BLS LLB

Monday, 7 March 2016

mohammedan law ­ sem 6

Development of Islamic Law

Introduction
Islam means “submission to the will of God and establishment of peace”. Muslim Law
had its origin in Arabia, where the Prophet Mohammed started it and the
Mohammedan invaders in India brought the religion to India. Before the advent of
Islam in Arabia, the Arabians were following various superstitions and were not
leading a disciplined life.
According to the Muslim religion, God created the universe and He prescribes a
pattern of behavior which the human beings must observe.
The Holy Quran
It is the divine communication of Prophet Mohammed with the Allah, the only God
according to the Muslim religion.
The Quran is the holy of sacred book and the basic text of the Muslim religion.
The Muslim Law is founded upon Quron.
The Shariat
Stages in the development of Mohammedan Law
Stage of Quranic precepts
Stage of Collection
Stage of Theoretical study
Stage of evolution of Ijtihad and Taqlid
The Fifth period
Sources of Islamic law
Classical Sources of Mohammedan Law

1. Quran or The Holy Kuran

2. Sunna
3. Ljmaas
4. Qiyas

Position of Classical Sources in India

Taglid means that the court should not give their own interpretation of Quran.
However, traditionally settled legal principles must be accepted as such, though it is
contrary to Quran. The settled laws must be followed as such even if they are not
modern, just or logical. News rules of law cannot be introduced.
Other Sources of Muslim Law in India

1. Legislative Enactments
2. Judicial precedents
3. Texts of Jurisprudence
Customary practices
Mohammedan people are governed by both codified laws that are enacted by the
State as well as the informal laws based on customary practices which differs from
cultural, social and political scenario.
Shariat Application Act
Dissolution of Muslim Marriage Act
Muslim Women (Protection on Divorce) Act
Schools of Islamic Law
Sunni School
On the death of the Prophet, Mohammed Abubeker was elected as the successor.
Those who supported the election were called Sunnies. They are predominant Muslims
in India.
Sub Schools among the Sunnies

1. The Hanafi School

2. The Maliki School
3. The Shafei School
4. The Hanbali School
5. The Zaydi School
6. The Jafari School
7. The Ismaili School
8. The Ibadi School

Popular Schools in India

1. The Hanafi School

2. The Shafei School
3. The Jafari School
4. The Ismaili School

Shia School
Those persons who did not support the election to fill the vacancy of the Prophet
were considered Shias. They supported the succession to the office by inheritance and
by election.
Concept of Marriage: Definition, object, nature,
essential requirements of a Muslim marriage
Introduction
According to Mohammadan law, the marriage is a civil contract and not a sanctity. So,
all the requirements of a valid agreement are also required for Mohammadan
marriage. But for the capacity of parties, the Mohammadan law prescribes 15 years as
puberty.
Abdul Khader vs. Salima
Essentials of a valid marriage
According to Muslim Law, Marriage or `Nikah` as the Muslims call the nuptial
ceremony is an agreement underlying a permanent relationship based on mutual
approval.
Essential Features of Muslim Nikah
A Muslim marriage requires proposal called the Ijab from one party and
acceptance or Qubul from the other as is necessary for a contract.
 There can be no marriage except for the free consent and such consent
should not be obtained by means of compulsion, deception or unjustified
influence.
Just as in case of agreement, entered by a guardian, on attaining majority,
so can a marriage contract in Muslim Law, be set aside by a minor on
attaining the age of puberty.
The parties to a Muslim marriage may enter into any ante­nuptial or post­
nuptial agreement, which is enforceable by law, provided it is sensible and
not opposed to the policy of Islam. In the case with a contract the same
policies are folowed.
The terms of a marriage contract may also be changed within the legal
limitations to suit individual cases.
Although discouraged both by the holy Quran and Hadith, yet like any other
contract, there is also provision for the violation of marriage contract.

Requirements of Muslim Nikah

The solemnization of a Muslim marriage needs strict following of certain rules and
regulations. They are called the basic fundamentals of a valid marriage. If any of
these requirements is not fulfilled the marriage becomes either void or irregular, as
the case may be.
The essentials of Muslim marriage are as follows:
Proposal and Acceptance
Competent Parties
No legal Disability
Absolute Prohibition
There is absolute prohibition of marriage in case or relationship of consanguinity. In
this case the situation is such that the relationship has grown up of the person
through his/her father or mother on the ascending side, or through his or her own on
the descending side. Marriage among the persons associated by affinity, such as
through the wife it is not permitted. Marriage with foster mother and other related
through such foster mother is also not permitted.
Procedure for Muslim Nikah
According to Muslim Law it is necessary that a man or someone on his
behalf and the woman or someone on her behalf should give their consent
to the marriage at one meeting and two adult witnesses should witness the
agreement.
The words meaning proposal and acceptance must be spoken in each
other`s presence or in the presence of their agents, who are called Vakils or
Qazi.
The other circumstance for a valid marriage is that the contract must be
completed at one meeting. A proposal made at one meeting and an
acceptance at another meeting does not constitute a valid marriage.
There must be exchange of views between offer and acceptance. The
acceptance must not be restricted.
Under the Sunni Law, the proposal and acceptance must be made in
presence of two males or one male and two female witnesses who are sane,
adult and Muslim. Under Shia Law, witnesses are not necessary at the time
of marriage. They are required at the time of dissolution of marriage.
 The parties arranging the marriage must be giving their free will and
consent.

Divorce – Marriage under Islam is only a civil agreement and not a sacrament. A
husband can leave his wife without any reasons or merely by pronouncing the word
“Talak” thrice. However, for a Muslim woman to obtain divorce certain circumstances
are necessary. The husband and the wife with mutual agreement can also put an end
to the marriage.
Like Hindu law, followers of Islam have their own personal law, which states that
Nikaah or marriage is a contract, may be permanent or temporary, and permits a man
four wives if he treats all of them equally. There should be a proposal or `offer,` made
by or on behalf of one of the two parties;
The Muslim marriage law also states that to have a valid marriage under the Muslim
law, if a person is of sound mind, normal and has attained puberty at the age of 15
his or her marriage cannot be performed without his or her consent. There are certain
prohibited relationships, whose marriage is considered void. Like mother and son,
grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.
An `acceptance` of such proposal or `offer` by or on behalf of the other
party;
The `offer` and `acceptance,` both, must be expressed in the same
meeting. There is no prescribed form for proposal and acceptance. However,
a proposal, made at one meeting and an acceptance, made at another
meeting, will not constitute a valid marriage;

The offer and acceptance must be made in the presence of two male
witnesses, or one male and two female witnesses, who must be adult
Mohammedans of sound mind; iv. A marriage, contracted without witnesses,
is not void but is considered irregular. Such irregularity can be cured by
consummation.
However, according to Shia law, the presence of witnesses is not necessary
in any matter.
A woman married under Muslim law shall be entitled to obtain a decree for
the dissolution of her marriage on any one or more of the following grounds,
namely:
That the whereabouts of the husband have not been known for a period of
four years;
That the husband has neglected or has failed to provide for her maintenance
for a period of two years;
That the husband has been sentenced to imprisonment for a period of seven
years or upwards;
That the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years.
That the husband was impotent at the time of the marriage and continues to
be so;
That the husband has been insane for a period of two years or is suffering
from leprosy or a virulent venereal disease.
That she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage before
attaining the age of eighteen years.
Classification of marriage
Legal effects of valid
Void and irregular marriage
Relative Prohibitions
Unlawful union
Marrying a fifth wife
Marrying a woman undergoing iddat
Marrying a non­Muslim
Absence of proper witnesses
Woman going for a second marriage even after the existence of the first
marriage.
Marrying pregnant women
Marrying during pilgrimage
Marrying own divorced wife
Muta marriage
1. It means a temporary marriage.
2. The marriage is for a fixed period.
3. This type of marriage is recognized in the Shia Law – IthnaAshari School

Essentials of Muta Marriage

1. The amount of dower must be fixed. It is not fixed then the marriage becomes
void.
2. If the marriage is consummated, half the amount of the dower should be paid to
the wife.
3. The period of co­habitation must be fixed. If the period is not fixed, then it is not
a Muta Marriage but becomes a normal marriage.
4. A Shia can make a valid Muta Marriage with a non­Mohammedan woman. But a
Shia female cannot marry a non­Mohammedan male
5. The Muta marriage comes to an end when the fixed period is over. Even after
expiry of the fixed period, if they live together then it is presumed that the term
of Muta marriage is extended.
6. Divorce cannot take place in Muta marriage but the husband by paying the full
amount of dower, can put an end to the marriage even before the expiry of the
term
7. The children born out of the Muta marriage are legitimate. They can inherit the
property of the parents. But the wife and husband cannot inherit the property of
each other. The Muta marriage is obsolete in India.

State regulation
Polygamy
The Muslim law permits a Muslim man to have four wives, provided he treats all of
them equally.
Child marriage
Pre­emption
Wakf
Dower
Introduction
Introduction
Dower is a sum of money or other property promised by the husband to be paid or
delivered to the wife in consideration of marriage, It is an obligation imposed upon the
husband at the time of the marriage as a mark of reverence to the wife. The wife can
receive it by instituting an action as if it was a debt due to her.
This is primarily because Mohammedan marriage contract is easily dissoluble, and the
husband has the freedom of divorce and also in order to restrict polygamy, the
concept of payment of dower was introduced.
The object of dower
to create an obligation on the husband to place his wife in respect
to restrain the frequent use of divorce by the husband; and
to provide for the wife’s living after the dissolution of her marriage or death
of her husband
Types of Dower
Specified Dower:

1. In this case, the amount of dower is stated in the marriage contract. It can be
settled by the parties to the marriage either before the marriage or at the time of
the marriage or even after the marriage.
2. The minimum dower amount is ten dirhams. However, Shia Law does not fix any
minimum amount of dower.
3. According to the Prophet, the Muslim husbands who are not in a position to pay
even 10 dirhams to the wife as dower, should teach Quran to the wife in lieu of
dower.
4. In the case of marriage of a minor, the guardian contracting the marriage of a
minor or lunatic boy can fix the amount of dower.

