Muhammadan Laws

Family Law-II Mohd. Law & Indian Succession Law (Karnataka State Law University)

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MUHAMMADAN LAW
Notes by Praveen Kumar

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Contents
UNIT 1 ........................................................................................................................................................... 4
1. Explain the sources of Islamic Law.................................................................................................... 4
2. Define Dower. What are its kinds? Discuss the nature and legal significance of Dower in Muslim
Law. 10
3. Write a note on essentials of marriage........................................................................................... 13
4. Write a note on Pre-emption (Shufaa). .......................................................................................... 21
5. Discuss Muta marriage under Muhammadan law.......................................................................... 26
6. Schools and Sub schools of Muslim Law ......................................................................................... 30
7. Difference Between SHIA & SUNNI Schools: .................................................................................. 37
8. Classification of Marriages .............................................................................................................. 39
9. State the importance of Shariat Act, 1937 dealing with the application of Muhammadan Law in
India. ....................................................................................................................................................... 41
UNIT 2 ......................................................................................................................................................... 45
10. Examine the effect of Apostasy of a Muslim on his/her marriage and succession rights. ......... 45
11. Apostasy ...................................................................................................................................... 46
12. Who are entitled to be the guardians of the person and property of a minor? When can a legal
guardian sell the immovable property of a minor Muslim? ................................................................... 50
13. Explain Acknowledgement of Paternity under Muslim Law ....................................................... 54
14. Discuss the Law relating to conversion to Muhammadanism .................................................... 58
UNIT 3 ..................................................................................................................................................... 60
15. Discuss how marriage under Muslim Law can be dissolved in various ways. ............................ 60
16. Who are entitled to claim maintenance ? Under which law a divorced Muslim Woman is
entitled to claim maintenance? Explain. ................................................................................................ 69
17. What are the grounds on which wife can claim divorce from her husband under the Divorce
Act, 1869 ? .............................................................................................................................................. 72
18. Bars to matrimonial remedies .................................................................................................... 73
19. Write a note on alimony under Indian Divorce Act. ................................................................... 77
UNIT 4 ......................................................................................................................................................... 80
20. Discuss the limitations on the testamentary power of a Muslim in bequeathing his properties
under a will. ............................................................................................................................................ 80

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 21. State the rules of succession applicable to a parsi dying intestate. ........................................... 83
22. Define Probate. Explain the procedure for obtaining probate. .................................................. 85
23. State the rules of succession applicable to a non parsi dying intestate. .................................... 86
24. What are the duties of an Executor or Administrator? .............................................................. 90
25. State and explain different kinds of domicile. ............................................................................ 94
26. What is the significance of succession certificate? State the procedure to obtain it................. 98
UNIT 5 ....................................................................................................................................................... 101
27. Explain the different kinds of legacies. When is a legacy deemed to be adeemed ? ............... 101
28. Describe the constitution, powers and functions of family courts........................................... 105
29. Write a note on powers of curator. .......................................................................................... 108
30. Write a note on unprivileged wills. ........................................................................................... 110
31. Write a note on Types of Wills: ................................................................................................ 116
32. Write a note on Invalid Wills..................................................................................................... 118
33. Write a note on Privileged Wills ............................................................................................... 120
34. Discuss the need for an Uniform Civil Code.............................................................................. 121
35. Wtite a Note on Mushaa ; (Undivided Share) ........................................................................... 124
36. Write a Note on Public and Private Waqf ................................................................................. 125

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 UNIT 1

1. Explain the sources of Islamic Law.

INTRODUCTION:
M L  I  That portion of Islamic Civil Law which is applied to Muslims as a Personal
Law. It consists of the injunctions of Quran, of the traditions introduced by practice of the Prophet, of the
common opinion of the jurists and of the analogical deductions of the Qiyas.
Muslim means one    I  I  S     G A  
as a Muslim continues to be a Muslim until he renounces Islam after attaining majority. Any person who
professes the Muhammadan religion is a Muslim who acknowledges that, there is one God and that
Muhammad is his prophet.
Q E  ‘  A  Abraham: It was held that a person may be a Muslim by
birth or by conversion. If one the parents of a child are Muslim the child is deemed as Muslim. Even if
the Parents convert to some other religion, the child is still Muhammadan.

Sources:
Sources of law signifies the original materials where the contents of that law are to be found and are made
available for people at large. Sources of Muslim law may be classified into two categories,
(A) The Primary (Shariah) Sources, Primary sources of Muslim law are those which the Prophet himself
directed to be the sources of Muslim law.
These are,
(1) The Quran,
(2) Sunnah or Hadith (Traditions),
(3) The Ijma and
(4) Qiyas. These sources are of highest quality and importance in their respective order of merit. The
whole of Muslim personal law is based on the primary sources. They are also called the formal sources of
Muslim law.
(B) The Secondary (Extraneous) Sources, These are those sources which are developments on the
foundations laid down by the primary sources. These are,
(1) Customs (Urf),
(2) Judicial precedents,
(3) Legislation and
(4) Justice, equity and good conscience.
These sources explain and modify the primary sources of Muslim personal law according to the changing
needs of the Islamic society.
Primary Sources:
1. QURAN :
The Quran is the first source of Muslim law in point of time as well as in importance. It regulates individual,
social, secular and spiritual life of Muslims. It contains the very words of God as communicated to Prophet
Muhammad through angel Gabriel. The Quran has now been codified. Quran is divided into 114 chapters
(Surahs) and 6236 verses (Ayats).

It deals with a variety of subjects and a very small part of it comes into the domain of law. Basically it is
mixture of religion, law and morality.

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It deals with the institutions of public prayer, fasting, pilgrimage, prohibition of wine and also topics on
marriage, divorce, inheritance, etc.
"Shariat" is the technical name for Allah's commandments. Shariat refers to all human actions; it is the
code of duties and injunctions.

There are five categories:

These categories, as stated by the scholars are:-
1- Permitted (Mubah)
2- Recommended (Mustahab)
3- Disapproved but not unlawful (Makruh)
4- Forbidden (Muharam)
5- Obligatory (Wajib)

1. The Permitted (mubah, Jã'iz ):

It is an act in which a sane person (mukalaf) who has reached his puberty has full freedom to do
it or leave it aside. There is no reward for performing it nor any punishment for neglecting it.

For instance, a mukalaf is free to choose the work that best suits him/her. He is free to
determine the food, clothing and residence he likes...etc. He is also free to use what suits his
inclinations, circumstances and abilities...on the condition that all his actions should not exceed
the limits and exceptions set by Islam.

2. The Recommended (mustahab):

It refers to the acts which are recommended but not obligatory. If one neglects them, he will not
be punished; however, if one performs them, he will be rewarded.

Greeting others, paying visits to friends and neighbours, giving alms, being tidy and elegant,
reciting the Quran, are but a few examples of recommended acts.

3. The Disapproved But Not Unlawful (makruh):

M means reprehensible, disliked, discouraged. An act which is disliked by Islam but not
prohibited. If one does a makrûh act, he will not be punished; however, if he refrains from it,
then he will be rewarded.
This law is very effective in blocking the ways ending in the commission of prohibited acts.
Examples of makruh are: urinating in stagnant water, sleeping till after sunrise, etc.

4. The Forbidden (muharam):

Harãm means forbidden, prohibited. An act from which one must abstain. If someone performs
a haram act, he will be punished either by the Islamic court or in the hereafter or both.

Examples of haram acts are premeditated killing, drinking wine, taking other people's property

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 by force, disseminating harmful ideas and distributing morally reprehensible books and
publications, and so on.

5. The Obligatory (the Wajib):

Wãjib: means obligatory, necessary, and incumbent. An act which must be performed. One will
be punished for neglecting a wajib act intentionally, e.g., the daily prayers.

