CHAPTER 1

INTRODUCTION

’To those not born and bred within the pale of Islam, the study of Musulman Law is usually attended with great
difficulties.’
— AMEER ALI

With the greatest respect to the learned scholar, Ameer Ali, an attempt is, however, made in the following pages to
unfold the basic principles of Muslim Law in as simple and lucid a form as would permit its study by any receptive
mind — be it Muslim or otherwise.

HISTORICAL BACKGROUND

The man of Semitic stock who inhabited Arabia, and who developed the ancient civilization of the Sumerians (on
which the empires of Babylon and Assyria were based), reached a high level of culture in Phoenicia and South
Arabia Urged on by poverty and hunger. wave upon wave of Arabs came up from southern and central Arabia. and
found their way into the settled lands of the fertile crescent Only a limited number of people could be supported by
the few oases and settlements. Therefore, the only alternative to starvation was annual raids and wars of conquests.

Commerce was an important link between the desert and the sown land. In southern Arabia, there were highly
developed civilizations based on agriculture and the spice traffic. Trade with the outside world brought wealth and
prosperity to its people more than a thousand years before the Christian era.

It will thus be seen that trading. as much as raiding, formed the basis of the social and economic life of the ancient
Arabs Naturally, trading was the preliminary pre-occupation of the settled Arabs. though no settled form of
government or administration of law existed Besides the traders, there were also the desert nomads, who led a more
or less roving life, and were called Bedoins.

The tribe was the principal unit of Arab social life The tribal chief exercised great powers and influence. Generally,
he was elected because of his nobility of birth or wisdom or courage or character. There was no regular manner in
which his behests were carried out he relied mainly on the force of his character and on tribal opinion

There was continuous tribal warfare, and the Arabs were not very effective in organising power and were incapable
of combined action Idolatry of a crude type generally prevailed all over Arabia, and all forms of religion and
morality were almost forgotten Polygamy was universal, divorce was easy, and female infanticide was common
Women had no legal rights and were not treated on a par with men

Thus, the time was particularly ripe for the acceptance of a simple and rational faith like Islam, which among other
things, gave women many important rights, and united the warring tribes, inspiring them with a common ideal.

Muhammad the Prophet and his Mission

Muhammad was born in Mecca about the year 570 or 571 A.D. The family of Prophet Muhammad has been traced
back to Abraham. The Prophet was a posthumous child. He was brought up by his mother. On the death of his
mother. the child was brought up by his grandfather, and later, by his uncle.

From his childhood the Prophet was serious-minded, and when he grew up, he would often retire to a cave for
meditation. When he was 35 years old, the Prophet married a rich widow, Khadija.
In his fortieth year, the Prophet received a message or wahi from God The message to the Prophet was that there was
only one God, and Muhammad was his Prophet sent to propagate the message. The Prophet propagated this
message, and soon gathered round him a faithful band of followers But, the Pagans, who formed the ruling classes in
Mecca, persecuted the Prophet and his followers, who ultimately fled to Medina in 622 A.D. This marks the
beginning of a new era which is known as Hejira.

At Medina. the Prophet’s message was well-received. The Prophet welded the people of Medina into a well-knit
political organisation. In a number of battles. the Meccans were routed by the better-organised and devout followers
of the Prophet Within a few years, the Prophet consolidated his position, and in spite of heavy odds, the Meccans.
Jews and Christians were repelled in their subsequent assaults By the tenth year after Hejira. the Prophet had
gathered round him several tribes, and the Prophet entered Mecca In 632 AD, the Prophet passed away.

The Caliphate

Muhammad had been established as the supreme overlord and preceptor of all Arabia. 11 is believed that he did not
nominate a successor, and that Abu Bakr was elected as the successor to the Prophet Abu Bakr was the Caliph or
Commander of the Faithful for only two years He was succeeded by Umar. Umar was a bold and courageous man
The boundaries of the Islamic State expanded far and wide during his tenure as caliph. Umar was assassinated after
ten years as Caliph, and Usman was elected as the third Caliph. When Usman was assassinated after twelve years.
he was succeeded by Ali, the son-in-law of the Prophet The election of the first four Caliphs, who are known as
Khulfai-in-Rashidain (the rightly-guided Caliphs) was real and democratic. All was Caliph for five years, after
which he expired. After Abs death, his son. Hasan, resigned in favour of Muavia, the founder of the Ummayad
dynasty. Hasan was, however, murdered. The followers of Ali, known as the Shiat-i-Ali, (the party of Ali) persuaded
Husain, the second son of Ali, to revolt against the son of Muavia. Husain died fighting, after great suffering in
Kerbala. Therefore, the rift between the Sunnis and the Shias broadened. The Shias were the supporters of Ali and
opposed the Sunnis.

The scene of power now shifted from Mecca to Damascus, when Muavia made it his capital. When the Ummayads
became rulers, the Caliphate became a regular kingship, and vices (like the tribal rivalry of earlier days) again crept
in. The Ummayad was overthrown by the Abbasids, who donned the mantle of the Prophet, by claiming descent
from Abbas, the uncle of the Prophet. The Abbasid Caliphate lasted for five centuries and collapased in 1258. A.D.,
when the Mongols plundered Baghdad.

The Caliphate then shifted to Cairo, where Sultan Baibars invited Abul Kasim Ahmed, who had escaped death at the
hands of the Mongols, to hold spiritual power. This Caliphate lasted for two-and-a-half centuries.

In the fifteenth century, the Ottomans of Turkey had become a force to contend with. They overthrew the Mameluke
Sultans of Egypt, and got the Caliphate transferred to themselves by a deed of assignment. Thus, the Caliphate
shifted from Cairo to Constantinople. In 1922, Mustafa Kama! Pasha abolished the Sultanate of Turkey. when he
established the Turkish Republic. Two years later, the Caliphate was formally abolished by the National Assembly
of the Turkish Republic.

ISLAM - ITS BASIS

Islam is the last revealed religion. ’Islam’ is an Arabic word meaning ’peace’ and ’submission’. In its religious sense,
it connotes submission to the will of God; In its secular sense, it signifies the establishment of peace. Muhammad
identified himself as a simple human being. sent by God as His Prophet to the people.
The Quran is the Divine Book which is God’s own word as revealed to Muhammad through the Angel of Revelation
It dictates the Law, initiates into the Unseen, purifies the soul and guides social progress It can be said to be a
complete code of conduct for all times

The Quran, to-day, is a record of what the Prophet said while in a state of ecstatic seizure. The recording of the
Prophet’s words in the beginning was haphazard. Verses were written on palm leaves, stones, the shoulder blades of
animals—in short, any material which was readily available There is no doubt that, at the death of Muhammad, a
good deal of the Quran was already written down, though not all of it, for while the Prophet was alive. new Suras or
chapters, were constantly being added There is also no doubt that a great deal of the Quran had been learnt by heart

Tradition associates the collection of all this material to Abu Bakr, the first Caliph. The first authorised version was
published in the times of Caliph Usman.

At the time of the Prophet, and just before he preached the new faith, there were several kinds of religious beliefs in
Arabia Paganism or heathenism of a crude and inartistic type without any ritual, pomp, mythology or philosophical
speculation was rampant Then, there were colonies of Christians in parts of Arabia. Jewish and Zoroastrian
communities were also to be found. In most cases, the outward form of each faith was preserved, but people had
forgotten the true principles of their religion. People had lost contact with spirituality. It was around this time that
there arose a group of men called ’hands’ who devoted themselves to religious meditation. These hanifs were
monotheistic in their attitude

It was at such a time that the Prophet preached his message. His faith had appeal because it had a socialistic and
democratic flavour. It divided the estate of a person after his death in a fair manner, and compulsorily distributed it
among his nearest relations, male and female. It enjoined the giving of ‘zakat’—almost two-and-a-half per cent of
one’s capital—as alms every year. It preached equality among human beings and the brotherhood of man. In Islam,
laws are intermixed with religion. It would, therefore, be relevent first to understand and appreciate the true spirit of
Islam

First of all the Prophet himself never claimed that Islam was a new religion He asserted that it was as old as the
hills. In Quranic theory. Islam is a religion which has existed since the beginning of the world, and will exist till the
day of Resurrection. Muhammad claimed that he was merely a man, a human being, like the other prophets, and was
liable to err in human affairs, but was divinely guided and inspired in matters of religion

Secondly, there is the principle of Tawhid or the unity of God. Islam is essentially monotheistic — in direct contrast
to the paganism of the times.

The third principle is that of brotherhood of man. Pride of colour or race was absolutely condemned by the Prophet.
In his last sermon, the Prophet is reported to have said The Arab is not superior to the non-Arab: the non-Arab is
not superior to the Arab. You are all sons of Adam, and Adam was made of earth. Verily all Muslims are brothers...”
CHAPTER 2

ORIGIN, DEVELOPMENT AND APPLICATION OF MUHAMMADAN LAW

The following six topics are discussed in this Chapter :

A. Shariat
B. Development of Muhammadan Law
C. Application of Muhammadan Law (The Shariat Act, 1937)
D. Khojas and Cutchi Memons
E. Effect of conversion to Islam
F Schools of Muhammadan Law

A. SHARIAT

Laws may be considered as man-made laws or divine laws. Manmade laws are those laws which are enacted by
rulers or legislators. and are the guiding principles of all modern legislation On the other hand, there are certain
principles in accordance with which human beings are compelled to act because God desires us to do so, such are
the divine laws.

In Islam, there is a doctrine of servitude in the matter of good and evil. It is believed that, as ordinary mortals, one
cannot understand what is good and what is evil, unless one is guided in the matter by a divinely inspired Prophet.
One must do what is good and avoid what is evil. This is the law of shariat, and nothing else can be law Who is
then to act as the judge of good and evil 2 Scholars of Muhammadan Law say that it is not man. Therefore, one has
to turn to the Quran, which is the very word of God. Supplementing the Quran. are the ‘hadith—the traditions of
the Prophet. These are the records of his action and sayings, and one must derive help and inspiration from these in
arriving at legal decisions.

If there is nothing either in the Quran or the hadith to answer a particular question, one has to follow the consensus
of opinion among the learned, and failing that qiyas analogical deduction These, in short. are the principles which
constitute the basis of shariat or law in Islam

Shariat means the Canon law of Islam or the totality of Allah’s commandments. Each of these commandments is
called ’hukm. (hukum). The law of Allah is not easy to understand, and Shariat embraces all facets of human action
For this reason, it is not law as commonly understood It is basically a code of obligations, where legal considerations
and individual rights have a secondary place. All human activity is embraced by shariat.

B. DEVELOPMENT OF MUHAMMADAN LAW The first period in the development of Islamic Law is the one
between 1 After Jejira (A H.) and 10 A.H This is the most important period so far as the first two sources of law, viz
. the Quran and hadith, are concerned The Prophet had conquered Mecca and in the last few years of his life, he
took upon himself the task of legislation. Most of the verses of the Quran revealed during this period deal with legal
aspects So also do some of the Prophet’s most important judicial decisions and traditions The precepts of the
Prophet acquired a binding force. because Muslims believe that the actions and sayings of the Prophet were inspired
or commanded by God.

The second period is the period of thirty years from 10 A.H. to 40 A H . when ”the rightly-guided Caliphs”, viz.,
Abu Bakr, Umar, Usman and Ali were the Caliphs. During this period, there was a close adherence to ancient
practice under the guise of adherence to the ’sunnah’ — the precept of the Prophet. During this period, the collection
and editing of the Quran also took place. This authorised text of the Quran — which remains without change or
corruption to this day — was first published during the reign of Usman, the third Caliph.
The third period is a long one, which ranges from 40 A H, to the third century after Hejira This period was also
important, because it was during this period that the work of collection of the ’traditions’ of the Prophet took place
During the earlier part of this period, there emerged the four schools of Sunni law, which are named after their four
founders (The salient aspects of these schools are considered later in this Chapter)

The fourth period in the development of Islamic law extends from the third century after Hejira to the present day
After the four recognised schools had been founded, later scholars applied themselves to the methods laid down by
the founders, and developed each system in a particular manner However, no individual jurist was ever afterwards
recognised as having the same rank as the founder himself.

After the abolition of the Caliphate, a new situation arose, and there was no one to execute the behest of the Shariat.

During the last period, the doctrine of ’taqlid — following by imitation —‘ijtihad’ — the power of independent
interpretation of law — developed and came into prominence.

The Shia School of Thought. — The term ’Shia’ by itself means faction, and is a contraction of the word ’Shia-t-i-
Ali’ or the ’faction of Ali’. The Shias deny and dispute the principle of election by the people in the matter of
Caliphate, and hold that the Prophet had appointed Ali as his successor. The Shias are divided into a large number of
schools, the two most important of which are the Ismail’s and the lthna Ashari. In India, the Ismailis consist of two
main groups. viz., the Khojas and the Bohras. The Khojas are the followers of the Aga Khan and the Bohras are
mainly the followers of the Syedna or Dai.

The majority of Shias belong to the Ithna Ashari school. The word Shia is, in India, applied in general to the Ithna
Ashari school of Shias.

The lmamat. — According to the Sunni doctrine, the leader of the Muslims, at any given moment, is the Caliph. He
is more a temporal ruler than a religious chief; in religious matters, he has merely to follow the shariat. The concept
of the Imam, according to the Shias. is totally different. It is here that the fundamental difference between the Shia
and the Sunni theology comes in. According to the Shias. Imam is the final interpreter of the laws. He is the leader
not by election, but by divine right as he is successor of the Prophet — a descendant of Ali The Shias hold that no
hadith is valid unless it is related by an Imam descended from the Prophet. They accept the authority of the Quran,
but say that only the Imam can say what the correct interpretation of the law is.

According to the Shias, the Imam is the law-giver himself, but as he is hidden, the ’mujtahid. — corresponding to
the Sunni Kazis — are his agents. the interpreters of the law. ’Jitihad’, the power of independent interpretation of
the law, therefore, has an altogether different significance in Shia law. The Shia Mujtahid can give decisions on his
own responsibility The doctrine of qiyas (analogical deduction) and ijma (consensus of opinion), as understood by
the Sunnis is not accepted by the Shia school of thought. Therefore. law. according to the Shia school, consist of
rules of conduct based on authoritative interpretation of the Quran and the Sunnah and the decisions of the Imams
through the mujtahids.

Development of Muhammadan Law in India

The Mugal emperors being Hanafis, the Hanafi law was administered in India till the establishment of the British
Rule

The British applied Muhammadan Law as a branch of personal law to those who belonged to the Muslim religion,
in accordance with the principle of their own school or sub-school In all suits regarding inheritance, succession,
marriage, caste and other usages or institutions, the laws of the Quran, in accordance with opinion of the Maulvis,
were invariably adhered to in the case of Muslims

With the changing social conditions, the need for a change in some of these laws became apparent. On the one hand,
certain portions of the law were abolished, such as the banning of slavery and forfeiture of rights on apostacy.
Similarly, certain portions of the customary law were altered to make the original rules of Islamic law applicable
The Wakf Act, 1913, was enacted on these lines

Today, the law of Marriage, Divorce. Dower, Legitimacy, Gaurdianship, Wakfs, Wills and Gifts and Inheritance
among Muslims is uniform all over India. The Shariat Act, 1937, abrogated custom, and restored to Muslims their
own personal law in almost all cases Thus. Muhammadan Law, as applied in India, is the shariat, as modified by
the principles of English common law and equity

C. APPLICATION OF MUHAMMADAN LAW

(The Shariat Act, 1937)

Like Hindu law. Muhammadan law is a personal law. Unlike territorial laws, it does not apply to all the persons in
a given state or country. It applies only to those persons who answer a given description, namely, Muslims. whether
they are so by birth or by conversion. To be a Muslim is to profess Islam. i.e.. to acknowledge that there is no God
but God (re., there is only one God), and Muhammad is His Prophet. ”La ilaha ili ill lah Muhammad ur Rasul
Allah.”

Profession of the faith of Islam (i.e., belief in the unity of God) and the mission of Muhammad as a Prophet or
messenger of God are necessary and sufficient for establishing that a person is a Muhammadan by birth or by
conversion. It is not necessary that he should observe any particular rites or ceremonies. A person who is born a
Muslim remains a Muslim until he renounces the religion by an unequivocal renunciation of Islam. The mere
adoption of some Hindu forms of worship does not amount to the renunciation of religion. An illegitimate son of a
Hindu by a Muslim woman, who is brought up as a Hindu. may be regarded as a Hindu, though his mother is a
Muslim.

Muhammadan law applies to (a) Muslims by birth, and (b) Muslims by religion. i e . persons who have become
converts to Islam.

In India, Muhammadan law is applied as a branch of personal law to the Muslims in matters relating to Inheritance,
Succession, Wills, Gifts, Wakfs, Marriage. Dower, Divorce, Paternity and Guardianships. In other matters, the
general laws of the land, as for instance the Law of Torts, the Indian Penal Code, the Indian Contract Act, etc.,
apply.

The Courts in India apply those rules of Muhammadan law —

(i) which have been expressly directed to be applied to Muslims, except in so far so as they are altered or abrogated
by the Indian Legislature. (Thus, for instance, the rule of Muhammadan law that a convert from Islam is to be
excluded from inheritance is abolished by the Freedom of Religion Act, 1850);

(ii) which, though not expressly directed to be applied, are not excluded by the Indian Legislature, either expressly
or by implication. These rules are applied as matter of equity, justice and good conscience. No rules of
Muhammadan law that have not been expressly directed to be applied can be applied if they have been abolished,
either expressly or by necessary implication. Thus, for instance, rules of Muhammadan law with regard to pre-
emption are not applied in U. P and Punjab, because there are special Acts dealing with these topics in those states.
Similarly, the rules of Muhammadan Criminal law or the Islamic law of Evidence are not applied; rather, the matter
is governed by the Indian Penal Code and the Indian Evidence Act.

In the mofussil areas of the erstwhile State of Bombay (now Maharashtra and Gujarat), the law to be applied in the
trial of suits was to be Acts of Parliament and Regulations of Government applicable to the case; in their absence,
the usage of the country in which the suit arose was to be applied; if none such applied, the law of the defendant, and
in the absence of any specific law and usage, justice, equity and good conscience alone would govern the case. [Sec.
26, Bombay Regulation of 1827 (Regulation IV)]

The Muslim Personal Law (Shariat) Application Act, 1937 The place of the different enactments authorising and
regulating the application of Muslim law to Muslims in the different States of India is now taken by the Muslim
Personal Law (Shariat) Application Act, 1937. The object of the Act is, as its Preamble states. to make provision for
the application of the Muslim Personal Law (Shariat) to Muslims in India.” The Act came into force on 7th October.
1937

Under this Act, it is provided that, notwithstanding any custom or usage to the contrary, in all questions (save
questions relating to agricultural land) regarding intestate succession, special property of females (including
personal property inherited or obtained under contract or gift or any other provision of personal law), marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubara’at, maintenance, dower, guardianship,
gifts, trust and trust properties and wakfs (other than charities and religious endowments). Muslim personal law
(Shariat) is to apply to all cases where the parties are Muslims (S 2)

It will be seen that the matters enumerated above together constitute practically the whole branch of personal law,
and hence. the Act is called the Muslim Personal Law Application Act. The scope and purpose of S 2 of the Act
(above) is to abrogate custom and usage in so tar as they have displaced the rules of Muhammadan law. Wills and
legacies are deatt with in Section 3. As regards questions relating to pre-emption. the old law is left untouched by
the Act. By mentioning Ila and Zihar amongst the modes of dissolution of marriage, the Act apparently seeks revive
these modes of divorce. Another important point to note is that charitable and religious institutions are excluded
from the scope of the Act.

The Calcutta High Court has held that, as regards marriage and divorce, the Shariat Act requires the Courts to apply
Muslim law, only if both the parties are Muslims. If, therefore, only one of them is a Muslim. the Act will not apply
(Noor Jahan v. E. Tiscenko. Al R 1941 Cal 582)

The Bombay High Court has held that testamentary trusts and testamentary wakfs are covered by S. 2 of the Act,
and therefore in matters involving such trusts or wakfs. S. 3 of the Act (below) is not applicable. (Ashrafalli v.
Mohamedalli, A.I.R. 1947 Born . 122)

Under S. 3 of the Act, any person who satisfies the prescribed authority—

(a) that he is a Muslim, and

(b) that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872, and

(c) that he is a resident of India, — can, by declaration in the prescribed form filed before the prescribed authority,
declare that he desires to obtain the benefit of this Act, and thereafter, the provisions of S. 2 apply to the declarant
and all his minor children and their descendants, as if, in addition to the matters enumerated above, adoption, wills
and legacies were also specified
Provision is also made for an appeal if the prescribed authority refuses to accept such a declaration.

It will be seen that S.3 refers to adoption, wills and legacies. The provisions of this section may be called
persuasive, unlike the provisions of S. 2, which are obviously coercive. Whereas the purpose of S. 2 is to abrogate
customs and usages. insofar as these have displaced the rules of Muhammadan law, Section 3 does not invalidate the
customs relating to adoptions. wills and legacies. It only provides an option to any person elected by these customs
to abandon them and adopt Muhammadan law

S 4 of the Act then empowers the State Governments to make rules to carry out the purpose of the Act, and S. 6
repeals certain Acts, to the extent that they permit inconsistent customs. (S. 5 of the Act was repealed in 1939.)

[A reference may be made to Appendix I (at the end of the book) for the text of the Muslim Personal Law (Shariat)
Application Act, 1937.]

Applicability of the Act to Khojas and Cutchi Memons

Prior to the coming into force of the Shariat Act of 1937. Cutchi Memons and Khojas and Sunni Bohras of Gujarat
and Molesalam Girasias of Broach were governed by Hindu Law in matters of inheritance and succession, and
therefore, could dispose of the whole of their property by wills. Such wills were construed by rules of Hindu Law
relating to wills. Now. S 3 of the Shariat Act. 1937, gives any person belonging to any of these communities and
who is a resident of India, the option of abandoning the customary (i.e., Hindu) law and adopting Muhammadan
Law. If he exercises this option, he will be governed by Muhammadam Law, under which a Muhammadan cannot,
by will, dispose of more than one-third of this property In cases governed by the Muhammadan Law under the
Shariat Act, the will is to be construed by the rules of Muhammadan Law relating to wills. [See ’Khojas and Cutchi
Memons’ below.)

Whether the Shariat Act is retrospective

The Lahore High Court had, in an old case, held that the Shariat Act, 1937, is not retrospective in effect. In other
words, it does not affect any rights or liabilities which may have arisen before it came into force. (Roshan Ali v.
Rahmat Bibi, A.I.R. 1943 Lah. 219)

However, the Supreme Court has, in a later case, held that the words of S. 2 of the Act (see above) are mandatory,
and that the intention of the legislature is that the Act should apply to all suits, proceedings and appeals which were
pending when the Act came into operation, and not only to suits, proceedings and appeals filed after that date. (C.
Mohammed Yunus v. Syed Unissa, 1962 1 S.C.R. 67)

Changes effected by the Act

1. The Shariat Applicaion Act, 1937, provides a statutory recognition to the rule of Islam, that its law applies to all
who profess the religion of Islam. It makes Muhammadan law applicable expressly to all Muslims. After the passing
of the Act, Courts cannot refuse to apply Muhammadan law on any point, on the ground that it is opposed to justice,
equity and good conscience.

2. Secondly, the Act abrogates the customs and usages which are contrary to the rules of Muhammadan law, as
regards all matters enumerated in S. 2 of the Act. As regards these matters. the Courts cannot recognise any custom
or usage which abrogates the rules of Muhammadan law.

Customary law, as it prevailed in Punjab, Gujarat, South India and elsewhere, had been objected to on various
grounds It was said that this customary law was (i) uncertain, (ii) that its ascertainment was expensive, and (iii) that
rights granted to women under this law were inadequate and in marked contrast with fuller rights provides by
Muhammadan Law.

After the passing of the Act, a custom or usage is inapplicable, unless embodied in an enactment, and the mere fact
that it has been recognised by the Courts will not support it

The chief grievance which the Act is designed to redress is the custom altering the Muhammadam laws of intestate
succession. Thus, the Act seeks to abolish the custom of agnatic succession amongst Muslims in north India, the
custom of matriarchal succession amongst Moplas (who followed Marumakattayam law), and the custom of
succession according to Hindu law among the Khojas, Sunni Bohras, Halai Memons of Gujarat and Molesalam
Girasias of Kathiawar

Lastly, Muslim communities such as Khojas, Cutchi Memons, Bohras, Halai Memons and the like, who have
descended from the original Hindu ancestry, were, prior to the passing of the Muslim Personal Law (Shariat)
Application Act, 1937, governed by Hindu law, so far as inheritance and succession were concerned. Alter the
passing of the Act, they are not governed by Hindu Law, so far as they are affected by that Act, which makes the
Muslim Personal Law applicable to all these converts to Islam. Some provisions of the Act are coercive, i.e., they
apply whether the parties desire or not, and some provisions are only persuasive, i.e., they apply only if the parties
so desire Now all Muslims (including converts to Islam) are governed by the Muslim Personal Law, notwithstanding
any custom or usage to the contrary, in all questions except questions relating to agricultural land.

D. KHOJAS AND CUTCHI MEMONS The Khojas and Cutchi Memons were originally Hindus, being converted to
Islam nearly 500 years ago They have, however, retained certain Hindu customs in matters of inheritance and
succession, though in other matters, they are governed by Muslim law.

Hindu law of joint family not recognised

At one time. the Bombay High Court was of the opinion that the Hindu joint family system, with all its peculiar
incidents, was prevalent among the Khojas and Cutchi Memons. But after the decisions in MangaIdas v Abdul. 16
Born L.R. 224 (a Memon case) and Jan Mahomed v Datu. 38 Born 449 (a case involving Khojas), it has been firmly
established that the Hindu law of joint family is not applicable to them and a son does not acquire, by birth, any
interest in the property of his father

It has also been held in A. G. v. Jimbabai (41 Bom. 181), that the testamentary powers of Khojas and Cutchi
Memons are not restricted to one-third. as among the other Muslims, but they have acquired by custom, the power of
disposing of the whole of their property by will, and that such will is to be construed according to the rules
applicable under Hindu law

Testamentary powers of Khojas

Prior to the coming into force of the Shariat Act, 1937, Cutchi Memons, Khojas, Sunni Bohras of Gujarat and
Molesalam Girasias of Kathiawar and Broach were governed by Hindu law in matters of inheritance and succession
and therefore could dispose of the whole of the property by will Such wills were construed by the rules of Hindu law
relating to wills.

Now. S 3 of the Shariat Act gives any person belonging to one of these communities and who is a resident of India,
the option of abandoning the customary (i.e Hindu) law, and adopting Muhammadan law. If such a person exercises
this option, he will be governed by Muhammadan law by which a Muslim cannot, by will, dispose of more than one-
third of his property without the consent of his heirs. In cases governed by the Muhammadan law under the Shariat
Act, the will is to be construed by the rules of Muhammadan law relating to wills.

After the passing of the Shariat Act, 1937, all these Muslim communities are governed by strict Muslim personal
law in matters relating to intestate succession and welds created by testaments (wills). But so long as they have not
made a declaration under section 3 of the Act, they continue to be governed by rules of Hindu law on matters
relating to wills and legacies. The result is that even after the passing of the Shariat Act, a Khoja can still make a
will of the whole of his property under the customary law, and the construction of his will, except as regards
provisions regarding trusts and wakfs, will be governed by the rules of Hindu law.
Testamentary powers of Cutchi Memons

As regards Cutchi Memons, the application of customary Hindu law is now completely abrogated, by virtue of The
Cutchi Memons Act, 1938. This Act provides that Cutchi Memons shall be governed, in all matters of personal law,
by Muslim law. This Act clearly lays down that all Cutchi Memons shall, in matters of succession and inheritance,
be governed by Muhammadan law. Prior to the passing of this Act, the Shariat Act, 1937, provided that in all matters
of personal law, other than wills and legacies, Cutchi Memons are governed by strict Muslim Personal law.

Thus, the combined effect of these two Acts is to abrogate totally the application of customary Hindu law to Cutchi
Memons, who are now governed in all matters by Muslim law.

Today, the testamentary power of Cutchi Mernons is the same as that of other Muslims: in other words, a Cutchi
Memon cannot bequeath more than one-third of his property without the consent of his heirs; nor can he bequeath
his property to any one or more of his heirs. Summary of Cutchi Memons Act, 1938

The Cutchi Momons Act, 1938, is an Act to provide that all Gulch’ Memons are to be governed in matters of
succession and inheritance by the Muhammadan law The Act came into force on 1st November, 1938. S. 2 of the
Act lays down that ’subject to the provisions of S. 3, all Cutchi Memons shall, in matters of succession and
inheritance, be governed by the Muhammadan law”

Sec. 3 of the Act provides that the Act is not retrospective and it does not affect any right or liabilities acquired or
incurred before its commencement: any such legal proceeding or remedy may be continued or enforced as if this Act
had not been passed

Problem.— X, a Cutchi Memon, dies in 1940, leaving a will in which he has bequeathed half his property to his
friend V Is the will valid Would it make any difference if he died making the same in 1937

Ans. — Under the Cutchi Memons Act, 1938, a Cutchi Memon governed by Muhammadan Law in all matters of
succession and inheritance. The bequest by X in favour of Y, a stranger. is in excess of the legal one-third, and
cannot take effect, unless X’S heirs consent thereto after X’S death. If the heirs refuse their consent, the bequest will
abate.

If X had died in 1937, he would have been subject to the Muhammadan Law of wills only if he had made the
necessary declaration under S. 3 of the Shariat Act, 1937, In the absence of such a declaration, the bequest would
be valid.

E. EFFECT OF CONVERSION TO ISLAM On conversion to Islam, converts, no matter what their previous
religion may have been, must be taken, at that moment, to have renounced their former religion and personal law,
and to have substituted, in its place, the Muslim religion and so much of the personal law as necessarily flows from
that religion. (Advocate-General of Bombay v. Jimbabai. I.L.R. (1917) 41 Born. 181)

Thus. an Indian Christian domiciled in India can, after his conversion to Islam, legally contract a second marriage
with a Muslim woman while his former marriage with a Christian woman is still subsisting. (John Jiban Chandra
Datta v Abinash, I LA (1932) 2 Cal 12)

But, if the first marriage was contracted in England under English form, during as subsistence, the second marriage
would be regarded as a nullity (King v Superintendent, Registrar of Marriages. Hammer-smith. (1917) 1 KB 634)

But the conversion of a Hindu wife to Islam does not ipso facto dissolve her marriage with her husband, and she
would be guilty of bigamy if she marries again. (Mst. Nandi v Crown (1920) I.L.R. 1 Lah. 440)

In Khambatta v Khambatta [(1934) 36 Bom. L.R.)j, a Muslim married a Christian woman in the Christian form. The
wife became a convert to Islam and the husband divorced her by talak. In these circumstances the Court held that the
divorce was valid.

Problem.— Yusuf, a Muslim, marries Rita, a Christian woman, in Scotland according to lax loci (i.e. the law of
Scotland). They return to India where Rita embraces Islam. Can Yusuf divorce Rita by Talak

Ans — Y can divorce R by talak, R having embraced Islam. (See Khambatta v Khambatta, above)

The succession of property of a convert to the Muslim religion would be governed by Muslim law, and not by the
Indian Succession Act. The property. therefore, of a Hindu convert to Islam will devolve according to Muslim law

But, in all such cases, the conversion must be bona fide, and not a colorable one, i.e., not a conversion with the sole
purpose of evading the personal law to which such person is subject.

A Christian. married to a Christian wife, was co-habiting with another native Christian woman. Desirous of
marrying the second woman, and in order to escape the punishment for bigamy, both the man and the native
Christian woman declared themselves Muslims and went through a form of marriage according to Muslim law. It
was held the marriage was not valid. (Skinner v. Orde, 14, M.I.A. 309) Effect of apostasy from Islam

The effect of apostasy from Islam (i.e., conversion to some other religion), can be examined from the following
angles :

(i) Effect on succession According to the strict Muhammadan Law, difference of religion is a bar to inheritance. But,
by the application of the Freedom of Religion Act, 1850, a convert from Islam does not lose his right of inheritance.
That Act does away with the provisions of Muhammadan Law by which apostates were excluded from inheritance.

Acording to Muslim law, a Hindu cannot succeed to the estate of a Muslim. Therefore, if a Hindu, with a Hindu wife
and his children, embraces Islam, and marries a Muslim wife, his property will pass on his death to his Muslim wife,
and not to his Hindu wife and children. (Chedabaram v. Ma Nyien, I.L.R. (1928) 6 Ran. 243)

(ii) Effect on marriage If a Muslim husband renounces Islam, his marriage with his Muslim wife is dissolved ipso
facto. Such apostasy may be express (as for instance, when he says ”I hereby renounce Islam”, or ”I do not believe
in God or the Prophet Mohammad”) or by conduct (as for example, by using grossly disrespectful language towards
the Prophet).

As regards a Muslim wife, the mere renunciation of Islam by her does not ipso facto dissolve the marriage. Thus, for
example, a conversion by a Muslim wife (who was born a Muslim) into Christianity does not, by itself, dissolve her
marriage However. if the wife had been converted to Islam from some other faith, and she re-embraces her former
faith, the marriage is dissolved. Thus, in the above example, if the wife was originally a Christian who had embraced
Islam, if she re-embraces Christianity, her marriage would stand dissolved (This topic is discussed at greater length
in Chapter VI)

(iii) Effect on guardianship in marriage (The effect of apostasy on the right of guardianship in marriage is discussed
in Chapter IV, under the heading ”Guardianship in marriage”)

F. SCHOOLS OF MUHAMMADAN LAW Sunni and Shia

There are two schools of Muhammadan law, viz, the Sunni and the Shia. This division did not spring originally out
of the difference of legal or religious doctrine; rather, it was caused by a dispute which. in its origin, was wholly
political.

Muhammad, the Prophet. died in 632 A.D., without leaving any male issue, and on his death, a quarrel arose as to
the succession to the Imamate, i.e., the title of the spiritual and temporal headship of Islam. after him. One group, the
Sunnis, advocated the principle of election in choosing the Imam. The Shias, on the other hand, believe that the
Prophet had appointed Ali as his successor. Thus, the divergence between the two groups of sects was chiefly
political and dynastic. Doctrinal and legal differences began to grow only in course of time

The Sunnis base their doctrine on the entirety of the traditions, and regard the concordant decisions of the successive
Imams and of the general body of jurists as supplementing the Koranic rules and as equal in authority to them. The
Shias, on the other hand, reject, not only the decisions of the jurists, but also all traditions not handed down by Ali or
his immediate descendants i.e. those who had seen the Prophet and held discourses with him.

Sunni Sub-schools

There are four sub-schools in Sunni Law, as follows 7

(1 ) The Hanafi School, named after its founder, Imam Abu Hanifa (A.H 80-150) — The majority of Sunnis in India
are followers of this school This school places great reliance on the principles of ”qiyas” (analogical deductions)
Imam Abu Hanifa leaned heavily on qiyas, because the doctrine of hadith had not fully developed in his time. Nor
were there any recognised collections of the hadith. The two celebrated authoritative texts of this school are the
Fatava Alamgiri and the Hidaya. (The general rules for interpreting Hanafi law are discussed in Chapter III)

(2) The Malik, School, founded by Imam Malik Ibn Anas (A.H. 95- 175) — This school does not differ materially
from the Hanafi school. Imam Malik. however, placed greater reliance on systematic reasoning.

(3) The Sheaf’ School, founded by Imam Shaafi (A.H. 150-204), who perfected the doctrine of ’lima’ (or consensus
of the learned).

(4) The Hanbali School, whose founder was Imam Hanbal (NH. 164- 241), who advocated the principle of adhering
to the hadith literally. (It is believed that the followers of Imam Hanbal are almost extinct today )

Though these schools differ in detail, their basic doctrines are essentially the same.

Presumption

Unless the contrary is shown, it is to be presumed that parties to a suit or proceeding are Sunnis of the Hanafi
School.

The Calcutta High Court has observed that, in India, ”there is a presumption that the parties are Sunnis, to which a
great majority of the Mahommedans of this country belong.’ (Bafatun v. Bilaiti Khanun, (1903 30 Cal 683)

istihsan or juristic equity

It may happen that the law which is analogically deduced (qiyas), might fail to recommend itself to the jurists,
owing to its inadaptability to meet the new habits and the usages of the people, or on account of its being likely to
cause hardship and inconvenience. Abu Hanifa, a great jurist, therefore, adopted as a corrective, the concept of
”istihsan, which literally means ”approbation”, and has been translated as ”liberal construction” or ”juristic
preference”. This term was used by Tyabjee, the great jurist, to express the liberty which he assumed of laying down
such a rule of law as would meet with the exigencies of a particular case, rather than the rule that an analogy might
indicate.

Shia Sub-school

Among the Shias, different schools arose as the result of dynastic troubles, and of disputes as to the rightful Imam.

The Ithna-Asharis : They follow the ”Ithna-Ashari” law. The great majority of the Shies in India follow this
system of law. Their important text is ’Shara’ya-ul-Islam:

(2) The Islmaili : The Khojas and Bohras of Bombay belong to this school.

(3) Zaidys (They do not exist in India and are to be found mostly in South Arabia.)

The difference between Shia sub-schools is not so much in the interpretation of law as in doctrinal points.

Presumption. — As most Shias are Ithna-Asharis, the presumption is that a Shia is governed by the lthna-Ashari
exposition of the law. (Akbarally v. Mahomedally (1932) 34 Born L R 855j

Choice of schools

Every adult Muhammadan may choose any school he or she likes, and may renounce one school in favour of
another (Hayat-un-Nissa v. Muhammad, 17 I.A. 73 ) Moreover, a Sunni contracting a marriage with a Shia does not
thereby become subject to the Shia law (Nasrat v. Hamidan, I.L.R. (1882) 4 All 20)

Applicability of law of different schools

The position regarding applicability of the law of the different schools of Muhammadan law may be summed up as
follows .

(a) When the parties to a suit are Muslims of the same school, the law of that school will apply.
(b) If they do not belong to the same school, the law of the defendant will apply.
(c) If a Muslim, in good faith, changes his school of law in Islam, his personal law ordinarily changes with
immediate effect
(d) When a person, who has changed his school of law in Islam, dies, the law of succession applicable to his estate
will be the law of the school which he professed at the time of his death.
CHAPTER 3

SOURCES AND INTERPRETATION OF MUHAMMADAN LAW

The following three topics are discussed in this Chapter :

A. Fiqh
B Sources of Muhammadan law
C Interpretation of Muhammadan law.

A. FIQH The word -fiqh” literally means ”intelligence”. In Islam, fiqh is the name given to the whole science of
jurisprudence because it implies the exercise of intelliaence in deciding a point of law in the absence of a binding
command from the Koran. A faqih is thus a person skilled in law, that is, a jurist.. Islam believes that there is a
difference between knowledge and fiqh, because the latter requires both intelligence and independent judgment. A
man may be learned, but to be a faqih, he must possess the quality of independent judgment, that is the capacity to
differentiate between the ”correct” or the binding rule and of law and the ”weak or the unsupported opinions of
classical authors.

When Islamic lawyers define the term ”fiqh’, they normally stress the moral aspect of the concept. Thus,
Taftazani defines it as the soul’s cognizance of its rights and obligations. Other authors who are more imaginative
explain the concept by an interesting analogy : White is the colour of moral beauty, black the colour of moral
ugliness and grey of things which are neither beautiful nor ugly. Now, the task of the faqih, the Muslim jurist, is to
classify the immense, colourless mass of human actions and to paint them white, or black or grey. And what is the
reasoning followed by the jurist ? The answer is simple God cannot prescribe anything except that which is morally
beautiful; He cannot forbid anything but that which is morally ugly; He cannot allow anything that is, at the very
least, in-between the beautiful and the ugly. Following this reasoning, Muslim jurists have often adopted a five-fold
classification of the nature of human acts, as being (i) strictly enjoined, or (ii) simply advised, or (iii) permitted, or
(iv) unadvised, or (v) strictly forbidden.

Most authorities on Islam have thus defined fiqh in terms of its four basic components thus : ”Fiqh or the science of
Islamic law is the knowledge of ones rights and obligations derived from the Koran or the Sunna of the Prophet, or
the consensus of opinion of the learned (ijmaa) or the analogical deductions (qiyas). (All these four components are
discussed at length later in this Chapter.)

Fiqh can be divided into two parts :

(i) The Usul ( (literally meaning ’the roots of law’) which deals with Muslim jurisprudence, that is, the first
principles of Muslim law.

(ii) The Furu, which deals with substantive law or particular injunctions.

The main distinction between shariat and fiqh is that the former is a wider circle which embraces all human actions
within its fold, whereas fiqh is a narrower circle which takes in only legal acts within its ambit.

B. SOURCES OF MUHAMMADAN LAW

The following are the eight important sources of Muhammadan law :

1. The Quran (Koran)

2. The Sunnah (Sunna)
3. ljmaa
4. Qiyas
5. Customs and usages having the force of law
6. Judicial decisions (fatawas)
7. Legislation
8. Justice, equity and good conscience.

Each of these is discussed below in necessary details.

I. The Quran (Koran)

The Quran is considered by the Muslims as the basis of their law. Every word of the Quran is regarded as being the
direct utterance of the Almighty, communicated in His actual words by the angel Gabriel to the Prophet. The Prophet
recited (hence the name, Quran) the words as divinely inspired. These sayings were not collected or written down by
the Prophet himself, but by his companions immediately after his death. Authentic and well-accepted translations of
the Koran have been made by Sole in English, by Suruf Ali in Urdu, and by Du Ryer and Savory in French.

The Muslims believe that the Koran is Al-furquan, ie., one showing the truth as distinguished from falsehood, and
right from wrong The Koran runs into about 6,000 verses, but only 200 deal with legal principles, and of these, only
about 80 verses deal with the law of personal status, like inheritance, marriage and divorce. Most of the legal
principles are to be found in that part of the Koran which was revealed to the Prophet at Medina. It is interesting to
note that the portion revealed at Mecca is singularly free from legal matters, and contains mainly the philosophy of
life and religion

However, the Courts, while administering the law, are not to put their own construction, as against the interpretation
of the ancient commentators of established authority. Thus, in a case where a particular passage of the Quran was
interpreted in a particular manner both in the Hedaya (a work on the Sunni law) and in the Imamia (a work on the
Shia law). the Privy Council held that it was not open to a Judge to construe it in a different manner. (Aga Mahomed
Jaffar v. Koolsom Beebee, 1897 25 Cal 9)

One important point is to be kept in mind when interpreting the various verses of the Koran. Some of the verses are
deemed to be the abrogating (nasikh) verses, whilst others are the abrogated (mansukh) ones As a general rule, the
earlier verses are deemed to be repealed by the later ones. Leading text-books on Islamic law deal exclusively with
the question of how a rule of law is to be deduced when several Koranic verses deal with the same or similar topic,
or when one verse affects another, either directly or indirectly.

2. The Sunnah (Sunna)

The second source of law, according to Islam is the ’sunnah’,i.e. the precept of the Prophet The word sunna means
”the trodden path”; thus, it is some kind of practice or precedent of the Prophet.

Sunna is, however, to be distinguished from what Fyzee calls ‘hadith’ (referred to as hadis (singular) and ahadis
(plural) by Mulla). Hadith is the story of a particular saying or occurance; sunnah is the rule of law deduced from
the Prophet’s behaviour. These two sources, viz., the Quran and sunnah, are direct and indirect revelations, and may
be said to form fundamental roots of Islamic law.

