for his private
use.
v) Where he uses the income of the waqf property against the
directions of waqf deed.
vi) Where he exceeds his powers in dealing with waqf propety.
vii) Where he suffers from physical or mental incapacity.
Family Waqf – Waqf-al-aulaad
Where the beneficiaries are family members or descendants of
founder its family waqf.
Musalman Waqf Validating Act, 1913
Prior to the said enactment the Family Waqf was not
permissible because :
i) Waqf exclusively for the benefit of the family was void,
some gift to charity is essential.
ii) The gift to charity must have been of a substantial portion
of income of waqf property.
iii) Gift to charity has to be concurrent, if it was too remote the
waqf was void.
❖ Abdul Gafur v. Nijamuddin
- Waqf was void because of no gift to charity.
❖ Mahomed Ahsanulla v. Amarchand Kundu
- The waqf-al-aulad is not valid because purpose of waqf was
enhancement of the wealth of family-members from
generation to generation.
❖ Abdul Fata Mahomad v. Russomoy Dhur Choudhary
- The gift for charitable purposes was to take effect only after
the total extinction of all the descendants and relatives, so
it was invalid.
Law under the Waqf Validating Act, 1913
Sec.3 lays down that – any person, professing Mussalman faith
create a waqf even for the following purposes –
a) For the maintenance and support wholly or partially of his
family, children or descendants, and
b) If person is Hanafi Muslim, can also create such waqf or for
the payment of his debt :
Provided ultimate benefit is reserved for the poor or any religious
purpose.
Statutory Control of Waqfs
The Waqf Act 1954
Some important provisions are as stated below.
1) The Act provides for constitution Waqf Board in every state.
2) The Waqf Boards are corporate bodies having perpetual
succession.
3) The general superintendence of all the Waqfs situated in a
State is vested in the Waqf Board of that State.
4) U/S. 36 Act lays down the duties of a mutawalli.
5) Act provides for investigation and survey of all Waqfs
6) Act provided for a Waqf Fund in every Board.
7) Waqf Board is empowered to make rules and regulations.
9) The state govt. is empowered to constitute a separate shia
Waqf Board, if Shia waqfs are more than 15% of the total
waqfs.
10) Central Waqf Council has been made by amendment.

Gifts (Hiba)
I) Introduction
- Gift is a transfer of property in which ownership is
transferred by a living person to another living person and,
the transfer is made without any consideration.
- Inter vivos – between living persons.
- Gift is a gratuitous transfer – transfer, without any
consideration.
- Hiba – Muslim gift
II) Constitutionality of Hiba
- Rules of Muslim Law regarding gifts are based on
reasonable classification.
- Hiba-bil-Ewaz – a gift with an exchange
- Hiba-ba-Shart-Ewaz – gift with condition precedent
III) Definition of Gift (Hiba)
Hedaya – “Hiba is an unconditional transfer of ownership in an
existing property, made immediately and without any
consideration”.
Baillie – “Gift(Hiba) is a transfer which confers the right of
property, in something specific, without an exchange.”
IV) Characteristic features of Gift –
i) Gift signifies an act by which a person confers his rights of
ownership in a property upon another person.
ii) Gift is an unconditional transfer of property.
iii) The transferor intends to transfer the property immediately
to the transferee.
iv) Its transfer of property without any consideration
V) Essentials of a Valid Gift
1) Diclaration of Gift
- Intention of the transferor that he intends to make a gift.
Oral or written – S.123 of TP Act is not applicable.
❖ Md. Hesabuddin v. Md. Hesaruddin
- Under muslim law writing and registration is not necessary.
Express Declaration – declaration must expressly suggest donor is
relinquishing his ownership completely.
❖ Maimuna Bibi v. Rasool Mian
- Donor should express his intention of divesting the ownership
in express and clear words.
Free consent
Bonafide intention
2) Competency of the donor
Capacity
i) Adult – must of eighteen years
ii) Sound Mind –
iii) Muslim
Right
3) Acceptance of Gift – It signifies the intention of the transferee
(donee) to take the property and become its owner.
Competency of the Donee – any person in existence.
Child in womb – It’s a competent Donee provided it is born alive
within six months from the date on which gift was made.
Juristic Person
Minor and Insane
Two or more Donee
Donee may be an individual or a class of persons.
All the persons constituting that group must be ascertainable.
Must be accepted by all of them seperately.
3) Delivery of Possession
Under Muslim law, gift is complete only after the delivery of the
possession.
Modes of Delivery of Possession
Mode of delivery of possession i.e, how the property is to be
transferred, depends upon the nature of the property
gifted.
Donor to constitute the delivery of possession is to do
something by which a donee gets the physical control over
property.
The possession may be either actual or constructive.
- Actual Delivery of Possession
Incase of immovables delivery of possession is by giving up all
dealings with the property and by placing it at the complete
disposal.
Constructive delivery of possession
Symbolic transfer of property.
i) Where the property is tangible property but, under the
situations, its actual or physical delivery of possession is
not possible.
ii) Where the property is intangible property.
An act of donor amounts to constructive delivery if such act is
sufficient to give to the donee the rights over the gifted
property.
❖ Aga Mohammad Jaffer v. Kooslom Beebee
- Giving of the bank receipt to the wife does not amount to a
constructive delivery of possession.
Property held adversly to donor
- A property is said to be held advversely to donor if it is in
wrongful possession of some other person.
❖ Maqbool Alam Khan v. Mst. Khadaija
- If the gifted property is in the possession of the trespasser,
mere declaration and acceptance would not complete the
gift.
Registration neither necessary nor sufficient
When the delivery of possession is compulsary
- Under muslim law a gift is complete only after the delivery
of possession.
- Incase of movable goods delivery is said to be completed
with physical transfer of goods to donee.
The two Judicial views regarding delivery of Immovable
property –
First, the constructive delivery is complete as soon donee starts
getting the benefits of immovable property. This may be
called as Benefit theory.
Secondly, delivery of possession is completed on the date on
which the donor intends to transfer the possession to
donee. This view is conventionally called as intention
theory.
Who may challenge the Delivery of Possession?