Fasting, ruling justly, being kind to parents, enjoining good and forbidding evil, fighting
oppression and tyranny, having love and affection for the Prophet and his Household, being
truthful, obeying the orders of the Islamic state that rules by the Quran, are among the
unavoidably obligatory duties in Islam.

2. Sunnah or Hadith (The Traditions):

Just as the Quran is the express revelation on Prophet Mohammad, the Sunnah are implied revelations in
the precepts, sayings and actions of the Prophet, not written down in his lifetime, but preserved by
traditions and handed down by authorised agents. Whatever the Prophet said or did without reference
to God is treated as his traditions and considered to be the second source of Muslim law. Where the words
of God could not supply an authority for a given rule of law, 'Prophet's own word's and deeds' were
treated as an authority because it is believed that even his own sayings are derived from God.

Sunnah means the model behavior of the Prophet. Literal m  “      


Types of Sunnah:
The Sunnah means the actions and precepts of the Holy Prophet. Sunnah is the second source of Islamic
Law. It denotes the practice of Muhammad that he taught and practically instituted as teacher of
Shariah.

The Sunnah of Muhammad includes

1. His specific words (Sunnah Qawliyyah): All words, counsels or precepts of the Holy Prophet
2. Habits, practices (Sunnah al Fiiliyyah): Actions done by Prophet himself. His action, work and daily
practices, and
3. Silent approvals (Sunnah Taqririyyah): Things done in his presence without his disapproval. His silence
implying a tacit approbation on his part of any individual act committed by his disciples.
According to Muslim belief, Muhammad was the best example for Muslims, and his practices are to be
adhered to in fulfilling the divine injunctions, carrying out religious rites, and molding life in accordance
with the will of God.
The word "Sunnah" is also used to refer to religious duties that are optional, such as Sunnah salat.

A Hadith is one of various reports describing the words, actions, or habits of the Islamic
prophet, Muhammad. T A  H     The term comes from the
Arabic meaning a "report", "account" or "narrative". The narrations of "What the Prophet said, did or
tacitly allowed" is called Hadith.

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The Hadith literature is based on spoken reports that were in circulation in society after the death
of Muhammad. Hadith were evaluated and gathered into large collections during the 8th and 9th
centuries, generations after the death of Muhammad, after the end of the era of the "rightful" Rashidun
Caliphate, over 1,000 km from where Muhammad lived.
Depending on the number of reporters of the Hadith in each generation of reporters, it can be classified
into the general categories of Mutawatir ("consecutive") or Ahad ("single") Hadith.
“ “     H   “        H 
  

The significance of Hadith:

Some people nowadays incorrectly say that you do not need Hadith, and that Quran is enough for
guidance to the straight path.
The correct view and understanding is that many times the Quran gives the general principle of an
order; but to understand the order clearly in its fullest sense Hadith is required.

For example: A        “ hich he is going to teach tomorrow,
will look into a   “        
Similarly, the Quran tells the principle, but to get a comprehensive view Hadith is needed.

When Quran is silent on any subject, then that problem is solved by Sunnat and Hadith. But while giving
the solution to a problem it must be kept in mind that the solution is not adverse to the basics of Quran.

3. IJMA(Consensus of Opinions):
Ijma means the consensus of the companions and followers of the Prophet. Abdur Rahim defines it as
"the agreement of the jurists among the followers of Muhammad in a particular age on a particular
question." After the death of the Prophet, as the expansion of the Islamic influence took place, a large
number of new situations and new problems cropped up which could not be decided by reference only
to Quran and Hadith. The jurists then took the recourse to the principle of Ijma, that is, the consensus of
opinion of jurists on any question.
It is the "consensus of opinion" among the learned in the Muslim community. It is the majority view among
the scholars. Thus it became a communal legislation by the great authorities.

The authority of Ijma, as a source of law is based upon tradition, "My followers can never agree upon
what is wrong". But the jurists were not free to give the decisions without any basis. They had to justify
their opinions in the light of some well settled principles already given in the Quran or other traditions.
Public policy, interest of the community and equity were also taken into account as the basis for a new
explanation of law.
Ijma has made a worthy contribution to Islamic law since it has made possible changes to suit the needs
of changing times and usages.

Kinds of IJMA:
i) IJMA of Jurists.
ii) IJMA of companions of the Prophet: It is universally accepted.
iii) IJMA of People: This kind of IJMAA has not much importance.

4. The Qiyas (Analogical deduction):

Means "Analogical Deduction". Here, conclusions are drawn from analogical reasoning.

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 If there was any problem before the society on which the former three texts were silent then Qiyas was
applied to get the law. It was a method of comparing the problem of society with a similar problem for
which solution was given in the texts. A comparative study of the above three sources are done to solve
the problems faced.

Compared with other three primary sources of Islamic law, the Qiyas is of much lesser significance. The
reason is that with respect to analogical deductions, one cannot be certain that they are what the law
giver intended, such deductions resting as they do upon the application of human reasons which are
always liable to errors.

Opinions of judges and scholars were called fatawas. Fatawa Alamgiri is well known. Fatawa-e-
Alamgiri is a compilation of law created at the instance of the Mughal Emperor Aurangzeb (who was also
known as Alamgir). This compilation is based on Sunni HanafiIslam's Sharia law, and was the work of
many scholars, principally from the Hanafi school.

i) It is the last primary source.

ii) Qiyas means reasoning by analogy.
iii) Qiyas does not purport to create new law but merely to apply old established principles to new
Circumstances.
iv) Hanbals shias & shafis do not accept Qiyas.

While solving problems through Qiyas, it has to be considered that such things shall not be adverse to the
basics of Quran, Sunnah and Ijma.

Secondary Sources:
1. Urf or Custom:

Customs are never recognised as a source in Muslim Law but sometimes referred to as supplementing the
law. Muslim Law includes many rules of pre-Islamic customary laws, which have been embodied by
express or implied recognition.
Requirements of a valid custom:
i) Custom must be territorial.
ii) It must be existing from memorable time i.e. ancient.
iii) It must be continuous and certain and invariable.
iv) Custom should not oppose the public policies.
v) Custom must not be in contravention of Quran & IJMAA.

Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs require to be proved for their validity that
they are ancient, definite and earnable.

2. Judicial Decisions:
These include the decisions of Privy Council, the Supreme Court & High Courts of India. These decisions
are regarded as precedents for future cases. It becomes a source of Law.
Hammeera Bibee v/s Zubaida Bibi: In India interest on loan is not allowed, but in this case the Privy Council
allowed interest on the amount of unpaid dower.

3. Legislation:

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In India Muslims are also governed by various legislations passed either by Parliament or by the State
Legislature e.g.:
i) Guardian & Wards Act, 1890.
ii) The Shariat Act, 1937.
iii) Muslim Woman Protection of Right & Divorce Act, 1986.
iv) The Mussalman Waqf Act, 1923.
v) The Dissolution of Muslim Marriage Act, 1939.

4. Justice, Equity & Good Conscience:

This is also regarded as one of the sources.
a) Abu Hanifa: Expounded the principle that rule of law is based on analogy. These principle  I
or Juristic equity.
b) Maliki: Ibn-Anas proposes the use of Istiah i.e. seeking peace or amending & he followed it up by the
distinct method of juristic interpretation known as Istidal. However the main sources are
Quran, Sunnah and Ijma.

5. Other Sources:
Elements of Roman law, Customs in other countries, Equitable doctrines etc, are also considered as
minor sources of Muslim law.

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 2. Define Dower. What are its kinds? Discuss the nature and legal
significance of Dower in Muslim Law.
Introduction:
As per Q I              
permitted for          
Thus the custom originated in ancient times, with the payment husbands made to their wives as means
of support in their old age, or when turned out by them.
According to KP“ D               
or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract
       
In Muslim law of marriage, mehr is essential. It may be money or immovable property.