These precepts, utterances and actions of the Prophet were not reduced to writing during his life-time; they were
preserved by tradition and handed down from authorised persons.

One of the greatest differences between the Sunnis and the Shias is that the Shies do not give credence to a hadith,
unless it emanates from the household of the Prophet, particularly from the household of Ali.

The Sunnis regard the following as the most widely recognised authentic treatises :

(a) Bukhari;
(b) Ibn-e-Majah;
(c) Abu Da,ud;
(d) Tirmidhi, and
(e) Nasa’i.

The Shias, on the other hand, rate the following as the most authentic :

(a) Al-Kafi; and

(b) Tahdhib-ul-Ahkam.

3. Ijmaa

Ijmaa i.e., consensus of the founders of the law, or of the community as expressed by the most learned members, is
another important source of Islamic law.

When a number of persons who are learned in the Muslim law and have attained the rank of jurists of some sort,
agree on a particular legal question, their opinion is binding and has the force of law. The classical view is that while
individual jurists are liable to err, the community as a whole cannot fall into error. In fact, there is a wellknown
tradition of the Prophet to the effect that ”my people will not agree in error.”

Rules deduced on the basis of Ijmaa have varying degrees of binding authority in different schools. However, all
schools are agreed that where there is consensus, there can be no disagreement thereafter. In other words, ljmaa once
established cannot be questioned.

Ijmaa must also be carefully distinguished from bidet, i.e., mere heresay or novelty, and from raj, i.e., free opinion.

4. Qiyas

The fourth important source of Muhammadan law are the Qiyas, i.e., a collection of rules or principles by the
methods of analogy end interpretation from the first three sources.

All the three sources referred to above could not suffice the growing needs of a community which had their ideas
expanded by the great territorial strides that Islam had made in the course of the century To cope with all the cases,
they had to resort to pure reasoning in order to supplement the Quran, the sunnah and the Ijmaa. for development of
the law. This new source took the form of reasoning by analogy from the other sources. This is called Qiyas.

It is said that when Mouadh was appointed the Chief Justice of Yemen, the Prophet questioned him, and Mouadh
replied as follows :

Prophet : On what shalt thou base thy decisions ?

Mouadh : On the Koran.
Prophet :If the Koran does not give guidance ?
Mouadh : Then upon the usage of the Prophet
Prophet : But if that also fails ?
Mouadh Then I shall follow my own reason.
The Prophet, it is believed, fully approved of these replies, and praised God that His Servant was on the right path.

As regards the classical texts, Justice Chagla of the Bombay High Court has sounded a warning against following
such texts slavishly (A reference may be made to the observations of the Court in Asharafalli v. Mahomedalli,
referred to under Rule III of ’Interpretation of Muhammadan Law’. below.)

5, Customs and usages having the force of law

Muhammadan law does recognise the force of custom and usages in establishing rules of law. The validity of
customary law rests on principles similar to ljmaa. As regards the customs prevalent in the time of the Prophet. his
silence as to these customs had been regarded as recognition of these customs.

Whenever the questions of the applicability of custom arises, one has to consider two questions

(i) whether the custom is proved, which is a question of fact; and

(ii) whether it is binding, which is a question of law.

Thus in the case of Abdul Hussein v. Sona Dero, (1917) 45 I.A. 10, their Lordships of the Privy Council held that it
is incumbent upon the plaintiff contending the existence of a custom, to allege and to specifically prove the custom,
and that it is of the essence of special usages, modifying the ordinary law, that it should be ancient and invariable

In India, in Punjab, and among certain communities such as the Khojas. Muslim law, on some points, was
superseded or considerably modified by customs adopted from the Hindus and sanctioned by the Legislature or
the Courts. But, in view of the Muslim Personal Law (Shariat) Application Act, 1937, it is no longer open to
Courts in India to recognise and give effect to customs derogating from rules of Muslim law in matters relating
to topics enumerated in that Act.

6. Judicial decisions (Fatawas)

The decisions of the Indian Courts and the Privy Council have considerably influenced the tenets of
Muhammadan Law.

Though not exactly a source of law, fatawas or opinions of judges (and of Mu firs) in the light of facts of the case
are important, as they have been instrumental in the development and enrichment of the principles of
Muhammadan Law. The most famous collection of Fatawas in India is Fatawa-i-Alamgiri, which was
compiled in Aurangzeb’s time.

7. Legislation

Though Muhammadan law in India is not codified, yet, some aspects of Muhammadan law have been
regulated by Acts of Legislature. The Shariat Act, 1937, the Dissolution of Muslim Marriage Act, 1939, the
Mussalman Wakf Validating Acts, 1913, and 1930, are some instances of such legislataion.

8. Justice, equity and good conscience

Where there is a conflict of opinion, and there is no specific rule to guide the Court, the Court follows that
opinion which is more in accordance with justice, equity and good conscience. (Aziz Bano V. Muhammad —
1925 47 All. 823)
Where the law analogically deduced is inadaptable to the present needs of the society or where its rigid application
would result in hardship to the public, rules of equity could be applied. Abu Hanifa. the great jurist, called this
”Istihasan’ (literally translated as ’Juristic Preference)”

C. INTERPRETATION OF MUHAMMADAN LAW

The following are the principal rules of interpretation of Muhammadan Law :

Rule I

In administering Muhammadan law, the Court should not, as a rule, attempt to put its own construction on the
Koran, in opposition to the express ruling of commentators on Islamic law of great antiquity and high authority.

As seen earlier, it has been held by the Privy Council that where a passage of the Koran was interpreted in the same
way both in the Hedaya (Sunni law) and in the Imamia (Shia law), it is not open to a Judge to put his own
construction on the Koranic text. (Aga Mohamed Jaffer v. Koolsom Bibi, (1897) 25 Cal. 9)

Likewise, no Court should examine the conformity of any traditionally settled legal principle with the relevant text
of the Koran. (Aga .Mohammed Jaffer v. Koolsom Bibi, above)

Rule II

Neither the ancient texts nor the precepts of the Prophet should be taken literally, so as to deduce from them any
new rule of law, especially, when such a rule is not conducive to substantial justice (Baqar Ali v. Anjuman, (1902) 25
All. 236)

It is interesting to note that in one case (Abdul Fata v Russomoy, (1894) 22 Cal. 619), the Privy Council,
misapplying a rule of English law to a Muhammdan wakf, held that family wakfs were void. In doing so, the Court
had departed from a long line of Muslim Jurists who had taken a contrary opinion. However, as Ryzee rightly
remarks. poetic justice was done when the Privy Council itself was overruled by the Mussalman Walf (Validating)
Act, 1913.

Rule Ill

However, the Courts should not also follow the Islamic texts slavishly As Chagla J. warned in Asharafalli v.
Mahomedalli (48 B.L.R. 842) :

”Now, there is no doubt that these ancient Muslim texts must be considered with the utmost respect. But it must also
be remembered at the same time that Muslim jurisprudence is not a static jurisprudence. It is a jurisprudence which
has grown and developed with the times, and the quotations from Muslim texts should be so applied as to suit
modern circumstances and conditions. It is also dangerous to pick out illustrations wrenched from their context, and
apply them literally.’

Rule, IV

No Court should, in any way, circumvent or deviate from the law as settled by the jurists of the past, even if it does
not sound ”modern’ or ’just’ or ’logical” As observed by the Madras High Court (in Veerankutty v Kutty Umma
(1956) Mad 1004) :
We have, therefore, to administer, without in any way circumventing or deviating from the original texts, the law, as
promulgated by the Islamic law-givers, to suit the present-day conditions, and in doing so, it has to be remembered
that Courts are not at liberty to refuse to administer any portion of those tenets, even though in certain respects, they
may not sound quite modern.”

Rule V

As regards interpretation of Hanafi law, the following rules of Interpretation are to be applied :

(a) If there is any difference of opinion between Abu Hanifa, the founder of the Hanafi school, and his two disciples,
Abu Yusuf and Imam Muhammad, the opinion of the disciples, prevail. (Ebrahim Alibhai v. Bai Asi, (1934) I L.R.
58 Born. 254)

(b) If there is any difference of opinion between Abu Hanifa and Imam Muhammad, that opinion which coincides
with the opinion of Abu Yusuf is to be accepted.

(c) If there is a difference of opinion between the disciples, the view of Abu Yusuf will prevail. (Abdul Kadir v.
Salima, (1886) I.L.R. 8 All. 149)

(d) When there is a conflict of opinion, and there is no specific rule to guide the Court, the Court will follow that
opinion which is in accordance with justice, equity and good conscience. (Aziz Bano v. Muhammad (1925) I.L.R.
47 All. 823)
CHAPTER 4

MARRIAGE

The following topics are discussed in this Chapter :

A. Nature and essentials of a Muslim marriage

1. Proposal and acceptance

2. Capacity to contract marriage
3. Absence of impediments

B. General Topics

1. Muta marriage
2. Breach of promise to marry
3. Jactitation of marriage
4. Concubinage under Muhammadan Law
5. Presumption of marriage under Muhammadan Law
6. Suit for restitution of conjugal rights
7. Suit for enticing away a wife
8. The Kazi : His functions and powers
9. The ”Model Nikahnama”

A. NATURE AND ESSENTIALS OF A MUSLIM MARRIAGE

According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is to legalise sexual
intercourse and the procreation of children. This statement is, however, sometimes so overstressed, that the real
nature of marriage is obscured, and it is forgotten that it has other important aspects as well, both social and
religious.

One would do well to remember that marriage is recognised in Islam as the basis of society It is no doubt a contract,
but it is also a sacred covenant. The Prophet once delivered a sermon on marriage, and to this day, it is repeated
(with a few variations) at Muslim marriages, as it contains a lot of practical advice and many noble sentiments.

As observed by Sir Shah Muhammad Sulaiman, C.J (in Anis Begam v. Muhammad 1stafa, (1933) 55 All. 743)

”It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a
marriage is not regarded as a mere civil contract, but as a religious sacrament.” To constitute a valid marriage, no
formality is required. nor is any religious ceremony necessary. The usual conditions necessary to constitute a valid
contract are also necessary to constitute a contract of marriage. Thus, the parties must be of sound mind and they
must not be within prohibited degrees of relationship. Lunatics and minors who have not attained the age of puberty
(i.e., completion of the 15th year) may be validly contracted in marriage by their respective guardians. In the
case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian has
consented to it.

The three essentials of a Muslim marriage are :

1 Proposal and acceptance
2. Capacity to contract marriage
3 Absence of any impediment.

Each of these is discussed below in necessary details.

1. PROPOSAL AND ACCEPTANCE There should be a proposal (ijab) and an acceptance (qubul) of the proposal.
both of which must be expressed at one meeting and in the presence of two male or one male and two female
witnesses. It is important both the proposal and acceptance must be expressed at one meeting. a proposal made at
one meeting and an acceptance made at another meeting do not constitute a valid marriage. The usual form of
proposal is “I have married myself to you”, and that of acceptance is l have consented”. (Hedaya, 25)

Sir Ronald Wilson, in his Digest on Anglo-Mohammadan Law, observes as under .

’Words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other’s
presence and hearing, and in the presence of two male, or one male and two female witnesses, who must be sane and
adult Muslims; and the whole transaction must be completed at one meeting.”

The above passage has been quoted with approval in several Indian cases, as for instance, in Aklemannessa v. Mohd.
Halem (8 C.W.N., 705) and Sahabi, Bibi v Kumaruddin (15 C W.N., 991)

The following illustrations will help to clarify what has been stated above

(1) H says in the presence of two male witnesses, M and N ”I have married myself to W”, who is absent. On the
information reaching W she says ”I have accepted:’ This does not constitute a lawful marriage, even though M and
N are present when W accepts.

(2) H sends a messenger, or writes a letter to W offering her marriage. W receives the messenger, and reads the letter
in the presence of two male witnesses, and declares her acceptance of the offer, in their presence. This constitutes a
lawful marriage.

(3) H appoints A as his agent for marriage; A contracts a marriage on behalf of H with a woman. Then, there is doubt
as to whether H was married to W, or to some other woman, but H and W both say and believe that they were
married. The marriage between H and W is established.

In the above cases, it will be seen that, in illustration (1), one does not find a proposal and an acceptance at one and
the same meeting; hence, it is not valid. In illustration (2), there is a valid proposal and acceptance of the proposal
in the presence of two witnesses, and thus it constitutes a lawful marriage. In illustration (3), an acknowledgement is
presumptive proof of marriage.

From the illustrations given above, it will be seen that, to constitute a marriage among Muslims, no particular
ceremonies are required. The question of marriage is one of fact. The fact of the marriage may be proved by direct
evidence, by calling witnesses present at the time, or by producing the nikahnama signed by the parties. It may also
be proved by indirect evidence raising a presumption of marriage Such a presumption does not arise merely from the
fact of some years of cohabitation. It must be proved that man treated the woman as his wife, and recognised her as
such, not merely casually, but with the intention and knowledge of giving her the status of a wife. (Roshanbi v.
Suleman, 49 Bom. L.R. 328)

Neither writing nor any religious ceremony is essential for a valid Muslim marriage. The presence of witnesses,
however, is nothing more than a mere matter of evidence, for a marriage without witnesses is fasid (irregular) only,
and not batil (void); in fact, in Shia law, the presence of witnesses is not even necessary
No particular form of proposal or acceptance is prescribed by Muhammadan Law. As observed in Bashiron v. Mohd.
Hussain (AIR 1941 Oudh, 284),...

”Evidence that the wife gave her consent to the marriage and the husband agreed to the dower constitutes
sufficient proposal and acceptance.”

Consent obtained by fraud or force

Under the Muslim law, therefore, if consent to a contract of marriage is obtained by force or fraud or the marriage
is celebrated under compulsion, such marriage is invalid, unless ratified.

Mohiuddin v. Khatijabibi, 41 Bom L.A. 1020 - M. a Shaafi Mussalman, has four wives, by one of whom he had a
daughter K. This wife was not on good terms with M, and was living along with K at her brother’s place in a
different village. K had attained puberty Thereafter, M arranged her marriage with S, a Shaafi male K did not
approve the match, and in order to have the marriage prevented, lodged information with the Police. The marriage
was, however, performed by her father against her wishes. It was held that the marriage was invalid, both because it
was without the consent of, and against the wishes of, K, who was an adult virgin, and also because it was
celebrated under compulsion.

Kulsum& v. Abdul Kadir, I.L.R. (1924) 45 Bom. 151.- The plaintiff, a Muslim woman, was duly married to the
defendant. She was pregnant, a fact of which her husband was not aware Five months later, she delivered a fully
developed child The marriage was consummated. The plaintiff sued her husband for recovery of her dower. The
Court held that the husband was liable and the concealment of pregnancy by the plaintiff did not render the
marriage invalid.

2. CAPACITY TO CONTRACT MARRIAGE

The parties to the marriage should have either

(i) the capacity to marry or
(ii) the capacity to be married.

Persons who are not of sound mind, or who have not attained puberty, can be contracted in marriage by their
respective guardians.

Capacity to marry

Under Muhammadan law. every Muslim who is of sound mind and who has attained puberty, has the capacity to
marry.

Age of majority

Under Muhammadan law, majority is attained at puberty It is to be noted that the provisions of the Indian Majority
Act, 1875, do not apply to matters relating to marriage, dower and divorce. Thus, a Muslim becomes competent to
enter into a contract of marriage when, being of sound mind. he (or she) attains puberty, even if he (or she) is under
eighteen years of age. Under the Muhammadan law, in the matters of marriage, dower and divorce, puberty and
majority are one and the same

Puberty defined
Under the Hanafi law, puberty in a minor of either sex, is presumed to have been attained on completion of the
fifteenth year. In the case of a Shia female, the age of puberty begins with menstruation.

Puberty means the period of life at which persons become capable of begetting or bearing children. Puberty in the
female usually commences at the thirteenth or fourteenth year in India. The Hedaya had laid down that the earliest
period for a boy is twelve years, and that for a girl nine years. It has been held by their Lordships of the Privy
Council. with reference to a girl in a case under the Shia law, that the age of puberty is nine. (See Sadiq Ali Khan v.
Jai Kishor. 30 Bom. L.R. 1346 (1350) PC.) But, under the Muhammadan law, as stated above, puberty is presumed,
in the absence of evidence, on the completion of the age of fifteen years

It should be noted that the Indian Majority Act has left entirely untouched the Muslim law of marriage, so that a
person, though a minor under the Act, can contract a valid marriage, it he or she has attained puberty. As an indirect
result of the Child Marriage Restraint Act, 1929, marriage of males under 21 and females under 18 are now
prohibited. But this Act does not render such marriage void. It is merely a punitive Act, and lays down certain
punishments for a breach of its provisions.

Proof of age

The question of age is a question of fact. Even if a birth certificate is not produced, age can be proved from other
evidence.

Capacity to be married

Under Muhammadan law, every person is capable of being married. although only a person who has attained
puberty and who is of sound mind can contract marriage. A minor or a lunatic, as stated above, may be contracted in
marriage by his or her guardian for marriage.

Guardianship In marriage (Jabar)

A Muslim child of either sex who has not attained the age of puberty is incompetent to contract a marriage. A
marriage contracted by a minor is a nullity. But a minor (i.e., any one who has not attained the age of puberty) can
be validly contracted in marriage by his or her guardian. The order of guardianship for the purpose of marriage is as
follows :

(i) father;
(ii) paternal grandfather, how highsoever:
(iii) brother and other paternal relatives, in the same order as for inheritance;
(iv) mother:
(v) other maternal relations within the prohibited degrees; — and failing all these.
(iv) the Government.

Shia law. — The only guardians recognised by the Shia law are the father and the paternal grandfather, how
highsoever. A marriage brought about by a person other than the father or a grandfather is wholly ineffective, unless
it is ratified by the minor on attaining majority.

Effect of apostasy on the right of guardianship

According to the strict Muhammadan law, an apostate (i.e.. a person who has renounced the Muslim religion) has no
right to contract his infant Muslim daughter, into marriage with another But this rule of Muhammadan law has been
abrogated by the Freedom of Religion Act, 1950, according to which no law or usage can inflict on any person who
renounces his religion, any forfeiture of rights or property The power to contract a minor in marriage is a ”right’
within the meaning of the Act, and it is not forfeited by conversion from Islam (Gul Muhammad v. Mussammat
Wazir: (1901) 36 P R. 191)

Option of puberty (Khyar-ul-bulugh)

As stated above, a Muslim minor can be contracted in marriage by his or her guardian. But in such a case, the minor
may choose, on attaining puberty, either to ratify the marriage, or to repudiate it. This option is called the ”option of
puberty”. The option of puberty is one of the safeguards by which Islam alleviates the incidence of pre-Islamic
institutions pressing harshly against women and children.

Under the traditional Muslim law, when the minor’s marriage is contracted by the father or paternal grandfathr; it is
valid and binding upon the minor. It cannot be repudiated, unless it is shown that the father or the father’s father, as
the case may be, has acted wickedly or heedlessly or for the manifest disadvantage of the minor.

The above principle of Muhammadan law is now altogether revolutionised by the Dissolution of Muslim Marriages
Act, 1939 By virtue of this Act, all restrictions on the option of puberty in the case of a minor girl whose marriage
has been arranged by a father or grandfather have been abolished, and under S. 2 (vii) of the Act, a wife is entitled to
the dissolution of her marriage if she proves the following facts, viz—

(a) that she was given in marriage by her father or other guardian;
(b) that the marriage has not been consummated (i.e. the marriage has not been ’completed’ by sexual intercourse
between the husband and the wife) :
(c) that the marriage took place before she attained the age of fifteen years. and
(d) that she has repudiated the marriage before attaining the age of eighteen years

Where, however, the marriage is contracted by any other guardian, the minor has the option to repudiating the
marriage on attaining puberty without specifying any reasons for doing so.

Shia law. — According to Shia law, a marriage brought about by a person other than a father or grandfather is
wholly ineffective until it is ratified by the minor on attaining puberty Option when to be exercised

It may be noted that the option of puberty (khyar-ul-bulugh) must be exercised —

(I) by the wife, — immediately on attaining puberty and being informed of the marriage and of her right to repudiate
it;
(ii) by the husband, — at any time before he ratifies the marriage, either by payment of the dower or by
cohabitation; otherwise, the right to repudiate the marriage is lost.

The High Court of Allahabad has held that a Shia girl given in marriage by her father to a Sunni husband, has an
option of repudiation on attaining puberty, unless the marriage has been ratified by consummation or otherwise. the
reason given being that it would be contrary to all rules of equity or justice to force such a marriage on her, if on
attaining puberty, she considers the marriage to be repugnant to her religious sentiments (Aziz Bano v Muhammad —
1925 47 All. 823)

Following the above case, the Chief Court of Karachi has held that a wife is entitled to repudiate a marriage if the
husband has been convicted for theft and is also charged with enticing away or detaining a married woman with a
criminal intent. (Zubeda Begam v. Vazir Mahomed-1940 190 I.C. 94)

Confirmation by the Court

There is a conflict of judicial opinion on whether the repudiation of marriage on attaining puberty ipso facto
dissolves the marriage or whether the dissolution must be confirmed by a Civil Court. The High Court of Lahore has
held that a decree of a Court is not necessary to invalidate a marriage which has thus been repudiated by the wife,
and later decisions of the same Court (now in Pakistan) have confirmed that the exercise of the opinion of puberty
puts an end to the marriage, without the aid of any Court. The Calcutta High Court has, however, held that, although
no decree is required to confirm the repudiation, an order of the Judge is necessary, and the High Court of Madhya
Pradesh has approved the view taken by the Calcutta High Court.

Effect of Khyar-ul-bulugh

The effect of the exercise of the opinion of puberty is that the marriage ceases to be a marriage, and must be treated
as having never taken place. But in the meantime, the parties remain husband and wife for the purposes of
inheritance, which means that if either of them dies, the other will inherit from him or her in the capacity of wife or
husband, as the case may be.

3. ABSENCE OF IMPEDIMENTS

The third essential of a Muslim marriage is that there should be no impediment or prohibition to the marriage of the
parties. Such impediments are of two kinds (a) absolute. i.e., those which prohibit a marriage and render it void
(batil); and (b) relative, ie. those which do not impose an absolute prohibition, so that a marriage contracted in spite
of them is merely invalid or irregular (fasid), but not void.

(A) ABSOLUTE PROHIBITIONS

The absolute prohibitions are four in number, namely :

(i) Polyandry
(ii) Consanguinity
(iii) Affinity
(iv) Fosterage

(I) Polyandry

A married woman cannot contract a second marriage during the subsistence of the first marriage. Muslim law
forbids polyandry, although it recognises polygamy to the extent that a Muslim may have as many as four wives at a
time. A marriage with a woman, whose husband is alive and who has not been divorced by him, is void.

Under Muslim law, a wife cannot have more than one husband at a time, whereas as, stated above, the male is at
liberty to have as many as four wives at a time. A Muslim marriage, therefore, would not be a valid marriage under
English law.

A Muslim Nawab, having other wives, married an English woman in the Muslim form. The English Court refused to
recognise the marriage. The marriage was a Muslim marriage, and by consequence. a polygamous marriage, and not
intended to be monogamous Even if the ceremony were according to the English law, it is not a marriage binding on
any spouse of English domicile, the reason being that it was not intended to be monogamous.” (Re Ullee the Nawab
Nizam of Bengal’s Infants, 54 LT. 286)
But, where a Muslim marries, in England. a Christian woman according to the Christian rites, all the rights and
obligations springing from the marriage relationship will be governed by English law

Thus, where a Muslim in India married an English woman domiciled in England, according to the English form
before a Registrar, the King’s Bench Division of the High Court of Justice held that the husband could not divorce
his wife by merely handing to her a talaknama, (a writing of divorce), although that would be an appropriate mode
of effecting a divorce according to Muslim law. (Rex. v Hammersmith, (1917) 1 KB 634)

Khambatta v. Khambatta, 36 Bom. L.R. 1021. — J, a Christian woman, domiciled in Scotland, married G, a
Muslim domiciled in India, by civil marriage in Scotland according to the requirements of Scottish law. After the
marriage, the parties became domiciled in India, and J embraced Islam Some time later, G divorced J by
pronouncing talak under Muslim law, J thereafter contracted a second marriage with K, a Parsi convert to
Christianity. A question having arisen whether the marriage between J and G was validly dissolved by the talak
given by G. the Bombay High Court. applying the principle mentioned above, held that. in the absence of any
express contract, the intention of the parties to the marriage must be taken to be that their rights under the marriage
contract were to be governed by the law of their domicile, that is the law of India As soon as J embraced Islam, the
law applicable to Christians ceased to be applicable to her, and she became subject to the law applicable to Muslims,
which entitled the husband to divorce her by talak The spouses, having been, at the date of the talak, of Islamic faith
and domiciled in India, the Court was bound to recognise that the husband had the right to divorce his wife by talak,
and that the marriage had been legally dissolved.

(II) Consanguinity

The second prohibition is that of consanguinity Thus, no valid marriage can be contracted with the (i) ascendants
e.g., mother or grand-mother. how highsoever, (ii) descendants, e.g., daughter or granddaughter. how lowsoever.
(iii) relations of the second rank, e.g., brothers or sisters and their descendants: and (iv) paternal and maternal uncles
and aunts, how highsoever These are the restrictions laid down on marriage by the Muhammandan law on the
ground of consuanguinity. A marriage with a woman prohibited by reason of consanguinity is altogether void (bats°.

(Iii) Affinity

The third prohibition is on the ground of affinity. Thus, a man cannot contract a valid marriage with (i) his wife’s
mother or grand-mother, how highsoever, (ii) his wife’s daughter or grand daughter, how lowsoever, if his marriage
with the wife is consummated,’ (e) his father’s wife or any other ascendant’s wife; and (iv) his son’s or any other
lineal descendant’s wife. A marriage which is prohibited by reason of affinity is also void.

(iv) Fosterage

Fosterage is as much a prohibition to marriage as consanguinity, because the act of suckling is regarded as equal to
the act of procreation. Thus, whoever is prohibited by consanguinity or affinity is also prohibited by reason of
fosterage, except certain foster relations, as for example. a sister’s foster-mother or a foster-father’s mother with
whom a valid marriage can be contracted. A marriage which is prohibited by reason of fosterage is totally void.

(B) RELATIVE PROHIBITIONS

Relative prohibitions are five :

(1) Marrying a fifth wife

A marriage with a fifth wife by a person having four wives is invalid.

However, this impediment may be removed by the simple solution of divorcing one of the wives !

(2) Absence of proper witnesses

A marriage contracted in the absence of witnesses is invalid by Sunni law. The defect is regarded as arising from
accidental circumstances, and can be remedied by subsequent confirmation in the presence of witnesses.

Under the Shia law, as observed above, the presence of witnesses is not necessary. Consequently, the question of
this impediment does not arise under the Shia law.

(3) Difference of religion

According to the Shia law, in order to constitute a valid marriage, both the spouses must be Muslims If either of
them is a non-Muslim, the marriage is unlawful. But a Muslim male may contract a valid mute marriage with a
kitabia or with a fire-worshipper.

(A Kitabia means a female who believes in Christianity or Judaism.) However, under the Sunni law, —

(i) a Muslim male can validly marry, not only a Muslim woman, but also a Kitabia. If he marries an idolatress or
fire-worshipper, the marriage is not altogether void; it is merely irregular. The irregularity can be removed on the
bride embracing Islam, or becoming a Kitabia. (ii) a Muslim female can validly marry a Muslim alone.

If she marries a non-Muslim, the marriage is void. Needless to say, a Sunni male may contract a valid marriage
with a Shia female, and also vice-versa.

(4) Unlawful conjunction

A Muslim is forbidden to have two wives tit the same time, so related to each other, that if either of them had been a
male, they would have been prohibited from marrying each other, (as for instance, two sisters). This impediment is
known as unlawful conjunction. Nature of marriage with wife’s sister

It is true that the Quran does prohibit a man from marrying his wife’s sister during the wife’s lifetime; but this
prohibition in the Quran has never been read as declaring the children of such a marriage to be illegitimate. No
writer on Muhammadan law has suggested that in the case of an invalid marriage, as opposed to a void marriage, the
children are illegetimate. Where a Muslim marries a person contrary to law, and it is not possible. in any set of
circumstances, for that union to become regular, the issues would not be legitimate. Marriage with the wife’s sister
may be against the law when it is contracted, but it is capable of becoming a valid marriage on the divorce or death
of the wife. The children of such a marriage are, therefore, legitimate : Rahiman Bibi v Mahboob Bibi I.L.R. 41
Born. 845.

However, according to the Calcutta High Court, such a marriage is void, and the issues are illegtimate. (Aziunnissa
v. Karimunnisa, (1897) It R 23 Ca: 130) The Calcutta High Court’s view, however, does not appear to be correct

(5) Woman undergoing iddat

A marriage with a woman undergoing iddat of her previous marriage is not void, but irregular (fasid).
Definition of Iddat

lddat is a period of chastity which a Muslim woman is bound to observe after the dissolution of her marriage by the
death of her husband or by divorce, before she can lawfully marry again. This is a period of continence imposed on
the woman on the termination of marriage in the interest of certainty of paternity. The abstinence is imposed on her
to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage This is a period by the
completion of which a new marriage is rendered lawful. The primary object of lddat is to impose a restraint on the
marriage of the wife for a certain time.

To take an illustration, if X has four wives, A, B, C and D, and he divorces A after consummation of the marriage
with her, A is not permitted to marry another husband during the period of her iddat.

Duration of lddat

lddat of death Iddat of death lasts –

(a) in the case of a woman who is pregnant at that time, — for four months and ten days, or until delivery,
whichever period is longer; and
(b) in the other cases, — for four months and ten days.

The Iddat of death commences from the date of the husband’s death. If the information of the husband’s death
does not reach the wife until after the expiration of the period of iddat, she is not bound to observe bridal. If the
marriage is dissolved by death, the wife is bound to observe the period of iddat, whether the marriage was
consummated or not.

(ii) Iddat of divorce

Iddat of divorce lasts for three menstrual periods. If the divorced wife is not subject to menstruation for any reason
other than gestation, the period of iddat lasts for three lunar months. If she is pregnant at the time, the iddat lasts
until delivery, irrespective of whether the period is shorter or longer than three months.

The iddat of divorce commences from the date of divorce. If, however, the information of divorce does not reach the
wife until after the expiration of the period of iddat, she is not bound to observe iddat of divorce, and she is free
to marry immediately.
In the case of an irregular (fasid) marriage, if the marriage is consummated, the duration of iddat, on divorce, is
three months.

Under the Muslim Woman (Protection of Rights on Divorce) Act, 1986, the ‘Iddat’ period, with reference to a
divorced woman, is defined to be:

(a) three menstrual courses after the divorce, — if she is subject to menstruation;

(b) three lunar months after her divorce, — if she is not subject to menstruation; and

(c) if she is enceinte (pregnant) at the time of the divorce, the period between the divorce and the delivery of the
child, or the termination of the pregnancy, whichever is earlier.

Wife’s rights during iddat

1. The wife is entitled to lodging in the husband’s house during hider.
2. She is also entitled to maintenance during the iddat of divorce.

Khilwat-us-Sahiha (Valid retirement)

When the husband and wife are alone together under circumstances which present no legal, moral and physical
impediment to martial intercourse, they are said to be in ”valid retirement (Khilwatus-sahiha). A valid retirement
under Sunni law has the same legal effect as actual consummation as regards dower, the establishment of paternity,
the observance of ‘iddat’, the bar of marriage with the wife’s sister, and the bar of subsequent marriage However, it
does not have the same effect as actual consummation as regards the bar of marriage with the wife’s daughter or
the bar of remarriage between divorcees

Miscellaneous prohibitions

In addition to the regular prohibition to marry the following throe minor prohibitions must also be borne in mind

1. Doctrine of Equality in Marriage. — The Hanafis hold that equality between the two parties is a necessary
condition in marriage, and an ill-assorted or a runaway marriage is liable to be set aside Such a marriage is called
kifa’a. The true position of a kifa’a is that there is no legal prohibition to contract such a marriage, but the kazi is
allowed to rescind the marriage under certain circumstances Ameer Ali illustrates this by saying that if a minor girl
were to contract a runaway marriage with a servant of the family, the marriage would be annulled on the application
of the guardian.

It must be noted, however, that this prohibition applies only to the woman; in other words, the husband must be the
equal of the woman in social status. There is no corresponding provision that the man should marry a woman of his
equal status for, by marriage he was presumed to raise her to his own position

2. Illicit intercourse and undue familiarity — If a person has illicit intercourse with a woman or commits acts of
undue familiarity, some of the woman’s relations are forbidden to him.

3. Pilgrimage. — In Shiite and Shaafi law, a man who has come within the sacred precincts of the Ka’ba and put on
a pilgrim’s dress, may not enter into a contract of marriage while on the pilgrimage.

Difference between void (batil) and invalid (fasid) marriages

In Muslim law, marriages are of three kinds

(i) Sahih i.e. true, which is a completed valid contract:

(ii) batil i.e. bad in its foundation, and one which is a completely

void agreement: and

(iii) fasid i. e. irregular, or one which is good in its foundation. but unlawful in its attributes. In the bath and fasid
kinds of marriages there are no mutual rights of inheritance between husband and wife.

In Muhammadan law, marriages that are not valid may be either irregular (also sometimes referred to as invalid) or
void. This distinction is peculiar to Sunni law alone. Under Shia law, marriage is either valid or void Marriages that
are irregular under Sunni law are void according to Shia law
The following are the three important points of difference between a void (batil) and an invalid (fasid) marriage :

1. As to definitions

A batil marriage is altogether illegal, and does not create any civil rights and obligations between the parties. In
such cases, there is neither dower, nor iddat. nor legitimacy of the children. Thus, a marriage which is prohibited on
the ground of consanguinity affinity or fosterage, is void, the prohibition against such a marriage being
unconditional and absolute. Similarly, a marriage with a woman who is the lawful wife of another is void.

An irregular (fasid) marriage, on the other hand, is good in its foundation, but unlawful in its attributes because of
the lack of some formality or the existence of some impediment. The lack of formality may subsequently be made
up, or the impediment may subsequently be removed. In other words, such a marriage is not unlawful in itself. Thus,
in a marriage —

(i) without witnesses, — the irregularity arises from accidental circumstances, and may be removed by a subsequent
acknowledgement, express or implied, before sufficient witnesses
(ii) without the guardian’s consent, — the objection may be removed if the guardian subsequently ratifies it.
(iii) with a fifth wife, — the impediment may be removed by the husband divorcing one of his earlier four wives.
(iv) with a woman undergoing iddat, — the impediment ceases on the expiration of the period of iddat.
(v) with an idolator or fire-worshipper, — the impediment may be removed if the woman is converted to Islam.
(vi) with a woman so related to the wife that if one of them had been a male, they could not have lawfully inter-
married, — this impediment may be removed by the man divorcing the wife who constitutes the obstacle. Thus, if a
man who has already married one sister, marries another, he can divorce the first, and thus regularise the second
marriage.

[All these are instances of invalid (fasid) marriages )

2. As to their legal effect

The effect of a batil marriage is that it creates no civil rights or obligations between the parties, but after
consummation, the wife becomes entitled to customary dower only

A fasid marriage has no legal effect before consummation. Even after consummation, the husband and wife have no
mutual rights of inheritance between themselves, but the issues of such a marriage are legitimate. If consummation
has taken place, the wife is
(i) entitled to dower, proper or specified, whichever is less; and
(ii) bound to observe iddat.

3. As to issues of the marriage

The issues of a void (batil) marriage are illegitimate; those of a fasid marriage are legitimate.

LEGAL INCIDENTS OF A VALID MUSLIM MARRIAGE

A valid Muslim marriage confers upon the wife the rights of —
(i)Dower:
(ii) Maintenance;
(iii) Suitable matrimonial residence.
(iv) Equal affection and impartially, if she has a co-wife, and
(v) Right to the society, and up-bringing of her infant children, even in case of a divorce.
A Muslim marriage imposes upon the wife the obligations —
(i) to be faithful and obedient to her husband;
(ii) to admit him to sexual intercourse, due regard being had to health and decency.
(iii) to suckle her own children, if the husband cannot afford a wet nurse, and
(iv) to observe iddat.

A Muslim marriage creates between the parties prohibited degrees of relationship and reciprocal rights of
inheritance. It also confers on both the parties the right to marital confidence But the husband acquires no rights
over his wife’s property

Differences between Sunni and Shia Laws of Marriage

1. Under the Sunni taw, 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 did 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 taw recognises only the father and the paternal grand-lather, how
highsoever. Under the Sunni law, the list of guardians also includes the brother, mother etc. (See above )

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. (See below.)

Muslim marrying under the Special Marriage Act

If two Muslims marry under the Special Marriage Act, 1954, they would be governed by the law laid down in that
Act, and not by the provisions contained in this Chapter.

B. GENERAL TOPICS

1. Muta marriage

Definition The word ’Muta’ literally means enjoyment or use. In its legal context, it means a temporary marriage,
i.e., a marriage, whose duration is fixed by an agreement between the parties.

The institutions of muta marriages was quite common both before and at the time of the Prophet It now appears
that, initially, this custom was tolerated by the Prophet, but finally, he declared such unions as unlawful.

Of the four major schools of Muslim law in India, this ancient Arabian custom of muta marriage is not recognised
by three schools, namely the Hanafi, the Shafei and the Ismaili schools. It is only Ithna Ashari (Shia) school that
recognises such a type of marriage. The followers of this school constitute very small section of Muslims in India,
and even amongst them, the institution is almost obsolete, with the result that muta is now acceptable to a very
microscopic minority of Muslims in India.

Under the Sunni law, a marriage contract should not be restricted in its duration, and the words used at the
time of proposal and acceptance must denote an immediate and permanent union. But the Ithna Ashari (Shia)
law recognises two kinds of marriages, one permanent, and the other temporary or muta. A muta marriage may
be for a day, a month, a year or a number of years. But it is essential to the validity of a muta marriage that (1)
the period for which the relationship is to last should be fixed at the time when the muta marriage is
contracted; and (2) some dower should be specified in the contract. If the term of cohabitation is not specified,
but the dower is fixed, the contract would be void as a muta, although it may operate as a permanent marriage; but
in the converse case, that is, if the term is specified, but the dower is not fixed, the contract would be void.

A Shia male may contract a muta marriage with a woman professing the Muslim, the Christian or the Jewish
religion, or even with a fire-worshipper, but not with a woman following any other religion. A Shia female can
contract a muta marriage only with a Muslim.

Its characteristics

The important characteristics of a mute marriage are :

1. The period of cohabitation must be fixed: if it is not fixed, the contract would be valid as a permanent marriage,
but void as a muta marriage. The contract comes to an end at the termination of the fixed period, unless it is renewed
by the consent of both the parties

2. Some dower must be fixed; if it is not fixed, the contract is void.

3. A Shia male can contract a mute marriage with a kitabia’ or with a fire-worshipper. But a Shia woman cannot
contract a muta marriage with a non-Muslim.

Its incidents

The legal incidents of a muta marriage are as follows

1. It does not confer on the wife or husband, mutual rights of inheritance: but children conceived, while it exists, are
legitimate and capable of inheriting from both the parents. (Shoharat v Jafri Bibi. 17 Bom. L. R. 13 PC.)

2. Where cohabitation originates in a muta marriage. but there is no evidence as to the original term for which the
muta marriage was contracted, or the cohabitation continues after the fixed period expires, the proper inference is
that the muta marriage continued during the whole period of cohabitation, and the children conceived during such
period are legitimate.

3. If the muta marriage is not consummated [i e completed by sexual intercourse) — the wife is entitled to half the
dower

4. If the marriage is consummated— the wife is entitled to full dower, even if the husband puts an end to the
marriage before the expiry of the fixed term by ”making a gift of the term” to her (See below)

5. If the wife leaves the husband before the expiry of the fixed term, she is entitled to proportionate dower only

6. A muta marriage does not entitle the wife to maintenance under her personal (Shia Muhammadan) law. But, it has
been held that she is entitled to maintenance as a wife under the provisions of the Criminal Procedure Code Luddun
v Mirza, (1882) I L R Cal. 736 [This decision is of doubtful authority in as much as a Sharaya-ul-Islam says - the
name of a wife does not, in reality, apply to a woman contracted in Muta : Baillie, II, 344.]

7. The number of wives is not restricted to four, as in the case of permanent marriage (nikah). Thus, a Shia male
may contract muta marriage with any number of women.

8 A muta marriage is dissolved ipso facto by the expiry of the fixed term It may be noted that no right of divorce is
recognised in the case of such a marriage, although as stated earlier, the husband can, at his will put an end to the
marriage, even before the expiry of the fixed term, by ”making a gift of the term” to her.

How dissolved
A muta marriage is dissolved—
(a) automatically by the expiry of the fixed term; or
(b) at any time, by the husband ’making a gift of the term” (hibai-muddat) to the wife, even before the expiry of the
fixed term.

2. Breach of promise to marry

According to Muhammadan law, unless the contract of marriage is completed, no rights and obligations arise.
Therefore, a suit to recover damages for breach of promise of marriage is strictly impossible. The only relief that
can be asked for, if an engagement is broken, is merely the return of presents, money, ornaments, clothes and other
things. (Abdul Razak v Mohammed, (1918) I.L.R. 42 Rom. 499)

3. Jactitation of marriage

Jactitation means a false pretence of being married to another, According to Muhammadan law, a suit will lie
between Muslims for jactitation of a marriage When a woman falsely pretends to be the wife of a man, the man has
a right to silence her through a suit in a Civil Court.

As the Allahabad High Court once observed, ’There can be no doubt that unless a man is entitled, by means of the
Civil Courts, to put to silence, a woman who falsely claims to be his wife. the man and others may suffer
considerable hardship, and his heirs may be harassed by false claims after his death.” (Mir Azmat Ali v. Mahmudul-
nissa. 1897 20 All. 96)

4. Concubinage under Muhammadan law

Under Muhammadan law, concubinage was regarded as unlawful. But marriage may be interred from
circumstances like long, continued cohabitation between the parties, which will raise a presumption of marriage.
Mere cohabitation will not be sufficient to raise a presumption of marriage, unless (a) it, has been a cohabitation as
husband and wife; and (b) there has been conduct amounting to acknowledgement of the legitimacy of the child
born after cohabitation. As a mere concubine, a woman has no status in Muhammadan law.

5. Presumption of marriage under Muhammadan Law

In the absence of a direct proof, a marriage will be presumed in the following three cases :

(a) When there is a prolonged and continuous cohabitation between the parties as husband and wife.
(b) When a man acknowledges —
(i) the paternity of a child born to the woman, provided all conditions of a valid acknowledgement are fulfilled: or
(ii) the woman as his wife.
(c) A marriage without direct proof may also be inferred from circumstances. Mere cohabitation will not be
sufficient for such a presumption. Rather, —
(i) the cohabitation must be as husband and wife; and
(ii) the man must have treated the woman as his wife, and recognised her as such, with the intention and knowledge
of giving her the status of his wife.

