Family Law II Consolidated

Family Law II Mohamaddein Law:
1. Discuss briefly the sources of Mohammedan law.

 Explain the various sources of Mohammaden law. (3)
 Explain the origin and development of Muslim law.
Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to mohamedans
not in all, but in some matters only. Muslin law in India means that portion of Islamic civil law which is applied to
Muslims as a personal law. Muslim law is the body of law which is derived from the Quran and other recorded
saying of the Muslims prophet Muhammad. However Islamic law talked about man's duties rather than his rights.
In the religious sense Islam means submission to the will of god' & in secular sense Islam means
the establishment of peace.
The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create a sense
of obedience and submission to Allah. His ordinances and thereby to walk on right path. Those who follow this
path are Muslim. According to Amir Ali Muslim is any person who professes the religion of Islam, in other words
accepts the unity of god and prophetic character of Mohammad. Thus to be a Muslim only two things is required-
one is that Allah is one and the second is the prophet hood of Mohammad. Islamic law is a branch of Muslim
theology, giving practical expression to the faith, which lays down how Muslim should conduct himself through
his religion, both towards god and towards other men*
Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of the prophet
(sunna), of the common opinion of the jurists (ijma), of the analogical deductions of these three (qiyas). Further ,
it has been supplemented by the juristic preference (Istihsan), public policy (Istislah), precedent (Taqlid) and
independent interpretation (Iltihad).
Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.
Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim law.
Primary sources of Muslim law are:
 Quran
 Sunnat
 Ijma
 Qiyas
1. Quran
Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity,
subsisting in very essence of god. The word Quran has been derived from the Arabic word Quarra which means
to read. The Quran is, Al-furqan i.e., one showing truth from falsehood and right from wrong. The word Quran
which is the â€˜divine communication' and revelation to the prophet of Islam is the first source of Muslim law.
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Family Law II Mohamaddein Law
Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion and
Islamic society owes its birth to the word of Quran. It is a paramount source of Muslim law in point of importance
because it contains the very word of god and it is foundation upon which the very structure of Islam rests Quran
regulates individual; social, secular, and spiritual life of Muslims.
It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It was given to
the world in fragmentary forms, extending over a period of 23 years. It originally had for its objects repealing
objectionable customs, such as, usury, unlimited polygamy and gambling, etc., and effecting social reforms,
such as raising the legal status of women and equitable division of the matters of inheritance and succession.
The Quran can be no way altered or changed, thus, even the courts of law have no authority to change the
apparent meaning of the verses as it does have an earthly origin. This view was held in Aga Mohammad Jaffer
v. koolsom Beebee (1895). But whenever the Quran was silent on any particular matter, guidance was taken
from the â€˜sunnat'.
2. Sunnat
The word sunna means the trodden path & as this meaning shows it denotes some kind of practices and
precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin). Manifest
revelation is communication which is made by angel Gabriel under the direction of god to Mohammad in the very
words of god. Quran is composed of manifest revelations.
Internal revelation is opinions of the prophet which is delivered from time to time on questions that happened to
be raised before him. Sunna means the model behavior of the prophet. The narrations of what the prophet said,
did or tacitly allowed is called hadis or traditions. The traditions, however, were not reduced to writing during
lifetime of Mohammad. They have been preserved as traditions handed down from generation to generation by
authorized persons. The importance of hadith as an important source of Muslim law has been laid down in the
Quran itself.
Kinds Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat
2. Ahadis
These two have been classified into the following three classes on the basis of mode or manner in which
it has actually originated:
 Sunnat-ul-fail i.e., Traditions about which prophet did himself.

 Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.
 Sunnat â€“ul-tuqrir i.e., The things done in his presence without his disapproval.
The three class of Ahadisare:

 Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as absolutely
authentic. In such hadis the chain is complete.
 Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the character of
universal propriety.
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 Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.
Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of Islamic law.
3. Ijma
It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which had been
established by agreement among highly qualified legal scholars of any generations.
Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet
Mohammad in a particular question of law. The validity of ijma, as containing a binding precedent, is based upon
a hadis of the prophet which says that god will not allow His people to agree on an error. Ijma thus become a
source of law. According to the classical theory, failing Quran and traditions, and consensus of opinion amongst
the companions of the prophet is recognized as the best guide of law. Thus it is the third source of law, both in
point of time and importance.
The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is something living
& changing. The aim of law is to fulfill the needs of the society. The principle of ijma is based upon the text i.e.
god will not allow His people to agree on an error and whatever Muslims hold to be good is good before god.
Muslims religion does not admit the possibility of further revelation after the death of the prophet, the principle of
ijma is the only authority for legislation in the present Muslims system.
Kinds Of Ijma
Ijma is of three kinds:
 Ijma of the companions of the prophet â€“ is the consensual opinion of companion which is universally
acceptable, throughout the Muslim world and is unrepealable.
 Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after ijma of
companions. All the jurists should sit together and discussed the reasoning, and majority of the jurists is
of the view that unanimity to form ijma.
 Ijma of the people â€“ is the opinion of Muslim population as a whole may have any importance but in
actual practice ijma of Muslim public had no value with regard to legal matters but in matters related to
religion, prayer and other observances have more value attached to it.
Ijma cannot be confined to any particular period or country. It is completed when the jurists, after due
deliberation, come to a finding .it cannot be questioned or challenged by any individual jurist. Ijma of one age
may be reversed or modified by the ijma of the same or subsequent age.
4) Qiyas
This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources i.e.,
Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though
not covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not
purport to create a new law, but merely to apply old established principles to new circumstances.
Conditions of Validity of Qiyas:
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 The original source from which Qiyas is deduced must be capable of being extended, that is it should not
be of any special nature.
 The original order of the Quran or hadith to which the process of Qiyas is applied should not have been
abrogated or repealed.
 The result of Qiyas should not be inconsistent with any other verse of Quran or any established Sunna.
 Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used.
 The deduction must not be such as to involve a change in the law embodied in the text.
Thus it can be said that Qiyas is weak source of law and rules analogically deduced do not rank so high as
authority, as those laid down by Quran and Hadith or by consensus of opinion (ijma).the reason is that with
respect to analogical deductions one cannot be certain that they are what the law giver intended. Such
deduction always rest upon the application of human resources which always are liable to err
Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The
secondary sources of Muslim law are:
 Urf or Custom
 Judicial decision
 Legislation
 Equity, Justice, & Good conscience
Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality, trade
and commerce. Custom has not been recognized as a source of law in a Muslim law. However, it cannot be
denied that custom has always been given a place under Muslim law, if it is in conformity with Muslim law. For
example, prophet mohammad never repeal the whole of the pre-Islamic customary law of Arabia. In various
matter of Muslim law, custom play a significant role when the matter is relating to their:
a. agricultural land;
b. testamentary succession among certain communities; and
c. Â charities other than wakf, because these matters have not been included in the section 2 of Shariat
Act,1937. Custom influenced the growth and formation of shariah in several ways:
Â
a. A number of texts, particularly traditions are based upon usages.

b. A part of the shariah based upon tacit or silent approval of the prophet comprises many of Arab customs.
c. Imam malik says that the customary conduct of the citizen of medina was a sufficient ijma to be relied
upon in the absence of other texts.
Pre- Condition Of Valid Custom

 Custom must be territorial.
 It must be existing from memorable time i.e. ancient.
 It must be continuous and certain and invariable.
 Custom should not oppose the public policies.
 Custom must not in contravention of Quran and Ijma.
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Judicial Decision
These includes the decisions of privy council, the supreme court & high court of India, Judges explain what law
is. These decisions are regarded as precedents for future cases. Judicial decision is one of the distinguish
characteristic of English law. In India, the plan of Warren Hastings of 1772 made provision that it was only
judiciary which introduced new set rules in personal laws of Hindus and Muslims.
There are number of judicial decisions which have given new dimension to Muslim law:
 In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the right to
retain the property of her husband till her dower money was paid
 In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of
maintenance. The Supreme Court held that a woman will be entitled for maintenance under section 125
of criminal procedure code even though she has received a lump-sum amount under her customary law.
A similar view also taken in Shah Bano's case.
It may be concluded therefore, that to some extent, the courts in India have tried to modify the rules of Muslim
personal law as applied in India. Unless overruled or negative by some legislative enactment, these rules
through the decisions, continue to be a source of Muslim law.
Justice, equity and good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law. Abu Hanifa,
the founder of hanafi sect of Sunni, expounded the principle that rule of law based on analogy could be set aside
at the option of the judge on a liberal construction or juristic preference to meet the requirements of a particular
case. These principles of Muslim law are known as Istihsan or juristic equity. Istihsan literally means
approbation and may be translated as liberal construction or juristic preference.
This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying down the law,
which in his discretion, the special circumstances required, rather than law which analogy indicated. Several
areas of Muslim were modified so as to meet the changing conditions in India.
Legislation
In India, Muslims are also governed by the various legislation passed either by the parliament or by state
legislature. The following are the examples of legislation in India.
 The usurious loans act, 1918

 Religious toleration act
 Freedom of religion act, 1850
 The mussalman wakf validating act, 1930
 The shariat act, 1937
 Dissolution of Muslim marriage act, 1939
These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act i.e. Muslim
Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced Muslim
women was enacted by Indian parliament. According to the need of time and circumstances Indian legislature
enacted the law to fulfill the need.
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Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law. Muslim law mainly
based on verses of Quran and practices of hadith. There is secondary source of Muslim law which subsequent
of it. Sects of shias does not accept the Qiyas as source of Muslim law. It is due to the contribution of all that an
orderly and systematic theory of personal laws of Islam came into existence which govers the Muslim
community.
2. Distinguish between void and irregular marriage and state the effects of valid, void and
irregular marriages.
3. What are the essentials of a valid marriage under Mohammedan Law? (2)
he essentials of a valid Muslim Marriage (Sahih) are as follows:
 Proposal and Acceptance

In a Muslim Marriage, proposal is referred to as ‘ijab’ and acceptance of the same as
‘qubul’. A proposal should be made by or on behalf of one party and the same should be
accepted by the other party. For a valid Muslim marriage, proposal and acceptance
should be carried out at the same meeting. If a proposal is made at one meeting and the
acceptance of the proposal is done in the second meeting, it is not considered as valid.
 Competency of Parties
The parties to the contract must be (i) Major, (ii) Of Sound Mind & (iii) Muslims.
Major
For the purpose of Muslim marriage, the age when a person reaches puberty is
considered as the age of puberty. According to Hedaya, the age of Puberty for female is 9
years and for male, it is 12 years. The Privy Council in the case of Muhammad Ibrahim v.
Atkia Begum & Anr.[ii] held that under Muslim law, a girl is considered to have attained
the age of puberty if: (a) she has attained the age of 15 Years, or (b) attaining the state
of puberty at an earlier age. The same rule is also applicable to a Muslim Boy. Thus, it
can also be said that in absence of any contrary, a Muslim is considered to have attained
the age of puberty at 15 years. After attaining the age of 15, parties can give their own
consent and there is no need of consent of guardians.
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If a person is a minor, i.e, not attained the age of puberty, the consent of the guardian is
required to make the marriage lawful. The persons recognized as guardian under Muslim
law are: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male member of
father’s family, (d) Mother, (e) Members of Maternal Relation. The right passes from one
guardian to other, in absence of the previous one, in order of priority. In absence of any
of these guardians, marriage may be contracted by Qazi or any other Government
Authority.
Soundness of Mind
At the time of marriage, both the parties should be of sound mind. Person of unsound
mind has no capacity to enter into a contract and in the eyes of law his consent will be
considered as no consent. Unsoundness is of two types: (a) Idiocy: It refers to a
complete abnormal state of mind. Person belonging to this category are incompetent to
contract, and (b) Lunacy: It refers to a curable mental disease. A lunatic person can
enter into a contract in the time interval in which he behaves like sane person.
Muslim
The parties to enter into marriage must be a Muslim irrespective of their sect or sub-sect.
A Marriage is considered to be as inter-sect marriage is both the parties are Muslim
belonging to different sect but the marriage is valid.
 Free Consent
For a valid marriage free consent of the parties is a must. If the consent is obtained by
means of coercion, fraud or mistake of fact, it is considered as invalid and the marriage is
considered as void. In the case of Mohiuddin v. Khatijabibi [iii], the Court held that a
marriage is invalid if it is held without free consent of the parties.
 Dower
It is referred to as ‘mahr’. It refers to the amount of money or other property which a
bride groom has to give to bride as a consideration of marriage. Its object is to offer the
bride a sense of financial security within and after the termination of marriage. In the
case of Nasra Begum v. Rizwan Ali[iv], Allahabad High court held that right
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to mahr comes into existence before cohabitation. The Court also concluded that if wife is
a minor, her guardians can refuse to send to her husband until payment of dower, and if
she is in husband’s custody, then she can also be brought back.

Free From Legal Disability
Under Muslim law, marriage is not permitted under certain circumstances. The
restrictions/prohibition can be divided into two parts:
 Absolute Prohibition
 Relative Prohibition
 Miscellaneous Prohibition
Absolute Prohibition
A Muslim marriage cannot take place if the parties are within the within blood relationship
or prohibited degree of relationship of each other and the Marriage turns to be void. The
absolute prohibited degrees of relationship are as follows:
 Consanguinity
It refers to blood relationship in which a man is barred from marrying the following
females. They are as follows:
1. His mother or Grand-mother (how high so ever),

2. His daughter or Grand-daughter (how low so ever),
3. His sister (irrespective of full blood/ half blood/ uterine blood),
4. His niece or Great-niece (how low so ever), and
5. His aunt or great aunt, whether paternal or maternal (how high so ever).
A marriage with woman prohibited under consanguinity is void. Also, children born out of
that wedlock are considered as illegitimate.
 Affinity
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A marriage with certain close relatives is also prohibited in Muslims due to closeness of
relationship. The prohibited relationship are as follows:
1. His wife’s mother or Grand-mother (how high so ever),

2. His wife’s daughter or Grand-daughter (how low so ever),
3. His father’s wife or paternal Grand-father’s wife (how high so ever), and
4. His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so ever).
A marriage with woman prohibited under affinity is void.
 Fosterage
It refers to milk relationship. It is a condition when a lady other than the mother of the
wife, breastfed/ suckled the child under the age of two years, the lady turns to be foster-
mother of the child. A man is restricted from marrying the persons who come under
foster relationship. The restrictions are as follows:
1. His foster mother or foster grandmother (how high so ever), and

2. Daughter of foster mother (Foster sister).
Under the Sunni law has a few exceptions with respect to prohibition on ground of
fosterage and the following Marriage is considered as valid:
1. Sister’s foster mother, or

2. Foster’s-sister’s mother, or
3. Foster-son’s sister, or
4. Foster-brother’s sister.
The Shia jurists consider Consanguinity and fosterage at same footing and deny the
exception allowed by Sunnis.
Relative Prohibition
Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes
place in violation of such prohibition, it is only irregular and it can’t be declared as void.
The marriage becomes valid as soon as the irregularities are removed. Relative
prohibitions are as follows:
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 Unlawful Conjunction
A Muslim man is prohibited to marry two different women if they are related to each
other by means of consanguinity, affinity or fosterage as if they would have been of
opposite sexes their marriage would have been void (batil). After the termination of
marriage/ death of his wife, marriage can take place with the other. Under Sunni law,
Marriage in violation of unlawful conjunction is irregular (fasid) and not void but under
Shia law, a marriage violating the rule of unlawful conjunction is void (batil).
 Polygamy
Muslim laws allow polygamy but it is restricted to a maximum of four wives. A Muslim
man can have four wives at a time, but if he marries the fifth one despite of having four
wives, the marriage turns to be irregular and not void. The fifth marriage can be valid
after death/ termination of marriage of one of the four wives. However, the Shia law
considers marriage with the fifth wife as void. In India, a Muslim marriage can’t have a
second marriage if his marriage is registered under The Special Marriage Act, 1954.
 Absence of Proper Witness
Contracting of marriage must be done in the presence of proper and competent

witnesses. Under the Shia law, presence of witness is not essential and marriage without
witnesses is considered as valid. Marriage is contracted by the parties themselves (if
major) or by their guardians itself. Under Sunni law, presence of witness is essential else
the marriage would be irregular. At least two male or one male and two female witnesses
should be present and the witness should be a major, of sound mind and a Muslim.
 Difference of religion
Under the Sunni law, a Muslim male is allowed to marry a female who shows respect for
same scriptures, such as Christain, Parsi and Jews, but if he marries with an idol/ fire
worshipper, the same is considered as irregular. A Muslim woman is not allowed to marry
a non-Muslim man and if it happens, the same is considered as irregular. Under the Shia
Law, a marriage with non-Muslim is considered as void. According to Fyzee, such
marriage is void, but According to Mulla, such a marriage is irregular.
 Marriage during Iddat
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It is referred to as a period of waiting after the death of her husband or after termination
of marriage during which she cannot remarry. The purpose of the iddat is to check
whether the woman is pregnant or not to clear doubts of paternity of any child born. A
divorced woman has to observe for a period of three months whereas a widow observes it
for four lunar months and ten days after the death of husband. If the woman is pregnant
then if extends up to her delivery. Under Sunni law, marriage during iddat is considered
as irregular whereas, under Shia law, it is considered as void.
Miscellaneous Prohibitions
1. Marriage during pilgrimage is considered as void in Shia law.

2. Re-marriage between Divorced Couple: A certain procedure needs to be followed
in which a Muslim lady has to perform a valid marriage with another man. Then
her husband needs to voluntarily divorce her. Then the lady needs to perform
iddat. Now she can marry her previous husband. If this procedure is not followed
the marriage is considered as irregular.
3. Polyandry: It refers to a condition in which a woman can have more than one
husband. It is not permitted under Muslim law.
 Registration
Registration of Marriage is not necessary according to Muslim Law. However, few states
like Assam, Punjab, Bengal, Bihar and Orissa have enacted laws for registration of Muslim
Marriage. The registration is not an essential part for a Valid Muslim marriage but it acts
as an authentic proof. The apex court in the Case of Seema v. Ashwani Kumar[v], held
that marriage of Indian citizens irrespective of their religion should be registered in their
states where the marriage has been solemnized. Also, in the case of M. Jainoon v.
Amanullah Khan[vi], Madras High court observed that although registration of Marriage is
not necessary, it cannot be said that registration of Marriage is prohibited under Muslim
personal Law.
4. Explain the legal impediments of a muslim marriage.