Definition:
Dower or mehr (Kanya Shulka) is a sum that becomes payable by the husband to the wife on marriage
either by agreement between the parties or by the operation of law. It may either be prompt or
deferred. A  W            e. It is the
technical Anglo Muhamma     M  A According to Amir Ali, D  
       M  D       
property which the wife is entitled to receive        

Nature:
The claim of the wife or widow for the unpaid portion of Mehr is an unsecured debt. It is an actionable
claim. It is due from the husband or his estate. She may recover or the heirs may recover.
If the husband refuses to pay prompt dower the guardian may refuse to send the minor wife to the
husband's place.

The wife may refuse to the husband, his conjugal rights. After consummation the husband cannot refuse
to pay the mehr.

Kinds Of Dower:
Dower may be divided into two kinds:
1. Specified dower:
This kind of dower is further divided into a) Prompt dower b) Deferred dower.

2. Customary Dower.
In Abdul Khadir Vs Salima, the court upheld the right of the wife to mehr if the marriage had been
consummated.

1. Specified Dower:
If the amount of dower is stated in the marriage contract, it is called the specified dower. Dower is settled
by the parties to the marriage either before the marriage or at the time of the marriage or even after the
marriage. If the parties to the marriage attained the age of puberty and are of sound mind they are
competent to settle among themselves the amount of dower. Guardians can settle the amount of dower
provided that at the time of settlement of dower, the boy is still minor or lunatic. Specified dower is again
sub divided into:

Prompt dower:

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 1. It is payable immediately after marriage on demand. A wife can refuse to enter into conjugal
domicile of husband until the payment of the prompt dower.
2. Prompt dower does not become deferred after consummation of marriage.
3. It is only on the payment of prompt dower that the husband is entitled to enforce conjugal rights.
4. Prompt dower is payable on demand.

Deferred dower:
1. It is payable on dissolution of marriage either by death or divorce. If wife dies, her heirs may claim,
the mehr. On husband's death or divorce, she may sue and recover.
2. The wife is not entitled to demand payment of deferred dower.
3. The widow may relinquish her dower at the time of her husb       
4. The interest of the wife in the deferred dower is a vested one and not a contingent one.

2. Customary Dover:
When the amount of the dower is not fixed in the marriage contract or even if the marriage has been
contracted on the condition that she should not claim any dower, the wife is entitled to a proper dower.
The amount of proper dower is settled by the          
sisters.

Determination of Proper Dower:

The proper dower is regulated with reference to the following factors:-
i) Personal qualification of wife, her age, beauty, fortune, understanding and virtue.
I “     
Iii) Dower given to her female paternal relations.
IV) Economic condition of her husband.
v) Circumstances of the time.

There is no limit to the maximum amount of proper dower under the Sunni Law but under the Shia law
the proper dower should not exceed 500 dhirams. This amount was fixed in the Marriage of Fatima the
Prophet daughter. In the case of Shia Muslims it is therefore considered a point of Honour not to
stipulate for a sum higher than the sum of dower fixed by the Prophet for his Daughter Fatima.

Legal Status:
Mehr is not only the right of the wife; it adds to her prestige and saves her in times of distress, or on
divorce or death of husband.
According to Muslim Law on the dissolution of marriage the wife can claim her dower money. It may be
higher or lower and depends upon on the source of income of the husband.
Further, it acts, as a check on the power of husband's right to "talak".
Mehr may be definite "fixed"' or indefinite ("not fixed").

Definite:
Mehar may be fixed orally or in writing (meharnama); it may be fixed, before, during or soon after
marriage.

Indefinite:
Generally mehr is fixed as above, but if not so fixed at the time of marriage, the wife may get the
amount fixed through court.

11
Legislature has been given powers to make laws. The court is not bound to award the amount of dower
according to the marriage deed (Oudh Law Act.1876), but only such sum as shall be reasonable with
reference to the means of husband and the Iddat of the wife as held in a case of Abdul Rehman v/s
Inayati Bibi-1931.
Mehr may be any amount; or immovable property or usufruct of property like rent etc. Any increase in
amount or property is allowed but reduction is void.

Widow's Right to Retention:

Mehr is a personal right of the widow. As such she has a right to hold the property until the amount is
fully paid. This is called the right to retention of property.
The leading case is Mina Bibi Vs. Chowdri Ahmad:
H died leaving his wife W who took possession of H's property. After a few years, some heirs of H filed a
suit for their share in the property.
The trial court decreed possession of property to the heirs, but fixed certain sums to be paid by them to
W towards her mehr. No money was paid. W gifted the property to K. Held gift was bad. But, W had the
right to retain the property until the mehr amount was fully paid. As she had gifted, she has no
possession, Hence, heirs need not pay.

Essentials of Right to Retention:

(i) Wife should be in possession of property with consent of husband.
(ii) She may exercise this right against the heirs of the deceased husband,
(iii) She is entitled to the use or benefits of property like rents etc., when she is in possession.
(iv) She has no title to property; hence she cannot transfer or sell.

The Supreme Court in Kapur Chand Vs Khader Unnissa has held thar the widow has no right to transfer
or sell the property.

12
 3. Write a note on essentials of marriage.
For a valid Islamic marriage, the following conditions must be satisfied:
1. The parties must have the capacity to marry
2. There must be a clear proposal and acceptance.
3. Free consent
4. No Legal disability

1. Capacity to marry:
At the time of marriage, both the parties i.e. the boy and the girl, must be competent to enter into the
contract of marriage. The parties are competent if they are
(a) Of the age of puberty,
(b) Of sound mind, and
(c) Muslims.

(a) Age of Puberty:

For purposes of marriage, dower and divorce, the age of majority under Muslim law is not eighteen
years. In respect of these matters the age of majority is considered to be equal to the age of puberty.
Age of puberty is an age at which a person is supposed to acquire sexual competency.

Keeping in view the practical difficulty of ascertaining the age of puberty by physical features, the
courts have presumed that the age of puberty is acquired on the completion of fifteen years.

The requirement of the age of puberty is essential not only because of competency for consummation,
but also because it is considered to be the age at which the parties can give their own consent for the
marriage. After attaining fifteen years, a person becomes mature enough to give consent for his or her
marriage. No consent of the guardian is necessary to validate the marriage.

M M
Under Muslim law a person who has not attained the age of puberty (fifteen years) is a minor. As such,
           A       a
guardian is void. If, on behalf of the minor, his or her guardian gives the consent, the marriage is lawful.

A             U M 
following persons are recognised as guardians for contracting the marriage of minors:
(1) Father,
(2) Paternal grandfather, how high so ever,
 B        
(4) Mother,
(5) Maternal uncle, aunt or other maternal relations.

It is to be noted that first of all the right of guardianship in marriage is given to the father. In the
absence of father this right passes on to the next guardian in the order of priority. In absence of any of
the above-         K     
Government.

13
T             A 
appointed by court for the protection of the person or the property of the minor has no right to
       of the court.

Shia Law:
Under Shia law, the only guardians for marriage are (1) the father, and (2) the paternal grand-father,
however high so ever. A marriage contracted by any other guardian must be expressly confirmed by
the minor on attaining puberty.

The Child Marriage Restraint Act, 1929 (as amended in 1978):

M                C
Marriage Restraint Act, 1929 (as amended in 1978). The object of this enactment is to prevent
marriages in which either of the parties is under a certain age limit.

The Act is applicable to every person in India, including Muslims. Section 2 of the amended Act provides
that the minimum age for marriage is 21 years for males and 18 years for the females. A marriage, in
which any of the parties is below the prescribed a     A    
         

E         M    summarized as
under:
 I     -ma      A      T
marriage exists and is perfectly valid.
 B             
cognizable offence and is to be punished under the Act.
 U “    A  -         
the Court before such a marriage takes place. Violation of such an injunction is also punishable.