Types of Specified Dower

Specified dower is divided into Prompt Dower & Deferred Dower.
Prompt Dower
Prompt Dower is payable on demand by the wife, unless otherwise stated at
the time of the Marriage.
The entire dower is considered as prompt dower in the Shia Law whereas it
is usual to regard half as prompt dower and half as deferred dower in Sunni
or Hanafi Law.
It can be paid any time before or after the marriage.
If the prompt dower is not paid, the Wife may refuse herself to her husband.
If the wife is minor, her guardian may refuse to allow her to be sent to the
husband’s house till the payment of Prompt Dower.
In such circumstances, the husband is bound to maintain the wife.
Ever after the consummation of marriage, amount of prompt dower can be
sued for recovery.
Masthan Sahib Vs. Assam Bibi
The wife refused for consummation of marriage until the prompt dower is paid. Even
after consummation of marriage, the amount of prompt dower is not paid on demand
by the wife. If the husband sues for restitution of conjugal rights, a conditional decree
may be granted by the Court, that the husband should pay the prompt dower within
the times fixed by the Court.
When the wife makes a demand for prompt dower, it becomes a debt and as such the
wife can sue for the recovery of the debt within a period of three years.
When the wife makes a demand for prompt dower, it becomes a debt and as such the
wife can sue for the recovery of the debt within a period of three years.
Deferred Dower
Deferred dower is payable only on the dissolution of the marriage or on the death of
the husband. But if there is any agreement as to the payment of deferred dower
earlier than the dissolution of marriage, such agreement would be valid and
binding.Since, the husband can divorce his wife at any point of time without assigning
any reasons, the deferred dower acts as a security to the wife and is usually very hih.
If there is no divorce, then the deferred dower becomes payable only on the death of
the husband.
Immediately on the death of the husband.the deferred dower becomes a debt, which
is recoverable within a period of three years subject to the Law of Limitation.
Proper Dower or Customary Dower:
In the case of dower not fixed by the parties to the marriage before the marriage or if
there is a condition that the wife should not claim for any dower amount, still the wife
got a right to claim dower. Such dower is called ‘Proper Dower’ or ‘Customary Dower’.
It is determined after considering the personal qualifications of wife such as age,
social position of her family, economy condition of her husband, etc.
Remedies for a divorced woman or widow to enforce the dower debt
In the case of divorce
If the husband is alive and if the wife is not yet divorced, the prompt dower is
immediately payable on demand by the wife. However, the deferred dower becomes
payable only after divorce by the husband.
The dower debt is an unsecured debt and so it is an actionable claim and ranks with
the other unsecured debts of the deceased husband.
The limitation period is three years as in case of a general debt.
If the wife is in possession of her husband’s property after the divorce, she can utilise
the property to satisfy her debt. There is no limitation period for this.
In the case of death of husband
When there is no divorce, the deferred dower becomes payable only after the
husband’s death.
If the prompt dower is not demanded by the wife during the husband’s lifetime, then
it becomes payabe only after the husband’s death.

MainaBibi vs. ChaudaryVakil Ahmed

Muinuddin died leaving his widow MainaBibi. He had left immovable property which
was retained possession by MainaBibi until dower was paid.
The respondents instituted a suit against the widow for the immediate possession of
their shares of the estate, for which the widow defended that she is entitled to the
possession of the estate till payment of dower. The Trial Court held that the
respondents were entitled to possession on the condition that they paid to the widow
Rs.25,357/­ within 6 months, and in default of payment, the suit shall be dismissed.
The widow continued to be in possession, since the respondents did not pay the
money.
After some years, MainaBibi executed absolute gifts of her husband’s estate in favour
of some donees and gave absolute title and possession to them. The respondents filed
a suit against the widow and her alienees, that the widow had only right of retention
until payment of dower and could not transfer the properties.
Judgment:
The Privacy Council held that the possession of the property once peacefully and
lawfully acquired, the widow gets the right till the dower is paid and such right is
conferred by Muslim Law. She has no right to alienate the property by sale, mortgage,
gift etc.
conferred by Muslim Law. She has no right to alienate the property by sale, mortgage,
gift etc.

Origin of Muslim Law

Muslim Law or the Islamic Law is believed to have been originated from the divine.
The Divine communicated it to Prophet Muhammad who prescribed them in Quran. In
the later days, the disciples of Prophet Muhammad (or Muslim jurists) have refined
and polished these principles. The provisions of Quran are vast and dealt with almost
all aspects of human life.
Who is a Muslim?
A Muslim is a person who follows the religion of Islam. From the point of law, the
Court is interested if the person
1. Believes in one God and 2. Prophet­hood of Muhammad.
These two points are the minimum and fundamental rules for a person to be called a
Muslim.
There are two ways in which a person can be regarded a Muslim.
1. Muslim by Birth
2. Muslim by Conversion

To whom does Muslim Law apply?

When is Muslim law not applied to Muslims?
When is Muslim law applied to non­Muslims?
Fiqh and Shariat
Schools of Muslim Law
Sunni School
Shia School
Motazila Muslims
Sources of Muslim Law
Quaran as the source of Muslim Law
Primary and Secondary Sources
Customs
Judicial Decisions
Legislation
Marriage
Polygamy nature of Muslim marriage
Essentials of a Muslim marriage
Iddat
Kinds of marriage
Irregular marriage
Muta marriage
Restitution of conjugal rights
Dower
Concept of Dower
Proper Dower
Specified Dower
Prompt and deferred dower
 Prompt and deferred dower
Remission of dower
Rights of dower
Dissolution of Marriage
Divorce by husband
Talaq
Kinds of talaq
Ila
Zihar
Divorce by wife
Delegated talaq
Divorce by mutual concent

Parentage and Legitimacy

Parentage
Maternity
Paternity
Legitimacy
Presumption of legitimacy under Islamic Law
Acknowledgement of paternity
Adoption according to Islamic Law
Differences between Adoption and Acknowledgement

Guardianship
Types of Guardians according to Islamic Law
Natural Guardian
Testamentary Guardian
Guardian appointed by Court
De­facto Guardian
Powers and functions of Guardians
Mother's rights of custody (Hizanat) of child
Father's rights of custody (Hizanat) of child
Custody of Illegitimate Child
Custody of Minor Wife
Guardianship for marriage
Guardianship of property

Maintenance
Maintenance of Wife
Maintenance of Divorced Wife
Maintenance of Widow
Maintenance of Children
Maintenance of Illegitimate Children
Maintenance of Parents
 Maintenance of Relatives
Maintenance of Daughter­in­law

Gift (Hiba)
Definition of Hiba
Constitutional validity of Hiba
Declaration of Gift
Acceptance of Gift
Gift to a child in womb
Gift to a juristic person
Gift to a Minor or lunatic
Gift through a trust
Gift of insurance policy or life estate
Gift of dower
Gift of services
Doctrine of Musha
Conditional and Contingent Gifts
Revocation of gifts
Irrecoverable gifts

Wills
Definition of a Will
Essential conditions of a will
Joint legatee
Lapse of legacy
Subject­matter of will
Abatement of legacies
Conditional and Contingent Will
Revocation of wills
Death­bed gifts
Death­bed acknowledgement of gifts

Waqfs
Definition of Waqfs
Essentials of a valid Waqf
Waqf by non­muslim
Waqf of Musha
Difference between Waqfs and Trust
Doctrine of Cyprus
Modes of creation of Waqf
Muslim religious endowments
Public and private mosques
Idga
Khankah
Imambara
 Qbristan

Pre­emption
Doctrine of Pre­emption
Essential elements of Pre­emption

Administration of Estates
Executor and Administrator
Vesting of the estates
Payment of debts
Widow as creditor
Legatee's liability

Inheritance
Pre­Islamic Customs
Islamic Reforms
General principles of Islamic inheritance
Sharers
Doctrine of Increase
Doctrine of Return
Differences between Sunni and Shia law of inheritance

Related Statutes
Indian Muslim Law
Acts
Muslim Personal Law (Shariat) Application Act, 1937
Dissolution of Muslim Marriage Act, 1939
MussalmanWaqf Validating Act, 1913
Muslim Women (Protection of Rights on Divorce) Act, 1986
Wakf Act, 1995, Act No 43; Enforced from November 22, 1995
Wakf Act, 1954, (Repealed)
Child Marriage Restrain Act, 1929
Family Courts Act, 1984
Rules
Muslim Women (Protection of Rights on Divorce) Rules, 1986

Q. What is Talaq? Who can pronounce Talaq?

Identifying differences between shia and sunni,
explain the different modes/types of Talaq. What is
explain the different modes/types of Talaq. What is
Talaq e tafweez? What is the difference between
Talaqulsunnat and Talaqulbiddat. Can a muslim
wife give Talaq to her husband? If yes, under what
circumstances? What are the grounds on which a
muslim woman can demand Talaq? State the
consequences that arise from Talaq under muslim
law.
The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means
release from a marriage tie, immediately or eventually. In a restricted sense it means
separation effected by the use of certain appropriate words by the husband and in a
wide sense it means all separations for causes originating from the husband. It is also
generic name for all kinds of divorce but it is particularly applied to the repudiation by
or on behalf of husband.

