SOURCES OF MUSLIM LAW

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to
mohamedans not in all, but in some matters only. Muslin law in India means that portion of Islamic civil law
which is applied to Muslims as a personal law. Muslim law is the body of law which is derived from the
Quran and other recorded saying of the Muslims prophet Muhammad. However Islamic law talked about
man's duties rather than his rights. In the religious sense Islam means submission to the will of god' & in
secular sense Islam means the establishment of peace.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create a
sense of obedience and submission to Allah. His ordinances and thereby to walk on right path. Those who
follow this path are Muslim. According to Amir Ali Muslim is any person who professes the religion of Islam,
in other words accepts the unity of god and prophetic character of Mohammad. Thus to be a Muslim only
two things is required- one is that Allah is one and the second is the prophet hood of Mohammad. Islamic
law is a branch of Muslim theology, giving practical expression to the faith, which lays down how Muslim
should conduct himself through his religion, both towards god and towards other men*

Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of the prophet
(sunna), of the common opinion of the jurists (ijma), of the analogical deductions of these three (qiyas).
Further , it has been supplemented by the juristic preference (Istihsan), public policy (Istislah), precedent
(Taqlid) and independent interpretation (Iltihad).

Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary Sources

Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim law.
Primary sources of Muslim law are:

Quran

Sunnat

Ijma

Qiyas

1. Quran

Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity,
subsisting in very essence of god. The word Quran has been derived from the Arabic word Quarra which
means to read. The Quran is, Al-furqan i.e., one showing truth from falsehood and right from wrong. The

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word Quran which is the ‘divine communication' and revelation to the prophet of Islam is the first source
of Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion and
Islamic society owes its birth to the word of Quran. It is a paramount source of Muslim law in point of
importance because it contains the very word of god and it is foundation upon which the very structure of
Islam rests Quran regulates individual; social, secular, and spiritual life of Muslims.

It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It was
given to the world in fragmentary forms, extending over a period of 23 years. It originally had for its objects
repealing objectionable customs, such as, usury, unlimited polygamy and gambling, etc., and effecting
social reforms, such as raising the legal status of women and equitable division of the matters of
inheritance and succession.

The Quran can be no way altered or changed, thus, even the courts of law have no authority to change the
apparent meaning of the verses as it does have an earthly origin. This view was held in Aga Mohammad
Jaffer v. koolsom Beebee (1895). But whenever the Quran was silent on any particular matter, guidance
was taken from the the sunnat'.

2. Sunnat

The word sunna means the trodden path & as this meaning shows it denotes some kind of practices and
precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin).
Manifest revelation is communication which is made by angel Gabriel under the direction of god to
Mohammad in the very words of god. Quran is composed of manifest revelations.

Internal revelation is opinions of the prophet which is delivered from time to time on questions that
happened to be raised before him. Sunna means the model behavior of the prophet. The narrations of
what the prophet said, did or tacitly allowed is called hadis or traditions. The traditions, however, were not
reduced to writing during lifetime of Mohammad. They have been preserved as traditions handed down
from generation to generation by authorized persons. The importance of hadith as an important source of
Muslim law has been laid down in the Quran itself.

Kinds Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat
2. Ahadis

These two have been classified into the following three classes on the basis of mode or manner in
which it has actually originated:

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

Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.

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Sunnat -ul-tuqrir i.e., The things done in his presence without his disapproval.

The three class of Ahadisare:

Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as absolutely
authentic. In such hadis the chain is complete.

Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the character of
universal propriety.

Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.

Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of Islamic
law.

3. Ijma

It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which had
been established by agreement among highly qualified legal scholars of any generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet
Mohammad in a particular question of law. The validity of ijma, as containing a binding precedent, is based
upon a hadis of the prophet which says that god will not allow His people to agree on an error. Ijma thus
become a source of law. According to the classical theory, failing Quran and traditions, and consensus of
opinion amongst the companions of the prophet is recognized as the best guide of law. Thus it is the third
source of law, both in point of time and importance.

The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is something
living & changing. The aim of law is to fulfill the needs of the society. The principle of ijma is based upon the
text i.e. god will not allow His people to agree on an error and whatever Muslims hold to be good is good
before god. Muslims religion does not admit the possibility of further revelation after the death of the
prophet, the principle of ijma is the only authority for legislation in the present Muslims system.

Kinds Of Ijma

Ijma is of three kinds:

Ijma of the companions of the prophet is the consensual opinion of companion which is universally
acceptable, throughout the Muslim world and is unrepealable.

Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after ijma of
companions. All the jurists should sit together and discussed the reasoning, and majority of the jurists is of
the view that unanimity to form ijma.

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Ijma of the people is the opinion of Muslim population as a whole may have any importance but in actual
practice ijma of Muslim public had no value with regard to legal matters but in matters related to religion,
prayer and other observances have more value attached to it.

Ijma cannot be confined to any particular period or country. It is completed when the jurists, after due
deliberation, come to a finding .it cannot be questioned or challenged by any individual jurist. Ijma of one
age may be reversed or modified by the ijma of the same or subsequent age.

4) Qiyas

This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources i.e.,
Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which
though not covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas
does not purport to create a new law, but merely to apply old established principles to new circumstances.

Conditions of Validity of Qiyas:

The original source from which Qiyas is deduced must be capable of being extended, that is it should not be
of any special nature.

The original order of the Quran or hadith to which the process of Qiyas is applied should not have been
abrogated or repealed.

The result of Qiyas should not be inconsistent with any other verse of Quran or any established Sunna.

Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used.

The deduction must not be such as to involve a change in the law embodied in the text.

Thus it can be said that Qiyas is weak source of law and rules analogically deduced do not rank so high as
authority, as those laid down by Quran and Hadith or by consensus of opinion (ijma).the reason is that with
respect to analogical deductions one cannot be certain that they are what the law giver intended. Such
deduction always rest upon the application of human resources which always are liable to err

Secondary Sources

These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The
secondary sources of Muslim law are:

Urf or Custom

Judicial decision

Legislation

Equity, Justice, & Good conscience

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Urf or Custom

Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality,
trade and commerce. Custom has not been recognized as a source of law in a Muslim law. However, it
cannot be denied that custom has always been given a place under Muslim law, if it is in conformity with
Muslim law. For example, prophet mohammad never repeal the whole of the pre-Islamic customary law of
Arabia. In various matter of Muslim law, custom play a significant role when the matter is relating to their:

agricultural land;

testamentary succession among certain communities; and

A charities other than wakf, because these matters have not been included in the section 2 of Shariat
Act,1937. Custom influenced the growth and formation of shariah in several ways:

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

A part of the shariah based upon tacit or silent approval of the prophet comprises many of Arab customs.

Imam malik says that the customary conduct of the citizen of medina was a sufficient ijma to be relied upon
in the absence of other texts.

Pre- Condition Of Valid Custom

Custom must be territorial.

It must be existing from memorable time i.e. ancient.

It must be continuous and certain and invariable.

Custom should not oppose the public policies.

Custom must not in contravention of Quran and Ijma.

Judicial Decision

These includes the decisions of privy council, the supreme court & high court of India, Judges explain what
law is. These decisions are regarded as precedents for future cases. Judicial decision is one of the
distinguish characteristic of English law. In India, the plan of Warren Hastings of 1772 made provision that it
was only judiciary which introduced new set rules in personal laws of Hindus and Muslims.

There are number of judicial decisions which have given new dimension to Muslim law:

In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the right to retain
the property of her husband till her dower money was paid

In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of maintenance. The
Supreme Court held that a woman will be entitled for maintenance under section 125 of criminal procedure
code even though she has received a lump-sum amount under her customary law. A similar view also taken
in Shah Bano's case.

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It may be concluded therefore, that to some extent, the courts in India have tried to modify the rules of
Muslim personal law as applied in India. Unless overruled or negative by some legislative enactment, these
rules through the decisions, continue to be a source of Muslim law.

Justice, equity and good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law. Abu
Hanifa, the founder of hanafi sect of Sunni, expounded the principle that rule of law based on analogy could
be set aside at the option of the judge on a liberal construction or juristic preference to meet the
requirements of a particular case. These principles of Muslim law are known as Istihsan or juristic equity.
Istihsan literally means approbation and may be translated as liberal construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying down the law,
which in his discretion, the special circumstances required, rather than law which analogy indicated.
Several areas of Muslim were modified so as to meet the changing conditions in India.

Legislation

In India, Muslims are also governed by the various legislation passed either by the parliament or by state
legislature. The following are the examples of legislation in India.

The usurious loans act, 1918

Religious toleration act

Freedom of religion act, 1850

The mussalman wakf validating act, 1930

The shariat act, 1937

Dissolution of Muslim marriage act, 1939

These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act i.e.
Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced
Muslim women was enacted by Indian parliament. According to the need of time and circumstances Indian
legislature enacted the law to fulfill the need.

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 Marriage

Hedaya :- Marriage is contract for the purpose of legalisimg sexual intercourse and for the procreation and
legitimation of children and social life in the interest of society by creating the rights and obligation
between the parties themselves. Between each of them and children born from the union.

Sir Ronald Wilson :- marriage is a contract for the purpose of legalisimg sexual intercourse and for the
procreation of children.

Whether a muslim marriage is a sacramental or a pure contract?

Case – Shoharat Singh v/s Jafri Begum

Privy council said that nikah under the muslim law is a religious ceremonies.

Case – Abdul Karim v/s Salima

In this case it was held that marriage among mohammedans is not a sacrament but purely a civil contract
and though it was solemnized generally with the recitation of certain verses from the Quran, yet the
mohammedan law does not positively prescribe any service secular to the occasion. The validity of
operation of the marriage are made to depend upon the declaration or proposal by one and the acceptance
or consent of the other contracting parties.

Justice mohmood further observe that muslim marriage is not a civil contract because:-

(1) it cannot made contingent on future event.

(2) marriage cannot be for a limited time (muta marriage is an Exception)

(3) contract of sale of goods may be cancelled by unpaid seller but not marriage in case dower not paid.

Criticism:- the wife herself is to receive dower & not her parents then who is seller & what has been sold.
let us suppose that woman is seller & woman's personality is the thing to be sold. This is against the basic
principle of natural justice for, no one is entitled to sell his/her personality.

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In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil contract nor as a
sacrament. It is devoid of none but the blending of the two.

Essential of a valid marriage in Muslim:-

(1) proposal (Ijab)

(2) Acceptance (Qubul)

(3) consent

(4) Sufficient witnesses

(5) capacity (Puberty)

(6) No impediments to marriage

(A) Proposal :- According to muslim marriage is a civil contract between the parties. Thus, is necessary that
there should be declaration of proposal on the part of one.

(B) Acceptance:- such proposal of marriage should be accepted by her or by her guardian or by other party
on her behalf as the case may be.

case - Ghulam Kubra V. Mohammad Shafi

held than a man or someone on his behalf or a woman or some one on her behalf should agree to
marriage act one meeting and the agreement should be witnessed by two adult witnesses.

If the offer is accepted with modifications, there is no marriage for e.g.:-

muslim say " I offer to marry you on Rs 500 as dower"

muslim girl " I accept your offer for marriage on Rs 1000 as dower".

(C) Consent

- consent of the parties to the marriage should be free; without coercion, under influence or fraud.

- consent may be express or implied.

- if the consent has not been obtained, the marriage is invalid and even consummation with the approval of
the woman will not validate the marriage it.

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- A marriage brought about by a fraudulent misrepresentation is invalid unless ratified it.

(1) Sufficient Witnesses

Sunni Law - Two witness are required (Two Male or One Male and Two females)

Shia Law- The witnesses are not essential at the time of marriage but, They are required at the time of
dissolution of marriage.

(2) Capacity

- Every muslim of sound mind who has attained majority can enter into a contract of marriage.

-Majority is attained at puberty.

- For marriage, Divorce and Dower, the majority age is 15 yrs in other cases it is 18 yrs.

- The marriage of minors can be contracted only by their guardian. Such a marriage, although valid, is
capable of being repudiated.

- Case - Allah Diwaya V. kammon Mai

A marriage entered into by a girl while she had not attained puberty was not a marriage in the eye of laws
and was therefore void. (without the Permission of guardian)

- Case - Atika Begam V. Mohd. Ibrahim

A girl becomes major on the happening of either of the two events.

- (1) The completion of her 15th year, or

(2) on the attainment of a state of puberty at an earlier period.

The same rule applied in the case of boy also.

The right to contract to give in marriage belongs successively to the following person:-

(1) father

(2) Paternal grandfather how high so ever.

(3) brother and other male relations on the father's side in the order of inheritance.

(4) The mother

(5) The maternal uncle or aunt and other maternal relations without the prohibited degrees and

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(6) The state (govt.)

- The marriage is void if consent given by the unauthorized person who is not a guardian but if it is ratified
by the parties after attaining the age of puberty, it is valid.

= Repudiation of marriage

case - Behram Khan V/s Akhtar Begum

Consummation of marriage before the age, of puberty does not deprive the wife of her option of puberty
but consummation after puberty age means lost of right of puberty.

case - Nizamuddin V. Husseni

it was held that a wife can exercise the option puberty even in a suit filed by the husband for restitution of
conjugal rights.

[option of puberty (Khyar - ul - Bulugh]

(F) No impediments to marriage

1) Number:- Muslim man may marry any number of wives not exceeding four, but a muslim woman can
marry only with one husband.

The status to 5th wife is irregular as the marriage is considered regular marriage under
sunni law. where as if a muslim woman marries a second husband, she is liable for bigamy u/s 494 of IPC,
the offspring of such a marriage are illegitimate & cannot be child legitimated by any subsequent
acknowledgment.

But under shia law arranging or solemnizing 5th marriage in existence of four marriages are void.

(2) Religion:-

kitabia is a woman who belongs to that community which believes in a religion possessing a
revealed Book (Kitab) like Christians & Jews are regretted as Kitabis if males and kitabias if female.

Sunni Law- sunni male's marriage with a kitabia female is valid But a Sunni female's marriage with a non-
muslim or a non kitabia male is irregular.

Shia Law- Marriage of a shia male is possible only with a muslim female. marriage of a shia male or female
with a non-muslim is void.

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Intersect marriage- marriage of a shia male with a sunni female or a shia female with a sunni male is valid.

Imp.- A muslim woman cannot contract a valid marriage with a non-muslim. But it can subsequently
become valid it the non-muslim becomes a convert to Islam.

(3) Relationship (Absolute in capacity) (marriage ab-initio void)

(a) Consanguinity (Batil) in muslim Law (Qurabat)

Consanguinity means blood relationship & bars a man from marrying.

1) his mother or grandmother how high so ever

2) his daughter or grand daughter how low so ever

3) his sister whether full half or uterine blood relationship

4) his niece or great niece how low so ever

5) his aunt (father's sister, mother sister) or great aunt how high so ever, whether paternal or maternal.

A marriage with a woman prohibited by reason of consanguinity is void. Issues from such marriage are
illegitimate.

(b) Affinity (mush aarat) ( through marriage relationship)

A man is prohibited from marrying with all such (relative) woman with whom, he has relationship
of affinity, in case any marriage is done with any of the following relation, it is deemed in law, as void.

1) Wife's mother or grand-mother, how high so-ever.

2) Wife's daughter or grand daughter how low so ever. (step daughter)

3) Wife of his father paternal grand father how high so ever (step mother)

4) Son's wife or son's son's wife, how low so ever.

Imp.- In case (2) marriage with the wife's daughter or grand daughter is prohibited only if the marriage with
the wife was consummated.

- A woman can also not marry with her daughter's husband or daughter's daughter husband.

The above categories of marriages are prohibited due to the violation of the rules of affinity.

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(C) Fosterage (Riza)

When a child under the age of 2 yrs has been suckled by a woman other than its own mother, the
woman becomes the foster mother of the child. A man may not for instance, marry his foster mother or
daughter or his foster sister.

Exception- under (sunni law) there are a few exceptions to the general rule of prohibition on the ground of
foster age and a valid marriage maybe contracted with.

1) Sister's foster mother or

2) foster’s - sister's mother or

3) foster’s - son's sister or

4) foster’s - brother's sister

Shia jurists place fosterage and consanguinity on the same footing and refuse to recognize the exception
permitted by the sunnis.

Relative incapacity

marriage invalid only so long as the cause which creates the bar exist, The moment it is removed, the
incapacity ends and marriage becomes valid & binding.

(D) unlawful conjunction

A man may not have at the same time two wives who are so related to each other by
consanguinity, affinity or fosterage that if either of them had been a male, they could not have lawfully
intermarried as for instance two sister, aunt and niece. The bar of unlawful conjunction renders a marriage
irregular, not void (sunni law)

Under the shia law, a muslim may marry his wife's aunt, but he cannot marry his wife's niece without her
permission. marriage prohibited by reason of unlawful conjunction is void under Shia Law.

(E) Polygamy or marriage a fifth wife

marriage with a 5th wife is irregular but this irregularity may be removed by divorcing of them
(sunni law).

marriage with 5th wife is not merely irregular, it is void. (shia law)

- A muslim woman cannot carry more than one husband.