The presumption of marriage does not apply if the conduct of the parties is inconsistent with the relation of husband
and wife (Abdul Razak v. Aga Mahomed, (1893) 21 I.A. 56), or it the woman was admittedly a prostitute before she
was brought to the man’s house. (Ghazanfar v. Kaniz Fatima, (1910) 37 1 A 105)

However, the mere fact that the woman did not live behind purda, as the other admitted wives of the man did, is not
sufficient to rebut the presumption of marriage. (Mohabat Ali v. Mohamed Ibrahim, (1929) 56 I.B. 201)

6. Suit for restitution of conjugal rights

If. without any lawful cause, a wife ceases to cohabit with her husband, he may sue her for restitution of conjugal
rights However, a husband is not entitled to a decree of restitution, if the marriage, though consummated, was an
irregular marriage during the period of iddat, or if the marriage took place during the minority of the wife and has
been validly repudiated by her.

It has also been held that it is a valid defence to such a suit to plead cruelty on the part of the husband, if the cruelty
is of such a nature as to render it unsafe for the wife to return to her husband. (Moonshee Buzloor Ruheem v.
Shumsoonisa Begum, (1867) 11 M.I A 551)

Further, an agreement entered into before marriage, by which it is provided that the wife would be at liberty to live
with her parents after marriage is viod. and does not afford an answer to a suit for restitution of conjugal rights.
(Abdul v. Hussenbi, 1904, 6 B L R 728)

However, an agreement to allow a second wife to live in a separate house and to give her a maintenance allowance is
not void, and can be enforced. (Mt. Sakina Faruq v. Samshad Khan, 1936. 165 I C 937)

It has also been held that a false charge of adultery by a husband against his wife is a good ground for refusing a
decree for restitution of conjugal rights. (Musammat Maqboolan v. Ramzan, (1927) 2 Luck. 482) The position,
however, is different if the charge is true, and is made at a time when the wife is actually living in adultery. In the
latter case, it is not a ground for refusing a decree for restitution of conjugal rights.

The Bombay High Court has held that if the husband has been expelled from the caste, the wife is not bound to live
with him, and a decree for restitution of conjugal rights will not be granted to the husband (Bai Jina v Kharwa Jina,
(1907) 31 Born. 366)

7. Suit for enticing away a wife

A Muhammadan husband can successfully file a suit for damages against a person who persuades or entices his wife
to live apart from him (Muhammad Ibrahim v. Gulam Ahmed, 1864, 1 Bom. H.C.R. 236)

8. The Karl - His functions and powers

Originally, the Kazi was a judge and a very high judicial officer in the State With the advent of the British rule, the
Kazi’s lost their judicial status and became religious priests. In modern times, the main function of the Kazi is to
officiate at marriages and supervise talaks.

The word Kazi is etymologically derived from a word meaning ”to decree, ordain or judge.’ According to the
Muslim conception, Kazis were persons to whom the function of administering justice was especially entrusted.
During the early days, the East India Company retained these Kazis as legal advisers on questions involving
Muhammadan law, in the same manner as they had appointed Pundits on questions involving Hindu law Subsequent
enactments restricted the functions of a Kazi to preparation and attestation of deeds and to officiate at marriage
ceremonies

’There are at present day no precise functions to be performed by a person calling himself, or generally called, Kari
in India,” says Tyabjee, ’but a community or jamat may, by its own customs, usages or religious tenets, recognise
some persons as being primarily, or even exclusively, entitled to perform ceremonies usual or considered necessary
at the solemnisation of marriage, or on pronouncing divorce.”

For some time immediately after the introduction of the British rule in India, Kazis were appointed as legal advisers
to Indian Courts. A Kazis place is now taken by the Civil Courts, and a Kazi now means a religious officer, and not a
judge. The office of a Kazi is not hereditary.

Thus, to-day, the Kazi is not a judge appointed by the State. His judicial functions have been taken up by the Civil
Courts. Again, even with respect to marriages, although it is usual for a Mulla or a Kazi to officiate at such
functions, the presence of a Mulla or a Kazi is not absolutely necessary at the celebration of any ceremony, and a
valid marriage may be performed even without his presence.

9. The ”Model Nikahnama”

In May 2005, the All India Muslim Personal Law Board adopted a ’model Nikahnarna” at its meet in Bhopal.

The Bhopal Declaration, as it is sometimes called, laid down a set of Guidelines to define marriage and
crystalise the rights and responsibilities of both the parties to a Muslim marriage. The model Nikahnama advises
against dowry and any demand for a feast or gifts at the time of marriage. It suggests that a Muslim marriage
should be as simple an affair as possible.

The Declaration clarifies that it is the duty of the husband, not only to feed his wife, but also to provide a house and
medical treatment for her. He is enjoined to take care of his wife’s material needs, no matter how prosperous she
may be in her own right. The wife should also be allowed to meet her parents and siblings, and there should be no
atrocities on her. Under the Guidelines, it is specifically stated that ”her rights and justice be considered”. It
seeks to give the wife more protection in respect of her property and maintenance.

The Board has also come down on the triple talak, which is practised, perhaps. only in India in its most literal
form. It has ”advised” Muslim husbands to ”avoid talak in one sitting”.

However, all these Guidelines are voluntary in nature, and the provisions setout by the Board have no legal
force. Many jurists, therefore, look at the Bhopal Declaration with skeptical eyes, observing that this is only a
feeble attempt at reform It is felt that the Board would have done better by coming out with credible reforms,
rather than ”half-baked reform measures which are out of tune with the needs and aspirations” of the
Muslim community.
Chapter 5

DOWER (Mahr)

The following lour topics are discussed in this Chapter :

A. Definition and nature of Dower
B. Kinds of Dower
C Nature of widow’s right to Dower
d. Kharch-i-pandan

A. DEFINITION AND NATURE OF DOWER

The Islamic concept of dower is unfortunately one of the most misunderstood concepts of Muhammadan law Those
who lean towards the contractual element of a Muslim marriage tend to equate it with consideration. On the other
hand, those more familiar with the Indian concept of dowry, confuse it with that concept. The truth is that mahr or
mehr (dower) is not a form of dowry; rather it is a significant institution in Islamic law, occupying a unique position
of its own.

Dower (mahr) is a sum of money or other property which the wife is entitled to receive from the husband, in
consideration of marriage. According to Muhammadan law, marriage is a civil contract, and dower is a necessary
result of it, being a part of the consideration of her agreement to become her husband’s wife by consummating the
marriage.

However, the word ”consideration” is not used here in the same sense in which it is used in the Indian Contract Act.
Indeed, it is not the sale-price of the bride and a Muslim marriage contract is not a commercial transaction. In fact,
it would be more correct to say that under Muhammadan Law, dower is an obligation imposed upon the husband as
a mark of respect for the wife.

Mr. Justice Mahmood (in Abdul Kadir v. Salima. (1866) 8. All. 149) defined the term dower as under

”Dower, under the Muhammadan law, is a sum of money or other property promised by the husband, to be paid or
delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at
the marriage ceremony. the law confers the right of dower upon the wife.” The amount of dower may be fixed either
before, at the time of, or after marriage. The wife is competent to relinquish her dower, provided she has attained
puberty at the time of the relinquishment.

Recently the All India Muslim Personal Law Board unveiled a ”model nikahnama”, under which it is suggested that
payment of mahr (or mehr) should be in terms of gold and silver, instead of money. The reasoning given by the
Board is simple : If a bride is promised Rs. 30,000 as mehr, what remains in the value of Rs. 30,000 ten years later ?
According to the Board, mehr paid several years after the marriage loses its value if paid in currency notes because
of devaluation of money. ”We advise that mehr should be in gold and silver, so that the devaluation problem gets
tackled on its own”, observed the Board.

B. KINDS OF DOWER

Dower is of four kinds. It may be (i) ”specified’ or (ii) ”proper’, according to the mode of determination of its
amount. It may also be (iii) ’prompt’ or (iv) ’deferred’ according to the time when it is payable.

1. Specified dower
Specified dower is fixed by agreement between the parties, either before or at the time of marriage or even after
marriage

Under Sunni law, specified dower must not be less than the value of 10 dirhams, the money value of 1 dirham
(today) being equivalent to about twelve or thirteen rupees. The wife is entitled to this minimum amount even if the
specified dower is less (Under the Shia law, there is no fixed minimum for dower) But there is no upper limit, and a
dower is never invalid on the ground of its being excessive It is not uncommon to fix a figure which is beyond the
means of the husband. e g. a dower of Rs. 51,000 in the case of a poor man. The Court must decree the whole
amount of the specified dower, though the husband had no means of paying it when it was stipulated or though its
payment would leave nothing to the heirs of the husband. Thus, in an old Peshawar case, it was held that if a
husband transfers a field to his wife as dower, she is entitled, as against him, to a decree for possession. The Court
further held that if there are other sharers in the field, they need not be made parties to the wife’s suit, and the
Court’s decree does not affect their rights

If, however, there is any specific legislative enactment on the point, the Court need not decree the entire amount of
the specified dower. Thus, the Oudh Laws Act, 1876, contained a provision that the Court could not award the
amount of dower stipulated in the agreement. but only such sum as was reasonable, regard being had to the means of
the husband and the status of the wife.

2. Proper dower (Mahr-i-misi or Mahr-ul-misi)

If nothing is said about dower at the time of marriage, the wife may claim to have a reasonable amount of dower
settled for her, even if the marriage was contracted on the express condition that she should not claim any dower. In
fixing the proper dower. the Court is guided by the amount of dower settled upon the other female members of the
family of the wife’s father, as for instance, the father’s sisters

In such cases, the social position of the husband and his means are not of much importance. As the Hedaya lays
down, the wife’s ”age. beauty, fortune, understanding and virtue” must be kept in mind when fixing proper dower.
Thus, the Prophet once allowed the marriage of a poor Muslim for a silver ring, and on another occasion, merely on
condition that the husband would teach the Koran to his wife

Under Shia law, the proper dower should not exceed 500 dirhams. (Bailie, II, 71)

In one case, a Muslim married a Christian woman in England. The Court observed that the marriage was governed
by Muslim law, and therefore, the husband could divorce his wife by talak. The Court also held that the wife, in turn
could also claim dower, although no dower was initially fixed at the time of the marriage. In such cases, proper
dower could be claimed, ie. dower which would be payable to a woman of similar status and circumstances.
(Marina Jatoi v. Nuruddin Jatoi, FL D 1967 S C. 580)

3. Prompt dower (Marjjal)

The amount of dower is usually split into two parts — prompt and deferred Prompt dower is that which is payable
on demand and deferred dower is one payable on dissolution of marriage by death or divorce (See below.)

Prompt dower is dower which is payable immediately on the marriage taking place, and it must be paid on demand,
unless delay is stipulated for and agreed Prompt dower may be realised at any time before or after consummation.
Proof of intercourse between the parties is not necessary for its payment. It is only on payment of the prompt dower
that the husband becomes entitled to enforce his conjugal rights, unless the marriage is already consummated. The
right of restitution, so far from being a condition precedent to the payment of prompt dower, arises only after the
dower has been paid.

In Rabia Khatoon v Mukhtar Ahmed (1966 A.A. 548), it was observed that the wife may refuse to live with her
husband and to admit him to sexual intercourse, so long as the prompt dower is not paid. If the husband sues her for
restitution of conjugal rights before sexual intercourse takes place, non-payment of dower is a complete defence to
the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free
consent, the proper decree to pass is not a decree of dismissal, but a decree for restitution, conditional on payment of
prompt dower.

[This principle was first laid down in Abdul Kadir v. Salima, (1886) 8 All. 148.)

4. Deterred dower (Muwajjal)

Deferred dower is payable on the dissolution of the marriage either (i) by the death of either of the parties, or (ii) by
divorce.

In a case in which no specific proportion of prompt and deferred dower has been fixed by agreement at the time of
the marriage, or by custom —

(i) the whole is regarded as prompt according to Shia law;

(ii) part is regarded as prompt, and part as deferred according to Sunni law; the proportion is regulated by the
status of the parties and the amount of the dower settled. The Court has. however, the power to award the whole as
prompt. (Huseinkhan v. Gulab Khatun, (1911) I.L.R. 35 Born. 388)

On the dissolution of the marriage, —

(a) if the marriage was consummated, the wife is entitled to the immediate payment of the whole of the unpaid
dower, both prompt and deferred;
(b) if the marriage was not consummated, she is entitled to only half the specified dower.

Wife’s interest in deferred dower. — The interest of the wife in the deferred dower is a vested interest, and not a
contingent one. It is not liable to be displaced by the happening of any event, not even her own death, because her
heirs can claim the dower, if she dies.

Wife’s rights and remedies if dower is not paid

Prompt dower.— So long as the prompt dower remains unpaid, the wife may refuse (i) to live with the husband, and
(ii) to admit him to sexual intercourse. Non-payment of prompt dower is a complete defence in a suit for restitution
of conjugal rights filed before consummation; if the suit is filed after consummation, the decree will be for
restitution, conditional on payment of the prompt dower

There is another remedy also to recover the unpaid prompt dower. The wife, (and after her death, her heirs) may sue
for such dower within three years from the date when — (i) it is demanded and refused, or (ii) the marriage is
dissolved by death or divorce

Deferred dower. — Deferred dower becomes ’payable only on dissolution of marriage either by death or divorce. If
it is not so paid, the wife (and after her death, her heirs) may sue for it within three years from the dissolution of the
marriage.
C. NATURE OF WIDOW’S RIGHT TO DOWER

1. Dower, a debt

The dower ranks as a debt, though an unsecured debt, and the widow is entitled to have it satisfied on the death of
her husband out of his estate before the legacies are paid and before the inheritance is distributed. Her right,
however, is not greater than that of any other unsecured creditor, except that if she obtains possession of the
deceased husband’s property lawfully and without force or fraud, she is entitled to hold it until her debt is satisfied

A dower-debt is not a mere right to sue; it is an actionable claim. It is assignable, and can accordingly be taken in
execution by the widow’s creditor like any other debt.
Liability of the heirs

The heirs are not personally liable for the payment of the dower-debt. Each of the heirs is liable for dower-debt only
to the extent of a share of the debt proportionate to his share of the estate

Remission of dower

A dower can be remitted by the widow at the funeral of her husband by the recital of a formula but, such a remission
must be a voluntary act of the widow The Court must be satisfied that she realised what she was doing. as also its
consequences (Hasnumiya v. Hallimunnisa, 44 Born. L.R 126). An oral relinquishment of a dower-debt by a widow
when she is overwhelmed with grief at the husband’s death is not binding on her, otherwise, it is.

2. Right of retention

If the widow is in actual possession of her husband’s property, she is entitled to retain it until her dower is paid.

A widows right to retain possession of her husband’s estate, in lieu of her dower, is for a special purpose. It is by
way of compulsion to obtain speedy payment of the dower, which is an unsecured debt. The substantive right is the
debt and the share. The adjective right is retention. Though she has no greater right than that of any other unsecured
creditor, yet. it she obtains possession of the deceased husband’s property lawfully and without force or fraud, she is
entitled to hold it until her debt is satisfied.

According to the Calcutta High Court, possession must have been obtained, not only lawfully and without force or
fraud, but also with the express or implied consent of the husband or his other heirs. According to the Madras and
Bombay High Courts, no such consent is necessary. The latter view seems to be more reasonable. For, the possession
of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower-debt is
paid is conferred upon her by Muhammadan law and not by the agreement or bounty of her deceased husband or
his heirs.

The conflict of opinion referred to above. between the Madras and Bombay High Courts on the one hand, and the
Calcutta High Court on the other, arose from the judgment of the Privy Council in the case of Hamira Bibi v
Zubidabibi, (1916) 43 I.A. 294.

In this case, their Lordships said, ”But the dower ranks as a debt, and the wife is entitled, along with other creditors,
to have it satisfied on the death of the husband out of his estate. Her right, however, is not greater tnan that of any
other unsecured creditor, except, that if she lawfully, with the express or implied consent of the husband, or his
heirs, obtains possession of his estate, to satisfy her claim .... This is called the widow’s lien for dower, and this is
the only creditor’s lien of the Mussalman law...”
The Madras and Bombay High Courts have held that the observations of the Privy Council as to the necessity of
consent were merely obiter dicta (i.e., remarks made by the way, and not on a point before the Court), whereas the
Calcutta High Court held that the observations of their Lordships were not obiter dicta, but defined the nature of
the widow’s right of retention.

Her liability to account. — So long as she is in possession of the property in lieu of dower, the widow is bound to
account for the rents and profits of the property; but in such a case, she is also entitled to interest on the dower-debt.
If she is wrongfully dispossessed, she may sue for recovery of possession. But if she voluntarily gives up possession,
she cannot recover it.

Right of retention gives no title. — The right of retention does not give the widow any title to the property; therefore,
she cannot alienate the property, even to satisfy her dower-debt. Though the widow is not entitled to any charge on
the husband’s property for her dower,—such a charge may be created by an agreement or by a decree.

In one case, A, a Muslim, died, leaving a widow and a sister,. Sometime after A’s death, the widow applied to the
Collector to have the entire estate of A registered in her name, alleging that she had been in possession of the lands
as an heir and also on account of her dower. The application was opposed by the sister, but the properties were
registered in the widow’s name. The sister filed a suit against the widow to recover her share in the estate of A. The
Privy Council held that the widow was entitled to retain possession until her dower was satisfied. (Beben Bachun v.
Sheikh Hamid. (1871) 14 M 1 A 377)

A widow, though she may be in possession of her husband’s property, is entitled to sue his other heirs to recover her
dower-debt. But, in such a suit, she must otter to give up the possession

Not a mortgage : No priority over unsecured creditors. — It has been held by the Supreme Court that a widow in
possession of property in lieu of dower is not in the position of a mortgagee, and therefore, is not entitled to
priority against the unsecured creditors of her husband (Kapore Chand v. Kadar Unnissa, (1950) S.C.R. 747)

Nature of widow’s right to hold possession. — There is considerable difference of opinion regarding the nature of the
widow’s right to retain possession. One view is that it is a personal right, and not property therefore, it is neither
transferable nor heritable. (Hadi Ali v. Akbar Ali(1908) I.L.R. 20 All. 262.)

It had also been held in Zobair Ahmed v. Jainandan Prasad, (AIR 1960 Pat. 147) that the widow’s right is a personal
right, and not a lien, and as such, it is not transferable.

The other view is that it is property and therefore, is both heritable and transferable (Ali Baksh v. Allahadad, 61 I.C.
376). But after the decision of the Privy Council in Maina Bibi, v. Chaudri Vakil (52 I C 145), it appears that it is
heritable.

Problem. — A Muslim died leaving a widow, daughter. and his father. The widow is in lawful possession of her
husband’s property in lieu of dower. The widow dies leaving the daughter as her only heir is the daughter entitled to
retain possession of the property as against the father?

Answer. — The daughter is entitled to retain possession of the property as against the father. The father is entitled to
possession of his share only on payment of his proportionate share of the dower-debt. (Tahir-un-nissa v. Nawab
Hassan, (1914) Wit 36 All. 551)

D. KHARCH-I-PANDAN
Literally, Kharch-pandan means betel-box expenses. This allowance is sometimes also called allowance for Mewa
khori (literally meaning eating fruit) It is a personal allowance to the wife, customary among Muslim families of
rank, especially in North India. fixed either before or after marriage, and varying according to the means and
position of the parties As observed in one case, husband has hardly any control over the wiles application of the
allowance, either in her adornment or in the consumption of the article from which it derives its name. (Khwaja
Muhammad v Husaini Begum. 1910 37 I.A 152)

When the parties are minors, such a contract can be made between the respective parents, and in such a case, the
wife,. as a beneficiary. is entitled to enforce it. (Khwaja Muhammad v. Husaini Begum, above)
CHAPTER 6

DIVORCE

GENERAL

”Divorce is one of the institutions in Islam regarding which much misconception prevails, so much so that even the
Islamic law, as administered in the Courts, is not free from these misconceptions.” (Maulana Mohammad Ali in
”Commentary on the Holy Quran”, p. 96)

Before the days of the Prophet, divorce amongst the ancient Arabs was of frequent occurrence. However, the
Prophet had indicated his dislike for it in no uncertain terms, and is reported to have once said that ”with Allah, the
most detestable of all things permitted is divorce.’

In Muhammadan law, although matrimony is a civil contract, the husband usually enjoys special privileges, and the
wife suffers corresponding disabilities. The wife sometimes remains at her husband’s mercy owing to polygamy
and the inequality of the law of divorce.

Superior right of husband

The privileges enjoyed by the husband are mainly two. Firstly he can divorce his wife without any misbehaviour on
her part and without assigning any cause. Moreover, even if he binds himself by a formal promise not to exercise
such an absolute power of divorce. he will not be prevented from exercising it, and a divorce pronounced by him in
violation of such a promise will be as effectual. Secondly, he can have four wives at a time, whereas a Muslim
woman can have only one husband at a time.

The corresponding disabilities suffered by the wife are also two. Firstly she cannot divorce herself from her
husband, except by obtaining a decree of a Civil Court. Even if she desires a divorce, and no grounds exist on
which she can obtain it from a Civil Court, she must cajole her husband into granting it. Secondly, she cannot have
more than one husband at a time.

Modes of divorce

Divorce under Muhammadan law may be effected (i) by the husband — in which case, it is called talak; or (ii) by
the mutual consent of the parties. This may be khula or mubara’at (see below), according to the terms of the
contract, or (iii) by a judicial decree in a suit filed by the husband or the wife. The wife cannot divorce herself from
her husband without his consent, except under a contract made before or after marriage, but she may, in some cases,
obtain a divorce by a judicial decree.

FORMS OF DIVORCE
Muhammadan law recognises the following seven forma of divorce, viz. —

I. Talak, which is again sub-divided into —

(a) talak-us-sunnat, which is of two kinds, namely, -

(i) talak ahasan, (ii) talak hasan: and

(b) talak-ul-biddat (or talak-i-badai).

II. Ila or vow of continence.

III. Zihar or injurious assimilation.

IV Khula or redemption

V Mubara’at or mutual separation.

VI. Li’an or false charge of adultery

VII Judicial divorce at the instance of the wife or the husband.

I. TALAK

The word talak is most aptly translated as ”repudiation”. It comes from a root (tallaka). which means ”to release (an
animal) from a tether, or in the context, to release a wife, or tree her, from the bondage of marriage In Islamic law,
the word signifies the absolute and unilateral power of a Muslim husband of divorcing his wife at any time.

According to Muhammadan law, any husband who is of sound mind and has attained puberty, may divorce his wife
whenever he desires, without assigning any reason, at his mere whim or caprice. He may do so by mere words
without any talaknama (deed of divorce) and no particular form of words is necessary If the words used are express
(saheeh) or well understood as implying divorce, no proof of intention Is required. If the words used are ambiguous
(kinayat), the intention of the user must be proved A talak is valid—even though pronounced under compulsion or
in jest or in a state of voluntary intoxication. A talak given by a husband under compulsion of his father was held
vaild, although he did not intend to divorce his wife thereby. (Rashid Ahmed v. Anisa Khatoon, (1932) 34 Born. L.R.
375, PC. 59 I.A. 21)

A talak pronounced by the husband whilst he is asleep would not be valid, even if it is confirmed on waking up.
(Bail I, 209) However, a talak pronounced during illness, even during a death-illness, is valid.

Talak may even be pronounced so as to take effect on the happening of a future event.

It is not necessary that the divorce should be pronounced in the presence of the wife or even addressed to her. Where
a husband went to the Kazi and pronounced the divorce in the absence of the wife, and the talaknama was prepared
and duly executed, it was held that this was a valid divorce, and that it took effect from the date of the document,
even though not communicated to the wife. (Mst. Saleha v. Sheikh. A.I.R. 1973 M P 207).

A talak is valid when it is made by a written instrument, notwithstanding that it is pronounced in the absence of the
wife, and is not brought to her knowledge. But if the talak is pronounced in the wife’s absence, she must either be
referred to by name or the words of repudiation must clearly refer to her. Hence, where merely the words of divorce
were pronounced, the talak was held to be invalid.

Shia law. — A talak under the Shia law must be pronounced orally in the presence of two competent witnesses. A
talak communicated in writing is not valid, unless the husband is physically incapable of pronouncing it orally.

Talak under intoxication. — According to Hanafi’ law, intention is immaterial in a divorce. Therefore, if the words
of divorce are expressed, the talak is valid even if it is given in a state of voluntary intoxication. But where—

(a) the intoxication is not voluntary: or

(b) some inebriating medicine is taken; or
(c) the self-administered drink has produced a delirium or inflammation of the brain. —

a talak given in a state of such intoxication is not valid.

Shia law. — According to Shia law, a talak without intention is void. Reality of the intention is connected with the
exercise of reason, which is suspended during intoxication, whether voluntary or forced. Therefore, a talak given in
a state of intoxication is not valid according to Shia law

Contingent Divorce

A Muslim may pronounce a divorce so as to take effect on the happening of a future event. Thus, if a husband agrees
with the wife to do a particular act at some specified time, and that on his default, the agreement would operate as a
divorce, the husband’s default will operate as a valid divorce. Where a husband agreed in writing to provide his wife
with maintenance within a specified time, and on default, the writing was to operate as a divorce, it was held that on
the husband’s default, the writing took effect as a valid divorce. (Buffatan Bibi v. S. K. Abdul Salim. A.I.R. 1950 Cal
304)

Contingent divorce is. however, not recognised by Shia law

Delegation of power to Talak (Talak-i-tufweez or talak-i-tufweed)

The husband may confer his power of giving talak on any third person, including his wife. Therefore, an agreement.
made either before or after the marriage, by which it is provided that the wife would be at liberty to divorce herself
from her husband under certain specified contingencies is valid.

A Muslim husband may repudiate his wife in person. or he may delegate the power of repudiating her to a third
party, or even to the wife herself Such a delegation is called tufweez and the talak is called talak-i-tufweez or talak-i-
tufweed, i.e., talak by delegation of power When such authority is delegated to the wife, in form, it is divorce of the
husband by the wife; but in law, it operates as talak of the wife by the husband.

Applying this doctrine, it has been held that an agreement between a husband and his wife, under which the husband
authorises the wife to divorce herself from him in the event of his marrying a second wife without her consent, is a
valid agreement. (Moharam Ali v Ayesa Khatum, (1915) 19 Cal. W.N. 1226)

Problem. — A enters into an agreement before his marriage with B, by which it is provided that A should pay B Rs.
400 for dower on demand, that he should not beat or ill-treat her, that he should allow B to be taken to her father’s
house four times a year, and that if he committed a breach of any of the conditions, B should have the power of
divorcing herself from A. Sometime after the marriage. B divorces herself from A, alleging cruelty and non-
payment of dower on demand. A then sues B for restitution of conjugal rights. Is A entitled to succeed if B’s
allegations are proved ?

Ans. — No. This is a clear case of tufweez. The divorce is valid, and A is not entitled to restitution of conjugal
rights. He will not succeed if B’s allegations are proved (Hamidoola v. Faizunissa, (1881) I.L.R. Cal 327)

FORMS OF TALAK

(a) Taialt-ua-aunnat (For Shies and Sunnis)

Talak-us-sunnat means talak as sanctioned by the sunnat or traditions or customary talak. It is of two kinds :

(i) Talak ahasan. — This consists of a single pronouncement of talak followed by abstinence from sexual
intercourse for the period of iddat. (ii) Talak hasan — In this form of divorce, there are three pro-nouncements of
talak, once during each of the three successive periods of purity (i.e., intervals between menstruations, called tuhr),
and abstinence from sexual intercourse, until the third pronouncement.

The ahasan form is the most approved form, because here, the husband acts in a gentlemanly fashion, and does
not treat the wife as chattel By the hasan form, the Prophet sought to put an end to a barbarous pre-Islamic-custom
of divorcing a wife and taking her back several times to ill-treat her further. By making the third pronouncement
irrevocable, the Prophet indicated that such a practice could not be continued indefinitely.

(b) Talak-ul-biddat (For Sunnis only)

Talak-ul-biddat or talak-i-badai means talak which, though valid, is sinful or irregular It is one of the disapproved
forms of talak. This form of heretical divorce is, howerver, quite common amongst Sunnis in India. It is an unusual
form of talak. It is also of two kinds :

(I) Three pronouncements of talak, in immediate succession or at short intervals within one tuhr. These
pronouncements may be made either in one sentence (as for instance, by saying. ”I divorce thee thrice” or in
separate sentences (as for instance, by saying ’I divorce thee, I divorce thee, I divorcee thee”).
(ii) A single declaration of talak, even during the wife’s menstruation, showing a clear intention that the divorce
shall Immediately become irrevocable (as for instance, by saying “I divorce thee irrevocably”).

Shia law does not recognise the validity of talak-ul-biddat.

Difference between talak-us-sunnat and talak-ul-biddat.—

(1) Talak-us-sunnat is talak according to the rules laid down in the sunnah, i.e., traditions of the Prophet; Talak-ul-
biddat is irregular talak, and is bad in theology, though good in law.

(2) Talak-us-sunnat is revocable. Talak-ul-biddat is irrevocable.

When talak becomes bain (irrevocable)

The talak-ul-biddat becomes bain, that is, complete and irrevocable, immediately on its pronouncement. Talak
ahasan becomes bain on the completion of the period of iddat after the pronouncement. The hasan mode of talak
becomes bain on the third pronouncement.

It may be noted that talak by writing operates as a talak-i-bain immediately on the execution of the document,
unless a contrary intention is expressed.

It may also be noted that until a talak becomes irrevocable, the husband has the option to revoke it. He may do so
either expressly or by implication, as for example, by resuming sexual intercourse.

Effects of talak-i-bain

Talak-i-bain means irrevocable divorce. As a general rule, the effect of an irrevocable divorce is that the mutual
rights of inheritance between the husband and wife immediately cease But, where an irrevocable divorce is given
during the husband’s death-illness and he dies before the expiry of iddat, the wife is entitled to inherit from him But
the husband is not entitled to inherit from his wife, even if she dies before the expirty of iddat,.

Talak, when marriage solemnized under English law

A civil marriage, solemnized at a Registrar’s office in London, between a Muslim domiciled in India and an English
girl domiciled in England, cannot be dissolved by the husband handing over a talaknama to the wife, even though
this may be an appropriate mode of effecting the dissolution of a Muhammadan marriage under Muhammadan law
(Rex v. Hammersmith. (1917) 1 K.B. 634)

The reason behind this rule is that such a marriage is a ’Christian’ marriage, by which is meant the voluntary union
for life of one man and one woman, to the exclusion of all others: it is not a marriage in the Muhammadan sense,
which can be dissolved in the Muhammadan manner

The Supreme Court of Pakistan has, however. held (by a majority decision) that as the right of a Muslim husband to
grant a divorce to his wife where the marriage was recognised by Muhammadan law has not been taken away by any
Act in Pakistan, the talak given by the husband to his Christian wife was effective, although the marriage was
solemnized in London before a Registrar. (Marina Jatoi v Nurrudin Jatoi, P.L.D. 1967 S.C. 580)

Concluding remarks on Talak

”It is sometimes suggested that the greatest defect of the Islamic system is the absolute power given to the husband
to divorce his wife without cause.” (A.A.A. Fyzee) The institution of talak has also been described as ”a one-sided
engine of oppression” in the hands of the Muslim husband.

However, there is nothing in the law of Islam to suggest that the husband can exercise this power in an arbitrary,
irrational, or unreasonable manner Rather, this power is given to him with a firm expectation that, firstly he will not
exercise it at all, and secondly, that if he finds it unavoidable to have recourse to it, he will do so with a sense of
justice (adl) and rationality (maquliyat), which are the basic demands of Islam from every God-fearing Muslim

Moreover, certain forces and restraints have been at work to restrict and limit the free and unguided use of talak.
The first restraint is the doctrine of halala, under which a Muslim who has irrevocably divorced his wife cannot re-
marry her, unless she has first re-married another man who has consummated the marriage, and such marriage has
been Lawfully terminated This restraint can be very powerful, as it acts on the sense of jealousy and honour of a
Muslim.

The second restraint (which is an indirect restraint though a powerful one) is a stipulation which fixes the dower to
be paid by the husband at an exorbitant amount and out of all proportions to his means. This indirectly compels the
husband to fulfil the terms of the marriage contract in their entirety and thus checks the capricious exercise of has
unlimited power of talak.

The third restraint is provided by the doctrine of delegated divorce (talak-i-tufweez) (discussed above), which
allows the wife to secure the right of divorce from her husband and obtain her freedom without the intervention of
the Court

The last restraint is contained in the provision of Muhammadan law that it talak is pronounced by the husband
during his marz-ul-maut (death-illness), and he dies before expiry of the period of iddat, the wile continues to be
entitled to inherit from him.
Thus, it will be seen that these salutary provisions of Islamic law act as effective and potent safeguards against any
rash or ill-conceived exercise of the right of talak by a Muslim husband.

Recently the All India Muslim Personal Law Board, in its Model Code on Muslim marriage. has ”advised” Muslim
husbands to ”avoid talaq in one sitting”. Under a set of guidelines meant to define a Muslim marriage and set out
the rights and responsibilities of the spouses, the Board has called upon the husbands ”to avoid” the triple talaq.
and has preferred the utterance of lalaq”once, — and not thrice, — so that there is no final and irreparable rupture
of the marriage. However, it is generally felt that, although this is a modest step towards reform of Muslim personal
law, it falls quite short of expectations that the Board out to completely ban the triple talaq, as has been done in
many Muslim countries of the world.

II. ILA (VOW OF CONTINENCE)

The second form of divorce is Ila or vow of continence. Where a husband, who has attained puberty and is of sound
mind, swears by God that he will not have sexual intercourse with his wife for a period of four months or more or
for an unspecified period, he is said to make ila. Thus, if a husband says to his wife, ”I swear by God that I shall not
approach thee.’ it is a valid ila.
Where the husband, having made ila, abstains from intercourse with his wife for four months, the marriage is
dissolved with the same legal results, as if there has been one irrevocable divorce pronounced by the husband. Ila
may be cancelled by the husband by resuming intercourse with his wife within the period to which it refers, provided
he has not already completed four months of abstinence. The custom of ila is, however, more or less obsolete now.

III. ZIHAR (INJURIOUS ASSIMILATION)

Zihar is a form of inchoate divorce. Zihar literally means a divorce by unlawful comparison (or injurious
assimilation). Legally, it signifies a man comparing his wife to any of his female relations within such prohibited
degrees as renders marriage with such a person unlawful, as for instance, his sister or his mother Such a comparison
is prohibited by the Quran. Thus, if a man says to his wife. ’You are to me like my mother”, the wife becomes
prohibited to him, and his carnal connection with her is unlawful, until he pays her some money by way of
expiation, or undergoes a fast by way of penance In default of such expiation, the wife is entitled to sue him for
divorce.

Cases of zihar are, however, unknown in India, and it has been doubted by textbook writers whether the wife’s rights
and zihar would be enforced by the Indian Courts. (However, this right of the wife is recognized by S. 2 of the
Shariat Act, 1937.)

Thus, it will be seen that zihar is distinct and separate from divorce It merely —

(i) disentitles the husband to sexual intercourse with the wife:

(ii) renders the husband liable to penance: and
(iii) entitles the wife to claim judicial divorce, if the husband persists in his wrong-doing

IV. KHULA (REDEPMTION)

Definition

The fourth form of divorce is known as khula (or khoola) Muhammadan law allows divorce by mutual arrangement.
An arrangement for divorce at the instance of the wife is called ”Khula” Khula, in its primitive sense. means to
draw off’ or ’dig up’. Thus, a man is said to khula (khoola) his shirt when he takes it off. In law, it signifies an
agreement entered into for the purpose of dissolving a connubial connection, in consideration of a compensation
paid by the wife to her husband out of her property. The consideration in khula may be the release of her dower by
the wife. or any agreement made by her for the benefit of the husband Non-payment of the consideration does not
make khula divorce void, but entitles the husband to sue for recovery of consideration

How effected

A khula divorce is effected by an offer from the wife to compensate the husband if he releases her from his marital
rights and accceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable
divorce, and its operation is not postponed until execution of the khulanama (ie., the formal document).

It is important to note that, in khula, though the divorce is given at the instance of the wife, the act of divorce is an
act of the husband only. as much as it would be in ordinary talak.

The Supreme Court of Pakistan has held that, under Muhammadan law, the wife is entitled to khula as of right if
she satisfies the Court that it would otherwise mean forcing her into a hateful union. (Khurshid Bibi, v Mohd Amin.
PL D 1967 SC. 97)

V. MUBARA’AT (MUTUAL SEPARATION)

The fifth kind of divorce is known as mubara’at. Mubara’at is also a dissolution of marriage by mutual consent. In
Khula, the aversion is on the side of the wife, and she desires separation; in mubara’at, the aversion is mutual, and
both the sides desire separation. In mubara’at, the wife is not required to pay any compensation as in khula.

After mubara’at, the wife is bound to observe iddat, and the husband is bound to maintain her and his children by
her during her iddat.

(NOTE The Shariat Act, 1937, has mentioned both mubara’at and khula, thus giving them statutory recognition in
India.)

VI. LI’AN OR LAAN (FALSE CHARGE OF ADULTERY) When a Muslim husband charges his wife with
adultery, and the charge is false, the wife has a right to sue for dissolution of the marriage This provision of law
is available only for innocent wives. Thus. a suit on this ground, by a wife having an illegitimate child, would be
dismissed by the Court. (Ghulam Bhik v. Hussain Begum, PLD 1975 (W.P.) Lahore 898)

Procedure of Laan

Li’an or imprecation (prayer for evil) consists of the following elements:

(i) The husband solemnly accuses the wife of adultery;
(ii) The wife, who denies the accusation, applies to the Court requiring the husband either to retract his statement or
to swear by God that the accusation is true, (as for instance, by saying, ”The curse of God be upon him if he was a
liar when he cast at her the charge of adultery.”) (iii) The wife must then be called upon either to admit the truth of
the imputation, or to deny it on oath with an imprecation in these terms : ”The wrath of God be upon me if he be a
true speaker in the charge of adultery which he has upon me.”
(iv) If she takes oath, the Kazi must believe her, and pronounce a separation between the parties.

On the husband and wife both having reciprocally made the li’an, the wife may file a regular suit for dissolution
of her marriage. Thus, the accusation of adultery does not, by itself, dissolve the marriage; it only gives the wife
a right to sue the husband for divorce. If the charge is proved to be false, she is entitled to a decree.
Retraction of the charge. — In order to obtain dissolution of marriage on the ground of Laan, a Muslim wife
should file a regular suit in a Court of Law. The husband, in such a case, may retract the charge of adultery, at
or before the commerncement of the hearing. He cannot, however, retract the charge after the close of the evidence.
[Shamsuneesa v. Mir Abul Manaf, (1940) I.L.R. 1 Cal. 97, 70 C.L.J. 289]

In any case, the retraction must be —

(1) bona fide, and not merely as a device to defeat the wife’s suit; and
(2) unconditional.

Saju v. Maksed, 45 Cal. W. N. 122. — A Muslim was married to a Muslim woman in Bombay in 1940. In 1944 the
husband charged the wife with bigamy and adultery in a Criminal Court, but did not lead any evidence to prove the
charges. The wife was acquitted. Thereupon, the wife filed suit for divorce on the ground that the husband had
falsely charged her with bigamy and adultery. The wife was a society beauty, and the husband loved his wife, but
had made the charges by reason of jealousy and on information. The husband did not desire that there should be a
divorce. It was held that the husband could retract li’an and on his doing so, the Court had the power to dismiss the
wife’s suit.

VII. JUDICIAL RESCISSION : FASKH

The word ”faskh” literally means annulment or abrogation. The term, also sometimes referred to as ”tahkim”. refers
to the power of a Muslim Kazi to annul a marriage on the application of the wife

The Koranic basis of the law relating to faskh is to be found in the fourth Chapter of the Koran, which deals with
wives The relevant part states that since men are in charge of the affairs of women, they should deal fairly with
them. Likewise, it postulates that women too should be obedient to men and also behave themselves As stated by
Ameer Ali, the power of the Kazi to pronounce a divorce is founded on the express words of the Prophet who said .
if a woman be prejudiced by a marriage, let it be broken off.”

Muslim jurists, however, differed widely in their opinions and held widely divergent views as regards the concept of
faskh as reflected in the basic Islamic texts. Whereas it was generally agreed that a Muslim wife could obtain a
dissolution of marriage, there was no agreement on the grounds available for such dissolution or as regards the
procedure to be followed. Today, however, this divergence of opinion has become academic, because the Dissolution
of Muslim Marriages Act, 1939 (-discussed below-) specifies the grounds on which a Muslim wife can file a petition
for the dissolution of her marriage.

Under the Muhammadan law, a wife does not have any absolute

right to obtain a divorce. She has that right only under certain specific contingencies and conditions. For the purpose
of examining what these contingencies and conditions are, one must take into consideration the state of affairs as
existed (a) before the Shariat Act of 1937; (b) after the Shariat Act, but before the Dissolution of Muslim Marriages
Act of 1939; and (c) after the Dissolution of Muslim Marriages Act of 1939

(a) Before the Shariat Act of 1937. the wife could sue the husband for divorce on the following two grounds :

(i) impotence of the husband. —It had to be proved that (i)the wife was virgo intact at the date of the suit: (ii) the
husband was impotent at the time of marriage; and the wife had no knowledge of it at that time; and (iii) the
husband was unable to consummate the marriage during one year during which period the case was to be adjourned.
(ii) Li’an — (false charge of adultery) ie. when the husband charged his wife with adultery, and the charge was
proved to be false.

(b) Alter the Shariat Act of 1937. — (i) Ila. i.e., a vow of continence followed by actual abstinence from sexual
intercourse for four months. and (ii) Zihar. were recognised by the strict Muhammadan law as good grounds for
judicial divorce at the instance of the wife. But the wiles right under Ila and Zihar were not enforced by Indian
Courts (Ila and Zihar as grounds for judicial divorce by the wife are now recognised by S 2 of the Shanat Act of
1937.)

(c) After the Dissolution of Muslim Marriages Act, 1939, a Muslim wife can obtain a judicial decree of divorce on
any of the nine grounds mentioned in S 2 of the Act (below)

Summary of the Dissolution of Muslim Marriages Act

(Act VIII of 1939)

The Dissolution of Muslim Marriages Act was passed in order to consolidate and clarify the provisions of Muslim
law relating to suits for dissolution of marriage by women married under Muslim law, and to remove doubts as to
the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

This Act came into force on 17th March 1939, and extends to the whole of India.

Grounds on which a Muslim wife can sue for divorce (S. 2)

Under S. 2 of the Act, a woman married under Muslim law is entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following nine grounds :

1. The whereabouts of the husband have not been known for a period of four years : S. 2(i).

A decree passed on this ground does not take effect for a period of six months from the date of such a decree. 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 must set aside the decree.

2. The husband has neglected or has failed to provide for the maintenance of his wife for a period of two years : S.
2(ii).

Failure to maintain the wife need not be wilful. It may be due to poverty, weak health, loss of work, imprisonment or
any other cause. Even if the wife is rich, she is entitled to maintenance.

A Muslim had two wives, A and B. He went out to Africa, leaving his wives in India. While he was providing A with
a home arid maintenance, he made no arrangements for the maintenance of B for more than two years. He wrote to
B from Africa to follow him to Aftica, but did not send any money for her passage. It was held that the husband
had neglected or failed to provide for the maintenance of B for a period of two years within the meaning of section
2(ii). As the husband had failed to provide for the maintenance of B. it could not be said that he had treated her
equitably in accordance with the injections of the Quran within the meaning of section 2, and that B was entitled to
a decree for divorce. (Mt. Umat v. Talib, AIR., 1934 Lah. 310)

3. The husband had been sentenced to imprisonment for a period of seven years or more . S. 2(iii)
However, no decree can be passed on this ground until the sentence has become final.