In MoonsheeBuzloor Rahim vsLateefutoonNissa, it was said that Talaq is a mere

arbitrary act of a muslim husband, by which he may repudiate his wife at his own
pleasure with or without cause.

Who can pronounce Talaq?

As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq­e­
tafweez, a husband may delegate the authority to the wife to pronounce talk on his
behalf. The husband must posses the following qualifications to be able to pronounce
a valid Talaq ­

Shia ­ He must be of sound mind and attained the age of puberty. It must be
pronounced orally in the presence of two witnesses unless he is unable to speak.
Further, Talaq must not be pronounced under duress or compulsion otherwise Talaq is
void. It must be spoken in Arabic terms and strictly in accordance to sunnat.

Sunni ­ Only two requirements ­ Sound mind, attained majority. A Talaq pronounced
under compulsion or intoxication is effective.

It is not necessary that Talaq must be pronounced in the presence of wife. In

FulchandvsNavab Ali Chaudhary 1909, it was laid that Talaq should be deemed to
have come into effect on the date on which the wife came to know of it.

Intention is not necessary for a Talaq to take effect. If unambiguous words denoting
irrevocable Talaq are pronounced even by mistake or in anger, it is a valid Talaq.

Talaq can be effected orally or in writing (Talaqnama). If the words are express and
well understood as implying divorce (e.g. "I have divorced thee"), no proof of the
intention is required. If the words are ambiguous (e.g. "Thou art my cousin, the
daughter of my uncle, if you goest"), then intention of the user must be proved.

After the passing of Muslim Marriage Dissolution Act 1949, a muslim wife can also get
a divorce on certain grounds. (Explained below)
The following diagram shows various types of divorces ­ (Note that technically, Talaq
is not same as divorce, but in the exam when these morons ask about types of Talaq,
they actually mean types of divorce!)

types

Type of Talaq Shia Sunni

By Husband
Talaqulsunnat ­ It is a Talaq which is
effected in accordance with the
traditions of Prophet. It is further divided
in two types ­ Ahasan and hasan.
Ahasan ­ It is the most approved and
considered to be the best kind of Talaq.
The word ahasan means best or very
proper. To be of Ahasan form, it must
satisfy the following conditions ­ Written
 Written
Talaq is
1. the husband must pronounce the
not
formula of divorce in a single
acceptable Written
sentence.
unless the Talaq is
2. the pronouncement of divorce must husband acceptable.
in done when the wife is in state of is unable No
tuhr (purity), which means when to speak. witnesses
she is free from her menses.
Two male are
3. husband must abstain from witnesses required.
intercourse for the period of iddat. are Talaq
required. pronounced
If the marriage has not been
consummated, if the spouses are away Intention even by
from each other, or the wife is beyond to divorce mistake is
the age of mensuration, Talaq may even is required binding.
be pronounced while the wife is in on the
menses. part of
Pronouncement in this form is husband.
revocable during the period of iddat.
Such revocation may be either
express or implied.It becomes
irrevocable at the expiry of iddat.
Hasan ­ Hasan in arabic means "good"
and so this form of Talaq is considered to
be a good form of Talaq but not as good
as Ahasan. To be in this form, it must
satisfy the following conditions ­

1. there must be three successive

pronouncements of the formula of
divorce.
2. in case of a menstruating wife, the
three pronouncements must be
made in three consecutive tuhrs.
3. in case of a non­menstruating wife,
the three pronouncements must be
made during the successive
intervals of 30 days.
4. no sexual intercourse must take
place during these three periods of
tuhr.

It can be revoked any time before

the third pronouncement. It
becomes irrevocable on the third
pronouncement.
Talaqulbiddat ­ It is a disapproved
and sinful form of Talaq. It was
introduced by Ommeyyads in order to
escape the strictness of law. To be of this
form, it must satisfy the following
conditions ­
 1. three pronouncements may be
made during a single tuhr either in
one sentence (e.g. "I divorce thee
thrice." ) or in three sentences (e.g.
I divorce thee, I divorce thee, I
divorce thee).
2. a single pronouncement made
during a tuhr clearly indicating an
intention to dissolve marriage
irrevocably (e.g. "I divorce thee
irrevocably").

It becomes irrevocable immediately

when it is pronounced irrespective
of iddat.Thus, once pronounced, it
cannot be revoked. One a definite Shias and Malikis do
complete separation has taken place, not recognize this
they cannot remarry without the form.
Recognized but
formality of the woman marrying
considered sinful.
another man and being divorced from Shia law does not
him. recognize any form
of irrevocable Talaq.

In Saiyyad Rashid Ahmad

vsAnisaKhatoon 1932, one
GhayasUddin pronounced triple Talaq in
the presence of witnesses though in the
absence of the wife. Four days later a
Talaqnama was executed which stated
that three divorces were given. However,
husband and wife still lived together and
had children. While the husband treated
her like a wife, it was held that since
there was no proof of remarriage, the
relationship was illicit and the children
were illegitimate.

It has been said that this type of Talaq is

theologically improper. In
FazlurRahmanvs Aisha 1929, it was
held that Quran verses have been
interpreted differently by different
schools. Thus, it is legally valid for
Sunnis but not for Shia.

Ila ­ (Vow of continence) ­ Where the

husband is of sound mind and of the age
of majority, swears by God that he will
not have sexual intercourse with his wife
and leaves the wife to observe iddat, he
is said to make ila. If the husband after
having pronounced ila abstains from
having sexual intercourse with wife for
having sexual intercourse with wife for
four months, the marriage is dissolved
with the same result as if there had been
an irrevocable divorce pronounced by
the husband. This requires following
conditions ­

1. Husband must be of sound mind

and above the age of majority.
2. must swear by God or must take a
vow.
3. vow must be that he will not have
sexual intercourse with his wife.
4. must abstain from sexual
intercourse with his wife for four
months or more after taking the
vow.

It can be canceled by ­ resuming sexual

intercourse within the period of four
months or by a verbal retraction.
It is not in practice in India.

Zihar ­ Injurious Assimilation ­ If a

husband compares the wife with his
mother or any other female relative
within prohibited degree, the wife has a
right to refuse herself to him until he has
perfomed a penance such as freeing a
slave or fasting for a month. In default
of expiation by penance, the wife has
the right to apply for judicial divorce.
Ingredients ­

1. husband must be sane and adult

2. husband compares wife to his
mother or any other female relative
within prohibited degrees.
3. then the wife has a right ­ a) to
refuse to have sexual intercourse
with him till he has expiated himself Comparison must
by penance, b) to apply in court for have been done in
an order directing him for a presence of two
No such
penance or to decree her a regular witness.
requirement.
divorce. Muta marriage may
be dissolved by
Legal Effects­ Zihar by itself does not Zihar.
terminate the marriage nor does it cause
the wife to lose her right to maintenance
even in case of default of penance. It
causes the following ­

1. sexual intercourse becomes

unlawful
husband is liable for penance
 2. husband is liable for penance
3. wife can claim judicial separation if
the husband persists in wrong
doing.

The comparison must be done

intentionally and with disrespect. If the
husband makes a comparison to show
respect to his wife, an expiation is not
necessary.
This form has become obsolete.

By Wife
Talaq e tafweez ­ A husband may
delegate his power to give Talaq to any
third party or even to his wife. This
delegation is called tafweez. An
agreement made either before or after
the marriage providing that the wife is at
liberty to divorce herself from her
husband under certain specified
conditions (e.g. husband taking a second
wife), is valid, provided that such power
is not absolute and unconditional and
that the conditions are reasonable and
are not opposed to public policy.

In Mohd Khan vsMstShahmali AIR

1972, there was a pre­nuptial
agreement in which the defendant
agreed to live in plaintiff's parental
house after marriage and if he left the
house, he would pay a certain sum to
the plaintiff, the default of which the
condition would act as divorce. It was
held that the condition was not
unconscionable or opposed to public
policy.

Note that a wife does not divorce her

husband but gets herself divorced from
the husband.
Ameer Ali gives three kinds of tafweez ­
(This is given in Aqil Ahmed's book. I
have no idea what is the difference
between the three).
Ikhtiar ­ giving her authority to Talaq
herself.
Amr­bayed ­ leaving the matter in her
own hands.
Mashiat ­ giving her the option to do
what she likes.
This does not deprive the husband from
his right to give Talaq.
Talaq e taliq ­ It means contingent
divorce. Under the Hanafi law,
pronouncement of divorce may take
effect immediately or at some future
time or event.

By Agreement
Khula ­ Divorce at the request of wife ­
A wife has a right to buy her release
from marriage from her husband. It
must satisfy the following conditions ­

1. there must be an offer from the

wife.
2. the offer must be accepted with
consideration (evaz) for the release.
3. the offer must be accepted by the Husband must be
husband. adult, sane, free
agent (mukhtar), Only two conditions ­
It becomes effective as well as and must have Husband must be
irrevocable (Talaqulbain) as soon as it is intention to divorce adult and sane.
accepted by the husband and the wife is her.
bound to observe iddat. It is irrevocable and
Husband has no partners cannot
As a consideration for release by the power of revocation resume sexual
husband, everything that can be given in but wife can reclaim intercourse until a
dower can be given. If the wife fails to the consideration fresh marriage is
give the consideration that was agreed during iddat. In this arranged.
upon at the time of Khula, divorce does case, the husband
not become invalid but the husband has can revoke Khula.
the right to claim the consideration.

In MoonsheeBuzloor Rahim
vsLateefutoonNissa, Khula was
defined as a divorce by consent in which
the wife gives or agrees to give a
consideration to the husband for her
release from the marriage tie. Khula is
thus the right of divorce purchased by
the wife from her husband.