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If a muslim woman marries a 2nd husband, she is liable u/s 494IPC and the Issues of such marriage are
illegitimate.

- In India, no muslim marrying under or getting his marriage registered under special marriage Act 1954,
can marry a 2nd wife during the life-time of his spouse.

(F) Absence of proper witnesses

- Sunni Law - (1) two male witnesses or

(2) one male and two female witnesses

witnesses must be of sound mind, adult & muslim.

In absence of witnesses, marriage held invalid but not void.

- Shia Law - Presence of witnesses is not necessary.

(G) Religion

sunni male can marry a muslim female of any sect or a kitabs But he cannot marry an idolatress or fire -
worshipper.

But if married than the status of that marriage is irregular in sunni law but void under shia law.

- A muslim woman cannot marry any man who is not a muslim, whether he is kitabi.

Shia Law - no muslim, whether male or female can marry a non-muslim in the nikah form.

However, shia male can contract a muta marriage with a kitabia (including a fire – worshipper).

- Muslim belonging to different sects may intermarry.

(H) Woman undergoing Iddat

Iddat is described as a period during which a woman is prohibited from marrying again
after the dissolution of her first marriage.

- Sunni Law- marriage with a woman undergoing iddat is irregular and not void.

- Shia Law- marriage with a woman who is undergoing Iddat is void.

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Iddat- "It is a term by completion of which a new marriage is rendered lawful. The object of following the
period of iddat by a muslim woman is to ensure certainty of paternity during which a woman is supposed to
live a life of seclusion and to abstain from certain Luxuries.

Duration of Iddat

1) Iddat of widowhood - 4month & 10 days

2) iddat of pregnant woman - till delivery

3) Iddat of Talaq - Three course if woman is subject to menstruation otherwise it is 3 lunar month.

4) Iddat when marriage is irregular - if consummated only than not otherwise, But in case of death it is so.

= if during iddaat period, husband died than the woman is required to undergo a fresh iddat for 4 months &
10 days, from the date of husband's death.

Prohibitive incapacity

(I) Polyandry
muslim married woman, cannot marry 2nd time so long as the first marriage subsists. if she
contravene this rule, she is subject to sec 494 IPC and marriage is void, issues if any are
illegitimate.

(J) Muslim woman marrying a non-muslim (Christian, Parsi, Jew)

Sunni Law - irregular

Shia Law - void (muslim to muslim)

Directory incapacity

(K) marrying a woman 'enceinte' (pregnant lady)

irregular marriage under sunni law But void u/shia law.

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(L) Prohibition of divorce

Sunni Law = if marriage dissolved by the pronouncement of divorce 3 times, re-union is prohibited except
after the lawful marriage of the woman with another man and then its being dissolved after
consummation. (irregular)

shia law - void

(The concept of triple talaq has been abolished in India and the same is described in detail under the
chapter talaq)

(M) Marriage during pilgrimage (Macca, Madeena)

shia law - void if married during pilgrimage.

sunni law - irregular

(N) Marriage with a sickman

irregular but if however, he recovers and the marriage is consummated, it is valid.

Kind of marriage

(1) Sahih - valid marriage

(2) Batil - void marriage

(3) fasid - irregular or invalid marriage.

- A marriage which is not a Batil or fasid is a valid marriage.

- void marriage on the ground of consanguinity, affinity, fosterage, polyandry and muslim woman marry
non-muslim.

- voidable Directory incapacity, relative incapacity etc.

Consequences of marriage

(1) In void marriage

- create no right or obligation

- not entitled to maintenance

- cannot inherit

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- off spring is illegitimate

- no need for divorce

- But entitled to dower if consummation takes place

- Iddat has no relevancy

(2) irregular marriage

- Before consummation

- no right & duties

- no dower

- no divorce is needed

- no Iddat

After consummation

- observe iddat

- get dower

- legitimate children

- maintenance during iddat

- separate by court only

Registration of marriage

Not necessary but party can & if there is any custom for registration than it should be registered.

case- (SC) Seema V. Ashwani Kumar (2006)

all persons who are citizens of India belonging to various religions should be made compulsorily registrable
in the respective state.

Defence by wife if petition for RCR is filled by husband

(1) marriage not valid

(2) Legal cruelty

(3) false charge of Adultery

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(4) Non payment of prompt dower

(5) Lian & Zihar

(6) Apostacy of the husband

(7) muta marriage

(8) option to Repudiate the marriage.

(9) when the husband has been expelled from the caste.

(10) An ante nuptial agreement enabling the wife to divorce herself would be a good defense.

Imp:- If married muslim man converts his religion to any other religion & married there. Than the first
marriage automatically dissolved & the wife has no duty to follow the iddat period. she may also arrange
second marriage at any time.

Valid Retirement (Khilwat-us-sahiha)

(like live-in-relationship)

When the husband and wife are alone together under circumstances which present no legal, moral or
physical impediments to marital intercourse, they are said to be in valid retirement.

Four Conditions

1) There must be actual privacy

2) There must not be any physical impediments

3) There must not be any moral impediments

4) There must to be any legal bar

valid retirement has the same legal effect as actual consummation in

1) Confirmation of Mahr

2) establishment of paternity

3) observance of Iddat

4) The right of maintenance & residence during Iddat

5) The bar of marriage with the wife's sister.

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* Shia Law does not recognized the valid retirement.

DOWER (MAHR)

As the marriage under muslim law is a contract so Dower is the consideration to the wife of the marriage.(it
is a price for the woman)

Justice mahmood:-

"It is a sum of money/other property promised by the husband to be paid or delivered to the wife
in the 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.

Ameer Ali:- "Dower is a penal sum with the object to compel husband to fulfill marriage contract in its
entirety.

- it is an obligation imposed upon thee husband as a Mark of respect for the wife and it is also used as a
deterrent to muslim husband's absolute power to pronouncing divorce on his wife.

- It may be fixed before, at or after the marriage; in case, not fixed by the parties, it is implied in every
marriage, and is usually fixed by thee courts.

Nature of Dower

(1) Dower is an essential element of marriage.

(2) If dower is unspecified if must be adjudged on definite principles

(3) Dower is a kind of debt which can be realized by wife from the property of her husband.

(4) A wife can keep lien on the property of husband so long as dower debt is not satisfied.

Imp.

Unsecured debt

Dower ranks as a debt and the widow is entitled along wit other creditors of her deceased husband, to have
it satisfied on his death out of his estate But Dower debt is not charge & widow cannot prevent another
creditor or of her husband from recovering his debt from his estate.

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 Case [Zobair Ahmad V/s Jainadan Prasad]

pre nupital agreement

Stipulation on the part of woman before marriage to forego all her rights to dower is invalid.

special marriage Act

Dower does not arise in case of marriage solemnized under special marriage Act, 1954.

Remission of the mahr by a wife is valid called Hibe-e-mahr (post nupiteel agreement)

Dower (Mahr)

- Proper Dower or (customary dower) - Specified dower or

Or mahr-i-misl or unspecified dower [mahr-i-musamma]

(a) Prompt dower (muajjal mahr)

(on demand)

(b) deffered dower (muwajjal mahr)

(on divorce or on death)

(A) Unspecified dower (mahr-i-misl)

when the amount of the dower has not been settled, or even when the marriage has been
contracted on an express stipulation that the wife shall not claim any dower, she is entitled to proper or
customary dower.

also known as "dower of the equals"

Factors to be considered

1) The social position of the family of woman's father

2) personal qualification, beauty of the woman

3) The dower that have been given to her female paternal relations like sister, daughter of her paternal
uncles etc.

4) Position of the husband

19
(5) when a wife bases her claim on a contract which she fails to establish, the court is bound decree such
amount as dower as is admitted by her husband.

(B) Specified Dower [mahr-i-musamma]

when the amount of dower is fixed either before or at the time of marriage or even after marriage such
fixed amount is called specified dower.

- ante nupital (before marriage) or post nupital (after marrriage) agreement are permissible and such
agreement are binding on the parties

- it thee parties to the marriage are minor than guardian or father must fixed the mahr and mahr so fixed
by father or guardian is binding on the minor.

(1)Hanafi Law- The father is not personally liable for the mahr.

(2) Ithana Ashari Law- The father is held responsible.

case - Syed Sabir Husain V. Farzand Hasan

Held that the estate of a father who died after entering into the contract of marriage of his minor and
committed the amount of mahr, is liable for the payment of a specified dower.

(C) Prompt dower [muajjal mahr on demand]

- prompt dower is payable immediately on the marriage taking place, and it must be paid on demand
(unless delay is stipulated for and agreed)

- It may be realized at any time before or after consummation.

- Absolute right of the wife to insist on payment of the prompt dower before giving him the access to her is
lost after the consummation of marriage. After consummate.

- The husband in his suit for restitution of conjugal rights upon her refusal can secure a decree conditional
on payment of dower.

- case - Rahilan V. Sana Ullah

Held that the prompt dower becomes a debt as soon as it is demanded and the husband is liable to
pay it. The wife can refuse to live with her husband so long as "prompt dower" is not paid to her.

20
Imp.

case - Nuruddin Ahmad V. Masuda khanam

Held that wife's right to prompt dower cannot be defeated by the husband on the ground of his
being denied the society to his wife.

(D) Defferred Dower [muwajjal mahr]

- It is payable on dissolution of marriage either by death or divorce,

But if there is any agreement as to the payment of defferred dower earlier than on the dissolution of
marriage such an agreement would be valid and binding on the parties.

- Husband can treat the defferred dower as a prompt and pay the some before divorce.

- widow may relinquish her right But her Act must be a voluntary one.

- the interest in deffferred dower is a vested one, so after her death, Her Heirs can claim the money but this
is not so in prompt dower as it is a contingent one (on demand)

= where no specific proportion of prompt and deferred dower has been fixed by agreement:-

Shia Law - The whole is regarded as prompt.

Hanafi (sunni) law - In absence of any a family usage and statement in Kabin-nama, half of the total amount
is regarded as prompt and Half as deferred.

Art 113 of the limitation Act, for a suit to recover prompt dower, limitation period is 3 yrs from the date
when the dower is demanded and refused.

= The right of retention (lien) whether Heritable or transferable

(1) One view is that it is a personal right and not property, therefore it is neither heritable nor transferable.

(2) other view is that the widow's right is a property and therefore is both heritable and transferable.

case - Humira Bibi V. Zubida bibi

Held the 'right of retention' is not exactly a lien, nor a mortgage. It does not give the widow any
title to the property thus she cannot alienate the property.

21
case - Haliman V. Moh. moin

Mysore HC held that it is both heritable or transferable.

case - Maina Bibi V. chaudri Vakil

Held that it is heritable.

Three Rights and Remedies on non-payment of prompt dower

(a) Refusal to cohabit

(b) Right to dower as a debt

(c) Right to retain her deceased husband's property only:-

(1) Right exist only after the death of her husband or on dissolution of marriage.

(2) Not a charge

(3) Not a title on a property

(4) liable to account

(5) right of retention

Amount of Dower

The amount of mahr (dower) may either be fixed or not;

it cannot be less than the minimum laid down by law:-

(a) Hanafi Law - 10 dirhams minimum

(b) Maliki Law - 3 dirhams minimum

(c) Shafi and Shiaite Law = No fixed minimum

"Dirham" is the name of silver coin 2.97 grammes in weight and is usually valued 3-4 annas or 20-25 paise.

Mode of enforcement (wife/widow's right to Dower)

(a) Dower : to be treated as a debt

(b) Right of Retention

(c) Remission or Relinquishment of dower

22
(we have already discussed the first two points at above)

- Remission or Relinquishment of dower:- Although the wife has no power to agree not to receive any
dower at the time of marriage, she has the power to remit the whole or any part of the dower in favour of
her husband or his heirs after the marriage.

She can relinquish her dower provided she has attained puberty at the time of relinquishment.

Sunni law Shia law

________________________________________________________________________

- Minimum amount at 10 dirhams - No minimum dower

- No limit to proper dower - proper dower should not Exceed 500

Dirhams

- if husband died And dower not fixed proper - if either party dies before the

dower would be due whether the marriage was consummation of marriage dower is not

consummated or not payable

- in the absence of an agreement - it the proportion of prompt and defferred

(1) the half may be awarded as prompt or dower is not fixed the whole is regarded

(2) family usages or custom or as prompt.

(3) in the absence of any custom 1/2 half be

prompt and 1/2 be deffered

TALAQ (DIVORCE)

It means repudiation or rejection but under muslim law, it means a release from the marriage, tie,
immediately or eventually.

case - Moonshee Buzloor Rahim V. Laleejutoon nisa

23
held that talaq under muslim law is the mere arbitrary act of a muslim husband who may repudiate his wife
at his own pleasure with or without cause, not necessary to obtain the prior approval of his wife for the
dissolution of marriage.

classification of Dissalution of marriage

___________________________________________________________

By death of a By divorce

party to the marriage

_______________________________________________________________________

By husband By wife By mutual consent By judicial decrees under

(1) Talaq (1) Talaq e Tafwiz (1) Khula Dissolution of muslim

(2) Ila (2) Mubarat marriage Act 1939

(3) Zihar (1) Lian (2) Fask etc.

______________________________________

Talaq-ul-Sunnat Talaq-ul-biddat

(1) Ahsan (1) written divorce

(2) Hasan (2) Triple divorce

(A) By the death of spouse

The death of the husband or the wife operates in Law as a dissolution of marriage. when the wife
dies the husband may remarry immediately, but the widow has to wait for a certain period before she can
remarry. This period is called Iddat and the iddat of death is 4 months & Ten days from the death of her
husband, and if on the expiration of this period she is pregnant, until she is delivered the child.

Talaq = condition for talaq

(1) must be of sound mind

(2) must attained age of puberty

(3) Not under compulsion or duress

24
(4) is pronounced orally (in presence of at least 2 witnesses (shia law)), unless the husband is unable to
speak (in a written from)

(4) Talaq under intoxication is valid u/sunni law but void u/shia law.

(5) Pronoucement of talaq in the absence of wife is valid.

(6) Intention is not a necessary ingrediant for a valid talaq.

oral talak (by spoken words)

Husband may give talak by mere words and no particular form of words necessary. If the words are
express and well understood as implying divorce, no proof of intention is required But is the words are
ambiguous, the intention of the user must be proved.

e.g:- "I give up all relations & would have no connection of any sort with you" are ambiguous and a such,
the intention must be proved.

= Talak in writing (Talaknama)

Talaqnama is the fact of an oral talaq or it may be the deed by which the divorce is effected.
Divorce by talaqnama takes effect from the date of the document and not from the date of its receipt by
the wife.

*[Talaknama not valid under shia law unless the husband is dumb man or otherwise incapable of speaking]

= Talaq under compulsion or intoxication or in jest

case - Saiyed Rashid Ahmad V. Anisa Khatton

Divorce pronounced under compulsion or jest or in advertently or by mere slip of tongue is valid.

Shia Law- it is void but valid under sunni law

case - Mohd. Sham Suddin v/s Noor jahan

Talaq should be deemed to have come into effect on the date on which the wife came to know of it
in case the wife is absent and talaq is pronounced.

Talaq-ul-sunnat

(A) Ahasan:- most approved form of divorce, it consist of one single pronouncement during period of purity
(Tuhr) followed by abstinence from sexual intercourse.

25
- 'Iddat' the observance of period of Tuhr (purit) is however not necessary under the following two
circumstances:-

(1) when wife & husband are living separetly for a long time; or

(2) when the wife is old & she is beyond the age of menstruation.

Conditions of Ahsan

(1) Husband must pronounce the formula of divorce in a single sentence.

(2) must be pronounced in a state of purity (Tuhr). Tuhr is a period when a woman is free from her
menstruation course.

(3) He must abstain from intercourse from the period of iddat.

(4) Revocable during iddat period.

- Cohabitation with wife is an implied revocation of talaq.

(B) HASAN:- conditions

(1) There must be a 3 successive pronouncement of the formula of divorce.

(2) In the case of menstruating wife, 1st pronouncement should be made during a period of Tuhr, second
during the next and the, Third during the succeeding tuhr.

(3) In case of non-menstruating wife, pronouncement should be made during the successive intervals of 30
days.

(4) No sexual intercourse between these 3 period of Tuhr.

- Such divorce become irrevocable on the 3rd pronouncement.

= Talaq-ul-biddat (conditions)

(1) Three pronouncement made during a single tuhr either in one sentence or in seperate sentences.

(2) A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the
marriage.

- Parties can not remarry unless the woman marrying another man & being divorced by him after
consummation.

- Judicial trend= Triple divorce is recognized & enforced by the Indian judiciary until supreme court gave its
verdict in Shayara Bano v/s Union of India and others in the months of Aug. 2017

26
- Presence of wife is not necessary.

case - Sher Mohammed V. Nazma Biwi (2006)

husband pronounced Triple divorce in intoxication but realized his mistake & wants to live together as
couple - muslim community forced them to live separately.