Option of Puberty (Khyar-ul-Bulugh):

When a minor has           the contract of
marriage is valid and binding and it cannot be annulled by the minor on attaining puberty. But if a
marriage is contracted for a minor by any guardian other than the father or fa   
has the right to repudiate such marriage on majority. This right is called Khair-ul-Balgh which means
Option of Puberty.
I                 
pub        O        
puberty, opts to approve the marriage, it is considered to be a valid marriage since its very beginning.
U “        by the minor on attaining puberty. According to
Shia law, therefore, unless the minor on attaining majority, expressly ratifies the marriage, it is no
marriage at all in the eyes of law.

A           sonable time after attaining
puberty, failing which would result in the loss of such right. The right is lost if she after having attained
puberty permits the marriage to be consummated. If the consummation was without her consent the
right of repudiation will not be lost.

14
The dissolution of Muslim marriage act 1939 has considerably modified the law of option of puberty.
Prior to the Act the marriage is contracted for a minor girl by the father or grandfather, the minor has
no right to repudiate such marriage on majority. But according to Section 2 (7) of the act if the marriage
is contracted for a minor girl by the father or grandfather can also obtain a decree for divorce from the
court if the following conditions are satisfied.

 The marriage took place before the age of fifteen years

 She repudiated the marriage before attaining the age of eighteen years
 The marriage has not been consummated

The marriage does not dissolve merely by the exercise of option of puberty. Confirmation by court is
necessary for dissolution of marriage. However, only a formal approval by the court is sufficient; decree
is not necessary.

It may be noted that as the marriage does not dissolve without confirmation therefore, where any
spouse dies after the exercise of the option but       
entitled to inherit the properties of the deceased.

(b) Soundness of Mind:

At the time of the marriage, both the parties must be of sound mind.

Marriage of Insane Persons:

Marriage by an idiot is void. E            B 
              I 
               icable as are
       A        
guardian other than father or grandfather, has an option to repudiate the marriage on recovering his or
her reason.

(c) Religion of the Parties:

As the marriage is to be governed by the rules of Muslim law, both the parties have a right to marry a
Muslim, irrespective of sect or the sub-sect. Where both the parties are Muslims but they belong to
different sects (e.g. one is Shia and the other is Sunni), the marriage is inter-sect marriage. Inter-sect
marriages are perfectly valid.

Thus marriage of a Shia boy with a Sunni girl is valid. Similarly, the marriage of Hanafi boy with a girl
belonging to Shafie or the Ithna Asharia sect is also lawful. Under Muslim law so long as the religion of
both the parties is Islam, the validity of their marriage is not affected by any difference in the sect or
sub-sect. If the religion of the parties is different i.e. where one party is a Muslim but the other is a
non-Muslim, their marriage becomes an interreligious marriage.

Inter-Religious Marriage:
In respect of an inter-religious marriage, Sunni and Shai laws are different. The law is, therefore
discussed separately under both the schools.

Sunni law:

15
Under Sunni law, a boy is allowed to marry a Muslim girl of any sect and is also allowed to marry a
Kitabia girl. A girl is Kitabia if she belongs to a community the origin of which is believed from a
heavenly revealed kitab (book).

Under the law, Christians and Jews are regarded as the Kitabia communities. Thus, a Sunni male has a
right to contract a lawful marriage with a Christian or a Jewish woman; their marriage is perfectly valid.

If a Sunni male marries a female who is neither a Muslim nor Kitabia, the marriage is not void; it is
merely irregular (Fasid). As discussed in the following pages, an irregular marriage is neither valid nor
void.

As soon as the irregularity is removed, the irregular marriage becomes valid. For example, the marriage
of a Sunni boy with a Fire- worshipper (Parsi) or a Hindu girl is merely irregular and may be regularized
and treated as valid when the girl converts to Islam. That is to say, the marriage of a Sunni male with
any non-Muslim or non-Kitabia female is not void; it is merely irregular.

Shia law:
Shia male has no right to contract a marriage with any non-Muslim female. A Shia male cannot marry
even a Kitabia female. The marriage of a Shia man with a Hindu, Jew, Christian or a Fire Worshipping
woman is void.

However, a Shia male may contract a Muta-marriage with a Kitabia or a Fire worshipping (Parsi) female.

Marriage of a Muslim female with a non-Muslim male:

A Muslim female, whether Shia or Sunni, has no right to enter into a contract of marriage with any non-
Muslim male. If a Muslim female marries a Hindu, Jew or a Christian male, the marriage, under both
the schools of Muslim law, is void.

Law relating to inter-religious marriages under Muslim law may now be summarized, as under

Muslim male (of any sect) +

(i) Muslim female (of any sect) Marriage is valid.
(ii) Sunni male + Kitabia female Marriage is valid.
Sunni male + Female who is
(iii) neither Muslim nor Kitabia Marriage is irregular.
Shia male + Non-Muslim
(iv) female Marriage is void.
Muslim female + Non-Muslim
(v) male Marriage is void.

The Special Marriage Act, 1954:

A Muslim, whether male or female, can lawfully marry a non-Muslim under the Special Marriage Act,
 M    A     W    H 
Muslim etc.) contracts marriage under this Act, the marriage is not governed by the personal law
applicable to him.

16
Thus, if any Muslim contracts a marriage under this Act the marriage and its other incidents (i.e., rights
and duties of the parties) are regulated by the provisions of this Act and Muslim personal law is not
applicable.

Succession of the properties of the couples married under the Special Marriage Act, 1954, is governed
by the provisions of the Indian Succession Act, 1925, and not by the Muslim Law of inheritance.

2. Proposal and Acceptance:

Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at the
same meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made
at one meeting and acceptance made at another meeting does not make a valid Muslim marriage.
Neither writing nor any religious ceremony is essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims
who are of sound mind and have attained puberty or one male and two female witnesses who are
sane, adult and Muslim. Absence of witnesses does not render marriage void but makes it void able.

Under the Shia law, witnesses are not necessary at the time of marriage.
The proposal and acceptance need not be made in writing. Where the offer and acceptance are
reduced into writing,     Nah nama or Kabin-nama.

3. Free Consent of the Parties:

Consent is an essential element in a Muslim marriage. Where the parties to the marriage are sane and
adult, it is their own consent which is required. But if any one of them is a minor or an insane, then the
consent on his or her behalf must be given by the guardian. For a valid marriage, consent somehow
obtained, is not sufficient. The consent of the parties or of their guardians must be a free consent. If
the consent has not been given voluntarily and is not free, it is no consent at all. Consent is not free if it
is given under compulsion, fraud or mistake of fact.

Compulsion:
When the consent for a marriage is obtained by application of force, under threats, coercion or any
other compulsion, it is not free and it cannot be said that such a person has intended to what he or she
has consented. Under all schools of Muslim law except Hanafi if the consent of the parties or of their
guardians has been obtained under any compulsion, the marriage is void.

Hanafi Law:
Under Hanafi law, even if the consent has been given under compulsion, the marriage is valid. This
peculiar Hanafi rule may not appeal to a reasonable prudent man but its authority is not doubtful. It is
     A  G         
joke or earnest, shall be considered as serious and effectual; one, marriages, the second, divorce and
   

Shia Law:
It must be noted that the legality of a marriage under compulsion, is an exceptional rule peculiar only
to Hanafis; under other schools of Sunni sect and also under the Shia law such a marriage is void.

Fraud:

17
Fraud is committed where there has been a dishonest concealment of certain relevant facts or a false
statement in obtaining the consent for a marriage. If the consent has been obtained by playing fraud,
the marriage is voidable at the option of the party defrauded.

That is to say, when such a defrauded person comes to know that fraud was committed in the
marriage, he or she may either accept the marriage as lawful or reject it altogether. Where the
marriage is invalidated by rejection, it becomes void.