Mubarat ­ Divorce by mutual

agreement ­ It is a form of dissolution of
marriage contract, where husband and
wife both are averse to the marriage and
want to separate. It requires following
conditions ­

1. Either of husband or wife can make

the offer.
 2. The other one must accept it.
3. As soon as it is accepted, it become
irrevocable and iddat is necessary.
Since it is a mutual agreement,
there is no question of
consideration.

By Judicial Decree
Lian ­ False charge of adultery ­ When
the husband charges the wife with
adultery and the charge is false, the wife
is entitled to sue for and obtain divorce.
In ZafarHussainvsUmmaturRahman
1919, the Allahabad HC accepted the
doctrine of Lian. The following conditions
must be satisfied ­

1. Husband, who is adult and sane,

charges his wife with adultery or
denies the paternity of her child.
2. Such charge is false.
3. The marriage is a Sahih marriage.

Features of Lian ­

1. Such false charge does not dissolve

the marriage automatically but only
gives a right to the wife to sue for
divorce. The marriage continues till
the decree is passed.
2. Wife must file a regular suit and
just an application will not suffice.
3. Judicial separation due to Lian is
irrevocable.
4. Lian is applicable only to Sahih
marriage and not to Fasid ones.

Retraction ­ A husband may retract the

charge. However, the retraction must be
bona fide and unconditional. It must be
made before the closing of evidence.
Fask ­ Cancellation ­ Muslim law allows
a lady to approach a qazi for dissolving
the marriage under the following
conditions ­

1. if the marriage is irregular.

2. if the person having an option to
avoid a marriage has exercised his
options.
if the marriage was within
 3. if the marriage was within
prohibited degrees or fosterage.
4. if the marriage has been contracted
by non­Muslims and the parties
have adopted Islam.

Before the enactment of Muslim

Marriage Dissolution act, this was the
only way for a muslim woman to
repudiate a marriage.
Judicial Divorce ­ Section 2 of Muslim Marriage Dissolution Act 1939 gives
the following grounds to wife belonging to Shia as well as Sunni sects, upon which
she can ask for divorce ­

1. Absence of husband ­ 4 yrs. Decree passed on this ground will take affect only
after 6 months of passing and if the husband shows up during the 6 months he
can request the court to set the decree aside.
2. Failure to maintain ­ for 2 yrs. Cause is immaterial. Poverty, incapacity is no
excuse. There is no agreement among HCs regarding the conduct of wife. In
FazalMahmoodvsUmmaturRahman AIR 1949, Peshawar HC held that if a
wife is not faithful or obedient, the husband is under no obligation to maintain
her and her suit for divorce was dismissed. However, in MstNurBibivsPirBux
AIR 1950, Sind HC held that a wife is entitled to divorce if the husband has
failed to maintain her for two years preceding the suit even though she may not
be entitled to maintenance owing to her bad conduct.
3. Imprisonment of husband ­ for 7 yrs or more.
4. Failure to perform marital obligations ­ for 3 yrs
5. Impotency of husband ­ If the husband was impotent at the time of marriage
and continues to be so.
6. Insanity, leprosy, or venereal disease ­ For insanity, 2 yrs are required. For
disease, no time period is required.
7. Repudiation of marriage ­ If the wife was married before she was 15, she can
repudiate the marriage before she turns 18.
8. Cruelty of husband ­ cruelty involves ­ habitual assault, associates with women
of bad repute, attempts to force her to lead immoral life, disposes off her
property, obstructs her practice of religion, does not treat all his wives equally.
9. Grounds allowed by muslim law ­ This covers all the grounds such as Ila, Zihar,
Khula, and Mubarat, which are provided by muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce

automatically. However, if a woman reconverts back to her original faith, the
marriage will stand dissolved.

Can a muslim wife give Talaq to her husband? If

yes, under what circumstances? What are the
grounds on which a muslim woman can demand
Talaq?
As per the definition of Talaq propounded in MoonsheeBuzloor Rahim
vsLateefutoonNissa, Talaq is a mere arbitrary act of a muslim husband, by which he
may repudiate his wife at his own pleasure with or without cause. Thus, a muslim wife
does not have any right to give Talaq to her husband. However, there are ways
through which a muslim wife can repudiate her marriage and get a divorce from her
husband. These are as follows ­

1. Talaq e tafweez

2.Khula

3.Zihar

4.Lian

5.Fask

6. Dissolution of muslim marriage act 1939

Consequences arising from Talaq

1. Marriage ­ Parties are entitled to contract another marriage. If the marriage was
consummated the wife has to wait until the period of iddat is over, otherwise, she
may remarry immediately. If the marriage was consummated and if the husband
had four wives at the time of divorce, he can take another wife after the period
of iddat.
2. Dower ­ Dower becomes payable immediately if the marriage was consummated,
otherwise, the wife is entitled to half of the amount specified in dower. If no
amount is specified, she is entitled to 3 articles of dress. Where the marriage is
dissolved due to apostasy of the wife, she is entitled to whole of the dower if the
marriage has been consummated.
3. Inheritance ­ Mutual rights of inheritance cease after the divorce becomes
irrevocable.
4. Cohabitation ­ Cohabitation becomes unlawful after the divorce has become
irrevocable and children from such intercourse are illegitimate and cannot be
legitimated by acknowledgment as held in In Saiyyad Rashid Ahmad
vsAnisaKhatoon 1932.
5. Remarriage ­ Remarriage between the divorced couple is not possible until
1. the wife observes iddat
2. after iddat she lawfully marries another man
3. this intervening marriage is consummated
4. the new husband pronounces divorce or dies
5. the wife again observes iddat

A marriage done without the fulfillment of the above is irregular, not void. But
mere cohabitation after an irrevocable divorce is void.

6. Maintenance ­ The wife becomes entitled to maintenance during the period of

iddat but not during the iddat of death.
Q. What is Mahr? What is the importance of Mahr in
muslim marriage? "Dower is a debt in nature.",
what are its legal consequences? What are the
rights of a wife at the non­payment of dower?
What are the rights of a muslim widow to retain
possession of her husband's estate in lien of her
dower.Who can change the Mahr? Discuss various
kinds of Mahr. What is the difference between
deferred and non­deferred Mahr?
In pre Islamic Arabia, when the institution of marriage as we know it today was not
developed, many forms of sexual relationships existed. Some were hardly better than
prostitution. Men, after despoiling their wives, often turned them out, helpless and
without any means. Under this background, Islam tried to provide a just treatment for
wives. In Muslim Law, a husband can divorce his wife at his whim and to ensure that
the woman is not left helpless and without any means, the concept of Mahr was
brought in. It forces the husband to pay a certain amount to the wife either at the
time of marriage or at the time of dissolution of marriage. This amount acts as a
security to the wife in case she is turned out by the husband or in her old age.

Definition ­ As per Tyabji, Mahr is a sum that becomes payable by the husband to the
wife on marriage either by agreement between the parties or by operation of law. It
may either be prompt (Mu ajjal) or deferred (Mu wajjal). According to Amir Ali,
Mahr is a consideration which belongs absolutely to the wife.

In SaburunnessavsSabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is

like a contract where wife is the property and Mahr is the price or consideration.
However, it is also true that non­payment of Mahr does not void the marriage, so
Mahr is not purely a consideration.

Importance of Mahr
Marriage in Muslim Law provides an absolute power to the husband to divorce his
wife. It also allows the husband to have multiple wives. This often results in a
wife. It also allows the husband to have multiple wives. This often results in a
desperate situation for women because they are left with no means to support
themselves. Mahr mitigates this issue to certain extent. Therefore, Mahr is very
important for balancing the rights of the husband and wife. Mahr is an absolute
requirement of a Muslim marriage and so, even if Mahr is not specified at the time of
marriage, the law will presume it by virtue of the contract of marriage itself. Even if a
woman stipulates to forgo the Mahr, her declaration will be invalid.
In Abdul KadirvsSalima AIR 1980, J Mahmoodhas observed that the marriage
contract is easily dissoluble and the freedom of divorce and of polygamy to a husband
place the power in the hands of the husband, which the Muslim law intends to restrain
by the mechanism of Mahr. Thus, right of wife to her Mahr is a fundamental feature of
the marriage contract.
Thus, Mahr serves the following purposes ­

1. to impose an obligation of husband as a mark of respect to wife.

2. to place a check on the power of husband to divorce and polygamy.
3. to provide for subsistence of wife in the event she is divorced by the husband.

Nature of Mahr
Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the
husband to pay Mahr to wife upon marriage. A wife has an unrestricted right to
demand Mahr from husband. In Abdul KadirvsSalima AIR 1980, J
Mahmoodobserved that Mahr may be regarded as a consideration for concubial
intercourse by way of analogy to the contract for sale. It provides the woman with the
right to resist the husband until Mahr is paid. This right is akin to the right of lien of a
vendor upon sold goods while they remain in his possession and so long as the price
for the goods has not been paid. In SmtNasra Begum vsRizwan Ali AIR 1980, it
was held that right to dower precedes cohabitation. Thus, a wife can refuse
consummation of marriage until Mahr is paid.

The right of wife to her dower puts her in a similar position as that of other creditors.
Just like other creditors, she must be paid out of the property of the husband. Thus, it
can be said that Mahr is a kind of debt upon the husband incurred in marriage.
However, at the same time, payment of Mahr is not a charge upon the estate of the
husband, unless an agreement is made to that effect. The interest that a wife has
over the property of her husband in lieu of dower debt is limited to existing lawful
possession towards her self enjoyment only. It does not give her the right to alienate
the property. After the death of the husband, she can sue the heirs for the dower but
heirs are not personally liable for it. They are liable only to the extent of their share in
the inherited property.
A dower can also be secured by an agreement just like any other debt. In Syed
SabirHussainvsFarzandHussain, a father stood surety for payment of dower by his
minor son. After his death, his estate was held liable for the payment of his son's
dower.