SC held that no one can force them to live separately. This is a secular country. All communities -
Hindu or muslim should behave in a civilized manner.

case - Sheikh Faziur V. musammat Aisha (1929)

Patna HC held that a talaq-ul-biddat effected by a triple pronouncement is valid even if it is

pronounced when the wife is in her menstruation.

In Shayara Bano v/s Union of Indian and others

On 22nd August 2017, the 5 Judge Bench of the Supreme Court pronounced its decision in the Triple Talaq
Case, declaring that the practise was unconstitutional by a 3:2 majority.

 Majority: Rohinton Nariman J. and U.U. Lalit J.

 Concurring: Kurian Joseph J.
 Dissenting: CJI J.S. Khehar and Abdul Nazeer J.

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous
triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices
– talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the
Constitution.

Talaq-e- bidat is a practise which gives a man the right to divorce his wife by uttering ‘talaq’ three times in
one sitting without his wife’s consent. Nikah Halala is a practise where a divorced woman who wants to
remarry her husband would have to marry and obtain a divorce, from a second husband before she can go
back to her first husband. And polygamy is a practice which allows Muslim men to have more than one
wife.

On 16th February 2017, the Court asked Shayara Bano, the Union of India, various women’ rights bodies,
and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of talaq-e-
bidat, nikah-halala and polygamy. The Union of India and the women rights organizations like Bebaak
Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported Ms Bano's plea that these practices are
unconstitutional. The AIMPLB has argued that uncodified Muslim personal law is not subject to
constitutional judicial review and that these are essential practices of the Islamic religion and protected
under Article 25 of the Constitution.

After accepting Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional bench on
30 March 2017. The first hearing was on 11 May 2017. On 22nd August 2017, the 5 Judge Bench
th th

27
pronounced its decision in the Triple Talaq Case, declaring that the practise was unconstitutional by a 3:2
majority.

Parliament has passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 criminalising
triple talaq. After President Kovind signs the bill, it will become the law and will replace the 1986 Muslim
Women (Protection of Rights on Divorce) Act.

Background:
The Supreme Court’s judgment in the Shayara Bano case held that the practice of talaq-e-biddat (or triple
talaq) unconstitutional. After the judgement, government passed Muslim protection Bill also known as,
Triple Talaq Bill in Lok Sabha but there have been criticism about the legal and procedural aspects of the
bill.

Significance of the bill:

The proposed Bill will protect the rights of married Muslim women and prevent divorce by the practice of
instantaneous and irrevocable ‘talaq-e-biddat’ by their husbands.
It provides the rights of subsistence allowance, custody of minor children to victims of triple talaq
i.e. talaq-e-biddat.

Key provisions of the Bill:

The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not
enforceable in law) and illegal.
Definition: It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim
man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim
personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife
results in an instant and irrevocable divorce.
Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’
imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused
person without warrant.)
The offence will be cognizable only if information relating to the offence is given by:(i) the married
woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after
hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there
are reasonable grounds for granting bail.
The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq
has been declared). Compounding refers to the procedure where the two sides agree to stop legal
proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be
determined by the Magistrate.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence
allowance from her husband for herself and for her dependent children. The amount of the allowance will
be determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her
minor children. The manner of custody will be determined by the Magistrate.

Issues with the bill:

The bill introduced in Parliament proposes a three-year jail term for a man divorcing his wife through triple
talaq. Although most Muslim women feel it is time to end the practice, they are wary of the slipshod
manner in which the government has passed the bill in the Lok Sabha.
If the aim of the law is to protect the rights of women, how is that possible with their husbands in prison? If
they have children under the age of 18, who will take care of their education, health, financial and other
needs? The woman will not be protected but instead be vulnerable to more abuse.
The Bill does not provide the victimised woman any additional benefits in terms of her rights in marriage
and divorce.

28
Since the Bill says that triple talaq is cognizable and non-bailable, married Muslim man become vulnerable
target as policemen can arrest and investigate the accused with or without the complaint from wife or any
other person.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 was repealed on 31st July, 2019
when the bill was passed by both houses of the legislature, Lok Sabha and Rajya Sabha, and was notified by
the President of India in the official gazette, and thus became an Act of Parliament.

= ILA :- conditions

(1) husband must b e of sound mind & must be a major.

(2) He swear by god or take a view

(3) That He will not have sexual intercourse with his wife for four months or more.

According to the shia and shafei school, the wife is entitled to apply to court for restitution of conjugal right
& on her doing so the husband has two alternatives.

(1) Divorce her, or

(2) resume sexual intercourse with her, and on his refusing to do either the court has the power to
dissolve the marriage.

Cancellation of lLa

(1) The husband resuming sexual intercourse within the period of 4 months; or

(2) a verbal retraction there of.

* ILA is not practice in India.

= Zihar :- condition

(1) Husband must be same & Adult

(2) He compare his wife to his mother or any other female in prohibited degrees.

(3) Then, the wife has the right to -

(a) refuse to have sexual intercourse with him till he has expiated himself by penances prescribed
by law such as:-

(1) freeing a slave;

(2) fasting for two months;

(3) feeding 60 poor persons;

(b) Apply to the court for an order requiring him either to perform a penance or to give her regular divorce.

* (This form of divorce has become obsolete)

29
Talaq-e-tafweez (delegated divorce)

The wife does not divorce her husband and this she cannot do under muslim law

But

Divorces herself on behalf of her husband under his power delegated to her by him. The divorce will take
effect to the same extent, as if it has been pronounced by the husband.

case - Hamidoolla V/s Faizunnissa (1882)

Where under a post marriage agreement it is stipulated that in the event of the husband failing to pay her
maintenance or taking a second wife, the wife will have the right of pronouncing divorce on herself, such an
agreement is valid and such conditions are reasonable & not against public policy.

= Khula or Divorce at wife's instance (Divorce by purchase)

- khula means " to put off".

- A divorce by khula is a divorce with her consent & at the instance of the wife in which she gives or agrees
to give a consideration to the husband for her release from the marriage tie.

general rule:- consideration is to paid immediately to the husband, However in khula the marriage
dissolves as soon as the proposal has been accepted even it the payment of consideration has been
postponed.

* failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce,
though the husband may sue the wife for it.

- once the offer is accepted, it operates as a single irrevocable divorce (talaq-i-bain)

* Shia Law - Once the husband accept the khula, he has no power of revocation, but the wife may at any
time during the Iddat reclaim consideration, and if she does so , the husband may revoke the khula.

khula under compulsion or intoxication is valid u/sunni law.

= Mubarat or Divorce by mutual consent

The offer in a mubarat divorce may proceed from the wife or the husband.

- Because both the parties are equally interested in the dissolution of marriage, no party is legally required
to compensate the other by giving some consideration.

- The only obligation of the husband is to maintain her during Iddat or to maintain his children by her.

- The sharial Act, 1937, recognize bath khula & mubarat.

- wife is often required to give up her dower though it is not essential.

Khula mubarat

- Consent for husband is necessary - mutual consent is necessary

- It is effected by an offer from wife to - it can be effected by the offer of any of the

compensate the husband it she released by spouse

30
him from the marital tie

- consideration is essential for khula - No such consideration is required

marriage. It may be whole part of mahr

= LIAN (false charge of Adultery)

Under the pure mohammedan law, if a man charges his wife with adultery, he may be called upon on the
application of the wife, either to retract the charge or to conform it by oath coupled with an imprecation in
these terms:-

"The curse of God be upon him if was liar when he cast at her the charge of Adultery"

- The wife must then be called upon either to admit the truth of the imputation or to deny it an oath
coupled with on imprecation in there words:-

"The wrath of God be upon me if he be a true speaker in the charge of adultery which he
has cast upon me".

condition of Lian

1) Husband charges his wife of Adultery

2) such charge is false

3) opportunity to the wife to move the court to dissolve the marriage

4) file a regular suit is necessary, mere application is not enough.

5) Judicial separation (Divorce) due to lian is irrevocable

6) Lian is applicable to sahih (valid) marriage not to fasid (voidable) marriage.

condition for retraction

1) Husband admit that he made the charge of Adultery

2) Admit that the charge was false

3) He must take the retraction before the end of trial

= Fask

Fask comes from the root meaning of which is to 'annul (a deed) or to rescind (a bargain)

- A wife under 'faskh' can give an application to kazi for annulment of marriage by judicial decree.

- The power of kazi (or a judge) to pronounce a divorce is founded on the express words of prophet himself
who once said that:-

31
 "if a woman is prejudiced by a marriage let it be broken off"

- sunni Hanafi school did not recognize the right of dissolution of marriage of a muslim woman.

- After controversy between schools, the Dissolution of Muslime Marriage Act, 1939 was passed.

case - Chand Patel V/s Bismillah Begum (2008)

The bar of unlawful conjunction (marriage with wife sister during her life time) renders a marriage irregular
& not void. An irregular marriage continue to subsists till terminated in accordance with law & the wife &
the children of such marriage would be entitled to maintenance under the provisions of sec 125 of Crpc.

Important - Minor girl whose marriage was contracted by her father. Her marriage was consummated with
in couple of days of her marriage & she become pregnant, that means she had reached the age of puberty
at the time of marriage. As consummation after the age puberty deprives minor of her right to repudiate
marriage. Thus in such circumstantial she cannot repudiate her marriage.

= Imp - Abdul Kadir V/s Salima

Husband second marriage is the cruelty to the 1st wife , As no wife can tolerate that her husband arrange a
2nd marriage.

Important. - Only a marriage performed according to the shariat i.e. 'Nikah' can be dissolved by talak. A
marriage performed in any other form cannot be dissolved by Talaq. In India, marriage between muslim &
non-kitabia can be dissolved under the provisions of the special marriage, Act 1954.

Section 2 of Dissolution of Muslim marriage Act 1939

wife can apply for divorce on the following grounds:-

1) Husband missing

(1) Husband's where about not been know for a period of 4 yrs.

(2) Decree if passed, it will be enforceable after 6 months of its issue.

(3) If husband appear in that 6 months period and satisfies the court that he is prepared to perform his
conjugal relations, Decree will be set aside by the court.

2) Failure to maintain

failure to provide for her maintenance for a period of 2 yrs, intention is not relevant unable, to
maintain due to his poverty may also entitled the wife to file a petition for divorce.

case - Bai fatima V. Mumna Miranji

32
if the wife lives separately from her husband without any reasonable cause or she intentionally refuses to
perform her part of marital duties, she can neither claim the maintenance nor divorce from her husband.

3) Imprisonment of husband

wife is entitled to divorce if her husband has been sentenced by a court to imprisonment for the period of 7
yrs or more.

- No Divorce until sentence become final.

4) Impotency of husband

Before passing a decree, a court is bound to make an order requesting the husband to satisfy the
court with in 1 yrs from the date of such order that he has ceased to be impotent. If not satisfied decree
will be passed by the court.

5) Insanity, Leprosy and virulent veneral disease

The wife may obtain a decree for the dissolution of marriage on the above said grounds.

6) option of puberty

(a) In case of Boy, the right of repudiation continues until he has ratified the marriage either expressly or
impliedly - No statutory period prescribed

But

if father or grandfather marries him he can repudiate it only it there is fraud, negligence or the marriage is
manifestly to the disadvantage of the minor.

(b) In case of girl

case - Gulam Sakina V/s falak sher Allah Bakhsh.

consummation before the age of puberty does not deprive minor girl of her right to repudiate marriage, but
if consummation occurs after the age of puberty, then she can not repudiate her marriage.

7) Cruelty of husband

case - Itwari V/s Asghari (1960)

The basis of the relief of Restitution is specific performance of the contract which is an equitable relief.
Thus, the husband should come to the court with clean hands. when the husband takes a 2nd wife it is
ordinarily a stinging insult to the first wife. A second marriage is not a single but a continuing wrong to the
first wife. Held that taking a second wife involved insult or cruelty to the first wife.

*- apostasy of muslim man - dissolve the marriage on the spot

- apostasy of muslim women - not automatically dissolved.

33
case - Umatul Haifz V. Talib Hussain

a husband went abroad leaving behind 2 wines in India, He provided maintenance for one wife & for the
other, Held that this act of husband amount to cruelty.

Breakdown Ground under muslim Law

case - Yusuf V/s Sowramma (1971)

It was observed that if a marriage has broken down beyond the possibility of repair, it is better to
put it as under.

Imp. case - Masroor Ahmed V/s state (NCT of Delhi) (2008)

The position of the law relating to talaq, where it is contested by either spouse, is that, if it has to take
effect first of all the pronouncement of Talaq must be proved then reasonable cause must be
demonstrated to have taken place. This would apply to ahsan talaq, hasan talaq, as also talaq-e-biddat. A
Talaq-e-biddat or triple talaq shall also be regarded as one revocable talaq.

while it may not be essential that the talaq has to be pronounced in the presence of the
wife, it is essential that such pronouncement to be effective, is made known to her communicated to her at
the earliest.

Acknowledgement of Paternity

- Parentage is the relation of parent to their children.

- Maternity is a legal relation between mother and child.

- Paternity is a legal relation between father and child.

(A) Maternity How established

Sunni Law:- legitimate or illegitimate children, has maternity in the woman,

who gave birth to the child.

Shia Law:- An illegitimate child has neither maternity in the woman who

gave birth to the child nor paternity in the father. So illegitimate child inherit neither from
father nor mother.

34
(B) Paternity How established

Sunni Law= Child from valid or irregular marriage has the paternity as will

as maternity.

Shia Law= To establish the paternity the marriage must be valid but it must

not be void.

Sunni law (maternity) Shia Law (maternity)

(1) woman giving birth to the child is mother, (1) woman is the mother if child born under
whether born under wedlock or zina wedlock otherwise it is illegitimate.
(Adultery)

(2) illegitimate child has a right of inheritance (2) No maternity for illegitimate child, so no in
from mother alone. heritance.

(3) no inheritance from the father by an (3) Not possible also.

illegitimate child

Case- Muhammad Allahadad V. Muhammad Ismail [(1988) 10 ALL 289]

held that the acknowledgement of paternity applies only to cases of uncertainty as to legitimacy, And in
such cases acknowledgement has its effect, but the effect always proceeds upon the assumption of a lawful
union between the parents of the acknowledged child.

Question:- A marry with B (female) than divorced her. B marry with C and child born after 4 months from
their marriage. Discuss the paternity?

Answer (1) According to Sec 112 Evidence Act C is the father

(2) Sunni Law = During pregnancy the marriage between B & C is irregular,

so if marriage is subsisting, than C is the father of that child.

(3) Shia Law= During pregnancy the marriage is void so no marriage is

subsisting between B & C, in that case A's is declared to be father If acknowledged by

him, otherwise child is declared to be as an illegitimate child.

note: as no assumption of a lawful union in

shia law, so no presumption of paternity &
no acknowledgement but child become
legitimate u/s 112 of Evidence Act

Parentage is established in Either of 2 ways

35
(1) By birth during regular marriage but not in void marriage.

(2) By acknowledgement.

=Rules for legitimacy

(a) Born within 6 months after marriage - child illegitimate unless

acknowledgment by father.

(b) Born after 6 months from the date of marriage - child legitimate unless father denied.

(c) - shia law - legitimate if born within 10 lunar months

- Hanafi law - legitimate if born within 2 lunar yrs

- shafei & maliki law - legitimate of born within 4 lunar yrs.

Legitimacy u/s 112 of Evidence Act

-Any person born during the continuance of a valid marriage between his mother and any man or within
280 days after its dissolution, the mother shall remain unmarried, shall be conclusive proof that he is the
legitimate son of that man

Unless

it can be shown that the parties to the marriage had no access to each other at any time when he (son)
could have been begotten.

Case-A.G Ramchandran V. Shamsunnisa Bibi [AIR 1977 Mod 182]

Madras HC has held that Sec 112 Evidence Act is very general in its terms and it applies to all persons
including Mohammedans, who may have a personal law of their or relating to legitimacy as there is no
provision exempting them from the application of sec 112. In other words; it was held that the Evidence Act
Supersede the substantive law under Mohammedan jurisprudence. (sunni law)

= Sec 112 of Evidence Act when not applicable

The provision of this Act is applicable only in the case of a valid marriage, so not applicable if
marriage is invalid.

Case-Abdul Rahman Kutty V. Aisha Beevi [AIR 1960 Ker, 101]

when a married woman was driven out by the husband a few days after marriage on the ground of her
concealed pregnancy, and a child was born to her within about 4 months after her being driven her out
Held that no presumption u/s 112 of the Evidence Act could be raised as the marriage was void because of
concealed illicit pregnancy. (shia Law)

36
=Presumption of marriage

When certain circumstances give rise to the presumption of marriage, they also give rise to presumption of
legitimacy of the child.

case-Mossa Adam Patil V, Ismail Mossa

where inferences of marriage between a man & a woman or of the child having been born in lawful
wedlock is possible the court will presume legitimacy unless the contrary is presumed.

V.Important= Legitimacy and legitimation

- Legitimacy is a status which results from certain existing facts about the relationship between his parents
e.g.-Acknowledgement

- Legitimation is a proceeding or process to confer status or legitimacy upon one who was never a
legitimate child, In the proper sense there is no legitimation under Mohammedan law.

e.g.-Adoption

So it is a process which creates a status which did not exist before.