4. The husband has failed to perform, without reasonable cause,

his marital obligations for a period of three years S. 2(iv).

5. The husband was impotent at the time of the marriage and continues to be so. However, on an application by
the husband, the Court must make an order requiring the husband to satisfy the Court, within one year from the date
of such order, that he has ceased to be impotent: and if the husband so satisfies the Court within such period, no
decree can be passed on this ground : S. 2(v).

6. The husband has been insane for two years, or is suffering from leprosy or a virulent venereal disease : S.
2(vi).

7. The wife, having been given in marriage by her father or other guardian before she attained the age of 15 years,
repudiated the marriage before attaining the age of 18 years. provided the marriage has not been consummated S
2(vii)

Option of Puberty : This sub-section recognises the old Muslim law rule, as to option of puberty (Khyar-ul-
bulugh) Under the law prior to the passing of this Act. if a minor girl who was given in marriage by the father or
grandfather. wanted to repudiate the marriage on attaining puberty. she had to prove that the father or grandfather
had acted negligently or wickedly. After the passing of this Act, she need only prove that (i) she was given in
marriage before she attained the age of 15; (ii) she repudiated the marriage before she attained the age of 18 years;
and (iii) the marriage was not consummated

8. The husband treats her with cruelty, that is to say, —

(a) habitually assaults her or makes her life miserable by cruelly of conduct, even if such conduct does not amount
to physical ill-treament; or
(b) associates himself 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 or prevents her from exercising her legal rights over it; or
(e) obstructs her in the observance of her religious profession or practice: or
(f) he has more wives than one, and does not treat her equitably in accordance with the injunctions of the Quran : S
2(viii).

9. On the other ground which is recognised as vaild for the dissolution of marriages under Muslim law : S. 2(ix).

The last ground would cover laan, ila and zihar. A divorce cannot be granted under Muslim law solely on the
grounds of incompatibility of temperaments, dislike, or even hatred, found to have been aroused in the mind of the
wife, either justifiably or without any justification. The fact, therefore, that the plaintiff (a Muslim wife) had begun
to hate her husband, and that it was not possible for her to live with him at any rate, with peace and comfort, is not
sufficient to enable the Court to grant her divorce under this last ground. Incompatibility of temperaments and hatred
of the wife for her husband are not recognised grounds of divorce under Muhammadan law. (Umar Bibi V.
Mohammad Din, (1944) Lah. 542)

Effect of apostasy from Islam on marriage (S. 4)

The renunciation of Islam by a married Muslim woman, or her conversion to a faith other than Islam, does not, by
itself operate to dissolve her marriage. But after such renunciation or conversion, the woman is entitled to obtain a
decree for the dissolution of her marriage on any of the abovementioned grounds.

Although apostasy of a Muslim woman is not, by itself, a ground for dissolution of her marriage, the conversion of a
woman converted to Islam from some other faith to her original faith does, by itself, operate as an automatic
dissolution of her marriage.

Thus, section 4 does not apply to a woman who is converted to Islam from some other faith, and re-embraces her
former faith. Thus, if a Hindu girl becomes a convert to Islam and marries under Muslim law, the marriage would be
ipso facto dissolved, on her renouncing Islam and re-embracing Hinduism. If, however, she does not re-embrace
Hinduism, but becomes a convert, say, to Christianity, the marriage would not be dissolved.

Before the Dissolution of Muslim Marriages Act, apostasy from Islam by one of the married pair operated as a
complete and immediate dissolution of their marriage, which took effect immediately, without ’requiring the decree
of a judge, and without being a repudiation of the marriage, whether the conversion was before or after
consummation (i.e., completion of marriage by sexual intercourse).

After the passing of the Act, as a result of S. 4 of the Act, apostasy of a married Muslim woman does not, by itself,
operate to dissolve her marriage. That section gives an option to the wife to sue her husband for divorce on any one
of the grounds enumerated in S. 2 of the Act.

Apostasy from Islam of the husband, even after the Act of 1939, will operate as a complete and immediate
dissolution of the marriage, as section 4 of the Act mentions a married Muslim woman, and not a man.

Divorce and apostasy

The marriage of a Muslim with an English woman, solemnized at the Registrar’s office in London is a Christian
marriage, which means a voluntary union for life of one man and one woman to the exclusion of all others.
Therefore, he can divorce his wife under the Divorce Act, but not by any of the forms of divorce recognised by the
Muhammadan law.

According to the strict Muhammadan law, an apostate has no right to contract his infant daughter, who is a Muslim,
into marriage with another. But this rule of Muhammadan law has been abrogated by the Freedom of Religion Act,
1850, according to which no law or usage can inflict on any person who renounces his religion any forfeiture of
rights or property.

Problem. — A Muslim married a Jain woman, after converting her to Islam. After 5 years of married life, she
renounced her religion and embraced Christianity. The husband sued her for restitution of conjugal rights. She
contended that renunciation of Islam by her operated as a divorce. Will she succeed ? Give reasons.

Ans.— Under S. 4 of the Dissolution of Muslim Marriages Act, renunciation of Islam by a Muslim married woman
cannot, by itself, operate as a divorce. The wife’s apostasy from Islam, in this problem. ’would have dissolved the
marriage if she had embraced her former faith, i.e., Jainism. But instead, she embraced Christianity, a new faith. The
marriage is, therefore, not dissolved. The husband will succeed.

It is further provided that nothing in the Act is to affect any right which a married woman may have under Muslim
law to her dower or any part thereof on the dissolution of her marriage. (S. 5)

How far the Act has improved the position of Muslim women. — Before the passing of this Act, there was no
provision for obtaining relief by a married woman on the following grounds : (1) whereabouts of the husband being
unknown; (2) failure of the husband to maintain the wife, (3) failure to perform marital obligations; (4) husband
sentenced to imprisonment for 7 years; (5) husband’s insanity or his suffering from leprosy or virulent venereal
diseases; (6) that she was given in marriage by her father before attaining puberty; and (7) cruelty In such cases, a
married Muslim woman could have recourse only to one device viz.. apostasy. The present Act improves her position
to a great extent., as she can claim judicial divorce on these grounds On the other hand, her right to her dower, or
any part thereof, on the dissolution of her marriage, is also preserved by the Act

Defences to a suit for restitution of conjugal rights by a husband against the wife

A Muslim husband may sue his wife for restitution of conjugal rights. where his wife, without lawful cause, ceases
to cohabit with him or neglects to perform marital obligations.

The following are the nine well-recognised defences open to a wife in such a suit

1 Gross failure by the husband to perform his marital obligations regarding her maintenance, residence. etc.
2 Non-payment of prompt dower Non-payment of prompt dower is a complete defence in the suit filed before
consummation; if it is filed after consummation, the decree will be for restitution, conditional on payment of the
prompt dower.
3. Cruelty of such a character as to render it unsafe for the wife to return to her husband.
4. Actual violence of such a character as to endanger the wife’s personal health and safety or reasonable
apprehension of such violence 5. Unfounded accusation of adultery.
6. Apostasy of the husband.
7. Expulsion of the husband from the caste.
8. Irregularity of the marriage.
9. Marriage avoided by the exercise of the option of puberty.

LEGAL EFFECTS OF DIVORCE

The following are the five legal effects of a Muslim divorce :

(1) Right to contract another marriage If the marriage was not consummated, the wife is not bound to observe iddat
and she may marry again immediately.

However, if the marriage is consummated, the wife is bound to observe iddat of divorce, which is three menstrual
periods. It for any reason other than pregnancy, she is not subject to menstruation, the corresponding period is three
lunar months. If the wife is pregnant at the date of divorce, the period of iddat is until delivery or three months,
whichever is longer.

(2) Maintenance

During the period of iddat, the husband is bound to maintain the wife. If the divorce is not communicated to the
wife, she is entitled to maintenance even after the expiry of that period, until she is informed of the divorce.

(3) Dower

(i) If the marriage was consummated — the wife is entitled to the whole of the unpaid dower, whether prompt or
deferred.
(ii) If the marriage is not consummated — she is entitled to half of the specified dower.
(4) Mutual rights of inheritance

When the divorce becomes irrevocable, mutual rights of inheritance between the husband and wife cease to exist.
There is one exception to this, viz., in the case of a divorce given during death-illness (Marz-ul-Maut), in which case,
the wife’s right to inherit continues till the period of iddat is over.

(5) Remarriage with divorced wife

After iddat the parties can remarry each other, except when divorce given by a triple pronouncement of talak. In that
case, before they can remarry, the wife must be married to another person in the interval, such a marriage should be
consummated, and thereafter, she should be divorced by him.

Rashid Ahmed v. Anisa Khatun, (1932) 34 Born L.R. 475 PC., 59 I.A. 21. — In this case. a Hanafi Musalman
divorced his wife by three successive pronouncements. Subsequently, he re-married her It was held by the Bombay
High Court that the re-marriage (to his former wife) was not valid, unless the wife married another person, the
marriage was consummated, and thereafter dissolved. In the absence of proof of such marriage with another person
and the dissolution of such marriage, a presumption of remarriage could not be raised. Hence, the children born after
the pronouncement of divorce were held to be illegitimate. and therefore, not entitled to inherit from the father.

Problem. — A Hanafi Muslim repudiated his wife by three pronouncements in the same breath ”I divorce you. .1
divorce you 1 divorce you.” The parties afterwards live together, and five children born to them. What are the rights
of the children in the father’s estate after his death ?

Ans. — The children would be regarded as illegitimate, and would, therefore, have no rights in the father’s estate
after his death. (See Rashid Ahmed v. Anisa Khatun, above.)

RIGHTS AND OBLIGATIONS OF PARTIES ON DIVORCE

1. Until the divorce becomes irrevocable, — (i) the husband can revoke it, and (ii) either party is entitled to inherit
from the other.

After the divorce becomes irrevocable, — the wife may marry another husband, (a) immediately, if the marriage
was not consummated. and (b) after the completion of iddat, if the marriage was consummated.

2 If the husband had four wives, including the divorced wife, at the date of the divorce, he can marry another wife
immediately, if his marriage with the divorced wife was not consummated, or after the completion of iddat of the
divorced wife, if the marriage was consummated

3 The wife is entitled to maintenance during iddat, or until she is informed of the divorce. whichever period is
longer.

4 Sexual intercourse with the divorced wife is unlawful, and the issues of such an intercourse are illegitimate; their
paternity cannot be acknowledged

5 Mutual rights of inheritance cease alter the expiry of the iddat. Until the expiry of the iddat, the wife’s right to
inherit continues only if (I) the divorce was pronounced during the husband’s death-illness, and (it) she was not
repudiated at her own request.

6 The wife becomes entitled to the immediate payment, — (i) of the whole of the unpaid dower, if the marriage was
consummated; (ii)to half of the specified dower [or three articles of dress where it is not specified], if the marriage
was not consummated.

7. The divorced couple may re-marry either during the iddat or after its completion; provided that a re-marriage with
a thrice repudiated wife is irregular, though not void, unless, (i) the divorced wife married another man after the
divorce, and (ii) the latter had died or divorced her after actual consummation of marriage.

DISTINCTION BETWEEN SUNNI AND SHIA LAWS OF DIVORCE

Under the Shia law (1) talak may be pronounced orally in the presence of two competent witnesses A talak
communicated in writing is not valid, unless the husband is physically incapable of pronouncing it orally; (2) the
validity of talak-ul-biddat is not recognised; and (3) a tali:1k pronounced under compulsion. or in a state of
voluntary intoxication, or to satisfy the pronouncer’s father (or some one else) is invalid.

This is in direct contrast with the Sunni law, where (1) talak may be communicated in writing or through a delegate;
(2) talak-ul-biddat is frowned upon, but recognised; and (3) talak pronounced under compulsion, or in a state of
intoxication induced voluntarily, or to satisfy the pronouncer’s father (or some one else) is valid according to Sunni
law.
CHAPTER 7

ACKNOWLEDGEMENT OF PATERNITY

Presumption of legitimacy

The rules of Muhammadan Law as regards presumption of legitimacy may briefly be stated as follows

(i) A child born within less than six months after marriage is illegitimate. (This is in direct contrast to the rule
contained in the Indian Evidence Act, under which a child born even a day after marriage is legitimate )

(ii) A child born after six months from the date of marriage is presumed to be legitimate, unless the putative father
disclaims the child.

(iii) A child born within two years after the termination of a marriage is presumed to be legitimate. unless
disclaimed by the father (Under the Shia law, the corresponding period is ten months.)

What is paternity

Paternity is the legal relation between the father and his child. In order to establish the paternity of a child, the child
must be shown to be the offspring either of a valid or of an irregular marriage between its parents. If there is no
direct proof of such a marriage. It (i e. the marriage) may be presumed — (1) from the continued cohabitation,
combined with the absence of any of the impediments to a marriage; or (2) from the acknowledgement of legitimacy
in favour of the issue born of the marriage.

What is ’acknowledgement of paternity’

Where the paternity of a child, ie., its legitimate descent from its father, cannot be proved by establishing a marriage
between its parents at the time of its conception or birth, such marriage and legitimate descent may be established by
”acknowledgement’

An acknowledgement of paternity need not be express Such an acknowledgement may be presumed from the fact
that one person has habitually and openly treated another as his legitimate child As observed by the Privy Council, it
has been decided in several cases that there need not be proof of an express acknowledgement. but that an
acknowledgement of children by a Muhammadan as his sons may be inferred from his having openly treated them
as such” (Muhammad Azmat v. Lalli Begum — 1881 9 I A. 8)

Paternity of a child is established if the child is born during continuance of a valid marriage or within 280 days of its
dissolution, the mother remaining unmarried.

Maternity of a child is established in the woman who gives birth to the child: it is immaterial whether the child is an
offspring of a valid or irregular marriage. — or even of a fornication or adultery.

Principle of the doctrine of legitimacy by acknowledgement

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a child and the marriage of
its mother. Since a marriage among Muslims may be constituted without any ceremony, the existence of a marriage
in a particular case may be an open question If no direct proof of such marriage is available, indirect proof may be
relied upon Acknowledgment of legitimacy of a child is one of the kinds of indirect proof.
Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child, the paternity of that
child is established in him But the doctrine applies only to cases where the fact of an alleged marriage is an
uncertainty. It cannot be availed of to legitimise a child who is known to be illegitimate. The doctrine of legitimacy
by acknowledgement proceeds entirely upon an assumption of legitimacy, and establishment of legitimacy by the
force of such acknowledgement.

Conditions of a valid acknowledgement of legitimacy

Muhammadan law prescribes a special mode of establishing the legitimacy of a child When a man either expressly
acknowledges, or treats in a manner tantamount to acknowledgement of, another as his lawful child, the paternity of
that child will be established in the man. provided that the following seven conditions are fulfilled :

1. The acknowledger must possess the legal capacity for entering into a valid contract
2. The acknowledgement must not be merely of sonship, but of legitimate sonship
3. The ages of the acknowledger and the acknowledged must be such as to admit of the relation of parentage, i.e.,
the acknowledger must be at least twelve-and-a-half years older than the person acknowledged.
4. The person to be acknowledged must not be the offspring of intercourse which would be punishable under
Muhammadan law, e.g., adultery, incest or fornication.
5. The parentage of the person to be acknowledged must not be unknown, i.e., the child to be acknowledged must
be known to be the child of some other person.
6. The acknowledged person must believe himself (or herself) to be the acknowledger’s child, and the child must
verify (or at least must not repudiate) the acknowledgement.
7. The acknowledger should be one who could have lawfully been the husband of the mother of the child, when it
was begotten. Thus, where there is direct proof that there was no marriage between the man and the mother of the
child, or that if there was such a marriage between them, it would have been void, then the presumption of
legitimacy cannot be raised by acknowledgement, however strong such presumption may be. (Rashid Ahmed v.
Anisa Khatun. (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)
In Rashid Ahmed’s case (above), A. a Muslim, divorced his wife B, by three pronouncements of talak, but
afterwards, continued to cohabit with her, and to treat her as his wife for fifteen years. During this period, five
children were born to them, all of whom he treated as his legitimate children.

However, the Privy Council held that the children were illegitimate. In this case of divorce by three
pronouncements, before A and B could remarry, B should have been married to another man in the interval and
divorced by that man. As there was no proof of such marriage with another man and a divorce by him, a
presumption of remarriage between A and B could not be raised, and hence, the children were held to be
illegitimate, and could not inherit from their father

The observations of the Allahabad High Court on acknowledgement of paternity in Muhammad Allahadad v.
Muhammad Ismail (1888-10AU. 289) are relevant. In that case, the Court observed .

”The Muhammadan law of acknowledgement of parentage, with its legitimating effect, has no reference whatsoever
to cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between
the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection), or
by reason of a marriage, necessary to render the child legitimate, being disproved. The doctrine relates only to cases
where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the
acknowledged child is not proved in the sense of law, as distinguished from disproved. In other words, the doctrine
applies only to cases of uncertainty as to legitimacy, and in such cases, acknowledgement has its effect, but that
effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child.”
Effect of acknowledgement

When all the above conditions are satisfied, the result will be that the legitimacy of the acknowledged (who may be
a male or female) and the marriage of his (or her) mother with the acknowledger will be established, unless the
marriage is disproved (Syed Habibur v. Syed Altaf, 83 Bom. L.R. 636, PC.). The acknowledgement may thus be
taken advantage of by the child or by the child’s mother

Whether revocable

It is well-settled that an acknowledgement of legitimacy, once made, cannot be revoked later on. (Ashrufood v.
Hyder Hossein, 1866 11 M.I.A. 94)

Whether the acknowledged child can repudiate

According to MuIla. in order that there should be a valid acknowledgement. It should not have been repudiated by
the person acknowledged.

If the person acknowledged has attained an age when he can understand the transaction, he can repudiate the
acknowledgement.

(A reference may be made to Habibur Rahman v Altaf Ali, 1921, 48 Cal 856 )

Problems — 1. Muhammad first marries Mariyam and then marries her sister’s daughter Chandbibi, within a week
of her getting a divorce from her former husband, Chandbibi gives birth to a child after one month from her
marriage with Muhammad. Discuss the validity of Chandbibi’s second marriage and the paternity of her child.

Ans — Chandbibi’s second marriage is irregular. Moreover, according to Muhammadan law. a child born within
less than six months after marriage is illegitimate. The child born after one month from Chandbibi’s marriage with
Muhammad is, therefore, illegitimate. (See Musammat Kaniza v Hasan, 1 Luck. 71)

2. Ibrahim who was staying with Fatma since 1947, died in 1950, leaving some property and legitimate children.
Yusuf, the son of Fatma and aged fifteen years, was acknowledged by Ibrahim as his son. Fatma was a married
woman, and though living with Ibrahim, was not divorced by her husband, who was still alive. Yusuf claimed a
share along with the heirs of Ibrahim Discuss the merits of his claim.

Ans — Fatma is like Ibrahim’s kept mistress. Therefore, the acknowledgement by Ibrahim of Yusuf as his son is not
valid, and Yusuf is not entitled to claim a share along with the heirs of Ibrahim.

Adoption not recognised in Muslim law

There is nothing like adoption in Muhammadan law. Even a Hindu convert to Islam cannot adopt. Thus B. a Hindu,
gave up his faith of Hinduism and embraced Islam As he had no son, he adopted a son A. Thereafter, B died. A. as
the adopted son of B. claimed full right of inheritance. Here, A cannot succeed, because the Muslim law does not
recognise the doctrine of adoption at all.

Presumption of legitimacy under S. 112 of the Indian Evidence Act

Section 112 of the Indian Evidence Act reads as follows :

The fact that any person was born :
(i) during the continuance of a valid marriage between his mother and any man; or
(ii) within 280 days after its dissolution (the mother remaining unmarried),—
shall be conclusive proof that he is the legitimate son of that man, unless it be shown that the parties to the marriage
had no access to each other at any time when he could have been begotten.”
The presumption as to paternity in this section only arises in connection with the offspring of a married couple. No
matter how soon the birth occurs after the marriage, the presumption of legitimacy is conclusive. However, if it is
shown that the husband of the mother did not have access to her, the presumption of section 112 will not apply.

The presumption contemplated by section 112 of the Indian Evidence Act is a conclusive presumption of law, which
can be displaced only by proof of non-access between the parties to the marriage at a time when, according to the
ordinary course of nature, the husband could have been the father of the child.

The principle of this section can be rebutted when the mother of the child is not a wife, but a mistress.
CHAPTER 8

GUARDIANSHIP

Age of majority

Under pure Muslim law, ’puberty” and ”age of discretion” were used as convertible terms, and a minor was allowed
to take charge of his or her property on attainment of puberty. Among the Sunnis and the Shias, puberty is presumed
to have been attained on the completion of the fifteenth year.

But now. Muslims are governed by the Indian Majority Act, 1875, except in matters relating to marriage, dower and
divorce. Under the Act, every minor of whose person or property, or both, a guardian has been appointed or declared
by any Court of Justice before the minor has attained the age of eighteen years, or the superintendence of whose
property has been assumed by a Court of Wards before the minor has attained that age, is deemed to have attained
his majority when he has completed the age of 21 years. Every other person domiciled in India is deemed to have
attained majority when he has completed the age of 18 years.

KINDS OF GUARDIANSHIP Muslim law recognises four kinds of guardianships :

I. Guardianship in marriage (Jabr)

II. Guardianship of the person of a minor for custody and education (hizanat)
III. Guardianship of the property of a minor
IV. Testamentary guardian

I. Guardianship in marriage (Jabr)

[This is already discussed in Chapter 4 above.]

II. Guardianship of the person of a minor (hizanat)
(1) Mother and her relations

The guardianship of the person or the right to the custody of a male child, until he completes the age of seven years
and of a female child until she attains her puberty, belongs in the first place to the mother. The mother’s right to
custody continues even after she is divorced. (Enamul Haque v. Bibi Taimunnisa (1967) A.R. 344)

The mother is entitled to the custody of her female child until she has attained puberty. Failing her, it goes to the
following female relatives in the following order : Mother’s mother, how highsoever; father’s mother, how
highsoever; full sister; uterine sister; consanguine sister; full sister’s daughter; uterine sister’s daughter; consanguine
sister’s daughter.

-Custody of illegitimate children

The mother is entitled to the custody of an illegitimate child. In default of the mother, the right to custody devolves
upon her relations.

Shia law. — Under the Shia law, the mother is entitled to the custody of a male child until he attains the age of two
years, and of a ’female child until she attains the age of seven years. Female’s right to custody when forfeited

The right of a female to custody of minors is forfeited if —

(i) she is guilty of misconduct, e.g„ immorality or cruelty; or
(ii) she marries a person not related to the child within the prohibited degrees; or
(iii) she neglects to take proper care of the child.

Effect of Muslim woman’s apostasy

According to strict Muhammadan law, a woman relinquishing Islam had to be kept in prison until she returned to
Islam; hence, apostasy was a ground of disqualification for guardianship But. the Freedom of Religion Act, 1850,
enacts that no law or usage can inflict on any person who renounces his religion any forfeiture of rights or property
Guardianship is a right, and apostasy is thus no longer a ground for disqualification. (

2) Father and his relations

In default of the above-mentioned female relations, the right to custody devolves upon
(i) the father.
(ii) father’s father.
(iii) full brother,
(iv) consanguine brother,
(v) full brother’s son
(vi) consanguine brother’s son.
(vii) full brother of the father,
(viii) consanguine brother of the father,
(ix) son of father’s full brother,
(x) son of father’s consangunine brother

The father is entitled to the custody of his (a) son over seven years of age, and (b) an unmarried girl who has
attained puberty

(3) Husband

The husband is entitled to the custody of the wife who had attained puberty. If she has not attained puberty. her
mother is entitled to her custody.

III. Guardianship of minor’s property

The guardians of the property of a minor under Muslim law may be classified into (1) Legal guardians; (2) Certified
guardians, that is. guardians appointed by the Court; and (3) De facto guardians
(1) Legal guardian

The legal guardians of the property of a Muslim minor are —

(1) the father, (2) the executor (wasi) appointed by the father, (3) the father’s father, and (4) the executor appointed
by the father’s lather

If there is no legal guardian. the Court may appoint any other person as a guardian of the property of a minor.

Alienation by Legal guardian

1. A legal guardian may alienate the movable property of the minor only in case of urgent necessity.
2. He may alienate the minor’s immovable property :

(i) where double its value is obtained; or

(ii) where the minor has no other property, and its sale is absolutely necessary for his maintenance: or
(iii) where the debts of the deceased owner cannot otherwise be liquidated: or
(iv) where there are legacies to be paid, and there are no other means of paying them: or
(v) where the produce of the property is not sufficient to defray the expenses of keeping it; or
(vi) where the property is in danger of being destroyed: or
(vii) where the property has been usurped, and the guardian has reason to fear that there is no chance of fair
restitution.

Problem. — A. the manager of the estate of a Muslim minor, M. agrees to purchase from C, an immovable property
on behalf of M. The transaction is a good bargain and manifestly advantageous to the minor C backs out of the
agreement. M files a suit against C for specific performance of the agreement. Advise C.

Ans. — C can defend the suit successfully, inasmuch as an agreement by a Muslim guardian for the purchase of
immovable property is void

Problem. — A, a Muslim, raises a loan for his own personal benefit from a creditor. A mortgages to the creditor a
house belonging to his minor son. B, by way of security for the loan. The creditor wants to proceed against A as well
as the mortgaged house belonging to A’s minor son B. Advise the creditor.

Ans. — He cannot proceed against the mortgaged house.

(2) Guardian appointed by the Court (Certified Guardian)

The Court may appoint a guardian of the person or property of a Muslim minor, if it is for the minor’s welfare that
such a guardian should be appointed.

Points for Court’s consideration. — In making such an appointment, the Court will be guided by what appears, in
the circumstances, to be best for the welfare of the minor. For this purpose, the Court would have regard to the age,
sex and religion of the minor, character and capacity of the proposed guardian, his nearness of kin to the minor, the
wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor
or his property. If the minor is old enough to form an intelligent preference, the Court may consider that preference.

His powers. — A guardian appointed by the Court may alienate the movable or immovable property of his ward.
However, immovable property can be alienated only in the case of necessitry and the guardian must also obtain the
previous permission of the Court. Without such permission, he cannot either mortgage or charge, or transfer by sale,
gift, exchange or otherwise, any part of the property.
But he can lease any part of such property, without the Court’s permission (i) for a term not exceeding five years, or
(ii) for more than one year beyond the date on which the minor will cease to be a minor, whichever is shorter.

A guardian appointed by the Court may refer to arbitration, without the permission of the Court, disputes as to the
distribution of immovable properties belonging to the estate of minor’s father, but it is an irregularity if the guardian
makes a reference without the opinion, advice or direction of the Court : Sald-un-nlssa v. Ruqaiya Bibi, (1931) ILR
53 All. 458.

(3) De facto guardian

A person is said to be a de facto guardian when he is neither (a) de jure guardian, i.e., guardian, under the personal
law of the minor, nor (b) a guardian appointed by the Court, and yet he voluntarily places himself in charge of the
minor’s person and property Thus, under Muhammadan law, all relations except the father and the paternal
grandfather, and any stranger can be de facto guardian, unless they are appointed—

(i) executors, by the will of the father or paternal grand-father, or

(ii) guardians. by the Court.

His powers. — A de facto guardian may alienate the movable property of the minor in case of necessity, but he
cannot alienate his immovable property. An alienation of a minor’s immovable property without the authority of the
Court, by a de facto guardian. is absolutely void. It cannot, therefore, be passed against him for a refund of the
consideration.

Muhammed Ejaz v. Mahammad Iftikar, (1932) 59 I A 92 — A Muslim executes a mortgage of his immovable
property He then dies leaving a will, by which he bequeaths the property to his three sons. one of whom is a minor,
in equal shares, and subject to equal obligations in respect of his debts. After his death, there are disputes between
the major sons and the mortgagee, and the same are referred to arbitration. The arbitrator makes his award allowing
the mortgagee’s claim in full. After the publication of the award, one of the major sons is appointed guardian of the
minor son under the Guardians and Wards Act. The minor son thereafter files a suit against the mortgagee and his
two brothers to set aside the award In these circumstances, the Court held that the minor son is entitled to succeed in
setting aside the award. The two brothers are the minor’s de facto guardians. Such guardians have no power to refer
disputes regarding the minors to arbitration and the minor’s property is not bound by an award on such reference

Khorasany v. Acha, (1928) ILR 6 Rang. 198. — M, a Muslim, was a member of a partnership firm which carried on
the business of a rice mill. M died, leaving a widow and a minor son. The widow entered into an agreement with the
surviving partners of the firm on behalf of her minor son, whereby she agreed to retain the share of M in the
partnership business and to continue the said business. A question arose whether the agreement was valid. It was
held by the Court that the widow, being a de facto guardian, could not enter into such an agreement which was void.

Maimunisa Bibi v Abdul Jabbar, (1966) A.M. 468. — The mother, as de facto guardian. has no power to alienate a
minor’s immovable property. but a pint sale, together with major executants, is good in Law to the extent of the
latter’s shares. Also see Jaina Beebi v. Govindaswami. (1967) A.I.R. Madras, 369 and Ali Md. v. Ramnivas, (1967),
Al R Raj

IV. Testamentary Guardian

A guardian appointed under a will is called a testamentary guardian. According to the Muhammadan law, the only
persons who are entitled to appoint a guardian of the property of a minor by will are his father and father’s father
Even the mother has no power to appoint by will a guardian of the property of her minor children.
The executor, appointed by the will of the father or father’s father becomes the legal guardian of the property of the
minor. A Muslim father (or paternal grandfather) can appoint one person as the executor of his will and a totally
different person as the guardian of the property of the minor.
CHAPTER 9

MAINTENANCE

PERSONS ENTITLED TO MAINTENANCE

The right of the following five classes of persons to claim maintenance will be considered in this Chapter :

1. Infant children and unmarried daughters

2. Adult children

3. Parents

4. Grand-parents

5. Wife.

1. Infant children and unmarried daughters

The father is bound to maintain his sons until they attain the age of puberty, and his daughters until they are
married

An unmarried daughter has no absolute right to separate maintenance. She cannot claim it unless and until she
makes out necessary grounds for it. (Bayabai v. Ismail. 43 Born. L R. 823. below )

Bayabai v. Ismail. — In this case, a Muslim daughter lived with her mother, who was divorced by her father in 1940.
The father married a second wife, and some time thereafter, became a lunatic In August 1940, the daughter, who had
till then been maintained by her mother and was unmarried, attained majority, and filed a suit against her father for
maintenance and for arrears of maintenance prior to August 1940. The Court held that, under the above
circumstances, the daughter had made out a good case for separate maintenance. However, as regards the arrears of
maintenance, it was held that she was not entitled to it, as neither the daughter had ever claimed it, nor was it ever
denied to her.

If the father is poor and infirm or weak, the liability to maintain the children falls upon the mother. If the mother is
financially unable to do so, it devolves upon the father’s father, if he is in sound financial circumstances.

Statutory obligation of father to maintain his children. — If a father has sufficient means he may be compelled to
maintain his legitimate or illegitimate children (who are unable to maintain themselves) under the Code of Criminal
Procedure.

2. Adult children

Adult children are not entitled to maintenance, unless they are infirm or weak.

Illegitimate children have no right of maintenance under Muhammadan law.

Although Muhammadan law imposes no duty on the father to maintain his illegitimate children, an agreement to
maintain an illegitimate child is not void. Children in good circumstances are bound to maintain their poor parents.
Problem. — B. a Hanafi, Muslim. has a son A. who is 30 years old, and lives separate from his father B. After a
lapse of some years, B has become aged. infirm and blind in one eye. As a result, he has fallen in poverty and is
unable to maintain himself. A, on the other hand, has done well and prospered, and refuses to maintain B. B wants to
know whether he can successfully file a suit against A for maintenance, and consults you. Advise.

Ans — B will succeed Children in good circumstances are bound to maintain their poor parents.

4. Grand-parents

If the grand-parents are poor, they are to be maintained by their grand-children.

5. Wife

The husband is bound to maintain his wife, as long as she is faithful to him (unless, of course, she is too young for
matrimonial intercourse) and obeys all his reasonable orders.

However, a husband is riot bound to maintain a wife, —

(i) If she refuses herself to him, or
(ii) if she is disobedient,

unless the refusal or disobedience is justified by non-payment of prompt dower.

Even alter divorce, the wife is entitled to maintenance during iddat.

It may be noted that a declaration of divorce is operative from the date of filing the written statement in proceedings
for maintenance. See Enamal Haque v. Bibi Taimunissa, (1967) A.R. 344.

During widowhood, the wife is not entitled to maintenance, even during iddat. The reason for this is that she is
entitled to inheritance, and maintenance is in lieu of inheritance.

The right of the wife to maintenance exists in spite of the fact that she can maintain herself out of her own property.
A divorced wife is entitled to maintenance during the period of iddat. However, a widow has no right of
maintenance during the iddat consequent upon her husband’s death.

Maintenance under the Criminal Procedure Code

Under S. 125 of the Criminal Procedure Code, 1973, the Court can order a husband to maintain his wife who is
unable to maintain herself. For this purpose, the term ”wife” includes a woman who is divorced from her husband
provided she has not re-married.

A Muhammadan wife may also apply for an order of maintenance under the Criminal Procedure Code, in which
case the court may order the husband to pay a monthly maintenance allowance to her. However, if the wife exercises
her right under Muhammadan Law and refuses to live with her husband on the ground of non-payment of prompt
dower, she cannot enforce her right to maintenance under the Criminal Procedure Code (Muhammad Azizullah V.
Abdul Halim — (1936) 154 I.C. 561)

The question whether a divorced Muslim ’wife” is entitled to maintenance attracted all-India interest in the much
talked about Shah Bano’s Case (see below.) However, even before this five-member Bench decision of the Supreme
Court, this question was, in fact. wellsettled. Thus, in Bai Tahira v. Ali Hussain (1979 2 S CC 316) and in Fuzlunbi
v. Khader Vali (1980) 4 S.0 C 175), the Supreme Court had held that a divorced Muslim ”wife” was entitled to apply
for maintenance under the Criminal Procedure Code.

This view was reiterated by the Supreme Court in Shah Bano’s Case (Mohd. Ahmed Khan v. Shah Bano Begum,
1985 2 S.0 C 556), where the Court observed as follows

”These provisions (i.e.. provisions of the Criminal Procedure Code) are too clear and precise to admit of any doubt
or refinement The religion professed by a spouse or by the spouses has no place in the scheme of these provisions.
Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens. is wholly irrelevant in the
application of these provisions”

The real controversy, however, in Shah Reno’s Case was the interpretation of the Muslim Personal Law by the
Supreme Court in the matter of payment of mahr. Under S. 127 of the Criminal Procedure Code, if the Court is
satisfied that the wife has received from the husband, any amount, which under any customary or personal law. was
payable on divorce, a change can be made in the maintenance which the ’wife” is entitled to claim under S 125, In
Bai Thira’s case (referred to above), the Supreme Court held that if the payment made by the husband by way of
mahr can fairly be taken to be a capitalised substitute for the periodic payments under S. 125 of the Code, the
husband may be relieved under S. 127.

The much criticised decision in Shah Bano’s Case (above) broke new ground when it interpreted the concept of
mahr under Muslim Personal Law, as not being a sum payable on divorce It was. therefore. held that mahr does not
fall within the ambit of S 127 of the Code

(Shah Bano’s case is discussed at length in Appendix II, at the end of the book, to which a reference may be made )

Arrears of maintenance. - Under Muslim law, arrears of maintenance cannot be claimed by any relative other than
a vale. (Saiyad Jaffar El-Edroos v. Saiyad Muhammad El-Edroos, 38 B.L.F1 277)

Unless there is failure on the part of the defendant to provide maintenance, a decree for arrears is not justified.
The wife may either sue her husband for maintenance or proceed against him under the Criminal Procedure
Code.

Agreement for future maintenance. - An ante-nuptial agreement between a Muslim and his prospective wife
entered into with the object of securing the wife against ill-treatment and of ensuring her suitable maintenance in the
event of ill-treatment, is not void as being against public policy Nor is an agreement between a Muslim and his
second wife, allowing her to live in her parent’s house and paying her maintenance, against public policy (Nizamul
Haque v. Begum Noor Jehan, A I R 1966 Cal 465)

[A reference may be made to The Muslim Women (Protection of Rights on Divorce) Act, 1986, discussed in
Appendix III to this book.]
CHAPTER 10

PRE-EMPTION (SHUFFA)

Definition

The right of pre-emption is a right to acquire by compulsory purchase, in certain cases, immovable property in
preference to all other persons. It is the right of a third person, called the pre-emptor. to step in, when a contract is
made for the sale of immovable property, and claim to take the place of the buyer. i. a, to take property at the same
price and on the same conditions as the buyer and seller have agreed upon.

When pre-emption arises

The right of pre-emption arises only of a valid, complete and bona fide sale, and in the case of no other alienation,
such as gift, wakf or bequest. The right can be exercised only in regard to immovable property; thus, it would not
apply to a sale of crops or trees intended to be removed

It is important to note that the right of pre-emption arises only on completion of the sale According to Muslim law, a
sale is complete even if no registered instrument is executed But, according to Section 54 of the Transfer of Property
Act, a sale of immovable property, of the value of one hundred rupees or more, must be effected by a registered
instrument.

Then, for the purpose of pre-emption, by what law is the deemed to have been completed ? The question is
important. because the demands of pre-emption are to be made immediately on completion of sale. According to the
Privy Council, the question is to be determined with reference to the intention of the vendor and the vendee. as to
what law should apply, and what is to be taken as the date of sale, with reference to which the ceremonies are to be
performed

In one case, the Calcutta High Court has held that for the purpose of pre-emption, a transfer of immovable property
is complete only when the deed of transfer is registered (Budhai v Sonaullah, (1914) 41 Cal, 943)

On the other hand, the Bombay High Court has held that a registered sale deed is not required to give rise to a right
of pre-emption. (Abdulla Avjal Momin v Ismail Mugal Foda. (1922) I L R 46 Born 302)

It may be noted that a transfer of property by a husband to his wife in lieu of a dower is a sale, and is therefore
subject to a claim for pre-emption. (Fida Ali v. Muzaffar Ali. (1883) I.L.R. 5 All. 95)

Moreover, the right of pre-emption arises not only out of a private sale, but also out of a sale by the Court or a
receiver. (Brij Narain v. Kedar Nath (1923). It R. 45 All. 188) This has also been confirmed by the Surpreme Court
in Bishan Singh v. Khazan Singh, A.I.R. 1958 S C 838

Further, where the purchaser is himself in the category of a pre-emptor. the property is to be equally divided between
the purchaser and the pre-emptor (Ramautar Singh v. Brijkishore, A.I.R. (1933) Pat. 653)

Problems — 1. A. B and C each own a one-third share in a house A executes a mortgage in respect of his share in
favour of D. 0 obtains a decree on his mortgage, in execution of which A’s share is put up for auction and purchased
by B. Would C be entitled to claim pre-emption. and to what extent ?

Ans — For reasons given above. C is entitled to claim pre-emption of one-half of A’s share.
2. A, B and C are all Muslim co-sharers in certain property. A sells his share to B Is C entitled to claim pre-emption ?

Ans, — Yes See above.

The nature of pre-emption

The right of pre-emption is in the nature of an easement, and is annexed to the land under Muslim law. The right
comes into existence on the sale of the adjacent property. The right to pre-emption is not a right to a re-purchase,
either from the vendor or from the vendee, but is simply a right of substitution, entitling the pre-emptor, by reason of
a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of the rights and
obligations arising from the sale

It is rather anomalous that the right of pre-emption is not recognised in Madras. The reason given by the Madras
High Court for refusing to recognise the right of pre-emption amongst Muslims is that it places a restriction on the
liberty of a person to transfer property, and is, therefore, opposed to justice, equity and good conscience. (Ibrahim v.
Muni Mir Uddin, (1870) 6 M.H.C. 26)

Object of pre-emption

The object of the rule of pre-emption is to prevent the inconvenience which may result to families and communities
from the introduction of a disagreeable stranger as a coparcener or near neighbour.

Pre-emption by contract

The right of pre-emption may also be created by contract. In construing the terms of such a contract, the Court will
give effect to the intention of the parties as expressed therein. In the absence of a contract to the contrary, it will be
presumed that a contract for pre-emption will be governed by the Hanafi law, and all the formalities are to be
observed before a valid claim for pre-emption can be made. Where a right of pre-emption is based on a contract, a
Muslim co-sharer is entitled to pre-emption even against a Hindu purchaser. [Sitaram v. Jiaul Hasan, (1921) 48 I.A.
475]
To whom applied

The doctrine of pre-emption is applicable to all Muslims in general. Applicability to Hindus

The law of pre-emption is applied to Hindus also (i) by legislation, as in the Punjab and Oudh, where there are
general territorial enactments; or (ii) by custom, as in Bihar and certain parts of Gujarat; or (iii) when there is a
contract between the parties that the law should apply.

In the Mofussil of Bombay, under regulation IV of 1827, (which does not mention pre-emption or any other topic of
Muslim law as expressly applicable to the Muslims), the law of pre-emption can be applicable on the principles of
justice. equity and good conscience, or on the ground of custom. But it has been held in Mahomed Beg Amni Beg. &
Anr. v. Narayan Meghaji Patil & Ors., (1916) I.L.R. 40 Born. 358, that pre-emption is opposed to justice, equity and
good conscience. So, it can apply only on the ground of custom.

Who can claim pre-emption

According to the Muhammadan law, the right of pre-emption appertains to the following persons :

1. A Shafii-i-sharik, i.e. co-sharer or partner in the property sold.

2. A Shafii-i-khalit, i.e.. a partner in the amenities and appandages of the property (such as the right to water and
roads, or common access). These are persons connected with the property sold either as holders of dominant or
servient heritages, or as sharing a common right

3. A Shah-i-jar, ie., an owner of neighbouring immovable property. This right of pre-emption on the ground of
vicinage does not extend to estates of large magnitude such as villages and zamindaris, but is confined to houses,
gardens and small parcels of land.

Problems. — 1. A, who owns a piece of land, grants a budding lease of the land to B. B builds a house on the land
and sells it to C Can A claim pre-emption ?

Ans. — No. A is not entitled to pre-emption of the house, though the land on which it is built belongs to him, he is
neither a co-sharer, nor participator in the appendages of the house, nor an owner of adjoining property. (Pershadi
Lal v. lrshad Ali, (1870) 2 N. W P 100)

2. A owns a house which he sells to B. M owns a house towards the north of A’s house and is entitled to a right of
way through that house. N owns a house towards the south of AS house, separated from A’s house by a party wall
and having a right of support from that house. Both M and N claim pre-emption of the house sold to B. Who is
entitled to a preferential claim of pre-emption ?

Ans. — M, the owner of the dominant tenement, has, in respect of the sale of the servient tenement a right of pre-
emption as a Shabi-i-Khalit. which is superior to the right of N, who is merely a neighbour as regards the property
sold. (Karim v Priyo Lal Bose, (1 906) I L R 28 All 127)

As regards priority among differnt classes of pre-emptors. it may be noted that the first class excludes the second,
and the second excludes the third, if there are two or more pre-emptors belonging to the property in respect of
which the right is claimed. Thus, a Shafii-i-khalit has priority over a Shafi-i-jar, as in Problem No. 2. above.

Shia law — By Shia law, the only persons entitled to the right of pre-emption are co-sharers, and that too, if the
number of co-sharers does not exceed two.