On the other hand, if such a person thinks that there is no harm in being deceived, he or she may
approve the marriage expressly or impliedly; the marriage then continues to be lawful.

Mistake of Fact:
Two persons are said to consent when they agree upon the same thing in the same sense. If at the time
of marriage both the parties, and their guardians, are under a mistake of fact relevant to their
marriage, there is no consent and the marriage is void. For example, if there is a mistake as to the
identity of the girl to whom the offer has been intended, the marriage is void because there is no
formation of a lawful contract.

4. No Legal disability:
Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The
prohibitions can be classified into two classes:

 Absolute Prohibition
 Relative prohibition

A) Absolute Prohibition:

1) Prohibited degrees of relationship:

Under the Muslim law marriage between persons who come within the blood relationship, or certain
other relationships is prohibited. The prohibited relationships are the following:

(a) Consanguinity:
Consanguinity means blood relationship and prohibits a man from marrying the following females:

1. His mother or grandmother (however high so ever)

2. His daughter or granddaughter (however low so ever)
3. His sister whether full blood half blood or uterine blood
4. His niece or great niece (however low so ever)
 H         however high so ever)

A marriage with a woman who comes within the relationship of Consanguinity is absolutely void.
Children born out of that wedlock are illegitimate.

(b) Affinity:

18
A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is
prohibited from marrying

1. His wife's mother or grandmother (however high so ever)

2. His wife's daughter or granddaughter (however low so ever)
3. His father's wife or paternal grandfather's wife (however high so ever)
4. Wife of one's own son or son's son or daughter's son (however low so ever)

A marriage with a woman within the relationship by affinity is void.

(c) Fosterage:
It means the milk relationship. When a child is breast-fed/suckled by a woman other than its own
mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons
having foster relationship.

According to Shia jurists fosterage includes the same limits of relationship prohibitive to marriage as
consanguinity. A man may not marry the following females:

1.His foster-mother or grandmother (however high so ever)

2.His foster-sister (daughter of foster mother)

However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the
general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with:

1.Sister's foster mother, or

2.Foster'-  
3.Foster-  
4.Foster-brother's sister.

2) Polyandry:
Polyandry means marrying more than one husband. Polyandry is a form of polygamy in which a woman
is having more than one husband at the same time. Under Muslim law Polyandry is prohibited and a
married woman cannot marry second time so long as the first marriage subsists and the husband is
alive. If a woman violated this prohibition and contracted a second marriage, the marriage is void and
the woman is liable to be punished for bigamy under section 494 of the Indian Penal Code.

B) Relative prohibition:
Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and
marriage in violation of such relative prohibitions will only be irregular and not void and at the moment
when the irregularity is removed the prohibition ends and the marriage becomes valid. The following
are the relative prohibitions.

1) Unlawful conjunction:
A man is prohibited from marrying two wives at the same time if they are related to each other by
    T  M          
B                   
wife. Marriage with two such wives is an Unlawful conjunction.

19
Under Sunni law a marriage in violation of the rule of unlawful conjunction is not void but only
irregular.

However under Shia law, a marriage in violation of the rule of unlawful conjunction is void. Under the
Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece without her
permission

2) Marrying a fifth wife (Polygamy):

Muslim law permits polygamy (Marrying more than one wife) with a restriction of a maximum of four
wives. So a Musalman can have four wives at the same time. If he marries a fifth wife when he has
already four, the marriage is not void, but merely irregular. But the fifth marriage can be made valid
after the death or divorce of any one of the four wives of his earlier marriages.
Under the Shia law marriage with the fifth wife is void.

In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act,
1954, can marry a second wife during the lifetime of his spouse.

3) Absence of proper witnesses:

A marriage must be contracted within the presence of proper and competent witnesses.
Under the Sunni law at least two male or one male and two female witnesses must be present to testify
that the contract was properly entered into between the parties. The witnesses must be of sound
mind, adult and Muslim. A marriage without witnesses is irregular.

Under the Shia law the presence of witnesses is not necessary. The marriage is contracted by the
spouses themselves or their guardians in private are held valid. The absence of witnesses does not
render the marriage void but only invalid.

4) Marriage during IDDAT:

Under Muslim law, a woman who is undergoing iddat is prohibited from marrying during that period.
Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by
divorce or death of her husband to remain in seclusion, and to abstain from marrying another husband.
The purpose behind that is to ascertain whether she is pregnant by earlier husband, so as to avoid
confusion of the parentage of the child.
The period of Iddat is prescribed as under:
1.In case termination marriage by divorce- three lunar months or three menstrual courses
2.In case of widow- 4 months and 10 days
3.In case the woman is pregnant - till the delivery
Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void.
Under Shia law a marriage with a woman who is undergoing Iddat is void.

20
 4. Write a note on Pre-emption (Shufaa).

Introduction:
It came with the Muslims rulers in India. The Hon'ble Apex Court tracing the origin and development of
law of Pre-emption in India has observed in the case of Sri Oudh Behari Singh v. Gajadhar Jaipuriya and
Others, that law of Pre-emption was introduced in this country by Muhammadans. During the period of
Mughal emperors, the law of Pre-emption was administered as a rule of common law of the land in
those parts of the country which came under the domination of the Muhammadan Rulers. In the course
of time, the Hindus came to adopt Pre-emption as a custom for reasons of convenience and the custom
is to be found in Provinces like Bihar and Gujarat which had once been integral part of Muhammadan
empire.

Definition:
It is a right which the owner of an immovable property possesses to acquire by purchase another
immovable property, which has been sold to another person (Mulla).

Object:
The principle of pre-emption was developed under the Muslim law, to prevent a stranger from
becoming a co-owner of the property, which may cause inconvenience. The right of pre-emption arises
only when a complete sale takes place.

Pre-emption:
Pre-emption is recognized when there are two or more co-owners. In case one co-owner sells his share,
the other co-owner has a preferential right to be the purchaser. Suppose a person died, leaving behind
two sons. His property was divided equally, among the brothers but one brother wants to sell off his
share to another person. Based on the right to pre-emption under Muslim law, he can be stopped by his
brother from doing so.

(i) Essentials:
(a) The preemptor must be an owner of immovable property and
(b) There must be a sale of certain properties, not his own.
The preemptor must stand in certain relationship, to the vendor in respect of property sold.

21
Govinda Dayal's Case: This is the leading case on the topic, Here the preemptor P and the vendor V
were Muslims. But the purchasers were Hindus. The question was whether in such a case the right of
preemption could be enforced against a non-Muslim.
The court decided that there was a right of pre-emption. Justice Mittar held that it was a repurchase
not, from the vendor but from the purchaser.

Justice Muhammad held: that the pre-emption is not a right, to repurchase from the vendee but it is a
right to substitute, which entitles the pre-emptor to stand in the shoes of the purchaser. It is applied
throughout India, as a matter of justice, equity and good conscience.

The Supreme Court has held: that the right of preemption was a right of substitution and not of
repurchase. It also held that the pre-emptor should make the demands after the "sale" is completed,
but not before (Radhakisarv Vs. Shridar). The sale must be under the Transfer of Property Act and
registration is essential. Hence, the demand is to be made after registration;

Number of Co-owners:
The Shia law recognizes the right of Shuffa, when there are only two co-owners.
However, the Sunni law recognizes this right, irrespective of the number of joint-owners. All the co-
owners are entitled to the right of Shuffa.

Who all Are Entitled for Pre-emption:

Under the Shia law no one else, but the two co-owners are entitled to this right.
However, as per Sunni law, the participator of immunities, appendages and the owner of an adjoining
property are also entitled to the right of pre-emption.
The Nature of Pre-Emption:
The right of pre-emption is in the nature of an easement, and is annexed to the land under Muslim law.
The right comes into existence on the sale of the adjacent property. The right to pre-emption is not a
right to a re-purchase, either from the vendor or from the vendee, but is simply a right of substitution,
entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the
shoes of the vendee in respect of the rights and obligations arising from the sale.

