Muslim Personal Law (test)

Submitted by: sijal zafar

Question 1:
Rules of acknowledgement.
Answer:
Before discussing the rules of acknowledgement, first discuss the basic concept of parentage and
legitimacy.
Parentage is the relationship between the child and parents. It includes maternity and paternity.
Maternity is the relationship of mother and child and it is easy to established. Whereas paternity
is the relationship between father and child and difficult to develop. There are different rules
regarding the establishment to paternity. According to shia, only valid marriage can establish
paternity, and according to sunni, paternity establish in result of valid and irregular marriage.
Here the question arises of legitimacy of child:
where a child born between the parent is the legitimate child of spouses. Different presumptions
regarding the legitimacy of child are:
1. a child born after 6 months of marriage is presumed to be legitimate
2. a child born within 6 moths after marriage is legitimate: unless father acknowledges the
child
3. a child born after the dissolution of marriage is legitimate:
 under shia law, if born within 10 moths
 under shafi and maliki law, if born within 4 years
 under hanfi law, if born within 2 years.
Reference to case:
M. talat Vs Yasmeen Zohra, in this case it was held that paternity of child born in lawful wedlock
is presumed to be in husband and mother without any acknowledgment of parentage on his part
and such child follow the status of father.
Muslim law don’t recognize the adoption but it recognize the acknowledgement when paternity
of child doesnot establish by proving the marriage between his parents at the time of birth.
if there is no direct proof of legitimacy, then legitimacy can be proved by indirect proof which is
kown as acknowledgment. This principle set out in case of M. Allahdad Vs M. Ismael khan.
Acknowledgement is made only by father and it is made on the assumption of lawful union of
parents and the child acknowledged. Different rules regarding the acknowledgement of child
are:
 Express or implied acknowledgement.
 Age of acknowledger
 The child must not be of other.
 not Offspring of zina
 Legal marriag between the parents and the child acknowledged.
 Person acknowl;edge should confirm acknowledgement.
 Competenancy of acknowledgement
These can be explained as:
Express or implied acknowledgement: it is not necessary to acknowledge expressly or impliedly,
once the child is acknowledged it cant be rebutted only with the exception, it cant be in casual
form
Age of acknowledger: the age difference between the acknowledger and the person
acknowledged must not be less than 12.5 years.
The child must not be of other: the child who is acknowledged must not be known as child of
other.
not Offspring of zina: if a child born out of legal marriage is legitimate and can be acknowledged,
but if a child born due to the result of zina so such child can’t be acknowledged.
Legal marriag between the parents and the child acknowledged.: the acknowledger and the
mother of child must be in legal relation at the time of birth of child.
Person acknowl;edge should confirm acknowledgement. If adult the child is, he /she must
confirm acknowledgment.
Competenancy of acknowledgement: the acknowledgor must be competent to make contract i-
e, he must be major, sound mid etc

Question 2
Answer:
The term guardianship is defined in guardian and ward act as “ a person having the care of a
person of minor or of his property , or both of his person and his property is known as guardian
of minor”.

The person who perform all the acts known as “guardian” and the person for whom all acts
performed is known as “ward’’.
When the court is satisfied it is for welfare of minor then an order should be made for appointing
a guardian of his peron or his property or both as declaring person to be guardian. Section 8 of
the above act talks about the persons who are entitled to apply for order, these are:
 the person claiming to be guardian
 any relative or friend of minor
 the collector of area where minor resides and his property
section 9 of the above act talks about the jurisdiction of court to entertain that application that
if the application is for the guardianship of person it shall be made to district court where minor
resides and if its with respect to property of minor it shall be made to either in the district court
where he resides or has his property.
Section 10 of above act talks about the form of application in which manner application can be
made and court had to take into account different factors.
If there are 2 persons who want to be the guardian of child, then court permits them as in case
one die the other survives, as per section sec15 of above act.
As per section 17 of above act, In appointing or declaring the guardian of a minor the court shall
take into consideration the Welfare of the child. In considering what will be for the Welfare of
the minor, the court shall have regard to the age, sex and religion of the minor, the character and
the capacity of the proposed guardian, the wishes of a deceased parent,and any existing or
previous relations of the proposed Guardian with the minor or his property . If the minor is old
enough to form an intelligent preference, the court may consider that preference
Sections 6, 19 and 21 of above act provides that in the following matters, the courts should not
interfere with the question of guardianship of a minor:
Where a guardian of the minor’s person, property or both has been lawfully appointed under a
will in accordance with the law to which the minor is subject.
If a guardian is not performing his duty properly, the court may remove him. Section 20 of the
above act imposes a duty on the guardian to deal with the ward's property carefully and
honestly.
Section 21 of the above act provides that minor not competent to act as guardian of another
minor, will not act as the guardian.
Section 24, 25 and 26 of above Act provides for the custody of the child by one appointed under
the Act as guardian of the person. This is a duty to look to the minor support, health and
education, and such other matters as the law to which the ward is subject required.
Section 28 of the above Act says that a testamentary guardian of property cannot transfer the
property against any restrictions in this behalf imposed by the will under which he functions
Section 41 of the above Act says that a guardian appointed by the court or a testamentary
guardian shall cease to be a guardian on the happening of any one of the following incidents:
The power of guardian of property cease:
a. in the case of the death, removal or discharge of the guardian;
b. on attaining majority by the minor;
c. by the court assuming the superitendance of property of wards.
In the case of guardianship of the person, Guardian ceases power if:
a. in the case of the death, removal or discharge of the guardian;
b. on attaining majority by the minor;
c. by the court assuming the superitendance of property of wards.
d. on the marriage of the minor, if female to a person not unfit to be Guardian of her
person;
e. in case whose father unfit to be the guardian of person of ward, by father ceasing to be