5. Impendiments To A Valid Marriage under Islamic law
1. Introduction:
Marriage is a civil contract between two persons of opposite sex which has for its object the procreation and the
legalizing of children. Islamic personal law lays down some prohibition to a valid marriage on different grounds. a
Muslim can marry a person with whom marriage is allowed under Shariat law. so there must be complete absence of
impediments for a valid marriage.
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2. Quranic verses:
Alnisa 22-24.
All others are lawful, provided ye seek them in marriage with gifts from your property, desiring chasity, not lust, seeing
that ye derive benefit from them, give them their dowers at least, as prescribed, but if after a dower is prescribed, ye
mutually agree to vary it, there is no blame on you and God is all knowing.
3. Meaning of impediment:
Impediment to a valid marriage means to stop a person to marry a woman or a woman to marry a man on the grounds of
consanguinity, affinity, or fosterage, on the grounds of consanguinity, affinity, or fosterage.
4. Kinds of impediment:
I. Permanent:
Perpetual or permanent impediment to a valid marriage arises on account of consanguinity, fosterage and affinity. in
such case impediment is absolute and eternal.
II. Temporary:
Temporary impediment arises from prohibition in the way of marriage which is not permanent in its nature and the
hindrance is liable to be removed.
5. Various grounds of impediments:
I. Ground of consanguinity:
A man is prohibited from marrying.
(i) His mother or his grandmother.
(ii) His daughter or grand daughter how high soever.
(iii) His sister, whether full, consanguine or uterine.
(iv) His niece or great nice howlosover.
(v) His aunt or great-aunt how high soever.
Effect.:
A marriage prohibited by reasons of consanguinity is void.
II. Ground of affinity:
A man is prohibited form marring:
(i) His wife, s mother or grandmother howhighsoever.
(ii) His wife, s daughter or grand daughter howlosovever.
(iii) His father, s wife or paternal grand father howhighsoever.
(iv) The wife of his son or his son, s or daughter son howlsoever.
Effect:
A marriage prohibited by reason of affinity is void.
III. Ground of fosterage:
A man can not marry to this foster mother or his foster sister and foster mother, s sister all come within the prohibited
degrees.
(i) Exceptions:
A man can marry to
(i) Sister's foster-mother.
(ii) Foster sister's mother.
(iii) Foster son'sister.
(iv) Foster brother's sisters.
Effect:
A marriage with a woman. prohibited by reason of fosterage is void.
IV. Ground of unlawful conjunction:
A Muslim may not have at the same time two wives who are so related to each other by consanguinity, affinity or
fostrage, that if either of them had been a made, they could not have lawfully intermarried, as for instance, two sisters,
or aunt and niece.
Effect:
A marriage with a woman prohibited by reason of unlawful conjunction is irregular.
V. Ground of difference of religion:
A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia, that is, a Jewess
or a Christain, but not with an idolatress or a fire worshipper. a marriage, however with an idolatoress or a fire
worshipper is not void but irregular.
VI. Ground of iddat:
A man can not marry a woman observing period of iddat.
Effect:
A marriage contracted with a Muhammeden lady before the expiry of iddat is irregular.
6. Plurality of husband:
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It is unlawful for a wife to have more than one husband at the same time. such marriage under Islamic law is viod.
Legal effect:
(i) A Muslim woman marriage again in the life time of her husband is liable to be punished under criminal laws of
Islam.
(ii) The off-spring of such marriage can not not be acknowledged as legitimate.
7. Conclusion:
To conclude I can say that the marriage among Muslim is not a Sacrament, but purely a civil contract. for a valid
marriage there should be no impediments or disabilities to the marriage. Islamic law imposes certain restrictions on the
right of a person to enter into martial relation with a person of opposite sex.
8. Explain the principles of acknowledgment of paternity.

 What is acknowledgement of Paternity? Explain the conditions of valid
acknowledgement.
Acknowledgement of paternity under Muslim Law (Iqrar-e-

nasab)
Vaishali Bahubalendra Legal Article Mon, 24 Aug 2020 07:59 PM
Acknowledgement of paternity under Muslim Law

(Iqrar-e-nasab)
Firstly let us describe the two terms that are 'acknowledgement' and 'paternity'. Acknowledgement means to
accept or admit the existence of a thing or a fact and paternity mean the state of being someone father. So
put together acknowledgement of paternity means accepting the fact of being someone's father.
Acknowledge of paternity is required so as to prove the legitimacy of a child. The acknowledgement is just
in nature of a declaration by father that the child is his offspring. This doctrine of acknowledgement draws
its genesis from the Quranic provision:- "call them after their fathers"[1].
Under the Muslim law a child to be legitimate:-
 must be born during lawful wedlock and

 must be conceived during the lawful wedlock
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A child born after six months of marriage is legitimate, unless declaimed by his father and a child born
within six months marriage is illegitimate unless the father acknowledges it. So acknowledgement is a tool
for keeping the family intact and not allowing the child to live without the love, care and protection of the
father. So for an acknowledge being made doubtfulness of paternity of the child is a prima facie requisite.
When the paternity of the child cannot be established by marriage between the parents at the time of
conception or birth, such void of marriage and legitimate descent is filled through acknowledgement.
So a child to be legitimate must be begotten out of lawful wedlock. The law with regard to the
Mohammedans requires or necessitates the existence of a valid marriage between the male person (begetter)
and the carrier (mother) at the time of conception. This above-contemplated requisite has been highlighted in
case of Habibur Rahman Chowdhari v Altaf Ali Chowdhari[2], to state expressly:- "a son to be
legitimate must be the offspring of a man and his wife or a man and his slave, any other offspring is the
offspring of the 'gina', that is, illicit connection, and cannot be legitimate."
Therefore under the Muslim law legitimacy of a child can be established through direct
or indirect marriage between the father and the mother of the child. In cases wherein lawful marriage can be
proved in tot, the presumption of a lawful marriage saves the day. The cases vide which a lawful marriage
may be presumed, are envisaged as under:-
 Prolonged cohabitation of a man and a woman (excluding a prostitute);

 Acknowledgement by a man of a woman as his wife.
 Acknowledgement of being the father of the child.
So acknowledgement, though an effective remedy for those children, whose legitimacy is doubtful, but for
the use of this remedy proof of valid wedlock is a requisite. A child begotten between prostitute or
concubine and man is prima facie an illegitimate and so cannot be given the tag of legitimacy even by the
use of this remedy i.e. acknowledgement of paternity. This narrowness in the application in the doctrine has
a twinning effect, firstly giving legitimacy to the children in cases where their legitimacy is in issue in a
persisting marriage and secondly, on the other hand, prohibits men and women to have an adulterous
relationship outside the wedlock as acknowledging does not remedy those children who are ipso facto
illegitimate. The case of Sadiq Husain v. Hashim Ali[3] gives a thrust to the above-mentioned statements
and in addendum contemplates that, an acknowledgement cannot legitimate a child who is proved to be
illegitimate.
How legitimacy is presumed under Muslim Law?
The Islamic law sets out criteria, some general whereas some differences in relation to some of its schools,
in relation to the presumption of legitimacy. These are mentioned as under:-
a. Unless the father acknowledges, a child born with six months of the marriage is illegitimate.
b. Unless the purported father declaims the child [through lian (i.e.dissolution of marriage, by the
allegation of adultery to wife)], a child born after six months is presumed to be legitimate.
Cases wherein a child born after the dissolution of marriage is legitimate if:-
i. Born within 10 lunar[4] months, under the Shia law.

ii. Born within 2 lunar years, under the Hanafi law.
iii. Born within 4 lunar years under Shafei and Maliki law.
These rules though had primacy before, but have been done away with as the same is rarely or not all
applicable in the Indian context. It also needs to be emphasised that the principle of acknowledgement of
paternity is not only a mode of evidence but is also a part of the substantive Shariat law.
14
Conditions requisite for a valid acknowledgement are envisaged below:-
1. Intention to confer legitimacy
The acknowledge must not be of sonship alone but must be of legitimate sonship. Such acknowledgement
must be well-intended and not have been casually made with no intention to confer legitimacy.
2. Acknowledger's Age
The parties thereto must be of such age, so as to be considered as father and son, i.e. the acknowledger must
be twelve and a half years older than the child acknowledged.
3. The legitimacy of the child must be in question (the child must not be known to be the child of
someone else)
The acknowledged by the acknowledger should not be known to be the child of another.
4. Confirmation must be made by the person so acknowledged.
The acknowledger i.e. the must verify the acknowledgement or at least not repudiate it and believe himself/
herself to be the child of the acknowledger.
5. Legal Marriage must be possible between the parents of the acknowledged child
There must not be any kind of prohibited relationship between the parents of the child acknowledged, i.e.
either by consanguinity, affinity etc.. The marriage should be possible when the child was begotten.
6. The acknowledger must be competent
The acknowledger must bear capacity for entering into a valid contract, that is he should be adult and sane.

7. Should not be Zina's ( incest) Offspring
The child acknowledged should be an outcome of lawful wedlock, should not be born without marriage or
born out of a void marriage, born out of adultery etc.
Now coming to the statutory law in the Indian regime with regard to the presumption of legitimacy, which
has been inscribed under section 112 of the Indian Evidence Act,1872 (IEA for brevity). This section
raises a legal presumption for the legitimacy of a child, under two circumstances:-
 When the child is born during the continuance of valid marriage;

 With 280 days of the dissolution of marriage, provided the mother remains unmarried.
The fact that the child is born between these two periods as contemplated above, is considered to
be conclusive proof of legitimacy in letters of section 112 of the Indian Evidence Act, 1872. But the
conclusiveness of such legitimacy can be rebutted if the parties show no access.
Both under the Muslim law and Indian Evidence Act there is a window whereby the presumption
of legitimacy of a child can be denied. In the former case, it is through lian(disclaim) and in the latter by
proof of non-access. Whether the presumption under IEA supersedes the presumption under Muslim law. To
15
this dilemma, the opinions of High courts have differed, but in the majority of opinion it has been contended
that presumption under IEA eclipses the presumption under the Muslim Law and applies to Muslim as well.
[5]
But a flaw that is very well-identified in the requisites for the application of section 112
for IEA, that is there must be a valid marriage and no such presumption of legitimacy of the child can be
raised under section 112 of IEA if the marriage is not valid. This particular proposition had been highlighted
in the case of Abdul Rahemankutty v Aisha Beevi[6]. So if a child is begotten of a marriage which is
invalid the remedy of presumption under 112 of IEA cannot be invoked. But in such a contingency, panacea
can be obtained vide the presumption of legitimacy under Muslim law. So what can be inferred is that, if a
given situation has all requisites which mandate section 112 IEA to invoked then the case shall continue as
usual but if in cases, where marriage is not valid, the presumption of legitimacy under Muslim law shall
prevail. But still, it cannot be stated in general as to presumption under which law (IEA S-112 or Muslim
law) will prevail over the other.
9. Explain the different ways in which a marriage may be dissolved under Mohammaden Law.
 What is Talak? State in detail different modes of talak.
 Explain the different forms of talak. When talak becomes irrevocable?
 Explain the different forms of Talak.
irm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon
the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no
marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One
of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of
the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it
has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage.
The Prophet declared that among the things which have been permitted by law, divorce is the worst . Divorce
being an evil, it must be avoided as far as possible.But in some occasions this evil becomes a necessity,
because when it is impossible for the parties to the marriage to carry on their union with mutual affection and
love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred
and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any
specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either
by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law,
which will be discussed hereafter.
Modes of Divorce:
A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such
words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also
divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her
husband of her own accord. She can divorce the husband only when the husband has delegated such a right to
her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat.
Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery,
insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other
grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.
There are two categories of divorce under the Muslim law:

1.) Extra judicial divorce, and
2.) Judicial divorce
16
The category of extra judicial divorce can be further subdivided into three types, namely,
# By husband- talaaq, ila, and zihar.
# By wife- talaaq-i-tafweez, lian.
# By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means "setting free", "letting
loose", or taking off any "ties or restraint". In Muslim Law it means freedom from the bondage of marriage and
not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate
words. In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid
down by the law.
The following verse is in support of the husband's authority to pronounce unilateral divorce is often
cited:
Men are maintainers of women, because Allah has made some of them to excel others and because they spend
out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce
divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the
schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread
has been the talaaq that even the Imams practiced it . The absolute power of a Muslim husband of divorcing his
wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and
without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is
necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is
not very essential.
In Hannefa v. Pathummal, Khalid, J., termed this as "monstrosity" . Among the Sunnis, talaaq may be express,
implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated
forms of talaaq.
Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to
pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor
or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and
ineffective. However, if a husband is lunatic then talaaq pronounced by him during "lucid interval" is valid. The
guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the
Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.
2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free
consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and
voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the
Hanafi law.
Shia law:
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion,
undue influence, fraud, or voluntary intoxication is void and ineffective.
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3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the
husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to
constitute a valid talaaq. Any expression which clearly indicates the husband's desire to break the marriage is
sufficient. It need not be made in the presence of the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the
husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in
the presence of two witnesses.
4) Express words: The words of talaaq must clearly indicate the husband's intention to dissolve the marriage. If
the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband
clearly intends to dissolve the marriage.
Express Talaaq (by husband):

When clear and unequivocal words, such as "I have divorced thee" are uttered, the divorce is express. The
express talaaq, falls into two categories:
# Talaaq-i-sunnat,
# Talaaq-i-biddat.
Talaaq-i-sunnat has two forms:
# Talaaq-i-ahasan (Most approved)
# Talaaq-i-hasan (Less approved).
Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.
The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between
two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual
intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr
applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable
when the wife has passed the age of menstruation or the parties have been away from each other for a long
time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked
at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The
revocation may effected expressly or impliedly.
Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained
thee" the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also
results in the revocation of divorce.
The Raad-ul-Muhtar puts it thus: "It is proper and right to observe this form, for human nature is apt to be
mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of
which one is certain to feel ashamed afterwards"
The hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the
wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or
thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq,
becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time
when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity
and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the
first pronouncement by express words. Then again, when she enters the next period of purity, and before he
18
indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife
enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement.
The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.
Talaaq-i-Biddat:
It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made
in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable
pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by
the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.
Ila:
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They
are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife.
Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month,
the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled
and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without
order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If
there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights
against the husband.
Zihar:
In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister
etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the
husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is
complete.
After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek
judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
Divorce by mutual agreement:

Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the wife has to part
with her dower or a part of some other property. A verse in the Holy Quran runs as: "And it not lawful for you that
ye take from women out of that which ye have given them: except (in the case) when both fear that they may not
be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman
ransom herself." The word khula, in its original sense means "to draw" or "dig up" or "to take off" such as taking
off one's clothes or garments. It is said that the spouses are like clothes to each other and when they take khula
19
each takes off his or her clothes, i.e., they get rid of each other.
In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of
compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential,
the actual release of the dower or delivery of property constituting the consideration is not a condition precedent
for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The
husband has no power of cancelling the 'khul' on the ground that the consideration has not been paid. The
consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not
illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may
emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among
the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end.
The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to
be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper
form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would
result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of
pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both,
Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must
undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the
court is required.
Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim
husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate
the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable
but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to
whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be
delegated to his wife and as Faizee observes, "this form of delegated divorce is perhaps the most potent
weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now
beginning to be fairly common in India".
This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a
prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage
expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce
divorce on his wife. The husband left his father-in-law's house without paying the amount. The wife exercised the
right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her.
Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is
stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a
right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not
against public policy . It should be noted that even in the event of contingency, whether or not the power is to be
exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of
contingency does not result in automatic divorce.
Lian:
20
If the husband levels false charges of unchastity or adultery against his wife then this amounts to character
assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is
called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if
false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts
the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her,
then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false
charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim
Ali by the Calcutta High Court.
Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It
however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.
Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her
marriage on any one or more of the following grounds, namely:-
# That the whereabouts of the husband have not been known for a period of four years: if the husband is
missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is
deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is
unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground,
she is required to give the names and addresses of all such persons who would have been the legal heirs of the
husband upon his death. The court issues notices to all such persons appear before it and to state if they have
any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which
becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall
set aside the decree and the marriage is not dissolved.
# That the husband has neglected or has failed to provide for her maintenance for a period of two
years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek
divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has
no means to provide her maintenance. In both the cases the result would be the same. The husband's obligation
to maintain his wife is subject to wife's own performance of matrimonial obligations. Therefore, if the wife lives
separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband's
failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.
# That the husband has been sentenced to imprisonment for a period of seven years or upwards: the
wife's right of judicial divorce on this ground begins from the date on which the sentence becomes final.
Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or
after the appeal by the husband has been dismissed by the final court.
# That the husband has failed to perform, without reasonable cause, his marital obligations for a period
of three years: the Act does define 'marital obligations of the husband'. There are several marital obligations of
the husband under Muslim law. But for the purpose of this clause husband's failure to perform only those
conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this
Act.
# That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of
divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and
continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground,
the court is bound to give to the husband one year to improve his potency provided he makes an application for
it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd.
Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made
an application before the court seeking an order for proving his potency. The court allowed him to prove his
21
potency.
# If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral
disease: the husband's insanity must be for two or more years immediately preceding the presentation of the
suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be
white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of
the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration.
Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce
on this ground.
# That she, having been given in marriage by her father or other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not
been consummated;
# That the husband treats her with cruelty, that is to say-

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not
amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy
Quran.
In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take
admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give
her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the
part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court's attitude of
attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah, a case from Lahore
High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband's
conduct does not amount to cruelty.
In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and see pictures in cinema.
The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought
divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be
regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-
Islamic behaviour.
In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize various types of
cruelty such as 'Muslim cruelty', 'Hindu cruelty' and so on, and that the test of cruelty is based on universal and
humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as
to endanger the wife's safety or health.
Irretrievable Breakdown:
Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the
judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din , it was argued that
the wife hated her husband so much that she could not possibly live with him and there was total incompatibility
of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later
in Neorbibi v. Pir Bux, again an attempt was made to grant divorce on the ground of irretrievable breakdown of
marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown
grounds for divorce: (a) non-payment of maintenance by the husband even if the failure has resulted due to the
conduct of the wife, (b) where there is total irreconcilability between the spouses.
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Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to
the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern
Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is
today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women,
the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk
Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-
Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th
century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.In practice in
most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to
follow as well.
Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and
any supplementary property specified in the marriage contract. She is also given child support until the age of
weaning, at which point the child's custody will be settled by the couple or by the courts. Women's right to
divorce is often extremely limited compared with that of men in the Middle East. While men can divorce their
spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen, women usually can
ask for divorce only when husband's inability to support her life is admitted while men can divorce at will.
However, this contentious area of religious practice and tradition is being increasingly challenged by those
promoting more liberal interpretations of Islam.
10. State the rules of succession applicable to Parsi dying intestate.