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

To Whom Applied:
The doctrine of pre-emption is applicable to all Muslims in general.

22
Sect of Either Party how Far Material:
If both the vendor and the pre-emptor belong to the same school, being either Sunnis or Shias, the law
of that school applies.

According to the Allahabad High Court, when one of them is a Shia, the Shia law will apply.

According to the Calcutta High Court, the law of the pre-emptor prevails, in case the vendor and the pre-
emptor do not belong to the same school of Muslim law.

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

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

Who can Claim Pre-Emption?

According to the Muhammadan law, the right of pre-emption appertains to the following persons:
(a) A co-sharer in the property. (Shafii-i-sharik)
(b) A participator in immunities, that is, a person having a right of way etc. (Shafii-i-khalit)
(c) A neighbor or owner of adjoining property, (Shafi-i-jar)

Priority:
As regards priority among different classes of pre-emptors, it may be noted that the first class excludes
the second, and the second excludes the third, if there are two or more pre-emptors belonging to the
property in respect of which the right is claimed. Thus, a Shafii-i- khalit has priority over a Shafi-i-jar.

Right when arises:

The right arises in case of sale or exchange.
Formalities (Three Demands):
In order that a claim for pre-emption should be held to be valid, no particular formula is necessary,
provided the claim is unequivocally asserted.

But, under the Sunni law, certain formalities are strictly to be observed. No person is entitled to a right
of pre-emption, unless he or his manager, or any other person previously authorised by him in his
behalf, has made the following three demands, viz.

(a) The first demandTalabi Muwa sibat. The preemptor must assert his claim immediately on hearing
of the sale. Witnesses are not necessary.

23
The delay in this is construed as an election not to pre-empt. A delay of 12 hours was considered as bad.
Hence is not allowed.
(b) The second demandTalabi Ish-had: The preemptor must without any delay make the second
demand. He must refer to the first demand in the presence of two witnesses and also the vendor or the
purchaser.
(c) The third demandTalabi Tamlik: This is not a demand but actually taking legal action. If the claim is
not considered then a suit may be brought. This is Talabi Tamlik. The period of limitation is one year.
According to the Supreme Court, Muhammadans should make the demands after the "sale" is
completed, but not before (FJadhakisan Vs. Shridar). The sale must be under the Transfer of Property
Act and registration is essential. Hence, the demand is to be made after registration.
Right when lost:
(a) The right is lost by acquiescence or waiver. This means not following the necessary formalities.
(b) The preemption is lost if the preemptor dies after the first two demands, but before filing a suit. But
if he dies pending a suit his legal representative may be brought on record.
(c) Release: The right is lost if the preemptor releases after taking some consideration.

Where preemption was based on custom, it becomes part of law of the land. Hence the law of
preemption founded on Islamic law is not void as being unconstitutional.

Legal effect:
The preemptor stands in all respects in the shoes of the buyer and takes the property subject to equities
if any. The ownership in the land is transferred to the pre-emptor, only when possession is given to him.
The decision of the court must specify giving deductions in respect of the extent of the property, cost
etc.

Constitutional Validity of Pre-Emption:

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

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

A Division Bench of the Bombay High Court has also observed that the law of pre-emption continued to
be valid law even after the enactment of the Constitution, and that it had not been rendered void by
Art. 13 read with Art. 19(1) (f) of the Constitution of India. (Bhimrao Eknath v. P. Ramkrishan, AIR 1960
Bom. 552)
Problems:
1. A, who owns a piece of land, grants a building              
sells it to C. Can A claim pre-emption?

24
Ans:
No. A is not entitled to pre-emption of the house; though the land on which it is built belongs to him, he
is neither a co-sharer, nor participator in the appendages of the house, nor an owner of adjoining
property. (Pershadi Lai v. Irshad Ali, (1870) 2 N. W. P 100)

 A         M        A     
a right of way through that house. N owns a house towards the south of as house, separated from as
house by a party wall and having a right of support from that house. Both M and N claim pre-emption of
the house sold to B. Who is entitled to a preferential claim of pre-emption?

Ans:
M, the owner of the dominant tenement, has, in respect of the sale of the servient tenement a right of
pre-emption as a Shafii-i-Khalit, which is superior to the right of N, who is merely a neighbour as regards
the property sold. (Karim v. Priyo LaI Bose, (1906) I. L. R. 28 All. 127)

25
 5. Discuss Muta marriage under Muhammadan law.

Introduction:
Muta Marriage (Temporary Marriage):
Muta literally means 'enjoyment or use'. Hence, Muta marriage is a marriage for pleasure. It is a
temporary marriage for a fixed period for a certain reward paid to the woman. The specified period may
be a day, a month, or a year or a term of years.
A special term is applied to women who participate in muta: mustajara, or 'rented woman'. Muta is
considered a kind of 'rental' because in general a man's basic aim in this kind of marriage is the sexual
enjoyment of a woman, and in return for his enjoyment the woman receives a certain amount of money
or property.

Origin of Muta Marriages:

In the earlier days of Islam, when the Arabs had to live away from their homes for a considerably long
period either on account of wars or on trade-journeys, they used to satisfy their sex-desires through
prostitutes. In order to avoid the development of prostitution in the society and to confer legitimacy
upon children of such unions, a temporary marriage was recognized and permitted by the Prophet for
some time. The institution of Muta was fairly common in Arabia both before and at the time of the
Prophet. But later on, when he felt that this concession was being exploited, he prohibited it absolutely.

Essentials:
Shia jurisprudence discusses temporary marriage with all the care it bestows upon permanent marriage.
Like permanent marriage, muta has 'pillars' and 'statutes'.
To the two pillars of permanent marriage-
The Formula and
The Persons-are added
The Time period and
The Dower.

(1) The Formula:

Since it is a contract, muta requires a declaration and an acceptance. As in permanent marriage, the
declaration is the prerequisite of the woman. The 'acceptance' is made by the man after the woman has
made her declaration.
The parties must have attained the age of puberty and must be of sound mind. The consent
of both the parties must be free. There must not exist any prohibited degree of relationship between
the parties.
(2) The Persons/Subject:

26
As regards the 'subject', a Shia male may contract Muta marriage with a Muslim, Christian, Jewish or a
fire-worshipping woman but not with the follower of any other religion. Muta marriage with a Hindu
woman is void.
If the man has a free, permanent wife, he cannot contract a muta with a slave without his wife's
permission. Should he do so, the contract is invalid or in abeyance pending her permission. If the slave
should belong to someone else, a muta cannot be contracted without her master's permission.

A man is not permitted to marry the daughter of his sister-in-law or brother-in-law without his wife's
permission. Should a contract be concluded without her permission it is invalid or in abeyance until she
gives her permission. With these two exceptions, the relatives to whom marriage is not permitted are
the same as in permanent marriage.
It is recommended that a Muslim man conclude a temporary marriage only with a chaste Muslim
woman.
The rule of limiting the number of wives to four as regards regular marriages, does not apply to Muta
marriage (Baillie). A Muslim male may contract Muta marriage with any number of women. A Muslim
woman is not free to contract Muta with a non-Muslim.

(3) The Term (Time Period/Mudda):

The period for which the Muta is being contracted, must be clearly specified. The time period must be
delineated in a manner which allows no possibility of increase or decrease.
There is no upper or lower limit to the duration of the time period. It makes no difference if the period is
extremely long, so that one doubts whether the parties will survive its duration; or if it is extremely
short, so that there is no possibility of consummation. In other words, any time period is permissible, so
long as both sides are aware of the situation and are satisfied.