= Acknowledgment of paternity

where the paternity of a child 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 " acknowledgment".

The acknowledgment is thus in the nature of a declaration by the father that a child is his
'legitimate' offspring.

- acknowledgment may be express or implied.

For a valid acknowledgment the paternity of the child should be doubtful i.e. it should neither be proved
nor disproved that the child is illegitimate.

case- Md Allahadad v/s Md. Ismail

It cannot be availed of to legitimize a child who is known to be illegitimate.

= Conditions of valid acknowledgment of Legitimacy

(1) The acknowledger must possess the legal capacity to enter into a valid contract.

(2) There should be an intention to confer legitimacy.

37
(3) Age difference should be such as to admit of relation of parentage i.e. the acknowledger must be at
least 12,1/2 years older than the child acknowledged (a son or daughter)

(4) The parentage of the child must not be known.

(5) The child acknowledged must not be the offspring of Adultery (zina)

(6) The child must verify ( or at least not repudiate) the acknowledgment.

(7) The acknowledger should be one who could have lawfully been the husband of the mother of the child.

(8) Ac acknowledgment of legitimacy, once made cannot be revoked later on.

(9) The doctrine of acknowledgment is not a mere rule of evidence, it is a part of the substantive law of
inheritance to the acknowledger as his legitimate child.

= case- Ghazanfar V. Kaniz fatima

No presumption of marriage arises from long cohabitation if the woman was a prostitute when she was
brought to the home of the man whose wife she claims to be. But if the man acknowledges his children by
her his legitimate children, marriage with her will be presumed for marriage with a prostitute is not
prohibited and she could have been his lawful wife when the children were begotten.

= Legal effect of acknowledgment

- it raises presumption of marriage between the acknowledger and the mother of such child.

- Acknowledgment unless rebated gives the child the status of legitimate son of the acknowledger.

- It gives a right of inheritance to such child.

- The mother of such child also gets the status of a lawful wife of acknowledger.

= Adoption not Recognized in Muslim Law

muslim law does not recognize adoption unless there is a special family or tribal custom (as in punjab, Oudh
etc).

BUT

The muslim person can adopt the child u/s 41 of juvenile justice (care and protection Act)

Guardianship (wilayat)
Minor :- A minor is one who has not attained the age of majority.

38
 - Except in matters relating to marriage, divorce, dower, muslim are

governed by the Indian majority Act, 1875.

- So minority will terminate on the termination of or on the completion of 18 yrs & 21 yrs it
guardian is appointed by court.

guardian:- "a person having the care of the person of a minor or of his

property; or of both his person and his property.

Imp.=The Quran is the basis of the law relating to guardianship and,

therefore there is very little room for differences between sunni & shia schools.

- Guardian is always be appointed under the Guardian and wards Act, 1890.

Kinds of Guardianship

1) Guardianship in marriage (jabar) (wilayat-ul-nikah)

2) Guardianship of person of the minor for custody (hizanat)

3) Guardianship of property :-

(a) Dejure guardian

(b) Defacto guardian

(c) certified guardianship

- The guardian & words Act 1890 does not deal with the appointment of guardianship in marriage but deals
with only person & property.

(A) Guardianship in marriage (jabar)

- The power of imposition of guardian is called jabar.

- Abstract right of guardianship is wilayat.

- guardian so empowered is known as wali

- The Power to give the child in marriage without the consent of the child is

known as bulugh.

- The court cannot appoint guardian for marriage purpose. But in some cases Quazi or court itself can act at
as a marriage guardian.

Guardian according to sunni law

(1) father

(2) father's father, how highsoever

39
(3) full brother or other male relations on father's side, in order of inheritance given under residuaries.

(4) Mother

(5) maternal relations within prohibited degrees.

(6) The Qazi or the court

Shia Law guardian

recognizes only the father & failing him the father's father how highsoever, as guardian in the marriage of a
minor (jabar)

= marriage performed by remoter guardian when the nearer guardian present and has given his consent is
not only irregular but void.

But

if nearer relations are not there and consent is given by remoter relations for marriage, than the validity of
the marriage is dependent upon the latter's ratification and consent means that the minor has the option
to repudiate the marriage on attaining puberty.

= Effect of Apostacy on guardianship or marriages

leading case Mohini bibi case

An apostate cannot be a guardian for marriage, so the marriage of a minor girl contracted by her
mother against the consent of her father, who was converted to another faith was held valid.

Imp= Testamentary guardian are not recognized under muslim law in any sect. (only for marriage purpose)

(B) CUSTODY (HIZANAT)

mother is entitled (1) Hanafi Law - male upto 7 yrs of age

- female upto puberty age

(2) Shia Law - male upto 2 yrs of age

- female upto 7 yrs of age

Right of the mother for custody of the children, subsist even though divorced by husband, until arrange
second marriage.

- mother is the defacto guardian and cannot alienate minor's property.

- mother's right lost if she:-

(1) bears an immoral life

40
(2) neglect to take proper care of the child

(3) if she left the husband without any sufficient cause

(4) if arranged second marriage.

- Paramount consideration of a minor is also important while giving the child in custody.

- Natural guardian under muslim law only lie in the hand of father or if he died his executor (not for
marriage purpose)

Imp.- The husband is not entitled to the custody of his minor wife unless she attains puberty or such a age
as would permit the consummation of marriage. The mother is entitled to the custody of the minor married
girl as against her husband.

Illegitimate child

Custody of the child who is illegitimate child, be left into the hand of the mother. After that it may
make his own election with which of the parents it will reside, or it may live apart from them together.

(Don't be confused with the right of maintenance of the illegitimate child, that is a different
concept)

Case- Gohar Begum V/s Suggi Begum [AIR 1960 SC 93]

fact of case

- Gohar Begum living with trivedi (man hindu)

- she gave birth to daughter Anjum even thou she was unmarried.

- Trivedi acknowledged her as his daughter.

- Sent Anjum to her mother friend Nazma Begum who latter on refused to give her book.

SC held that the mother of an illegitimate daughter is in Mohammadden Law entitled to its custody; and
the refusal to restore the child to its mother was illegal detention. Thus by the order of SC, Anjum was
handed over to her mother.

leading case

Imambandi V. Mutsaddi

wife (Enayat-uz-zohra)

fact Ismail Ali Khan wife 1

wife 2

many sons

41
Enayat-ul-zohra sell her & her children share to plaintiff other son's create an objection that zohra had no
right to deal with the property.

decision

1) held that zohraa and her children were entitled to their legal shares in the inheritance of Ismail Ali Khan

But

The important question was whether the plaintiff acquired any title to the infant's shares under the sale by
the mother?

further held that she is not the natural guardian the father alone, or if he be dead his executor (under the
sunni law), is the legal guardian. The mother has no power to deal with her minor's child property. This Rule
however is subject to certain exceptions provided for the protection of a minor child when it has no dejure
guardian.

In means that a court may appoint a mother as guardian of the property of the minor.

case - Smt. Aninunnisa V. Mukhtar Ahmad & other [AIR 1975 All 67]

held that it is no the guardianship of minor which is of importance but the welfare of the minor which has
to be taken into consideration while deciding about the custody of the minor.

case - Abdulsattar Hussain kudachikar V. Shahina Abdulsattar Kudachikar [AIR 1996 Bom Page 134]

Held that the welfare of the child should also be taken into account while deciding on the custody of child.

Termination of Hizanat

(a) Disqualification affecting females (mother)

- become immoral

- she married with another person'

- leaves the husband without any reason

(b) disqualification affecting males

- No custody of a female child, it not fall under prohibited degree

(c) Disqualification affecting the husband

No custody of minor wife unless she attains puberty or permit the consummation of marriage according to
her age.

42
(d) General disqualification

- minor not be a guardian of another minor

Exception :- other than his wife or child.

(C) GUARDIANSHIP OF PROPERTY (MINOR)

(1) Legal or natural guardian

(a) father

(b) The Executor appointed by the father's Will

(c) The father's father

(d) Executor appointed by father's father.

- Except father & father's father, no other person, not even the mother is legally authorized to appoint, by
Will any person as executor or executrix.

- father or father's father may appoint by Will the mother, brother, uncle etc as a Executor/Executrix.

case - Gulam Husani Kutubuddin Maner V. Abdul Rashid Rajak Maner [(2000) 8 SCC 507]

Held that a mother of the minor cannot be appointed as his guardian to accept gift on his behalf during the
lifetime of minor's father.

- In India, the guardian and wards Act 1890 imposes on every guardian of property the duty to deal with the
minor's property as carefully as a man of ordinary prudence would deal with it were his own property.

case - Ahmadullah V/s Hafizuddin Ahmed

Held that the transfer of ward's property by the guardian for the sake of his education is valid and it cannot
be said to be excluded from maintenance.

(2) De facto guardians

A person, who is neither a legal guardian, nor a guardian appointed by the court but has voluntarily
placed himself in charge of the person & property of the minor's in known as de facto guardian.

- All relation other than father, father's father are de facto guardian unless they are appointed executors
by the Will of the father or father's father.

- An alienation of minor's immovable property without the authority of the court by a de facto guardian is
absolutely "void".

43
- Defacto guardian has no right to deal with the property of the minor, even in case of necessity (Except in
movable Property)

(3) Guardian appointed by the court

In absence of legal guardians, the court has a duty to appoint a guardian for the protection &
preservation of the minor's property is known a De jure guardian.

- without the consent of the court, De jure guardian can not deal with the property in any way & cannot
extent the leave more than one year, from the date when child become major, otherwise cannot give for a
leave for more than 5 yrs.

- De jure guardian has same power as a legal guardian has.

- ratification by the minor child when he became a major bind the child even though the transfer by De jure
guardian is not for the necessity.

Sunni Law Shia Law

(1) Besides father and true grand father there (1) The only guardian for marriage are the
are several relations who are guardians for father & grandfather.
marriage.

(2) Marriage by guardian other than father & (2) Such marriage was wholly ineffective till it
grandfather may be repudiated after attaining was expressly ratified.
majority.

(3) Mother is guardian of the person of her (3) Mother is guardian of the person of the son
son upto the age of 7 yrs and of her daughter upto the age of 2 yrs & of her daughter upto
upto to the age of puberty. the age of 7 yrs.

WILL (WASIYAT)

Testator:- Person who makes the will.

Legatee:- In whose favour the will is made.

Wasiyatnama:- The document embodying the will is called wasiyatnama.

44
= Couple married under special marriage Act cannot avail the benefit of this chapter, means the provision
of the Will does not apply to a muslim married under special marriage Act.

Defination-

An instrument by which a person makes disposition of his property to take effect after his death,
and which is in its own nature ambulatory & revocable during his life.

Sec 2 of Indian Succession Act

Will is the legal declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death (written or oral)

If it is in writing not necessary to be signed but if signed not necessary to be attested, Even probate
is not necessary (Mazhar Husain V. Bodha Bibi)

case - Venkat Rao V. Namdeo

The burden of establishing on oral Will is always a very heavy one on those who assert it, it must be proved
with the utmost precision & with every circumstances of time & place.

= Essential ingredients of a valid Will

(1) Testator must be competent to make the Will.

(2) Legatee must be competent to take the legacy.

(3) Subject matter must be a valid one.

(4) Will must be within a limits imposed on the Testamentary power of a muslim.

1. Testator

must be a (1) sound mind (2) Major (18yrs)

case- Abdul Manan Khan V. Murtaza Khan

minor can't make a Will but it made than it is subject to his ratification when he become a major.

- The minority terminates at the age of 18yrs, but if the minor is one whose guardian has been appointed
by the court the minority will terminate at the age of 21yrs.

45
= Bequest to an unborn person:-

- Valid Legatee born with in 6 month of the date of making the Will.

Shia Law- Valid even a child in the womb.

= Will of a person committing suicideu:-

Sunni Law- The Will of a person committing suicide is valid.

Shia Law- Not valid, But if person first make a Will & than act towards the commission of suicide, it is valid.

- Will by person who renounces Islam afterwards:-

maliki school- Apostasy annuls such a Will.

Hanafis school- Will (bequest) will be effective but only if it is lawful according to the sect from which he
has apostalized.

2) Legatee

- Sex, age, religion are no bar to the taking of a bequest that means the Will can be made in favour of a
non-muslim provided the non-muslim is not hostile towards Islam.

Bequest to testator's murderer

Sunni Law-if legatee kills the testator intentionally or unintentionally the Will become invalid.

Hanafi Law- valid if the heirs of the testator have given their consent.

Shia Law- invalid if death caused intentionally but if death caused accidentally or unintentionally it is valid.

3) Subject matter of Will

- property must be capable of being transferred

- property must be in existence at the time of testator's death

- testator must be the owner of the property

Bequest in future property:-

As property must be in existence, so Will of future property is void.

46
- contingent bequest is void

- conditional bequest = Will valid but conditions void. but under shia law conditions are also valid.

e.g:- a grant is made to 'A' for his life & it is stipulated that the property after his death will go to 'B'

Sunni Law - condition is void so 'B' gets nothing.

Shia Law - condition is valid and after death of 'A', 'B' gets the property absolutely.

Revocation of bequeath :-

Muslim law permits a testator to revoke the Will or any part of it at any time, either expressly or
impliedly.

4) Limitation

as regards as regards the

the person property

As regards the person

Imp.(a) Bequest in favour of an heir

Sunni Law:-

Bequest is favour of on heir is invalid unless the other heirs consent to it after the death of testator.

object:- (1) is to prevent a testator from interfering with or defeating the rules of inheritance.

(2) a bequest in favour of an heir to the exclusion of other heirs would be an injury to the latter and it
would reduces their sharer.

47
(3) it would, consequently, induce a breach of thee ties of kindred.

Who is an heir- In determining whether a person is an heir or not regard is to be had to the time of the
testators death & not to the time when the Will is executed.

Shia Law:-

- No consent is required if to the extent of 1/3rd, of the property is bequeathed.

- Even for more than 1/3rd, it may be valid if the co-heirs consent either before or after the testator's death.

Imp.(b)- Bequest in favour of an heirs & stranger

When the bequest is made to an heir and also a stranger, the bequest to the heir is invalid unless
assented by other heirs

But

The bequest to stranger is valid to the extent of 1/3rd of the estate.

(c) Bequest to an unborn person

Void under sunni law, but valid if the child in the womb born with in 6 month of the Will.

Shia law :- Valid it the child in the womb in the longest period of gestation i.e. 10 months.

- void - if not in existence

(d) Bequestt to a testator's murderer:-

already done at above

Limitation as regards the property

(a) without the consent of the heirs - Bequest of 1/3rd may be made to a stranger, without the consent of
the heirs,

48
(b) with the consent of the heirs- Bequest of more than 1/3rd to the strangers or bequest of any portion to
any heirs,

(c) if there is no heir, the property may be bequeathed to any body to any extent.

Imp.= No muslim can make a bequest of more than 1/3rd of his net assets after payment of his funeral
charges and debts after death.

Exception:-

(1) Hanafi Law:- bequest of more than 1/3rd of his property is valid but the consent of the heirs
after death is required.

(2) Shia Law:- consent validates the Will whether given before or after the death.

(3) when the testator has no heirs.

= Revocation of will

Mohammedan law confers on a test or unfettered right to revoke his Will. So he may revoke it at
any time. So revocation may either be express or implied or it may be by making a subsequent Will.

Important cases

(1) case- Gulam Mohd. V/s Gulam Hussain

Held that a bequest in favour of a heir is not valid unless the other heirs consent to the
bequest after the death of the testator.

case - Abdul Manan Khan V. Murtaza Khan

consent is always required even the property given under Will is less than 1/3rd portion but in shia
law consent is not required it Will not exceed 1/3 portion of property.

Practical problems

S make an Will and give 30000 thousand to A & 20000 thousand to B

Q- Total Asset of S is of Rupees - 75000 so he can only make a will of his one third property,

49
 Bequeathed - 1/3 of 75000 is = 25000

Only 1/3 third property that is 25000 thousand will be distributed among A & B in
3:2, so A get 15000 & B get 10000

---------------------------------*--------------------------------*----------------------------------

S give his property to A, B & C through Will under the following propotion.

Q- A B C

Will 15000 30000 45000

Net property of S - 90000

1/3 of 90000 = 30000 (only 1/3 third property be given through will)

Property of rupees 30000 will be distributed between A, B & C into Ratio = 1:2:3 (15000 : 30000 : 45000)

A B C

distribution As per Law 5000 10000 15000

---------------------------------*--------------------------------*----------------------------------

S made a Will and give 50000 to his daughter and 50000 his friend

Q- Daughter friend

Will 50000 50000

Net Asset of S is 1,50,000

Bequeath able 1/3 of 150000 = 50000

mother/son refuse the Bequest (under sunni law consent of mother/son is required) heir's consent
is must.

so 50000 goes to friend

Daughter get nothing.