11. A male Parsi dies leaving behind his widow, son and daughter.
Distribution of
properties of Parsi person as per succession laws.pdf
12. Divide the estate.
Property can be distributed by two methods under Muslim law:

distribution either per capita or per stripes.
Per capita distribution:
Per capita distribution of property is mainly followed by the Sunni

Muslims. In per capita distribution, the property is divided equally
among all the heirs. This means that the number of heirs of the
deceased determines the amount of share for each heir in the
property of the deceased. The branch of the family to which the heir
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belongs to does not influence the inheritance that he or she is
subjected to receive.
Per Stripe’s distribution:
Per stripes distribution of property is followed by the Shia branch of

Islam. Under per stripes distribution, a property is distributed among
the heirs of a branch (strip) of the family. Accordingly, the family
branch and the number of people that exist in that particular branch
of the family will determine the amount of share in the property of
the family members.
Illustration:
Take this family free for instance: A is the father of two sons: B and C.
B, in turn, have two children: D and E. C has three children: F, G and
H.
Now, upon A’s death, his property is calculated to be around Rs.

12,000. According to per stripes distribution, B and C will gain equal
shares of A’s estate which is Rs. 6000 each. Now when B and C die,
their property of Rs. 6000 will be distributed among the members of
their stripes. In B’s stripe, D and E will inherit B’s Rs. 6000 in equal
portions of Rs. 3000 each. In C’s branch, there are three heirs: F, G
and H. All three of them will inherit C’s estate of Rs.6000 in equal
portions. Which means that F, G and H will be entitled to Rs. 2000
each?
24
13. When a curator is appointed? What are his powers and duties? (2)
 Who is curator? What are his powers? (2)
MUSLIM-LAW
curator.pdf
14. Write short notes on any two of the following :

a) lddat period. (3) m) Legitimacy and Legitimation.
b) Succession certificate. (3) n) Differentiate talaq and divorce
c) Family Courts. o) Private waqf (2) and Public waqf
d) Mutawalli. p) Will and gift.
e) Probate. (2) q) Hizanath
f) Mushaa Doctrine/ Doctrine of r) Maintenance of Wife.
Mushaa s) Zihar
g) Quran. (2) t) Restitution of Conjugal Rights
h) Specific Legacy. u) Parental rights
i) Muta marriage. (2) v) Khula and Mubara’t divorce
j) Wakf. w) alimony under Divorce Act, 1869.
k) Specific legacy and demonstrative x) Custody of Child
legacy (2). y) Ila (ILA)
l) Hiba and Hiba-bil-Iwaz
Iddat
In Islam, iddah or iddat (Arabic: ‫;العدة‬ period of waiting) is the period a woman must observe after the death of her
husband or after a divorce, during which she may not marry another man.[1]:472[2] One of its main purposes is to
remove any doubt as to the paternity of a child born after the divorce or death of the prior husband.
The length of ‘iddah varies according to a number of circumstances. Generally, the ‘iddah of a woman divorced
by her husband is three monthly periods, but if the marriage was not consummated there is no ‘iddah. For a
woman whose husband has died, the ‘iddah is four lunar months and ten days after the death of her husband,
whether or not the marriage was consummated. If a woman is pregnant when she is widowed or divorced, the
‘iddah lasts until she gives birth.
Islamic scholars consider this directive to be a balance between mourning of husband's death and protecting the
widow from criticism that she might be subjected to from remarrying too quickly after her husband’s death. [3] This
is also to ascertain whether a woman is pregnant or not, since four and a half months is half the length of a
normal pregnancy.[4]
Succession Certificate
When a person dies without leaving a will is considered to have died intestate. In
such cases in order to determine legal heir, a succession certificate has to be
established in order to grant authority over the deceased’s assets, debts and
security. The succession certificate is governed by the Indian Succession Act, 1925
which an object enables to certify the authenticity of the successor of a deceased
person who has died without leaving a will. It not only secure the assets of the
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deceased but also provided indemnity to all person who was owing to the debt with
respect to all the payments made them by the deceased. It is a mandatory
procedure that is required to be followed in intestate cases.
The certificate has to mention the list of securities, debt, and assets of the deceased
along with the details of the surviving legal heirs, information regarding the death of
deceased. This signifies that the certified holder has obtained the rightful authority
over the assets of the deceased. The grant of the certificate acts as a guarantee of
title that aids in recovery of debt which was due to the deceased and thereby
protects the lender from the loss and damages.
Any person who has attained the age of majority has a sound mind and an interest
in the estate of the deceased are eligible to file an application for a succession
certificate. However, it shall be pertinent to note that a minor through a guardian can
also apply for a certificate.
Family Courts
It is not unknown that a gaping loophole in the Indian Judiciary is the backlog of cases. The number of cases
being filed in the Supreme Court is consistently on the rise. 34683 cases were filed in Supreme Court in the
year 1999, whereas, 70350 were filed in the year 2008, the increase being about 103% nine years. There are
cases dealing with a broad spectrum of issues such as family matters and property which continue for
generations. Such cases continue for atrocious periods of time, ranging from 7 years to 30 years. In such a
scenario, the channeling of cases to different courts set up specially for this purpose not only ensures their
speedy disposal, but also ensures that the cases, being dealt by with experts in courts specially set up for this
purpose; are dealt with more effectively. The saying that “justice delayed is justice denied” then becomes
relevant to take into consideration.
Further, pertinent to note here is that Marriage as an institution has become the subject of great judicial scrutiny.
There are a number of judicial provisions dealing with marriage and its various aspects. The result is that, in
addition to the various advantages that these legal provisions may provide; the privacy of this institution has
been threatened. As per studies conducted in Mumbai and Delhi, 40 % of marriages are heading towards
divorce. There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of
Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few.
There are issues like alimony which become the topic of great controversy and cause harassment to families.
What further becomes a problem is that personal issues get intertwined with the legal issues and lead to the
unnecessary prolonging of the disposal of these cases. The younger generation, being made a scapegoat in the
changing times due to the ensuing cultural war between Conservatives and Liberals, wastes its useful youth in
the precincts of the litigating corridors of the family courts, criminal courts and magistrate courts waiting in long
queues being expectant of receiving justice.
The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because of the building
pressure from various institutions lobbying for the welfare of women all over the country, the Act was expected
to facilitate satisfactory resolution of disputes concerning the family through a forum expected to work
expeditiously in a just manner and with an approach ensuring maximum welfare of society and dignity of
women. Prevalence of gender biased laws and oppressive social practices over centuries have denied justice
and basic human rights to Indian women. The need to establish the Family Courts was first emphasized by the
26
late Smt. Durgabai Deshmukh. After a tour of China in 1953, where she had occasion to study the working of
family courts, Smt. Deshmukh discussed the subject with certain Judges and legal experts and then made a
proposal to set up Family Courts in India to Prime Minister Pt. Jawaharlal Nehru.
To this background, a significant development has been the recent setting up of the Family Court in Delhi.
Though such courts have been set up and are functioning in other states, the setting up of a family court in the
Capital is a significant development and a step which was necessary to be taken. The main purpose behind
setting up these Courts was to take the cases dealing with family matters away from the intimidating
atmosphere of regular courts and ensure that a congenial environment is set up to deal with matters such as
marriage, divorce, alimony, child custody etc. As mentioned earlier, an effective way of tackling the problem of
pendency is to improve the efficiency of the system rather than changing the system altogether. A significant
step is to make use of the available human resource. These family courts at Delhi are equipped with counsellors
and psychologists who ensure that the disputes are handled by experts who do not forget that while there may
be core legal issues to be dealt with; there is also a human and psychological dimension to be dealt with in
these matters. The role of the counsellors is not limited to counselling but extends to reconciliation and mutual
settlement wherever deemed feasible.
15. A Muslim marry his wife's sister during the lifetime of his wife. Two children were born to them.
Are these children legitimate?
Refer valid marriage – theory above
16. Explain the essentials of a valid gift under Mohammedan law. (2)
A gift is a transfer of property where interest is transferred from one living person to another,
without any consideration. It is a gratuitous and inter vivos in nature. This is the general
definition that is accepted by all the religions, including Muslim law. As per the Muslim Law, a
gift is called as Hiba.
Under English laws, right in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in the land described as “estate” under English
Law do not always imply only absolute ownership but it also includes rights which fall short of
it and are limited to the life of the grantee or in respect of time and duration of use of the
same[i].
Under Hindu Law, a gift is regarded as the renunciation of the property right by the owner in the
favor of donee. According to Jimutvahana, under Hindu law’s concept of gift, ownership is not
created by acceptance but by renunciation of the donor. But however, the Mitakshara school of
Hindu law considers acceptance as an important ingredient for a gift. The donor can divest his
interest by renunciation but cannot impose the same on the donee if he is not ready to accept[ii].
Under Muslim Law, the concept of Gift developed much during the period of 610 AD to 650
AD. In general, Muslim law draws no distinction between real and personal property, and there
is no authoritative work on Muslim law, which affirms that Muslim law recognizes the splitting
up of ownership of land into estates. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (called as Ayn) and the usufruct in the
property (as Manafi).
27
Over the corpus of property, the law recognizes only absolute dominion, heritable and
unrestricted in point of time. Limited interests in respect of property are not identical with the
incidents of estates under the English law. Under the Mohammedan law, they are only
usufructuary interest (and not rights of ownership of any kind). Thus, in English law a person
having interest in the immoveable property for limited periods of time is said to be the “owner”
of the property during those periods and the usufruct is also regarded as a part of the corpus.
the following are the essentials of a valid gift[viii]-
1. A declaration by the donor:

There must be a clear and unambiguous intention of the donor to make a gift. A
declaration is a statement which signifies the intention of the transferor that he
intends to make a gift. A declaration can be oral or written. The donor may declare
the gift of any kind of property either orally or by written means. Under Muslim
law, writing and registrations are not necessary.
In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul[ix] it was held that
under Muslim Law, declaration, as well as acceptance of the gift, may be oral
whatever may be nature of property gifted. When the gift is made in writing, it is
known as Hibanama[x]. This gift deed need not be on stamp paper and also need
not be attested or registered.[xi] In the famous case of Md. Hesabuddin v Md.
Hesaruddin[xii], where the gift was made by a Muslim Woman and was not
written on a stamp paper, Gauhati High Court held that the gift was valid.
The declaration made by the donor should be clear. A declaration of Gift in
ambiguous words is void. In Maimuna Bibi v. Rasool Mian[xiii], it was held that
while the oral gift is permissible under Muslim law, to constitute a valid gift it is
necessary that donor should divest himself completely of all ownership and
dominion over the subject of the gift. His intention should be in express and clear
words. According to Macnaghten, “A gift cannot be implied. It must be express
and unequivocal, and the intention of the donor must be demonstrated by his entire
relinquishment of the thing given, and the gift is null and void when he continues
to exercise any act of ownership over it.”[xiv]
The declaration should be free from all the impediments such as inducement,
threat, coercion, duress or promise and should be made with a bona fide intention.
2. Acceptance by the donee[xv]

A gift is void if the donee has not given his acceptance. The legal guardian may
accept on behalf of a minor. Donee can be a person from any religious background.
Hiba in favor of a minor or a female is also valid. A child in the mother’s womb is
a competent done provided it is born alive within 6 months from the date of
declaration. A juristic person is also capable of being a donee and a gift can be
made in their favor too. On behalf of a minor or an insane person, any guardian as
mentioned under the provisions of Muslim law can accept that gift. These
authorized people include[xvi]:
28
 Father,
 Father’s Executor,
 Paternal Grand-Father, and
 Paternal Grand Father’s Executor.
3. Delivery of possession by the donor and taking of the possession by the
done[xvii]:
In Muslim law, the term possession means only such possession as the nature of
the subject is capable of. Thus, the real test of the delivery of possession is to see
who – whether the donor or the donee – reap the benefits of the property. If the
donor is reaping the benefit then the delivery is not done and the gift is invalid.
The mode of delivery of possession depends completely upon the nature of the
property. Delivery of possession may either be: Actual, or Constructive.
1. Actual Delivery of Possession: Where the property is physically handed over to

the donee, the delivery of possession is actual. Generally, only tangible properties
can be delivered to the done. Tangible property may be movable or immovable.
Under Muslim law, where the mutation proceedings have started but the physical
possession cannot be given and the donor dies, the gift fails for the want of
delivery of possession[xviii]. However, in such cases, if it is proved that although
the mutation was not complete and the done has already taken the possession of
the property, the gift was held to be valid[xix].
2. Constructive Delivery of Possession: Constructive delivery of possession is
sufficient to constitute a valid gift in the following two situations:
 Where the Property is intangible, i.e. it cannot be perceived through senses.
 Where the property is tangible, but its actual or physical delivery is not possible.
Under Muslim law, Registration is neither necessary nor sufficient to validate the gifts of
immovable property. A hiba of movable or immovable property is valid whether it is oral or in
writing; whether it is attested or registered or not, provided that the delivery of possession has
taken place according to the rules of Muslim Law[xx].
Constitutional Validity Of Hiba

The question of whether the first exemption was constitutionally valid in regards to the right to
equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts,
validating the disposition on the grounds of ‘reasonable classification.
It is enough to say that it is now well settled by a series of decisions of this Court that while
Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes
of legislation, and in order to pass the test of permissible classification, two conditions must be
fulfilled, namely[xxi]:
(1) That the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group; and,
29
(2) That differentia must have a rational relation to the object sought to be achieved by the
statute in question.
The classification may be founded on different bases such as geographical, or according to

objects or occupations and the like. The decisions of this Court further establish that there is a
presumption in favor of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee; that it
must be presumed that the legislature understands and correctly appreciates the needs of its own
people and that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds; and further that the legislature is free to
recognize degrees of harm and may confine its restrictions to those cases where the need is
deemed to be the clearest.
It is well known that there are fundamental differences between the religion and customs of the
Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are
based on reasonable classification and the provision of Section 129 of the Transfer of Property
Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the
Constitution.
The most essential element of Hiba is the declaration, “I have given”. As per Hedaya, Hiba is
defined technically as[xxii]:
“Unconditional transfer of existing property made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter“.
According to Fyzee[xxiii], Hiba is the immediate and unqualified transfer of the corpus of the
property without any return.
SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Now the question which we have in mind is what can be a subject matter of Hiba, under Muslim
law. As per the provisions of Transfer of Property Act, 1882, the subject matter of the gift
must be certain existing movable or immovable property. It may be land, goods, or actionable
claims. It must be transferable under Section 6. But it cannot be future property. A gift of a right
of management is valid, but a gift of future revenue of a village is invalid.
These cases were decided under Hindu and Mohammedan law respectively but they illustrate
the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must
be of tangible property. It is submitted that the release of a debt is not a gift as it does not
involve a transfer of property but is merely a renunciation of a right of action.
It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift
It is submitted that in a deed of gift the meaning of the word ‘money’ should not be restricted by
any hard and fast rule but should be interpreted having regard to the context properly construed
30
in the light of all the relevant facts. Therefore in order to constitute a valid gift, there must be an
existing property. In Mohammedan law, any property or right which has some legal value may
be the subject of a gift[xxiv].
Under Muslim law, following constitute the subject matter of Hiba[xxv]:
1. It must be anything (moveable or immovable, corporeal or incorporeal) over

which the right of property may be exercised or anything which exists either as a
specific entity or an enforceable right, or anything designable under the term mal
(property).
2. It must be in existence at the time when the gift is made. Thus, the gift of
anything that is to be made in the future is void. For example, a donor makes a
gift the fruits of his mango garden that may be produced this year. This gift is
invalid since the mangoes were not in existence at the time of making the gift.
3. The donor must possess the gift.
4. A gift of a part of a thing which is capable of the division is not valid unless the
said part is divided off and separated from the property of the donor, but a gift of
an indivisible thing is valid. For example, A, who owns a house, makes a gift to B
of the house and of the right to use a staircase used by him jointly with the owner
of an adjoining house. The gift of A’s undivided share in the use of the staircase is
not capable of division; therefore it is valid.
5. According to Hanafi law, the gift of an undivided share in any property capable of
the division is, with certain exceptions, incomplete and irregular (fasid), although
it can be rendered valid by subsequent separation and delivery of possession. For
instance, A makes a gift of her undivided share in certain lands to B, and the share
is not divided off at the time of the gift but is subsequently separated and
possession thereof is delivered to B, the gift although irregular (fasid) in its
inception, is deemed valid by subsequent delivery of possession.Exceptions: Gift
of such undivided share is valid which is incapable of division:a) Hiba by one co-
heir to the other; For instance, A Muslim woman died leaving a mother, a son,
and a daughter. The mother made a gift of her unrealized one-sixth share jointly
to the deceased’s son and daughter. The gift was upheld by Privy Council.
b) Hiba of a share in freehold property in a large commercial town; For
instance, A wins a house in Dhaka. He makes a gift of one-third of his house to B.
The property being situated in a large commercial town, the gift is valid.
c) Hiba of a share in a zamindari or taluka; According to Ameer Ali, the

doctrine of Musha is applicable only to small plots of land, and not to specific
shares in large landed properties, like zamindaris. Thus, if A and B are co-sharers
in a zamindari, each having a well –defined share in the rents of undivided land,
and A makes a gift of his share to B, there is no regular partition of the zamindari,
the gift is valid.
31
d) Hiba of a share in a land company
Muslim law recognizes the difference between the corpus and the usufructs of a
property. Corpus, or Ayn, means the absolute right of ownership of the property
which is heritable and is unlimited in point of time, while, usufructs, or Manafi,
means the right to use and enjoy the property. It is limited and is not heritable. The
gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a
property is called Ariya.
In Nawazish Ali Khan vs Ali Raza Khan[xxvi], it was held that gift of usufructs is
valid in Muslim law and that the gift of corpus is subject to any such limitations
imposed due to usufructs being gifted to someone else. It further held that gift of a
life interest is valid and it doesn’t automatically enlarge into the gift of corpus.
This ruling is applicable to both Shia and Sunni.
Hence critical scrutiny of the concept of Gift under Muslim law gives us the
following instances regarding what can be the subject matter of Hiba:
 anything over which right of property may be exercised.

 anything which may be reduced to possession.
 anything which exists either as a specific entity or as an enforceable right.
 anything which comes within the meaning of the word mal.In Rahim Bux vs
Mohd. Hasen[xxvii], it was held that gift of services is not valid because it does
not exist at the time of making the gift.
Kinds Of Gifts
There are several variations of Hiba. These include[xxviii]:
 Hiba bil Iwaz

 Hiba ba Shart ul Iwaz
 Sadkah
 Ariyat
HIBA- IL-IWAZ
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a gift for
consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts
between two persons. One gift from a donor to the donee and one from donee to the donor.
The gift and return gift are independent transactions. Therefore, when both i.e., hiba (gift) and
iwaz (return or consideration) is completed, the transaction is called hiba-bil-iwaz. For example,
A makes a gift of a cow to S and later B makes a gift of a house to A. If B says that the house
was given to him by A by way of return of exchange, then both are irrevocable[xxix].
32
So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus, registration of the
gift is necessary and the delivery of possession is not essential and the prohibition against
Mushaa does not exist. The following are requisites of Hiba bil Iwaz:
1. Actual payment of consideration on the part of the donee is necessary.