A          M   N       
period has been specified the marriage becomes a Muta, whereas a marriage without any specific
period is always a Nikah.

The use of the word 'Muta' in itself does not render a marriage temporary. If a Muta form of marriage
has been contracted but its duration has not been specified, it is regarded as a permanent marriage
(Nikah).

According to al-Shaykh al-Ansari, all of the hadith indicate that it is permissible for the agreed upon time
period either to be joined to the moment of concluding the contract or to be postponed. The situation
here is the same as with a contract concluded for purposes of rental, since-as was pointed out above-the
woman takes on certain legal characteristics of rented property.

In the case of a temporary marriage which begins after a period of postponement, there arises the
question of whether or not the woman may marry a second man in the period between the conclusion
of the contract and the beginning of the marriage period.

27
Here there are two possibilities: that it is not permitted, because the woman already has a husband; or
that it is permitted, because of the existence of all the 'requisites of a contract' and the absence of an
impediment. Apparently the ruling here is that a second temporary marriage would be permissible
provided that the woman has enough time before the beginning of the first marriage to conclude a
second marriage and then to observe her waiting period.

As for the possibility of postponing the beginning of muta, this is conditional upon the stipulation of the
day and the month in which it is to begin. For example, if the man should state that the contract will be
for one month but fail to stipulate exactly when that month is to begin, the contract is invalid because
the time is not stated.

In contracts of rental, such instances are always invalid. But if the contract should be unconditional,
without any mention of a postponement, then the marriage begins as soon as the contract is concluded,
since, according to the accepted standard, when a contract has been concluded, the transaction has
taken place.

(4). Mehr (Dower):

The dower (consideration) must be specified at the time of the contract. If it is not specified the
agreement is void. When the term and the dower have been fixed, the contract is valid. If the term is
fixed, but the dower is not specified, the contract is void. But if the dower is specified and the term is
not fixed, the contract, though void as Muta, may operate as a "Permanent Marriage. It must be noted
that specification of the dower is necessary for the validity of a Muta form of marriage but it is not
essential for a permanent marriage (Nikah).

The contract must mention a dower of known property, whether in cash or kind, whose amount is safe
from increase or decrease. In order to gain knowledge of the property, it is sufficient for the woman to
see it, but it is not necessary that it actually be weighed, measured, or counted-whatever the case may
require.

There is no condition or requirement concerning the amount of the dower except that the two sides
come to an agreement over articles which may properly be exchanged, even if they are no more than a
few grains of wheat.

Legal incidents:
The following are the legal incidents of muta marriage,
1. No mutual rights of inheritance between parties are created. But if there is an express stipulation
that there should be mutual or unilateral right of inheritance, then this agreement will be enforced and
effective.
2. The children born out of such marriages are legitimate and have the right of inheritance from both
the parents.
3. The marriage is dissolved ipso facto on the expiry of the fixed period or by mutual consent or by
death of the either party.
4. Divorce is not recognised in muta marriage. The husband may, if he likes, make a gift of the

28
unexpired period to the wife which is called Hiba-i-muddat. If the wife leaves the husband before the
term, he may deduct a, proportionate part of the dower.
5. If the marriage is consummated, the wife is entitled to get full dower, if the marriage is not
consummated she is entitled to half dower. A Muta wife does not forfeit her dower on the ground of
infidelity so long as it does not prevent her from being at her husband's disposal.
6. The wife is not entitled to maintenance under Shia Law because according to the Shara-i-at-Islam
the name of the wife does not in reality apply to a woman contracted in muta, but she may claim
maintenance under Section 125 CrPC.
7. There is no minimum time for duration of muta marriage.
8. There is no limit to the number of wives.
9. The husband is not bound to provide residence to the muta wife.
10. The muta wife is required to observe Iddat in case of death of her husband for a period of four
months and ten days. In case of pregnancy this period is to be extended till delivery. The period of
Iddat in case of termination of muta otherwise than by the death of the husband is two courses if she
was menstruating and forty-five days if she was not menstruating. Where there has been no
cohabitation, Iddat is not necessary.

29
 6. Schools and Sub schools of Muslim Law
Introduction:
Prophet Muhammad was the universally acclaimed head of the Islamic Commonwealth. He was an
absolute authority on law as well as the Chief administrator of the whole body of Muslims. After his
death, the immediate problem was to find out his successor.

A great majority of Muslims suggested that there should be an election for the successor of the Prophet.
This view was advocated by Ayesha Begum, the youngest wife of the Prophet. It was argued by this
group that since Prophet exercised absolute command over the Islamic community, his successor too
should be a person who could control the Muslims.

This required the confidence of the people and therefore election was the only method to choose the
successor. This section of the Muslim-society pleaded for election as a method of finding out the
successor of the Prophet also because the Prophet himself had suggested election.

Accordingly, an election was held in which Abu Bakr, who was father of Ayesha Begum, was elected and
became the first Caliph. This group of Muslims, with its leader Abu Bakr, formed the Sunni sect of Islam.

But there were Muslims (although in minority) who did not agree to the principle of election. That group
emphasised upon the spiritual headship of the Prophet rather than his administrative control. This
minority group was represented by Fatima, daughter of the Prophet. Their contention was that the
P           the Prophet himself was.

They argued that this quality comes through the nobility of blood. Therefore, a person who is related to
Prophet Muhammad through blood or belongs to his family should be regarded as the most competent
person to succeed him. Thus, the group of Fatima rejected the election and relied upon the principle of
succession.

Consequently Ali, who was son-in-   P F       
nominated as the first Imam by this group of Muslims. They dissociated themselves from the majority
      “   

Thus we see that the split which divides the Muslims into two sects Shia and Sunni was due to the
difference of opinions among the Muslims as to how to find out the successor of the Prophet. Therefore,
division of Islam originated with political questions only but subsequently it resulted in the separation
on legal principles as well.

These two sects formed two major schools of the Muslim law. Later on, the Sunnis further split into
several sub-sects in themselves, each sub sect representing a distinct school of Sunni Law. There was a
similar split among the Shias. The chart below gives a clear picture of the different schools of Muslim
law.

30
Clasification:

Shia Sect:
Ali was acknowledged to be the first Imam by the Shia community. He was accepted as the temporal as
well as the spiritual head of the community.

First split took place after the death of the fourth Imam when some of the Shias acknowledged his son
Zyad as their Imam. The followers of Zyad formed a separate sect called Zyadis.

Upon the death of the sixth Imam there took place the second split in the Shia community.

He had two sons Ismail and Musa Kazim. Followers of Ismail were called Ismailis and constituted the
second school of Shia sect.

The followers of Musa Kazim constitute the third and the last school of Shias and are called Ithna
Asharia or the Twelvers.

In this manner we see that mainly it was the dispute over leadership of the Shia community in various
stages of its development which caused the formation of the three schools. There is no appreciable
difference between these schools in so far as the law is concerned.

A brief account of these schools and sub-schools follows:

The Ithna Asharia School:

This school is also called as Imamia School Majority of Shias are Ithna Asharia. The followers of this
school believe that starting from Ali there had been twelve Imams who possessed spiritual powers.
Everything that comes from the Imam is taken to be a law.

31
It is believed that the twelfth Imam, who disappeared when he was still a child, would reappear in
future. A characteristic feature of Ithna Asharia School is that this is the only school in the Muslim world
  M   y marriage.

This school is further divided into two sub-sects, (1) Akhbari and the (2) Usuli. Akhbaris are very
orthodox because they follow rigidly the traditions of Imams. Usulis, on the other hand, interpret the
texts of Quran with reference to the practical problems of day to day life. The Ithna Asharias are found
in Iran, Iraq, Lebanon, Pakistan and India. Shari-ul- Islam is an authoritative book of this school.