- Only donor or donee or persons claiming under them, can
challenge the validity of the gift on the ground of delivery of
possession has not taken place.
❖ Y.S.Chen v. Batulbai
- Ground of absence of delivery of possession cannot be
raised by the tenant who is a stranger to the transaction of
gift.
Gift to Minor of Lunatic
❖ Katheesa Umma v. Narayanath Kunhamu
- The gift was valid although the delivery of possession was
not made to any competent guardian on behalf of minor
donee.
When Delivery of Possession is not Necessary
1) When donor and donee lives jointly in the House Gifted
2) Gift by husband to wife
3) Gift by Guardian to Ward
4) Gift of property already in Possession of Donee
4) The Subject Matter of Gift : Property
Any kind of property which the donor owns at the time of
making the gift.
i) Gift of future property – its void.
- For the ownership existence of the property is necessary;
there is no ownership in a property.
ii) Gift of Spes-Successionis – its also void. – Spes Successionis
is a non-transferable property U/S.6 of TP Act, 1882.
iii) Gift of Actionable Claims : Intangible Properties.
a) An unsecured debt; or
b) Any interest in the movable property, not in possession of
the claimant.
iv) Gift of equity of Redemption –
When a mortgagor takes some loan from the mortgagee by
securing his immovable property, he has an equitable right
to redeem (take back) his property after paying loan.
v) Gift of insurance policy – valid.
vi) Gift of Dower(Mahr) – Muslim wife may make the gift of her
unpaid dower in favour of her husband.
Gift of Mushaa : The Hanafi Doctrine of Mushaa
Exceptions to the Gift of Mushaa
1) Gift of Mushaa to Co-heir
❖ In Mohammad Buksh v. Hussaini Bibi
2) Gift of Share in Zamindari
3) Gift of Share in landed property
4) Gift of Share in Freehold Property in Commercial Town
5) Conditional and Contingent Gifts
- stipulation of terms which the donee has to fulfill after getting
the property, donee is under an obligation to fulfil that
condition.
- Condition subsequent is valid and not the condition
precedent.
- Under Muslim law, if a gift made subject to some condition,
the gift is valid but the condition is void.
- Under Shia law, gift ‘for life’, or gift or ‘life-interest’ is possible.
Condition Reserving the Income or Benefit
The two parts of any property –
a) The corpus which is the main property in existence.
b) The usufruct which is the income or the benefit of that main
property.
The law relating to conditional gifts can be summerised as:
1) A gift with a condition which affects the corpus is valid but the
condition is void.
2) Under Sunni law, gift of life interest is not possible. But under
Shia law it can be done.
3) Both, under Sunni and Shia, condition related to reservation
of the usufruct for life, is valid.
Contingent gift
A gift subject to contingency is void.
Gifts of life interest
Under Shia law the gift of life-interest (or life-estate) is possible.
❖ Nawazish Ali Khan v. Ali Raza Khan –
- Successive life interest were granted
- Gift of the limited or life interest is valid.
- No concept of vested remainder is recognised under Muslim
personal law.
Revocation of Gifts
- Revocation before delivery of Possession
- Revocation after delivery of Possession.
Shia Law – can be revoked even after delivery of possession.
Irrevocable Gifts
Irrevocable gifts are those gifts which, after delivery of possession,
cannot be revoked even by court in the following cases :
1) A gift by husband to wife or vice versa
2) Where donor and the donee are within prohibited degrees of
relationship
3) Where donor or donee is dead
4) Where donee has transferred the property to another person
5) Where the property is lost or has been destroyed
6) Where the value of the property increases subsequently
7) Where the property given is changed beyond identification
8) Where the gift has been made to secure religious or spiritual
benefits
9) When a gift is in the form of Hiba-bil-iwaz
HIBA-BIL-IWAZ (GIFT WITH EXCHANGE)
Hiba means gift and Iwaz means consideration or return.
Hiba-bil-iwaz is ‘gift with with an exchange’ or a ‘gift for
consideration’.
- After completion of gift subsequently the donee also gives
something to the donor in lieu of this gift, then the gift is
called Hiba-bil-iwaz.
- The legal nature of this transfer is that it is either a sale or an
exchange.
Essentials :
a) A valid and complete gift by donor
b) Actual payment of consideration by the donee
❖ Khujooroonnissa v. Mst.Roushan Jehan
- It was a simple gift in which deliery of possession is necessary
- Without actual nor constructive delivery of possession, the gift
too was held to be void.
Legal Incidents of Hiba-bil-iwaz
This Hiba is only for its name’s sake. Legal consequences of Hiba-
bil-iwaz are given below:
1) Its either sale or exchange.
2) Delivery of possession is not necessary.
3) Hiba-bil-iwaz is irrevocable
4) The doctrine of Mushaa is not applicable.
5) Right of pre-emption is available.
Hiba-ba-Shartul-Iwaz (Gift with Condition Precedent)
A gift with a condition for something in return is called a Hiba-
ba-shartul-iwaz.
Donee does not pay the consideration voluntarily; it is paid by
the donee because it is a condition precedent for the gift.
Legal Incidents of Hiba-ba-shartul-iwaz
1) Whole transaction is a set of two independent gifts,
therefore, it must be completed by declaration, acceptance
and delivary of possession.
2) It is revocable in the beginning
3) The right of pre-emption is excisable in it.
4) Doctrine of Musha may be made applicable.
 Wills
I) Introduction
- The transfer of ownership may be made testamentary.
Testamentary transfer is called transfer under will.
- Will is a gratuitous transfer of ownership but, it takes effect
only after the death of the transferor.
- Will is not governed by the provisions of Transfer of
Property Act, 1882.
- Where a person marries under the Special Marriages
Act,1954, the will executed by him is regulated by the
Indian Succession Act, 1925.
- A will executed by a Muslim is called Wasiyyat.
- The person who executes the will is called the legator and
the person in whose favour the will has been made, is
called the legatee.
- The will is called Testament. The person who gets
properties may be called a testatrix.
- Under Muslim Law a person cannot make any will of his
entire property without consent of his legal heirs.
- Only one-third of the bequeathable property
II) Definition of Will
According to Tyabji, will means 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.