Legal Consequences of Mahr (Rights of wife in case of non payment

of Mahr)
1. Dower is like a debt and the husband is liable to pay it to the wife before the
consummation of marriage. Until it is paid, the wife has a right to resist
cohabitation with the husband.
2. If the wife is in possession of husband's property, she has a right to retain it until
dower is paid. She does not get a title to the property and does not get a right to
 dower is paid. She does not get a title to the property and does not get a right to
alienate it.
3. Wife can sue heirs of the husband for payment of dower.
4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage
either due to divorce or due to death.
5. Dower is a vested right and not a contingent right. Thus, even after the death of
the wife, her heirs can demand it.
6. If dower has not been agreed upon at the time of marriage, courts can decide
the amount of dower by taking financial status of the husband, age of wife, cost
of living, property of wife, into consideration.

Right of wife over husband's property

Dower ranks as debt and the wife is entitled, along with other creditors, to have it
satisfied on the death of husband out of his estate. Her debt, however, is no greater
than any other unsecured creditor except that if she is lawfully in possession of the
husband's property, she is entitled to that possession until she is able to satisfy her
debt by the rents or issues accruing out of the property. She is also entitled to the
possession against the heirs of the husband until her dower is satisfied.

Limitations on right of retention ­

This right arises only after the death of the husband or after divorce. During the
course of marriage, a wife does not have any right to retain the property.
She should have obtained the possession lawfully.
Right to retention is not analogous to mortgage. Thus, she does not get title to the
property in case dower is not paid. Further, if the property is mortgaged, the wife
cannot retain possession against the mortgagee.
Wife cannot alienate the property. She has to satisfy the dower only though the rents
or other issues accruing from the property.

In a leading case of MainaBibi vs ChaudharyVakil Ahmad 1924, one Moinuddin

died leaving his widow MianaBibi and some property. The respondents instituted a suit
against the widow for immediate possession of the property. However, the widow
claimed that she had the right to possession until her dower was paid. It was held
that the respondents could have the possession of their share of the property after
paying the dower to the widow. The respondents did not pay and the widow continued
possession. Later, the widow sold the property. The deed showed that the widow tried
to convey an absolute title to the property. The respondents again filed the suit
claiming that the widow did not have the right to transfer property because she only
had a right to retain and did not have any right to title for herself. It was held by the
privy council that a widow has the right to retain the possession of the property
acquired peacefully and lawfully, until she is paid her dower. Further, she has no right
to alienate the property by sale, mortgage, gift, or otherwise.

Who can change Mahr

A husband can increase the amount of debt at any time, though he cannot decrease
it.
A wife can remit the dower wholly or partially. The remission of Mahr by wife is called
Hibe e Mahr. However, she should have attained puberty to do so. She does not have
to be a major to relinquish Mahr, only attaining puberty is sufficient. The remission
made by the wife should be with free consent. Thus, in Shah BanovsIftikhar
Mohammad 1956 Karachi HC, when a wife she was being ignored by husband and
thought that only way to win him back was to waive Mahr, her remission of Mahr was
considered without her consent and was not binding on her.
Kinds of Mahr

Mahr is of two kinds ­ Specified (Mahr i Musamma) and Customary or Proper (Mahr i
Misl)

Specified Dower means the dower that has been agreed upon by the parties at the
time of marriage. Such a dower can be settled before marriage, at the time of
marriage, or even after the marriage. In case of a minor or a lunatic, the guardian can
fix the amount of dower. Dower fixed by the guardian is binding upon the boy and
after attaining puberty or majority, he cannot take the plea that he was not a party to
it.
A husband can settle any amount as dower to his wife, even if that leaves nothing to
the heirs but he cannot settle for less that 10 dhirams in Sunni Law. Shia law has no
minimum. For those Muslims who are so poor that they cannot even pay 10 dhirams,
they can teach the wife Quran in lieu of paying Mahr.

Specified dower can further be divided into two categories ­ Prompt (Mu Ajjal) and
Deferred (Mu Wajjal).
Mu Ajjal­ As the names suggest, Mu ajjal dower means that the dower is payable
immediately upon the marriage.

1. The wife has a right to refuse cohabitation with the husband until she is paid the
dower.
2. If the wife is a minor, the guardian can refuse to allow the wife to be sent to the
husband until dower is paid.
3. Only after the payment of dower, the husband is able to enforce the conjugal
rights. However, if the marriage is consummated, the wife cannot refuse
cohabitation after that.
4. Prompt dower does not become deferred after consummation and the wife has
the right to demand and sue for it any time.
5. The period of limitation starts after demand and refusal and it is of three years.

Mu Wajjal ­ It means that the dower is payable upon dissolution of marriage either
by divorce or by death of husband.

1. Even though it is deferred, an agreement to pay be before is valid and binding.

2. A wife does not have a right to claim dower but a husband can treat it as prompt
and transfer property as payment.
3. A widow can relinquish her claim to dower at the time of the funeral of the
husband by reciting a formula, but her relinquishment must be a voluntary act.
4. The interest of wife in deferred dower is a vested one and her heirs can claim it
after her death.

Customary or Proper Mahr (Mahr i Misl)

When the amount of dower is not fixed in the marriage contract or even if the
marriage has been contracted on the condition that she will not claim any Mahr, the
wife is entitled to Proper Dower. The amount is to be arrived upon after taking into
consideration the amount of dower settled for other female members of the father's
family. It is also regulated with reference to the following factors ­

1. age, beauty, fortune, understanding and virtue of wife.

social position of the father
 2. social position of the father
3. dower given to her female paternal relations.
4. economic condition of the husband.
5. circumstances of the time.

There is no limit on the maximum limit in Sunni Law, but shia law prescribes a
maximum limit of 500 dhirams, which was the amount paid by Prophet Mohammad
for his daughter Fatima.

Differences between Shia and Sunni Law on Mahr

Sunni Law Shia Law
Minimum of 10 dhirams for specified dower. No minimum limit.
Dower above 500
No maximum limit for proper or specified dower. dhirams is considered
abominable but legal.
Dower shall be
If dower was not decided or marriage was done on condition
payable only if the
that no dower will be paid, dower shall be payable if marriage
marriage was
is dissolved by death irrespective of whether the marriage
consummated in this
was consummated or not.
case.
Such an agreement
An agreement that no dower shall be payable is void. by sane and adult
wife is valid.
Whole of dower is
In absence of a contract, only a reasonable part of the dower
presumed to be
is considered to be prompt. Rest is deferred.
prompt.

Q. Define Gift/Hiba. What are the three essentials

of Gift? Who can give gift? What are the kinds of
Gift? State the circumstances in which delivery of
possession of immovable property is not required
in making a gift. What gifts are void? What is
Mushaa? Explain with illustration. What is the
difference between HibaBilIwaz and Hiba Ba
ShartulIwaz?
Gift is a generic term that includes all transfers of property without consideration. In
India, Gift is considered equivalent to Hiba but technically, Gift has a much wider
scope than Hiba. The word Hiba literally means, the donation of a thing from which
the donee may derive a benefit. It must be immediate and complete. The most
essential element of Hiba is the declaration, "I have given".

As per Hedaya, Hiba is defined technically as, "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".
According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of
the property without any return.

The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a
property is called Ariya.

Essential Elements of a Gift

Since muslim law views the law of Gift as a part of law of contract, there must be an
offer (izab), an acceptance (qabul), and transfer (qabza). In
SmtHussenabivsHusensabHasan AIR 1989 Kar, a grandfather made an offer of
gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren.
However, no express of implied acceptance was made by a major grandson. Karnataka
HC held that since the three elements of the gift were not present in the case of the
major grandchild, the gift was not valid. It was valid in regards to the minor
grandchildren.

Thus, the following are the essentials of a valid gift ­

1. A declaration by the donor ­ There must be a clear and unambiguous intention of

the donor to make a gift.
2. Acceptance by the donee ­ A gift is void if the donee has not given his
acceptance. Legal guardian may accept on behalf of a minor.
3. Delivery of possession by the donor and taking of the possession by the donee.
In Muslim law the term possession means only such possession as the nature of
the subject is capable of. Thus, the real test of the delivery of possession is to
see who ­ whether the donor or the donee ­ reaps the benefits of the property. If
the donor is reaping the benefit then the delivery is not done and the gift is
invalid.

The following are the conditions which must be satisfied for a valid gift.

1. Parties ­ There must be two parties to a gift transaction ­ the donor and the
donee.
Conditions for Donor ­ (Who can give)
1. Must have attained the age of majority ­ Governed by Indian Majority Act 1875.
2. Must be of sound mind and have understanding of the transaction.
3. Must be free of any fraudulent or coercive advice as well as undue influence.
4. Must have ownership over the property to be transfered by way of gift.

A gift by a married woman is valid and is subjected to same legal rules and
consequences. A gift by a pardanashin woman is also valid but in case of a dispute the
burden of proof that the transaction was not conducted by coercion or undue influence
is on the donee.

Gift by a person in insolvent circumstances is valid provided that it is bona fide

and not merely intended to defraud the creditors.

Conditions for Donee (who can receive)

 1. Any person capable of holding property, which includes a juristic person, may be
the donee of a gift. A muslim may also make a lawful gift to a non­muslim.
2. Donee must be in existence at the time of giving the gift. In case of a minor or
lunatic, the possession must be given to the legal guardian otherwise the gift is
void.
3. Gift to an unborn person is void. However, gift of future usufructs to an unborn
person is valid provided that the donee is in being when the interest opens out
for heirs.