Sect of either party how far material. — If both the vendor and the pre-emptor belong to the same school, being
either Sunnis or Shias, the law of that school applies, the law of the vendee being always immaterial According to
the Allahabad High Court, when one of them is a Shia. the Shia law will apply According to the Calcutta High
Court, the law of the pre-emptor prevails, in case the vendor and the pre-emptor do not belong to the same school of
Muslim law.

Thus, if the vendor is a Sunni and the pre-emptor is a Shia, then according to the Allahabad High Court, the right of
pre-emption is to be determined by the Shia law If the vendor is a Shia and the pre-emptor as a Sunni, then also,
according to the Allahabad High Court, the point is to be decided according to the Shia law, but according to the
High Court of Calcutta, in such cases, the rights are to be determined by the Sunni law. The personal law of the
purchaser is immaterial in such cases.

It would not, therefore, be quite correct to say that the law of pre-emption in force in India is the pure Sunni law of
pre-emption.

Constitutional validity of pre-emption

It has been held by the High Courts of Rajasthan, Madhya Bharat and Hyderabad that pre-emption on the ground of
vicinage (see 3 above) is void after 26th January, 1950. as it imposes an unreasonable restriction on the fundamental
right guaranteed under Article 19(1)(f) of the Constitution. However, pre-emption as between co-sharers (see 1
above) and owners of dominant and sentient heritages (see 2 above) is saved by Article 19(5) of the Constitution.

The Bombay. Allahabad and Patna High Courts have, however, taken a different view and upheld the constitutional
validity of pre-emption by all the three classes of persons mentioned above. However. the Supreme Court has now
approved the view taken by the Rajasthan High Court (above).

The Supreme Court has observed that ”the right of pre-emption is an incident of property and attaches to the land
itself. (Audh Singh v. Gajadhar Jaipuria, AIR 1954 S. C., 417)

In the above case, the Supreme Court held that where the right of pre-emption rests upon custom, it becomes the lex
loci or the law of the place, and the right of pre-emption attaches to the properties situated in that place.

The Allahabad High Court has also observed (in Jagmohan Prasad v. B. B. Singh,

”Where we have the existence of a right of pre-emption without specifying how that right is to be enforced or
exercised, or without laying down the full particulars of that custom, the presumption is that the right of pre-emption
is in accordance with the rights allowed by Muhammadan Law. This view has been laid down in a number of cases.
These cases have also been followed in subsequent cases” A Division Bench of the Bombay High Court has also
observed that the law of pre-emption continued to be valid law even after the enactment of the Constitution. and that
it had not been rendered void by Art. 13, read with Art. 19(1)(f) of the Constitution of India. (Bhimrao Eknath v. P
Ramkrishan, AIR 1960 Bom. 552)

Formalities (Three demands)

In order that a claim for pre-emption should be held to be valid, no particular formula is necessary, provided the
claim is unequivocally asserted.
But, under the Sunni law, certain formalities are strictly to be observed. No person is entitled to a right of pre-
emption. unless he or his manager. or any other person previously authorised by him in his behalf, has made the
following three demands, viz. —

1. Talab-i-mowasibat, i.e.. immediate demand (or demand of jumping), which is not effective unless it is followed by
a formal claim by talab-i-ishhad (-below-). Talab-i-mowasibat is an announcement by one entitled to pre-empt, of
his intention of making the claim This announcement is to be made immediately on his receiving information of the
sale, but after (and not before) the sale is completed

2. Talab-i-ishhad, i.e., demand with invocation of witnesses The talab-i-mowasibat (demand of jumping) is of no
effect, unless it is followed by a formal claim, which is called talab-i-ishhad (demand with invocation of
witnesses), in which the pre-emptor must — (1) affirm his intention to assert his right of pre-emption, referring
expressly to his having made the ’demand of jumping’ and (2) make a formal demand — (1) either in the presence
of the buyer or the seller, or on the premises which are the subject of sale, and (ii) in the presence of at least two
witnesses. Specially called to bear witness to this demand Any unreasonable delay in making this second demand
will defeat the pre-emptor’s right

The Muhammadan law relating to demand before filing a suit for pre-emption is of a highly technical nature

Thus, talab-i-mowasibat is the first demand and talab-i-ishhad is the second demand. The third formality consists of
the institution of the suit for pre-emption. Both the talabs are conditions precedent to the exercise of the right of pre-
emption. The talab-i-mowasibat (or first demand) should be made as soon as the fact of the sale is known to the
claimant Any unreasonable or unnecessary delay will be construed as an election not to pre-empt. (Shaikh
Mohammad Rafiq v. Khalilur Rahman and anr (1972) 11 SC W R. 102)

Tender of price not essential — It is not necessary to the validity of a claim of pre-emption that the pre-emptor
should tender the price at the time of talab-i-ishhad

3 Suit — The third formality is the institution of a suit for pre-emption. Shia law. — The Shia law does not recognise
any distinction between talab-i-mowasibat and talab-i-ishhad, and therefore, only one demand need to be made.

Right of pre-emption, when lost

The right of pre-emption is lost :

1 If the pre-emptor acquiesces in the sale, e.g., if he enters into a compromise with the buyer; or

2 If the pre-emptor, in his suit for pre-emption, joins with himself, as co-plaintiff, a person who is not entitled to pre-
empt. (Dwarka Singh v Sheo Shanker, (1927) 48 All. 810, 98 IC; 1007, (1927) A.A. 168. Mahant Tokh Narayan v
Ram Rachhya, (1926) 5 Pat. 96, 90 LC. 806 (25) A P 743: and Narayan v Karthiayani, (62) A Ker. 122.)

This view has, however, not been followed in Bachan Singh v. Bhopal Singh. (A I R 1966 Punj 36), where the
Punjab High Court held that when a person having no right of pre-emption is made a co-plaintiff by a pre-emptor,
the latter’s right is not forfeited.

Right of pre-emption, when not lost

The right of pre-emption is not lost merely because :

(1) prior to the sale, the pre-emptor had refused to buy the properly in respect of which the right is claimed; or

(2) the pre-emptor had previous notice of the sale, and he did not offer to purchase.

Legal device for evading pre-emption

The vendor may resort to the device of selling the whole of his properly excluding the portion, however small,
which just abuts on the neighbour’s property, and thus defeat that neighbour of his right.

He can also defeat the right of the pre-emptor by leasing out the property in perpetuity instead of selling it.

Difference between the Sunni and Shia law of pre-emption

1. As to who can claim it. — Under the Sunni law, a co-sharer, a participator in the appendages and owners of
adjoining lands are entitled to claim pre-emption. Under the Shia law, a co-sharer alone is entitled to claim pre-
emption, and that too, if the number of co-sharers does not exceed two. Thus, Shia law does not recognise the right
of pre-emption on the ground of ’vicinage”.

2. As to right to sue. — Under the Sunni law if the pre-emptor dies before obtaining a decree in a suit for pre-
emption, the right to sue is extinguished, whereas under the Shia law, the right to sue is not extinguished, and the
suit may be continued by the pre-emptor’s heirs.

3. As to abatement of price. — Under the Sunni law, if after the completion of the sale, the vendor makes an
abatement of the price, the pre-emptor can claim the benefit of the abatement. Under the Shia law, in such a case,
the pre-emptor cannot claim the benefit of the abatement of the price.

4. As to the number of demands. — Under the Sunni law, the talab-i-mowasibat and the talab-i-ishhad are the two
conditions precedent to the exercise of the right of pre-emption. Under the Shia law, the distinction between the two
demands is not recognised Only one demand is necessary.
CHAPTER 11

GIFTS (HIBA)

This Chapter is discussed under the following five topics :

A. General
B. Kinds of Gifts (Hiba)
C. Essentials of a valid gift
D. Void Gifts
E. Revocation of Gifts

A. GENERAL

Hiba defined

A hiba (or gift) is a transfer of property, made immediately, and without any exchange. by one person to another, and
accepted by or on behalf of the latter It is thus the conferring of property without consideration

Who can make a gift

Every Muslim who is of sound mind and is not a minor may dispose of his property by gift A Muslim, whether a
male or female, may dispose of the whole of his property, and his power of dispositon by gift is not restricted, as in
the case of his testamentary power of disposition, which is restricted to one-third of his property.

Thus. the Muslim law, which allows a testator only restricted powers of disposition over his property, contains no
such restriction as regards gifts inter vivos, but does not recognise such gifts as valid, unless possession is given to
the donee. The policy of the Muhammadan law appears to prevent a testator from interfering by will with the course
of the devolution of property according to law among his heirs, although he may give a specified portion, as much
as one-third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of
the law by giving, in his lifetime, the whole or any part of his property to any person, including only one of his sons,
provided he complies with certain formalities. (Khajooroonissa v. Rawshan Jehan, (1876) 3 I. 291, 2 Cal. 184, P. C.)

Incidents of a gift

A gift is a transfer of determinate property made immediately and without any exchange. It is essential to its validity
that the thing gifted should be in existence at the date of the gift, the donee should also be in existence, that he
should accept the declaration of the gift by the donor, and the donor should divest himself completely of all
ownership and dominion over the subject of the gift and deliver possession of the property to the donee.

Under Muslim law, a gift can be revoked at any time before delivery of possession. This is so, because before
delivery, there is no completed gift at all. However, once possession is delivered, the decree of a court is necessary
to revoke the gift. Until such a decree is passed, the donee is entitled to use and dispose of the subject matter of the
gift. (Someshwar v. Barkat Ullah, AIR 1963 Mad 489) However, in some cases, a gift cannot be revoked at all, as
for ;instance, a gift made by a husband to his wife or by a wife to her husband, or when the thing gifted is no more in
the possession of the donee (as when he has sold or gifted it).

Although a gift can, in certain cases, be revoked by the donor, this cannot be done by his heirs after the death of the
owner (See also, ”Revocation of gifts” discussed later in this Chapter.)
B. KINDS OF GIFTS (HIBA)

Gifts (hiba), in Muslim law, are of the following four kinds :

1. Sadaquah
2. Hiba-bil iwaz
3. Hiba-ba-shart-ul-iwaz
4. Areeat

1. Sadaquah

Where the object of the donor is to acquire merit in the eyes of the Lord and a recompense in the next world, the gift
is called Sadaquah. It is a gift with a religious motive. Like tuba. it is not valid unless accompanied by delivery of
possession. Unlike hiba, it cannot be revoked, the reason being that the object of such a gift is acquisition of
religious merit and that has already been acquired.

Sadaquah is a transfer of property or rights in all respects like a hiba, except that —

1. In the case of hiba, the object is to manifest affection towards the donee, or win his regard or esteem. In the case
of sadaquah, the object is to acquire merit in the sight of the Lord and a recompense in the next world.

2. Unlike hiba, a sadaquah, once completed by delivery of possession, cannot be revoked, whether made to a rich
or poor man.

3. Unlike hiba. sadaquah need not be expressly accepted

Like hiba, sadaquah is not valid unless accompanied by delivery of possession; nor is it valid if it consists of an
undivided share (mushaa) in property capable of division. It is not invalid if made to two or more persons, all of
whom are poor.

2. Hiba-bil-iwaz

Hiba-bil-iwaz is a gift for a consideration. It resembles a sale in that (a) transfer of title is complete without delivery
of possession, and (b) all the incidents of sale attach to it, including —(i) the liability of being pre-empted, where the
law of pre-emption is in force. and (ii) the right to return a thing for a defect.

To constitute a valid Hiba-bil-iwaz, the following two conditions must be present

(a) actual and bona fide payment of consideration (iwaz) on the part of the donee; and
(b) a bona fide intention on the part of the donor to divest himself in praesenti of the property, and to confer it upon
the donee.

A hiba-bil-iwaz literally means a gift for an exchange. It is of two kinds. namely (i) the hiba-bil-iwaz followed in
India, and (ii) the true hiba-bil-iwaz. as defined by older jurists. The true hiba-bil-iwaz of older jurists consisted of
two independent acts, namely, (a) hiba, or gift, and (b) iwaz or return gift. not stipulated at the time of the gift. Thus.
if A. without having stipulated for a return, makes a gift of his book to B. and B in consideration of the book, without
having promised it. subsequently makes a gift of a rupee to A, saying that it is iwaz or return for the gift of the book,
and delivers the rupee to A, the transaction is a true hiba-bil-iwaz and neither A nor B can revoke it.

But in the hiba-bil-iwaz as practised in India, there is only one act, the iwaz or exchange being involved in the
contract of gift as its direct consideration Thus, in the illustration given above. if A says to B ”I have given this book
to you in consideration of your paying me a rupee,- it is a hiba-bil-iwaz of India. Thus, it is in reality a sale, while
the true hiba-bil-iwaz is not a sale either in its inception or completion. In fact the Calcutta and the Lahore High
Courts have held that a transaction of this character is nothing but a sale, and that where it affects immovable
property of the value of a hundred rupees and above it must be effected by a registered instrument, as required by S
54 of the Transfer of Property Act.

The hiba-bil-iwaz of India was introduced here by Muslim lawyers as a device for effecting a gift of mushaa in
property capable of division.

Problems. — (1) With cordial affection, B render service to A, his Muslim friend, and showing him all favours of all
sorts, treats him with kindness and affection In consideration thereof, A conveys, by a registered deed, his house to
B, but before B is put in possession, A dies, and it goes in the possession of the heirs of A. Discuss whether B will
succeed in getting possession of the house on the strength of the conveyance

Ans — This is a hiba (simple gift) only It is not a hiba-bil-iwaz. There is no delivery. So. B will not succeed in
getting possession of the house on the strength of the conveyance alone. (Rahim Baksh v. Muhammad Hasan, (1881)
I.L.R. 11 All. 1)

(ii) A Muslim dies, leaving two brothers and a daughter. Subsequently. each brother relinquishes his share in favour
of the daughter in consideration of the other doing so. Is delivery of possession necessary to validate the
transaction ?

Ans. — Delivery of possession is not necessary to validate the transaction, because it is a hiba-bil-iwaz. and not
hiba, the relinquishment by one brother being the consideration for relinquishment by the other. (Ashidbai v.
Abdulla, (1907) I.L.R. 32 Com. 271)

(iii) A Muslim executed a deed in favour of his wife, whereby he granted certain immovable property to her in lieu
of her dower. Possession of property was not delivered to the wife. Is the transaction valid ?

Ans. — The transaction is valid. This is a case of hiba-bil-iwaz, and delivery of possession is not necessary to
complete the transaction. (Muhammad Esuph v. Pattamsa Ammal, (1900) I.L.R. 23 Mad. 70)

(iv) A Muslim gifts certain property to his fiancee in consideration of her promise of marriage, and subject to the
condition that debts due on the property be discharged by her. Is transaction valid ?

Ans. — Yes. It has been held in Ismail Beevi v. Sulaikkal Beevi, (1967) A.M. 250 that a gift in consideration of
promise of marriage, and subject to the conditions that debts due on the property be discharged by the donee, is
valid.

(v) A, a Sunni Muslim, who had agreed to marry B on payment of Rs. 2,500 as Mahr, married her by making a gift of
a house in lieu of Mahr. The entry in the register of the Kazi who performed the ceremony read as follows :

”The marriage was contracted by a gift of the house in lieu of Mahr of Rs. 2,500.” B then came to live in the same
house and mutation was effected in the name of B in the Government records. After one year, B went to reside with
her parents. A then sold the house to C and put him in its possession. B then filed a suit against C to recover
possession of the house. C contended that the gift was a hiba-bil-iwaz and as it was not registered, B had no title.
Will B succeed ?
Ans. — No, B will not succeed. In such a case, it has been held that the transaction was a simple hiba, and neither a
sale nor a hiba-bil-iwaz No writing is necessary for the validity of such a gift, but it would not be complete and valid
without delivery of such possession as the subject of the gift is susceptible of. (Jaitunibi v Fatrubhai. 1947 46 Bom.
L.R. 669)

3. Hiba-ba-shart-ul-iwaz

Where a gift is made with a stipulation (shart) for a return it is called hiba-ba-shart-ul-iwaz. As in the case of hiba,
in the case of hiba-ba-shart-ul-iwaz also, delivery of possession is necessary and the gift is revocable until the iwaz
is paid On payment of iwaz (consideration) by the donee. the gift becomes irrevocable The transaction, when
completed by payment of iwaz is, however, not very common in India

4. Areeat

An areeat is the grant of a licence, revocable at the grantor’s option. to take and enjoy the usufruct of a thing.

The four essentials of an areeat are that (i) can be revoked. (ii) it must be a transfer of ownership in the property:
(iii) it must be for a definite period. and (iv) it does not devolve upon the heirs of the donee on his death. Difference
between

Hiba

(i) Hiba is a transfer of ownership without consideration.

(ii) Hiba is revocable, except in certain cases.

Areeat

(i) In Areeat, the transferee only obtains the use of beneficial enjoyment for a limited time, ownership does not pass
to him

(ii) Areeat is revocable in every case.

Distinct between the abovementioned four kinds of gifts

A hiba simple is a transfer of ownership in a thing without consideration, completed by delivery of possession, and
revocable except in certain cases. A hiba-bil-iwaz of India is a sale from its inception, and delivery of possession is
not necessary to its validity. A hiba-ba-shart-ul-iwaz is a gift of ownership in a thing with a stipulation for
consideration. completed by delivery and revocable until payment of the stipulated consideration. An areeat is a
transfer only of the usufruct and is also revocable A Sadaquah is a hiba with the object of acquiring religious merit
and is irrevocable.

Difference between

Hiba, Hiba-bil-lwaz, Hiba-ba-shart-ul-iwaz

1. As to transfer of ownership —

Hiba is a transfer of ownership without consideration

Hiba-bil-iwaz is a transfer of ownership for a consideration. Though the iwaz is involved in the contract of a direct
consideration. there is no express stipulation for a return It is voluntary. The gift is in the nature of a sale It is a gift
on receiving something in exchange

Hiba-ba-shart-ul-iwaz is a transfer of ownership for consideration. The gift is made with an express stipulation for
an iwaz. On payment of the stipulated iwaz, it partakes of the nature of sale Exchange is made a condition of the
gift.

2. As to delivery of possession —

Delivery of possession is necessary to make the gift valid.

Delivery of possession is not necessary to make the gift valid.

Delivery of possession is necessary to make the gift valid.

3. As to mushaa (i.e., undivided share) —

Hiba of mushaa where property is divisible is irregular.

Hiba-bil-iwaz of mushaa where property is divisible is lawful.

Hiba-ba-shart-u-liwaz of mushaa where property is divisible is irregular.

4. As to revocability —

Hiba is revocable, except in certain cases,

Hiba-bil-iwaz is not revocable in any case.

Hiba-ba-shart-uliwaz is revocable; but it becomes irrevocable on delivery by the donee of the iwaz to the donor.

C. ESSENTIAL OF A VALID GIFT

The following are the important essentials of a valid gift under Muhammadan Law

1. The Donor must be competent

The donor must have a capacity to make a gift, ie., he must be a major and of a sound mind. He may dispose of the
whole of his property by gift in favour of any person including a stranger, even to the entire exclusion of his heirs.
There are no limits on the power of the donor to dispose of his property, as there are on the testamentary ,capacity of
a testator.

The donor’s intention must not be dishonest, as where a gift is made with intent to defraud creditors.

A gift can be made of an actionable claim, as also of incorpareal property, such as an equity of redemption.

2. Declaration and acceptance

There must be a declaration of the gift by the donor and an acceptance of the gift, express or implied, by or on
behalf of the donee.

3. Delivery of possession

It is essential to the validity of a gift that it should be accompanied by delivery of possession, depending, of course,
on the nature of the property gifted. The taking of possession of the subject-matter of the gift by the donee, either
actually or constructively, is necessary to complete a gift. Registration of the deed of a gift does not cure the want of
delivery of possession. Neither writing nor registration is necessary to validate a gift either of movable or
immovable property

Thus, A by a registered deed, makes a gift of his house to B. who sells it to C. Can C claim possession from A, who
all along continued in actual possession of the house ? No. Although the gift to B is by a registered deed, possession
is not delivered to B. The gift is incomplete, and therefore, void. The sale by B to C. is, therefore. ineffective and, C
cannot claim possession from A. (Mogulsha v Mohammad Saheb, (1887) I.L.R. 11 Bom. 517)

Hiba and the Transfer of Property Act

By virtue of S. 129 of the Transfer of Property Act, the provisions of that Act (except S. 53, — see below —) are
made inapplicable to Muhammadan law, as such, that a gift must be in writing A fortiori, there is no such rule that
the gift must be by way of a registered instrument. It there is no delivery of possession, there is no valid gift Even a
registered deed of gift is not effectual under the Muhammadan law, if it is not acompanied by delivery of possession.

Section 53 of the Transfer of Property Act (dealing with fraudulent transfer), is, however, applicable to a gift by a
Muslim Therefore, a gift by a Muslim with intent to defraud his creditors is voidable at the option of the creditors.

Meherali v. Tajuddin. (1888) I.L.R. 12 Bom 156 — A executed a deed of gift in favour of B, conferring upon him,
the proprietary right to certain lands then in possession of Z and claimed by Z adversely to A. A died without
acquiring possession of the lands. Alter A’s death B sued Z to recover possession from him. The Court held,
dismissing B’s suit, that the gift was invalid, in as much as neither A nor B was in possession of the land before or
after the gift.

Sarifuddin Muhammad v Mohiuddin Mahammad (1927) I.L.R. 54 Cal 754 — A Muslim woman transfers certain
immovable properties, by way of a deed of gift, to her nephews, upon a condition that they should pay her Rs 900
every year for her maintenance. She also reserves a right of residence for herself in one of the properties. The deed
contains a stipulation that if the payments are not regularly made, she would be at liberty to recover the property by
a suit. The deed is duly registered The transaction is void. The nephew cannot successfully argue that it is a valid
gift, because the payment of Rs. 900 is not made dependent on the profits of the corpus being sufficient to meet it.

Aga Mahomed v Koolsom. (1898) I.L.R. 25 Cal, 9 P.C. — A Muslim husband hands over to his wife a receipt passed
to him by a Bank for Rs 50 000 deposited by him with the Bank that day and says to her ’I hereby make a gift of
this sum to you: tomorrow I shall go to the Bank and transfer all necessary papers to your name: The receipt bears
an endorsement in the margin ”Not transferable.” The husband dies before effecting the transfer with the Bank. In
these circumstances, the widow cannot claim the amount, there being no delivery of possession. As the donor dies
before effecting a transfer with the Bank, the gift is not complete and the widow cannot claim the amount.

Modes of delivery
1 Where the gift is of moveble property, it is not complete unless the property has been actually delivered. Where
the subject-matter of the gift consists of money an entry in the books of account to the effect that the money has been
paid over to the donee does not in itself, operate as a completion of the gift. There must also be sufficient evidence to
show that the assets of the donor are sufficient to support the gift to the donated amount.

In Muhammad Kasim v Controller of Estate Duty (1967, A. Ker. 130), it was held that where the share of the donor
in the assets of the partnership on the date of the gift was sufficient to support the gift of the donated amount, the
debit entry in the accounts of the donor-partner and the credit entries in the accounts of the donee-partners, were a
sufficient declaration of the gift by the donor, a sufficient acceptance of the gift by the donee and a delivery of such
possession as the subject of the gift was susceptible of.

2. Where the gift consists of the corpus of immovable property, but the donor reserves the usufruct and to himself
and continues in possession, — an act giving constructive possession, e.g., payment by the donee of Government
revenue after the date of the gift in respect to property, will complete the gift.

Muhammad v. Farukh Jahan. (1922) 49 I.A. 1959. — A, a Muslim, makes a gift of the corpus of his property to B,
but reserves the usufruct to himself, and continues in physical possession of the property. B pays the Government
revenue in respect of the property after the date of the gift. Here, the gift is valid. The payment by B, of Government
revenue in respect of the property after the date of the gift amounts to constructive possession of the property by B.

3. Where the gift is of immovable property of which the donor is in possession, — the gift is complete only by
delivery of actual possession. The donor must physically depart from the property with all his goods and chattels,
and the donee must make a formal entry. To this rule, there are the following six exceptions :

(a) In the case of gift of immovable property by a husband to his

wife, it is not necessary for the husband to depart even temporarily, provided it can be inferred from the surrounding
circumstances that he had a real and bona fide intention to make the gift.
(b) The second exception is the converse case of a gift by a wife to her husband, and the same principle applies to
this exception also.
(c) The third exception is the case of a gift by the father or other guardian to a minor or lunatic. The declaration of
the gift is sufficient to change the possession of the father or other guardian on his own account into possession on
the minor’s account. The word ’guardian’ referred to here means a guardian of the property of the minor. If the gift
is given by any person other than the guardian of the property of the minor, delivery of possession must be made to
the guardian of the property of the minor or lunatic (as the case may be) in order to complete the gift
(d) Where the subject-matter of a gift consists of shares in Zamindari villages and parcels of land in the case of
which physical possession is impossible, the gift may be completed by mutation of names, and transfer of rents and
income arising out of or derived from the property Actual possession is not necessary where the property gifted is
not capable of being possessed physically All that is required in such cases is that steps should be taken to place the
donee in a position to obtain possession effectively and to invest him with authority for that purpose. (e) Where the
subject-matter of the gift is in the hands of the donee as a bailee, it is not neccessary for the donee to go through the
formality of taking fresh possession in order to effect the transfer of ownership.
(f) Where the donor and the donee are both resident in the subject-matter of the gift at the time when the gift is
made, it is not necessary that the donor should actually depart from the property, provided an unequivocal intention
to transfer the property, on the part of the donor, is manifested, e g.. mutation of names in favour of the donee, and
payment of municipal taxes, etc., by the donee.

4. Where the gift consists of immovable property, which is in the occupation of tenants, a request by the donor to the
tenants to attorn to the donee will constitute a valid gift.
5. Where the gull is of incorporeal property or an actionable claim, — any act on the donors part showing a clear
intention to divest himself in praesenti of the property and to confer it upon the donee will suffice

6 Equity of redemption. — The Calcutta and Madras High Courts have held that a vaild gift can be made by a
mortgagor of his equity of redemption. even though the property may be in possession of the mortgagee

The Bombay and the Lahore High Courts have, however, held that a gin of equity of redemption, when the
mortgagee is in possession of the property. is not valid. In a later Bombay case, Shah, J., while leaving the question
open, remarked, ’When the simple question arises as to whether the equity of redemption, where the property is in
the possession of the mortgagee, could form the subject of a valid gin according to Muhammadan law. these
decisions would require to be reconsidered, probably by a Full Bench.”

7 Property held adversely to the donor. — Where the subject matter of the gift is in the possession of a person
holding the property adversely to the donor. the gift is not valid, unless the donor recovers possession. and puts the
donee in possession thereof. Such a gift is weld if the donor does all that he can do to complete the gift as to put it
within the power of the donee to obtain possession. (Mohomed Buksh v. Hussein; Bibi 1885, 15. I.A. 81)

Kalidas v Kanhaya Lal. (1884) 11 I.A. 218. — A executes a deed of gift of immovable property in favour of B. At
the date of the gift. the property is in the possession of C, who claims to hold it adversely to A. in the suit as a party
defendant. A by written statement, admits A. B sues C; to recover possession of the property from him, joining A in
the suit as a party defendant A. by his written statement, admits B’S claim In this case, the gift in favour of B is
complete. A gift of property held adversely to the donor is valid if he does all that he can do to complete the gift, so
as to put it within the power of the donee to obtain possession.

[Also see Maqbool Alam v. Khodaija, (1966) A.S.C. 1194.]

Problems

(i) A Muslim executes a deed in favour of his wife, whereby he grants certain immovable property to her in lieu of
her dower. Possession of property is not delivered to the wife. Is the transaction valid

Ans.— This is not a gift, but a transfer in satisfaction of dower — a debt, and hence delivery of possession is not
necessary. The transaction is, therefore, valid.

(ii) A Muslim lady executes a deed of gift in favour of her nephew of a house in which they both reside. The nephew
continues to live with her in the house after the execution of the deed. The deed contains no recital that possession is
given. The deed is not delivered to the nephew and the lady pays municipal taxes after the execution of the deed. Is
the gift valid ?

Ans.— No. The facts indicate that the lady never parted with the ownership of the house.

(iii) A, a Sunni Muslim, made an oral gift of his property to his minor grandsons (sons of his daughter) who, with
their parents, were living with him. There was no mutation of names and no transfer of possession to any one on
their behalf. On the contrary, A’s possession and management continued as before. On A’s death, B, his brother,
challenges the gift and claims as an heir. Can B succeed ?

Ans. — No, as there is neither delivery of possession nor relinquishment of control over the property by A, B cannot
succeed.
Gift through the medium of trust

A valid gift through the medium of a trust can be created in Muhammadan law, provided that formalities prescribed
in the case of a gift made directly to the donee, viz., acceptance and delivery of possession, are duly observed A gift
which fails for non-observance of the necessary formalities will not be valid, simply because it is in the nature of a
trust. A gift in the nature of a trust must be accepted by the trustee, and possession of the property must be given to
the trustee. If the donor himself is to be the trustee, it is sufficient if he turns his possession into one as a trustee of
the donee.

It is to be noted, that no Muslim can — (a) create, through the medium of a trust, an estate not recognised by
Muhammadan law. (Thus, a gift to an unborn person of a ”vested remainder”, not being recognised under the
Muhammadan law, a settlement by way of trust in favour of an unborn person of a ”vested remainder” will also not
be valid.)
(b) settle property for the benefit of persons who are incapable of taking under a gift.

Saikh Hussain v Hashim Ali, (1916) 43 I.A 212 - A. a Shia .Muslim executes a deed purporting to transfer certain
immovable properties to B, C and D as trustees for the benefit of his wife and children. The deed is executed by A
and it is registered It is not executed by B. C and D, or any of them. None of the properties is transferred to the
names of the trustees, and A continues to be in receipt and enjoyment of the rents as before.

In the above case, there is no valid gift. There is neither the acceptance of the trust by the trustees, nor is there any
delivery of possession to the trustees.

D. VOID GIFTS
The following six kinds of void gifts are discussed below .
1. Gifts of future property
2. Contingent gifts
3. Gifts to unborn persons
4. Conditional gifts
5. Gifts of undivided share (mushaa)
6. Gifts of property held adversely to the donor.

1. Gifts of future property

Under Muhammadan law, a gift of future property cannot be made. The property to be gifted must be actually in
existence at the time when the gift is made. It, however, the donor is entitled to a right to receive the fruits of any
property, the gift of the right would be a legal gift, provided the owner divests himself wholly of the property gifted.
A gift which is made to take effect in future is void.

Where a Muslim donor does not reserve his right over the corpus of the property, but stipulates that he would,
during his life, enjoy the recurring income thereof, the gift is valid.

Yusuf v Collection of Tippera, (1822) I.L.R. 9 Cal. 138. — Where a donor executed a deed of gift containing the
words, ”So long as I live. I shall enjoy and possess the properties and I shall not sell or make a gift to any one, but
after my death, you will be the owner,” the gift was held to be void

Similarly, where the donor created a trust reserving the first life-estate to himself, it was held that the gift was void,
as the so called trust-deed did not create any gift in praesenti, but the gift was to become operative only on the
death of the donor. Problem
A Muhammadan executes a deed in favour of his wife, purporting to give to the wile and her heirs in perpetuity Rs.
4,000 every year out of his share of the income of certain Jagir villages. Discuss whether the gift is valid

Ans.- The gift is void, as being a gift of a portion of the future revenue of the villages.

2. Contingent gifts

If a gift is made contingent upon the happening or not happening of a future uncertain event, such a gift is void in
Muhammadan law.

Gift of Insurance Policies

According to Muslim law, a declaration purporting to be a transfer of certain property by way of hiba to the donee at
a future time contingent on the happening of a certain event is void; again, if the hiba is attached with a condition
annexed, the gift is valid, but the condition is void.

That being so, the question arises, whether an assignment of a policy of insurance by a Muslim husband to his wife,
is a void or valid gift. For example, suppose a Muslim husband, H, insures and assigns his policy to his wife, W with
the condition that if W predeceases H, the assignment will be inoperative, and in that event, will revert to H. This
transaction can be looked at from different points of view. It may be considered as creating a valid contractual
obligation between the insurrer and the assured; or it may be regarded as a gift by a Muslim vitiated by a
contingency, and therefore, invalid under Muhammadan law. Or, it may further be argued that it is a gift with a
condition attached, and hence the condition is void and the gift is valid.

To set this controversy at rest, Section 38 of the Insurance Act, 1938, lays down that, ”Notwithstanding any law or
custom having the force of law to the contrary, an assignment in favour of a person made with the condition that it
shall be inoperative, or that the interest shall pass to some other person, on the happening of a specified event during
the lifetime of the person whose life is insured, and an assignment in favour of the survivors of a number of persons,
shall be valid.” Thus, where a husband assigned policies of insurance to his wife by a valid endorsement on the
condition ’that in the event of my said wife predeceasing me, this assignment was held to be perfectly valid. (Sadiq
Ali v. Zahida Begum, (1939) I.L.R. 61 All. 957)

Problem. — S. a Shia Muslim, took out a policy of insurance on his own life, and thereafter assigned to his wife N,
by way of gift, but subject to the condition that if N died before the sum insured became payable or if S survived the
date on which the policy matured, the gift was to stand revoked, and the assignment was to be of no effect. N died
just before the policy matured. On her death, her heirs claimed the amount of insurance as belonging to her estate S
filed a suit contending that the right was contingent and therefore bad in law, and, in any event, it stood revoked
under the terms of the assignment Will S succeed

Ans. — Under Muhammadan law, a gift cannot be made to take effect on the happening of a contingency. The terms
of the assignment of the policy by S Cleary show that the gift is contingent S 28 of the Insurance Act, 1938,
however, provides that such assignments of policies are valid, notwithstanding any law or custom having the force
of law to the contrary. The words any law or custom” in S 38 are wide enough to cover Muhammadan law and,
therefore, the gift is not bad in law though contingent. (See Sadiq Ali, Zahida Begum.11919) IL P 61 All 957
discussed above.) But S 39 of that Act provides that, if the nominee dies before the policy matures for payments, the
amount secured by the policy shall be payable to the policy-holder. Therefore, the policy money is payable to S, and
not to N’s heirs.
3. Gifts to unborn persons

A gift made to a person not in existence at the date of the gift is not valid. Even when the gift to an unborn person is
made through a trust, the gift is not valid. The only way in which a disposition may be made to an unborn person is
by way of wakf

4. Conditional gifts

When a gift is made subject to a condition which derogates from the completeness of the grant, the gift is valid, but
the condition is void. Thus, if A makes a gift to B on condition that B shall not sell the property gifted, B will take
the property as a valid gift, and he will not be bound by the condition, But, where the condition is not for the
return of the corpus of the thing itself or any part of the corpus, but only for the payment of the interest or profits of
the corpus, both the condition and the gift are valid.

Problems

(i) A Muslim lady transfers certain immovable properties by way of gift to her nephews, on condition that they
should pay her Rs. 900 every year for her maintenance. She also reserves a right of residence for herself in a portion
of one of the properties. The deed of gift contains a stipulation that if the payments are not regularly made, she
should be at liberty to recover them by a suit. Is the gift valid ?

Ms — This is not a valid gift. for the payment of Rs. 900 is not made dependent upon the profits of the corpus being
sufficient to meet it the consideration for the transfer is the promise to make the payment in any event (Sarifuddin v
Mohiuddin. (1927) I.L.R. 51 Cal. 754. discussed earlier in this Chapter.)

(ii) A Muslim executed a deed of trust of part of his property for the benefit of his sons. with the condition that he
was to remain in possession so long as he lived, with power to deal with the rents and that legal estate was to pass to
his sons after his death. Discuss the validity of the gift of the property to the sons and the validity of the condition.

Ans — In this case, both the condition and the gift are invalid.

(iii) A Shia makes a gift of property to A and B in equal shares, with a condition that if either of them dies without
male issue, his share should go to the other Is the condition valid ?

Ant— In Musammat Wahibunnisa v Mushaf Husain (2 Luck. 117), it was held that the condition is valid according to
Shia Law. But the reasoning in Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan, (1948) 75 I.A 62, would indicate
that the gift would be void, and A and B would take absolutely.

According to the Sunni Law, the condition would be void, and A and B would each take his share of the property
absolutely, and it would descend on his death to his heirs.

(iv) A makes a gift of certain property to B. It is provided by the deed of gift that B shall not transfer the property. Is
the restraint against alienation valid ? Is the gift valid or void ? Give reasons for your answer

Ans.— The restraint against alienation is void, and B takes the property absolutely. (Babu Lai v. Ghansham Das,
(1922) I.L.R. 44 All. 633)

(v) A Muslim makes a gift of his house to his son B with a condition that B should give the income of 1/3 of the
house to A’s grandson C, during C’s lifetime. Is the gift valid ?
Ans.— Yes. Both the gift as well as the condition are valid. Here, the condition is not for the return of the house or
part of it, but only for payment of the interest of profits of the house.

(vi) A, a Muslim, makes a gift of Government promissory notes to B, on condition that B should return a fourth part
of the notes to A after a month. Is the gift valid ?

Ans.— The gift is valid, but the condition is void. B will get the notes as a valid gift, but he will not be bound by
the condition to return a fourth part of the notes to A after a month.

5. Gifts of undivided shares (mushaa)

In Muhammadan law, a gift of an undivided share in a property which is capable of division is not valid. An
undivided share in property, whether movable or immovable, is called mushaa. A valid gift may be made of a
mushaa in property which is not capable of division.

However, a gift of mushaa is valid under the Shia law, even if the property is capable of division.

A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void
(batil), but a gift of an undivided share in a property which is incapable of division (e.g., a staircase which is
common between the gifted property and the neighbouring property) is valid.

Thus A. who owns a house, makes a gift to B of the house and of the right to use the staircase used by him jointly
with the owner of an adjoining house. Is the gift of the right to use the staircase valid ?

Yes, The gift of the right to use the staircase, though it is a gift of mushaa is valid, for a staircase is not capable of
division (Kasim Hussain v. Sharif-un-Nissa, (1883) IL R. 5 All 285)

Delivery of possession is a necessary condition to validate a gift. The gift of an undivided share where property is
capable of division is, as a general rule, not valid, because, in such cases, delivery of possession becomes
impossible, unless the part given is divided off So long as the property remains undivided, possession cannot be said
to be effectively given. Such a gift. however, may be perfected and rendered valid by subsequent partition and
delivery of possession

Thus. A makes a gift of her undivided share in certain lands to B The share is not divided at the time of gift. but it is
subsequently separated and the possession thereof is delivered to B. Here, the gift is irregular in its inception, but it
is validated by subsequent delivery of possession. (Muhammad Mumtaz v. Zubaida Jan, (1869) 16 I A 205)

The rules of Muhammadan law, including the rule regarding a gift of mushaa, were promulgated many centuries
ago under a very different state of laws and society from that which now prevails in India. Therefore, efforts are
made to soften the rigidity of the rule regarding mushaa where the altered conditions of life necessitate it, and try to
bring it in accord with the requirements of progrees It was observed by their Lordships of the Privy Council in
Muhammad Mumtaz v. Zubaida Jan, (1889) 16 I.A. 205, 215 that ”the doctrine relating to the invalidity of the gifts
of mushaa is wholly unadapted to progressive state of society, and ought to be confined within the strictest rules.’
Gift of a mushaa, when valid

A gift of an undivided share (mushaa) though it be a share in property capable of division, is valid (even If the
share is not divided and delivered to the donee) in the following three cases
(i) Gift by heir to a co-heir. - Thus, a Muslim woman dies leaving a mother, a son and a daughter as her only heirs.
The mother can make a valid gift of her undivided share in the inheritance to the son, or to the daughter or Jointly to
the son and the daughter. The mother, the son and the daughter are co-heirs. Therefore, the mother can make a valid
gift of her undivided share to the son or to the daughter or jointly to her son and the daughter (Mahomed Buksh v.
Hooseini bibi. (1888) 15 I A. 81)

Under Muhammadan law, it is not necessary that the gift should be by a registered deed Even an oral gift is valid.

(i) Gift of a share in a zamindari or a taluka. - In such a case, what is gifted is the right to receive, and to collect
separately, a definite share of the produce or rents of an undivided land, and hence, it is valid.

(ii) Gift of a share in a company or in a freehold property in a large commercial town. e.g., a gift of a share in a
house in a town like Murnbai or Kolkata

Thus. A. who owns a house in Mumbai, makes a gift of one-third of the house to B. Is the gift valid ? Yes, where a
gift is of undivided share in freehold property in a large commercial town, it is valid, even though the property
remains undivided and no possession is effectually delivered (Ibrahim Goolam Ariff v Saiboo, (1908) 34 I.A. 167)
Mumbai is a large commercial town. therefore, in the given problem, the gift of one-third of his house in Mumbai by
A is valid.

Gift to two or more donees

A gift of a property, which is capable of division, to two or more donees, without dividing their shares, is valid, if
possession is given by the donor to the donees, notwithstanding the fact that the property has not been divided
between the donees

Problem. - M. a Muslim, made a gift of a plot of land and other immovable properties to B and C by a registered
deed of gift, and put B and C in possession of the land and properties. M died, and after his death, B and C effected
a partition of the properties gifted to them, and the land came to the share of B. Thereafter, the heirs of M
dispossessed B of the said land. B files a suit against the heirs to recover possession of the land and mesne profits. Is
he entitled to succeed ?

Ans.- A gift to two or more than two persons of land, whether as pint tenants or as tenants in common, if completed
by possession, is valid. B is, therefore, entitled to succeed. (Musa v. Bade Saheb, 32 Bom. L.R. 1108)

6. Gifts of property held adversely to the donor

A gift of property by one who claims it adversely to the donor is not valid, unless the donor obtains and delivers
possession of the property to the donee, or does anything to put it within the power of the donee to obtain
possession.

In Maqbool Alam v. Khodaija (A.I.R. 1966 S.C. 1194), it was held that there can be a valid gift of property in the
possession of the lessee or a mortgagee, and a gift may be sufficiently made by delivering constructive possession
of the property to the donee. The view that a property in the possession of a usurper cannot be given away, is too
rigid. The donor may make a valid gift of a property in the possession of a trespasser, provided he either obtains and
gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain
possession. A gift of a property in the possession of a trespasser is not established by a mere declaration of the donor
and the acceptance of the donee. There must also be delivery of possession or some overt act on the part of the
donor to put it within the power of the donee to get possession.
Gift of a life-estate (Amree), how far valid

”An Amree (or life-grant) is nothing but a gift and a condition, and the condition is invalid, but the gift is not
rendered null by involving an invalid condition” (Hedaya, 489)

On this point, there is a difference of opinion between the Hanafl and the Shia law. The Hanafi law treats such a
gift as a gift with a condition, the gift being valid and the condition being void; but, in Shia law, the creation of a
life-estate is valid, and therefore, the gift of a life-estate (Amree) is also valid.

11 should be noted, however, that even the Hanafi law as to the gift of the life-estates, as stated above, has been
considerably modified by the decisions of the Privy Council in Amjad Khan v Ashraf Khan, (1929) 56 LA. 213 and
Nawazish Ali Khan v Ali Raza Khan. (1948) 75 I.A. 62. In the former case, the Privy Council has ruled that under
Muslim law, a life-interest cannot be enlarged into an absolute interest, and that such an estate is not to be
considered as a gift with a condition, so that the gift would be valid and the condition would be void. (Both these
cases are discussed later.)