Essentials of a Will
i) The legator and the legatee must be competent ;
ii) There must be a free consent ;
iii) Formalities must be completed ;
iv) The property must be bequeathable property, and
v) The legator must possess the testamentary right.
Competency of Legator : Who can Make Will?
i) Muslim
ii) Soundness of Mind – ‘disposing mind’, atleast 6 months
iii) Age of Majority – will made by majority
iv) Suicide attempt by Legator – Except sunni’s.
❖ Mazhar Husen v. Bodha Bibi – “took poison and died”
- Court held it as valid because first he distributed the
property and then taken the poison.
Competency of Will Who can take under Will?
- Any person can be a legatee provided he (or she) is alive at the
time of death of the testator.
- A Muslim can make a will in favour of any person irrespective
of religion, sex and state of mind.
Child in mother’s Womb
A will in favour of a child in womb is valid subject to two
conditions :
1) The child must be existence in mother’s womb at the time of
testator’s death.
2) The child in mother’s womb must be born alive within six
months from the date of testator’s death.
Murderer of the Legator
- A person who caused the death of the legator, cannot be a
competent legatee.
- Under Shia law if death caused by negligence then will is
valid.
Joint Legatees
- Property will be divided equally among the legatees.
- If a will is made in favour of class of persons, the class is
treated as a single legatee and each person of such class will
get equal share.
Lapse of Legacy : Legatee Dies Before Legator’s Death
- When the legatee dies before the legator’s death, the will
fails.
- The property given to the legator will not be given to the
heirs of the legatee.
- Two or more legatees, where shares have not been
specified.
- Shia Law – property will be given to legal heirs.
Consent of Legator
- For Pardanashin lady general principle doesn’t applicable.
Consent of Legatee
- After the death of the legator the legatee must give consent
to take the property.
- Legatee who dies before giving consent – Presumption.
- Shia law – property does not devolve automatically upon
legatee’s heirs.
The Formalities
- There should be a manifestation of the intention of testator
that after his death.
- May be oral or in writing.
- It is the intention of the testator which is decisive.
Oral Will
- The words spoken must be convinced, beyond any
reasonable doubt.
- A will made through gesture and signs is also valid.
The Subject-Matter of Will : Bequeathable Property
A testator may make any will of any property subject to the
two conditions. –
1) The property is owned by the testator at the time of his
death.
2) The property is transferable.
- Will can be made only of the usufruct. Corpus will be
inherited by legal heirs of the testator.
- Will of Life-Interest
 Testamentary right : The Bequeathable One-Third
- A Muslim can transfer his entire property through gift but,
he has no right to make a will of his whole property. It is
restricted in two days :
- Firstly, there is an restriction upon the quantity of property
bequeathed.
- Secondly, in respect of the person (legatee) to whom the
property is given.
Total Property – Funeral Expenses = Bequeathable Property.
- Only one third will be the property available for transfer by
will.
- Apart from quantity, the testamentary right of a Muslim
depends also upon the fact whether legatee is an heir of the
testator or a stranger.
a) Bequest to Stranger (non-heir)
- A Muslim has unconditional testamentary right upto one-
third of his property to stranger.
- Prophet said to Abu Vekas.
b) Bequest to an heir
- Consent of the remaining heirs is necessary even though
the property given is 1/3 or less.
- Legator has to take the consent of remaining legal heirs if
he wants to bequeath any property to an heir.
❖ Ranee Khajooroonissa v. Mst.Rowshan Jehan
- Raja Deedar Hussain executed a will in favour of his eldest
son Inayat Hussein.
- Its an attempt to exclude all other legal heirs from
property.
- As there was no consent of such remaining legal heirs, will
is void.
Who is Legal Heir?
- A person who is entitled to inherit the properties of the
testator at the time of his death.
Shia law – There is no difference between a bequest to an heir
and non-heir.
Bequest made Jointly to an Heir and Non-Heir
Consent of the Testator’s Heirs
Testator’s has to validate the will under following
circumstances :
a) Where the bequest to stranger exceeds one-third, whether
testator is Sunni or Shia;
b) Where the testator is Sunni and the bequest is made to his
heirs; and
c) Where the testator is a Shia and a bequest to an heir is
made in excess of 1/3.
Rules relating to the consent of heirs, necessary to validate a
will –
1) Consent must be obtained only after the testator’s death.
2) Consent of those heirs who are present at the time of
testator’s death.
3) Consent may be express or implied.
4) Once the consent given to will, it cannot be rescinded
5) By consent, an heir approves the will only in respect of his
own shares in the testator’s property.
6) Consent must be free.
Abatement of Legacies
- Where there are several legaties and the property
bequethed is more than legal 1/3;
- The share of legatee is determined by abatement of
legacies.
Rateable Distribution Under Sunni Law
- ‘To deduct’ or to ‘make less’
- Rateably means ‘proportionately’
- The deduction is made from the share of each legatee in
the ratio of what they got under the will
Under Sunni law there are two classes of will –
a) Secular will – No religious motive.
b) Religious will – executed to secure religious benefits.
- If both objects are there in single will it has to be treated
equally.
Preferential Distribution Under Shia Law
Preference is determined by the order in which they are
mentioned in the will.
Exceptional Rule
If Shia testator makes a bequest of exactly 1/3 of his property to
two legacies.
The order of preference is reversed and legatee mentioned in the
last gets preference over the earlier legatee.
Shia jurist regard the last will as implied revocation of the first.
Conditional and Contingent Wills
Conditional Will
A will made subject to certain conditions is called a conditional
will.
Conditional will is valid but condition attached to it, is void.
Bequest for life
- A Sunni testator makes a will in which he gives ‘life-interest’
to a legatee, the condition ‘for life’ is void but the will is valid.
- Under the Shia law, a will for the life of legatee is possible.
❖ Nawazish Ali Khan v. Ali Raza Khan – a bequest of successive
life interests by Shia testator was held valid.
Contingent Will
- Contingent will is void.
- An Alternative bequest is valid.
Revocation of Wills
A will may be revoked by a testator any time during his life.
Revocation may be whole or of any part.