2. Conditions for Gift (What can be gifted) ­

1. It must be designable under the term mal.
2. It must be in existence at the time when the gift is made. Thus, gift of anything
that is to be made in future is void.
3. The donor must possess the gift.

Muslim law recognizes the difference between the corpus and the usufructs of a
property. Corpus, or Ayn, means the absolute right of ownership of the property which
is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the
right to use and enjoy the property. It is limited and is not heritable. The gift of the
corpus of a thing is called Hiba and the gift of only the usufructs of a property is called
Ariya.

In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that gift of
usufructs is valid in Muslim law and that the gift of corpus is subject to any such
limitations imposed due to usufructs being gifted to someone else. It further held that
gift of life interest is valid and it doesn't automatically enlarge into gift of corpus. This
ruling is applicable to both Shia and Sunni.

Subject of Gift ­ The general principle is that the subject of a gift can be ­

1. anything over which dominion or right of property may be exercised.

2. anything which may be reduced to possession.
3. anything which exists either as a specific entity or as an enforceable right.
4. anything which comes within the meaning of the word mal.

In Rahim BuxvsMohd.Hasen 1883, it was held that gift of services is not valid
because it does not exist at the time of making the gift.

Gift of an indivisible property can be made to more than one persons.

3. Extent of Donors right to gift ­ General rule is that a donors right to gift is
unrestricted. In RaneeKhajoorunissavsMstRoushanJahan 1876, it was recognized
by the privy council that a donor may gift all or any portion of his property even if it
adversely affects the expectant heirs. However, there is one exception that the right
of gift of a person on death bed (Marzulmaut) is restricted in following ways ­ He
cannot gift more than one third of his property and he cannot gift it to any of his
heirs.

Kinds of Gift
There are several variations of Hiba. For example, HibabilIwaz, HibabaShartulIwaz,
There are several variations of Hiba. For example, HibabilIwaz, HibabaShartulIwaz,
Sadkah, andAriyat.

HibaBilIwaz ­ Hiba means gift and Iwaz means consideration. HibaBilIwaz means
gift for consideration already received. It is thus a transaction made up of two mutual
or reciprocal gifts between two persons. One gift from donor to donee and one from
donee to donor. The gift and return gift are independent transactions which together
make up HibabilIwaz.

In India, it was introduced as a device for effecting a gift of Mushaa in a property

capable of division. So a HibaBilIwaz is a gift for consideration and in reality it is a
sale. Thus, registration of the gift is necessary and the delivery of possession is not
essential and prohibition against Mushaa does not exist. The following are requisites
of HibabilIwaz ­

1. Actual payment of consideration on the part of the donee is necessary. In

KhajoorunissavsRaushanBegam 1876, held that adequacy of the
consideration is not the question. As long is the consideration is bona fide, it is
valid no matter even if it is insufficient.
2. A bona fide intention on the part of the donor to divest himself of the property is
essential.

Gift in lieu of dower debt ­ In Gulam Abbas vsRazia AIR 1951, All HC held that an
oral transfer of immovable property worth more than 100/­ cannot be validly made by
a muslim husband to his wife by way of gift in lieu of dower debt which is also more
than 100/­. It is neither Hiba nor HibabilIwaz. It is a sale and must done through a
registered instrument.

HibabaShartulIwaz ­ Shart means stipulation and HibabaShartulIwaz means a

gift made with a stipulation for return. Unlike in HibabilIwaz, the payment of
consideration is postponed. Since the payment of consideration is not immediate the
delivery of possession is essential. The transaction becomes final immediately upon
delivery. When the consideration is paid, it assumes the character of a sale and is
subject to presumption (Shufa). As in sale, either party can return the subject of the
sale in case of a defect. It has the following requisites ­

1. Delivery of possession is necessary.

2. It is revocable until the Iwaz is paid.
3. It becomes irrevocable after the payment of Iwaz.
4. Transaction when completed by payment of Iwaz, assumes the character of a
sale.

In general, HibabilIwaz and HibabaShartulIwaz are similar in the sense that they are
both gifts for a return and the gifts must be made in compliance with all the rules
relating to simple gifts.

Differences between Hiba, HibabilIwaz, and HibabaShartulIwaz ­

 Hiba HibabilIwaz HibabaShartulIwaz
Ownership in
Ownership in property is transferred Ownership in property is
property is
for consideration called iwaz. But transferred for consideration
transfered
there is no express agreement for a called iwaz, with an express
without
return. Iwaz is voluntary. agreement for a return.
consideration.
Delivery of
Delivery of possession is NOT Delivery of possession is
possession is
essential. essential.
essential.
Gift of mushaa
where a
Gift of mushaa even where a Gift of mushaa where a
property is
property is divisible is valid. property is divisible is invalid.
divisible is
invalid.
Barring a few
It is revocable until the iwaz
exceptions it is It is irrevocable.
is paid. Irrevocable after that.
revocable.
In its inception it is a gift but
It is a pure gift. It is like a contract of sale. becomes a sale after the iwaz
is paid.

Exceptions in delivery of possesssion

The following are the cases where deliver of possession by the donor to the donee is
not required ­

1. Gift by a father to his minor or lunatic son. In MohdHesabuddinvsMohd.

Hesaruddin AIR 1984, the donee was looking after the donor, his mother while
other sons were neglecting her. The donor gifted the land to the donee and the
donee subsequently changed the name on the land records. It was held that it
was a valid gift even though there was no delivery of land.
2. When the donor and the donee reside in the same house which is to be gifted. In
such a case, departure of the donor from the house is not required.
3. Gift by husband to wife or vice versa. The delivery of possession is not required if
the donor had a real and bona fide intention of making the gift.
4. Gift by one co­sharer to other. Bona fide intention to gift is required.
5. Part delivery ­ Where there is evidence that some of the properties in a gift were
delivered, the delivery of the rest may be inferred.
6. Zamindari villages ­ Delivery is not required where the gift includes parcels of
land in zamindari if the physical possession is immpossible. Such gift may be
completed by mutation of names and transfer of rents and incomes.
7. Subject matter in occupation of tenant ­ If a tenant is occupying the property the
gift may be affected by change in ownership records and by a request to the
tenant to attorn the donee.
8. Incorporeal rights ­ The gift may be completed by any appropriate method of
transfering all the control that the nature of the gift admits from the donor to the
donee. Thus, a gift of govt. promissory note may be affected by endorsement
and delivery to the donee.
9. Where the donee is in possession ­ Where the donee is already in possession of
the property, delivery is not required. However, if the property is in adverse
 Where the donee is in possession ­ Where the donee is already in possession of
the property, delivery is not required. However, if the property is in adverse
possession of the donee, the gift is not valid unless either the donor recovers the
possession and delivers it to donee or does all that is in his power to let the
donee take the possession.

Void Gifts
The following gifts are void ­

1. Gift to unborn person. But a gift of life interest in favor on a unborn person is
valid if he comes into existence when such interest opens out.
2. Gifts in future ­ A thing that is to come into existence in future cannot be made.
Thus, a gift of a crop that will come up in future, is void.
3. Contingent gift ­ A gift that takes affect after the happening of a contingency is
void. Thus a gift by A to B if A does not get a male heir is void.

Gift with a condition

A gift must always be unconditional. When a gift is made with a condition that
obstructs its completeness, the gift is valid but the condition becomes void. Thus, if A
gifts B his house on a condition that B will not sell it or B will sell it only to C, the
condition is void and B takes full rights of the house.

Mushaa (Hibabilmushaa)
Mushaa means undivided share in a property. The gift of undivided share in an
indivisible property is valid under all schools but there is no unanimity of opinion
amongst different schools about gift of undivided share in a property that is divisible.
In Shafai and IthnaAsharia laws it is valid if the donor withdraws his control over the
property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is
separated and delivered to the donee.

Illustration ­
A, B, and C are the co­owners of a house. Since a house cannot be divided, A can give
his undivided share of the house to D in gift.
A, B, and C are the co­owners of 3 Tons of Wheat, under Shafai and IthnaAhsharia
law, A can give his undivided share of the wheat to D if he withdraws control over it
but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers
the possession of 1 ton of wheat to D.

In case of KashimHussainvs Sharif Unnisa 1883, A gifted his house to B along

with the right to use a staircase, which was being used by C as well. This gift was held
valid because staircase is indivisible.

Revocation of a Gift
Under muslim law, all volutary transactions are revocable and so under Hanafi law a
gift is also generally revocable, though it is held to be abominable. In Shia law, a gift
can be revoked by mere declaration while in Sunni law, it can be revoked only by the
intervention of the court of law or by the consent of the donee.

The following gifts, however, are absolutely irrevocable ­

1. When the donor is dead.

2. When the donee is dead.
When the donee is related to the donor in prohibited degrees on consanguinity.
 3. When the donee is related to the donor in prohibited degrees on consanguinity.
However, in Shia law, a gift to any blood relative is irrevocable.
4. When donor and the donee stand in marital relationship. However, in Shia law, a
gift to husband by wife or vice versa is revocable.
5. when the subject of the gift has been transfered by the donee through a sale or
gift.
6. when the subject of the gift is lost or destroyed, or so changed as to lose its
identity.
7. when the subject of the gift has increased in value and the increment is
inseparable.
8. when the gift is a sadqa.
9. when anything as been accepted in return.