-------------------------------*-----------------------------------*--------------------------------

Q- X Y Z

Will 60000 60000 60000

Total asset - 180000

Bequeathable 1/3 of 180000 = 60000

so all get 20000 each

50
---------------------------------*--------------------------------*----------------------------------

Chronological priority

A B C

Will 20000 30000 40000

Total asset - 120000

Bequeathable 1/3 of 120000 = 40000

In a chronological priority first person get first & than next person get next but chronological priority in only
applicable in shia law.

Ans- A get 20000

B get 20000

C get Nothing

GIFT (HIBA)
Muslim can gift the whole property to any person but if he gift the property through Will than the rule of
1/3rd will apply.

- It must be between the living person.

- Person while on death bed is also not exceed 1/3rd.

Condition

(1) offer (Ijab)

(2) Acceptance (quabul)

(3) Delivery of possession (qabza)

Defination

Unconditional transfer of property, made immediately and without any exchange or consideration,
by one person to another and accepted by or on behalf of the latter.

51
According to Mulla

"A hiba or a gift is a transfer of property immediately and it is a unqualified transfer of the corpus of
the property without any return.

Sec 122 of TPA, 1882

"Gift" is the transfer of certain existing movable or immovable property made voluntarily & without
any consideration, by one person called "Donor" to another called the "Donee" and accepted by or on
behalf of the donee.

(A) Declaration of gift:-

Gift must be clear unambiguous intention to make a gift by the donor. when there is no bona fide
intention to make a gift, the gift will be void

Case - Sultan Miya V. Ajboo Khatoon Bibi

A gift that was made with the intention to defraud the creditors of the donor is voidable at the option of
the creditors.

The donor must attained the age of majority, must be of sound mind, must offer the gift without any
CUFMM (coercion, fraud, unduelvence, Misrepresentation and mistake).

- He (The Donor) must have the ownership over the property to be transferred by way of gift..

Case - Mst. Hussaina Bai V. Mst. Zohra Bai

In case of paradanashim lady the law is settled that it is necessary to satisfy the court that she executed the
document with full understanding of execution and had the independent advice. In other words it is the
donee who will prove that the consent of the donor is a free consent.

Case - Kulsumunnissa V. Ahmadi Begum

A pardanashin lady is fully competent to dispose of her property by way of executing a document. In the
case of a document executed by a pardanashin lady, intelligent execution must be proved.

- The rule regarding transactions by pardanashin ladies applies equally to illiterate and ignorant woman
though not pardanashin.

52
(B) Acceptance by donee

There should be an acceptance of the gift, express or implied, by or on behalf of the donee. The
acceptance may be given at any time subsequent to the gift. The donee may be any person but he/she
must be in existence at the time of declaration of the gift. A gift to unborn person is void.

- sex, age or religious are no bar to the making of a gift. A muslim may make a lawful gift in favour of any
non-muslim.

- The donee must be in existence at the time of making the gift. In case of a minor or a lunatic, possession
must be handed over to the legal guardian.

Gift to unborn person:-

Gift in favour of an unborn person is "void".

Case - Mohd. V/s Noor Ahmad Noor Mohd.

Held that even though under the muslim law, the mother is not the natural guardian of the
property of her minor son. when the father and grandfather are both alive, she had the capacity, with the
consent of the legal guardian to take symbolic possession of thee property on behalf of the minor.

Gift of usufruct to unborn person

Case- Ghulam Husein's v/s fakir Mohd.[AIR 1947 BOM 145]

Held that a gift of future usufruct to unborn persons is valid provided that the donee is in being at
the time when interest opens out for heirs.

Gift of life interest

General rule in that a gift of life interest is void but in

case- (1) Sardar Nawazish Ali Khan's case

(2) Amjad Khan v/s Ashraf Khan, case

(3) Nawzish Ali Khan case

held that a gift of a life interest is valid and such life interest is not enlarged into an absolute estate

53
= On the basis of decided cases, we state below certain corporeal and incorporeal properties which can
validly be made the subject f a gift:-

(1) right of repayment of debt

(2) money

(3) mahr

(4) govt. securities

(5) life interest

(6) equity of redemption

(7) right to collect rent & profits

= Gift of actionable claim (can be the subject mother of gift)

case - H.H.Iqbal Mohd Khan v/s collector of Estate Duty Ahmedabad. [AIR 1964 Gul 452]

After the passing of the TPA, 1882, the gift of actionable claim is death with this Act, Now to this extent, the
provision of muslim Law has become obsolete.

Imp.- A gift of the right for redemption

case - Tara Prasanna V. shanti Bibi [49 Cal 68]

Held that a valid gift could be made by a mortgagor of his equity of redemption even thou the
property may be in possession of the mortgagee.

but

Bombay High court in Ismail V. Ramji

Held that such a gift is not valid because delivery of possession is a conditions essential to the validity of
the gift and the mortgagor cannot deliver possession if the mortgagee is in possession.

= Gift to two or more persons

If the property is indivisible, a gift to two or more donees will be always void unless it is of divisible
in nature.

Imp.= can a mother accept the gift given by thee Husband to h is minor child

54
case - Gulam Husain Kutbuddin Manner

V.

Abdul Rashid Abdul Rajak Manner

[AIR 1995 SC 1205]

held that where the father of a minor is alive the mother of the minor cannot be appointed as a guardian of
minor to accept the gift on his behalf.

(C) Delivery of possession

There must be a delivery of possession of the subject of the gift from the donor the donee.

case- Mohd V. Fakar Jahan

held that under thee Moammedan law, it is absolutely essential for valid gift that there should be a delivery
of such possession as the subject of the gift is susceptible of.

Exceptions

Gift without actual delivery of possession is valid.

(1) gift by a father to his minor or lunatic son/Daughter or by a guardian to his ward.

(2) when both Donor/Donee reside in the same house which is to be gifted e.g. husband & wife.

(3) Gift by one co-sharer to another

(4) Part delivery

(5) Subject matter in the occupation of tenant

(6) Incorporeal right (Air, light)

(7) when the donee is in possession.

void gifts

(1) gift to unborn person

(2) gift of future property

(3) contingent gifts

(4) gift with a condition (gift valid, condition void)

55
(5) gift of "Mushaa"

Important- Doctrine of Musha (Hiba - bil - Mushaa)

Sunni Law :- If the property is divisible than the gift of musha is void unless

that property will be separated from the property.

- if the property is undivisible than the gift is valid.

Shia law:- gift of musha is valid whether the property is divisible or

indivisible.

Kinds of Musha

(1) Musha in a property incapable of division.

(2) Musha in a property capable of division.

(1) gift by one heir to another

after the abolition of
zamindari system, this (2) gift of a share by a co-sharer in a zamindari
Exception has no
(3) gift of share in company
practical significanse
(4) gift of a share in the freehold property.

(5) gift of an undivided but divisible property to two or more persons jointly.

= Revocation of Gift

(1) before passing the delivery of possession to the donee, the donor has the right to revoke the gift.

(2) After passing of the delivery of possession

(1) with donee's consent

(2) by a formal decree of the court. {(case) Mohboob v/s Abdul, (see below)}

(3) Following gifts are irrevocable even court cannot revok it:-

(a) when the donor is dead

(b) when the donee is dead

(c) when donee is related to the donor in prohibited degrees of consanguinity.

56
(d) when the donor & the donee stand in marital relationship - husband & wife.

(e) when the gift is transferred by the donee by sale, gift etc.

(f) when the gift is Sadaqah (religious purpose)

case- Mahboob v/s Abdul [ AIR 1964 Raj 250]

Held that till a decree of the court is passed for revoking the gift, the donee is entitled to use the property
in any manner. He can also alienate it.

Imp.

= Registration of Gift u/muslim Law

As mohammedan law permits oral gift of immovable property irrespective of value of the property. Hence
S-123 of TPA about the requirement of Registered Instrument does not apply to gifts covered by
mohammedan law. sec-17 of TPA also not apply even though the value of the gift is more than Rs 100. so
Registration is optional.

Kinds of Hiba
(1) Gift for consideration (Hiba-bil-iwaz)

(2) Hiba-ba-shartul iwaz (gift made with stipulation)

(3) Sadaqah

(4) Ariyat

(A) Hiba-bil-iwaz:- Gift for consideration

It has almost all the incidents of a contract of sale.

There are two separate parts:-

(1) hiba (original gift by the donor to the donee) and

(2) an iwaz (return gift by the donee to the donor).

when both hiba (gift) and iwaz (return) is completed the transaction is called hibe-bil-iwaz.

For example

57
A & B, two muslim brother are tenants - in - common. A died leaving B and his widow W. After A's death B
executed a deed where by he granted two of the villages to W, and W executed a writing where by in
consideration of the grant to her she gave up her claim to her husband's estate in favour of B. The
transaction was hiba-bil-iwaz & was valid though possession was not delivered.

case - Ismail beevi V. sulaikkal Beevi [ AIR 1967 Mad 250]

the gift deed was executed for consideration that donee should discharge the debt charged on the property
gifted & would be entitled to property after marriage with the son of donor. If was held that the gift was
hiba-bil-iwaz the consideration there of being the agreement to marry the donor's son. In such a case if
there is no delivery of possession, the gift would be valid and the donee would be entitled to the property.

Sec 54 of TPA:- where property gifted is immovable property and worth of Rs 100 or more it must be
effected by a registered instrument u/s 54 of TPA because calcutta, Madras, Lahore & Allahabad High court
hold such transaction as sale.

(2) Hiba-ba-shartul-iwaz

It means a gift made with stipulation (shart) for a return. The payment of consideration can be
postponed. As consideration is not immediate, the delivery of possession is essential. The transaction
becomes final immediately on the delivery of possession.

But

when the consideration is paid, it assumes the character of sale & is subject to pre-emption (shufa).

it contains the following features

(1) Delivery of possession is necessary

(2) revocable until the iwaz is paid.

(3) becomes irrevocable on the payment of iwaz.

(4) it partakes the character of sale when iwaz is paid.

Ex- A made gift of his house to B & put him in possession, B then gives a horse in an iwaz & A accepted it
After sometime A purports to sell the house to someone

Such sharat-ul-iwaz will not be effective because gift with condition of return completed
cannot be revoked in any circumstances, so A can not sell the house again to someone as when A accept
the horse the Hiba-ba-shart-ul-iwaz was completed and it becomes irrevocable.

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Hiba-bil-iwaz Hiba-ba-shartul-iwaz

(1) Delivery o possession is not ess- ential for (1)Delivery of possession is essential for its
its validity validity

(2) It becomes irrevocable from the moment (2) It becomes irrevocable only after the
of its making payment of iwaz by the donee.

(3) Return (iwaz) is involved in the contract of (3) Iwaz is stipulated and is contracted for with
gift as its direct and immediate consideration the original gift

(4) It is like a contract of sale (4) In the beginning it is a gift but it partakes
of character of sale when iwaz has been paid.

(3) Sadaqah :- It is a gift with religious motive. A sadaqah becomes irrevocable when possession is once
delivered.

Sadaqah & Hiba compared

(1) Like hiba, sadaqah is not valid unless the delivery of possession is made.

(2)Like Hiba, it is not valid it consists of an undivided share in property capable of division.

(3) There is a desire to get religious merit in sadaqah there is no such motive in a gift except affection.

(4) Sadaqah is not revocable it once completed by delivery, gift is revocable in certain casses.

(5) Express acceptance is not necessary which is necessary in a gift.

(6) Like hiba, sadaqah is valid even though made to two or more persons jointly, provided the donees are
poor persons.

(4) Ariyat

- The grant of a license, resumable at the grant or option to take & enjoy the usufruct of a thing is called
Ariyat.

- It is to transfer the right to enjoy the use of profits without any return (iwaz).

- In hiba the donee gets the ownership in the gifted property, but in Ariyat he only obtains the use or
beneficial enjoyment for a limited period & the ownership in the property does not pass to him.

Essential of Ariyat

(1) It can be revoked

(2) ownership of property is not transferred

(3) It must be for a definite period

59
(4) It does not devolve upon the heir of the donee on his death.

(5) Waqf

- waqf is a permanent dedication of a property by a muslim for any purpose recognized by muslim law as
religious, pions or charitable.

- The corpus of the property belongs to GOD and cannot be revoked latter on.

Problem And Solution

(1) Problem
H makes a gift by a registered deed to his minor wife, W, who has attained puberty. The gift
was accepted on W's behalf by her mother in whose house H & W were residing. W's father & grandfather
were dead.

- Solution

case - [Valia P.Katheesa umma V. P.Narayanath kunhamee] (AIR 1964 SC 275)

Held that a gift by the husband to his minor wife by a registered deed but accepted on her behalf by minor
wife's mother is valid. gift can be made through the mother or even a stranger (under whose care the
minor is living) in the absence of the guardians of minor i.e.. father/grandfather or their executors.

(2) Problem
The grandfather made a gift to a minor without delivery of possession to the existing &
competent guardian of the minor i.e. minor's father.

- Solution

case - Musa miya V/s Kadar Bux [ AIR 1928 PC 108]

Held that a gift by a grandfather to a minor without delivery of possession to the existing & competent
guardian of his property is invalid in case if there is no acceptance from the father's side on minor's behalf.

(3) Problem
D executes a gift deed in favour of his nephew of a house in which both of them were
residing. He did not depart from the house but paid taxes, etc in the name of his nephew.

- Solution

case - Ibrahim Bibi V. Pakkir Mohideen [AIR 1970 Mad 17]

where the donor & the donee are living in the same house, the donor need not necessarily
depart from the house in order to make gift effective. Thus, no actual delivery of possession in required in
such a case. However, there must be a clear intention to make the gift & to part with possession of
property.

(4) Problem

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 Karim is the owner of a house which is in adverse possession of kapil. karim by a registered
deed makes a gift of that house to salim. shortly thereafter karim dies. salim makes an application to the
court for recovery of possession of the house from kapil. kapil argues that the gift is invalid.

- Solution

The main ingredient of the gift is "Delivery of property". So in a case where the subject
matter of the gift is in the possession of a person holding not valid unless the donor either recover
possession or does all that he can, which is necessary to put the donee in possession.

(5) Problem
Jaffar executes a gift deed of a house in favour of jhon, a Christian friend. The deed is duly
registered but possession is not delivered to jhon. After the death of jaffar, his brother contests the validity
of the gift.

- Solution

In the present case, due to non delivery of possession during the life time of jaffar, the gift
to jhon remained incomplete & become invalid after his death.

(6) Problem
A widowed muslim along with her minor son was living with her father & not with her
father in law. The father gave the residential house under a deed of hiba to his daughter's son. He delivered
the deed to his daughter.

- Solution

In the present case, the minor's grandfather was alive, though not living with him, Thus the
gift must have been made through the grandfather & not through the mother of the minor. The gift is
invalid.

Right of Pre-Emption (shufa)

It was adopted by Islam, in general to prevent the introduction of stranger among co-sharers and
neighbors, likely to cause both inconvenience and vexation.

Defination -

Pre-emption is the right which the owner of an immovable property possesses to acquire an other
immovable property for the price for which it has been sold to an other person.

According to Mulla-

The right of shufa or pre-emption is a right which the owner of an immovable property possess to
acquire by purchase another immovable property which has been sold to another person.

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leading case - [Kudratulla V/s Mohini Mohan]

The right of pre-emption is a right of re-purchase from the buyer.

object- To avoid inconvenience and disturbance which would arise from the introduction of a stranger into
the land.

-Law of pre-emption creates a right which attaches to the property & on that footing only it can be
enforced against the purchaser.

-condition of pre-emption-

(1) Pre-emption must be the owner of Immovable property.

(2) Subject matter (property) must not be his own.

(3) Some relationship between the Pre-emptor & vendor in respect of property sold.

-Pre-emptor is a person who files a suit for pre-emption.

- Basis of the right

A neighbour has a superior right to that of a stranger, in the lands adjacent to his own.

case- Audh Behari Singh V. Gejadhar jaipuri

SC observed

"The correct legal position seems to be that the law of pre-emption imposes a limitation or
disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of
sale & compels him to sell the property to the co-sharer or neighbour as the case may be.

Imp.- Constitutional validity of the Law of pre-emption :-

(1) Before 44th amendment Art 19 (1) (F) (right to acquire, hold & dispose of property)

Case-Bhau Ram V. Baij Nath [1962 SC 1476]

The SC of India held that pre-emption on the ground of vicinage (neighbour) us unconstitutional as it
prevents the vendor to sell his property to anyone for any price that may be settled between him & the
vendor. It therefore impose a unreasonable restriction on the vendor's right to dispose of property.

The SC, however uphold the validity of the right of pre-emption between co-sharers.

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(2) After 44th amendment (when to hold property is not the Fundamental Right)

case- Krishna V/s St of Haryana [AIR 1994 SC 2536]

while interpreting sec 15 (1) (b) of the above Act, the SC held that the right of pre-emption to co-sharers is
valid & is not violative of Art 14, 15 & 16 of the constitution.

Case- Razzaque Sajan V. Ibrahim Hazi Mohd. Husain [AIR 1999 SC 2043]

SC Held that right of pre-emption on the ground of neighbour is unconstitutional & therefore can not be
recognized.