The Hedaya discloses the tradition that the Prophet approved of Amrees (gifts for life). A donor can carve out the
usufruct of the property gifted to another person, and reserve the enjoyment of that usufruct either for himself during
his lifetime, or grant it to another person for his life. The gift of the usufruct, as well as that of the corpus, are both
valid. (Muhammad v. Fakhr Jahan, (1922) 49 I.A. 195)

How far life-estates are recognised in Muslim law

Neither the texts nor the decided cases go so far as to hold that the creation of a life-estate is so repugnant to
Muhammadan law that it would be absolutely void. In Humeeda v. Budlun, (1827) 17 WR 525, the Privy Council
has laid down that as the creation of a life-interest is not in accordance with ordinary Muslim usage, the person
urging the creation of such an interest must prove his case strictly. Thus Humeeda’s case does not suggest that,
according to Muhammadan law, such an interest cannot be created.

In a series of decisions, it had been taken to be a well-settled rule of Muhammadan law that, under the Hanafi
system, a gift of a life-estate operated legally to confer an absolute estate on the donee, on the principle that the gift
was good and the condition was void. It was considered to be the Sunni law that gift of an interest in property did
confer an absolute interest in the corpus, the rule being based on a passage in the Hedaya to the effect that, where
there is a gift (Hiba) followed by a condition repugnant to the gift, the gift remains and the condition is rejected But
this rule does not appear to involve the enlargement of what is. in terms, a life-interest, into an absolute interest If
life-interests are not to be held valid, then it is more in consonance with the theory of the voluntary nature of gifts to
hold that, as there has been no intention to transfer the property absolutely, the transfer fails, than to hold that though
the intention was to transfer only a life-unterest, yet the absolute interest is transferred.

The Privy Council, in Amjad Khan v. Ashraf Khan. (56 IA 213), overruled the earlier decisions, and held that the
life-estate cannot be enlarged into an absolute estate, and although in this case the question whether the gift of the
life-estate was valid under Muhammadan law was left open, it can be inferred from the judgment in the case that
there is no hard and fast rule that, under the Muslim law, a life-estate is inconsistent with Muslim law.

In Nawazish Ali Khan v Ali, Raza Khan, (1948 75 I.A. 62), a testator, who was a Shia. bequeathed his property to A
for life (if he was alive), then to B for life (if alive at the time of A’s death), and then to C for life (if C was alive at
the time of as death). The last devisee was then given the power to nominate, as his successor, any one whom he
considered fit from amongst the descendants of A, B and C. The Privy Council held that this power of appointment
was invalid.

In the course of its judgment, the Privy Council observed as follows

The duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from
absolute dominion over the subject of the gift will be rejected as repugnant; but, if upon construction, the gift is held
to be one of a limited interest, the gift can take effect out of the usufruct, leaving the ownership of the corpus
unaffected, except to the extent to which its enjoyment is postponed for the duration of the limited interest.”

Thus, the question is always one of construction. In Nawazish All Khan’s case, the Privy Council also made the
following observations, which cover Sunni cases also : ”In general, Muslim law draws no distinction between real
and personal property; it does not recognise the splitting up of -ownership of land into estates, distinguished in point
of quality, like legal and equitable estates, or in point of duration, like estates in fee-simple, tail, for life, or in
remainder. What Muslim law does recognise and insists upon is the distinction between the corpus of the
property itself (ayn), and the usufruct in the property (manafi). Over the corpus of the property, the law
recognises only absolute dominion, heritable, and unrestricted in point of time; and where a gift to the corpus seeks
to impose a condition inconsistent with such absolute dominion, the condition is rejected as repugnant, But interests
limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect
subject to any such limited interests. But, though the same terms may be used in English and Muslim law, the two
systems of law are based on quite different conceptions of ownership.. Their Lordships think that there is no
difference between the several schools of Muslim laws in their fundamental conception of property and ownership.”

’Estate for life’ and ’vested remainder’

The Sunni law does not recognise what is known in English law as ”vested remainders”, though it recognises life-
estates.

In Abdul Wahidkhan v. Nuranbibi, (1885) 12 I.A. 91 (1885) I.L.R. 11 Cal. 597, the Judicial Committee held that
’vested remainder’ did not seem to be recognised by Muhammadan law, and hence, the survivor cannot take the
interest, unless he survives the tenant for life. The observations in this case must, however, be read subject to the
Privy Council decision in Nawazish Ali Khan v. Ali Raza Khan, (1948) 75 1.k 62 (discussed above).

An estate for life is not a gift and a condition. When a life-estate in a particular property is given to a donee, what is
given is not the property itself, but only an interest therein or the usufruct of the property The corporeal thing itself
is not given. Thus, when a house is given to A for life and then to B, the house itself is not assigned to A. he envoys
the usufruct of it. Such a gift cannot be interpreted as a gift of the house itself and a condition to return the house
(either to the donor or) to B, because the house itself was never intended to be gifted away. , The gift-over which is
to take place after the termination of the life-estate is what is referred to as the ”vested remainder” in English law.
Thus, where property is given to A for life and then to B, the interest which is created in favour of B, is called a
vested remainder. If B dies during the lifetime of A according to the English law, Be heirs will take the interest which
B would have taken According to the Sunni law, which does recognise life-estates. Be heirs will not take the interest
which he would have taken had he survived A.

The Shia law, however, allows the creation of life-estates and vested remainders.

(A reference may be made to Chapter XV for a fuller discussion of this topic under the heading ”Life-estate and
vested remainder”)

E. REVOCATION OF GIFTS Gift, when revoked

As seen earlier, gift may be revoked by the donor (but not by his heirs after his death) at any time before delivery of
possession. Until delivery of possession, there is no complete gift. Therefore, before delivery the gift is always
revocable by the donor. In theory, a gift may be revoked even after delivery of possession, except, in certain cases:
but in effect, because of wide exceptions, once the possession is delivered, nothing short of a decree of Court is
sufficient to revoke the gift Neither a declaration of revocation by the donor, nor even the institution of a suit for
resuming the gift, is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of
the subject of gift

Under Sunni law. a gift may be revoked even after delivery of possession. except in the following nine cases

1. When the gift is made by a husband to his wife, or by a wife to her husband
2. When the donor and the donee are related to each other within prohibited degrees.

3. When the donee is dead.

4. When the thing given has passed out of the donee’s possession,
5. When the thing given is lost or destroyed.
6. When the thing given has increased in value, whatever be the cause of the increase.
7. When the thing given is so changed that it cannot be identified, as for instance, when wheat is converted into
flour.
8. When the donor has received something in exchange for the gift
9 When the gift is sadaquah.

The reason why a gift to a person other than a husband or wife or to a person other than one related within the
prohibited degrees may be revoked is thus stated in the Hedaya (p. 486) : The object of a gift to a stranger is a
return; for, it is a 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 a person of equal rank. that he 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.”

Shia law

According to the Shia law —

(i) a gift may be revoked by a mere declaration; no judicial decree is necessary;
(ii) a gift between husband and wife is revocable; and
(iii) a gift to any blood relation, whether within the prohibited degrees or not, is not revocable after delivery of
possession.

CHAPTER 12

DEATH-ILLNESS (MARZ-UL-MAUT)

Marz-ul-maut defined Marz-ul-maut or death-illness is an illness which induces an apprehension of death, in the
near future, in the person concerned, and which actually results in his death.
An essential condition of marz-ul-maut is that the person suffering from the marz (malady or illness) must be under
the apprehension of maut (death). According to Baillie (P 552), ’the most valid definition of death-illness is that it is
one in which it is highly probable that death will follow.”

To constitute marz-ul-maut, there must be—

(i) a proximate danger of death;

(ii) some degree of subjective apprehension of death in the mind of the suffering person; and
(iii) some external indicia, e.g., inability to attend to ordinary avocations.

When the malady is of long continuance and there is no immediate apprehension of death, the illness is not death-
illness, e.g., consumption. Though consumption can only end in death. it is so slow that the patient is not
overshadowed by the fear of death

According to the Hedaya, an illness can be said to be of ’long continuance” if it has lasted for more than a year:
such cases are not covered by the expression, marz-ul-maut, for ”the patient has become familiarized to his illness,
which is not then accounted as sickness” Of course, this limit of one year is not a hard and fast rule, and it implies a
period of about one year.

Albuminuria for upwards of a year does not constitute marz-ul-maut: neither do the sudden bursting of a blood
vessel in the stomach or asthma or paralysis. It has, however, been held in Rashid Karmalli v. Sherbanoo. (1907) 31
Bom. 264, that rapid consumption is marz-ul-maut.

In one case decided in Pakistan, a woman of advanced age suffering from pneumonia died within the two hours
after admitting a gift before the Registrar, and the Court held that this was a gift made during marz-ul-maut.

Death-bed gifts

A gift during marz-ul-maut, or a death-bed gift, is essentially a gift. It is, therefore, subject to all the conditions of
a gift, viz—

(i) a declaration of the gift by the donor;

(ii) an acceptance of the gift, express or implied, by or on behalf of the donee; and
(iii) delivery of possession of the subject-metier of the gift, by the donor to the donee.

However, the donor’s power to dispose of his property by a gift during marz-ul-maut is limited. A death-bed gift—

(a) When made to a non-heir, — cannot take effect beyond one-third of his estate after payment of funeral expenses
and debts, unless his heirs give their consent to the excess taking effect. If they do not consent, the gift takes effect
only in respect of one-third of the donor’s estate.

A wakf made during marz-ul-maut cannot operate upon more than one-third of the estate, unless the other heirs
agree

(b) When made to an heir. — is altogether invalid, unless the other heirs consent thereto.

Under the Shia law, a death-bed gift holds good to the extent of only one-third of the donor’s estate in spite of
delivery of possession poor to his death
Difference between marz-ul-maut and donatio mortis cause

There is much similarity between a gift marz-ul-maut of Muhammadan law and donatio mortis causa under S. 191
of the Indian Succession Act, 1925. The important points of difference between the two are

1 Whereas the provisions relating to marz-ul-maut apply only to Muslims, the provisions of the Indian Succession
Act govern non-Muslims
2 Under the Indian Succession Act, movable property alone, and not immovable property, can be disposed by
donatio mortis causa; under the Muhammadan law, it may be any property— movable or immovable.
3 There are no limitations, either as regards the persons to whom, or the extent to which, property can be disposed
of by a gift mortis cause.. a death-bed gift of Muhammadan law is, however, subject to such limitations. (See
above.)
4. If the donor recovers from the sickness, the gift mortis cause entirely fails, but if the death-bed gift by a Muslim
is of the whole of his property and he subsequently recovers, the gift will take effect to the extent of the whole
property.

Death-bed acknowledgement of debt

An acknowledgement of a debt may be made as well during death-illness as in good health.

Death-bed acknowledgement of a debt :

1. In favour of an heir. — is not binding upon the estate; no effect at all will be given to it, if there is no other proof.

2. In favour of an-heir, — is conclusive against the heirs and legatees; but when this acknowledgement is the only
proof of the debt, the debt will be postponed to—

(i) debts acknowledged by the deceased while he was in good health: and

(ii) debts proved by other evidence.

CHAPTER 13

WAKFS AND OTHER RELIGIOUS INSTITUTIONS

The following three topics are discussed in this Chapter :

A. Wakfs
B. Mutawalli
C. Other religious institutions and officers

A. WAKFS Definition

’Wakf’ literally means dedication (or detention). In its legal sense, it means dedication in perpetuity of some specific
property for a pious purpose or a succession of pious purposes. Perpetuity is the essence of a weld. Once a wakf is
created, the ownership of the wakif, i.e. the dedicator, is extinguished. and the wakf is irrevocable.

According to S. 2(1) of the Mussalman Wakf Validating Act. 1913, ‘wakf ’ means the permanent dedication by a
person professing the Mussalman faith, of any property, for any purpose recognised by the Mussalman law as
religious, pious or charitable.

How created

A weld may be testamentary or inter vivos. A testamentary wakf which may be made either verbally or in
writing, comes into effect after the death of the wakif and is subject to the same restrictions as a bequest to an
individual.

According to Hanafi law, wakf is a unilateral declaration, and therefore, a wakf inter vivos can be created and
completed by a mere declaration of endowment by the owner. The Allahabad High Court had once held that the
wakf is not complete, unless the declaration of wakf is followed by the appointment of a Mutawalli (ie., manager)
and possession of the property is delivered to him. (Muhammed Aziz-ud-din v. The Legal Remembrancer, (1893) 15
All. 321)

However, a later Full Bench decision of the same Court has laid down that a mere declaration of endowment by the
owner would be sufficient to complete the wakf : Mohammad Yasin v Rahmat Illahi A.I.R. 1947 All. 201). If. after
constituting the wakf, the dedicator continues in possession, he does so as a trustee for the beneficiaries under the
wakf

According to Shia law, a wakf is a bilateral contract. Therefore, a wakf inter vivos cannot be created by a mere
declaration. There must also be delivery of possession, unless the wakif, i.e., the dedicator, constitutes himself the
first Mutawalli. in which case, the character of his possession should be changed from that of the owner to that of a
Mutawalli.

No formality is necessary to constitute a valid waist It may be created either orally or by a deed. It is enough if the
intention to create a wakf is unequivocally declared by the language used.

Where a wakf is created for mixed purposes, some of which are lawful and some are not lawful. the wakf is valid as
regards lawful purposes. but fails as to the unlawful purposes, and the property which is dedicated for unlawful
purposes reverts to the wakif (Mazhar Husain v Abdul. (1911) I.L.R. 33 All. 400)
For the creation of a valid wakf, the dedication should not depend on a contingency and the appropriation must at
once be complete, and must not be made to depend on anything.

The above principle is illustrated in a case where a Muslim woman conveyed her immovable property to her
husband and two other persons as trustees, upon trust to maintain herself and her children out of the income, and to
hand over the property absolutely to her children on their attaining majority The trust further provided that if she
should die without leaving any children, the income of the property was to be used by her trustees for the
maintenance of a mosque Ten years after the date of the trust, she died without leaving any children, and the trustees
of the mosque claimed the income. It was held that the trustees could not do so, as the wakf was contingent.
(Pathukutti v Avathalakutti. (1883) 13 Mad 66)

But the provision for the payment of debts of the wake’ does not import a contingency, and the wakf is valid.
(Khalil-ud-din v. Shri Ram. (1834) 1L.R. 58 All. 293) Thus, if a wakfnama (deed of wakf) contains a direction that
till the satisfaction of specified debts of the wakif, the wakfnama should not be enforced, this would be a valid weld.

Problem — A Muslim executes a deed of wakf, which contains a direction that until payment of specified debts due
by him, no proceedings under the wakfnama should be enforceable. Is the wakf valid ?

Answer.— Yes, the wakf is valid. (Khalil-ud-din v. Shri Ram, (1934) I.L.R. 56 All. 293, referred to above)

Although a wakf may be created either orally or in writing, where a wakf of immovable property of the value of Rs.
100 or upwards is created by a written instrument, it requires compulsory registration under the provisions of the
Indian Registration Act.

Wakf by immemorial user.— A wakf may be inferred from immemorial user, even though there may be no direct
evidence to show when and how it was originally set apart, e.g., when a land has been, from time immemorial,
used for the purpose of a burial ground, then the land is, by user, wan.

Where for a considerable number of years, the public offered prayers in a mosque close by a tomb of a Muslim saint
and an annual uras (anniversary), which was attended by persons belonging to a particular sect of Muslim (Momins)
was regularly held there, it was held that it must be presumed that the mosque had been duly dedicated, and had
become wakf by user.

But the mere burial of a saintly person in a plot of land does not convert that land into trust property. In the absence
of an intention to dedicate, or a dedication by the owner mere user will not divest land of its private character and
make it wakf. There must be proof of dedication or of user, such as saying of prayers in a congregation.

The Supreme Court has held that when a customary right to perform religious ceremonies and functions over certain
land belonging to a zamindar had been acquired by Shias by prescription, such a right cannot be defeated by a
derivative title to the land claimed by any other party under the superior title-holder, namely, the zamindar. The
Court observed that, in such a case, the prescriptive right would enure for the benefit of all the persons belonging to
that sect i.e., all Shias), notwithstanding the superior title of the zamindar. (Gulam Abbas v. State of UP, (1982) I
S.C.C. 71)

Essentials of a valid wakf under hanafi law

According to Hanafi law, the following are the five essentials of a valid wakf :

1. Permanent dedication of property.

2. The wakif must be competent.
3. The wakif must be the owner of the property.
4. The object must be religious.
5. It must be unconditional.

1. Permanent dedication of property

The first requirement of a valid wakf is permanent dedication of the property to charitable, religious or pious
purposes, as understood in Muslim law, and ownership in the property must be extinguished A wakf, therefore, for a
limited period, e.g., twenty years, is not valid. Property may be movable or immovable.

Thus, if a wakfnama contains a condition that in the case of mismanagement, the property should be divided
amongst the heirs of the settlor, the dedication is non-permanent and the weld is invalid (Habib Ashraff v. Syed,
1933 144 I.C. 654)

So also, the wakf of a house standing on land which is leased for a fixed term, would be invalid, as the dedication
cannot be said to be of property of a permanent character. (Mst. Peeran v Hafiz Mohammed A.I.R. 1966 All. 201)

Shia law — According to the Shia law (which is discussed later), it is further necessary (i) that possession of the
thing dedicated must be given to the Mutawalli; and (ii) that the settlor cannot reserve for himself a life-interest in
the income or any portion thereof. In other words, the wakif must not eat out of the wakf.

2. The wakif must be competent

The dedicator should be a person, (i) professing Islam, (ii) of sound mind, and (iii) not a minor.

Thus, a widow and her sons made a dedication of their inheritance, Some of the heirs are minors Is the Wakf valid ?
Yes, but partially The Waktf i e. dedicator, must be a person who has attained majority and is of sound mind
Therefore, the wakf is valid to the extent of the shares of the widow and her sons who have attained majority. It is,
however not valid as regards the shares of the sons who are minors.

3. The wakif must be the owner of the property

The subject-matter of the wakf. i.e., the property, whether movable or immovable, must belong to dedicator at the
time of dedication.

A valid wakf may be made even where the property is subject to a lease or a mortgage.

So also, if the wakif has been put into possession of property, under a contract for the purchase thereof by him, a
valid wakf can be made of such property, provided the sale is eventually completed. (Musammat Bismilla v
Mohammad Ali, A I.R. 1927 Oudh, 162)

4. Object must be religious

The wakf must have an object which (i) must not fail, (ii) must be expressly set forth, and (iii) must be recognised by
Muhammadan law, as religious, pious or charitable. This includes a wakf created in favour of the settlor’s family,
children and descendants.

Purpose of a wakf — A wakf may be created for any purpose recognised by Muhammadan Law as religious, pious
or charitable. Thus, the purpose must not be opposed to the general religious policy of Islam

The following are examples of valid objects of a wakf :

(i) Hospitals, alms-houses, schools, universities, or public libraries;

(ii) Creation and upkeep of Mosques and maintenance of worship therein:

(iii)Prayers of the dead at the tomb of a saint or at the grave of a private person or the burning of lamps at a Mosque;

(iv)Support of the settlor’s family;

(v)Colleges, and provisions for professors to teach in colleges:

(vi)Assistance to poor Muslims, to enable them to perform the pilgrimage to Mecca;

(vii) Burning lamps in a mosque;
(viii) Reading the Koran in public places and private houses;
(ix) Payment of alms to fakirs;
(x) An Imambara.

Imambara. - An Imambara is not a place of public worship as is a mosque. It is an apartment in a private house, set
apart for the performance of certain Mohurrum ceremonies, for the use of the owner and members of his family. As
a matter of fact, strangers are ordinarily excluded from these ceremonies, though they may be admitted with the
permission of the owner. An lmambara may be the subject of a valid wakf.

DOCTRINE OF CY-PRES. — When a clear charitable intention is expressed in an instrument of Wakf, it will not fail
because the specified objects happen to fail; rather such an infirmity will be cured by the application of the doctrine
of cy-pres, and the income will be applied for the benefit of the poor or to objects as nearly as possible to the objects
which failed.

Cy-pres literally means ”as nearly as possible-. The doctrine of cy-pres lays down that if the wishes of the donor or
testator cannot be carried out literally, they will be carried out as nearly as possible in the way desired. Thus, if a
charitable trust is initially impossible or impracticable, or if it subsequently becomes so, the trust will not fail, and
the Court will apply the property cy-pres. ie., apply it to some other charitable purpose, as nearly as possible
resembling the original trust

In a case decided in Pakistan, it was held that were a fund was collected with the object of establishing a Missionary
University, but the funds were not sufficient for the purpose, the wakf did not fail just because its object was not
achieved (Abdul Hamid v. Fateh Muhammad, 1958 P Lah. 824)

However, the doctrine of cy-pres is not applicable if the original wakf itself is not valid. Thus, a wakf that is void for
uncertainty cannot be validated by applying this doctrine

5. Unconditional

The wakf must be unconditional, and must not be subject to any option.

Problem.— A Muslim wife conveys her property to her husband upon trust to maintain herself and her children out
of the income, and to hand over the property to the children on their attaining majority, and in the event of her death
without children, to devote the income to certain religious users. Is this a valid wakf ?
Ans.— This is not a valid wakf, as it is contingent on the senior’s death without leaving any issue. (Pathukutti v.
Avathalakutti, (1883) I.L.R. 13 Mad. 66)

Essentials of a valid weld under Shia law

Under the Shia Law, a valid wakf must satisfy the following four conditions :

(1) It must be perpetual.

(2) It must be absolute and unconditional.
(3) Possession of the property must be given
(4) The wakf should not retain any interest in the property

The last requirement had been expressed in direct and homely language by saying that ”the wakif must not eat out of
the wakf ” It is essential, under Shia law, therefore, that the wakif should not retain any interest, even in the usufruct
of the dedicated property. And, if he does retain any benefit, the wad is bad, not merely in respect of the
reservation, but in its entirety.
It is essential to the validity of a wakf that the dedication should not be conditional or contingent. It is further
essential that the dedication should be permanent. A dedication limited as to time. e.g., a period of five years. is
invalid. The property dedicated must be of a reasonably permanent character Above all, the wakif must be the owner
of the property Unless the wakif is the owner of the dedicated property. he has no permanent control over that
property, and a dedication thereof will be invalid Thus, a widow cannot dedicate a property of which she acquires
possession in the exercise of her right of retainer for her dower debt Similarly. dedication of her dower debt due
from the estate of the deceased husband cannot be recognised. The recovery of the debt is problematical, because it
is at the option of the residuary heirs to pay it or not, and hence, it is not tangible property available to the widow,
and she has no control over it.

Problem. — Are the following wakfs valid ?

(a) A. aged fifteen, creates a wakf for 75 years of 500 Gold Sovereigns

Answer — (a) This wakf is void for three reasons. Firstly, A, the wakif is a minor. Except in respect of dower,
divorce and marriage, Muhammadan law on the question of minority is governed by the Indian Majority Act of
1875, according to which the age of majority is the completion of the age of 18 years.

Secondly it is one of the essentials of a valid wakf that the property dedicated must be of a permanent character. If, as
here, a sum of a money itself is dedicated and if it is to be spent on the maintenance of the objects of the wakf, it will
be exhausted before long, and it cannot be said that the property dedicated is of a permanent character as required by
law.

Thirdly, to constitute a valid wakf, there must be a permanent dedication of property. A wakf for 75 years is a wakf
for a limited period, and therefore, invalid.

(b) A creates a wakf of property belonging to B. At that time, A was negotiating a purchase the property from B. A
purchases the property from B, a month after the creation of wakf.

Answer —(b) A person who is not the owner of a particular property cannot make a wakf of it. The mere negotiation
with B to purchase the property does not create any interest in the property. The subsequent purchase by A of the
said property will not validate the wakf which was invalid in its inception, on the ground that the property did not
belong to A. the wakif, at the time the wakf was created. (Masih-ud-din v. Ballabh Das, (1913) I.L.R. 35 All. 68.)

(c) A creates a wakf by will. A puts a clause in the will that the wakf shall not operate if a child is born to him.

Answer —(c) A testamentary wakf may be revoked or modified any time the testator pleases, even without reserving
power to do so in the will. Therefore, a testamentary wakf is not invalid simply because it contains a clause that the
wakf shall not operate if a child is born to the testator. (Muhammad Ashan v. Umardaraz, (1906) I.L.R. 28 All, 633)
Therefore, the wakf is valid.

(d) A makes a wakf by will of all his property during marz-ul-maut.

Answer — (d) A wakf may, if created during the lifetime of the wakif and otherwise than by will or on the death-
bed, exceed one-third of the whole estate: even the whole of the property may be dedicated. But wakfs created on the
death-bed or by a will are subject to the ordinary rule which bind the testator’s powers of free disposition to one-
third of his whole estate. A’s wakf, therefore, cannot operate upon more than one-third of his property, unless his
heirs consent to it

(e) A Muslim executes a deed of wakf, which contains a direction that a reserve fund be created for preserving and
extending the wakf properties.
Answer — (e) It has been held in Hashim Ali v. Iffat Ara Hamidi Begum, (1942) 46 C.W.N. 564. that a direction in
the deed of wakf to create a reserve fund intended for preserving, improving and extending the wakf properties does
not invalidate the wan. Therefore, this is a valid wakf.

(f) A Hanafi Muslim executes a deed of wakf dedicating his entire estate to a mosque. By the same deed, he reserves
the whole of the income for his maintenance during his life-time. Would it make any difference if such a wakf was
created by a Shia Muslim ?

Answer —(f) Under the Hanafi law, the dedicator or wahuf may provide for his maintenance out of the income of
the wakf property He may, if he wishes, reserve even the whole income for his life [Casamally v. Currimbhoy,
(1912) I.L.R. 36 Born. 214 and Fatamabibi v. Advocate-General of Bombay (1881) I L.R Born. 42, 51-521
Therefore, this is a valid wakf under Hanafi law. However, under Shia law, the wakif cannot retain any interest in the
property or the income thereof. Therefore, such a wakf by a Shia Muslim would be invalid.

Form of wakf

The general rule is that the form of a wakf is immaterial. A wakf can be made either verbally or in writing. Even
when it is made in writing, it is not necessary that the term ”wakf be used in the document, if from the general
nature of the grant, such a dedication can be inferred. (Jeewan Das v. Shah Kubeer-un-deen, 1840 2 M.I.A. 390)

When it is not clear as to whether a particular grant constitutes a wakf, the statements and the conduct of the grantee
and his successors, and the method in which the property has been treated, are circumstances which are relevant,
though not conclusive.

Contingent wakfs, not valid

It is essential to the validity of a wakf, that it should not be made to depend on a contingency. In other words.
contingent wakfs are not valid.

A Muhammadan woman conveyed her property to her husband upon trust to maintain herself and her children, if
any, out of the income, and to hand over the property to such children on their attaining majority, and in the event of
her death without leaving any children, to apply the income to certain religious uses. The Court held that this was
not a valid wakf, as it was made contingent on the death of the senior without leaving any issues. (Pathukutti v.
Avathalakutti, (1883) 13 MAd 66)

In another case. a Muhammadan executed a deed of wakf, which contained a direction that until payment of certain
specified debts, no proceedings under the wakfnama would be enforceable. Here, it will be seen that the provision
for payment of debts does not import a contingency. and the wakf was therefore held to be valid. (Khalil-ud-din v
Shri Ram, AIR 1934 All 176)

Whether it is revocable

A maid cannot be revoked after its dedication has been completed, A testamentary wakf is revocable at any time
before the death of the testator A weld created during death-illness may be cancelled on recovery But a wakf, inter
vivos, other than a wakf created during death-illness, cannot be revoked

A wakf, must not be subject to any option or condition. A non-testamentary wakf which reserves to the settlor the
power of revoking it, is void. (Abdul Sattur v Advocate-General, Bombay (1933) 35 Bom. L.R. 18)

A wakf, once it is validly constituted, is irrevocable, If, therefore, a condition is inserted in a deed of wakl, that the
wakif reserves to himself the power of revoking the wakf. the wakf is void ab initio.

But inasmuch as a testamentary wakf operates only from the death of the testator, there is nothing to prevent a man
from revoking his will and making another; such a revocation is not the revocation of a wakf, but only the revocation
of a will. Therefore, a testamentary wakf is revocable before the death of the testator.

Weld of mushaa

According to Abu Yusuf, a wakf, except for a mosque or burial ground, of an undivided share (mushaa) in property
is valid, whether the property capable of division or not.

According to Imam Muhammad, however, the wakf of a mushaa in property capable of partition is not valid.

wakfs and family settlements (Wakf-ul-aulad)

’The most excellent of Sadaquah is that which a man bestows upon his family’. Therefore, under the pure
Muhammadan law, a wakf exclusively for the benefit of the senior’s family is valid. Such a wakf is also known as
wakf-ul-aulad. But the law, as settled by the decided cases, is that a wakf exclusively for the benefit of the settlor’s
family, children, kindred or posterity, is invalid; but if on the extinction of the family, the residue is to go to the poor,
i.e., if there is an ultimate gift to charity such a wakf is valid.

Prior to the coming into effect of the Mussalman Wakf Validating Act, 1913, a wakf for the benefit of the settlor’s
family was not valid if the ultimate gift to charity was illusory whether from its small amount or from its remoteness
and uncertainty.

After the Act such a wakf is valid, even if the ultimate gift to charity is illusory

Abdul Fata v. Rasamaya, (1894) 22 I.A. 76 (89), — In this case (which was decided before the Mussalman Wakf
Validating Act), two Muslim brothers executed a deed, purporting to make a wakf of their immovable property for
the benefit of their children and their descendants from generation to generation, and, on total failure of their
descendants, for the benefit of widows, orphans, beggars and the poor.

It was held that the wakf was void, and the Court observed as follows : ”If a man were to settle a crore of rupees.
and provide ten for the poor, that would be at once recognised as illusory It is equally illusory to make a provision
for the poor under which they are not entitled to receive a rupee till after the total extinction of a family possibly. not
for hundreds of years; possibly, not until the property had vanished away under the wasting agencies of litigation or
malfeasance or misfortune. certainly, not so long as there exists on the earth one of those objects whom the donors
really cared to maintain in a high position. Their Lordships agree that the poor have been put into this settlement to
give it colour of piety and so legalise arrangements meant to serve for the aggrandisement of a family”.

The view taken by the Privy Council in Abdul Fata’s case (above) was not in keeping with the established ideas of
the Muslims in India, who made a representation to the Government of India. and as a result, the Wakf Validating
Act of 1913 was passed. with a view to reverse the decision in Abdul Fata’s case Under that Act, a wakf for the
benefit of the family is valid, even if the gift to charity is illusory provided that there is an ultimate gift to charity

Text of the Mussalman Wakf Validating Act, 1913

The following is the text of the Mussalman Wakf Validating Act. 1913 :

An Act to declare the rights of Mussalmans to make settlements of property by way of ”Wakf in favour of their
families, children and descendants.

Whereas doubts have arisen regarding the validity of wakf, created by persons professing the Mussalman faith in
favour of themselves, their families, children and descendants, and ultimately, for the benefit of the poor and
for other religious, pious or charitable purpose; and whereas it is expedient to remove such doubts; it is hereby
enacted as follows : -

1. Short title and extent. - (1) This Act may be called the Mussalman Wakf Validating Act, 1913.

(2) It extends to the whole of India, except Part B States.

2. Definitions. - In this Act, unless there is anything repugnant in the subject or context. —

(1) ’Wakf” means the permanent dedication by a person professing the Mussalman faith, of any property, for any
purpose recognised by the Mussalman law as religious, pious or charitable.

(2) ”Hanafi Mussalman” means a follower of the Mussalman faith who conforms to the tenets and doctrine of the
Hanafi School of Mussalman law.

3. Power of Mussalmans to create certain wakfs. - It shall be lawful for any person professing the Mussalman faith
to create a wakf Much in all other respects is in accordance with the provisions of Mussalman law, for the following
among other purposes :—

(a) for the maintenance and support wholly or partially of his family, children, or descendants, and

(b) where the person creating the wakf is a Hanafi Mussalman, also for his own maintenance and support during his
life-time, or of the payment of his debts out of the rents and profits of the property dedicated .
Provided that, the ultimate benefit is, in such cases, expressly or impliedly reserved for the poor or for any other
purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.

4. Wakf not to be invalid by reason of remoteness of benefit to poor, etc. - No such wakf shall be deemed to be
invalid, merely because the benefit reserved for the poor or other religious, pious or charitable purpose of a
permanent nature is postponed until after the extinction of the family, children or descendants of the person creating
the wakf.

5. Saving of local and sectarian customs. — Nothing in this Act shall affect any custom or usage, whether local or
prevalent among Mussalmans of any particular class or sect.

The Mussalman Wakf Validating Act, 1913, which came into effect from 17th March, 1913. was not retrospective,
ie., it did not apply to wakfs created before the date. The Mussalman Wakf Act, 1930 gave a retrospective effect to
the Wakf Act, 1913. Now, the Wakf Validating Act, 1913 applies to all wakfs, whether created before or after 17th
March, 1913.

It may be noted that the Act leaves the law as to the validity of a wakf in favour of the senior’s descendants,
including unborn persons, without any trust for other religious or charitable purposes, in the same state in which it
was before the passing of the Act. Such a wakf was invalid before the Act, and would also be invalid under the Act.

Changes effected by the Wakf Act, 1913

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
like the one in Abdul Fata’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 senior’s own
maintenence and support during his life-time out of the rents and profits of the property dedicated.

3. It validates, in the case of a Hanafi Muslim, a provision for the payment of the debts of the senior 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

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. UP and West Bengal.

(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

(4) The Act also provides for :—

(i) (a) Investigation, (b) survery, and (c) registratkm of welds, and (ii) Submission and audit of accounts, etc.

Difference between the Shia and Sunni law of wakf

1. As to completion. — Under the Sunni law, a wakf inter vivos is completed by a mere declaration of endowment
by the owner, whereas. under the Shia law, a wakf inter vivos cannot be created by a mere declaration. There must
also be delivery of possession. If the senior appoints himself as mutawalli, he must declare that he intends to hold the
property thereafter as a trustee, and not as an owner.

2. As to reservation of any interest in property. — Under the Sunni law, the settlor (i) may provide for his
maintenance out of the income of the wakf property, or (ii) may reserve the whole income for himself for his Me.
(iii) may provide for the payment of his own debts out of the income of the wakf property.

Under the Shia law, the settlor cannot (i) reserve for himself a life-interest in the income (or any portion thereof) of
the wakf property, or (ii) provide for the payment of his personal debts out of the income of the wakf property In
short, a wakif should not eat out of the wakf.

Problem — X, a Hanafi Muslim, executed a deed of wakf, by which he directs his debts to be paid out of the rents
and profits of the weld property Is the wakf valid? What would be the position if X were a Shia Muslim

Ans. — Under S 3 of the Mussalman Wakf Validating Act, 1913, the above weld Is perfectly valid. Under Shia law,
however, this wakf would not be valid, as the wakif cannot, under Shia law, provide for payment of his debts out of
the wakf property.

INHERENT RIGHT OF MUSLIMS TO PRAY IN MOSQUES

When a mosque is built and consecrated for public worship, it ceases to be the property of the builder, and vests in
God in such a manner as subjects it to the rules of Divine Property. The appropriator’s right in it is extinguished, and
it becomes property of God by the advantage of it resulting to His creatures

A mosque does not belong to a particular community; if it is reserved for the people of a particular sect, the
reservation is void, and persons not belonging to that sect are also entitled to worship in it. Every Muslim has a legal
right to enter it and offer prayers according to his tenets, so long as the form of worship is strictly in conformity with
the recognised rules of Muhammadan law.

Thus, in Jivan Khan v. Habib, (1933, I.L.R. 14 Lah. 518), several Sunni Muslims collected a fund amongst
themselves and built a mosque, reserving it solely for benefit of Sunni Muslims and to the exclusion of Shias.
Thereafter, one Shia attempted to enter into that mosque to offer prayers according to the tenets of a Shia sect, but
strictly in conformity with Muslim law. It was held that he had the right to do so.

B. MUTAWALLI

Under the Muhammadan law, the moment a wakf is created, all rights of property pass out of the wakif and vest
in the Almighty. The manager of a wakf is called its Mutawalli. Usually, he is appointed by the settlor. If not, the
founder, his executor, and lastly, a person appointed by the Court, are the Mutawallis. But, neither a minor nor a
person of unsound mind can be appointed a Mutavalli. When the office of the Mutawalli is hereditary, and the
person entitled to succession is a minor, the Court may appoint another person to discharge the duties of the
Mutawalli during the minority of such person.

When the settlor makes the appointment, he may appoint a female, or even a non-Muslim, as the Mutawalli,
provided the wakf does not involve the performance of any religious duty.

Who can be appointed Mutawalli

The founder of a wakf has the power

(i) to appoint the first Mutawalli (ie., manager of the wakf) and
(ii) to lay down the line of succession to the office of Mutawalli.

Any person, male or female, may be appointed as Mutawalli, provided that he or she is capable of performing the
functions to be discharged under a particular wakf. Thus, where the Mutawalli is to perform religious or spiritual
duties, neither a female nor a non-Muslim can be appointed as a Mutawalli, as they are not competent to discharge
these duties There is no legal prohibition against a woman holding a Mutawalliship, when a trust by its nature
involves no spiritual duties such as a woman could not properly discharge in person or by deputy. (Hussainbi v
Khairuddin, A.I.R. (1939) Bom. 487)

If the founder does not appoint a Mutawalli during his life-time, his executor may make the appointment. If the
executor also fails to appoint a Mutawalli, the Court will appoint one

If a duly appointed Mutawalli (i) dies, or (ii) refuses to act. or (m) is removed by the Court, or (iv) the office of a
Mutawalk otherwise becomes vacant, and there is no provision in the wakf deed regarding the succession to the
office of Mutawalli, the power of appointing another Mutawalli belongs to the following persons. in the following
order (i) the settler, (ii) the executor of the settlor, (iii) the surviving Mutawalli, if any, and failing all these, (iv) the
Court.

Succession in case of joint Mutawallis

When two or more Mutawallis are jointly appointed, and there is no direction by the wakif to the contrary, the office
of Mutawalliship will pass, on the death of one of the Mutawallis, to the survivor or survivors. In such a case, the
dying Mutawalli cannot validly appoint a successor to him, as the office must pass to the survivors

Moazzam v. Raza, (1924) 1.1_,R. 49 All 856 — A files a suit against B, and claims that certain property is wakf
property and that he is the Mutawalli thereof. B denies that the property is wakf property In the alternative, B
contends that if the said property is held to be wakf, B, and not A, is the sole Mutawalli thereof. A and B refer the
matter to arbitration, The arbitrator holds that the property is wakf, and that each is entitled to an equal share in the
management and profits of the said property A wants to enforce the award.

On these facts, it was held, enforcing the award, that though the office of a Mutawalli is a public office, and
therefore, a Mutawalli cannot be appointed by arbitration, and that the right to succeed as a Mutawalli cannot
lawfully be the subject of arbitration, still independently of the question of appointment of a Mutawaili, the parties
referred certain differences to an arbitrator who, by his award, determined their rights The status of the parties is
determined by the award, and each is entitled to an equal share in the management and profits of the wakf property
Moreover, there is nothing in law to prevent such a question as the right of one of the two claimants, or of both
jointly, to occupy the position of a Mutawalli of a wakf being made the subject of a reference to arbitration

Rules as to his appointment by Court

The following are the lour general rules regarding the appointment of a Mutawalli by a Court

1. The court should not, as far as possible, disregard the directions of the settler of the wakf regarding the
appointment of a Mutawalli. But the primary duty of the Court is to consider the interests of the general body of
the public for whose benefit the weld is created; it may, in its judicial discretion, disregard any direction of the
Senior for the manifest benefit of the endowment

2. Preference should be given to a member of the senior’s family rather than a stranger, if the former is otherwise
qualified to hold the office

3 In a contest between a settlor’s lineal descendant and one who is not a lineal descendant, the Court is not bound to
appoint the lineal descendant, but has a discretion in the matter, and may in the exercise of that discretion, appoint
the other claimant to be Mutawalli.

4 Where the office of Mutawalli is held jointly, it will pass, on the death of the holder, to the survivor or survivors,
in the absence of any direction of the wakif or a custom to that effect. (Haji Abdul Razaq v. Sheikh Ali Baksh, (1948)
75 LA. 172)

Problem.— A, B and C are appointed joint Mutawallis of a wakf. There is no direction in the wakfnama in regard to
what is to happen if one of them were to die and there is no evidence of custom. A dies; but before that, he appoints
X as a Mutawalli to succeed him. Is the appointment valid ?

Ans.— See Rule 4 above. The appointment of X is invalid. The office must pass to the survivors, B and C.

Powers and duties of a Mutawalli

A Mutawalli cannot, without the permission of the Court, alienate wakf property. He cannot grant a lease of the
wakf land for more than three years (or one year, if the land is non-agricultural). He is entitled to the remuneration
fixed by the wakf He cannot transfer his office. even on his death-bed. His office is not hereditary

As a general rule, wakf property is inalienable. Unless expressly authorised so to do by the terms of the deed of
’valet a Mutawalli has no power, without the sanction of the Court,—

(1) to sell, mortgage or exchange wakf property: or

(2) to grant a lease
(i) for more than three years, where the wakf property is agricultural, and
(ii) for more than one year, where the wakf property is non-agricultural

Where a Mutawalli has leased wakf property for a longer term without the sanction of the Court. the Court has
power to sanction the lease retrospectively, if it is satisfied that the transaction is for the benefit of the wakf.
(Zafarbhai Guljarbhai v. Chhaganlai Aditram, 43 Bom. L.A. 854)

Abdul Rahim v. Narayan Das Aurora, (1923) 50 IA. 84.— The Court removed a Mutawalli for unauthorisedly
managing a wakf property, and appointed a new Mutawalli. The new Mutawalli thereafter sued to recover
possession of the wakf property from the mortgagee The mortgagee claimed that the mortgage was, in any event
valid as a portion of the property was settled under the deed of wakf for the benefit of the settlor’s family, as distinct
from the remaining portion, which was settled for the benefit of charity The trial Court decreed the mortgagee’s
claim. The Mutawalli appealed from this decision The Appeal Court held that the new Mutawalli was entitled to
recover possession of the whole wakf property from the mortgagee

Where an attempt is made to grant a mortgage for a purpose foreign to the necessary purposes of the wakf, the whole
mortgage fails. It cannot, for purposes of enforcement, be severed into two distinct charges, one declared for pious
uses on one part of the property. and another and separate charge declared on other part for the use of the mortgagor
only. Thus, in one case, land attached to the Durgah of a Pir was granted by the Mutawalli on lease for a term of 50
years to X. No order of the Court was obtained sanctioning the said lease. X improved the property and put a
building on it at cost of Rs. 5,000. The Mutawalli received the whole rent in advance from X and built a Mosque
with the funds After 10 years. R, who was appointed Mutawalli of the Durgah, filed a suit against X and the original
Mutawalli to recover possession of the land, contending that the lease in favour of X was invalid.

The Court held that the trial Court can retrospectively validate such a long-term lease by a subsequent sanction
given even after the institution of the suit for setting aside the lease, provided that the lease was for necessity or
beneficial to the wakf.

Wakf property cannot be attached and sold in execution of a personal decree against a Mutawalli. A Mutawalli is
deemed to be a trustee. However, no suit against a Mufawalli or manager of wakf property, or against his legal
representative or assigns, for the purpose of following in his or their hands such property or the proceeds
thereof, or for an account of such property or the proceeds, is barred by any length of time.