Express Revocation
It may be oral and in writing, it should be clear and unambigous.
Implied Revocation
Death-Bed Gifts and Acknowledgements (Donatio Mortis
Causa)
Death-Bed Gifts (Death illnss or Marz-ul-maut)
There are two aspects of a gift made during death illness –
1) In its information it’s a pure gift
2) In its legal consequences it is a will.(Donatio mortis causa)
Essentials of Death-Bed Gift
i) There is a valid and complete gift,
ii) This gift is made during death-illness
Legal Consequences of Death-Bed Gift
- It will operate as a will.
Death-Bed Acknoledgement of Debts
a) Acknowledgement in favour of stranger.
b) Acknowledgment in favour of heir.
 Inheritance
I) Introduction
- Succession of the properties of a deceased person may either be
testamentary or intestate.
- Intestate succession is called inheritance under which the legal heirs
of the deceased succeed to his properties.
Pre-Islamic Customs on Inheritance
1) Female and cognates had no right of inheritance.
2) Nearest male agnates used to succeed to the proporties of a deceased.
3) Descendants were preferred over parents and other ascendants.
4) Where the agnates were equally distant, the devolution of property
among them was per-capita.
The Islamic Reforms
Quran is of divine origin therefore neither position nor the shares of new
heirs can be changed.
The reforms intoduced by Islamic system are summarised as under:
1) The females and cognates are competent to inherit.
2) Husband and wife have been made legal heirs of each other.
3) Parents and ascendants are entitled to inherit even in the presence of
descendants.
4) The share of females is half of the share of male.
General principles of inheritance
1) Nature of the heritable property
- Muslim law does not make any distinction between corpus
and usufruct.
- Any property in the ownership of the deceased at the
moment of his death, may be the subject-matter of
inheritance.
Shia Law – a childless widow is entitled to get ¼ only from the
movable property.
2) Joint or Ancestral property.
3) No Birth Right
- No person may be an heir of a living person (Nemo est
haeres viventis)
4) Doctrine of Representation
- The son of predeceased son represents his father for
purposes of inheritance.
- Muslim law doesn’t recognises the doctrine of
representation.
- There can be no claim through a deceased person in whom
no right could have been vested by any possibility.
 5) Per-Capita and Per-Strips
- Per-Capita means no.of heirs among them estate is equally
divided.
- Per-Strips means heirs get their share only from that property
which is available to the branch to which they belong.
Shia Law – if there are several heirs of the same class but they
descend from different branches, the distribution among them
is per strip.
6) Female’s Right of Inheritance - Male doesn’t have any
preferential right over female, but normally the share of a
male is double the share of female.
7) A child in the womb
- Child in the womb is competant to inherit provided it is born
alive.
8) Primogeniture
9) Step- Children
10) Simultaneous Death of two Heirs
11) Missing Persons
- Sec.108 of Indian Evidence Act, 1872
12) Escheat
 Rules of Exclusion
a) Homicide – a person who causes the death of another.
Ithna Asharia Shia - If death is caused negligently or accidentally
heir is not debarred.
b) Illegitimacy – can inherit the properties only of mother.
❖ Bafatun v. Bilati Khanum
c) Difference of Religion
❖ Chandra shekhar v. Govt. of Mysore
Explanation of Certain Terms
1) Propositus
2) Ascendants
3) Descendants
4) Colleterals
5) Agnates
6) Cognates
7) True grandfather, true grandmother
8) False Grandfather or false grandmother
9) Uterine Brothers and Sisters
10) Consanguine Brothers and Sisters
 The Sunni Law of Inheritance
Classification of Heirs
A) The Principal Classes – The following 3 classes are to be
considered as principal classes of legal heirs.
(1) Sharers or Quranic Classes
- Those heirs who are entitled to get a prescribed share from
the heritable property.
- The sharers and their respective shares are given in Quran
- Sharers get preference over the other class of heirs.
(2) Residuaries or Agnatic Heirs –
- Residuaries are those heirs who inherit only the residue of
the property after allotment of respective shares to sharers.
- Have no specific share of their own.
- Residuaries are also known as agnatic heirs because they
inherit through male relations.
(3) Distant Kindred or Uterine Heirs
- If propositus neither has shareres nor residuaries, the
poroperties are inherited by his Distant Kindred.
- .
 (B) Subsidiary Classes – Subsidiary heirs inherit only under
exceptional cases :-
1) Successor by contract
2) Acknowledged kinsman
3) Universal legtee, and
4) The State (through the process of escheat)
The Sharers : Class I Heirs
Relations by Affinity
I) Husband
II) Widow
Relations by Consanguinity(Blood)
III) Father
IV) True Grandfather
V) Mother
VI) True Grandmother
VII) Daughter
VIII) Son’s Daughter
IX) Full Sister
X) Consanguine Sister
XI) Uterine Brother
XII) Uterine Sister
 Doctrine of Increase (Aul)
After allotment of respective shares to sharers, if sum total exceeds
unity, the doctrine of (Aul) applies.
The no.of shares exceeds the no.of fragments of the property.
The distribution must be –
i) The sum total must come out to be unity and,
ii) The respective shares of the Sharers cannot be changed
because they are specified in Quran.
Keeping the numerator intact, the denominator is increased in
such a manner that the denominator (i.e, total no.of fragments
of property) becomes equal to the numerator (total no.of
shares)
Shia law – the excess share is directly deducted from the share of
(a) daughter or (b) full sister.
Doctrine of Return (Radd)
Where the sum total of shares is less than unity, the doctrine of
return is applicable.
- The numerator represents the total number of shares and
denominator denotes the number of pieces of property.
- The excess of property is returned back and is added to the
respective shares of the legal heirs, in proportion of their own
shares.
 The residue is added to the shares of the respective Shares
according to the following rules :
1) The residue is added to the shares of each heir in
proportion of their own share.
2) The husband and widow do not participate in return.
Shia Law – Besides husband or widow, in some exceptional
cases, the mother and uterine brother and sister also do
not participate in return.
The Residuaries : Class II Heirs
The Residuaries constitute Class II of the heirs of Sunni
Propositus.