Imp.- note * (1) Pre-emption on the ground of neighbour = shafi - i - jar.

(2) Pre-emption on the ground of co-sharers = shafit - sharik.

Application of the Law of Pre-emption :-

(1) when there is a difference of religion

- Pre-emptor should be a muslim.

- Vendor should also be a muslim.

- A Hindu can not claim the right of pre-emption.

But

Allahabad High Court held that pre-emption will apply even though the buyer may be a non-muslim but
vendor and pre-emptor should be a muslim.

Calcutta & Bombay HC

All the three means vendor, purchaser & pre-emptor must be a muslim.

(2) When there is a difference of Sect

general rule

(1) if both the parties i.e. vendor & pre-emptor are sunnis, sunni Law will apply.

(2) if both the parties are shias, shia Law will apply.

(3) The sect of vendor is immaterial.

63
 But

(4) If any of the two parties (i.e. either the vendor or the pre-emptor) is shia, shia Law will apply.

reason is The right is reciprocity

That means one should be allowed to exercise the right to pre-empt the sale of another only if another
means (latter one) too has a same right against the 1st person.

Imp.- A shia cannot pre-empt a sale from a sunni vendor on the ground of vicinage because a shia
neighbour whom a sunni has no right of pre-emption, cannot enjoy any right of Pre-emption against the
sunni.

For ex.- A sunni, sells his house to B (a Hindu); C (a sunni) A's neighbour, wishes pre-empt. Advice C how
he should proceed. Will your advice be different if A is shia or C is also shia?

Answer- Under sunni Law, religion or sect of vendor is immaterial Therefore, A's neighbour can claim pre-
emption, no matter C is sunni or shia.

But

where the pre-emptor is a sunni & vendor a shia, the shia law would apply on the principle of reciprocity.

=Rules

(1) The subject of pre-emption must be pre-empted as a whole.

(2) Subject matter must be pre-empted as a whole. But However, where district properties are sold by the
same contract. In this case, the pre-emptor may claim the one & leave the other.

=Formalities-

There should be a three demands after hearing of the sale of the property.

(A) Talab-i-mowasibat or Immediate demand.

(B) Talab-i-Ishad or confirmatory demand.

(C) Talab-i-Tamleek or Demand for possession.

(A) Talab-i-mowasibat (Immendiate demand or Demand by jumping)

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-Moment the news comes to a person that property has been sold, he should make an immediate demand
at the very moment, whether there are witness or not.

- The first demand must be made with extreme promptness but using the words:

" I do claim my shufa"

(B) Confirmatory demand

The essential for making it are that the pre-emptor must

(1) affirm his intention to assert his right, referring expressly to his having made the "immediate demand"
and

(2) The make a formal demand:-

(a) either in the presence of the buyer or the seller or on the subject of sale. and

(b) in the presence of at least 2 witness specially called for that purpose.

- Such demand may be made by using such words as " such a person has bought such a house of which I am
the shafee (pre-emptor); I have already claimed my privilege of shufa & now again I claim it".

(C) Demand for possession

It is the final enforcement of claim by instituting a regular suit within the period prescribed by the
Indian Limitation Act, only if it is not confessed after the second demand.

- If the pre-emptor dies pending the suit for pre-emption, the suit may be continued by his legal -
representative.

case- Golam Kibria Molla V. Abdur Rouf Molla & others

Held that talab-i-mowasaibat and talab-i-ishhad are conditions precedent for exercise of the right
of pre-emption.

=Right of Pre-emption arises only in respect of a complete sale.

=When right of Pre-emption is lost:-

65
(1) by a acquiescence or waiver

(2) By death of the Pre-emptor

(3) By mis-jainder

(4) By release

=Pre-emptor whether a right of Re-purchase

case- Bishan Singh V. Khazan Singh

J. Subba Rao said that right of pre-emption is a right of substitution but not of repurchase i.e., the pre-
emptor takes the entire bargain & steps into shoes of the original vendee. Also held that pre-emptor has a
secondary right or a remedial right to follow the things sold.

Sunni Law Shia Law

(1) u/suuni Law, a co-sharer a participator in the (1) Co-sharer alone is entitled to pre-emption and
appendages & owners of adjoining lands, are that too it the number of co-sharer does not
entitled to claim pre-emption. exceed two.

(2) Immediate & confirmatory demand are the (2) Preemptor should use reasonable diligence,
conditions precedent without any unnecessary delay to make the
assertion of his right after receiving the
information.

Imp.- How can the right be legally evaded

1- By leaving an unsold strip of land touching the boundary of the pre-emptor's Land so that his (Pre-
emptor's) land does not adjoin the portion sold. It can only defeat the neighbour.

2- By leasing out the property in perpetuity instead of selling it.

3- By executing a deed of gift, mortgage by conditional sale.

4- Sadaqa, waqf

Waqf (Trust)
Definition

Waqf signifies the extinction of the appropriator's ownership in the thing dedicated and the
detention of thing in implied ownership of god in such a manner that its profits may be applied for the
benefits of 'His creatures".

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According to sec 2 of the Mussalman Wakf Validating Act 1913:-

Waqf means the permanent dedication by a person professing the musalman faith of any property
for any purpose recognized by the mussalman law as religious pious or charitable.

= Waqf Act 1954:-

Waqf means the permanent dedication, by a person professing Islam, of any movable or property
for any purpose recognized by the muslim law as pious religious or charitable.

Intention to dedicate the property is necessary.

Essential of Waqf [ Sunni Law - Hanafi Law]

(A) Permanent dedication of any property

(1) There should be a dedication.

(2) The dedication must be permanent.

(3) The dedication must be of any property.

(1) There should be a dedication

There must be a substantial dedication of the usufruct of the property to religious, pious or
charitable purpose as understood by muslim law.

- Declaration may be oral or in writing

According to Abu yusuf:-

A dedication of waqf is complete by mere declaration neither delivery of possession nor

appointment of mutawalli is necessary. This view is adapted in India.

Shia law

Delivery of possession to the person in whose favour the waqf has been created is essential.

= Long user

Where land has been used as a waqf for a long time, proof of express dedication is not necessary.

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case- Mohd. Ismail Faruqui V. UOI (Ayodhya case)

Held that a mosque in India was an immovable property and the right of worship at a particular
place is last when the right to property on which it stands is lost by adverse possession.

(2) The dedication must be permanent

Perpetuity is a necessary condition for the validity of waqf. If is for a limited period or for a
temporary purpose it is void.

(3) The dedication must be of any property

Hanafi Law recognizes the following as valid subject of waqf:-

(a) immovable property

(b) accessories to immovable property

(c) Quran or other books

(d) Such other things as it is customary to make the subject of waqf.

Provided always that things that are consumed by use cannot validly be the subject to waqf, i.e. the thing
must be of reasonable permanent character.

- waqf must be the owner of the property dedicated

- A person who is in fact the owner of the property but is under the belief that he is only a mutawalli
thereof is competent to make a valid waqf of the property.

case - Rahman V. Bakridan

A usufructuary mortgagee cannot make a valid waqf as the is not the owner of the mortgaged
property and such a mortgagee has no right to Dedicate the property to waqf.

- A widow cannot dedicate her dower debt

= Registration

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 A waqfnama by which immovable property of the value of Rs 100 or more is dedicated by the way
of waqf requires to be registered under the Indian Registration Act, 1908.

case - Mohd. Rustom Ali V. Mustaq Hussain

held that the provision of Indian Registration Act also apply to the dedicator even he himself
appointed as the first mutawallis, because ownership moves to the GOD.

Sec 123 of transfer of property Act make it compulsory registrable

(B) By a person professing mussalman faith :-

Waqf should be created by a person professing muslim faith.

So : he must be - major (B yrs)

- Sound mind

- professing mussalman faith.

(C) For any purpose recognized by muslim law:-

The dedication should be for a purpose recognized as religious, pious or charitable, under muslim law.

- Every good purpose which GOD approves, is a fitting purpose for a valid and lawful waqf.

- The purpose of a waqf must not be apposed to public policy of Islam. The following are the examples of
valid objects of a waqf:-

(1) Hospitals, alms-houses, schools, university, or public libraries (charitable)

(2) creation & upkeep of mosques & maintenance of worship therein, burning of lamps in a mosque
(religious)

(3) prayers of the dead at the tomb of saint or at the grave of a private person (religious)

(4) Support of the settlor's family (pious)

(5) colleges and provision for professors to teach in colleges (charitable)

(6) Assistance to poor muslims to enable them to perform the pilgrimage to mecca (Religious)

(7) Reading the koran in public place and pvt houses (Religioua)

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= The object of waqf must be indicated with reasonable certainty, if they are not, the waqf will be void or
uncertainity.

Essential according to shia law

(1) It must be perpetual (as in sunni law)

(2) must be absolute & unconditional

(3) possession must be given of the thing appropriated (in sunni law, a mere declaration is sufficient)

V.V.V.V.Imp.- (4) Waqf should not reserve any benefit or interest even the usufruct of the dedicated
property (while in sunni law they can reserve any benefit for their family)

Doctrine of Cypres "as nearly as possible"

If the wishes of the author of a trust cannot be carried out literally, they will be carried out as nearly as
possible in the way desired by the dedicator.

- The doctrine is also applicable to waqf.

- So if from the change of circumstances & lapses of time, it has become impossible to apply the property of
the waqf in the manner directed by the waqif (dedicator), the court may apply:

(1) For similar purpose by different means as nearly as possible to the original intentions of the grantor.

(2) for the benefit of the poor by various means.

(3) also court has power to vary the scheme accordingly.

Legal incidents of waqf

(1) Irrevocability

(2) Perpetuity

(3) inalienability

(4) Pious or charitable or religious use of usufruct

(5) absoluteness

= Waqf how created:-

(a) by an act inter vivos (between living person)

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waqf which is constituted during the life time of the waqif (dedicator) and takes effect from that very time

Shia Law: not complete unless possession of waqf property is given.

(b) by will

waqf takes effect after the death of the waqif & is also called testamentary waqf.

-A waqf by Will cannot operate upon more than 1/3rd of net assets, without the consent of the heirs.

V.V.V.V. Imp.- Illustration 1

A creates a wakf by Will. A puts a clause in the Will that the waqf shall not operate if a child is born
to him.

* The waqf is valid, because a testamentary wakf may be revoked or modified any time the testator
pleases.

(C) Illustration 2

A makes a wakf by Will of all his property during marz-ul-maut.

by marz-ul-maut

The waqf made during death illness Will operate only to the extent of 1/3rd of the property without the
consent of the heirs of the waqif.

- A waqf is invalid under above illustration, because a waqf created on the death bed or by a Will cannot
upon more than 1/3rd of wakif's (dedicator) property, unless his heirs consent to it, It may be noted that a
waqf otherwise than by Will or on the death bed, could be for whole of the property of a waqif.

(d) by Immorial user

When a land has been used from time immorial for the purpose of a burial ground, it is waqf by
immemorial user.

= Completion of waqf (shia)

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(A) Declaration of waqf (intention)

(B) appointment of mutawalli

(C) Delivery of possession to mutawalli

if founder himself is a mutawalli than B and C is not applicable.

Kinds

Private waqf Public waqf

- A waqf in favour of ones own family and descendants is called waqf-alal-aulad.

- A waqf in favour of public at large is called a public waqf.

=Revocation of waqf

If a valid waqf has once been created, it cannot be revoked by the waqif for it is in the power of nobody to
divest GOD of his ownership of the property

- The testamentary waqf may be revoked by the author of the waqf at any time before his death.

-waqf during death-illness above 1/3rd portion is invalid.

= Mutawalli

The manager of a waqf is called its mutawalli.

- neither a minor nor a person of unsound mind can be appointed as a mutawalli.

- 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 murawalli during the minority of such person.

= Hanafi Law

Declaration of waqf need not be followed by the appointment of a mutawalli and delivery of
possession is also not necessary.

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Shia Law

a waqf does not become effective until transfer of possession to the mutawalli is made.

- A mutawalli has no power, without the permission of the court to mortgage, sell or exchange waqf
property or any part thereof unless he is expressly empowered by the deed of the waqf to do so.

- who can be appointed as mutawalli

- he must be of sound mind & major (18yrs)

- Person of any religion can be appointed as mutawalli (male or female)

- Non muslim cannot be appointed it duties or spiritual function are part of duties (male or female)

- foreigner's cannot be the trustee of any waqf property in India.

- So there is no Bar to female unless it involves spiritual duties, which a woman cannot be discharged.

- who can appoint mutawalli

- The founder himself

- failing him his executor

- failing him, by the mutawalli on his death-bed

- failing him by the court

- Removal of mutawalli

- if he denies the wakf character of the property & set up an adverse title to it in himself.

- if he neglect to take care of the waqf property.

- if he knowingly & intentionally cause damage to the property.

- if he is insolvent

Maintenance (Nafaqa) under MUSLIM LAW

The muslim person maintaining the children, aged parents and other close relatives, should be in a position
to support them. It is only in the case of “wife” that the obligation is absolute in the sense that a husband
is required to maintain his wife irrespective of her financial position even if the husband is not in a position
to support it

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 But

In Noor saba khatoon v/s Mohd. Quasim (AIR 1997 SC 3280)

SC Held that Both under personal law and under Sec 125 crpc, the obligation of a muslim father, having
sufficient mans, to maintain his minor children, unable to maintain themselves, till they attained majority
and in case of females till they get married, is absolute.

Defination :- All those things which are necessary to the support of life such as food, cloths and lodging etc.

KHARCHA –I-PANDAN:- (Guzara/mewa khori/betal box)

Dutyto maintain his wife & wife is duty bound to allow her husband free access at all reasonable times, In
addition to this obligation, the spouse can enter into an agreement that the husband will pay special
allowance to his wife, such additional allowances are called kharcha-i-pandan.

- Kharch-i-pandan is the absolute property of the wife & she is at liberty to use it. As its a personal
allowance so cannot be transferred.

Khawaja Mohd. Khan v/s Nawab Hussain Begum (1910) 37 IA 152)

Agreement between the parents of the minor girl that the father of the son will pay rupess 500 hundered
to his son’s wife as a kharcha-i-pandan, when difference arrows the between the husband and wife, the
wife left her matrimonial home & filed a suit for Betal Box, Held that she was entitled to recover the whole
amount not withstanding, the fact that she was not a party to the agreement.

= Persons entitled to maintenance :- A muslim is under an obligation to maintain the following person:-

(a) His descendants

(b) His ascendants
(c) His collaterals
(d) His wife

Descendants

Father is bound to maintain their children, even if they are in their mother’s custody. He is bound to
maintain:-

(a) Minor children

(b) Unmarried daughter
(c) Married daughter (if poor)
(d) Adult son, (if indigent)

= Maintenance after dissolution of marriage

Case- Noor Saba Khatoon v/s Mohd. Quasim

Held that both under muslim law and under sec 125 of crpc the obligation of the father was absolute even
when the children are living with divorced wife.

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Important- When father has no means, mother then is liable to maintain her children, but she is entitled to
recover the expenses from the father when he become sound.

Important- If both father and mother has no means, it is the duty of the grand parents whether maternal or
paternal , to provide for their maintenance.

= Maintenance to dauthers-in-law (widow)

There is no such obligation under muslim law as giving under Hindu Adoption And Maintenance Act.

= illigimate children under muslim law can entitled to claim maintenance only form mother but under sec
125 of crpc they can also claim maintenance from father.

(2) Ascendants (children’s liability)

Sunni Law:- whether parents are capable of earning or not, children are bound to maintain their parents.

Shia Law:- No duty if parents are capable to earn.

- If son died than grand children are liable to maintain their grand parents.
- Children whether male/female, minor/major if have a sufficient property or means, their bound to
maintain their ascendants.
- Step father only entitled if father if fail to maintain, only than children maintain their step mother.

(3) Collaterals

Shia Law : collaterals are not entitled to claim maintenance.

Hanafi Law : collaterals relation if with in prohibited degree can claim maintenance if

(a) Person claiming has not means of maintenance

(b) An the person from he is claiming has the sufficient menas.

(4) Wife

The wife’s right to maintenance ceases on the death of her husband, there fore she is not entitled to
maintenance during the iddat of death. But under muslim law, a divorced wife is entitled to be maintained
by her former husband during the period of Iddat.

Important- According to muslim law, on the expiration of the period of iddat, the wife is not entitled to
maintenance under any circumstances.

Quran verses :-

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 “Let the woman live (in iddat) in the same style as you live, according to your means, annoy
them not, so as to restrict them. And if they carry (life in their womb) the spend (your substance) on them
until they deliver their burden and if they sukle your (offspring) give them their response”

This verses give clear-cut picture that a divorced woman is entitled for maintenance till the
expiry of iddat period. In case she is pregnant this period extends upto to delivery.

Case – Zohra Khatoon v/s Mohd. Ibrahim

The SC has held that the word ‘wife’ in sec 125 (1) Explanation ‘b’ of crpc 1973 includes a woman who has
obtained a decree for dissolution of her marriage under any of the provisions of Dissolution of muslim
marriage Act 1947.