Wakf property may be lost by adverse possession. See Musjid Shatudganj v Shiromani Gurdwara Prabandhak
Committee below. However. a Mutawallis possession cannot be adverse to the wakf (Mohamed Shah v.
Fasihuddin, (.56) A.S.C. 713)

Masjid Shahidganj v. Shiromani Gurudwara Prabandhak Committee, (1940) 67 I A 251 — In 1722, a mosque
was built by X and dedicated as a wakf Mutawallis were appointed, and they took possession of the mosque.
After about 60 years, the mosque fell into disuse, and came into the possession of a Sikh Gurudwara, which
continued the possession till 1935. In 1935. a suit was filed by some Muslims against the Sikh Gurudwara,
claiming possession of the mosque and the right of worship in it.

It was held that the mosque, having been possessed by the Sikh Gurudwara adversely to the wakf for more
than 12 years, the Muslims’ right to possession for the purpose of the wakf had come to end under Art 144 of
the Limitation Act and their title become extinct under S 28 of that Act.

When removed

Even though the founder may have expressly directed that a Mutawalli should not be removed in any case, he
may be removed from his office by the Court, of he is guilty of misfeasance or breach of trust or is found to be
otherwise unfit to hold the office.

Thus, the Court will remove a Mutawalli in the following cases :

1. If he denies the weld character of the property, and sets up an adverse title to it in himself (Fazal v Zain-ul-
ab-din, 13 Lah. 162): or

2 If he neglects to repair the wakf premises, and allows them to fall into disrepair although he has sufficient
funds in his hands. (Naziuddin v Amir Hasan. A.I.R. 1934 Pat. 443); or

3 If he knowingly and intentionally causes damage or loss to the weld or misdeals with trust property; or

4. If he is insolvent. (Mahommedally v. Akbarally, 36 Born. L.R. 386)

Distinction between wakf and sadaquah

Under Muslim law, gifts for charity may take two forms, viz., either by way of weld, which signifies an
endowment, or else by way of sadaquah, which signifies a donation. A wakf is exempt from the rule against
perpetuities (Sec. 14, Transfer of Property Act, 1882; Sec. 114, Indian Succession Act, 1925), but a sadaquah is
not so exempt. A sadaquah is distinguished from a weld in that, in a sadaquah, not only the beneficial interest,
but also the legal estate, passes to the donee, while in a wakf, the legal estate is not vested in the Mutawallo, but
is, so to say, transferred to God. Hence, in the case of sadaquah, the corpus may be consumed; in the case of a
wakf, the income alone can be spent.

C. OTHER RELIGIOUS INSTITUTIONS AND OFFICERS

Takia

Takia literally means a ”resting place”. Hence, a burial ground is sometimes called Takia. In common parlance,
however, it means a resting place of a Fakir Le., a holy person who has relinquished the world and who devotes his
time to imparting religious instructions to his disciples and others, The Takia is the place where he usually resides
and imparts such instructions.

Takia, when thus coupled with some religious significance, is a religious or quasi-religious institution, and is
recognised as such by Muhammadan law, and a grant of endowment to the same is a valid wakf All properties
attached to Takia are tied up in the ownership of God, and are, therefore, inalienable and impartiable, except with
consent of all the persons interested.

Khankah

A Khankah is a Muslim institution which is analogous in many respects, to a Math of the Hindus. The place of
abode of a Fakir is called Takia before he attains sufficient public importance But when he attains such importance,
and a large number of disciples begin to collect around him, and lodging is provided for such disciples, then the
place is called Khankah. If later, the Fakir, on his demise, buried in the Khankah, it becomes a Durgah.

Sajjadanashin

The Khankah is usually under the governance of a Sajjadanashin (literally, the one seated on the prayer-mat), who
not only acts as the Mutawalli of the institution, but is also the religious preceptor of the adherents, A Sajjadanashin
has a larger right in the surplus of the income than a Mutawalli, for like the Mahant of a Hindu Math, he has
ordinarily full power of disposition over it. He is the teacher of religious doctrines and rules of life, and manager of
the institution and administrator of its charities. He has, in most cases, a larger interest in the usufruct than an
ordinary Mutawalli.

As the office of Sajjadanashin is a religious one, a woman is not qualified to hold the office; nor can a minor do so,
unless the succession to the office is by inheritance.
Sajjadanashin and Mutawalli distinguished. — The status of a Sajjadanashin is higher than that of a Mutawalli. The
Mutawalli is merely in charge of the secular affairs of the institution, he is a manager or superintendent, but has no
beneficial interest in the endowment, and is not connected with the preaching of religious doctrines. The
management of the properties by the Mutawalli is subject to the supervision of the Sajjadanashin. A Sajjadanashin
is not only a religious preceptor, but also a manager and administrator.

He is entitled to take, by way of remuneration, the balance of the rents and profits of Khankah properties after
defraying the costs of religious ceremonies.

Cases of mismanagement or incapacity will not ordinarily be sufficient to remove a Sajjadanashin. as distinct from
the managership of the property, it must be shown that the man is not only incompetent to manage the property, but
that he is of such a low morality that his continuance as the superior of a religious institution is repugnant and
undersirable

Mujawar

A Mujawar is he or she who does menial work in a mosque, such as cleaning it, sweeping it, etc. Females are
competent to perform the duties of a Mujawar. which consist in reading the Fatiha, offering prayers and incense,
and looking after the general management of the shrine and to succeed to the office in due course of inheritance.
(Abdul Ariz v. Mahomed Ibrahim, 43 Bom. [fl., 126)

Kazi

(The office of a Kazi has been discussed in Chapter 4.)

CHAPTER 14

TESTAMENTARY SUCCESSION (WILLS) The following four topics are discussed in this Chapter

A. General.
B. Wills (Wasiyyat)
C. Five restrictions on Muslim bequests
D. Miscellaneous topics.

All these topics are discussed below in necessary details.

A. GENERAL

Introductory Note

The leading authority on the Muhommadan Law rules governing wills is the Hedaya (Guide), which was translated
from Arabic into Persian by four MauIvis (Muhammadan lawyers). and then from Persian into English by Charles
Hamilton under orders of Warren Hastings, the Governor-General of India. The Hedaya was composed by a twelfth
century writer, Shaikh Burhan-ud-Din, who belonged to the Harlan school. Thus, the doctrines of that school are
mainly to be found in this book.

Another work of authority generally accepted by all courts in India, as well as by the Privy Council, is the Fatawa
Alamgiri. This was compiled in the seventeenth century under orders of Emperor Aurangzeb Alamgir. It is a
collection of the most authoritative fatwas (or expositions of law). and is considered by many to be of even greater
authority than the Hedaya. But here again, it is the law of the Hanafi sect that is mainly reflected, as the
Muhammadan sovereigns of India all belonged to that sect.

Who can administer the estate of a deceased Muslim

The estate of a deceased Muslim is to be administered in accordance with the Indian Succession Act, which has
replaced all Islamic rules in the matter. The persons entitled to administer the estate of a deceased Muslim are, in
order of priority, the executor appointed by his will, or the administrator appointed by the Court, in cases where the
deceased has not left a will. Failing both, his heirs are entitled to administer his estate.

How an estate of a deceased Muslim is to be applied

The estate of a deceased Muslim is to be applied successively in payment of

(1) his funeral expenses and death-bed charges,
(2) expenses of obtaining probate. letters of administration or succession certificate;
(3) wages due for services rendered to the deceased within three months just preceding his death by any labourer,
artisan or domestic servant;
(4) other debts of the deceased according to the respective priorities Of any); and
(5) legacies not exceeding one-third of what remains after all the above payments have been made.

A Muslim, therefore, cannot dispose of by will more than one-third of what remains of his property after payment of
his funeral expenses and debts, and the remaining two-thirds must go to his heirs as on intestacy.

B. WILLS (WASIYYAT)
Wasi

An executor under Muhammadan law is called a wasi, derived from wasiyyat which means a will. But though
Muhammadan law recognised a west. it did not recognise an administrator, there being nothing analogous in that law
to ”letters of administration”. A wasi or executor under Muhammadan law was merely a manager of the estate, and
no part of the estate of the deceased vested in him as such As manager. all that he was entitled to do was to pay the
debts and distribute the estate as directed by the will. He had no power to mortgage or sell the property of the
deceased—not even for the payment of his debts.

Today, however, the deceased’s property vests in the executor, even though probate has not been granted, and he has
power to dispose of the property vested in him in the due course of administration, a power which he did not possess
under pure Muhammadan law

Wasiyyat defined

The Fatwai-i-Alamgiri defines a will (wasiyyat) as the ”conferment of a right of property in a specific thing, or in a
profit or a gratuity to take effect on the death of the testator”.

Its features

The three essential characteristics of a will under Muhammadan law are

1. Capacity to make a will.

2. Formalities.
3. Property in respect of which a will can be made.

1. Capacity to make a will

A Muslim who is of sound mind, and who is not a minor, may make a valid will.

Age of majority — Minority under Muhammadan law terminates on the completion of fifteen years of age. But
according to the Indian Majority Act, 1875, the age of majority is the completion of 18 years, which is extended to
21 years where a guardian has been appointed for the property or person of the minor, under the Act, or where the
minor is under the guardianship of a guardian under the Court of Wards Act.

But the Act does not affect the capacity of any person to act in the matter of marriage, dower, divorce and adoption
: S. 2(a) of the Act. In other words, S. 2(a) does not exempt testamentary succession (i.e., wills) from the
applicability of the Act. Thus, the Act has modified Muhammadan law on the question of minority, except in respect
of dower, divorce and marriage, thus, a Muslim, who is less than 18 years of age. cannot make a valid will.

It is interesting to note that under the Shia law, a will made by a person after he has taken poison, or done any other
act towards the commission of suicide, is not valid. No such rule exists under the Sunni law

2. Formalities

No particular form is required to make a valid will. Any unequivocal expression of a testamentary nature will suffice
It may be made either verbally or in writing.

Under Muhammadan law, the form of a will is immaterial. The testator need not observe any formality in making his
will The only necessary requisite is that the intentions are declared with sufficient clearness to be capable of being
ascertained Thus, any unequivocal expression, written or oral, will suffice. It is not necessary that a testamentary
disposition under Muhammadan law should be in writing. If oral, no specific number or class of witnesses need be
present. Even if it is in writing, it need not be signed by the testator or attested by a witness.

Thus A. a Muslim goes to an attorney and gives him instructions to draft his will. Under the said instructions, A’s
bungalow at Matheran is given to B. The attorney prepares the will in accordance with A’s instructions. A dies before
signing the said will. For the reasons stated above, the will of A is perfectly valid and B will be entitled to the
bungalow at Matheran

3. Property in respect of which a will can be made

Any property which is capable of being transferred, and which exists at the time of the testator’s death. may be
disposed of by a will. Needless to say, property which belongs to another cannot be bequeathed by a will.

As stated above, a Muslim can dispose of only one-third of his property which is left after payment of his funeral
expenses and his debts. The balance two-thirds of the property goes to the heirs of the deceased.

C. FIVE RESTRICTIONS ON MUSLIM BEQUESTS

Under Muhammadan Law, there are five restrictions on bequest made by a Muhammadan, namely,-
1. Bequest to an heir
2. Bequest to an unborn person
3. Bequest to the testator’s murderer
4. Bequest of more than one-third of testator’s property
5. Creation of unknown estates
Each of these five restrictions are discussed below in necessary details.

1. Bequest to an heir

Sunni Law.— A bequest in favour of an heir is invalid, unless the other heirs consent to it alter the testator’s death.
Consent, once given, cannot be rescinded. If only some of the heirs consent, the shares of those consenting will he
bound, and the legacy in excess is payable out of their shares The consent need not be express; it may also be
signified by conduct showing a fixed and unequivocal intention. Thus attestation of the will, acquiescence in the
legatee taking possession of the property bequeathed and collecting rents would be sufficient In determining whether
a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the
testator’s death Problems

1 A. a Muslim. dies leaving a son B. a widow C and a grandson D by a predeceased son A by his will, bequeathed
1/3 of the estate to D. B and C do not consent to the bequest in favour of D. Advise D.

Ans.— In these circumstances, the grandson is not an heir, and a bequest to him is valid to the extent of one-third,
without the consent of the son and the widow (Abdul Bari v. Nasir Ahmed, A I.R. (1933) Oudh 142. 250 IC 330)

2 A. by his will, bequeaths certain property to his brother. The only relatives of the testator living at the time of ’the
will are a daughter and the brother After the date of the will, a son is born to A. The son, the daughter, and the
brother, all survive the testator. The daughter does not consent to the bequest to the brother. Is the bequest valid ?

Ans — The bequest to the brother is valid, for though the brother was an expectant heir at the date of the will, he is
not an heir at the date of the death of the testator. for he is excluded from inheritance by the son If the daughter and
the brother had been the sole surviving relatives, the brother would have been one of the heirs, in which case, the
bequest to them could not have taken effect, unless the daughter assented to it,

3. A Sunni Muslim dies, leaving a son and a daughter. By his will, he bequeaths three-fourths of his estate to the son
and one-fourth to his daughter. The daughter does not consent to the disposition. Discuss the rights of the daughter

Ans.— The bequest will not take effect, as a bequest to an heir without the consent of the other heirs is invalid.

Shia law.— Under the Shia law, a testator may leave a legacy to an heir, so long as it does not exceed one-third of
his estate. Such a legacy is Valid without the consent of the other heirs. Moreover, the consent of the heirs may be
given either before or after the death of the testator.

If a bequest is made to an heir and also to a stranger, the bequest to the heir, even if it is less than a third, is not valid
without the consent of the other heirs while that with respect to the portion of
the stranger is valid without such consent, provided the portion bequeathed to him does not exceed one-third of
testator’s estate; otherwise, the consent of the heirs is necessary for the validity of such a bequest. (Mahomed v.
Aulia, (1920) I.L.R. 42 All. 467)

2. Bequest to an unborn person

Under the Sunni law a bequest to an unborn person is void. But the bequest to a child en-vantre sa mere (i.e., in its
mother’s womb) is valid, provided the child is born within six months of the will.

Shia law.— Under the Shia law, a bequest to a child in the womb is valid, if it is born in the longest period of
gestation. i.e. ten lunar months. It is not necessary as under Sunni law, that the child must be born within six
months of the date of the will.

3. Bequest to the testator’s murderer

A bequest to a person who causes the death of the testator, whether intentionally or accidentally is void under Sunni
law

Shia law.— Under the Shia Law, a legatee. who causes the death of the testator is disentitled to take the legacy, only
if he caused the death intentionally, but not if it was by accident

4. Bequest of more than one-third of testator’s property

A Muslim cannot dispose of by wit/ more than one-third of his property The remaining two-thirds goes to the heirs
by succession. Bequests in excess of the legal third cannot take effect and will abate proportionately if the heirs do
not consent to the excess taking effect after the death of the testator.

Problem. — Discuss whether the following is valid A bequest to a grandson by a Muslim testator, when he dies
leaving a son, a widow and the above mentioned grandson by a pre-deceased son.

Ans.— The bequest is valid, if it does not exceed one-third of the property of the testator. If, however, the
grandson also takes some other property as an heir, then it is necessary that the consent of the other heirs should
also be obtained to this bequest

Difference between bequest to an heir and to a non-heir— A bequest to an heir is not valid even to the extent of the
legal third, unless the other heirs consent to the bequest after the testator’s death, whereas a bequest to a non-heir is
valid to the extent of the legal third, even without the consent of the heirs.

5. Creation of unknown estates

A Muslim cannot create, by will, an estate repugnant to his law Bequests in futuro or contingent bequests are void
according to Muslim law. An alternative bequest. i.e.. a bequest to A or B is valid, and A will take the property it he
is living at the time of the testator’s death, but if he predeceases the testator and B survives him B will be entitled
to the property. (Advocate-General v. Jimbabai, I L R (1917) 41 Bom. 181)

Problem.— A Shia Muslim by his will, purported to give an estate for life to A. and thereafter to B for life, with a
power to B to nominate his successor B nominates C as his successor. Advise C as to his rights

Ans.— On the above facts, it was held that A and B took a life-interest, and that the power of appointment was
invalid under Muhammadan law A and B had a life-interest in the usufruct. and the testator’s heirs were the owners
of the property (Nawazish Alikhan v. Ali Raza Khan. (1948) 75 I A. 62)

D. MISCELLANEOUS TOPICS
The following topics are discussed below
1 Revocation of Muslim wills
2 Lapsing of legacies
3. Abatement of legacies
4 Devolution of inheritance
5 Position of an executor of a Muslim will
6. Probate of a Muslim will, when necessary
7 Alienation by an heir of his share before payment of debts
8. Validity of alienation of the whole property for payment of debts
9 Decree against an heir, if binding on other heirs
10. Difference between Shia and Sunni law of wills.

1. Revocation of Muslim Wills

A will is, by its very nature, revocable. A testator may, therefore, at any time, revoke his will expressly or tacitly.
Thus. when the testator destroys the subject-matter of his bequest, or completely alters its nature, or transfers it to
another person, revocation may be inferred But the marriage of the testator after the making of the will does not
operate as a revocation of the will This rule of Muhammadan Law is in stark contrast to the rule under the Indian
Succession Act, where marriage of the testator revokes his will.

2. Lapsing of legacies

Sunni law. — Under the Sunni Law, if the legatee does not survive the testator, the legacy lapses and forms part of
the estate of the testator.

Shia law. — Under the Shia law, however, if the legatee does not survive the testator, the legacy does not lapse, but
passes to the heirs of the legatee. It is only when the legatee has no heirs, that the legacy will lapse.

3. Abatement of legacies

Sunni law. — If the bequests exceed the bequeathable third, and the heirs do not consent, under the Sunni law, the
bequests abate rateably. Bequests for pious purposes are also decreased proportionately as bequests for secular
purposes, and do not have precedence over them. But bequests for pious purposes are themselves divided into three
classes : (i) obligatory charities, e.g.. a bequest for the performance of Haj on behalf of the deceased; (ii)
recommended, but not obligatory, e.g., a bequest for charity on the second class take precedence over those of the
third.

Shia law. — The Shia law does not recognise the principle of abatement. Of several bequests, the first in time
prevails until the bequeathable third is exhausted. Where several bequests are to be found in a will, priority is
determined by the order in which they are mentioned. It is to be noted, however, that where there are successive
bequests of the exact third to two different persons, the later bequest prevails.

Problem. — A bequeaths 1/6th of his property to C. 1/2 to F and the remaining to S. one of his heirs. The other heirs
do not give consent to these bequests What would be the result on the rights of the legatees, if the testator is (i) a
Sunni, (ii) a Shia ?

Ans. — If the testator is a Sunni, the bequest to S. who is one of his heirs, will fail. The bequests to C and F will
rateably abate, and they will take 1/12 and 1/4 respectively

According to the Shia law, a bequest to an heir is valid so long as it does not exceed the bequeathable third If the
testator is a Shia, S will take 1/3

4. Devolution of inheritance

A deceased Muslim’s estate vests in his heirs immediately on his death, and it may be distributed among his heirs
even before the payment of his debts, unless the estate is insolvent Before the distribution of the deceased’s estate,
all the heirs are jointly liable to pay the debts due from the deceased to the extent of the assets received. After
distribution, each heir’s liability is proportionate to the share of the assets that comes to his hands.

Parties to creditor’s suit for debts.— (i) If there is an executor or administrator of the deceased’s estate, he must be
sued (ii) If not. the creditor must, if the estate is distributed, join all the heirs as defendants, so as to make their
shares liable for the debt (iii) If the estate is not distributed, the creditor must obtain a decree against all the heirs
who are in possession of the estate

5. Position of an executor of a Muslim Will

Under the strict Muhammadan law, the executor was merely a manager to carry out the intentions of the testator He
was a trustee appointed by the testator to superintend, protect and take care of his property and children after his
death He was not the legal owner of the property of the deceased, and the property did not vest in him He had no
power to sell or mortgage or alienate the property in any other way.

But now, under the provisions of S. 211 of the Indian Succession Act, an executor of a Muslim’s will is his legal
representative for all purposes, and all the property of the deceased vests in him; therefore, he has the power to
dispose of the property in due course of administration.

6. Probate of a Muslim will, when necessary

A Muslim will may. after due proof, be admitted in evidence, though no probate has been obtained (Sir Mahomed
Yusuf v. Hargovindas (1932) I L R 47 Bom 331).
The position of the executor of a Muslim will is governed by the Indian Succession Act. 1925. The property of the
testator vests in him and can be sold and conveyed by him, without taking a probate or obtaining the consent of all
the heirs. (Sec 307 of the Indian Succession Act) Nor is it necessary, in case of intestacy, that his heirs should obtain
letters of administration to establish their right to any part of his property. (Secs 212 and 213 of the Indian
Succession Act 1925) An oral will may, after proof, be admitted to probate.

A Muslim whose marriage is solemnised or registered under the Special Marriage Act, 1954, is governed by the
exception made by Sec 213(2) of the Indian Succession Act. Accordingly, a probate is not necessary, and a
succession certificate can be granted under Sec 370 of that Act. (Dr Alma Latifi v. Nasima Latifi, (1961) 63 BLR
940)

The only case when a title of representation is necessary is when it as ought to recover a debt due to the deceased
through the Court No Court can pass a decree against the debtor of a deceased Muslim for payment of his debt to a
person claiming on succession to be entitled to the effects of the deceased, or proceed upon an application of a
person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt,
except on the production. by the person so claiming, of a probate or letters of administration or a succession
certificate

7. Alienation by an heir of his share before payment of debts

Even before the distribution of the estate, an heir may transfer his own share, and pass a good title to a bona fide
purchaser for value notwithstanding that the debts of the deceased are not paid.

A creditor of a deceased Muslim cannot follow his estate into the hands of a bona fide purchaser for value to whom
it has been alienated by his heir-at-law. (Syed Bazayet Hussein v. Dooli Chund, (1878) 5 IA. 211)

Subject to S. 52 of the Transfer of Property Act, every heir of deceased Muslim is entitled, —

(1) to dispose of his share in any manner he likes; and

(2) to pass a good title to a bona fide purchaser for value, notwithstanding that the debts of the deceased yet remain
unpaid.

Thus, even before the distribution of the estate —

(i) if any of the heirs transfer his own share to a bona fide transferee for value, or
(ii) if his share is sold in execution of a decree passed against him, —

it passes a good title to the transferee or to the purchaser. as the case may be, notwithstanding any debts that might
be due from the deceased.

Cases
1. A Muslim died leaving a widow and a son. He left considerable property. After his death, the widow brought a suit
against the son, who was in possession of the whole estate, for administration of the estate and for payment of her
dower-debt. A decree was passed, directing the son to render an account and providing for payment of the dower-
debt out of the properties. The widow then applied for execution of the decree. Pending execution, the son
mortgaged his share to M, who filed a suit on his mortgage and obtained a decree for sale. The son’s share was sold
in execution of the mortgage-decree to P The question arises as to the rights of the widow as against P

In the above circumstances. P would take the son’s share, subject to the decree in favour of the widow (Maulvie
Mahomad Wajid v Syed Bazayet. 1878 5 I A 211)
2. A Muslim dies, leaving several heirs After his death, the heirs sell the whole of his estate, without caring to pay
any debts of the deceased. After the sale, a creditor of the deceased obtains a decree against the heirs for his debt,
and applies for execution of his decree by attachment and sale of the property in the hands of the purchaser

Here, the purchaser has to prove that he was a bona fide purchaser for value, if he does so, he will succeed,
inasmuch as a creditor of a deceased Muslim cannot follow his estate into the hands of a bona fide purchaser for
value (Land Mortgage Bank v Bidyadari. 1880 7 Cal. L R. 460)

8. Validity of alienation of the whole property for payment of the deceased’s debts

The inheritance of a Muslim vests at his death by a specific title in each individual heir. A single heir cannot
represent the entire estate of the deceased, and cannot deal with the shares of co-heirs without their consent.
Therefore, an alienation of the whole of the property of a deceased Muslim by one of his several heirs, even though
he as in possession, and even if it be for the payment of the debts of the deceased, is not binding upon his co-heirs
(Alisaheb v Shesho Govind, (1931) 33 Born. L.R. 1238). Such an alienation operates as a transfer only of his interest
in the property.

9. Decree against an heir, if binding on other heirs

According to the Calcutta High Court. a creditor’s su., is an administration suit, and any heir in possession of the
estate represents the estate for the purposes of the suit Therefore, if a creditor of a deceased Muslim obtains a decree
against some of his heirs, the decree is binding on the other heirs. (Muttyjan v. Ahmed Ally (1882) I.L.R. 8 Cal. 370)

However, this would be so only if —

(i) the decree was not a consent decree or a decree obtained by fraud: and
(ii) the heir who is sued is in possession of the estate on behalf of the other heirs, and not on behalf of himself.
(Abbas Naskar v. Chairman. District Board, 24 Parganas, (1932) I.L.R. 56 Cal, 691)

According to the decision of the Bombay High Court, in Bhagirthibai v Roshanbi (1919 1.L R 43 Bom 412), and
also according to the Allahabad and Madras High Courts, and the Chief Court of Oudh, a decree obtained by a
creditor of a deceased Muslim against some of his heirs is not binding on the other heirs. Only the parties to the suit
are bound by the decree, and consequently, only their property can be sold under the decree

Cases

1 Wahidunissa v Shubrattaum. (1870) 14 W.R. 329. — A Muslim dies, leaving two sisters as his only heirs. After his
death, C, one of his creditors, obtains a decree against the sisters for the debt due to him by the deceased
Subsequently, D, a creditor of the sisters, obtains a decree against them for his debt, and the property of the deceased
in their hands is sold in execution of the decree to p an auction purchaser. C, in execution of his own decree, attaches
the property in the hands of P and claims to set aside the sale in favour of P

On the above facts, the Court held that where the property is transferred to a third person in good faith for valuable
consideration. the creditor of the deceased cannot follow it in the hands of the transferee The mere existence of
debts payable by the estate does not affect the title of the transferee. even though he has knowledge of the debts
Therefore. C is not entitled to attach the property in the hands of P in execution of his decree.

2 Syed Bazayet Hussein v Dooli Chand, (1878) 5 I.A. 211. — A Muslim dies, leaving a widow and a son. A sum of
Rs. 5,000 is due to the widow for her dower. The son mortgages his own share in the estate to M, without paying the
dower-debt. After the mortgage, the widow obtains a decree for the dower-debt against her son, who is in possession
of the whole estate, and attaches his share in execution of her decree. M then obtains a decree against the son on his
mortgage for sale of the son’s share. The son’s share is sold in execution of the mortgagee’s decree and purchased by
P

As seen earlier. an heir may transfer his share and pass a good title to a bona fide purchaser for value,
notwithstanding any debt due from the deceased. A widow is nothing more than an unsecured creditor in respect of
the dower-debt. MS mortgage, having been made before the attachment by the widow in execution of her decree
against the son, p is entitled to recover the son’s share free from attachment. The widow cannot claim the amount of
her decree from P

3. In Jafri Begum v. Amir Muhammad, (1885) 7 All. 822, it has been held that the whole estate of a deceased
Muslim, if he has died intestate, or so much of it as has not been disposed of by will, if he has left a will, devolves
on his heirs at the moment of his death, and the devolutiuon is not suspended by reason merely of debts being due
from the deceased.

This principle was also confirmed by the Supreme Court in Ebrahim Aboobaker v. Tek Chand, (AIR. 1953 S.C.
298).

10. Difference between Shia and Sunni law of wills

The following are eight important points of difference between the Shia and Sunni law relating to wills :

1. Bequests to an heir — Under the Sunni law, a bequest to an heir, whether it exceeds the bequeathable third or not,
is invalid, unless the other heirs consent to it alter the testators death. Under the Shia law, if the bequest to an heir
does not exceed one-third of the estate, no consent is required to validate it. If it exceeds the legal third, such consent
is necessary

2. Consent of heirs. — Under the Sunni law, a bequest to an heir is invalid unless the other heirs consent to it after
the testator’s death. Under the Shia law, consent by the other heirs may be given before or after the testator’s death.

3. Consent in case of bequest to a non-heir — Under the Sunni law, a bequest exceeding the legal third in favour of a
non-heir cannot take effect, unless the heirs consent to it after the testator’s death. Under Shia law, the consent
necessary to validate a bequest exceeding the legal third may be given either before or after the testator s death

4. Lapsing of legacy. — If the legatee dies before the testator. the legacy lapses under Sunni law. Under the Shia
law if the legatee dies before the testator. the legacy pass to the legatee’s heirs, unless revoked by the testator.

5. Life-estates. — Life-estates are not recognised in Sunni law. They are, however, recognised in Shia law.

6. Will of a person committing suicide. — The will of a person committing suicide is valid in Sunni law; under Shia
law, if a person wounds himself mortally, or takes poison for committing suicide, and then makes a will, such a will
is invalid.

7. Bequests to testator’s murderer — Under Sunni law, a bequest to a person who kills the testator is void, even
where the legatee accidentally causes the death of the testator. such a bequest under the Shia law is void only when
death is caused intentionally

8. Abatement of bequests. — Under Sunni law where the bequests exceed the legal third and the heirs do not consent
to them, the bequests abate rateably. Under the Shia law, there is no rateable abatement. Bequests prior in date take
priority over those that are later in date. But where there are successive bequests, all of the exact third, the later
bequest will be a revocation of the first
CHAPTER 15

INHERITANCE (NON-TESTAMENTARY SUCCESSION)

This Chapter is divided into the following five topics :

A General principles
B Exclusion from inheritance
C Hanafi law of inheritance
D Shia law of inheritance
E. Miscellaneous topics

A. GENERAL PRINCIPLES

The following sub-topics are considered here :

1 Which law prevails
2 What property is heritable
3 Joint family system not recognised
4 No rule of primogeniture
5 Right of heir presumptive, a mere spec successionis
6 Vested inheritance
7 No ’principle of representation in Sunni law
8 Suit by creditor against heirs
9 Life estate and vested remainder.

1. Which law prevails

The property of a deceased Muslim is to be distributed according to the law of the school to which he belonged at
the time of his death. The law of the school to which the heirs belong is immaterial.

2. What property is heritable

The estate that remains after the payment of the charges, viz., funeral expenses. debts and legacies, out of the
property of the deceased. is heritable property, it includes both movable and immovable property.

As Muhammadan law does not recognise the joint family system, no distinction is made between ancestral and self-
acquired property. All property that remains after deduction of the above charges is heritable property. There is only
one mode of devolution, namely, by way of inheritance.

3. Joint family system not recognised

As stated above, the law does not recognise a Muslim joint family as a legal entity When the members of a Muslim
family live together, they do not form a joint family, in the sense in which the term is used in Hindu Law. Again, if
these members carry on business jointly and make acquisitions, they do not constitute a joint family firm, in the
sense in which that term is used in Hindu Law, so as to attract the legal incidents of such a firm. The rights of such
members, and those of their heirs, are to be determined with reference to express or implied agreements, if any. e.g.,
relationship of principal and agent, partnership, constructive trust, and the like.

Under the Muhammadan law, the sons do not, by birth, acquire, during the life-time of the father, any interest in the
property belonging to the father. Hence, where it is not proved that a Muslim father and sons entered into a contract
of partnership, the sons do not, by their birth, become partners with the father, the partnersh0 property remains
exclusively of the father, and the sons cannot be sued with regard to transactions for which the father alone is
responsible. (Tarachand v. Mohideen, (1935) 37 Born. L.R. 654)

4. No rule of primogeniture

Sunni law.— In Muhammadan Law, there is no rule of primogeniture. that is, the principle which lays down that if a
man leaves several sons. the eldest son gets an advantage over the rest.

Shia law — Under the Shia law, however, habua, i.e.. the deceased father’s wearing apparel, the Quran, his ring and
his sword become the property of the eldest son.

5. Right of heir presumptive, a mere spes succession’s

Under Muslim law, a son or any other heir does not acquire any interest in the property of a person by mere birth
The right of an heir presumptive comes into existence for the first time only on the death of the propositus. During
the life-time of the propositus, his heirs presumptive have no transferable interest in his property All that the heirs
have is a mere chance of inheriting to the estate in case they survive the propositus, that is, a mere spes successions.
Such an expectancy, therefore, cannot be the subject of a valid transfer Cases

1. Hasam Ali v. Nazo, (1889) I.L.R. 11 All 456— A. who had a son, B. made a gift of his property to C. B, alleging
that the gift was procured by undue influence, sued C in As life-time on the strength of his right to succeed to A’s
property on A’s death

The Court held, dismissing B’s suit, that the nature of right claimed by B was only a spes successionis, and that he
had no cause of action till A died.

2. Sumsuddin v. Abdul Hussein, (1906) I L R. 31 Born 165.— A. a Hanafi male, marries B, a Shia female. Some time
after the marriage, A gives one of his immovable properties to B in lieu of her dower, and agrees not to claim any
share of it as her heir on her death. B dies, leaving A and her father, C. C sues A to recover possession of the said
property, alleging that A had agreed not to claim any share thereof on B’s death.
The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in Muhammadan Law. In
Abdul Kafoor v. Abdur Ratak, (1958 I; M L J 492), it was, therefore, held dismissing C’s suit, that the relinquishment
by an heir apparent of his right of inheritance is invalid under Muhammadan law, the right of inheritance being
merely a spes successionis.

3 A has a son. B. and a daughter C. A pays Rs. 1,000 to C and obtains from her a writing, whereby in consideration
of Rs. 1,000 received by her from A. she renounces her right to inherit A’s property A then dies, and C sues B for her
share (one-third) of the property left by A B sets up in defence, the release passed by C to her father. Discuss
whether C is entitled to her share in her father’s estate.

Here the release is no defence to the suit, and C is entitled to her share of the inheritance, as the transfer by her was
merely a transfer of a spas succession’s, and hence inoperative. But C is bound to bring into account the amount
received by her from her father (Samsuddin v Abdul Hussein (1906) I.L.R. 31 Bom. 165)

6. Vested inheritance

The inheritance of a Muslim vests at his death by a specific title in each individual heir, although it may not be
possible to determine exactly what property will go to each heir, until all the prior charges, viz, funeral expenses,
debts and legacies, have been paid. In other words, succession is never allowed to be in abeyance. A ”vested
inheritance”. therefore, is the share which vests in an heir at the moment of the death of the deceased whose property
is claimed. If any of the heirs dies before the distribution, the share of the inheritance which has already vested in
him or her will pass to his or her heirs

7. No ’principle of reprecentation’ in Sunni law

The principle of representation has no place in the Sunni law of inheritance. In other words, the expectant right of
an heir presumptive does not pass to his heirs On the death of the heir presumptive in the life-time of the propositus,
the heirs of such an heir presumptive have no right to claim his share in the property of the propositus, as
representing the heir

Thus A, a Muslim has two sons, B and C. B dies in the life-time of A, leaving a son, X. Then, A dies, leaving C, his
son, and X, his grandson. Following the above rule, the whole property of A passes to C, to the total exclusion of X.
In other words, it is not open to X to argue that he is entitled to B’s share as representing B. Thus, the son of a
predeceased son is not an heir under Muhammadan law, when the deceased leaves other sons behind him. (Moola
Cassim v. Moola Abdul, (1905) 33 Cal. 173)

In Moola Cassim’s case (above), the Privy Council observed as follows:

it is a well-known principle of Muhammadan law that if arty of the children of a man die before the opening of the
succession to his estate, leaving children behind, these grand-children are entirely excluded from the inheritance by
their uncles and aunts.”

Thus, the rule which is followed in the Islamic law of inheritance is that the nearer heir excludes the more remote,
and there is no -representation”. In the above case. X is entirely excluded by C. and C thus becomes the sole heir.

It has been pointed out by various authors that the refusal of Muhammadan law to recognise the doctrine of
representation creates a lot of hardship. As observed by Macnaughten. -It certainly seems to be a harsh rule, and is
at variance with the English. Roman and Hindu laws.” Whatever purpose the rule may have served in the past. it is
no longer considered to be just and equitable by most Muslim thinkers. It is, therefore, heartening to see that the rule
has been abolished in Pakistan and the doctrine of representation is now accepted in that country.

Shia law

Subject to the application of the general rule that the nearer in degree excludes the more remote, in each class of
heirs, the cardinal principle underlying the Shia law of inheritance is the principle of representation. Thus, if there
are no sons or daughters. grand-children step in according to the principle of representation in the following
manner :

(i) the children of a deceased daughter take amongst themselves, the share that their mother would have taken.
(ii) the daughter of a deceased son shares with other children of that deceased son, the share which would have been
assigned to the father: and
(iii) where there are sons, or sons and daughters of different sons, the distribution is according to the stocks, and
not according to individuals. The children of each son have the exclusive right to what their father would have taken.

The principle of representation is recognised in the Shia law of inheritance only in the sense that the succession is
always per stirpes, and not per capita. Hence, the descendants of a deceased son represent the son, and take the
share which he would have taken, if he were living at the time when the inheritance opens Similarly the descendants
of a deceased daughter represent the daughter, and take the share which she would have taken. it she were living at
the time when the inheritance opens

Since the principle of representation has no place in Sunni law, succession among grand-children will be per capita.
and not per stirpes. as under Hindu law. Thus, if a Sunni Muslim dies leaving two grandsons through one
predeceased son, and three grandsons from another predeceased son, all the five grandsons will receive a fifth of
the estate. If the principle of representation was to be applied, the two grandsons from one son, would have divided
between themselves the share of their father, that is half of the estate, and the other half of the estate would have
been distributed equally among the three sons of the other son

8. Suit by creditor against heirs

If there is no executor or administrator, the creditor can proceed against the heirs of the deceased. Where the estate
of the deceased has not been distributed between the heirs, he is entitled to execute the decree against the property
as a whole, without regard to the extent of the liability of the heirs inter se.

Problem. — A Muslim dies leaving a widow and a daughter. After his death, a creditor of the deceased sues the
widow for the recovery of a debt due to him, and a decree is passed in his favour, to be recovered out of the estate
of the deceased. In execution of the decree the right, title and interest of the deceased in a house is sold and is
purchased by P The daughter, who was not a party to the suit, subsequently sues P to recover by partition her share
in the house Will she succeed 7

Ans — In these circumstances, the daughter, not being a party to the creditor’s suit, is not bound by the decree
passed in the suit and she is entitled to recover her share in the house. (Bhagirthibai v. Roshanbi, (1919) IL R 43
Born 412 51 IC. 18)

9. Life-estate and vested remainder

An interesting question arises as to whether life-estates and vested remainders are recognised by Islamic law. In
Hameeda v. Budlun, (1872 17W R 525). the Privy Council observed that ”the creation of a life-estate does not seem
to be consistent with Mahomedan usage, and there ought to be very clear proof of so unusual a transaction”.
In this connection, a difficulty arises out of the Muhammadan law of gifts As seen in Chapter 11, if a gift is made
subject to a condition which derogates from the grant, the condition is void. However, a condition which does not
affect the corpus of the thing which is gifted is not within the rule, as for instance, when there is a reservation of the
income for the donor of the gift. Accordingly, it has been held in some cases that a gift for life operates as an
absolute gift.

The assumption underlying this doctrine is that what is given is the corporeal thing itself: and as the refusal to
permit gifts of life interests gives rise to serious inconvenience, this assumption has often been challenged. Thus, it
has been argued that it can be said. is such cases, that what is given is, for instance, not the land, but the interest in
the land, and that this is given absolutely and unconditionally, there being no intention to make a gift of the corpus
itself.

In Nawazish All Khan v. Ali Raza Khan (1948 75 I.A. 62), the Privy Council observed that there was no difference
between the several schools of Muslim laws in their fundamental conception of property and ownership. A limited
interest takes effect out of the usufruct under any of the schools. The Privy Council remarked that it would be the
duty of the court to construe the gift in each case, and observed : ”If it is a gift of the corpus, then, any condition
which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon
construction, the gift is held to be one of a limited interest, the gift can take effect out of the usufruct, leaving the
ownership of the corpus unaffected, except to the extent to which its enjoyment is postponed for the duration of the
limitation interest.”

The same question was raised before the Privy Council in Amjad Khan v. Ashraf Khan (1929 56 I.A. 213). In this
case, there was a document which described the transaction as ”a gift without consideration”. The document recited
that the donee and the heirs of the donor had given their consent to the transaction. Under the deed, the donor gave
to his wife his entire property with a power to alienate one-third of the property, and as to the rest, it was stated that
’she shall not possess any power of alienation, but she shall remain in possession thereof for her life-time. After the
death of the donee, the entire property gifted away by this document shall revert to the donor’s collaterals.” The
question to be decided in this case was whether the interest given in one-third of the property was an absolute
interest, or whether it was only a life-interest coupled with the power to alienate.

On the facts of the case, the Privy Council held that it was a life-interest, with a power to alienate. Construing the
deed. the Court observed that the subject-matter of the gift was only a life-interest. together with the power of
alienation as regards one-third of the property On this basis. the Court dismissed the appeal of the heir of the donee,
stating that the gift of a life-estate was not given the effect of an absolute estate.

The High Courts of Mumbai, Kolkata and Nagpur have held that the gift of a life-estate is valid. In Nawazish Ali
Khan v Ali Raza Khan (referred to above), the Privy Council has observed that a life-estate, as known to English
law, cannot be created by hiba, whether inter vivos or by will.

In each case, the question is always a question of construction If there a gift to A for life, and thereafter to B. the
Court will presumably construe the gift as a gift of the corpus to B absolutely, and of the usufruct to A for life. If,
however, the gift is only to A for life, it would be construed as a gift of a life-interest to A, and the corpus would vest
in the heirs of B.

In Abdul Wahid Khan v Mt. Nuran Bibi (1885 12 I.A. 91), the Privy Council has held that Muhammadan law does
not seem to recognise an interest which may be called vested remainder. This case is now accepted as an authority
for the proposition that the remainderman will not get anything, unless he survives the person who is given the life-
interest.
All the above cases have now to be read subject to the judgment of the Privy Council in Nawazish Ali khan’s Case,
referred to above The Privy Council, in the course of the judgment in this case, made the following observations,
which are pertinent :

“In their Lordships’ opinion, this view of the matter introduces into Muslim law, legal terms and conceptions of
ownership, familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draws no
distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law.
which affirms that Muslim law recognized the splitting up of ownership of land into estates distinguished in point of
quality, like legal and equitable estates or in point of duration, like estates in fee simple, in tail, for life or in
remainder

What Muslim law does recognise and insist upon, is the distinction between the corpus of the property itself (any)
and the usufruct in the property (menafi) Over the corpus of property, the law recognizes only absolute dominion —
heritable and unrestricted in point of time: and where a gift of the corpus seeks to impose a condition inconsistent
with such absolute dominion, the condition is rejected as repugnant; but interests limited in point of time can be
created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited
interests”

B. EXCLUSION FROM INHERITANCE

The following are the disabilities affecting a Muslim in inheriting property .

(1) Slavery,
(2) Infidelity, i.e, conversion to another religion,
(3) Homicide: and
(4) Illegitimacy

1. Slavery

Under the strict Muhammadan Law (both Sunni and Shia), even a slave wife could not succeed to the property of her
husband. But since slavery has been abolished by Act V of 1843, slavery as a ground of disability is now only of
academic interest,

2. Conversion to another religion

Infidelity or change of religion (Kufr) was a ground of disability affecting a Muslim in inheriting property. Those
who were born in a different faith, as well as those who had abjured Islam, were excluded from imheritance. But
since the passing of the Freedom of Religion Act, 1850, conversion has ceased to be an impediment. Now a Muslim
does not lose his right of inheritance by relinquishing his religion.