The list of Residuaries and rules relating to their inheritance is
given below :
Descendants
1. Son
2. Son’s son h.l.s.
Ascendants
3. Father
4. True Grandfather
Collaterals : Descendants of Father
5) Full Brother
6) Full Sister
7) Consanguine Brother
8) Consanguine Sister
9) Full Brothor’s sons
10) Consanguine Brother’s son
11) Full Brother’s Son’s son
12) Consanguine Brother’s Son’s son
The above 9 to 12 persons take entire residue in order priority
in default of 1 to 8.
Collaterals : Descendants of T.G.F.
13) Full paternal uncle
14) Consanguine paternal uncle
15) Full paternal uncle’s son
16) Consanguine paternal uncle’s son
17) Full paternal uncle’s son’s son
18) Consanguine paternal uncle’s son’s son
Class III Heirs : The Distant Kindreds
In the absence of Sharers and Residuaries, the properties
devolve upon the Distant Kindreds or the Uterine Heirs of
the propositus.
The only exception is Distant Kindreds are entitled to inherit
together with a Sharer husband (or widow).
Classification of Distant Kindreds
Distribution of property among Distant Kindreds
Rule 1 – Where the intermediate ancestor of the claimants are
of similar sex, the property is divided among them as per
capita.
Rule 2 – Where the intermediate ancestor of the claimant
(distant kindreds) differ in sex, the property is distributed
according to per strips.
 Shia Law of Inheritence
Under Shia law a person may become legal heir by affinity or
consanguinity (blood)
Heirs by marriage – marriage is regarded as special cause for
heirship.
Heirs by consanguinity have been divided into following three
classes :
Class I
i) Parents, and
ii) The children and other lineal descendants h.l.s.
Class II
i) Grandparents h.h.s. (true as well as false); and
ii) Brothers and sisters;
iii) Descendants h.l.s of brothers and sisters.
Class III
i) The paternal, and
ii) Maternal uncles and aunts of the propositus and of his
parents and grandparents h.h.s. and also their
descendants h.l.s.
 Respective Shares of the heirs
- Shia law classifies heirs into two categories, the Sharers
and the Residuaries.
- As against Sunni Law, there is no separate category of
Distant Kindreds.
The rules relating to inheritance are given below :
1) Husband
2) Widow
3) Father
4) Mother
5) Daughter
6) Full Sister
7) Consanguine Sister
8) Uterine brother
9) Uterine Sister
Doctrine of Increase (Aul)
When the sum total of all the shares exceeds unity i.e, the
shares are in excess of the fragments of property.
 Under the Shia Law doctrine of increase, the excess share is
deducted ivariably from the shares of :
a) The daughter, or
b) The full sister, or
c) The consanguine sister.
The share in excess is not deducted from the share of uterine
sister.
Doctrine of Return (Radd)
Where the sum total of all the shares is less than unity and there
is no Residuary in the class to which the Sharers belong, the
residue reverts back to the Sharers in proportion of their own
Sharers.
Exceptions :
(1) The husband or widow never participate in return.
(2) Mother is also excluded from return if the heirs are mother,
father, one daughter and also :
a) Two or more full (or consanguine) brothers, or
b) One such brother plus two such sisters, or
c) Four such sisters.
3) In the presence of full sister, the uterine brother (or uterine
sister) is not entitled to participate in return.
.
 Domicile
S.8 – Domicile of origin of illegimate child – will be in the
country in which, at the time of his birth, his mother was
domiciled.
S.9 – Continuance of domicile of origin – prevails until a new
domicile has been acquired.
❖ Somerville v.Somerville
- Domicile by origin will prevail not only til acquisition of the
new but has manifestly carried into execution of intention.
S.10 – Acquisition of new domicile – its domicile by choice, a
man acquires a new domicile by taking up his fixed
habitation which is not his origin.
Expln. – By taking up service in Civil, Military, Naval service of
the Govt. a person cannot be said to have taken his
habitation.
❖ Abdul Messih v. Farra
- Domicile of choice is a conclusion or inference, when the
man has attracted to himself the municipal law of the
territory in which he has voluntarily settled.
- Animus or Intention – It’s a dominant factor in the change of
domicile, and, consequently, needs the character of the
necessary intention.
❖ R.E.Atavllah v. J.Atavllah – Decision by Dicey puts the
matter under four classes, namely:
1) The intention must amount to a purpose or choice.
2) The object of the intention must be permanent residence
or for an indefinite period.
3) There must also be an intention to abandon his former
domicile.
4) The intention my not be to change allegiance.
S.11 - Special mode of acquiring domicile in India
- Any person may acquire domicile in India by depositing in
some office in India, declaration in writing under his hand
of his desire to acquire such domicile; provided he has
been resident in India for preceding one year.
S.12 – Domicile not acquired by residence as representative of
foreign Govt., or as a part of his family
- A person appointed by as Abassador, Consul or other
representative of another country does not acquire such
domicile. Nor his family member will acquire domicile.
S.13 – Continuance of New Domicile
- New domicile continues til former has been resumed or
another has been acquired.
S.14 – Minor’s domicile
- It follows the domicile of parent from whom he derived his
domicile of origin.
S.15 – Domicile acquired woman on marriage
- Woman acquires the domicile of husband.
S.16 – Wife’s domicile during the marriage.
S.17 – Minor’s acquisition of new domicile
S.18 – Lunatic’s acquisition of new domicile
S.19 – Succession to movable property in India in the absence
of proof of domicile elsewhere.
 Consanguinity
S.23 – Application of Part
S.24 – Kindred of consanguinity – connection or relation of
persons descended from the same ancester.
S.25 – Lineal Consanguinity –
(1) Relation between two persons, one of whom is descended
in a direct line from the other.
(2) Every generation constitutes a degree, either ascending or
descending.
(3) Different degrees – Direct descendancy
S.26. Collateral consanguinity – between two persons
descended from common ancestor but not in direct
descendancy.
S.27. Persons held for purpose of succession to be similarly
related to deceased.
S.28. Mode of computing of degrees of kindred – table set out
in I Schedule.