In Khajoorunissa vs Raushan Begam[xxx], it was held that adequacy of the
consideration is not the question. As long as the consideration is bona fide, it is
valid no matter even if it is insufficient.
2. A bona fide intention on the part of the donor to divest himself of the property
is essential.
Gift in lieu of dower debt –
In Gulam Abbas vs Razia[xxxi], the Hon’ble High Court at Allahabad held that an oral transfer
of immovable property worth more than 100/- cannot be validly made by a Muslim husband to
his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor
Hiba bil Iwaz. It is a sale and must be done through a registered instrument.
HIBA-BA-SHARTUL-IWAZ
‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with a stipulation for
return’. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment
of consideration is not immediate the delivery of possession is essential. The transaction
becomes final immediately upon delivery. When the consideration is paid, it assumes the
character of a sale and is subject to preemption (Shufa). As in sale, either party can return the
subject of the sale in case of a defect.
It has the following requisites –
 Delivery of possession is necessary.

 It is revocable until the Iwaz is paid.
 It becomes irrevocable after the payment of Iwaz.
 Transaction when completed by payment of Iwaz, assumes the character of a
sale.
In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both
gifts for a return and the gifts must be made in compliance with all the rules relating to simple
gifts.
REVOCATION OF GIFT
Although there is a tradition which indicates that the Prophet was against the revocation of gifts,
it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are
revocable. The Muslim law-givers have approached the subject of revocability of gift from
several angles.
From one aspect, they hold that all gifts except those which are made by one spouse to another,
or to a person related to the donor within the degrees of prohibited relationship, are revocable.
The Hedaya gives the reasons thus[xxxii]:

33
“The object of a gift to a stranger is a return for it is custom to send presents to a person of high
rank that he may protect the donor; to a person of inferior rank that the donor may obtain his
services; and to person of equal rank that the donor may obtain an equivalent and such being
the case it follows that the donor has the power of annulment, so long as the object of the deed
is not answered, since a gift is capable of annulment”.
The texts of Muslim law lay down a long list of gifts which are irrevocable. The contents of the
list differ from school to school, and the Shias and the Sunnis have the usual differences. The
Muslim law-givers also classify gifts from the point of view of revocability under the following
two heads[xxxiii]:
 Revocation of gifts before the delivery of possession, and

 Revocation of gifts after the delivery of possession.
Revocation of gifts before the delivery of possession[xxxiv]:
Under Muslim law, all gifts are revocable before the delivery of possession is given to the
donee. Thus, P makes a gift of his motor-car to Q by a gift deed. No delivery of possession has
been made to Q. P revokes the gift.
The revocation is valid. In this case, it will not make any difference that the gift is made to a
spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact
of the matter is that under Muslim law no gift is complete till the delivery of possession is made,
and therefore, in all those cases where possession has not been transferred the gift is incomplete,
and whether or not it is revoked, it will not be valid till the delivery of possession is made to the
donee.
The revocation of such a gift, therefore, merely means that the donor has changed his mind and
does not want to complete it by the delivery of possession. For the revocation of such gifts, no
order of the court is necessary. Fyzee rightly says that this is a case of inchoate gift and it is not
proper to apply the term revocation to such a gift.
Revocation after the delivery of possession[xxxv]:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is
entitled to use the property in any manner; he can also alienate it.
It seems that:
 all gifts after the delivery of possession can be revoked with the consent of the
donee,
 revocation can be made only by a decree of the court.
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked
by his heirs after his death. A gift can also not be revoked after the death of the donee.
According to the Hanafi School with the exception of the following cases, a gift can be revoked
even after the death of the donee.
34
According to the Hanafi School, with the exception of the following cases, a gift can be revoked
even after the delivery of possession. The exceptions to the same are[xxxvi]:
 When a gift is made by one spouse to another.

 When the donor and the donee are related within the prohibited degrees.
 When the donee or the donor is dead.
 When the subject-matter of the gift is no longer in the possession of the donee,
i.e., when he had disposed of it by sale, gift or otherwise or, where he had
consumed it, or where it had been lost or destroyed.
 When the value of the subject-matter has increased.
 When the identity of the subject-matter of the gift has been completely lost, just
as wheat, the subject-matter of gift, is converted into flour.
 When the donor has received something in return (iwaz).
 When the object of the gift is to receive the religious or spiritual benefit or merit,
such as sadaqa.
The Shia law of revocation of gifts differs from the Sunni law in the following respects: First,
gift can be revoked by a mere declaration on the part of the donor without any proceedings in a
court of law; secondly, a gift made to a spouse is revocable; and thirdly, a gift to a relation,
whether within the prohibited degrees or not, is revocable.
Conclusion
The conception of the term gift and subject matter of gift has been an age-old and traditional
issue which has developed into a distinct facet in property law. Different aspects related to gift
in property act and its distinction with the Mohammedan law and its implications has been the
major subject matter of this article.
In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and
must not be confused with the technical term of Islamic law, hiba. The concept of ‘hiba’ and the
term ‘gift’ as used in the transfer of property act, are different. As we have seen in the project
that Under Mohammedan law, to be a valid gift, three essentials are required to exist:
 Declaration of gift by the donor.

 Acceptance of the gift, express or implied, by or on behalf of the done.
 Delivery of possession of the subject of the gift.
The English law as to rights in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. The essential elements of a gift are:
 The absence of consideration.

 The donor.
 The done.
 The subject-matter.
 The transfer; and the acceptance.
35
Thus this striking difference between the two laws relating to gift forms the base of this project
in understanding its underlying implications.
To conclude the researcher can say that, the gift is a contract consisting of a proposal or offer on
the part of the doner to give a thing and acceptance of it by the donee. So it is a transfer of
property immediately and without any exchange. There must be a clear intention by the donor to
transfer the possession to the doner for a valid gift. It can be revoked by the doner. And the
provisions for the same have also been mentioned.
17. 'A' executes a deed of gift of a dwelling house in favour of 'B'.The gift deed is duly registered
but possession is not delivered to 'B'. Is the gift valid?
18. 'A', a Muslim gives instructions to an attorney to prepare his will. In accordance with
instructions, the attorney prepares the will. But A died before signing the said will. Is it a valid
will?
 Define Privileged Will. State the rules for the execution of privileged will. (3)
 Explain the rules for execution of unprivileged Will. (3)

Privileged Wills
These are the wills made by a solder employed in an expedition or actual warfare, or an airman so
employed or engaged or a mariner at sea. The persons such employed cannot be expected to have the
resources and time for completing all the formalities required for validation of the will, therefore there has
been excused from such legal requirements and given the privilege of making simpler wills.
Indian Succession Act, 1925 § 66, governs the validity of the privilege wills. It says that the privilege wills
can be made both either orally or in writing, and the following rules are to be applied to the thus written
wills.
 If such will is wholly written by the testator I his own handwriting, it need not be signed.
 If it is written by some other person(wholly or in part) by the direction and wish of the testator,
then the signature of the testator will make it valid.
 If it is neither written by the testator nor signed by him even then , if he recognizes it to be
written by his direction and as his will, then it becomes valid.
 If it appears that the execution of the instrument is not complete in the manner the testator
desired it to be, then that would not invalidate the will, unless there was a prior intension of the
testator to abandon its execution
 If some instructions have been written for the preparation of the will but the proposed testator
dies before the preparation then such instructions can be used as his real will.
 If proposed testator has given instruction orally before two witnesses for preparation of a will
and dies before the making of will or it being read to him, then that again can constitute as his
real will.
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Unprivileged Wills
All other kinds of will, which are not privilege wills are called unprivileged will. These are the wills that
need or require certain conditions to be fulfilled for the will to be valid. These are the commonly made wills
by the masses. This area of law is covered in § 63 of the Indian Succession Act, 1925.
Indian Succession Act, 1925 § 63, makes regulations for the unprivileged wills which also defines the
essentials for the validity of a will.
 Signature of the testator in the will is essential in the document to make it valid. The act also
provides that ink and pen is not essential for the purpose, the stamped name of the testator.
 If there is no signature of the testator, a mark will also do the job. The thump mark of the
testator can mark the validity of the will if it is on the will he required to be made.
 If the document which comprise of the will is in more than one pages then all the pages need to
be signed for the validity of the each page.
 Execution by putting of mark by the hand guided by another person is also allowed if no fraud
is involved.
 Place of signature is not an issue, even if it is on the text of the documents it is acceptable.
 Attestation of the signature is also compulsory, by two witnesses when signed by the testator
as per § 67 of the Act.
Registration of a will may not be necessary. It is although a convenience for the law, but it does not affect
the will as such. It is advisable to register the will with the registrar where the registrar then becomes the
legal guardian of the will, the document then becoming strong evidence in law for the validity of the will.
 Define Will. State the limits of testamentary power of a Mohammedan. (4)

 Define Will. What are the kinds of Will? How the unprivileged Will be executed? (2)
 ‘X’ executes through a registered will on his property to his sons. There after he met
with an accident and on deathbed he want to change his will, thereby he wrote a new
will on a white paper and died soon after. What is the effect of this will? Explain.
ANS
A Will or Testament or Wasiyat has been defined as â€œan instrument by which a person makes disposition of
his property to take effect after his death.â€
Tyabji defines Will as â€œconferment of right of property in a specific thing or in a profit or advantage or in a
gratuity to take effect on the death of the testator.â€
The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable.
Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed
till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the
legator's power of enjoyment of the property including its disposal or transfer (in that case the Will becomes
revoked).
Object and Significance of Wills

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of
family and other relatives where they cannot be properly provided for by the law of inheritance.
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Requisites of A Valid Will
# The testator (legator) must he competent to make the Will.
# The legatee (testatrix) must be competent to take the legacy or bequest.
# The subject (property) of bequest must be a valid one (Qualitative requisite).
# The bequest must be within the limits imposed on the testamentary power of a Muslim (Quantitative
requisite).
Testator and his Competence (Who can make Will?)

Every major Muslim (above 18 years) of sound mind can make a Will.
The age of majority is governed by the Indian Majority Act, 1875, under which, a person attains majority on
completion of 18 years (or on completion of 21 years, if he is under supervision of Courts of Wards).
Thus, the testator must be of 18 or 21 years, as the case may he, at the time of execution of the Will.
Legatee and his Competence (To whom Will can be made?)

Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its mother's womb, etc.)
may be the legatee under a Will. Thus, sex, age, creed or religion is no bar to the taking of a bequest.
Legatee (including a child in its mother's womb) must be in existence at the time of making of the Will. Thus, a
bequest to a person unborn person is void.
Joint Legatees
A bequest may be made to two or more legatees jointly, and when no specific share of any of them has been
mentioned, the property is divided equally amongst all the legatees. But, where the legator himself has
specified the respective shares of the legatee then, each legatee would get the shares allotted to him.
Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed by will; the property must be capable of being
transferred; and, the property must he in existence at the time of testator's death, it is not necessary that it
should be in existence at the time of making of Will.
Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject-matter of a Will.
In order to be a valid bequest the grant in the bequeathed property must be complete or absolute. A bequest
has to be unconditional. If any condition is attached, say the legatee shall not alienate the subject of legacy,
the condition is void and the bequest is effective without condition.
19. A testator draws a line across his will and writes on the back of it, “This will is revoked”.
Does it amounts to revocation?
A will according to § 62 of the Indian Succession Act, 1925 can be revoked or altered by the
testator or by another in his direction or wish. A will can be revoked or altered by an act implied or
expressed.
A privilege will can be revoked by burning or tearing or otherwise destroying the document on which it
was made, or by writing a subsequent or a new will. Unprivileged will can be revoked by marriage,
another will or codicil, by writing declaration with intension to revoke. Impliedly it can be revoked if the
subject of the will the property is already disposed off.
38
20. ‘A’ by his Will gives legacy of Rs. 15,000 to ‘B’, who is one of the attesting witnesses to that
Will. Is ‘B’ entitled to receive Rs. 15,000?
21. ‘A’ by his Will bequeaths to ‘B’ Rs. 20,000 and by a codicil to the Will he bequeaths Rs.
50,000. To what sum is ‘B’ entitled?
22. Explain the powers and duties of executor. (3)
23. When the will is made, generally a executor is appointed for the execution of the same, when and how
it is to take effect. At the instance where no executor is appointed by the will then application may be
made to the Court for the appointment of an executor. The probate of the will is granted to the
executor who is appointed by the Will. Therefore an executor is a person who is appointed by a testator
to execute his who is duty bound to distribute the assets of the testator as per the provisions of his
Will.
Anyone who is capable of executing Wills and is appointed can be executors. Even a minor can be
appointed an executor of a Will, but a probate cannot be granted to the minor until he attains
majority. A testator can appoint one or more executors. The appointment of an executor may be
absolute or for a limited purpose or limited time. An executor as such does not derive any benefit
under the Will, unless specifically provided for. However, as an executor has vast powers and the
property vests in the executor until it is finally distributed to the legatees, it is therefore advisable
to appoint a responsible and accountable person/institution such as a bank as an executor. The
Executor is primarily appointed to manage the estate of the deceased for the benefit of the
beneficiaries/legatees under the Will.
The executor is the legal representative for all purposes of a deceased person and all the property
of the testator vests in him until the property is distributed as per the provisions of the Will. The
executor is entitled to represent the testator in any legal action (not including criminal or
defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It
is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial
interest. The property vests in the executor only for the purpose of representation and
administration.
An executor is a representative of the testator, and is legally approved. As for the

duties of an executor, it varies depending upon the conditions in the will.
The general duties include:
a.Settlement or disposing of the assets as per the requests made in the will;
b.Filing application for a probate when necessary and required (only an executor can
apply for a probate and he or she needs to be in sound mind and provide supporting
documents for the same);
c.Filing cases in court on behalf of the testator;
d.Managing any expenses for the management of properties left by the testator until
its disposal;
39
e.Taking care of funeral expenses from the estate (assets) left by the testator;
f.Preparing an extensive inventory of the assets to be disposed and maintaining a
record of the same;
g.Collecting any debts due to the deceased as well as paying any, from the assets left
by the deceased;
h.Issuing an ascent of legacy to the nominee, wherever applicable.
24. A legacy is made to ‘A’ and ‘B’. ‘A’ dies before the testator. What is the effect of the legacy?
25. A bequest is made to ‘A’ and ‘B’. ‘A’ dies before the testator.
26. Examine the effect of the bequest.
Any bequest exceeding the limit of one-third Will not come into effect unless the heirs of the legator
give their consent to it. ... But if a Muslim bequest his property to a non-heir or a stranger, then the
consent of the legal heirs is of utmost significance if the property exceeds the one-third of his total
property.
27. A bequest is made to 'X' and his children. 'X' dies during the life time of testator. His children
survive the testator. What is the effect of bequest?
28. ‘A’ bequeaths Rs. 5,000/- to the eldest son of ‘B’. At the date of death of the testator, ‘B’ has
no son. Decide the validity of the bequest.
29. Who is a Muslim? What are the consequences of colourable conversion? Discuss with the
help of decided cases. (2)
30. What are the effects of conversion by a married Mohammaden on his marriage?
31. Explain the effect of conversion of a Muslim on his/her marriage and succession rights
the term Muslim means submission. A Muslim is a person who

follows Islam. Muslim law applies to a born Muslim or a person who is a
convert Muslim.
1. Conversion to other religion effect on the right to

inheritance in the property:
In Hindu law a person who converts to another religion from Hinduism could not inherit from the
Hindu relation. His/ her right of inheritance comes to end on conversion. Similarly, under Muslim
law a convert from Islam to some other religion is prohibited from inheriting the property. The
stated rule has been abrogated by the Caste Disabilities Removal Act, 1850. This provision can
also be called Freedom of Religion Act. The above rule has removed all the disabilities pertaining
to the conversion of religion. It is subject to other law made by the concerned authorities.
2. Conversion effect on martial rights:

40
There are certain rules which are applicable when a party to a marriage converts to other religion.
Suppose a Muslim husband converts to some other religion, the current marriage is said to be
dissolved. Dissolution of Muslim Marriage Act, 1939 has modified the situation of a wife after
conversion to other religion.
The wife can now on her conversion seek divorce on any of the conditions mentioned in
statue. Under Hindu Marriage Act, 1955 conversion of religion is a ground of divorce
for both the parties. In other words, if a husband renounces Hinduism the wife can seek a divorce
and vice versa under Sec. 13 clauses (1) sub –clauses (1) sub-clause (ii).
Case law- Vilayat v. Sunila 1983
In the following case the question was whether a Hindu husband after conversion to Islam can
seek divorce under Hindu Law. Leila Seth J. answering the question, held that he could do so
provided at the time of presentation of the petition one of the parties to the marriage is not a
Hindu. In short, Justice Laila was of view that Personal law of the parties according to which
marriage took place rules the rights of the parties as to divorce or dissolution.
Now suppose both the parties convert to Islam. The question that arises now is whether they can
claim divorce under Hindu law. It was held in Khambaatta v. Khambatta that in such situation
divorce by talak under Muslim would be more appropriate as both the husband and wife has
converted to Islam.
(D) Conversion effect on Right to claim Maintenance:

Under Section 24 of the Hindu Adoptions and Maintenance Act, 1956 conversion from
Hinduism restricts the right of convert to claim maintenance. But if a husband renounces
Hinduism, his hindu wife becomes entitles to separate residence and maintenance from him
under Section 18 (2) (f) of Hindu Adoption and Maintenance Act, 1956.
In Muslim law, if a person converts to other religion, it affects a forfeiture of the pre- existing
maintenance rights. When a husband renounces Islam, the marriage comes to an end and the
wife can claim maintenance from husband during iddat period.
(E) Conversion effects on Guardianship rights:
In guardianship court always looks upon the welfare of the child. As per Section 13 of Hindu
Minority and Guardiansip Act, 1956 welfare of the child is of paramount consideration. SO
whenever the parents converts to another religion, this factor is take into consideration while
appointing person as guardian. If a mother converts to other religion, it does not affect her right to
guardianship till the time her conversion do not come in between the welfare of the child.
32. Define Dower. Explain the various kinds of Dower. (3)

Under the Muslim Law, Mehr (dower) means money or property which the wife is
entitled to receive from the husband in consideration of the marriage but this
consideration is not the same as that of the civil contract. Dower is an obligation
imposed upon the husband as a mark of respect for the wife
41
Types of Dower
1. Muta Dower
Muta marriage is for a specific period of time. This marriage if not consummated then the w
Read more at Legal Bites © Reserved: https://www.legalbites.in/types-of-dower-meaning-and-

relevance/
33. Explain the salient features of Family Courts Act, 1984. (2)
 What is family court under the Family Court Act 1984? Enumerate the matters
exclusively provided within the jurisdiction of family courts.