Q. Define Wakf and explain the essentials of a valid Wakf.

What are different kinds of Wakf? How is Wakf created?
Can a Wakf be created only for the benefit of one's
family? What is the difference between contingent and
conditional Wakf? When is Wakf complete? What are the
legal consequences of a valid Wakf? Can a Wakf be
revoked? Define Mutawalli. Who can be a Mutwalli? Who
are incompetent to be Mutwalli? By whom can he be
appointed? Can a Mutwalli be removed? How?
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazimvs
A Asghar Ali AIR 1932. Technically, it means a dedication of some specific property
for a pious purpose or secession of pious purposes. As defined by Muslim jurists such
as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the
waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor,
or other good objects, in the manner of areeat or commodate loan.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a person
professing the Islam, of any movable or immovable property for any purpose
recognized by Muslim Law as religious, pious, or charitable."

Essentials of a valid Wakf

1. Permanent Dedication of any property ­ There are actually three aspects in

this requirement. There must be a dedication, the dedication must be permanent, and
the dedication can be of the property. There is no prescribed form of dedication. It
this requirement. There must be a dedication, the dedication must be permanent, and
the dedication can be of the property. There is no prescribed form of dedication. It
can be written or oral but it must be clear to convey the intention of dedication.
According to Abu Yusuf, whose word is followed in India, mere declaration of
dedication is sufficient for completion of Wakf. Neither delivery of possession or
appointment of Mutawalli is necessary.

The dedication must be permanent . A temporary dedication such as for a period of 10

yrs or until death of someone is invalid.

The subject of Wakf can be any tangible property (mal) which can used without being
consumed. In Abdul Sakurvs Abu Bakkar 1930, it was held that there are no
restrictions as long as the property can be used without being consumed and thus, a
valid Wakf can be created not only of immovable property but also of movable
property such as shares of a company or even money. Some subjects that Hanafi law
recognizes are immovable property, accessories to immovable property, or books.

The subject of the Wakf must be in the ownership of the dedicator, wakif. One cannot
dedicate someone else's property.

2. By a Muslim­ AWakf can only be created by a Muslim. Further, the person must
have attained the age of majority as per Indian Majority Act and should be of sound
mind.

3. For any purpose recognized by Muslim Law ­ The purpose is also called the
object of Wakf and it can be any purpose recognized as religious, pious, or charitable,
as per Muslim Law. It is not necessary that a person must name a specific purpose.
He can also declare that the property may be used for any welfare works permitted by
Shariat.
In Zulfiqar Ali vsNabiBux, the settlers of a Wakf provided that the income of certain
shops was to be applied firstly to the upkeep of the mosque and then the residue, if
any, to the remuneration of the mutawalli. It was held to be valid however, it was also
pointed out that if a provision of remuneration was created before the upkeep of the
mosque, it would have been invalid.
The following are some of the objects that have been held valid in several cases ­
Mosques and provisions of Imam to conduct worship, celebrating birth of Ali Murtaza,
repairs of Imambaras, maintenance of Khanqahs, burning lamps in mosques, payment
of money to fakirs, grant to an idgah, grant to colleges and professors to teach in
colleges, bridges and caravan sarais.

In KunhamuttyvsAhmanMusaliar AIR 1935, Madras HC held that if there are no

alms, the performing of ceremonies for the benefit of the departed soul is not a valid
object.

Some other invalid objects are ­ building or maintaining temple or church, providing
for the rich exclusively, objects which are uncertain.

Shia Law ­ Besides the above requirements, Shia law imposes some more
requirements for a valid Wakf. There are ­

1. Delivery of possession to the first person in whose favour the Wakf has been
created is essential.
2. Dedication must be absolute and unconditional.
 3. The property must be completely taken away from the wakif. It means that the
wakif cannot keep or reserve any benefit or interest, or even the usufructs of the
dedicated property.

Creation of Wakf
Muslim law does not prescribe any specific way of creating a Wakf. If the essential
elements as described above are fulfilled, a Wakf is created. Though it can be said
that a Wakf is usually created in the following ways ­

1. By an act of a living person (inter vivos) ­ when a person declares his

dedication of his property for Wakf. This can also be done while the person is on
death bed (marjulmaut), in which case, he cannot dedicate more than 1/3 of
his property for Wakf.
2. By will­ when a person leaves a will in which he dedicates his property after his
death. Earlier it was thought that Shia cannot create Wakf by will but now it has
been approved.
3. By Usage ­ when a property has been in use for charitable or religious purpose
for time immemorial, it is deemed to belong to Wakf. No declaration is necessary
and Wakf is inferred.

Kinds of Wakfs
A Wakf can be classified into two types ­ Public and Private. As the name suggests,
a public Wakf is for the general religious and charitable purposes while a private Wakf
is for the creators own family and descendants and is technically called
Wakfalalaulad. It was earlier considered that to constitute a valid wakf there must
be a complete dedication of the property to God and thus private wakf was not at all
possible. However, this view is not tenable now and a private wakf can be created
subject to certain limitation after Wakf Validating Act 1913. This acts allows a private
wakf to be created for one's descendants provided that the ultimate benefits are
reserved for charity. Muslim Law treats both public and private wakfs alike. Both types
of wakf are created in perpetuity and the property becomes inalienable.

Wakfalalaulad (can a wakf be created for one's family?)

Wakf on one's children and thereafter on the poor is a valid wakf according to all the
Muslim Schools of Jurisprudence. This is because, under the Mohammedan Law, the
word charity has a much wider meaning and includes provisions made for one's own
children and descendants. Charity to one's kith and kin is a high act of merit and a
provision for one's family or descendants, to prevent their falling into indigence, is
also an act of charity. The special features of wakf­alal­aulad is that only the
members of the wakif’s family should be supported out of the income and revenue of
the wakf property. Like other wakfs, wakfalal­aulad is governed by Muhammadan Law,
which makes no distinction between the wakfs either in point of sanctity or the legal
incidents that follow on their creation. Wakfalalaulad is, in the eye of the law, Divine
property and when the rights of the wakif are extinguished, it becomes the property
of God and the advantage accrues to His creatures. Like the public wakf, a wakf­alal­
aulad can under no circumstances fail, and when the line of descendant becomes
extinct, the entire corpus goes to charity.
The institution of private wakf is traced to the prophet himself who created a
benefaction for the support of his daughter and her descendants and, in fact, placed it
in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one's own family. However, the ultimate
benefit must be for some purpose which is recognized as pious, religious or charitable
by Islam.

Quasi publicWakf
Some times a third kind of wakf is also identified. In a Quasi publicwakf, the primary
object of which is partly to provide for the benefit of particular individuals or class of
individuals which may be the settler's family, and partly to public, so they are partly
public and partly private.

Contingent Wakf
A wakf, the creation of which depends on some event happening is called a contingent
wakf and is invalid. For example, if a person creates a wakf saying that his property
should be dedicated to god if he dies childless is an invalid wakf. Under shia law also,
a wakf depending on certain contingencies is invalid.
In KhaliluddinvsShri Ram 1934, a muslim executed a deed for creating a wakf,
which contained a direction that until payment of specified debt by him, no proceeding
under the wakfnama shall be enforceable. It was held that it does not impose any
condition on the creation of the wakf and so it is valid.

Conditional Wakf
If a condition is imposed that when the property dedicated is mismanaged, it should
be divided amongst the heirs of the wakf, or that the wakif has a right to revoke the
wakf in future, such a wakf would be invalid. But a direction to pay debts, or to pay
for improvements, repairs or expansion of the wakf property or conditions relating to
the appointment of Mutawalli would not invalidate the wakf. In case of a conditional
wakf, it depends upon the wakif to revoke the illegal condition and to make the wakf
valid, otherwise it would remain invalid.

Completion of wakf
The formation of a wakf is complete when a mutawalli is first appointed for the wakf.
The mutalwalli can be a third person or the wakif himself. When a third person is
appointed as mutawalli, mere declaration of the appointment and endowment by the
wakif is enough. If the wakif appoints himself as the first mutawalli, the only
requirement is that the transaction should be bona fide. There is no need for physical
possession or transfer of property from his name as owner to his name as mutawalli.

In both the cases, however, mere intention of setting aside the property for wakf is
not enough. A declaration to that effect is also required.

In Garib Das vs M A Hamid AIR 1970, it was held that in cases where founder of
the wakf himself is the first mutawalli, it is not necessary that the property should be
transferred from the name of the donor as the owner in his own name as mutawalli.

Shia law ­

1. Delivery of possession to the mutawalli is required for completion when the first
mutawalli is a third person.
2. Even when the owner himself is the first mutawalli, the character of the
 2. Even when the owner himself is the first mutawalli, the character of the
ownership must be changed from owner to mutawalli in public register.

Legal Consequences (Legal Incidents) of Wakf

Once a wakf is complete, the following are the consequences ­

1. Dedication to God ­ The property vests in God in the sense that no body can
claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held
that even in wakfalalaulad, the property is dedicated to God and only the
usufructs are used by the descendants.
2. Irrevocable ­ In India, a wakf once declared and complete, cannot be revoked.
The wakif cannot get his property back in his name or in any other's name.
3. Permanent or Perpetual ­Perpetuality is an essential element of wakf. Once
the property is given to wakf, it remains for the wakffor ever. Wakf cannot be of a
specified time duration. In MstPeeranvs Hafiz Mohammad, it was held by
Allahbad HC that the wakf of a house built on a land leased for a fixed term was
invalid.
4. Inalienable ­ Since Wakf property belongs to God, no human being can alienate
it for himself or any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use ­ The usufructs of the wakf property can only be used
for pious and charitable purpose. It can also be used for descendants in case of a
private wakf.
6. Extinction of the right of wakif ­ The wakif loses all rights, even to the
usufructs, of the property. He cannot claim any benefits from that property.
7. Power of court's inspection ­ The courts have the power to inspect the
functioning or management of the wakf property. Misuse of the property of
usufructs is a criminal offence as per Wakf Act.1995.