 Intestate Succession
S. 29 – Application of the Part – Christians and Parsis.
❖ Kamawati v. Digwijai Singh
S. 30 – As to that property deceased considered to have died
intestate – person dies without making any testament.
Rules in cases of Intestates other than Parsis
S. 31 – Chapter not to apply to Parsis
S. 32 – Devolution of such property –
Devolves upon wife or husband, or kindred of the deceased in
accordance with the rules as given in this chapter.
S. 33 – Where intestate has left widow and lineal descendants, or
widow and kindred only, or widow and no kindred –
a) 1/3 to widow and 2/3 to lineal descendants.
b) ½ to widow and ½ to kindred.
c) If no kindred is there whole property belongs to widow.
S. 33 A – Special provision where intestate has left widow and no
lineal descendants –
1) If there is widow and no lineal descendant and total net value
of propety doesn’t exceeds 5,000/- shall belong to widow.
.
2) If net value exceeds 5,000/- widow shall get 5,000/- with
interest on such amount @4% from the date of death of
intestate.
3) The residue has to be distributed according to S.33
4) Net value will be obtained after deducting – all debts, funeral
and administrative expenses, lawful liabilities and charges
of intestate.
5) This section applies to –
a) Property of :
i) Any Indian Christian,
ii) Child or grandchild of any male person who is or was at
the time of death an Indian Christian. Or
iii) Any person professing Hindu, Buddhism, Sikh or Jain
religion the succession to whose property is, U/S. 24 of
Special Marriage Act, 1872
b) Unless deceased dies intestate in respect of all his property.
S. 34 – Where intestate has left no widow and where he has no
kindred.
S. 35 – Rights of Widower – Husband surviving his wife has the
same rights as of widow.
Distribution where there are Lineal Descendants
S.36 – Rules of Distribution – distribution of the intestate’s
property (after deducting the widow’s share, if he has left a
widow) amongst his lineal descendants according to S.37-
40.
S. 37 – Where intestate has left child or children only – equally
divided among all his surviving children
❖ Ranbir Karan Singh v. Jogindra Chandra Bhattacharji
S. 38 – where intestate has left no child, but grandchild or
grandchildren
S. 39 – Where intestate has left only great-grandchildren or
remoter lineal descendant.
S. 40 – Where intestate leaves lineal descendants not all in
same degree of kindred to him and those through whom
the more remote are dead.
S. 41 – Rules of distribution where intestate has left no lineal
descendants – According to 42 to 48.
S. 42 – Where intestae’s father living – he shall succeed to the
property.
S. 43 – Where intestate’s father dead but his mother, brothers and
sisters living – shall succeed to the property in equal shares.
S.44 – Where intestates father is dead and his mother, brother or
sister and children of any deceased brother or sister living –
property in equal shares and children gets shares of their
respecective parents.
S.45 – Where intestate’s father dead and his mother and children
of any deceased brother or sister living - property in equal
shares and children gets shares of their respecective parents.
S.46 – Where intestate’s father dead, but his mother living and no
brother, sister, nephew or neice – property shall belong to
mother.
S.47 – Where intestate has left neither lineal descendant, nor
father nor mother – shall be equally divided among brothers
and sisters, incase of children of predeaced brother or sister
they will get the respective share of their parents.
.
S.48 – Where intestate has left neither lineal descendant, nor
parent, nor brother, nor sister – property shall be divided
equally among those of his relatives who are in nearest
degree of kindred relationship.
S.49 – Children’s advancement not brought into hotch-potch.
The advancement made by the deceased towards child or
latter’s descendant’s will not be taken into account in
estimating shares.
Special Rules for Parsi Intestates
S. 50 – General provisions to intestate succession – the
purpose of intestate succession among Parsis :
a) There is no difference between those who born during
lifetime of deceased and soon after his death(child in the
womb)
b) A lineal descendant of an intestate who died in the life-time
of intestate leaving a widow or widower or lineal
descendants shall not be taken into account for shares.
c) Where a widow or widower of any relative of an intestate
remarries again in the life-time of the intestate, such
persons shall not get any share.
S.51 – Division of an intestate’s property among widow,
widower, children and parents –
a) If Parsi dies leaving behind widow or widower and children,
each shall reaceive equal share;
b) Where Parsi dies leaving children, but no widow or
widower, children gets equal shares.
2) Where Parsi dies leaving behind any or each of the parents
in addition with widow or children. Each of the parents
shall receive a share equal to half of the share of each
child.
S.53 – Division of share of pre-deceased child of intestate
leaving lineal descendants –
According to following rules –
a) If such child was a son, his widow and children shall take
share in accordance with provisions of this chapter if he
died immediately after the intestate’s death.
Provided he shall not be considered for the residue which
remains after distribution.
b) If such child is daughter, her share shall be divided equally
among her children.
c) If any child of such deceased child has also died during the
life-time of the intestate, the share has to be divided as
dealth in clause (a) and (b).
d) If a remoter lineal descendant of the intestate has also died
during life-time of the intestate, provisions of clause (c) will
apply.
S.54 – Division of property where intestate leaves no lineal
descendant but leaves a widow or a widower or a widow or
widower of any lineal descendant. Property will be divided
as follows –
a) If the intestate leaves widow or widower but no widow or
widower of lineal descendant, then half of the said
property.
b) If intestate leaves a widow or widower and also a widow or
widower of any lineal descendant, 1/3 of the property. If
there are more than one widow or widower of lineal
descendants, 1/3 to be divided equally.
c) If intestate leaves no widow or widower but one widow or
widower of lineal descendant – 1/3. if widow or widower are
more than one 2/3 of property to be divided equally.
d) The residue in clause (a), (b) & (c) has to be distributed among
the relatives in the order specified in Part I of Sch.II and next-
kin, in the order first in Part I prefered to those, standing
second, the second to third.
e) If there are no relatives entitled to the residue under clause (d),
the whole residue to be distributed in proportion to shares
specified under this section.
S. 55 – Division of property where there is no relative entitled to
succeed – property shall be divided equally among those of the
intestate’s relatives who are in the nearest degree of kindred to
him.