FAMILY LAW IS AN AREA OF THE LAW THAT
DEALS WITH FAMILY-RELATED MATTERS AND
DOMESTIC RELATIONS, INCLUDING:
•MARRIAGE
•ADOPTION
•SURROGACY
•CHILD ABUSE
•THE TERMINATION OF RELATIONSHIPS AND
ANCILLARY MATTERS, INCLUDING DIVORCE,
ANNULMENT, PROPERTY SETTLEMENTS,
ALIMONY, CHILD CUSTODY AND VISITATION,
CHILD SUPPORT AND ALIMONY AWARDS.
•JUVENILE ADJUDICATION
•PATERNITY TESTING AND PATERNITY FRAUD
•THE FAMILY COURTS WERE FIRST ESTABLISHED IN
THE UNITED STATES IN 1910, WHEN THEY WERE CALLED
DOMESTIC RELATIONS COURTS ALTHOUGH THE IDEA
ITSELF IS MUCH OLDER.
•IN INDIA 1984 WITH OBJECTIVE OF PROMOTING
CONCILIATION IN AND SECURE SPEEDY SETTLEMENT
42
OF DISPUTES RELATING TO MARRIAGE AND FAMILY
AFFAIRS.
•MANY OF MARRIAGES ARE HEADING TOWARDS
DIVORCE.[METRO CITIES]
•THERE ARE ALSO CASES OF MISUSE OF PROVISIONS
LIKE SECTION 498A IPC
•PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT •SECTION 125 CRIMINAL PROCEDURE CODE
•CHILD CUSTODY LAWS TO NAME A FEW.
34. A Hanafi Mohammedan dies leaving behind his widow, father and father’s father. Assign their
shares.
 A Hanafi Mohammedan dies leaving behind his widow, son and daughter. Assign their
shares.
 A Hanafi Muslim dies leaving behind his wife, mother and father. Assign their shares.
 A Mohammadian dies leaving behind his father, mother and son. Assign their shares.
 A Hanafi Muslim died leaving behind his mother, sister and father. Assign shares.
 A Hanafi Muslim dies leaving behind father, mother and 2 daughters. Determine their
shares.
35. A Hanafi Muslim who has four wives, contracts fifth wife. Is the fifth marriage
valid? (2)
 A Mohammedan having four wives contracts fifth marriage. Is this marriage valid.
36. A Hanafi Mohammedan divorced his wife by Talaq. After divorce, the couple live
together and two children were born to them. Is the cohabitation and the children
legitimate? Decide.
37. An Indian Christian dies leaving behind his mother, brother and sister. Distribute the
property.
38. Who can be a guardian of minor's property under Mohammedan Law? What are their
powers?
 Explain the law relating to guardianship of the property of a minor.
39. Mention the types of guardians. What are his powers and functions? When a guardian
appointed by the court to be removed?
 Explain the classification of guardianship under Mohammaden law.
43
Muslim law recognizes the following kind of guardianship:
1. A natural or legal guardian

2. Testamentary guardian
3. Guardian appointed by courts or statutory guardian
4. De-facto guardian
Natural or Legal Guardian
Natural guardian is a one that encompasses a right to regulate and supervise the
activities of a minor. Father is recognized as the natural guardian of his kid
underneath all the schools of Muslim law. The father’s right to act as guardian of
a minor is an independent right and is given to him underneath the substantive
law of Islam.
A natural guardian is additionally known as a legal guardian. But within the

absence of the father, the father’s executor might also act as a legal guardian.
The executor could be one who is appointed by the father or grandfather to act
as the guardian of his minor kid on his behalf.
Thus, the natural guardian of a minor in order of priority are as follows:
1. Father
2. Executor of father
3. Paternal grandfather
4. The executor of Paternal grandfather
Under Muslim law within the absence of any of the above-mentioned persons,
no one else is recognized as the natural guardian of a minor.
Shia Law
Within the absence of father only paternal grandfather could act as a legal
guardian. In the presence of paternal grandfather, the father’s executor has no
right to act as legal guardian of a child.
44
Testamentary Guardians
A testamentary guardian may be a one that is appointed as guardian of a minor

beneath a will. Only father or, in his absence, paternal grandfather has the right
to appoint a testamentary guardian.
A non-Muslim and a feminine might also be appointed as a testamentary
guardian.
Shia Law
A non- Muslim cannot be chosen as a testamentary guardian.
Guardians appointed by Court
In case of the absence of a natural and legal document guardian, the court is
authorized to appoint a guardian for the aim of the minor’s person or property or
for both. The appointment of a guardian by the court is ruled by the
Guardianship and Wards Act, 1890 which is applicable to all the Indians
irrespective of their religion. Such guardians are also called Statutory Guardian.
De-facto Guardians
A de-facto guardian is a person who is neither a legal guardian nor a

testamentary guardian or statutory guardian, but has himself assumed the
custody and care of a child. According to Tyabji a de-facto guardian means that
an unauthorized person who, as a matter of fact, has custody of the person of a
minor or his property. A de facto guardian could be a person having no authority
for the guardianship however underneath the circumstances has taken the
responsibility to act as the guardian of a minor.
40. What is Pre-emption? Who can claim pre-emption under Mohammedan Law? State briefly
the formalities for exercising right of pre-emption.
 Explain briefly the law relating to pre-emption.
The idea of ‘pre-emption’ finds its origin in the Mohammedan Law, and was unknown in India till the advent of
Moghal rule.[1] This was administered as general law of land and applied to both Hindus and Muslim. Later, it was
introduced by the Britishers on the grounds of justice, equity and good conscience even on the Muslims. [2]
There are four sources of the right of pre-emption in India which include Muslim personal law, Custom, Statute
and Contract. For Muslims, the law of pre-emption was a part of their personal law, while among Hindus the law
of pre-emption was mainly recognized as a customary right. [3] In some areas, pre-emption was regulated by
45
statutory law such as Punjab Pre-emption Act 1913 and Agra Pre-emption Act 1922. Lastly, the right of pre-
emption was also created by contract. Fourthly, pre-emption is also sometimes included in contracts apart from
the custom or any legal sanction. These types of contracts are generally entered by when one of the parties is
Muslim and other is Non- Muslim.[4]
Right of Pre-Emption and it’s Essentials

The right of ‘pre-emption’ is given to the owner of immovable property to acquire another immovable
property that has been sold to some other person. It is the purchase by one person before all others.
Therefore, it is a right of substitution and not of re-purchase. [5] The objective behind this right is to maintain
privacy and prevent strangers to come in neighbour or in a family.
The pre-emption has also been defined by Justice Syed Mahmood as a right given to the owners of an
immovable property for quiet enjoyment of that immovable property to obtain in substitution for the buyer,
possession of certain other immovable property, on such term that as those on which such latter immovable
property is sold to any other person [6].
However, to exercise the right of pre-emption, there are certain conditions that need to be satisfied. Those
conditions are-
1. ownership over an immovable property,
2. sale of the property which is not of the person exercising the right of pre-emption,
3. there should be some relation with respect to the property between the pre-emptor and the seller of the
land,
4. possession of the other property is given to the pre-emptor on the same terms as on which the other person
is given the right.[7]
To exercise the right of pre-emption, pre-emptor has to perform certain formalities. The pre-emptor has to
declare his intention to assert the right immediately after getting information regarding the sale (this is
called talab-i-mowasibat). The talab-i-mowasibat can also be made by the person authorized by pre-emptor
or by de facto guardians in case the pre-emptor is a minor.[8] Such declaration of the intention should be
made in the presence of two witnesses (this is known as talab-i-ishhad). After that, the legal action gets
initiated i.e. talab-i-tamlik. However, the third stage to exercise the right is not mandatory while establishing
the right of preemption.[9]
The pre-emption right can be exercised by any of the following three categories of the people-
1. co-owner of the property (shafi-i-sharik),
2. participator in appendage such as a right of way etc (Shafi-i-khalit), and
3. owner of an adjoin property (shafi-i-jar). In addition to that, the right of pre-emption arises only out of
a valid and complete sale. It does not arise out of a gift or mortgage. [10]
46

41. Define Domicile. What are the modes of acquiring domicile under Indian Succession Act,
1925?
 What is domicile? Mention the kinds of domicile and explain how a person can acquire
domicile in India.
 Explain the law relating to ‘domicile’.
 Domicile” means the relationship between a person and a State for determining
the personal status and the law applicable to such a person in the matter of
majority, marriage, divorce, and succession.
 For the purpose of Indian Succession Act, for dealing with the succession, the
domicile is essential.
 Section 5. Law regulating succession to deceased person’s immoveable
and moveable property, respectively.-
 (1) Succession to the immoveable property in India of a person deceased shall
be regulated by the law of India, wherever such person may have had his
domicile at the time of his death.
 (2) Succession to the moveable property of a person deceased is regulated by
the law of the country in which such person had his domicile at the time of his
death.
 Properties are divided into two types namely, movable and immovable properties.
The movable property is governed by the law of succession of the country in
which the deceased had his domicile at the time of his death.
 However, as far as immovable properties are concerned, the rules of succession
are governed by the law of the place where the property is situated. Domicile of
the person at the time of his death is immaterial.
ULES OF DOMICILE
Only one domicile is allowed for a person.
There can not be a person without a domicile.
Domicile has two essential factors. Such as:
a. Factum of Residence: Physical habitation for an indefinite period.
b. Animus: Present intention to reside for an indefinite period.
TYPES OF DOMICILE
1. DOMICILE BY BIRTH OR DOMICILE OF ORIGIN
Section 7. Domicile of origin of person of legitimate birth.- The domicile of origin of
every person of legitimate birth is in the country in which at the time of his birth his
47
father was domiciled; or, if he is a posthumous child, in the country in which his father
was domiciled at the time of the father’s death.
Illustration
At the time of the birth of A, his father was domiciled in England. A’s domicile of origin
is in England, whatever may be the country in which he was born.
2. DOMICILE BY CHOICE
Section 10. Acquisition of new domicile.- A man acquires a new domicile by taking
up his fixed habitation in a country which is not that of his domicile of origin.
Explanation.- A man is not to be deemed to have taken up his fixed habitation in India
merely by reason of his residing there in the civil, military, naval or air force service of
Government, or in the exercise of any profession or calling.
Acquisition of domicile in a foreign country where he has resided permanently with the
intention of living there permanently. Appointment as Ambassador, Consul in a foreign
country does not constitute domicile of choice.
RULES OF DOMICILE REGARDING CERTAIN PERSONS

1. MINOR
Section 14. Minor’s domicile.- The domicile of a minor follows the domicile of the
parent from whom he derived his domicile of origin.
Section 17. Minor’s acquisition of new domicile.- Save as hereinbefore otherwise

provided in this Part, person cannot, during minority, acquire a new domicile.
Minor can have only domicile of birth and not choice. In the case of legitimate minor,
the domicile of the minor is that of his father and in the case of illegitimate minor, it is
his mother’s. If the domicile of the mother is changed, then the domicile of the minor is
also changed automatically.
2. WOMAN
Section 15. Domicile acquired by woman on marriage.- By marriage a woman
acquires the domicile of her husband, if she had not the same domicile before.
Section 16. Wife’s domicile during marriage.- A wife’s domicile during her marriage
follows the domicile of her husband.
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A minor female can have domicile of her parents only. After marriage, her domicile is
that of her husband. If she is a unmarried major, she can change the domicile as per
her will and pleasure. The domicile of the divorced woman does not follow the domicile
of her divorced husband.
3. ILLEGITIMATE CHILD
Section 8. Domicile of origin of illegitimate child.- The domicile of origin of an
illegitimate child is in the country in which, at the time of his birth, his mother was
domiciled.
The domicile of the illegitimate child is that of its mother. After attaining majority, it can
change the domicile as per the will and pleasure. If the illegitimate child is a woman,
after her marriage, she gets the domicile of her husband.
4. LUNATIC
Section 18. Lunatic’s acquisition of new domicile.- An insane person cannot
acquire a new domicile in any other way than by his domicile following the domicile of
another person.
A lunatic cannot change the domicile. If a lunatic is a married woman, her domicile is
that of her husband. A lunatic can have only domicile of origin, unless it is changed by
the guardian, or parents or husband.
PROCEDURE FOR ACQUIRING DOMICILE

Section II of the Indian Succession Act prescribes the mode of acquiring domicile in
India.
DECLARATION
The person wishing to acquire the domicile of India should declare his intention in
writing.
DEPOSIT
Such declaration in writing must be deposited with the Registrar of Domiciles, who is
appointed by the Government of India for this purpose.
49
RESIDENCE
The person making such declaration and deposit must have resided in India for at least
one year prior to the date of presentation of the declaration for depositing with the
Registrar of Domiciles.
Parsis Intestate succession and Non Parsis

Intestate succession
Succession certificate
Probate and letters of administration, powers and duties of
executor

42. An Indian born 'Ayaan' has acquired a domicile in England. And there after he
renounced the same with a view to acquire a domicile in Dubai, however he has failed.
Now what is his domicile?
43. 'A' a Mohammedan acknowledges 'B' as his Legitimate son. Subsequently he revokes it. Is the
revocation valid? (2)
44. Who is Mutawalli? What are his powers and duties? (2)
Mutawalli is the person who takes over the management of wakf. Appointment of Mutawalli is a compulsion in
Shia Law. However, there is no compulsion in Sunni Law. Mutawalli under Muslim Law has no right in the
property belonging to the wakf. The property is not vested in him. Technically, the position of Mutawalli under
Muslim Law is different from that of a trustee. He is merely a manager or supervisor.
Who can be a Mutawalli under Muslim Law

Any person of sound mind and of majority age and is capable of performing the functions to be discharged under
a particular wakf can be appointed as mutawalli. However, a minor can also be a mutawalli where the office is
hereditary or where the line of succession is laid down in the wakf-nama and office falls on a minor.
Generally, a woman can be appointed as mutawalli but where the Mutawalli is required to discharge also
religious function, a female, as well as a non-muslim, cannot be appointed as a Mutawalli.
Who can appoint Mutawalli

1. Founder: Founder of a wakf enjoys the full power of appointment. Moreover, he can appoint himself as the first
mutawalli. He can also lay down the rules for the further appointment of mutawallis. On his deathbed, he can
appoint even a stranger as mutawalli.
2. Mutawalli: In case, where founder and wakif are dead and there is no laid out scheme of succession, the
ongoing mutawalli may appoint his successor on his deathbed. But he has no such power in health. On the death
50
of one of joint mutawallis and the wakf is silent on what to be done in the event of one of them, the office will
pass on by survivorship.
3. Court: In all those cases where the founder has not appointed a mutawalli or he cant be appointed as mutawalli,
the court can appoint a mutawalli. The power of appointment is vested in District Court. Few rules are followed
by the court as follows:-
1. The court disregards the direction of the settler.
2. Preference should be given to a member of settler over a stranger.
4. Congregation: Where a wakf is purely local like a graveyard or a mosque, then the mutawalli can be appointed
by collective decision of locality.
Power of Mutawalli under Muslim Law
A mutawalli has the power of management and administration of wakf properties. He has the full power of
utilising of wakf property for the purpose for which the wakf has been created. He can alienate property with the
prior sanction of the court. Even without prior permission of the court, it is merely voidable. Before the coming
into force of Wakf 1954, mutawalli could file a suit relating to a wakf. But now this power is with Wakf Board.
Removal of Mutawalli
After Mutawalli has been appointed, the founder can’t remove him unless such power has been provided under
wakf-nama. The court has the power to remove a mutawalli. A court may remove mutawalli on the ground of
misfeasance, breach of trust or his unfitness or any other valid reason.
45. ‘A’ having domicile in India, dies in France leaving movable property in France, movable
property in England and both movable and immovable properties in India. State the law by
which succession of his property is regulated. (2)
46. ‘A’ an Indian domicile dies in UK leaving movable property in UK and America. Property
both movable and immovable in India. Determine the succession to his property.
47. State the law relating to Apostasy from Islam.
 Examine the effect of Apostasy of Muslim on his/her Marriage and Succession Rights.
Apostasy in Islam (Arabic: ‫ردة‬, riddah or ‫ارتداد‬, irtidād) is commonly defined as the conscious
abandonment of Islam by a Muslim in word or through deed.[1][2][3] It includes the act of converting to
another religion or non-acceptance of faith to be irreligious,[4] by a person who was born in a Muslim
family or who had previously accepted Islam.[5] While classical Islamic law has traditionally called for
execution for those who refuse to repent of apostasy from Islam, the definition of this act and
whether and how it should be punished, are matters of controversy and opinions of Islamic scholars
differ on these questions.[6][5][7]
According to the classical legal doctrine, apostasy in Islam includes not only an explicit renunciation
of the Islamic faith (whether for another religion or irreligiosity), but also any deed or utterance
implying unbelief, such as one denying a "fundamental tenet or creed" of Islam.[8] Those who were
originally forced to embrace Islam, or who acted as apostates out of fear, or who repented of their
apostasy, should not be subject to execution
Effect of apostasy on marriage
51
Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by one of the
married pair would have been treated as dissolution of marriage with effect immediately,
without:
1. the decree of a judge; or