Revocation of Wakf
In India, once a valid wakf is created it cannot be revoked because no body has the
power to divest God of His ownership of a property. It can neither be given back to
the wakif nor can it be sold to someone else, without court's permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of revocability,
the wakf is invalid. However, if the wakf has not yet come into existence, it can be
canceled. Thus, a testamentary wakf can be canceled by the owner himself before his
death by making a new will. Further, wakf created on death bed is valid only up till
1/3 of the wakif's property. Beyond that, it is invalid and the property does not go to
wakf but goes to heirs instead.

Mutawalli
Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee
of the property. He is only a superintendent whose job is the see that the usufructs of
the property are being utilized for valid purpose as desired by the wakif. He has to see
that the intended beneficiaries are indeed getting the benefits. Thus, he only has a
limited control over the usufructs.
In Ahmad Arifvs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli
has no power to sell, mortgage, or lease wakf property without prior permission of the
court or unless that power is explicitly provided to the mutawalli in wakfnama.

Who can be a mutawalli­ A person who is a major, of sound mind, and who is
capable of performing the functions of the wakf as desired by the wakif can be
appointed as a mutawalli. A male or female of any religion can be appointed. If
religious duties are a part of the wakf, then a female or a non­muslim cannot be
appointed as a mutawalli. A male or female of any religion can be appointed. If
religious duties are a part of the wakf, then a female or a non­muslim cannot be
appointed.
In ShaharBanovs Aga Mohammad 1907, Privy council held that there is no legal
restriction on a woman becoming a mutawalli if the duties of the wakf do not involve
religious activities.

Who can appoint a mutawalli ­ Generally, the wakif appoints a mutawalli. He can
also appoint himself as a mutawalli. If a wakf is created without appointing a
mutawalli, in India, the wakf is considered valid and the wakif becomes the first
mutawalli in Sunni law but according to Shia law, even though the wakf remains
valid, it has to be administered by the beneficiaries. The wakif also has the power to
lay down the rules to appoint a mutawalli. The following is the order in which the
power to nominate the mutawalli transfers if the earlier one fails ­

1. founder
2. executor of founder
3. mutawalli on his death bed
4. the court, which should follow the guidelines ­
1. it should not disregard the directions of the settler but public interest must
be given more importance.
2. preference should be given to the family member of the wakif instead of
utter stranger.

Powers of a mutawalli ­ Being the manager of the wakf, he is in charge of the

usufructs of the property. He has the following rights ­

1. He has the power to utilize the usufructs as he may deem fit in the best interest
of the purpose of the wakf. He can take all reasonable actions in good faith to
ensure that the intended beneficiaries are benefited by the wakf. Unlike a
trustee, he is not an owner of the property so he cannot sell the property.
However, the wakif may give such rights to the mutawalli by explicitly mentioning
them in wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court
upon appropriate grounds or if there is an urgent necessity.
3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three years and
for non­agricultural purpose for less than one year. He can exceed the term by
permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is
too small, he can apply to the court to get an increase.

Removal of a mutawalli ­
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif.
However, a mutawalli can be removed in the following situations ­

1. By court ­
1. if he misappropriates wakf property.
2. even after having sufficient funds, does not repair wakf premises and wakf
falls into disrepair.
3. knowingly or intentionally causes damage or loss to wakf property. In
BibiSadique Fatima vsMahmoodHasan AIR 1978, SC held that using
 BibiSadique Fatima vsMahmoodHasan AIR 1978, SC held that using
wakf money to buy property in wife's name is such breach of trust as is
sufficient ground for removal of mutawalli.
4. he becomes insolvent.
2. By wakf board ­ Under section 64 of Wakf Act 1995, the Wakf board can
remove mutawalli from his office under the conditions mentioned therein.
3. By the wakif ­ As per Abu Yusuf, whose view is followed in India, even if the
wakif has not reserved the right to remove the mutawalli in wakf deed, he can
still remove the mutawalli.

Q. Discuss the nature and meaning of will. What

are the essentials of a valid muslim will? Who can
make a will? What are the formalities necessary for
a valid will? What restrictions are imposed on a
Muslim's testamentary disposition? Explain.
Distinguish between shia and sunni laws regarding
will.
Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but
also has other meanings. It may signify a moral exhortation, a specific legacy, or the
capacity of the executor. In general, a will means a document containing the desire,
regarding how a person wants to utilize or divide his property, after he is dead.
According to section 2(h) of Indian Succession Act 1925, 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.

For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers

to the testator a means to change the course of inheritance to certain extent and to
recognize the value of those relatives who are excluded from inheritance or strangers
who might have helped him in life or in last moments. Prophet Mohammad has
declared that this power is not unrestricted and should not be exercised to the injury
of the lawful heirs.

Essentials of a valid Muslim will

1. Competency of the testator (who can make the will)
Any Muslim, including a man or a woman, who is major and is of sound mind can
make a will. Regarding wills, the age of majority is governed by Indian Majority
Act. A will made by a minor is invalid but it can be validated by ratification after
he attains majority. A person of unsound mind is not competent to make a will
 Act. A will made by a minor is invalid but it can be validated by ratification after
he attains majority. A person of unsound mind is not competent to make a will
and a will made by such a person is invalid. A will made by a person while of
sound mind, who later becomes of unsound mind, becomes invalid.
In Abdul Manan Khan vsMirtuza Khan AIR 1991, Patna HC held that any
Mohammadan having a sound mind and not a minor may make a valid will to
dispose off the property. So far as a deed is concerned, no formality or a
particular form is required in law for the purpose of creating a valid will. An
unequivocal expression by the testator serves the purpose.
Will of a person committing suicide ­ Under Sunni Law the will of a person
committing suicide is valid. Under Shia law, a will made by the person who has
done any act towards committing suicide is invalid but if the will is made before
doing of any act towards committing suicide, it is valid.
2. Competency of the legatee
Any person capable of holding property may be the legatee under a will. Thus,
sex, age, creed, or religion are no bar. However, no one can be made the
beneficial owner of the shares against his will, therefore, to complete the
transfer, the legatee must give his express or implied consent to accepting the
legacy.
An institution can be a legatee.
A non­muslim can be a legatee if he is not an enemy of Islam and is not hostile
towards Islam.
In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of
the murderer was an accident, he can be a legatee otherwise not.
Unborn person ­ In Sunni Law, a child born within 6 months of the date of
making of the will is considered to be in existence and is a valid legatee. In Shia
law, the period is 10 months, which is the maximum period of gestation.
Bequest for a charitable object is valid.
3. Validity of the subject of will ­ To be able to will a property, it must be ­
1. capable of being transferred.
2. in existence at the time of testator's death even if it is not in existence at
the time of making will. Thus, a bequest cannot be made of any thing that is
to be performed or produced in future.
3. in the ownership of the testator.

A bequest that is to take effect only upon any uncertain event happening is a
contingent bequest, and is void. However, a bequest with a condition that
derogates from its completeness is valid and will take effect as if the condition
did not exist. For example, a grant is made to X for his life and then it is
stipulated to go to Y after death of X. In this case, X will get the grant
completely and Y will get nothing. Thus, a bequest of life estate is not valid
either under Shia or Sunni Law.

4. Extent of power of will ­ The testamentary power of a muslim is limited in

two ways ­
Limitations as regards to person ­ The general rule is laid down in Ghulam
Mohammad vsGhulamHussain 1932 by Allahbad HC, 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. Whether a person is a heir or not is determined at the
time of testator's death.
Under Shia law, a testator may bequest a heir as long as it does not exceed one
third of his property and no consent of other heirs is required. In
HussainiBegamvs Mohammad Mehdi 1927, it was held that if all the property
 HussainiBegamvs Mohammad Mehdi 1927, it was held that if all the property
was bequested to one heir and other were not given anything, the bequest was
void in its entirety.
Limitations as regard to the amount ­ The general principle is that a muslim
is not allowed to will more than 1/3rd of his property after taking out funeral
charges and debt. However, under Hanafi law, it may be valid if heirs give the
consent after the death of the testator. In Shia law, such consent can be taken
either before or after the death. Another exception is that if the testator has no
heir, he can will any amount. The govt. cannot act as a heir to the heirless
person.

Differences between Shia and Sunni Law on Will

Sunni Law Shia Law
Bequest to an heir without consent of other Bequest up to 1/3 of the property is
heirs is invalid. valid even without consent.
Bequest to unborn child is valid if the child is Valid if the child is born within 10
born within 6 months of making the will. months of making the will.
Legatee who causes death even by accident Legatee who causes death by
is incapable of receiving. accident is capable.
For a bequest of more than 1/3 to a non­heir,
Heir's consent may be obtained
the consent of heir must be obtained after
before or after death.
the death of testator.
Valid only if the will is made before
Will of a person committing suicide is valid. the person does any act towards
committing suicide.
Does not recognize rateable
Recognizes ratable distribution.
distribution.
The legacy lapses only if the legatee
If the legatee dies before testator, the legacy
dies without heirs otherwise, it goes
lapses and goes back to the testator.
to legatee's heirs.
Legatee must accept the legacy after the Legatee can accept the legacy even
death of the testator. before the death of the testator.

Differences between Will and Gift

Gift
It is an immediate transfer of right or
interest.
Delivery of possession is necessary.
Subject of gift must exist at the time
of making gift.
Right of donor is unrestricted.
Cannot be revoked.
Will
It is a transfer after death.
Delivery of possession is not necessary.
Subject of will must exist at the time of
death of the testator.
It is limited up to 1/3rd of the property.
Can be revoked by making another will.

Unknown at 09:02
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1 comment:

RoundtableNews 13 October 2022 at 03:14

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