Case – Shah Bana Bano v/s Imran Khan [Air 2010 SC 305]

Held that sec 125 of crpc would be applicable to a divorced muslim woman for the purpose of claiming
maintenance against her husband even after the expiry of iddat so long as she does not re-marry.

= Past maintenance

A muslim wife is not entitled to a decree for past maintenance unless the claim is based on specific
agreement (general rule), but under shafai laws, she can claim even past maintenance.

Arrears of maintenance

No right Except under shafai law and under sec 125 of crpc.

Question – Is a wife entitled to divorce decree under sec 2 (ii) of Dissolution Act 1939, when it was her own
(delinquent) conduct which led to her husband to stop maintenance for a period of 2 yrs?

Answer – whatever the cause may be the wife is entitled to a decree for the dissolution of her marriage, if
the husband fails to maintain her for a period of 2 yrs, even though the wife may have contributed towards
the failure of the maintenance by her husband.

Case - In Yousuf v/s sowranna, the failure of the husband to maintain his wife for any reason whatsoever
gives a ground of divorce to the wife, even thou it is the wife who has deserted her husband.

Case – Shah Bano Begum v/s Mohd. Ahmed Khan (AIR 1985 SC 945)

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SC held that whether the wife is hindu, muslim, Christians or parsis, is wholly irrelevant to the application of
under sec 125 of crpc. Held that a muslim divorced woman who cannot maintain herself is entitled to
maintenance from her former husband till the time she gets re-married.

For the purpose of overruling the effect of shah bano case, muslim Act was amended

Sec 3 (i) (a) of muslim woman (protection of Rights on divorce) Act 1986,

“It curtailed the right of a divorced muslim woman to get maintenance for the period of
Iddat only. It was further said that the right to get maintenance from her husband given to wife under sec
125 of crpc until she re-marries, has been impliedly repealed in case of divorced muslim wife governed by
the provisions of sec 3 (i) (a) of the Act 1986.

Case – Danial Latifi v/s UOI (2001) 7 SCC 740)

Held that the amendment under muslim Act was made to discriminate the women’s right under sec 125
crpc (2) It is also the violation of Art 14 & 21 of the constitution (3) This amendment Act over right the shah
bano case, so husband’s liability cannot be confined upto iddat period only.

Lastly SC gives its final verdict on the divorced muslim women’s right to maintenance in

Case – Shah Bana Bano v/s Imran Khan [Air 2010 SC 305]

Held that sec 125 of crpc would be applicable to a divorced muslim woman for the purpose of claiming
maintenance against her husband even after the expiry of iddat so long as she does not re-marry.

Inheritance under Muslim law

Muslim law of succession constitutes four sources of Islamic law –

1. The Holy Quran

2. The Sunna - that is, the practice of the Prophet

3. The Ijma - that is, the consensus of the learned men of the community on what should be the decision on
a particular point

4. The Qiya - that is, an analogical deduction of what is right and just in accordance with the good principles
laid down by God.

Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled to
a certain share in the deceased’s property and Residuaries would take up the share in the property that is
left over after the sharers have taken their part.

Sharers: The Sharers are 12 in number and are as follows:

(1) Husband

(2) Wife

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 (3) Daughter

(4) Daughter of a son (or son's son or son's son and so on)

(5) Father

(6) Paternal Grandfather

(7) Mother

(8) Grandmother on the male line

(9) Full sister

(10) Consanguine sister

(11) Uterine sister, and

(12) Uterine brother

The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a
case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the
case of succession to the wife's estate) takes a half share in a case where the couple is without lineal
descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased
has left behind more than one daughter, all daughters jointly take two-thirds.

If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become
residuaries instead, with the residue being so distributed as to ensure that each son gets double of what
each daughter gets.

Table 1 : inheritance shares

Sr.No Heir Share Condition

1 Husband 1/2 If there is no children

1/4 If children are present

2 Wife 1/4 If there is no children

1/8 If children are present

3 Daughter 2/3 If there are two or more daughter but without son

1/2 If there is only one daughter and no son is present

4 Son’s Daughter
5 Son’s Son’s Daughter
6 Father
2/3 If there are two or more sons daughter and there is no son, daughter
and son’s son
1/2 If there is only one son’s daughter and there is no son, daughter and
son’s son are present
1/6 If there only one daughter and no son and son’s son are present
2/3 If there are two or more son’s son’s daughter and there is no son,
daughter, son’s son, son’s daughter and son’s son’s son
1/2 If there is only one son’s son’s daughter and there is no son,
daughter, son’s son, son’s daughter and son’s son’s son
1/6 If there are one daughter or one son’s daughter and there is no son,
son’s son, and son’s son’s son
1/6 If children are present

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7 Mother 1/6 If children or Ikhwa sibling or husband and father are present
1/4 If wife and father are present
1/3 If there is no children, Ikhwa Sibling or husband and father or wife
and father are present
8 Father’s Father 1/6 If children are present and father is absent
9 Father’s Mother 1/6 If there is no mother and father
10 Mother’s Mother 1/6 If there is no mother
11 Real Sister 2/3 If there are two or more real sister and there is no children, father,
father’s father and real brother
1/2 If there is only one real sister and there is no children, father, father’s
father and real brother
12 Paternal Sister 2/3 If there are two or more paternal sister and there is no children,
father, father’s father, real brother, real sister and paternal brother
1/2 If there are one paternal sister and there is no children, father,
father’s father, real brother, real sister and paternal brother
1/6 If there is one real sister and no CH, F, FF, RB, PB, are present
13 Maternal Sibling 1/3 If there are two more maternal sibling and no CH, F and FF are
present
1/6 If there is only one maternal sibling and no CH, F and FF are present

Commentry on Muslim inheritance

Funeral Expenses ------- Payment of Loan debts ----------- Pending commitment ------ Will upto 1/3 and the
remaining property will be distributed among the heirs of deceased under the muslim inheritance.

Before distributing the property under the muslim inheritance. We have to calculate the net property
which his qualified under the inheritance law, that means out of the total property of the deceased person
first of all his funeral expenses be deducted and there after there any loan debts of the deceased person or
any pending commitment are there we have to deducted those debts and commitment and there after if
the deceased made the Will then upto the 1/3 third of his property will be deducted out of the gross
property, property which left after deducting all the expenses, debts, commitment and Will be distributed
among the legal heirs as per table 1 and table 2.

Pending commitment - Any commitment made by deceased should be deducted before distributing the
property among the heirs under the muslim inheritance. For example if husband promised to wife for the
payment of dower then after his death it should be given to his widow out of the property of the deceased.

Will upto 1/3 share - Under muslim Law only 1/3 property be given under Will but with the consent of his
or her legal heirs, the whole property will be given under the Will.

Sibling (Ikhwa) - There are three types of sibling under the muslim law

M1 ----------------------------------F ____M ------------------------------------- F1

D2 S2 D (S) S S1 D1

Paternal Sibling Real Sibling Maternal Sibling

2:1 2:1 1:1

Real Sibling - If father and mother of the children are common, it fall under the real sibling and property
will be distributed in 2:1 ratio among the real sibling.

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Maternal Sibling - If the real father (F) of the children are died and mother (M) solemnized second marriage
with another man (F1) and in that relationship children are born. The children born from the first marriage
and second are maternal sibling to each other. In the above dieggram D, S & S1, D1 are maternal sibling to
each other as they have common mother and different father.

Paternal sibling- if after the death of mother (M) father solemnized second marriage with another women
(M1) and in that relationship children are born then, children born out of the first marriage and second
marriage are paternal sibling to each other. In the above diagram D, S & D2, S2 are paternal Sibling as they
have a common father but different mother.

Children (Aulaad)

There share are fixed.

D S

DS DD SD SS

DSD DSS DDS DDD SDS SDD SSD SSS

There share are not fixed under the muslum law.

* On the death of daughter her children do not get any share as they are no covered under the definition of
Aulaad But can get the share in table to as a residuary.

When male and female get 2:1 -

Paternal and real sibling get 2:1 share

The rule of 2:1 is applicable among the following relation -

(1) Son : Daughter

(2) SS : SD

(3) SSS : SSD

(4) Real brother : Real Sister

(5) Paternal brother : Paternal Sister

Following relation do not get share in 2:1 but can get in 1:1

(1) Mother : Father

(2) Maternal brother : Maternal Sister

(3) Grand father : Grand mother

Kalala -

Kalala is a person who don’t have any children. If on the death of a person he don’t have father, grand
father or son, he is called to be a Kalala.

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 Table 2: Inheritacnce shares (Residuary)

Sr. No. 14 15 16 17 18 19 20 21 22 23 24 25 26

Heir S SS SSS F FF, RB RS PB PS Res Radd DI State

F3, (bait-
F4.... R27- (prob ul-
of mal)
144 excess)

Add-on D SD SSD RS PS

detail A* A* A* C* A* D* A* D* F* G* H*

B* E*

Ref 1 1 1 8 8 4,8 5,9 4,8 5,9 8 10

A*: Share are divided in males and females in 2:1

B* SD will also get share, if not given using table 1, that means if son’s son are present then SD do not get
share under table 1 but get under table 2 in 2:1

C* The most proximal (nearer) one will receive the share

D* These females will only get a share here if they did not get it using table 1

E* in addition, the Real sister (RS) is not present

F* This category of Asbah (Res) refers to additional male relatives that are related through chain of males.
The closest one will receive the share.

G* Problem of access

H* in absence of all relatives from Sr.# 1 to 24, the property can then be distributed among Dhil-Irham (tier
3). The closest relative in this category will receive all the wealth.

The General Principles of Inheritance under Muslim Law::

Nature of the Heritable Property:
Heritable property is that property which is available to the legal heirs for
inheritance. After the death of a Muslim, his properties are utilised for the payment
of funeral expenses, debts and the legacies i.e. wills, if any. After these payments,
the remaining property is called heritable property. Under Muslim law, every kind of
property may be a heritable property.

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 For purposes of inheritance, Muslim law does not make any distinction
between corpus and usufruct or, between movable and immovable, or, corporeal
and incorporeal property. Under English law, there is some difference in the
inheritance of movable and immovable property.But, under Muslim law there is no
such distinction; any property, which was in the ownership of the deceased at the
moment of his death, may be the subject-matter of inheritance.

Shia Law:

Under the Shia law, a childless widow is entitled to get her share (1/4) in the
inheritance only from the movable property left by her deceased husband.

Joint or Ancestral Property:

The concept of a joint family or of coparcenaries property (as is recognised under
Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties devolve on his
heirs in definite share of which each heir becomes an absolute owner. Subsequently, upon
the death of such heir, his properties are again inherited by his legal heirs, and this process
continues.There is no provision for any ancestral or joint-family property. Accordingly, under
Muslim law of inheritance, no distinction has been made between self-acquired and ancestral
property. All properties, whether acquired by a Muslim himself or inherited by his ancestors,
are regarded as an individual property and, may be inherited by his legal heirs.

In judicial verdict, it was held that the joint system family or joint property is
unknown to Muslim law and therefore the right, title and interest in the land held by
the person stands extinguished and stands vested in other persons.........In Abdul

Raheem vs. Land Acquisition Officer, AIR 1989 AP 318.

No Birth-Right:
Inheritance opens only after the death of a Muslim. No person may be an heir of a
living person (Nemoest haeres viventis). Therefore, unless a person dies, his heirs have
no interest in his properties. Unlike Hindu law, the Muslim law of inheritance does not
recognise the concept of ‘right by birth’ (Janmaswatvavad).Under Muslim law, an heir does
not possess any right at all before the death of an ancestor. It is only the death of a
Muslim which gives the right of inheritance to his legal heirs.

As a matter of fact, unless a person dies, his relatives are not his legal heirs; they
are simply his heir-apparent and have merely a ‘chance of succession, (spes
successions). If such an heir-apparent survives a Muslim, he becomes his legal heir and
the right of inheritance accrues to him. If the heir-apparent does not survive a Muslim, he
cannot be regarded an heir and has no right to inherit the property.

Doctrine of Representation: Doctrine of representation is a well known principle

recognised by the Roman, English and Hindu laws of inheritance. Under the
principle of representation, as is recognised by these systems of laws, the son of a

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predeceased son represents his father for purposes of inheritance. The doctrine of
representation may be explained with the help of the diagram given below. P has
two sons A and B. A has got two sons С and D and В has a son E.

A B (dies during the life of P)

C D E

During the life of P, his family members are his two sons (A and B), and three
grandsons (C, D and E). Unfortunately, В pre-deceases P, i.e. В dies before the
death of P. Subsequently, when P also dies, the sole surviving members of the
family of P are A and three grandsons, C, D and E.

Under the doctrine of representation, E will represent his pre-deceased father В and
would be entitled to inherit the properties of P in the same manner as В would have
inherited had he been alive at the time of P’s death.

But, Muslim law does not recognise the doctrine of representation. Under Muslim law, the
nearer excludes the remoter. Accordingly, in the illustration given above, E will be totally
excluded from inheriting the properties of P. Both, under Shia as well as under Sunni law,
E has no right to inherit the properties of P. The result is that E cannot take the plea that
he represents his pre-deceased father (В) and should be substituted in his place.

Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to
say, if there are two heirs who claim inheritance from a common ancestor, the heir who is
nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus,
between A and E, A will totally exclude E because A is nearer to P in degree whereas,
E belongs to the second degree of generation. The Muslim jurists justify the reason for
denying the right of representation on the ground that a person has not even an
inchoate right to the property of his ancestor until the death of that ancestor.

Accordingly, they argue that there can be no claim through a deceased person in
whom no right could have been vested by any possibility. But, it may be submitted that
non-recognition of principles of representation under the Muslim law of inheritance,

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seems to be unreasonable and harsh. It is cruel that a son, whose father is dead, is
unable to inherit the properties of his grandfather together with his uncle.

Per-Capita and Per-Strip Distribution:

Succession among the heirs of the same class but belonging to different branches may
either be per-capita or per-strips. In a per-capita distribution, the succession is according
to the ‘number of heirs’ (i.e. heads). Among them the estate is equally divided; therefore,
each heir gets equal quantity of property from the heritable assets of the deceased.

On the other hand, in a per strip distribution, the several heirs who belong to
different branches, get their share only from that property which is available to the
branch to which they belong. In other words, in the stripital succession, the
quantum of property available to each heir depends on the property available to his
branch rather than the number of all the heirs.

Under Sunni law, the distribution of the assets is per-capita. That is to say an heir
does not in any respect represent the branch from which he inherits. The per-capita
distribution may be illustrated by the following diagram.

A B

S1 S2 S3 S4 S5

M has got two sons A and B. A has three sons, S , S

1 2 and S3. В has two sons S4
5
and S . When M dies there are two branches of succession, one of A and the other
of B. Suppose, A and В both die before the death of M so that the sole surviving
heirs of M are his five grandsons.

Now, under the per-capita scheme of distribution (as recognised under Sunni law) the
total number of claimants (heirs) is five and the heritable property would be equally
divided among all of them irrespective of the branch to which an heir belongs.
Therefore, each of them would get 1/5 of the total assets of M. It may be noted that
under Sunni law the principle of representation is recognised neither in the matter of
determining the claim of an heir, nor in determining the quantum of share of each heir.

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Shia Law:
Under the Shia law, if there are several heirs of the same class but they descend from
different branches, the distribution among them is per strip. That is to say, the quantum of
property inherited by each of them depends upon the property available to that particular
branch to which they belong. In the above-mentioned illustration, A and В constitute two
branches, each having 1/2 of M’s property. Both, A and В pre-decease M.

But, the quantum of property available to each of their branch would remain the same.
1 2 3
Therefore, the surviving heirs of A namely, S , S , 5 would get equal shares out of 1/2

1 2 3
which is quantum of property available to the branch of A. Thus S , S and S would get
1/6 each. Similarly, the quantum of property available to the branch of В is also 1/2 but the
descendants from this branch are only two. Accordingly, the 1/2 property of В would be

equally shared by S
4 and S5.

4 5
Therefore, 5 and S would get 1/4 each. It is significant to note that for a limited
purpose of calculating the share of each heir, the Shia law accepts the principle of
representation. Moreover, under the Shia law this rule is applicable for determining
the quantum of share also of the descendants of a pre-deceased daughter, pre-
deceased brother, pre-deceased sister or that of a pre-deceased aunt.

Female’s Right of Inheritance:

Males and females have equal rights of inheritance. Upon the death of a Muslim, if his
heirs include also the females then, male and female heirs inherit the properties
simultaneously. Males have no preferential right of inheritance over the females, but
normally the share of a male is double the share of a female.In other words, although
there is no difference between male and female heir in so far as their respective rights
of inheritance is concerned but generally the quantum of property inherited by a female
heir is half of the property given to a male of equal status (degree).

The principle that normally the share of a male is double the share of a female has
some justification. Under Muslim law, while a female heir gets (or hopes to get in
future) an additional money or property as her Me

hr and maintenance from her husband, her male counterpart gets none of the two
benefits. Moreover, the male heir is primarily liable for the maintenance of his
children whereas, the female heir may have this liability only in an extraordinary
case.