Testamentary Succession
Sec.57 – Application of certain provisions of the Part to a class of
Wills made by Hindus – Provisions of this part as set out in
Sch.III shall, subject to following restrictions and
modifications apply :
a) To all wills and codicils made by any Hindu, Buddhist, Sikh or
Jain, on or after 1st Sept. 1870, within territories of
Lieutenant-Governor of Bengal or civil jurisdiction of the High
Courts of Judicature at Madras and Bombay; and
b) To all wills or codicils outside those territories and for
immovable property situated within these limits; and
c) To all wills and codicils made by Hindu, Buddhist, Sikh or Jain
on or after 1st Jan, 1927, to which these provisions are not
applied by Cl.(a) and (b) :
Provided that marriage shall not revoke any such will or codicil.
S. 58 – General application of the Part – the provisions of this Part
shall not apply to testamentary succession of any
Mohammedan nor, any Hindu, Buddist, Sikh or Jain; nor to
Wills made before 1st day of Janaury, 1866.
The provisions of this part constitute the law of India applicable to
all cases of testamentary succession.
Wills and Codicils
Sec.2(b) “codicil” means an instrument made in relation to a will,
and explaining, altering or adding to its dispositions, and shall
be deemed to form part of the will;
S. 59 – Persons capable of making wills – every person of sound
mind not being a minor may dispose of his property by Will.
Expln. 1 – A married woman.
Expln. 2 – Persons who are deaf and dumb or blind are not
incapacitated.
Expln. 3 – A person ordinarily insane may make Will during an
interval in which he is of sound mind.
Expln. 4 – No person under intoxication can make a will.
S.60 – Testamentary guardian – a father may by will appoint a
guardian for his child during minority.
S. 61 – Will obtained by fraud, coercion or importunity - void.
S. 62 – Will may be revoked or altered – at any time by the
testator when he is competent to dispose of his property.
The Execution of Unprevileged Wills
S. 63 – Execution of unprivileged wills –
Every testator, not being a soldier employed in an expedition
nor in actual warfare, or an airman or a mariner at sea,
shall execute his will according to following rules :
a) The testator shall sign or affix his mark to the will, or it
shall be signed by some other person in his presence.
b) The above said sign or mark shall be so placed that it shall
appear that it was intended to give effect to writing as a
will.
c) The will shall be attested by two or more witnesses in the
presence of testator, each of whom has seen the testator
sign or affixing his mark or has seen some other person
signing the will, in the presence and direction of will.
 S. 64 – Incorporation of paper by reference – If a testator refers to
any document under his will or codicil, actually written as
expressing any part of his intentions, such document shall be
deemed to form a part of will or codicil.
Privileged Will
S. 65 – Privileged Wills – Any soldier being employed in an
expedition or actual warfare, airman or mariner being at sea,
if he has completed 18yrs, dispose of his property by a will
made in the manner proided in S.66. Such will is privileged
will.
S. 66 – Mode of making and rules for executing privileged wills
(1) It may be inwriting on or word of mouth,
(2) The execution of privileged will is governed by following rules
:
a) The will written wholly by testator, with his own hand, need
not be signed or attested.
b) It may be written wholly or in part by another person and
signed by testator. It need not be attested.
c) If instrument purporting to be written wholly or in part by
another person and not signed by testator, it shall be deemed
to be his will, if it is shown that it was written by testator’s
directions or that he recognised it as his will.
.
d) If it appears that the execution of it in the manner intended
by the testator was not completed, the instrument is not
invalid, provided his non-execution can be reasonably
ascribed.
e) If the soldier, airman or mariner has written instructions for
preparation of his will, but died before its execution, such
intructions shall be considered to constitute will.
f) If the soldiers, airman or mariner in the presence of two
witnesses, given verbal instructions and died before the
intrument could be prepared and executed, such
instructions shall be considered as his will.
g) The soldier, airman or mariner may make a will by word of
mouth by declaration before two witnesses.
h) A will made by word of mouth shall be null at the expiration
of one month after the testator, being still alive.
 The vesting of Legacies
S. 119 – Date of vesting of legacy when payment or possession
postponed – Where by terms of the bequest the legatee is not
entitled to immediate possession of the property bequeathed,
becomes vested in the legatee on the testator’s death.
S. 120 – Date of vesting when legacy contigent upon specified
uncertain event –
1) A legacy bequeathed shall not best until the specified
uncertain event happens.
2) A legacy bequeathed does not vest until the happening of that
event becomes impossible.
3) In either case, until the condition has been fulfilled, the
interest of the legatee is called contigent.
Exception – where a fund bequeathed to any person upon his
attaining a particular age, may be applied before he attains
such age for necessary benefits, the bequest of the fund is not
contingent.
S. 121 – Vesting of interest in bequest to such members of a class
as shall have attained particular age – A person who have not
attained the age cannot have a vested interest.
.
 Onerous Bequests
Sec. 122 – Onerous bequest – Where a bequest imposes an
obligation on the legatee, he can take nothing by it unlless
he accepts it fully.
Sec. 123 – One of two separate and independent bequests to
same person may be accepted and other refused – the
legatee is at liberty to accept benfefician ant refuse the
other.
Contingent Bequest
S. 124 – Bequest contingent upon specified uncertain event
and no time being mentioned for its occurrence.
- The legacy cannot take effect, unless such event happens
before the period when the fund bequeathed is payable or
distributable.
S. 125 – Bequest to such of certain persons as shall be
surviving at some period not specified – the legacy will go to
such of them as are alive at the time of payment or
distribution unless a contrary intention appears by the
will.
 Conditional Bequests
S. 126 – Bequest upon impossible condition – Its void.
S. 127 – Bequest upon illegal or immoral conditions – Its void.
S. 128 – Fulfillment of condition precedent to vesting of legacy – If
will imposes a condition precedent to be fulfilled before the
taking the visted interest, it shall be considered fulfilled, if it
has been substantially complied with.
S. 129 – Bequest to A on the failure of prior bequest to B – where
there is a bequest to one person, and bequest of the same to
another if prior bequest fail, the second shall take effect upon
failure of the prior although the failure may not have occurred
in the manner contemplated.