2. being a repudiation of marriage, whether the conversion was before or after
consummation.
After passing the Act in 1939, it resulted in section 4 of the Act.
1. Apostasy by husband
Apostasy from Islam from Muslim husband will have immediate effects of dissolution of
marriage. Section 4 of the Dissolution of Marriage Act, 1939 does not apply to apostasy
by the husband. The result is that apostasy of the husband is still governed by old law
under which the renunciation from Islam by a husband will result in complete and
immediate dissolution of marriage.
Where a Muslim husband converts to another religion (say Christianity), his marriage is
immediately dissolved and the wife ceases to be a Muslim wife of that husband. As such,
the wife is not governed by Muslim law and is free to marry another person (immediately)
without waiting for the Iddat period.
2. Apostasy by wife
The conversion of a married Muslim woman to a faith other than Islam does not by itself
operate to dissolve her marriage. Moreover, even after renouncing Islam, if the wife
wants, she may obtain a decree for the dissolution of her marriage on any of the grounds
specified in Section 2 of the Act.
Section 4 does not apply to a woman who converts to Islam from other faith and take
back her former faith. Thus, if a Hindu woman converts into Islam and marries under
Muslim law, the marriage would be ipso facto dissolved, on her renouncing Islam and re-
embracing Hinduism. However, if she does not re-embrace Hinduism, but becomes
Christianity, the marriage would not dissolve.
52
In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130 ) a Hindu wife
converted to Islam at the time of marriage. On her re-conversion back to her original
faith viz Hinduism, her marriage stood dissolved. Her case falls under the second proviso
to Sec 4 of the Act, and the pre-existing Muslim Personal Law under which apostasy of
either party to a marriage ipso facto dissolves the marriage would apply.
If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his
wife remarries even before the expiry of iddat, she will not be guilty of bigamy under Sec
494 of the Indian Penal Code, 1860. In Abdul Ghani v/s Azizul Huq [(1912) ILR 39 Cal
409], a Muslim man and woman got married. After some time, the husband embraced
Christianity but reverted to Islam during the wife’s iddat. Before the expiry of the iddat
period, however, the wife got married to another man. The first husband thereupon filed
a complaint against the wife, her father and her second husband under Sec 494. It was
held that no offence had been made.
The court remarked:
Whatever view be taken of the uncertain status of the parties during the period of iddat
and however illegal and void under Mohammedan law the second marriage of the woman
during the period of iddat may be, there is no foundation for any charge under Sec 494 of
IPC against her. Her second marriage is not void because of its taking place during the
life of her prior husband but because of the special doctrine of the Mohammedan law of
iddat with which the Indian Penal Code has nothing to do.
Conclusion
To conclude the topic, it can be said that the apostasy has a massive impact on the
personal law in Muslim law. In India, the apostasies from Islam are protected under the
constitution of India and the dissolution of marriage act, 1939.
It can be clearly said that, in modern times, the female married Muslim are protected
under Muslim law and the constitution of India. In addition, many NGO and religious
leaders are ensuring that no individual can take undue advantage of Muslim law.
48. Examine the grounds for divorce under Indian Divorce Act 1869. (3)
 State the grounds for Judicial separation under Divorce Act, 1869.
53
 Explain the salient features of the Divorce Act, 1869.
According to the preamble of this Act, it amends the law relating to the divorce
of people professing Christianity. It even confers upon certain courts the
jurisdiction to settle these matters.
This is the only codified law regulating divorces amongst Christians. The British

had first enacted this law before Independence and it continues to be force today.
The Act came into existence on 1 April 1869. It applies to the whole country
except the state of Jammu & Kashmir. Furthermore, it applies only to those
people who profess the Christian religion. The parties must also reside
in India to apply for any remedy under the Act.
Grounds for Dissolution of Marriage

Section 10 of the Indian Divorce Act contains grounds on which a court may
dissolve a marriage. In order to avail a divorce, the husband or wife must file a
petition before the District Court. This is basically the court under whose
jurisdiction the parties solemnized their marriage or they reside or last resided
together.
The court may grant a divorce under any of the following grounds:
a) When one of the parties commits adultery;
b) If a party ceases to be a Christian;
c) In case of a party being of unsound mind for two years;
d) If a party has been suffering from leprosy or a venereal disease for two years;
e) In case of a party wilfully refusing to consummate the marriage;
f) When a party has deserted the spouse for two years or more;
54
g) In case of a party treating the spouse with cruelty.
Apart from these grounds, the wife can present a petition of divorce on
additional grounds. For example, she can file for divorce if her husband has,
after marriage, been guilty of rape, bestiality, etc.
Divorce by Mutual Consent

According to Section 10, the grounds we saw above must exist for a party to file
for divorce. However, it may so happen that both parties wish to seek divorce
mutually. For this purpose, the Parliament amended this Act to insert Section
10-A.
According to Section 10-A, parties may together mutually file a petition for
divorce in the District Court. In order to do this, they must have lived separately
for two years and must be unable to live together. In case parties do not
withdraw this petition between 6 to 18 months, the court may dissolve their
marriage.
Nullity of Marriage
Apart from the dissolution of marriage, the Act also contains provisions for
nullity. Either the husband or the wife may file a petition for this before the
District Court. There are a few grounds for which a party may file such a
petition.
For example, the impotency or lunacy of a party at the time of marriage can be
ground. One can also file this petition if the other party was still married to
his/her former spouse during the marriage.
Restitution of Conjugal Rights

The Act also contains a provision for restitution of conjugal rights under Section
32. Under this provision, a party may seek restitution if his/her spouse
withdraws from their company. Under restitution, the marriage remains but both
parties do not possess all marital rights temporarily.
55
Custody of Children
The Divorce Act contains some provisions governing custody of children in
cases of dissolution or nullity of marriage. Section 41 empowers courts to make
interim orders with respect to custody. Even after passing a final decree
of separation, the court may award custody to any specific party.
49. Define waqf. How the private waqf be established? And also state the salient features of the
Waqf Validating Act, 1913.
If we look at the word ‘Waqf’, in its literal sense it is referred to
as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it means a
dedication of some property for a pious purpose in perpetuity. The property so
alienated should be available for religious or charitable purposes. Such a property is tied
up forever and becomes non-transferable.
It has been observed in the case of M Kazim vs A Asghar Ali that waqf in its legal
sense means the creation of some specific property for the fulfilment of some pious
purpose or religious purpose.
A lot of eminent Muslim jurists have defined Waqf in their own way. According to Abu
Hanifa, “Wakf is the detention of a specific thing that is in the ownership of the waqif or
appropriator, and
the devotion of its profits or usufructs to charity, the poor, or other good objects, to
accommodate loan.”
“As defined by Abu Yusuf, waqf has three main elements. They are-
 Ownership of God
 The extinction of the founder’s right
 The benefit of mankind
Definition under Mussalman Waqf Validating Act, 1913- Section 2 of the Act
defines waqf as, “the permanent dedication by a person professing the Mussalam faith of
any property for any purpose recognised by Musalman Law as religious, pious or
charitable.”
56
Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication by a person
professing the Islam, of any movable or immovable property for any purpose recognized
by Muslim Law as religious, pious, or charitable.”
A waqf can be either in writing or can be made by an oral presentation. In the case of an

oral agreement, the presence of words emphasising on the intention of the parties is a
prerequisite.
1. The Act validates a wakf in favour of the settlor’s family, children or descendants, with the
ultimate benefit reserved for the poor or for a purpose recognised by the Muhammadam law as
religious, pious or charitable. A wakf tike the one in Abdul data’s case (above) would be valid
under the Act.
As the Preamble to the Act shows, the Act was passed for the very purpose of removing the
doubts regarding the validity of wakfs created by Muslims in favour of themselves, their families,
children and descendantrs, and ultimately, for the benefit of the poor or for other religious, pious or
charitable purposes.
2. It removes the doubt, in the case of Hanafi Muslims, as to the validity of a provision in favour of
the settlor’s own maintenance and support during his life-time out of the rents and profits of the
property dedicated.
ADVERTISEMENTS:
3. It validates, in the case of a Hanafi Muslim, a provision for the payment of the debts of the
settlor out of the rents and profits of the property dedicated.
4. In defining wakf as the permanent dedication of “any property”, it settles the conflict between the
various Courts as to the validity of wakfs of certain movable properties.
5. The question whether or not any purpose is “religious, pious or charitable”, and is of a
permanent character, has to be determined in accordance with Muhammadan law, and not by
English (or any other) law.
Statutory Provision for Control and Supervision of Wakfs:

ADVERTISEMENTS:
The Wakfs Act, 1954, as amended by the Wakf (Amendment) Act, 1964, provides for control and
supervision of wakfs. Its main provisions are the following:
(1) It is made applicable to all States, except Bihar, Delhi, Gujarat, Maharashtra, U.P. and West
Bengal.
57
(2) It provides for the incorporation of a Board of Wakfs in every State. If there are more than 15
per cent of Shia wakfs in number or in the proportion of income, a separate Shia Board of Wakfs
also can be created.
(3) The Amendment of 1964 also provides for the establishment of the Central Wakf Council.
50. Enumerate the ‘sharers’ and their respective normal shares according
to the Sunni law.
Muslim law of succession constitutes four sources of Islamic law:
1. The Holy Quran
2. The Sunna - that is, the practice of the Prophet
3. The Ijma - that is, the consensus of the learned men of the community on what should be the
decision on a particular point
4. The Qiya - that is, an analogical deduction of what is right and just in accordance with the good
principles laid down by God.
Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled
to a certain share in the deceased's property and Residuaries would take up the share in the property that
is left over after the sharers have taken their part.
Sharers:
The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son
(or son's son or son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on
the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.
The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a
case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the
case of succession to the wife's estate) takes a half share in a case where the couple is without lineal
descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased
has left behind more than one daughter, all daughters jointly take two-thirds.
If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and
become residuaries instead, with the residue being so distributed as to ensure that each son gets double
of what each daughter gets.
Non-Testamentary and Testamentary succession under Muslim law:

In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On
the other hand, in case of a person who dies testate i.e. one who has created his will before death, the
inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.
In cases where the subject matter of property is an immovable property, situated in the state of West
Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This
exception is only for the purposes of testamentary succession.
58
Birthright:
Inheritance of property in Muslim law comes only after the death of a person, any child born into a Muslim
family does not get his right to property on his birth. If an heir lives even after the death of the ancestor, he
becomes a legal heir and is therefore entitled to a share in the property. However, if the apparent heir
does not survive his ancestor, then no such right of inheritance or share in the property shall exist.
Distribution of the Property:

Under the Muslim law, distribution of property can be made in two ways – per capita or per strip
distribution. The per capita distribution method is majorly used in the Sunni law. According to this method,
the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each
person depends on the number of heirs. The per strip distribution method is recognised in the Shia law.
According to this method of property inheritance, the property gets distributed among the heirs according
to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the
number of persons that belong to the branch.
Rights of females:
Muslim does not create any distinction between the rights of men and women. On the death of their
ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property.
However, it is generally found that the quantum of the share of a female heir is half of that of the male
heirs. The reason behind this is that under the Muslim law a female shall upon marriage receive mehr and
maintenance from her husband whereas males will have only the property of the ancestors for
inheritance. Also, males have the duty of maintaining their wife and children.
Widow's right to succession:

Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is entitled to one-
fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts.
However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband's
property. If a Muslim man marries during an illness and subsequently dies of that medical condition
without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her
ailing husband divorces her and afterwards, he dies from that illness, the widow's right to a share of
inheritance continues until she remarries.
A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it is born alive. A child in the embryo is
regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in
the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no
such heir (in the womb) at all.
Escheat:
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government
through the process of escheat.
Marriage under the Special Marriage Act, 1954:
Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for
purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not
59
devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed by
the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.
51. Saleem promised Anjum that he would pay Rs. 10 lakhs as dower on the eve of marriage.
Despite of her repeated request he neglected to keep up his promise. Being aggrieved she
started living separately. Advice Anjum.
52. Dharmendra married Divya. There after he married Ranjitha. Divya objected the marriage and
filed a suit for bigamy. So both renounced Hinduism and adopted Islam. Is it valid?
53. A Muslim husband converts to Hinduism. His wife then marries another man. Is she guilty of
the offence of bigamy?
54. Saniya and Suhail are close friends. They do not have any legal impediments to marry each
other. They decided to live together without undergoing formalities of marriage. After getting a
child, their relationship was strained. Now Saniya is looking for a remedy. Advice.
 Aslam and Banu are close friends. They decided to live together without undergoing
formalities of marriage. After getting a child their relationship were strained. Now Banu is
looking for a remedy. Advice.
55. Enumerate the differences between Sunni and Shia regarding marriage, dower and divorce.
1. Under the Sunni law, a marriage contracted in the absence of witnesses is invalid. Under the
Shia law, the presence of witnesses is not necessary.
2. A Sunni Muslim can marry not only a Muslim woman, but also a Kitabia i.e. a Jewess or a
Christian. However, under Shia law, a marriage between a Muslim male and a non-Muslim female
is unlawful and void.
3. A Sunni Muslim cannot marry his wife’s aunt or his wife’s niece (on the ground of unlawful
conjunction). However, a Shia Muslim can marry his wife’s aunt; he can even marry his wife’s
niece, but only with his wife’s permission.
4. Under Sunni law, marriages may be void, or they may be irregular. The Shia law, however,
does not recognise this distinction between void and irregular marriages. Under Shia law, a
marriage is either valid or void. So, marriages which are merely irregular under Sunni law will
be treated as void under Shia law.
5. As regards guardianship in marriage, Shia law recognises only the father and the paternal
grand-father, how highsoever. Under the Sunni law, the list of guardians also includes the
brother, mother etc.
6. Under the Sunni law, a marriage cannot be restricted in its duration. A Shia male can, on the
other hand, contract a temporary marriage, called muta marriage.
56. Define and distinguish between valid, void and irregular marriages under Mohammaden law.
60
Marriage, in Mohammedan culture, has always been considered as a social necessity. There are several
kinds of marriage under Islamic law. Marriage in Islam is considered to be a social contract. The husband
and the wife and their respective families enter into an agreement whereby the husband’s family pays an
amount of money called the dower to the girl and her family and in return, the girl agrees to marry the boy.
Therefore this is a social agreement which is called a nikah.
There are two sects of Muslims all over the world divided by their beliefs and traditions, viz. Sunni Muslims
and Shia Muslims. Marriages in both the sects are conducted in different ways with different traditions and
customs and because of which there are several forms of marriage under Islamic law. The classification of
marriages we would talk about is:
1. Valid marriage(sahih nikah)
2. Void marriage(Batil Nikah)
3. Irregular marriage(fasid nikah)
Valid Marriage
The term sahih is an Urdu term for the word ‘correct’ or ‘valid’ and as already explained, nikah means
marriage. When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih nikah
or valid marriage.
It means if two Muslim persons (one being the man and other a woman) enter into an agreement by way of
offer and acceptance and the groom has paid the mehr for the marriage to the bride,
it is a valid marriage. There are certain social and legal implications of a valid marriage which can be enlisted
hereunder as follows:
• The spouses become legally married owing to which they can legally consummate their marriage.
• Due to the marriage, the parties acquire the rights of inheritance over the properties which can be inherited.
• Although the Muslim law does not allow maintenance to the file in case of a divorce because it is believed
that the dower paid at that time of marriage is sufficient for her well. Nevertheless the Supreme Court has
made it clear that after a valid marriage, the wife has the right to alimony and maintenance for her and the
children.
• The right to maintenance is an independent right beside the right to receive the promised dower.
• The spouses have to be loyal and faithful to each other. However, a Muslim man is allowed to commit
polygamy, so it is only the wife who needs to be loyal to the man after the marriage.
• The Quran allows a man to reprimand or chastise his wife by reasonable means if the wife is disobedient or
disloyal towards him.
• The kids, if any, who are born due to the consummation of a sahih marriage are considered to be legitimate
children.
In case of the wife being a widow or being divorced by her husband, she is obliged under the Muslim law to
perform the ritual of Iddat under which the wife cannot remarry any other person before a period of 90 days
from the date of death of the husband. This is to ensure that the woman was not pregnant at the time of the
husband’s death.
Void Marriage
According to the Indian Contract Act, 1872, an agreement which is not legally enforceable is a void
agreement. Similarly, an agreement between a prospective bride and a groom which does not meet all the
essential conditions of a Muslim marriage is void agreement and any marriage that takes place in
furtherance of a void agreement is called a void marriage. When one or more of the pre-requisites to a valid
marriage mentioned above are not fulfilled by the spouses before marriage, the marriage is void and not
binding. The following are certain situations in which a Muslim marriage is void.
• When a marriage takes place between persons who are absolutely incapable.
• When a person marries to the wife of another man when the marriage of the lady was subsisting.
• Marrying more than four wives, in such a case, the fifth marriage and so on becomes void or marriage with
a Non-Muslim.
61
The above-mentioned list is mere examples and not an exhaustive list of void marriages. The essential
social and legal implications of void marriage are:
• The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the marriage is
consummated.
• A void marriage does entitle the parties to any legal right or bestow any legal duties upon them.
• If the marriage turns out to be void, the right to receive maintenance after divorce is lost.
• The kids, if any, born from the consummation of a void marriage are considered illegitimate and have not
right of succession or inheritance.
• The spouses do not require a decree of a divorce in case of void marriages. They can simply part without
any formalities.
Irregular marriage
It is observed that when a marriage is temporarily prohibited and not certainly restricted it is merely irregular
or fasid and not void. An irregular marriage has several aspects involved and various points of view.
Irregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is
void marriage. When a marriage is conducted by violating certain or partial conditions of a valid marriage, it
is called an irregular marriage. The best instance of an irregular marriage is the marriage between a Muslim
and a Christian and a Jew. In general, an irregular marriage is voidable marriage and not void-ab-initio. If the
irregularity can be removed from an irregular marriage, the marriage becomes valid when it is removed. So,
if a Muslim man of Sunni sect marries a Jewish woman but gets her converted to Islam, the marriage is
valid. The social and legal implications of an irregular marriage depend upon the question of whether the
marriage was consummated or not. These implications are:
• Unless the marriage is consummated, the wife has no right to receive dower from the husband in the case,
he divorces her.
• The wife is not bound to follow the rule of iddat, i.e. prohibition from remarriage within 3 months of divorce if
the marriage is not consummated.
• The wife has no right to claim maintenance from the husband during the iddat period of three months.
• If the irregular marriage is consummated and results in the birth of children, the children will be considered
legitimate and shall have all rights of inheritance of properties. Marriage is a religious duty of every Muslim
and it is considered to be a moral safeguard and a social need. Unlike Hindu where the marriage is a
sacrament, marriages in Muslims have a nature of civil contract. When the marriage is done in accordance
to the prescribed norms it creates various rights and obligations on both the parties.
The irregular and void marriages have different consequences in Muslim law and differ greatly. They cannot
be considered on the same footing. The ground for void marriages under Muslim law are very narrow and
generally focus on prohibited relationships. The concept of irregular marriage is unique to Muslim law and
does not exist in other laws. The grounds for void marriage are wider in other laws as compared to Muslim
law and include impotency, idiocy, performance of ceremonies, age bar etc. which are not essential
elements in Muslim law
57. What is legitimacy and legitimation? Enumerate the conditions of valid acknowledgement.
Legitimation
Legitimate is a Latin word, meaning to make something lawful. It basically means
adhering or conforming to the laws/rules. Saying that something is legitimate makes it
right, gives it an authoritative or binding character. Legitimation is the noun form of
legitimate.
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Legitimacy
From the word, legitimate comes legitimacy which means the power to be supported with
logic and justification. There are far-reaching legal aspects regarding the status of a child
in relation to the child’s parents. A child is considered legitimate if the child is born of
lawfully wedded parents.“Lawfully wedded/wedlock” means a lawful marriage to be
customary, statutory, or islamic.
Conditions Of A Valid Acknowledgement