3. Homicide

According to Sunni law, a person who causes the death of another either intentionally or accidentally cannot succeed
to the latter. According to Shia law, however, homicide, to be an impediment to inheritance, must be intentional, and
not accidental.

Problems. — 1. A, a Shia, dies leaving a son B, a grandson C by B, and a brother a A’s death occurred in a motorcar
accident while the car was driven by B in a rash and negligent manner. On A’s death, D files a suit against B and C
claiming the estate of A and contending that B and his branch are excluded from inheritance as B had killed A.
Ans. - Here, D must fail. According to Shia law, homicide, to be an impediment to succession, must be intentional.
In the present case. B has caused A’s death accidentally. B is. therefore, not excluded from inheritance.

2. A, a Sunni woman, is found guilty of having killed her husband through mistake. Can A succeed to the property of
her husband ? Will she succeed if she were a Shia ?

Ans. - Here, A cannot succeed to the property of her husband, as according to Sunni law, a person who causes the
death of another cannot succeed to the property of that person, although the death may have been caused
accidentally. However, she would succeed if she were a Shia, as the death was not caused intentionally

4. illegitimacy

An illegitimate child —
(i) is not entitled to inherit at all, — according to the Shia law;
(ii) can inherit from the mother and her relations in the absence of legitimate issue, but, can, in no case. Inherit
from the lather or his relations, — according to the Sunni law.

An illegitimate child —
(i) is matris filius, according to the Sunni law, and as such, in the absence of a legitimate issue, it inherits from its
mother and her relations, and they inherit from the child, it cannot inherit from its putative father or the relatives on
the father’s side
(ii) is nullius filius, according to Shia law, and therefore it does not inherit even from its mother and her relations,
they also cannot inherit from it.

Under Shia law unlike Sunni law, illegitimacy is a bar to succession, both to the father and mother An illegitimate
child is regarded as nullius filius as owing no relationship to either of its parents, and therefore, incapable of
inheriting from either

Problem. - A Hanafi Muslim repudiates his wife by three pronouncements in the same breath in these terms, ’I
divorce you I divorce you. .1 divorce you ..” The parties afterwards live together and 5 children are born to them,
whom the father acknowledges as legitimate and then dies. What are the rights of such children in the father’s
estate ?

Ans.— Here, the children are illegitimate, as the repudiation is irrevocable. and Islam does not recognise
acknowledgement of legitimacy The children cannot inherit. (Rashid Ahmed v. Anisa Khatun, discussed in an earlier
Chapter )

Physical or mental defects and unchastity, no bar to inheritance

Physical defects or disease, insanity arid unchastity do not constitute any impediment to succession in Muslim law.
Thus, want of chastity in a daugther. before or after the death of her father, or whether before or after her marriage,
is no bar to succession. Nor does a widow lose her right to a share in her husband’s estate by reason of unchastity in
her husband’s life-time. She would lose her right only if she is divorced by the husband

C. HANAFI LAW OF INHERITANCE DEFINITIONS

Before dealing with the Hanafi law of inheritance, a few terms may be defined as under -
”True grandfather”

A true grandfather means a male ancestor between whom and the deceased, no female intervenes. Thus, the
father’s father, the father’s father’s father and his father, how highsoever (h.h.s.), are all true grandfathers

”False grandfather”

A false grandfather means a male ancestor between whom and the deceased, a female intervenes. Thus, the
mother’s father, mother’s mother’s father, mother’s father’s father, are all false grandfathers.

”True grandmother”

A true grandmother means a female ancestor between whom and the deceased, no false grandfather intervenes.
Thus, the father’s mother, mother’s mother, father’s mother’s mother, father’s father’s mother mother’s mother’s
mother, are all true grandmothers.

”False grandmother”

A false grandmother means a female ancestor between whom and the deceased, a false grandfather intervenes.
Thus, the mother’s father’s mother is a false grandmother.

[False grandfather and false grandmother belong to the distant kindred.]

”Son’s son, how lowsoever”

This expression includes the son’s son, the son’s son’s son and the son of a son, how lowsoever (h.l.s.).

”Son’s daughter, how lowsoever”

This expression includes a son’s daughter, the son’s son’s daughter, and the daugther of a son, how lowsoever.

THREE CLASSES OF HEIRS

Under the Hanafi Law, there are three classes of heirs as follows :
(i) Sharers (also known as Quranic heirs)
(ii) Residuaries (also known as Agantic heirs)
(iii) Distant kindred (also known as Uterine heirs).

The sharers are those who are entitled to a prescribed share of the inheritance; the residuaries are those who take no
prescribed share, but succeed to the residue after the claims of the sharers are satisfied; the distant kindred are those
relations by blood who are neither sharers nor residuaries.

Property of the deceased, how distributed

The first step in the distribution of the estate of deceased Muslim, after payment of his funeral expenses, debts. and
legacies (not exceeding one third of the estate after deducting the former), is to allot their respective shares to such
of the relations as belong to the class of the sharers as are entitled to a share. If there are no sharers, the residuaries
will succeed to the whole of the inheritance If there are neither sharers nor residuaries, the inheritance will be
divided among such of the distant kindred as are entitled to succeed thereto
The distant kindred are not entitled to succeed, as long as there is any heir belonging to the class of sharers or
residuaries. But there is one case in which the distant kindred will inherit with a sharer, and that is, where the sharer
is the husband or wife of the deceased. Thus, if a husband dies leaving only a wife and distant kindred, the wife, as
sharer, will take her share (which is one-fourth), and the remaining three-fourths will go to the distant kindred.

General rule of succession

Amongst relatives belonging to the same class, the rule of succession is that the nearer relative excludes the more
remote Thus, if the surviving relations are the father, and the father’s father. the father alone will succeed to .the
whole estate, to the entire exclusion of the grandfather. though both of them belong to the same class of sharers.
Similarly, if the surviving relations are a son and a son’s son (or the son of a deceased son), the son alone will
succeed to the whole estate, and the son’s son (and also deceased son’s son) will not be entitled of the inheritance,
though both belong to the class of residuaries.

The above three classes of heirs and the fourth class viz, successors unrelated in blood, to whom the property goes
in the absence of all the other three classes of heirs, are discussed below in greater detail.

I. SHARERS (Quranic Heirs) The following is a complete list of sharesrs :

The shares of each of these heirs are dealt with below.

Husband/Wife

The share of the husband is 1/4th, when there is a son or child of a son, his , when there is no child or child of a son
h.l.s. the husband is entitled to 1/2 of the estate of the wife.

The share of the wile is 1/8th when there are children. (If there are two or more wives. all of them together are
entitled only to a 1/8th share of the estate). When there are no children, or a child of a son h I s , her share is
increased to 1/41h.

Ascendents

Father

The father inherits as a sharer, when there is a child or child of a son, and his share is 1/6. But when there is no
child or child of a son h.l.s, the father inherits as a residuary. When the only relations entitled to inherit are the
father and the daughter, the father will inherit both as a sharer and as a residuary.

True grandfather

The true grandfather inherits only in the absence of a father and to the same extent.

Mother

The mother inherits 1/6th of the estate when (i) there is a child or child of a son h.I.s., or (ii) when there are two or
more brothers or sisters, or even one brother and one sister, whether full, consanguine or uterine. She gets 1/3. when
there is no child or child of a son his.; but if there is also the wife or the husband and the father, then she is entitled
to only 1/3 of what remains after deducting the husband’s or the wife’s estate.
True grandmother

The true grandmother (and if there is more than one, all of them together) gets 1/6 of the estate. The maternal
grandmother inherits when there is no mother, and no nearer true grandmother, whether paternal or maternal. The
paternal grandmother succeeds only when there is no mother, no father, no nearer true grandmother, either paternal
or maternal.

Descendants

Daughter

The share of the daughter is 1/2, when there is no son; with the son, she becomes a residuary. Two or more daughters
(in the absence of a son or sons) share 2/3 of the estate.

Son’s daughter

The son’s daughter succeeds only when there is no (i) son: (ii) daughter; (iii) higher son’s son, (iv) higher son’s
daughter or (v) equal son’s son. (With the equal son’s son, she becomes a residuary.)

In the absence of the above relations, the son’s daughter’s share is 1/2, if there is only one, and 2/3, if there are more
than one.

But, if there is only one daughter and no other sharers, the daughter will inherit 1/2, and the son’s daughter (his.),
whether one or more, will get 1/6.

Collaterals

Full sister

Her share is 1/2, when only one, and 213 to be divided equally, when more than one. She inherits only when there is
no (a) child: (b) child of a son his.: (c) father: (d) true grandfather: or (e) full brother, with the full brother and, in
certain cases. with the daughter, she becomes a residuary. The full sister is not a primary heir

Problem. — A Sunni Muslim dies, leaving a daughter. a full sister and a brother’s son. Who will inherit the estate
and how ?

Ans.— The daughter will get half a share as sharer The full sister will also get a 1/2 share as a residuary.

Consanguine sister

The consanguine sister inherits, in the absence of the full sister. and also in the absence of all the relatives mentioned
above and the consanguine brother: with the consanguine brother, she becomes a residuary.

Uterine brother and sister

A uterine brother or sister gets 1/6, and 1/3. if more than one. They inherit only in the absence of (a) a child; (b)
child of a son h.l.s.,(c) father, or true grandfather.
Problem. — A, a Sunni Muslim dies, leaving as his hews, his mother, a full sister, a full brother, and his father, How
will A’s estate evolve

Ans.— The mother will get 1/6 (because there is a brother and also a sister); the brother and the sister will be
excluded from inheritance by the father, and the father will take 5/6 as a residuary.

Illustrative examples

State the respective shares if a Mussalman dies, leaving behind him

//////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////
A father, a mother. father’s father, mothers mother, two daughters and a son’s daughter

Shares of the heirs :

1/6 (as sharer, as the deceased has left daughters surviving him) NIL (as he is excluded by the father) 1/6 (bacause
there are daughters also) NIL (as she is excluded by the mother) 2/3 (as sharers) NIL (as she is excluded by the
daughters)

(a) Father (b) Father’s father (c) Mother (d) Mother’s mother (e) Two daughters (f) Son’s daughter

Only mother and father : (a) Mother (b) Father Husband and father : (a) Husband (b) Father

Mother, father and two sisters

1/3 (as sharer) 213 (as residuary)

1/2 (as sharer) 1/2 (as residuary)

(a) Mother (b) Two sisters (c) Father Father and four widows (a) Four widows

(b) Father

1/6 (because there are two

sisters: NIL (as they are excluded by father) 5/6 (as residuary).

1/4 i.e., each will get 1/16) 3/4 (as residuary).

. , (vi) Sister, brother, mother and father :

(a) (b)

Mother Sister

(c) Brother

1/3 (as sharer)

NIL (as she is excluded by the father) NIL (as he is excluded by the father) 2/3 (as residuary).
(d) Father ••• Mother, father and husband (a) Husband ••• (b) Mother ••• le) Father

Husband, mother and fathers father : (a) Husband ... 1/2 (as sharer) (b) Mother ... 1/3 (as sharer) (c)
Fathers father ... 1/6 (as residuary).

1/2 (as sharer) 1/6 (i.e., 1/3 of 1/2) 1/3 (as residuary)*

(ix) Mother, father and widow :

(a) Widow ... 1/4 (as sharer) (b) Mother ... (1/4) (i.e., 1/3 of 314) (c) Father ... 1/2 (as
residuary). (x) Mother, widow and father’s father

(a) Widow ... 1/4 (as sharer) (b) Mother ... 1/3 (as sharer) (c) Father’s father ... 5/12 (as
residuary).
////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////
//////////////////////////////////////////////

II. RESIDUARIES (Agnatic Heirs)

If there are no sharers, or if there are sharers, but there is a residue left after satisfying the claims of the sharers, the
whole of the inheritance, or the residue, as the case may be. devolves upon the residuaries on the following order :

A. Descendants

1. Son and daughter. — The daughter takes as a residuary with the son, the son taking a double portion. Thus, if the
deceased had no heirs falling under the category of ”sharers-. the shares of a son and a daughter, as residuaries,
would be as follows son 2/3, daughter : 1/3

Sons son h.l.s. — The nearer in degree excludes the more remote. Son’s daughter h.I.s. takes as residuary with an
equal son’s son

Problem. — A Sunni Muslim dies, leaving a widow, a son and a daughter. How will the estate devolve ?

Ms.— In this case, the widow would get a one-eighth share, and the balance would go to the son and the daughter.
the sans share being double of that of the daughter So the shares would be widow 1/8: son . 14/24 or 7/12 and
daughter : 7/24

(Note. - It is to be noted that a daughter cannot inherit as a sharer when there is a son. But, if the only heirs are a
daughter. and a son’s son, the daughter will inherit 1/2 as a sharer, and the son’s son will get 1/2 as a residuary.)

B. Ascendants

the nearer in degree excluding the

1 Father.
2 True grandfather. h h s. the nearer in degree excluding the more remote.
C. Descendant of the father

1. Full brother the full sister takes as residuary with brother, the brother taking a double portion.

Problem.— A Sunni Muslim male dies, leaving him surviving two daughters, D 1 and D 2. a full brother B and a full
sister S. What will be the respective shares of D 1, D 2. B and S in the property of the deceased ?

Ans — D 1 1/3, D 2 : 1/3, full brother 2/9, and lull sister, 1/9. 2. Full sister : in default of a full brother and the other
residuaries abovenamed, the full sister takes the residue, if any.

3. Consanguine brother
4. Consanguine sister.
5 Full brother’s son.

D. Descendants of true grandfather

Full paternal uncle, consanguine paternal uncle; full paternal uncles son; consanguine paternal uncle’s son (followed
by the remote descendants of the remoter ancestor).

PRINCIPLES OF SUCCESSION AMONG SHARERS AND RESIDUARIES

Rule I

Whoever is related to the deceased through any person does not inherit while that person is Irving Thus, the father
excludes the brothers and sisters, there being only one exception to this rule, that is, the mother does not exclude the
uterine brothers or sisters.

Rule II

The nearest in blood inherits, that is, the nearer degree excludes the remoter. Thus, the father excludes the father’s
father, and so on.

Rule III

One who is excluded himself may exclude others, wholly or partially There are certain cases in which heirs are
excluded or have their shares reduced, by reason of the existence of other heirs who themselves take no share in
the Inheritance.

Doctrine of ”Increase” (Aul)

According to Muhammadan law, the shares of various sharers are fixed Where several sharers co-exist, it sometimes
happens that the total of their respective shares exceeds unity (one). Thus. suppose the deceased leaves behind a
husband and two full sisters. Ordinarily, the husband will take 1/2, as there is no child or child of a son how
lowsoever, and the two sisters together will take 2/3, as there is no son. 1/2 + 213 = 7/6 which exceeds unity, and the
property falls short in distribution. How then is the deceased’s property to be divided ?

This difficulty is solved by increasing the common denominator to the sum of the numerators, and thus reducing
the fractions without disturbing the proportion between them. Thus, in the illustration taken above, on reducing the
fractions to the common denominator one gets1/2 = 3/6 and 2/3 = 4/6. Thus, with the common denominator the
shares are — husband = 3/6 and two sisters = 416. [The sum of the numerators is 7.] Now, the common
denominator is increased to the sum of the numerators. (to., 7). On doing this the shares would be as follows :
husband : 3/7, and two slaters 4/7 (3/7 + 4/7 = 1.)

It may be noted that this doctrine is called ”increase”. not because the shares are ’increased, which is quite the
opposite, the very object of the doctrine being to diminish the shares, but because the unity is reached by increasing
the denominator of the fractional shares.

In other words, if it is found, on assigning their respective shares to the sharers. that the sum total of the shares
exceeds unity. the share of each sharer is proportionately diminished, by reducing the fractional shares to a common
denominator and increasing the denominator, so as to make it equal to the sum of the numerator.

Difference between Shia and Sunni law of ’Increase’.- According to the Sunni law, the doctrine implies
proportionate reduction of all the shares. According to the Shia law on the other hand, it implies the reduction of the
shares of the daughter or the daughter and full or consanguine sister or sisters only. Other heirs do not suffer

Illustrative examples - The following are a few illustrative examples of the application of the Doctrine of
Increase :

(a) Husband 1/2 = 3/6 reduced to 3/8

2 Full sisters 2/3 = 4/8 reduced to 4/8
Mother 1/6 =1/6 reduced to 1/8
TOTAL: 8/6 8/8
(i.e., 1)

(b) Husband 1/4 = 3/12 reduced to 3/13

Mother 1/6 = 2/12 reduced to 2/13
2 Daughters 2/3 = 8/12 reduced to 8/13
TOTAL : 13/12 13/13
(i e , 1)

(c) Widow 1/4 = 3/12 reduced to 3/13

Mother 1/3 = 4/12 reduced to 4113
Full sister 1/2 = 6/12 reduced to 6/13
TOTAL : 13/12 13/13
(i e , 1)

(d) Husband 1/4 = 3/12 reduced to 3/15

Father ... 1/6 = 2/12 reduced to 2/15
Mother ... 1/6 = 2/12 reduced to 2/15
3 Daughters ... 2/3 = 8/12 reduced to 8115
TOTAL : 15/12 15/15
(ie., 1)

Doctrine of ’Return’ (Radd)

If, on assigning their shares to the sharers, it is found that the total of the shares does not exhaust the whole, the
residue will go to the residuaries. But if there are no residuaries, the residue will not go to distant kindred, but would
be distributed among the sharers in proportion to their shares. This right of reverter is called radd (”return”).
Sunni law. - The residuaries take the surplus between them. after the shares are satisfied But instances may occur
where there is surplus lett, but there are no residuaries to take it. Thus. suppose A dies leaving behind his mother and
a son’s daughter (both sharers). and no resoduaries Their shares respectively are 1/6 and 1/2. This together makes
2/3 of A’S property, leaving 1/3 of his property as surplus. with no residuary to take it. In such a case, the surplus
reverts to the sharers in proportion to their shares. This is done by reducing the fractional shares to a common
denominator, and by decreasing the denominator of those shares, so as to make it equal to the sum of the
numerators. (This mathematical procedure is just the reverse of what is done in the doctrine of aul.)

Thus. in the above illustration, the shares of the mother and the son s daughter are 1/6 and 1/2 respectively.
Reducing them to the common denominator, gives 1/6 and 3/6. The sum of the numerators is (1+3)=4 By decreasing
the denominator of the shares to make it equal to the sum of the numerators, one arrives at 1/4 and 3/4. These will be
the shares of the two sharers. Thus, the Return (Radd) is the apportionment of surplus among the sharers, when the
shares do not exhaust the property. and there are no residuaries.

There is one exception to the right to reverter of the sharers. The husband or wife of the deceased is not entitled to
share in the return, so long as there is any other heir If there are any other sharers, they will share the return among
themselves, without giving his or her share, the residue will go to the distant kindred, if any. It is only when there is
no other heir belonging to any of the three classes of heirs, sharers, residuaries or distant kindred, and the husband or
wife is the only heir, that he or she will take the residue by return, i.e., the whole of the estate. (Mir Isub v Isab,
(1920) 20 Bom. L.R. 942.)

Problems

1. A Sunni Muslim dies leaving as his heirs, a widow, daughter and his mother. What would be the shares of the
parties in the estate of the deceased ?

Ans.— The widows snare would be 1/8, ie., 4/32. The mother’s share. 1/6. would be increased to 1/4 of 7/8 i.e., 7/32.
The daughter’s share, 1/2 would be increased to 3/4 of 7/8. i.e., 21/32.

2. A Sunni woman dies, leaving a husband and a mother. How will the estate devolve ?

Ans.— The husband is entitled to 1/2 as a sharer, and the mother to 1/2 (1/3 as sharer and 1/6 by return).

3. A Sunni woman dies, leaving a husband and a daughter. How will the estate devolve ?

Ans.— The husband will get 1/4 as sharer, and the daughter 3/4 (1/2 as sharer and 1/4 by Return).

As seen above, the husband and the wife are excluded from the benefit of ’Return’, only so long as there is any other
heir, sharer or distant kindred. Thus, if A dies, leaving a widow (1/4 share) and two sisters (2/3 share), there is a
surplus of 1/2, which will be divided between the two sisters, each taking 1/24. The widow will have no share in it.
But, if A dies, leaving his widow as his only heir, she will take 1/4 as a sharer, and the remaining 3/4 by ”return”.

Shia law.— Under the Shia law, if there is a surplus after satisfying the shares, it is not necessary that there should be
no residuaries in order to apply the doctrine of return. If there is a surplus left after the allotment of shares of the
sharers, but there are no residuaries in the class to which the shares belong, the surplus reverts to the sharers in the
proportion of their respective shares.

Difference between ’Increase’ and ’Return’

The doctrine of ”return” is the converse of the doctrine of increase”, In ”increase”, the shares exceed unity, and
suffer a proportionate reduction. In ”return”, the shares fall short of unity, and are proportionately increased. In
return, the husband and wife do not benefit if there is any other sharer or a distant kindred, but they are not saved
from the operation of the doctrine of increase

Thus, the important points of difference between the two are as under

1. In ’Increase’, the total of the shares adds up to more than unity: whereas in ’return’ the total falls short of unity

2. In ’Increase’, the shares undergo rateable reduction In ’Return’, the shares undergo a rateable increase

3. In ’Increase’, the share of the husband or wife suffers a proportionate reduction along with other sharers In
’Return’, the husband or wife is not entitled to the ’Return’ so long as there is any other heir, whether sharer or
distant kindred

III. DISTANT KINDRED

The distant kindred are entitled to inherit only (i) in the absence of the sharers or residuaries, or (ii) if the only sharer
is a husband or wife, and there is no relation belonging to the class of residuaries, the husband or wife will take his
or her full share, and the remaining estate will be divided among the distant kindred.

Four classes of distant kindred

Distant kindred can be divided into four classes. These are :

(i) descendants of the deceased, other than sharers and residuaries,
(ii) ascendants of the deceased, other than sharers and residuaries:
(iii) descendants of parents, other than residuanes, and
(iv) descendants of grandparents.

The kindred belonging to class

(i) succeed in priority to those in class
(ii) succeed in priority to those in class
(iii), and so on

General rules of succession among distant kindred

1. The first class excludes the second, and so on.

2. The near in degree excludes the remoter one.

Thus, for instance, a daughter’s children exclude a son’s daughter’s children.

3 As amongst the members of the same class and of the same degree, the children of sharers and residuaries are
preferred to those of the distant kindred

Thus, a son’s daughter’s children are preferred to the daughter’s grandchildren

4. Subject to the above rules, heirs of whole blood are preferred to consanguine heirs, and a male takes double the
share of a female
The above rules of distribution are in accordance with the opinion of Imam Muhammad which, though complicated
when compared to those of Abu Yusuf. are followed in India, because they are followed by the authors of Al
Sirajiyyah and the Sarifiyya. Abu Yusuf and Imam Muhammad do not differ so long as the intermediate ancestors do
not differ in their sexes or blood But where the intermediate ancestors are of different sexes and of different blood,
according to Abu Yusuf, regard is to be had to the sex and blood of the actual claimants. According to Imam
Muhammad. the sexes and blood of the intermediate ancestors are the most important.

IV. SUCCESSORS UNRELATED IN BLOOD

Failing the sharers. residuaries and distant kindred, the property of a deceased Muslim goes to the following
successors unrelated in blood to the deceased :

1. Successor by contract : (Maula)

A -successor by contract” is a person who derives his right of succession under a contract with the deceased in
consideration of an undertaking given by him to pay any fine or ransom to which the deceased may become liable.
Such an agreement is called an agreement of mawalat. and the successor is called maula. Such a contract, being
illegal and void, is not recognised in India.

2. Acknowledged kinsman

Z. a person having no relations of his own. may be acknowledged by another person, X. as XS relation through
another, and not through Z himself. Thus, X may acknowledge .Z as his brother; it is relationship through the father.
But X cannot acknowledge Z to be his son, because that is relationship through himself.

[Note :— This acknowledgement of relationship should not be confused with Acknowledgement of Paternity
discussed in Chapter 7]

3. Universal legatee

A universal legatee is a person to whom the deceased, who has left no known heirs, has left the whole of his property
by will.

4. The Government (Escheat)

On the failure of all the heirs and the successors mentioned above, the property of the deceased escheats to the State.

Under pure Muslim law, the property does not in such a case, escheat to the State, but falls into the public treasury
(bait-ul-mal) for the benefit of all Muslims.

D. SHIA LAW OF INHERITANCE

Classes of heirs according to Shia law

The Shias divide heirs into two groups, namely, (a) heirs by marriage, i.e., husband or wife; and (b) heirs by
consanguinity, that is, blood relations. These heirs are, in turn, divided into three classes, and each of the three
classes is again sub-divided into two subclasses as follows :
1. (i) Parents, (ii) children and other lineal descendants h.I.s.

2. (i) Grandparents (true as well as false). (ii) brothers and sisters and their descendants h.I.s.

3. (i) Paternal, and (ii) maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s , and their
descendants h.I.s.

Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But
the heirs of the two sub-classes of each class succeed together, the nearer degree in each section excluding the more
remote in that sub-class

Rules of succession

(1) For the purposes of succession, the Shias divide heirs into two classes, namely, sharers and residuaries. There
is no class of heirs corresponding to ’Distant Kindred” of Sunni law

(2) If the deceased left only one heir, the whole property would devolve upon that heir, except in the case of a wife
If the deceased left a wife, but no other heir, the older view was that the wife will take her share 1/4 (called Quranic
share) and the surplus will escheat to the Slate. But, it has been held by the Lucknow High Court in Abdul Hamid
Khan v. Peare Mirza (1935 I.L.R. 10 Luck 550), that the rule now in force is that the widow is entitled, in the
absence of a blood relation, to the whole estate by return.

(3) Doctrine of representation : The Shia law recognises a //mired principle of representation in calculating the
shares of the sharers, as distinguished from the Sunni mode of calculating the shares

Distribution among heirs of the first class

The persons who are entitled to succeed to the estate of a Shia Muslim are the heirs of the first class, along with the
husband or wife, if any. The first class of heirs comprises the father. mother, children, and in the absence of
children, remote descendants In the absence of any descendants, the parents will take the whole estate, the mother
taking 1/3 as a sharer, and the father, the remaining, as a residuary

Problem. — A Shia Muslim dies, leaving a wife, mother and father as his heirs How will the estate devolve ?

Ans. — The wife will get 1/4 share as sharer, the mother will get 1/3 share as sharer, and the father will get 5/12
share as residuary.

Note . According to the Sunni law, when any one dies childless, leaving the husband or wife and the mother, the
mother takes 1/3, after deducting the share of the husband or the wife, as the case may be But according to Shia law,
it is not so.

Doctrine of ’Increase’

The Hanafi doctrine of increase is not recognised in the Shia law, According to the Shia law, if the total of the shares
of the sharers exceeds unity, the fraction in excess is always deducted from the shares of the following heirs, and of
no other :

(i) the daughter or daughters or

(ii) the sisters or sister. Whether full or consanguine.
The doctrine of ”Return”

If the deceased has left a mother, a father, and one daughter, and also

(a) two or more full consanguine brothers; or

(b) one such brother and two such sisters; or
(c) four such sisters: -

the brothers and sisters, though themselves excluded from inheritance as being heirs of the second class, prevent the
mother from participating in the return, and the surplus reverts to the father and the daughter in the proportion of
their respective shares. This is the only case in which the mother is excluded from the return.

Rules of succession among heirs of the second class

Under Shia law, the heirs of the second class comprise grandparents h.I.s., and brothers and sisters and their
descendants h.I.s. The rules of succession among the heirs of the second class are different, according as the
surviving relations are —

(1) grandparents his., without brothers and sisters or their descendants his.;
(2) brothers and sisters or their descendants, without grandparents or remoter ancestors;
(3) grandparents h.l.s., with brothers and sisters (or their descendants).

(1) If there are grandparents without brothers and sisters or their descendants, the paternal grandparents take 2/3, and
divide it between them according to the rule of a double share to the male, and the maternal grandparents take 1/3,
and divide it equally between them, so that the mother’s father takes 1/6 and the mother, 1/6.

(2) In the case of brothers and sisters without grandparents, the estate (minus the share of the husband or wife) will
be distributed among them according to the same rules as in Harlan law.

(3) In the case of grandparents with brothers and sisters, the estate (minus the share of the husband or wife) is to be
distributed among grandparents and brothers and sisters, according to the following rules

(i) A paternal grandfather counts as a full consanguine brother and a paternal grandmother as a full consanguine
sister.
(ii) A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a uterine sister.
Thereafter the estate will be divided as among brothers and sisters of various kinds as under Hanafi law.

Distribution among heirs of the third class

It there are no heirs of the first or second class, the estate (minus the share of the husband or wife) devolves upon the
heirs of the third class in the order given below

1. Paternal and maternal uncles and aunts of the deceased, fairing them, their descendants, his., the nearer in degree
excluding the more remote
2. Paternal and maternal uncles and aunts of the parents. failing them, their descendants h I.s . the nearer in degree
excluding the more remote.
3. Paternal and maternal uncles and aunts of the grandparents and their descendants h.l.s., in like manner, the nearer
excluding the more remote.
Exception.— There is one exception to be noted among the heirs belonging to the third class, and that is where the
only claimants are (i) the son of a paternal uncle and (ii) a consanguine paternal uncle The son of the paternal uncle,
though he is remoter in degree to the consanguine paternal uncle, excludes the latter, who is nearer in relationship to
the deceased.

The reason is that the Shias are the followers of Ali. who was the paternal uncle’s son of the Prophet At the time of
his death. the Prophet had also left his consanguine paternal uncle named Abbas The Shias maintain that, on the
death of the Prophet, the succession to the Caliphate should have gone first to Ad. on the ground he was the nearest
male heir of the Prophet But Ali could not be the nearest male heir, unless the son of the paternal uncle was entitled
to succeed in preference to the consanguine paternal uncle of the Prophet, Abbas. Therefore, to uphold the claim of
Ail, the Shias had to resort to this rather illogical reasoning that the son of a full paternal uncle was entitled to
succeed in preference of the consanguine paternal uncle, and this accounts for the exception
Fundamental principles of Sunni and Shia law of succession

The following are a few fundamental principles underlying the law of succession of both the Hanafis and the Shias

No distinction is made between movable and immovable property, (except in one case, considered below), joint or
separate property, realty and personality The property comprises all forms of property, and includes both corpus
and usufruct Birth-right is not recognised; nor has a spes successionis any value. Rights of inheritance arise only on
the death of a person The principle of representation is not recognised in Sunni law for the purpose of determining
the right to inherit, although it is recognised to a limited extent by Shia law. Males and females have equal rights
over property. the females do not, by reason of sex, suffer from any disability to deal with their share of the property
Every person, including a child in the womb, provided it is born alive, is entitled to inherit, unless there is a specific
rule of exclusion The estate of the deceased devolves upon his heirs at the moment of the death of the deceased, to
the extent only of a share of the debt proportionate to his share of the estate.

LAW OF INHERITANCE Difference between

Sunni law Shia law

1. Rule of Primogeniture

The Sunni law does not recognise the doctrine of Primogeniture.

The Shia law recognises the doctrine to a limited extent.

Thus, the eldest son is entitled to his deceased father’s sword, wearing apparel and the Quran.

2. Principle of consanguinity
The principle of consanguinity is not recognised. The Sunnis prefer agnates to cognates

The Shia law adopts the principle of consanguinity, and does not give preference to agnates. The Shias prefer the
nearest kinsmen, whether they are agnates or cognates. They do not recognise any separate class of heirs,
corresponding to the Distant Kindred of the Sunni law. All heirs under the Shia law are either Sharers or Residuaries.

3. Classification of heirs

The classification of heirs under the Sunni law would appear to be rather unnatural.

Under the Shia law, the classification of heirs can be said to be more natural.

4. Quranic list of sharers

This Sunnis do not interfere with the Quranic shares, except that, on the authority of the ijma and qiyas, they
introduce into the list of sharers, the true grandfather, the true grandmother and the son’s daughter.

The Shias keep the Quranic list intact, but re-arrange it in a group-division on the basis of propinquity.

5. Doctrine of Representation

The doctrine of representation is not recognised by Sunni law.

The doctrine of representation is recognised by the Shia law of inheritance.

6. Distant Kindred

Under the Sunni law, the distant kindred are postponed to sharers and residuaries

Under the Shia law, the distant kindred inherit along with sharers and residuaries

7. Doctrine of ’increase Under the Hanafi law, the doctrine of ’increase extends to all the sharers alike.

Under the Shia law, the doctrine applies only against the daughter and sister

8. Movable and immovable property

Under the Sunni law, there is no distinction between movable and immovable property left by the deceased.

In one case, viz., in the case of a childless widow, the Shia Law makes a distinction between movable and
immovable property. A childless widow is not allowed to take any share in her husband’s immovable property

9. ’Return’

Under the Hanafi law, all the sharers, except the husband or wife share in the -return”, and even the husband or wife
gets the residue on the total failure of all other heirs.

Under the Shia law, the wife can never benefit by the “return” and the mother and uterine brother or sister are
excluded from the share under certain conditions

10. Devolution of the residue

If the deceased leaves behind a single daughter and the father. according to the Sunnis, the residue goes to the father.

In such a case. under the Shia law, the residue is divided amongst the sharers by return.

E. MISCELLANEOUS TOPICS

Step-children

Step-children do not inherit from step-parents; nor do step-parents inherit from their step-children.

Illegitimate children

An illegitimate child is considered to be a child of its mother only. and as such, it is entitled to inherit from its
mother and her relations. Conversely, such persons also inherit from the child. However, it has been held that an
illegitimate son cannot inherit from the legitimate son of the same mother. (Rehmat Ullah v. Maqsood Ahmed, A.I.R.
1952 All 640)
The above rule thus implies that an illegitimate child does not inherit from its putative father or his relations; nor do
they inherit from such a child

Missing Persons

Under strict Muhammadan law, a missing person is to be regarded as alive till lapse of ninety years from the date of
his birth. However. this rule has now been superseded by the provisions of the Indian Evidence Act [MazharAli v
Budh Singh, (1884) I.L.R. 7. All. 297; Moola Cassim v Moola Abdul, (1905) I L R 33 Cal. 173 and Azizul Masan v
Mohamed Faruq, (1934) I.L.R 9. Luck. 401, I.C. 975 (’34) A.0 41]

Today, if the question is whether a Muslim is alive or dead, and it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is
on the person who affirms it.
APPENDIX I

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

(ACT XXVI OF 1937) (7th October, 1937)

An Act to make provision for the application of the Muslim Personal Law (Shariat) to Muslims

WHEREAS it is expedient to make provision for the application of the Muslim Personal Law (Shariat) to Muslims.

It is hereby enacted as follows :

1. Short title and extent

(1) This Act may be called THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937.

(2) It extends to the whole of India, except the State of Jammu and Kashmir.

2. Application of Personal Law to Muslims

Notwithstanding any custom or usage to the contrary. in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal property, inherited or obtained under
contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar,
lian, khula and mubara’at, maintenance, dower, guardianship, gifts, trust arid trust properties, and wakfs (other than
charities and charitable institutions arid charitable and religious endowments). the rule of decision in cases where
the parties are Muslims shall be Muslim Personal Law (Shariat)

STATE AMENDMENTS

TAMIL NADU

For section 2, ,substitute the following section, namely

2. Application of Personal Law to Muslims, — Notwithastanding any custom or usage to the contrary, in all
questions regarding intestate succession, special property of females, including personal property inherited or
obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage. including
Talaq. ila, Zihar. lian, Khula and Mubara’at, maintenance, dower, guardianship. gifts trusts and trust properties and
wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). (Mad
Act XVIII of 1949, S 2 )

ANDHRA PRADESH

Same as that of Tamil Nadu.

3. Power to make a declaration

(1) Any person who satisfies the prescribed authority—

(a) that he is a Muslim, and

(b) that he is competent to contract within the meaning of section 11 of the , Indian Contract Act, 1872, and
(c) that he is a resident of the territories to which this Act extends. may by declaration in the prescribed form and
filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of section 2 and
the said section shah apply to the declarant and all his minor children and their descendants, as if in addition to the
matters enumerated therein, adoption, wills and legacies were also specified

(2) Where the prescribed authority refuses to accept a declaration under subsection (1), the person desiring to make
the same may appeal to such officers as the State Government may. by general or special order, appoint in this
benefit, and such officer may. if he is satisfied that the appellant is entitled to make the declaration, order the
prescribed authority to accept the same,

4. Rule-making power

(1) The State Government may make rules to carry into effect the purposes of this Act

(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or
any of the following matters, namely :

(a) for prescribing the authority before whom and the form in which declarations under this Act shall be made,
(b) for prescribing the fees to be paid for the filing of declarations and for the attendance at private residences of any
person in the discharge of his duties under this Act, and for prescribing the times at which such fees shall be payable
and the manner in which they shall be levied.

(3) Rules made under the provisions of this section shall be published in the Official Gazette. and shall thereupon
have effect as if enacted in this Act.

5. Dissolution of marriage by Court in certain circumstances. (Repealed by the Dissolution of Muslim Marriages
Act. 1939)

6. Repeals

The undermentioned provisions of the Acts and Regulations mentioned below shall be repealed in so far as they are
inconsistent with the provisions of this Act, namely

(1) Section 26 to the Bombay Regulation IV of 1827;

(2) Section 16 of the Madras Civil Courts Act, 1873;
(3) Omitted;
(4) Section 3 of the Outh Laws Act, 1876;
(5) Section 5 of the Punjab Laws Act. 1872:
(6) Section 5 of the Central Provinces Laws Act, 1875: &
(7) Section 4 of the Ajmer Laws Regulation, 1877.
APPENDIX II

MOHD. AHMED KHAN V. SHAH BANO BEGUM (A.I.R. 1985 S.C. 945)

Facts of the case

Mohd. Ahmed Khan, an Advocate, was married to Shah Bano Begum in 1932. Five children (three sons and two
daughters) were born of the marriage. In 1975. the husband drove the wife out of the matrimonital home In April.
1978. the wife filed an application in the Magistrate’s Court, under Section 125 of the Criminal Procedure Code,
asking for maintenance at Rs 500 p m.. stating that the husband’s income was about Rs. 5,000 a month. In
November 1978, the husband divorced his wife by an irrevocable talaq. He argued before the Magistrate that she
had ceased to be his wife, and therefore, he was under no obligation to provide maintenance for her, and that he had
already paid maintenance to her at the rate of As 200 p m. for about two years. The husband also deposited Rs 3,000
in the Court by way of dower during the iddat period. In August, 1979. the Learned Magistrate gave his ruling, and
directed the husband, in the words of the Supreme Court, ”to pay a princely sum of Rs 25 per month” to the
divorced wife by way of maintenance When the matter went in appeal to a High Court of Madhya Pradesh, the
maintenance amount was increased to Rs. 179.20 p.m. Finding this amount excessive, the husband filed an appeal in
the Supreme Court by special leave

QUESTIONS RAISED BEFORE THE COURT

The main questions before the 5—member bench of the Supreme Court, consisting of Chief Justice Chandrachud,
Justice Desai. Justice Chinnappa Reddy, Justice Venkataramiah and Justice Misra, were as follows

(1) Whether S. 125 of the Criminal Procedure Code, which provides for maintenance of wives (which expression
includes a divorced wife who has not re—married), applies to Muslims.

(2) Under S. 127 of the Criminal Procedure Code, if a divorced woman has received the whole amount payable to
her on divorce (under any customary or personal law), the maintenance order may be cancelled by the Court. Now,
can it be said that, under Muhammadan Law, Mahr (or dower) is an amount payable on divorce’, which would,
therefore, absolve a Muslim husband from payment of maintenance under S. 127 ?

Decision of the Court

On the first question, the Supreme Court observed that, under S 125 of the Cr. PC., a wife who is not maintained by
the husband is entitled to approach the Court for maintenance. It is also clarified that the term ”wife” includes a
divorced woman who has not re—married. Now, the religion professed by a spouse is not at all relevant for this
purpose In the words of the Court. ”Whether the spouses are Hindus or Muslims. Christians or Persia, pagans or
heathens, is wholly irrelevant in the application of these provisions” As S 125 is secular in character. the Court held
that these provisions apply to Muslim women also.

The Court further pointed out that this issue had already been settled by two earlier decisions of the Supreme Court,
itself. Bai Tahira v Ali Husain (AIR. 1979 S.C. 362) and Fazlunbi v K Khader Vali (A.I.R 1980 S.C. 1730). Both
these Cases had held that a divorced Muslim wife is entitled to apply for maintenance under S. 125, of the Cr. P.C.
and to this extent. both cases were held to be correctly decided.

The court further observed that the arguments advanced before it on the question whether the right conferred by S
125 prevails over the personal law of the parties, proceeds on an assumption that there is a conflict between S. 125
and the Muslim Personal Law However. the Court found no such conflict, as the various authorities also lay down
that the Koran imposes an obligation on a Muslim husband to maintain has divorced wife

Answering the second question, the Court found itself unable to come to a conclusion that under Muhammadan Law.
Mahr (dower) is a sum of money payable by the husband to the wife on divorce Now, very often, mahr is split into
two parts, (i) ’prompt’ i e. payable on demand and (ii) ”deferred” which is payable on dissolution of marriage by
death or divorce But, just because deferred dower is payable when the marriage is dissolved cannot justify the
conclusion that it is, therefore, payable on dmorce’. Divorce may be a convenient or identifiable time for its
payment, but such payment is not occasioned by the divorce. If, as laid down in the Muslim texts, mahr is an amount
given to the wife in consideration of the marriage, it would be absurd to say that this amount is payable in
consideration of divorce. On the contrary, mahr is an obligation imposed on the husband as a mark of respect for the
wife”, as stated by Dr. Paras Diwan in his book. ”Muslim Law in Modern India”.

The Supreme Court also referred to earlier decisions of the Privy Council, which also support the above conclusion.
These decisions also show that the payment of dower may be deferred to a future date. as for instance, death or
divorce But that does not mean that deferred dower is occasioned by these events

The Court, therefore, concluded that it cannot be said that deferred dower is an amount payable on divorce” within
the meaning of S. 127 of the Cr. PC. In its view, an amount payable as a mark of respect for the wife cannot be
converted into an amount payable on divorce.

Aftermath of Shah Bano’s Judgment

Great hue and cry was raised after the judgment in the above case, both in Muslim and non—Muslim circles.
Ultimately, the Muslim Women (Protection of Rights on Divorce) Act was passed by Parliament in the midst of
vociferous protests and objections. (For text of this Act, refer to Appendix III to this Book.)
APPENDIX III

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

AN ACT

To protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands,
and to provide for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Thirty—seventh year of the Republic of India as follows :

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 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:

(Note : ”Enceinte” means pregnant.)

(c) ”Magistrate” means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal
Procedure, 1973, 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 her 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 fir 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 termer husband to pay
such 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, and may sentence
such person, for the whole or part of any amount remaining unpaid after the execution of the welfare. 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 a 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 properly 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 relatives 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 proviso to sub—section (1), the Magistrate may, by order,
direct the State Wakf Board established under Section 9 of the Wald Act, 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 Sections 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
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, 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 an application under this Act, including the
serving of notices to the parties to such applications, 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, 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.