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A Child in the Womb:
A child in the womb of its mother is competent to inherit provided it is born alive. A child in
embryo is regarded as a living person and, as such, the property vests immediately in that
child. But, if such a child in the womb is not born alive, the share already vested in it is
divested and, it is presumed as if there was no such heir (in the womb) at all.

Primogeniture:
Primogeniture is a principle of inheritance under which the eldest son of the
deceased enjoys certain special privileges. Muslim law does not recognise the rule
of primogeniture and all sons are treated equally.

However, under the Shia law, the eldest son has an exclusive right to inherit his
father’s garments, sword, ring and the copy of Quran, provided that such eldest son is
of sound mind and the father has left certain other properties besides these articles.

Step-Children:
The step-children are not entitled to inherit the properties of their step-parents.
Similarly, the step-parents too do not inherit from step-children. For example, where
a Muslim H marries a widow W having a son from her previous husband, the son is
a step son of H, who is step-father of this son.

The step-father and step-son (or daughter) cannot inherit each other’s properties. That
step-child is competent to inherit from its natural father or natural mother. Similarly, the
natural father and natural mother can inherit from their natural sons or daughters.

However, the step-brothers (or sisters) can inherit each other’s properties. Thus, in
the illustration given above, if a son (or daughter) is bom out of the marriage of H
and W, the newly born child would be a step-brother (or sister) of the son from
wife’s previous husband.

These sons or daughters are competent to inherit each other’s property. The step-
brothers or sisters may either be, uterine or consanguine. Muslim law provides for
mutual rights of inheritance between uterine and consanguine brothers or sisters.

Women Rights of Inheritance in Islam:

“For men is a share of what the parents and close relatives leave, and for
women is a share of what the parents and close relatives leave, be it little or much —

an obligatory share.” (Quran 4:7)----Allah Almighty says in Holy Quran.

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 Women form a main part of the society and most of their rights were denied in the pre-
Islamic periods. Islam has honored women by issuing many laws to protect them and to give
them a noble life. The distinct and fixed right of inheritance is one of these laws which
Islam set for women.

From the above verse, we can say that Allah mentioned clearly about the rights
of inheritance for both men and women. It also clarifies the rights of women in
inheritance that were not known before. Many people claim that Islam does injustice to
women in case of inheritance but it’s not true. Allah Almighty offered a full and detailed
method of women’s inheritance in the Quran and Sunnah, if someone wants to know
about it they can read from Quran and the Sunnah of Prophet Muhammad

One of the companions of Prophet Muhammad Sa’ad ibn Abi Waqqas was ill and
requested to devise the majority of his wealth as charity, or a half of it since he was
wealthy and only had one daughter. The Messenger of Allah forbade him and only allowed
him to give a third, and said: “A third and a third is a lot, and it is better that you leave
your heirs wealthy rather than leave them needy begging from the people. You will
not spend anything seeking Allah’s countenance but you receive a reward for that
expenditure, even the morsel of food you put into your wife’s mouth.” (Bukhari)

In Holy Quran Allah Almighty clearly defined the rights of inheritance for both men and
women in a way: “Allah (thus) direct you as regards your children’s (inheritance) to the
male, a portion equal to that of two females. If only daughters, two or more, their share
is two-thirds of the inheritance. If only one, her share is a half. For parents, a sixth share
of the inheritance to each, if the deceased left children. If no children and the parents
are the (only) heirs, the mother has a third. If the deceased has brothers (or sisters) the
mother has a sixth. After payment of legacy and debts. Ye know not whether the
parents or your children are nearest to you in benefit. These are settled portions
ordained by Allah, and Allah is All-Knowing, All-Wise.” (Quran, 4: 11)

Rights Of Widows In Islam:

The widow is a woman who is destined to lose her husband who supports and
provides for her. She is a woman who suffers really hard. This suffering is not only financial,
but most of the time it is emotional and psychological suffering. When the husband dies, the
widow has many financial rights. She has the right to inherit him and it is not permissible for
anyone to take her inheritance without her acceptance. If the husband doesn’t leave for her
enough money to fulfill her needs and the children’s need, the society has to support her and
charity becomes a must for her as Prophet Mohamed (peace be upon him) said,

The one who looks after a widow or a poor person is like a Mujahid
(warrior) who fights for Allah’s Cause, or like him who performs
prayers all the night and fasts all the day.” [Al Bukhari].

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 According to The Sharee‘ah (Islamic Law), a widow is indeed entitled to a share of
the inheritance from the property which belonged to her deceased husband. The wife’s

share is one-fourth if her husband leaves no child, but if he leaves a child she
gets an eighth. Allah said in the Holy Quran,

And for the wives is one fourth if you leave no child. But if you leave a
child, then for them is an eighth of what you leave.[Quran.com/4/12].

Islam also grants the widow the right to having a house and a shelter for her and
the children. band doesn’t leave a house, a proper amount of money is taken from his
property to provide a house for the widow and the children as she is in a special need for
a house more than any other inheritor.
The Right of Remarrying:

Islam considers human nature, hence, it permits the marriage of the widow and
sets a specific period for her ‘Iddah’ (waiting period), which is four months and ten days
or until delivery for pregnant women. It is permissible to a wife to remarry in Islam after
her Iddah (waiting period) ends in order to maintain her chastity or to fill the emotional
and the psychological emptiness due to the absence of the husband especially if she is
young and has children who need a father. Allah Almighty said,

“And those who are taken in death among you and leave wives behind – they, [the
wives, shall] wait four months and ten [days]. And when they have fulfilled their term,
then there is no blame upon you for what they do with themselves in an acceptable
manner. And Allah is [fully] Acquainted with what you do.” [Quran.com/2/234].

In judicial verdict, it was held that a childless widow, in the absence of other heirs,
was entitled to inherit her share and rest of the property including the land, of her
husband by the application of the doctrine of return.---- In Abdul Hammed Khan
vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550.

Simultaneous Death of two Heirs:

When two or more persons die in such a circumstance that it is not ascertainable
as to who died first (i.e. who survived whom) then, both of them cease to be an heir
for each other. In other words, where two or more heirs die simultaneously and, it is
not possible to establish as to who died first then under Muslim law, all the heirs are
presumed to have died just at one moment. The result is that such heirs are
regarded as if they did not exist at all; the inheritance opens omitting these heirs.

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For example, A and В are each other’s legal heirs in such a manner that after the death of
any one of them, the surviving person would inherit the property of the deceased one. But,
both A and В die simultaneously say, in an aero plane crash, and it could not be
established as to who survived whom. Under Muslim law, neither A would inherit В nor В
would inherit A.

Thus, the legal heirs of A would inherit A’s property as if there was no В at all.
Similarly, the heirs of В would inherit B’s property as if A did not exist at all?

Missing Persons:
According to the texts of Hanafi law, a missing person was supposed to have been
dead only after ninety years from the date of his birth; till then the inheritance of his
properties did not open. But, now this rule has been superseded by Sec. 108 of the
Indian Evidence Act, 1872 which provides as under:

“When the question is whether a man 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 shifted to the person who affirms it”.

Accordingly, where a Muslim is missing for at least seven years and if it could not
be proved that he (or she) was alive then, that person is legally presumed to be
dead and the inheritance of his (or her) properties opens.

It has been held by the courts that Hanafi rule of ninety years of life of a missing person
was only a rule of evidence and not any rule of succession; therefore, this Hanafi rule
must be taken as superseded by the provisions of Indian Evidence Act 1872.

GROUNDS OF DISQUALIFICATIONS :
Disqualifications which debar the heirs to succeed the property of the
intestate are— MURDERER

Under the Sunni Law, a person who has caused the death of another, whether
intentionally, or by mistake, negligence, or accident, is debarred from succeeding to
the estate of that other. Homicide under the Shia Law is not a bar to succession
unless the death was caused intentionally.

ILLEGITIMATE CHILDREN

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Under the Hanafi School, an illegitimate child is not entitled to inherit. Such a child
cannot inherit from his/her father but can inherit from his/her mother and all relatives of
the mother. The mother can also inherit the property of her illegitimate children.

DIFFERENCE OF RELIGION
A non-Muslim could not inherit from a Muslim but the Caste Disabilities Removal Act of
1850 does away in India with the exclusion of a non-Muslim from the inheritance of the
property. If a non-Muslim accepts Islam, and then dies, the Act of 1850 cannot warrant the
application of his conversion law of succession to his property; the Muslim Law will apply
in such a case. Where a convert to Islam died leaving behind an only daughter, as against
the claim of his non-Muslim relatives she was given all his property – ½ share as her fixed
share as Quranic heir and the reminder by way of return.

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he
ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a
Muslim his (or her) properties do not devolve under Muslim law of inheritance. The
inheritance of the properties of such Muslims is governed by the provisions of the Indian
Succession Act, 1925 and Muslim law of inheritance is not applicable.

Non-Testamentary and Testamentary succession under Muslim law:

In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On
the other hand, in case of a person who dies testate i.e. 2 one who has created his will before death, the
inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.

In cases where the subject matter of property is an immovable property, situated in the state of West
Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This
exception is only for the purposes of testamentary succession.

Distribution of the Property:

Under the Muslim law, distribution of property can be made in two ways – per capita or per strip
distribution.

The per capita distribution method is majorly used in the Sunni law. According to this method, the estate
left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person
depends on the number of heirs.

The per strip distribution method is recognised in the Shia law. According to this method of property
inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the
quantum of their inheritance also depends upon the branch and the number of persons that belong to the
branch.

A Child in the Womb:

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A child in the womb of its mother is competent to inherit provided it is born alive. A child in the embryo is
regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in
the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no
such heir (in the womb) at all.

Marriage under the Special Marriage Act, 1954

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for
purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not
devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed by
the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.

Inheritance & Wills as Per Quran and Muslim Law:

Wills are not encouraged in most Islamic societies and are, in some jurisdictions,
indeed prohibited in spite of the existence of ahadeeth condemning intestacy. In any case
the testator is restricted to willing a maximum of one third of his estate and usually
only to other than his legal heirs. It is to be noted that the only difference between the
gift and the will is one of timing; the former realizes the father's legitimate intent while the
latter frustrates it.

The restrictions on the proportion of the will is based, by the jurists, on their incorrect
construction of a famous hadeeth wherein the Prophet, peace be upon him, in response to a
question from Sa'd Ibn Abi-Waqqaass - who was sick and believed that he was about to die - if
he should bequeath his entire estate to charity, to the exclusion of his only daughter, refused;
Sa'd then suggested one half of the estate and again the Prophet refused, upon which he
proposed that he will only one third. The Prophet reluctantly approved suggesting that even
that was too much. He also advised the dying man that it was better to leave his child rich
rather than poor. There are several versions of this hadeeth in Al-Bukhari.

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 The Quran commands to use the instrument of the will to transfer once property
after his death. The first reference to inheritance in the Quran occurs at chapter 2, Al-
Baqarah verses 180 through 182 which enjoin "(180). It is decreed for that when death
approaches one of follower, if he leaves property, he shall write a will in favour of the
parents and relatives equitably. This is a duty upon the righteous (181). If anyone
changes a will after he has heard it, the sin of altering the will shall be fall those
responsible for altering it. God is Hearer, Knower (182). The very first mention of
inheritance in the Quran commands to transfer his property to his heirs by means of a
will. Moreover, Lord makes it a duty upon the righteous.

To demonstrate, let us examine a few common cases. A man has two children, a boy
and a girl; the girl had a bad marriage which broke up and left her with young children in
restrained financial circumstances, while the boy is doing well and earning a good living.
Common sense and equability would dictate that the man should give her whatever she needs
to maintain herself and her children at a decent standard of living equivalent to her brother's,
or at least as would be expected in her social circle, regardless of the proportion of the estate
that that might represent.

In actual practice, if the father gifted the difference to the daughter before his
own death, there would be no repercussions; if, however, he willed her the difference by
way of bequest, such a will would be invalid on the grounds that a legal heir cannot be
the beneficiary of a will.

Similarly, if that man had two sons, one god fearing, obedient and kind and
considerate to his parents while the other is a rebellious, uncaring, insensitive profligate.
Would it be equitable to give the latter a share equal to that of his good brother? The
obvious answer is no. In fact giving him anything might simply speed his decline. His
father may deem it necessary, for the good of the wayward son's children, if he had
any, to disinherit him and will his share to them by way of a trust if they are minor, or
directly if they are grown up.

A third case that comes to mind is that of a man with several children who have
children of their own. One of the man's children predeceases him. In the Hanafi
jurisdiction the children of the deceased son receive no part of their grand- father's
estate. However, the jurists - realizing the gross injustice that that rule represents to the
deceased son's children - prescribe, of all things, a will to be made by the grandfather in
favor of the grandchildren bequeathing to them their father's share of the legacy. This is
referred to as "wassiyah wajibah" - literally, "a will that should be made". However, the
value of the will cannot exceed one third of the estate even though the dead son's share
may be more than one third. The difference above the third will be unjustly lost to the
children who are the true beneficiaries and given to someone who is not entitled to it.

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This is, at least, an injustice and if the children are young and fall under the definition of
'orphans' it becomes a mortal sin that violates chapter 4, An-Nissaa', verse 10 of which
more later. God does not condone injustice and He is aware of all we do.

In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act,

1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has
created his will before death, the inheritance is governed under the relevant Muslim Shariat
Law as applicable to the Shias and the Sunnis.In cases where the subject matter of
property is an immovable property, situated in the state of West Bengal, Chennai and
Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This
exception is only for the purposes of testamentary succession.

Case Laws
1. In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held
that upon the death of a Mohammedan, the whole estate devolves upon his heirs at the
moment of his death and the heirs succeed to the estate as tenants-in-common in
specific shares.

2. In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person,
who has converted to Islam, dies leaving behind his daughter only and no residuary,
shall be entitled to her share as well as residuary share in the property of the
deceased.

3. In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir
of the Mohammedan is liable for the debt of the deceased to the extent
only of a share of the debts proportionate to his share of the estate.

4. In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was
held that the joint system family or joint property is unknown to Muslim law
and therefore the right, title and interest in the land held by the person
stands extinguished and stands vested in other persons.

5. In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was
held that a childless widow, in the absence of other heirs, was entitled to

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 inherit her share and rest of the property including the land, of her husband
by the application of the doctrine of return.

6. In Akbar Ali Vs. Adar Bibi AIR 1931 Cal 155, it was held that in India the

Mohamaddi scheme of distribution of shares among the uterine heirs – despite its
deeper sex based discrimination and the resulting complications – has prevailed
and remains in force by tradition, though there is no binding law to this effect.

7. In Ali Saheb Vs Hazara AIR 1968 Mys 351 it was held that though the
principle of rad (return) under the classical law never applies to the surviving
spouse, if that spouse is only survivor in India he/she gets the whole property.

8. In Mazirannessa Vs Kibria AIR 1970 Cal 387 it was held that where a
surviving spouse is related to the deceased also in another capacity by
blood relation, shares in the both capacities may be lawfully allotted to her
or him.

9. In Damodar Vs Shahjadi AIR 1989 Bom 1 it was held that where a person
whose sole heir was his widow, had bequeathed all his properties to a stranger,
the court allowed the will after allotting to the widow her ¼ share by inheritance.

Problem and Solution

Q -1. Husband died in 2001 living his widow, 2 son’s and 1 daughter. Calculate the share of each under
the muslim inheritance.

Ans -Widow falls under table 1 and as per table 1 she get 1/8 share because her children are present.

Daughter do not get share in table 1 because there are 2 son’s and they all get there share under table 2
in 2:1

- Widow get 1/8 share and remaining share that is 1-1/8 =7/8

- Son get double share from daughter so S:S:D get share in 2:2:1

So both son’s get 7/20 share each and daughter 7/40 share as per 2:2:1

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Q -2. Why died with 30 Lac and living behind one son and daughter. Why also made a Will of 10 Lac
rupees in favour of C and there is loan debt of rupees 5 Lac. Calculate the share of son and daughter.

Ans- Total 30 Lac

Deduction:- (1) 5 Lac rupees loan debt and,

(2) 1/3 property for Will

So 30 Lac - 5 Lac = 25 Lac

And out of 25 Lac we deducted 1/3 share for Will (25 Lac - 8,33,333)

Net property available for distribution among son and daughter is 16,66,667/-rupees which is to be
divided between them in 2:1.

So S get 11,11,111/-rupees

And D get 5,55,555/-rupees

Q -3. Y died and living behind widow, son, daughter, grand son of his deceased. Calculate the share
among them.

Ans- Widow get 1/8 share under table 1 as children are present.

Daughter do not get under table 1 because son’s are present, so daughter get her share according to
table No. 2 in 2:1 with his brother.(son get 7/12 share and daughter get 7/24 share)

Grandson of deceased son do not get any share as Y died after the death of his deceased son, so
grandson are representing the son who had died before the death of Y, so grandson do not get any
share.

Note: The notes on muslim inheritance is prepared from many source and also taken the help of artical written by Lakshmi Narayana.B on
muslim inheritance.

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