The conditions that must be fulfilled to validate an acknowledgement are:
 The persons must be capable of contracting.

 The acknowledgement must mean to accept the other not only as his son, but his legitimate son.
[13]
 The ages of the parties must be such as to admit of the acknowledger being the father and the
person acknowledged.[14] The minimum age difference between the two parties must be twelve
and a half years. (Baillie, 411).
 The child being acknowledged should not be born of zina, i.e. adultery, incest or fornication.[15]
The case of a disproved marriage would be the issue of fornication.[16]
 The person acknowledged must not be the child of another man.[17]
 The acknowledgement should be accepted by the person being acknowledged.[18]
 Once acknowledgment is made, it cannot be revoked.[19]
 Acknowledgement may be expressed or implied
58. Under what circumstances the dissolution of Muslim Marriage Act 1939 was passed?
Enumerate the grounds stated therein.
 What are grounds on which a Muslim wife can claim divorce from her husband under the
dissolution of the Muslim Marriage Act, 1939?
A woman married under Muslim law shall be entitle to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely:--
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two
years;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years;
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(v) that the husband was impotent at the time of the marriage and continues to be so,
(vi) that the husband has been insane for a period of two years or is suffering from 3 *** a virulent
venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the
age of fifteen years, repudiated the marriage before attaining the age of eighteen years :
Provided that the marriage has not been consummated ;
(viii) that the husband treats her with cruelty, that is to say,--
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does
not amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property of prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the
Qoran;
(ix) on any other ground which is recognised as valid for the dissolution of marriages under muslim law
:
Provided that--
(a) no decree shall be passed on ground (iii) until the sentence has become final;
(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such
decree, and if the husband appears either in person or through an authorised agent within that period
and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the
said decree; and
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(c) before passing a decree on ground (v) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the Court within a period of one year from the
date of such order that he has ceased to be impotent, and if the husband so satisfies the
Court within such period, no decree shall be passed on the said ground
59. What is the significance of succession certificate? State the procedure to obtain it.
in a landmark judgement on August 11, the Supreme Court held that a daughter is a coparcener by birth and that
whether the father had died prior to or was alive on the date of the amendment was not relevant. It allowed daugh
to carry the same rights and responsibilities as sons in case of succession of a property.
A succession certificate is used to grant authority to the heirs over the debts, securities and
other assets of the deceased. It is a certification given by the court, generally preceded by an
investigation into heirs, required to ascertain who are the legal heirs of the deceased.
Generally a succession certificate includes details of the deceased, details of the legal heir so
chosen, the relation between the deceased and the heir, list of debts and assets, grant of
authority, the details of the death of the deceased and a declaration of an intestate death. In
this article we will cover the following points:
 What is a succession certificate?

 What is the procedure for obtaining a succession certificate?
What is a succession certificate?
For people who die intestate leaving back their assets, securities and debts, the court
intervenes to grant a certificate of succession to the legal heirs of the person so deceased. If a
person has deceased without the preparation of a will with regard to the distribution of his
assets and property, then the person is said to have died intestate. Therefore, in such a
situation of an intestate death, a succession certificate entitles the holder of the certificate to
settle down the debts and securities and take over the remaining assets of the deceased
person. Apart from the entitlement to securities and assets, a succession certificate also
provides indemnity to all persons owing such debts or liable on such securities with regards
to all payments made to or dealings had in good faith with a person to whom a certificate as
granted.
Generally, in movable properties, a succession certificate is not required to establish

ownership over the property of the deceased. It generally plays a crucial role when another
legal heir contests the ownership and possession of the legal heir in whose possession it
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continues to be. Alternately, it will be necessary if the matter goes to court. In case of
immovable assets, however, a succession certificate would be necessary for the legal heirs to
administer or sell the property, even if there is no other claim on it.
What is the procedure for obtaining a succession certificate?
The process to obtain a certificate of succession requires a person to petition before the
District Judge of the correct jurisdiction. Jurisdiction of the court is to be decided on the basis
of the place of residence of the deceased or the place where the said property in question is
located completely or partly, as the case may be.
Stage 1: Petition for Certificate of Succession
A petition for succession certificate must generally contain the following particulars:
1. Time of death of the deceased;

2. Residence or details of properties of the deceased at the time of death within which
Judge the jurisdiction falls under;
3. Details of family or other near relatives;
4. The rights of the petitioner on the assets of the deceased;
5. Absence of any impediment to the grant of a certificate;
6. Grant of Certificate
After having made the petition, it is up to the District Judge if he wants to give an opportunity
to hear the petitioner and allow him to establish his right by oral submissions, on the grounds
of the merits of the petition so filed. Once all the hearings, as directed by the District Judge is
concluded, the Judge can decide the right of the petitioner to be granted the succession
certificate. The Judge would then pass an order for grant of certificate specifying the debts
and securities set forth in the application empowering the person to receive interest or
dividend or to negotiate or transfer or do both.
Stage 2 – Affidavit for the Certificate of Succession
To get the certificate, the legal heirs of the deceased must file an affidavit petitioning their
claim to the property to the District or High Court of proper jurisdiction. The affidavit also
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requires the petitioner to submit copies of their passports of ration cards. The affidavit shall
also include the following details:
1. Name of the petitioner;

2. Place of residence; and
3. Occupation of the petitioners
The above details are also to be provided for the next-of-kin of the deceased. In case a legal
heir wishes to relinquish his right to the estate, this must also be explicitly mentioned in the
affidavit. Once the affidavit is filed before the court by the petitioners, the court shall give
notice of the application to all next-of-kin of the deceased. The information may also need to
be made public by way of an advertisement in a national daily for information. In the
stipulated time period, if no objection to the grant of certificate is raised either by the next-of-
kin or the public at large, the certificate will be issued soon after. It generally takes around
four months for a decision in the matter of succession certificate
Stage 3- Indemnification Bond
Once the certificate of succession has been granted to the petitioner by the court, the next
step is to sign a bond to indemnify persons entitled to the debts and assets of the deceased.
The bond will also require a surety whose own assets are equal to or worth more than the
estate of the deceased. The surety is generally for the purpose to guarantee the legal heir.
Succession Laws
Under the Indian legal system, the property devolves according to the religion of the
deceased in case of an intestate death
Male Hindu (covered under Hindu Succession Act; also includes Sikhs, Buddhists and Jains)
1. First, the property will devolve upon relatives specified in Class I;
2. If there is no Class I heir, then upon Class II relatives;
3. In case there’s no Class II heir, then upon agnates (those related to another wholly through
males, whether by blood or adoption, are agnates) and;
4. If there is no agnate, then upon the cognates (related, by blood or adoption, but not wholly
through males).
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Female Hindu
1. First, the property will devolve upon sons and daughters (including the children of any
predeceased son or daughter) and the husband in equal measure;
2. Secondly, upon the husband’s heirs;
3. If the husband has no heirs, then upon the parents;
4. Upon the heirs of the father;
5. Lastly, upon the heirs of the mother.
However, any property a female Hindu inherits from her parents shall devolve, in case she
has no children (including the children of any predeceased son or daughter), upon the heirs
of the father. Similarly, property inherited from in-laws shall go to the in-laws’ heirs if she dies
without children or grandchildren.
Christians (covered under Indian Succession Act)
1. A third of the property shall go to the wife and the rest will be divided equally among
children (including the children of any predeceased son or daughter);
2. If there is no wife, the property will be divided among the children;
3. If there are no children, the property is shared equally by the wife and the husband’s
relatives.
4. Lastly, it will devolve upon the parents of the deceased;
Parsis (covered by Indian Succession Act)
1. Half goes to the wife, the rest to the children;

2. If there is no wife, the property is distributed equally among children;
3. If neither wife nor child survives, the assets go to the parents of the deceased.
Muslims (covered by Shariat)
The qazi (judge ruling according to Islamic religious law) takes the burial expenses and makes
a list of the assets of the deceased that need to be distributed among wife and children.
Hindu Undivided Family (HUF; by survivorship)
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The property of a HUF devolves by survivorship. If the Karta dies, the property devolves upon
the surviving members for four generations. Regardless of the fact that the heirs are Hindu,
the property will not devolve in accordance with the Hindu Succession Act.
However, a Class I male or female relative may make a claim on a share of the property, in
which case the property would devolve upon the claimant as provided under the Hindu
Succession Act
60. When can a person seek intervention of a court to protect the property of the deceased? Expla
61. ‘A’ has 3 children, John, Mary and Henry. John died leaving 2 children, Mary died leaving 3
children, Henry also died leaving behind 4 children. One of Mary’s child died leaving 2
grandchildren. Thereafter A dies. Distribute the property among them.
62. ‘Neha’ decided to get rid of her husband ‘Javid’. But Javid refuses to give divorce. So
she proposed 10 lakh rupees as consideration for 'Khula'. Can she do so? What are its
effects?
63. A Hanafi Muslim executes a wakf deed by which he directs his debts are to be paid out of
the rents and profits of the wakf property. Is this wakf valid?
64. State the importance of Shariat Act, 1937 dealing with the application.
he Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate an
Islamic law code for Indian Muslims. The British who were at this point in time governing India, were
trying to ensure that Indians be ruled according to their own cultural norms. When it came to
distinguishing between laws made for the Hindus and those for the Muslims, they laid out the statement
that “clear proof of usage will outweigh the written text of the law” in the case of Hindus. For the
Muslims on the other hand, the writings in the Quran would be of foremost importance. Since 1937
therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce,
inheritance and family relations. The Act lays out that in matters of personal dispute the State shall not
interfere.
Are personal laws specific to Muslims in India?
Such legislations have been made over the years for other religious groups in India as well, thereby
framing separate civil codes for different religions in the country. For instance, the Hindu Succession
Act of 1956 which lays out guidelines for property inheritance among Hindus, Buddhists, Jains and
Sikhs. The Parsi Marriage and Divorce Act of 1936 lays out rules to be followed by the Parsis according
to their religious traditions. The Hindu Marriage Act of 1955 had codified laws related to marriage
among Hindus. In face, in 1955 this Act had been amended to include laws on divorce and separation
which were previously not part of it.
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Apart from these separate civil codes related to marriage, there exists a Special Marriage Act as well
which was last amended in 1954. It lays out provisions for marital laws irrespective of the religion to
which the persons concerned belong. Muslims too can get married under this law.
Is the Shariat Application Act in India unchangeable?
The applicability of the Shariat Act has come under controversy in the past as well. There have been
previous instances when the issue of protection of women’s rights as part of the broader fundamental
rights came into conflict with religious rights. Most well known among these is the Shah Bano case. In
1985, 62-year-old Shah Bano, filed a lawsuit, seeking alimony from her former husband. The Supreme
Court, in this case, had held up her right to alimony, but the judgment was vehemently opposed by the
Islamic community who considered it to be going against the written rules in the Quran. The case
triggered a controversy regarding the extent to which courts can interfere into personal/religious laws.
The Congress government which was then in power, passed the Muslim Women (Protection of Rights on
Divorce Act), which made it necessary for the husband to pay alimony to his wife, but only during the
period of iddat, that is 90 days after divorce.
There have been plenty of instances of protests against personal laws. One of the prime agendas of the
women’s movement in India since the 1930s has been the discrimination faced by women in personal
laws, across all religions. Earlier in March this year, Justice B. Kemal Pasha, a sitting Judge of the
Kerala High Court had made a strong protest against Muslim women being denied equal rights under the
Muslim Personal Law. However, voices of protest against reforms in the personal laws has made it
extremely difficult to make amends.
The Shariat Application Act in India protects the application of Islamic laws in personal legal
relationships, but the Act does not define the laws. It clearly states that in matters of personal disputes,
the State shall not interfere and a religious authority would pass a declaration based on his interpretations
of the Quran and the Hadith. Given this background of the matter it is difficult to have it undergo
changes since it raises the question, to what extent should the State (which is supposed to be secular)
interfere with the personal affairs of the civilians. While the protection of the rights of women has been
called into time and again in such cases, “majority of those practising Islam consider the laws of the
Shariat to be completely correct and so they cannot be subjected to legislative changes considering the
fact that freedom of religion, practices and so on, are part of fundamental rights,” says practising lawyer
M.R. Shamshad.
65. What are the powers of a “Dejure Guardian” and “Defacto Guardian” under Mohammedan
Law? Powers of De Facto Guardian

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It appears that both Hindu law and Muslim law recognize de facto guardians to some extent: but
what has happened is that by judicial interpretation the powers of the de facto guardians were
enlarged under Hindu law, while they were limited under Muslim law.
When a person having no right to do so assumes the charge of another’s estate and carries on the
administration and management of the estate this continuous course of conduct results in
conferring on him the status of de facto manager.
In respect of a minor’s estate, such a person is known as de facto guardian. Whether this status
gives him some powers, or rights, different systems of law differ, yet all agree that it imposes on
him certain liabilities and obligations.
Thus, de facto guardianship is a concept under which past acts result in present status. A de facto
guardian is a self-appointed guardian. A fugitive or isolated act of a person in regard to minor’s
property does not make him a de facto guardian, nor does staying with the minor for some time.
It is only some continuous course of conduct in respect of a minor’s property that makes him a de
facto guardian. Tayabji defines a de facto guardian as “an (unauthorized) person who as a matter
of fact (de facto) has custody and care of the person and/or of his property”.
Powers of the De facto Guardian:

It may be recalled (see first part of this chapter) that the Muslim authorities classify the acts which
are required to be done in respect of a minor under three categories, viz., acts of guardianship,
acts arising out of the want of the minor, and acts which are purely advantageous to the minor.
ADVERTISEMENTS:
The Muslim authorities’ hold the view that the last two acts may be performed by a ‘maintainer’ or
‘taken up’ of the minor. The ‘maintainer’ or the “taker-up” may be relative or a stranger, but he is
not a de jure guardian.
He is nothing but a de facto guardian. But the Privy Council put a damper on de facto guardian’s
power at an early date. In Matadeen v. Md. Ali, the Privy Council said: “It is difficult to see how the
situation of an unauthorized guardian is bettered by describing him as a de facto guardian. He
may, by his de facto guardianship, assume important responsibilities in relation to minor are
property, but he cannot thereby clothe himself with legal powers to sell it”.
Then came Imambandi v. Mustasaddf which is considered to be the leading case, and which laid
down that under Muslim law a de facto guardian has no power of alienation of a minor’s property,
and that such an alienation, is void. In Md. Amin v. Vakil Ahmed, reiterating this position, the
Supreme Court observed: A de facto guardian has no power to convey any right or interest in
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immovable property which the transferee can enforce against the minor. This has come to be the
established position.
It seems that such alienation is void. But if a co-sharer and de facto guardian of a minor sells his
interest as well as of the minor’s sale will be valid as to his interest but void as to the minor’s.
ADVERTISEMENTS:
There is sufficient authority for the view that a de facto guardian has the power to sell or pledge
movable properties of the minor for the minor’s imperative needs, such as food, shelter, clothing,
or medical care. If de facto guardian has alienated minor’s property, it is minor who can challenge
the alienation. If minor has not done so, no one else can do.
An alienation made by de facto guardian which is not binding on the minor can be challenged by
the minor. But no third person has the authority to do so.
In Md. Amin v. Vakil Ahmed, the Supreme Court has ruled that a de facto guardian has no power
to enter into a family arrangement on behalf of the minor. In this case, a brother of a minor had
entered into a family arrangement on behalf of the minor.
It also seems to be clear that a de facto guardian has no power to refer a dispute relating to the
minor’s property to arbitration. The minor is not bound by any award rendered by the arbitrator in
such a case. Even if the de facto guardian is later on appointed as guardian by the court, the
award will not be binding on the minor.
Similarly, the de facto guardian has no power to sign an agreement on behalf of the minor for the
continuance of a business in which minor’s deceased father was a partner. A de facto guardian
can also not validate to an heir by consenting on behalf of the minor who is a co-heir.
The Madras High Court in Venkatarayudu v. Kashim, said that a de facto guardian “in order to
prevent a suit, a promissory note in respect of an antecedent debt being filed” against the minor
can execute a promissory note in renewal of that note. In Md. Moizuddin v. Malini the Calcutta
High Court said that a de facto guardian cannot bind the minors by execution of a hand note for a
debt which their father owned.
It seems that the de facto guardian can borrow money for the minor’s imperative needs. But if it is
not done to meet the imperative needs of the minor, or, on emergent need for borrowing is shown,
then such a debt will not be binding on the minor.
In a series of cases it has been held that a partition of properties effective by the de facto guardian
is void, the period of limitation to set aside a transfer by the de facto guardian is twelve years.
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66. Briefly discuss the provisions relating to the Muslim Women (Protection of Rights on Divorce)
Act, 1986.
The Muslim Women (Protection of Rights on Divorce) Act, 1986
1. Short title and extent.—