S. 130 – When second bequest not to take effect on failure of first –
where the first bequest doesn’t fails in the manner given,
second bequest shall not take effect.
S. 131 – Bequest over, conditional upon happening or non-
happening of specified event – its bequest subject to the rules
contained Ss.120-130.
S. 132 – Condition must be strictly fulfilled – the ulterior cannot
take effect U/S. 131 untill condition is strictly fulfilled.
.
S. 133 – Original bequest not affected by invalidity of the
second – If ulterior is not valid, original bequet is not
affected by it.
S. 134 – Bequest conditioned that it shall cease over to have
effect in case a specified uncertain event shall happen, or
not happen.
S. 135 – Such condition must not be invalid U/S.120 – In order
to treat bequest shall cease to have effect may be valid, its
necessary that the event to which it relates which legally
constitute condition contemplated U/S.120.
S. 136 – Result of legatee rendering impossible or indefinitely
postponing act for which no time specified, and non-
performance of which subject-matter to go over – the legacy
shall go as if the legatee had died without performing, such
act.
S.137 – Performance of condition, precedent or sebsequent,
within specified time. Further time in case of fraud – the
work must be performed within time specified, unless the
performance prevented by fraud, in which case time shall
be allowed.
Specific Legacies
S. 142 – Specific Legacy defined – When a testator has bequeathed
a specific part of his property which is distinguished from
other part, the legacy is said to be specific.
S. 143 – Bequest of certain sum where stocks, etc. in which
invested are described – the legacy is not specific till the
securities in which it is invested are described in the will.
S. 144 - Bequest of stock where testator had, at the date of will
equal or greater amount of stock of same kind – the bequest is
not specific only because the testator holds similar kind of
securities.
S. 145 – Bequest of money where not payable untill part of
testator’s property disposed of in certain way – A money legacy
is not specific merely because the will directs its payment is
postponed until some part of the property reduced to a certain
part.
S. 146 – When enumerated articles not deemed specifically
bequeathed – Where a will contains residue along with an
enumeration of some items not previously bequeathed, the
articles so enumarated are not specifically bequeathed.
.
 S. 147 – Retention, in form of specific bequest to several
persons in succession – it shall be retained in the form in
which the testator left it, although it may be of such nature
of its value is continually decreasing.
S. 148 – Sale and investment of proceeds of property
bequeathed to two or more persons in succession – shall be
enjoyed by the successive legatees according to the terms
of the will.
S. 149 – Where deficiency of assets to pay legacies, specific
legacy not to abate with general legacies.
Demonstrative Legacies
S. 150 – Demonstrative legacy defined – Where testator
bequeaths a certain sum of money or a certain quantity of
commodity, to constitute the same primary fund or stock
out of which payment is to be made, its said to be
demonstrative.
S. 151 – Order of payment where legacy directed to be paid out
of fund the subject of specific legacy – the portion
specifically bequeathed shall first be paid to the legatee,
and the demonstrative legacy shall be paid out of the
residue of fund.
Probate, Letters of Administration and Administration of
Assets of Deceased
S. 217 – Application of Part – all grants of probate and Letters
of Administration with the will annexed and the
administration of the assets of the deceased in cases of
intestate succession shall be made or carried out.
Grant of Probate and Letters of Administration
S. 218 – To whom the administration may be granted, where
deceased is a Hindu, Mohammedan, Buddhist, Sikh, Jaina
or exempted person –
(1) If deceased died intestate, administration of his estate may
be granted to any person who, according to the rules for
the distribution of the estate applicable in the case of such
deceased.
(2) When several persons apply for such administration its
discretion of the court.
(3) When no such person applies, may be granted to creditor
of the deceased.
 S. 219 – Where deceased is not a Hindu, Mohammedan,
Buddhist, Sikh, Jaina or exempted person – If deceased has
died intestate and doesn’t belong to any classes U/S.218,
those who are connected with marriage or by consanguinity,
are entitled to obtain Letters of Administration according to
rules, namely –
a) If deceased has left widow, administration shall be granted to
the widow, court sees cause to exclude her.
b) If the Judge thinks proper, he may associate any person with
the widow in administration who would be entitled solely to
the administration.
c) If there is no widow, if the court sees cause to exclude widow,
it shall commit the administration who would be beneficially
entitled.
S. 220 – Effect of Letters of Administration – It entitles the
administrator, to all rights belonging to the intestate as
effectually as if the administration had been granted at the
moment after his death.
S. 221 – Act not validated by administration – It doesn’t render any
act of administrator tending to diminution or damage of
intestate’s estate.
.
 S. 222 – Probate only to appointed executor –
(1) Probate shall be granted only to executor appointed by will.
(2) The appointment may be expressed or by necessary
implication.
S. 223 – Persons to whom probate cannot be granted –
Probate cannot be granted to minor or lunatic or to any
association of individuals unless it satisfies rules of O.G.
made by State Govt.
S. 224 – Grant of probate to several executors simultaneously
or at different times.
S. 225 – Separate probate of codicil discovered after grant of
probate –
(1) a separate probate of that codicil may be granted to the
executor, if it, in no way repeals his appointment.
(2) If different executors are appointed by the codicil, the
probate of will shall be revoked.
S. 226 – Accrual of representation to surviving executor – When
probate has been granted to several executors, and one
dies, the entire representation of testator accrues to the
surviving executor or executor.
 S. 227 – Effect of probate – It establishes the will from the death
of the testator, and renders valid all intermediate acts of the
executor as such.
S. 228 – Administration, with copy annexed, of authenticated copy
of will proved abroad – When a will has been proved and
deposited in a court of competent jurisdiction situated beyond
the limits of State and authenticated copy is produced Letters
of administration may be granted.
S. 229 – Grant of Administration where executor has not
renounced.
S. 230 – Form and effect of renunciation of executorship – When
renounced preclude himm from ever thereafter applying for
probate of the will appointing executor.
S.231 – Procudure where executor renounces or fails to accept
within time limited.
S. 232 – Grant of Administration to universal or residuary legatee
S. 233 – Right to administration of repesentative of deceased
residuary.
S. 234 – Grant of administration where no executor nor residuary
legatee not representative of such legatee.
.