(1) This Act may be called the Muslim Women (Protection of Rights on Divorce) Act, 1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “divorced woman” means a Muslim woman who was married according to Muslim law, and has
been divorced by, or has obtained divorce from, her husband in accordance with Muslim law;
(b) “iddat period” means, in the case of a divorced woman,—
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of
her child or the termination of her pregnancy, whichever is earlier;
(c) “Magistrate” means a Magistrate of the First Class exercising jurisdiction under the Code of
Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides.
(d) “prescribed” means prescribed by rules made under this Act.
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.—
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced
woman shall be entitled to—
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable
and fair provision and maintenance to be made and paid by her former husband for a period of
two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after the marriage by her
relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due
has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on
her behalf, make an application to a Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the
Magistrate may, if he is satisfied that—
(a) her husband having sufficient means, has failed or neglected to make or pay her within the
iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties
referred to in clause (d) of sub-section (1) have not been delivered to her. make an order, within
one month of the date of the filing of the application, directing her former husband to pay such
73
reasonable and fair provision and maintenance to the divorced woman as he may determine as fit
and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her
during her marriage and the means of her former husband or, as the case may be, for the payment
of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1)
to the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the
application within the said period, he may, for reasons to be recorded by him, dispose of the
application after the said period.
(4) If any person against whom an order has been made under sub-section (3) fails without
sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the
amount of maintenance or mahr or dower due in the manner provided for levying fines under the
Code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part
of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term
which may extend to one year or until payment if sooner made, subject to such person being heard
in defence and the said sentence being imposed according to the provisions of the said Code.
4. Order for payment of maintenance.—
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law
for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-
married and is not able to maintain herself after the iddat period, he may make an order directing
such of her relatives as would be entitled to inherit her property on her death according to Muslim
law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having
regard to the needs of the divorced woman, the standard of life enjoyed by her during her
marriage and the means of such relatives and such maintenance shall be payable by such relatives
in the proportions in which they would inherit her property and at such periods as he may specify
in his order: Provided that where such divorced woman has children, the Magistrate shall order
only such children to pay maintenance to her, and in the event of any such children being unable to
pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay
maintenance to her: Provided further that if any of the parents is unable to pay his or her share of
the maintenance ordered by the Magistrate on the ground of his or her not having the means to
pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the
share of such relatives in the maintenance ordered by him be paid by such of the other relatives as
may appear to the Magistrate to have the means of paying the same in such proportions as the
Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relative as mentioned in
sub-section (1) or such relatives or any one of them have not enough means to pay the
maintenance ordered by the Magistrate or the other relatives have not the means to pay the
shares of those relatives whose shares have been ordered by the Magistrate to be paid by such
other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the
State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of 1954), or under any
other law for the time being in force in a State, functioning in the area in which the woman resides,
to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay
the shares of such of the relatives who are unable to pay, at such periods as he may specify in his
order.
5. Option to be governed by the provisions of section 125 to 128 of Act 2 of 1974.—If, on the date
of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her
74
former husband declare, by affidavit or any other declaration in writing in such form as may be
prescribed, either jointly or separately, that they would prefer to be governed by the provisions of
sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such affidavit or
declaration in the court hearing the application, the Magistrate shall dispose of such application
accordingly. Explanation.—For the purposes of this section, “date of the first hearing of the
application” means the date fixed in the summons for the attendance of the respondent to the
application.
6. Power to make rules.—
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out
the purposes of this Act.
(2) In particular and without prejudice to the foregoing power, such rules may provide for—
(a) the form of the affidavit or other declaration in writing to be filed under section 5;
(b) the procedure to be followed by the Magistrate in disposing of applications under this Act,
including the serving of notices to the parties to such application, dates of hearing of such
applications and other matters;
(c) any other matter which is required to be or may be prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period of thirty days which may be comprised
in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree that the rule should not be made, the
rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be;
so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
7. Transitional provisions.—Every application by a divorced woman under section 125 or under
section 127 of the Code of Criminal Procedure, 1973 (2 of 1974) pending before a Magistrate on
the commencement of this Act, shall, notwithstanding anything contained in that Code and subject
to the provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the
provisions of this Act.
67. Who is an Administrator? What are his duties and powers?

An administrator has the power to manage the financial and legal affairs of the person with a mental incapacity
as detailed by SACAT in its order appointing the administrator.
An administrator can be a relative, friend, private trustee company, solicitor, accountant or the Public Trustee.
There may be more than one administrator. An administrator who is a natural person (not a corporation) may
also be a guardian.
SACAT will appoint the most suitable person or organization as administrator. This allows families and friends,
who have the ability, to look after the financial affairs of a family member who has a mental incapacity.
An administrator also has the power to vary or revoke any enduring power of attorney that has been made, in
the same way as the donor could if he or she was of sound mind. If the power of attorney continues, the donee
must report to the administrator as if that person is the donor [Powers of Attorney and Agency Act 1984 (SA) s
10].
SACAT is required to limit the powers of an administrator to the minimum necessary in the circumstances. In
making decisions administrators must observe the same principles of substituted judgement as SACAT and any
guardian appointed by SACAT, see Principles of Substituted Judgement.
Subject to SACAT’s order, an administrator is, in general terms, empowered to make the same range of
decisions about the person’s finances and legal affairs which the person could have made if she or he were not
incapacitated.
75
The Guardianship and Administration Act 1993 (SA) empowers SACAT to authorise an administrator to:
 gain access to the person’s will or other records; and,

 continue to manage a person’s estate after death for a short time (up to two months) and then hand over
the affairs to an executor of the person’s will.
An administrator must provide a regular account of their management of the person’s affairs. In the case of a
private administrator (that is, a person or organisation other than the Public Trustee) accounts must be
prepared and sent to the Public Trustee for examination. In the case of the Public Trustee, accounts are
forwarded to SACAT for examination. An administrator must work co-operatively with any guardian appointed by
SACAT.
Upon appointment, SACAT will provide the person with a mental incapacity and the administrator with a copy of
the terms, conditions, powers and duties of the administrator’s appointment. SACAT will also set a review date
for its order.
68. Define probate. Explain the procedure for obtaining probate.

Will is the legal declaration of a person's intention, which he/ she wishes to be
performed after his/her death and once the Will is made by the testator/
testatrix, it can only be revoked during his/her lifetime.
'Probate' means the copy of a Will certified under the seal of a court of
competent jurisdiction with a grant of administration of the estate of the
testator. A probate can be granted only to the executor appointed under the
Will. Further, a probate is essential if the Will is for immovable assets in
multiple states.
Caveat a Latin term means 'let a person beware'. In law, it can be explained as
a notice or a precaution exercise (generally in probate cases) that a certain
matter is not heard, judgement is not passed, order is not issued without
hearing the person who has filed the caveat. It can be made in an application
already made or which is supposed to be made in future.
The importance of a 'Probate Caveat'
A probate caveat is a document that is filed in court to prevent the proposed

executors or administrators of a deceased person's estate from getting
permission to administer the estate assets. A probate caveat is used to
challenge a Will itself. For example, where someone believes that the Will was
forged or was not written and approved by the deceased person.
If someone files a Probate Caveat in the wrong circumstances, the court may
order that person to pay the costs incurred by the other party in dealing with
the caveat.
76
A probate caveat must be filed shortly after a deceased person's death and
before probate are granted by the court. If someone has concerns about
someone's Will, it is very important that person should seek legal advice as
soon as possible after the testator/ testatrix dies, so as to make sure that
person starts the proceedings within time and on the correct basis.
Necessity of a Probate in certain cases: As per the provisions of the Indian

Succession Act, 1925 ("Succession Act") the provisions of testamentary
succession are applicable to the Will if:
(i) Made by Hindu, Buddhist, Sikh or Jain on or after the first day of
September, 1870, within the territories which at the date were subject to the
Lieutenant-Governor of Bengal or within the local limits of the ordinary original
civil jurisdiction of the High Courts of Judicature at Madras and Bombay or
(ii) Made the Will outside those territories and limits, so far as relates to
immovable property situate within those territories or limits.
Further, no right as an executor or legatee can be established in any Court of

Justice, unless a Court of competent jurisdiction in India has granted Probate
of the Will under which the right is claimed. However, this provision applies
only to the cases, which are referred above. Therefore, a Probate of Will is
compulsorily required, only if the Will is made in any one of the aforesaid two
cases, otherwise, it is not compulsorily to Probate the Will.
Even otherwise, it would be advisable to seek Probate of Will in case of:
(i) When there are problems with an existing Will

(ii) When the beneficiaries have predeceased the testator and such other
cases.
Probate of a Will
It is pertinent to understand the process of obtaining the Probate of a Will. A
Probate is granted by the High Court with the court seal and a copy of the Will
attached. For seeking a Probate, the executor of the Will, as a Petitioner is
required to file the petition (after making payment of applicable court fees
depending upon the value of the assets) before the competent court (a
pecuniary jurisdiction may require a higher court to issue a probate for high-
value immovable assets) through an advocate. Thereafter, the court usually
asks the Petitioner to establish the proof of death of the testator, as well as
proof that the Will has been validly executed by the testator, and that it is the
last Will and testament of the deceased. After receiving the petition for a
77
Probate, the court issues a notice to the next of kin of the deceased to file
objections, if any, to the granting of the probate and it also directs the
publication of a citation on board to notify the general public. If there is no
objection, on the other hand, if the next of kin of the deceased files their
respective consent to the grant of Probate, then court grants the Probate,
however, if the next of kin of the deceased files their respective objections to
the grant of Probate, then the Probate Petition becomes the testamentary suit,
to enable parties to lead evidence in the matter.
Challenges to Wills and probate claims:

It can be difficult task to challenge a Will. In most of the cases, courts stick
stringently to Wills, since the testator is no longer there to defend himself.
However, if you have an interest in the Will, you can challenge it, and if you
are successful in convincing the court, then the Will can be voided in its
entirety or in part. It is advisable to seek an advice from a practicing lawyer
before challenging the Will, since the law surrounding challenges to a Will is
complicated, plus, the facts of each case are unique. The Will can be
challenged on any of the following grounds:
Lack of due execution: A valid Will has to be in writing and signed by the
testator in the presence of two witnesses, who must also attest the Will. If the
process is not followed to the hilt, the Will can be challenged in the court of
law.
Lack of testamentary intention: Here, the person has to prove that the testator
had no intention to make a Will, however, this plea is rarely used, as it is
difficult to prove.
Lack of testamentary capacity: The law requires that people above 18 years
can make a Will. Adults are presumed to have a testamentary capacity, and
therefore, the Will can be challenged on the basis of senility, dementia,
insanity, or that the testator was under the influence of a substance, or in
some other way lacked the mental capacity to make a Will. Basically, to
challenge a Will based on mental capacity, the challenger of Will must show
that the testator (the person who created the will) did not understand the
consequences of making the will at the time of its creation.
Lack of knowledge or approval: Challenger of Will can take the ground that the
testator did not, in fact, know what was in the Will when he signed it.
Undue influence: Challenger of Will can challenge a Will by showing that the
Will was procured by fraud, forgery, or undue influence, i.e. lack of own free
78
will or without adequate attention as to the consequences of bequests so
made under the Will.
Fraud or forgery: The burden of proof would be on the challenger of the Will to
establish that the Will was forged (not signed by the testator) or was made as
a result of fraudulent act.
Claims by family: A family member can challenge a Will on the grounds that
they were not provided for adequately in the Will.
Revocation of earlier Will: A Will, although registered can be challenged in the

court of law. The mere fact that a Will has been registered (not mandatory
under the law to register the Will) will not, by itself, be sufficient to dispel all
suspicions regarding it. A registered Will may not be the last testament. A new
Will made, even if unregistered, if valid, will trump the registered Will. If there
are any suspicious facts, the court will scrutinize the Will even if it is registered.
Creating a Testamentary Trust

To create a testamentary trust in a Will, the testator must designate a trustee
and specify the beneficiaries. As mentioned above, a testamentary trust
comes into effect not until the testator dies. Thus, the testamentary trust must
be contained in the testator last (final) Will, so the trust can be created upon
the testator death. A testamentary trust is not automatically created upon the
demise of the testator. While other types of trusts may avoid probate, a
testamentary trust must go through the probate process. The testamentary
trust will come into effect upon the completion of this process. A trustee,
chosen by the testator, will manage the trust property or funds in the trust until
the trust is dissolved and the same is distributed to the beneficiaries.
Grounds under which a Will after a Probate can be contested

The Succession Act provides for certain grounds on which a Probate of a Will
may be revoked, however such revocation can only be effected if the person
challenging the Probate is able to convince the competent court that it is
necessary to revoke the Probate 'for just cause'. Further for challenge of a
probate, the law of limitation must also be abided by, as probate operates as a
'right in rem' granted by the competent court, operates from the date of grant
of the probate, therefore a challenge which is hopelessly barred by limitation
cannot be entertained by any court of law. Further, an order of revocation of
the Probate would operate prospectively and such revocation does not
obliterate bona fide transactions entered into by the executor during the
pendency of the Probate. The challenger can challenge the Probate of Will on
the following grounds:
79
1. The proceedings to obtain the grant of Probate were defective in substance;
or2. The grant of Probate was obtained fraudulently by making a false
suggestion, or suggestion, or by concealing from the court something material
to the case; or3. The grant of Probate was obtained by means of an untrue
allegation of a fact essential in point of law to justify the grant, though such
allegation was made in ignorance or inadvertently; or4. The grant of Probate
has become useless and inoperative through circumstances; or
5. The person to whom the grant of Probate was made has willfully and
without reasonable cause omitted to exhibit an inventory or account in
accordance with the provisions of Chapter VII of this Part, or has exhibited
under that Chapter an inventory or account which is untrue in a material
respect.
Conclusion
Seeking grant of Probate of Will is a time consuming task to be complied by
the executor of the Will of the testator, for which, the testator also has to spend
time and money towards payment of court fees depending upon value of
assets bequeathed under the Will. However, as stated above, it is compulsory
to seek grant of Probate of Will only in certain cases, whereas, it is not
compulsory to seek grant of Probate of Will in other cases.
80

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Family Law II Mohamaddein Law:

1. Discuss briefly the sources of Mohammedan law.

Kinds Of Traditions: The Traditions Are Of Two Kinds:

 Sunnat-ul-fail i.e., Traditions about which prophet did himself.

The three class of Ahadisare:

Conditions of Validity of Qiyas:

a. A number of texts, particularly traditions are based upon usages.

Pre- Condition Of Valid Custom

Justice, equity and good conscience

 The usurious loans act, 1918

 Proposal and Acceptance

1. His mother or Grand-mother (how high so ever),

1. His wife’s mother or Grand-mother (how high so ever),

A marriage with woman prohibited under affinity is void.

1. His foster mother or foster grandmother (how high so ever), and

1. Sister’s foster mother, or

 Absence of Proper Witness

Contracting of marriage must be done in the presence of proper and competent

 Marriage during Iddat

1. Marriage during pilgrimage is considered as void in Shia law.

4. Explain the legal impediments of a muslim marriage.

8. Explain the principles of acknowledgment of paternity.

Acknowledgement of paternity under Muslim Law (Iqrar-e-

Vaishali Bahubalendra Legal Article Mon, 24 Aug 2020 07:59 PM

Acknowledgement of paternity under Muslim Law

Under the Muslim law a child to be legitimate:-

 must be born during lawful wedlock and

 Prolonged cohabitation of a man and a woman (excluding a prostitute);

How legitimacy is presumed under Muslim Law?

i. Born within 10 lunar[4] months, under the Shia law.

1. Intention to confer legitimacy

4. Confirmation must be made by the person so acknowledged.

6. The acknowledger must be competent

7. Should not be Zina's ( incest) Offspring

 When the child is born during the continuance of valid marriage;

There are two categories of divorce under the Muslim law:

Conditions for a valid talaaq:

Express Talaaq (by husband):

Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

The hasan talaaq:

Divorce by mutual agreement:

Dissolution of Muslim Marriages Act 1939:

Section 2 of the Act runs thereunder:

# That the husband treats her with cruelty, that is to say-

10. State the rules of succession applicable to Parsi dying intestate.

12. Divide the estate.

Property can be distributed by two methods under Muslim law:

Per capita distribution:

Per capita distribution of property is mainly followed by the Sunni

Per Stripe’s distribution:

Per stripes distribution of property is followed by the Shia branch of

Now, upon A’s death, his property is calculated to be around Rs.

14. Write short notes on any two of the following :

the following are the essentials of a valid gift[viii]-

1. A declaration by the donor:

2. Acceptance by the donee[xv]

1. Actual Delivery of Possession: Where the property is physically handed over to

Constitutional Validity Of Hiba

The classification may be founded on different bases such as geographical, or according to

SUBJECT MATTER OF GIFT UNDER MUSLIM LAW

Under Muslim law, following constitute the subject matter of Hiba[xxv]:

1. It must be anything (moveable or immovable, corporeal or incorporeal) over

c) Hiba of a share in a zamindari or taluka; According to Ameer Ali, the

 anything over which right of property may be exercised.