The Ismailia School:

For some reasons Jafar Sadiq disinherited, his eldest son Ismail. The majority of Shias therefore did not
accept him as their Imam. But there were some Shias, although in minority, who acknowledge Ismail as
the seventh Imam. The followers of Ismail are called Ismailias or the Seveners because according to
them there had been only seven Imams the Seventh being Ismail.

They believe that from him (Ismail) descended a series of concealed imams whose secret emissaries
were constantly on the watch for a chance of striking at some weak point in the large ill-cemented
empire of orthodox Islam. The Ismailias therefore, hold that Imams subsequent to Ismail are still alive
but they have concealed their existence.

In India, they consist of two main groups (i) Khojas and Bohras. Khojas were originally Hindus. Bohras are
also Ismailias and they separated from the other groups during the Fatimid regime. Both of them are
commercial communities from the very beginning. Ismailias are found in the Central Asia, Syria, India
and Pakistan etc. Ismailias of Bombay are either Khojas or Bohras. Daimul-lslam is an authoritative work
on Ismailias doctrines.

The Zyadis School:

As pointed out earlier, the founder of this school was Zyad, one of the sons of the fourth Imam. The
Zyadis were the first to defect from the general body of Shia Muslims. One of the peculiar features of
this school is that its doctrines incorporate some of the Sunni principles as well. The followers of this
school are not found in India; they are mostly in Yemen.

The important features of the Shia Schools are following:

1. The Shias accepts only those traditions which emanate from the household of the Prophet,
particularly of Ali.
2. They do not accept Qiyas (analogical deductions)
3. They affirm that Imam is the final interpreter of law.
4. They affirmed that the Ijma could be valid only when it was impossible to consult the Imam.
5. They do not recognise the principle of equity (Istihsan), public welfare (Muslahat) public policy and
analogy.

The Motazila Sect:

The Motazila emerged as a separate sect of Islam around 9th Century A.D. This school was established
by Ata-al-Ghazzal during the reign of Mamun. Although they do not associate themselves with any of
the two existing sects yet, it is said that they were defectors from the Shia community.

32
A A     comparison of the Motazilite doctrines will show that they were
either word for word the same as taught by the early Fatimides (Ismailia-Shias) or were modifications of
those doctrines induced by the requirements of a progressive society and partly perhaps, by the study of
G  A 

The followers of this school believe that Quran is the only basis for their doctrines. Most of the
traditions have been rejected by the Motazilas. One of the characteristic features of the Motazilas is that
this is the only school in Islam which practices strict monogamy.

Marriage with more than one wife at a time is unlawful under the Motazila principles. Another
peculiarity is that there cannot be any divorce without interference of a Judge. Divorce by Talaq is not
recognised under this School. At present the followers of Motazila sect are comparatively very less in
number.

Sunni Sect:
During the third stage of the development of Muslim law (661-900 AD.), the rulers contributed nothing
to the development of law. Those ambitious kings were interested in the expansion of their empire
rather than the development of Muslim law. But the individual jurists did not sit idle.
On their personal level they concentrated themselves to the further expansion of Muslim law by giving
juridical interpretations to Quran and the traditions. This personal study by the jurists gave rise to
different opinions about any given rule of law because of the differences in their approach as to the
source of that law.

Each jurist having his own interpretation, had followers and they constituted a distinct or separate
school. In this manner, the Sunni sect was divided further into four important schools. But, the principles
of these four schools are substantially the same and they differ from each other merely in matters of
 B             “ M
But, by 1300 A.D, only four schools, discussed below, were given recognition.

The Hanifi School:

This school of the Sunni Muslims is named after its founder Abu Hanifa and is the most popular school of
Muslim law. Abu Hanifa was an eminent scholar of his time and was widely known for his outstanding
logical reasoning and technical legal thought. He was appointed as Qazi but he refused to accept the
post in the fear that he would be required to give judgments against his conscience.

As a punishment for his refusal to accept the post, he was imprisoned. During his life, Kufa the city
where he was born and lived, had become an important centre of distinct thinking in Muslim law. This
       K “

A H                
find out the law in the texts of Quran itself through analogical deductions. In this manner he preferred
scientifically concluded private judgments based on Quran over a blind reliance on the traditions.

According to him the law must be formulated in accordance with the changing needs of the society. In
the absence of a law in Quran it may also be obtained by the unanimous decisions of the jurists. He
further suggested that if justice could not be done under the law then the principle of juristic equity
(Istihasan) may be applied in interpreting that law.

33
H              M
jurisprudence. With certain modifications, his doctrines were further developed by his two disciples Abu
Yusuf and Imam Muhammad.

Characteristics of this school may be summarised in the following lines. Out of a large number of
traditions, the Hanafi School recognises only those traditions which have passed through the severe test
regarding their originality. Those traditions which are not authentic are not to be accepted as law. Abu
Hanifa is said to have relied upon eighteen traditions only.

On the other hand Qiyas and Ijma as sources of law have been given prominence under this school.
Several important principles of Hanafi law were obtained through Qiyas. As regards Ijma, this school
does not confine to the Ijma of the Companions.

According to Hanafi School Ijma may be formed by the jurists of any age and may be used as a source of
a law. It was for the first time under this school that the doctrine of Istihsan (juristic equity) was used in
interpreting the texts of Quran and traditions. Similarly, customs and usages, provided they were not
against the texts of Quran, were recognised as proof of the practices of society.

The doctrines of this school being practical and most suitable to the changing conditions of the society
have always been favoured by Caliphs and the emperors. Some of the important books on Hanafi law
are Radd-Al-Makhtar, Durr-ul-Mukhtar, Al-Hidyaya and Fatwai Alamgiri.

This school has been popular since its very beginning and a large number of Muslims are its followers.
From Iraq, the home of this school, it spread over to other countries inhabited by Muslims such as,
Egypt, Israel, Jordan, Turkey, Afghanistan, China and India etc. Majority of the Muslims in India and
Pakistan belong to this school.

The Maliki School:

This School was established by Malik-ibn-Anas of Medina. He was a great scholar and is regarded to be
an authority on traditions. Unlike Hanafis this school emphasises the importance of traditions as a
   I      C      C
According to Maliki School, as far as possible, the new rules should be obtained exclusively from the
traditions.

If it is not possible then only Qiyas and Ijma may be taken into consideration. But this school recognises
Ijma of only such jurists who lived in Medina. The scope of Ijma as a source of law is therefore limited
under this school. Malik and the subsequent jurists of this school had the privilege of being judges and
as such they had to solve day-to-day problems of the public. This made their approach to law more
practical than that of the Hanafis. Because of this fact, in interpreting a rule of law, a new element called
Istidlal (inferring a thing from another thing for public welfare), was introduced by the Maliki jurists.
Another point which is peculiar to the Maliki doctrine is that it recognises the importance of customs (of
Medina) more than any other school in addition to Quran, Traditions, Ijma and Qiyas.

The Maliki School accepts also the customs and Istidlal as additional sources of law. A noticeable feature
of this school is that it is the only school in which a married woman and her properties are always
supposed to be under the control of her husband. A Maliki woman cannot deal with her own properties
without the consent of her husband.

34
Malik has written an exhaustive book namely, Kitab-al-Muwatta which is an authority on the Maliki
doctrines. H     M    -day. Khalil-ibn-I -
M      M  T     
over to the Central and West Africa, Spain, Kuwait, and Bahrain. There are no Malikis in India.

Some of the points which make this school distinguished from others are as under:
1. Imam Malik placed importance to traditions of Prophet in interpreting the text and law but was not a
very rigid traditionalist. Apart from traditions he also allowed other sources of propounding his doctrine.
He followed the traditions and usages of the Prophet only.

2. When there was a conflict of traditions, then, he relied on the Ijma of Mujtahids.
3. Malik called Abu H   A ‘      basis of using Qiyas. He also
upheld the exercise of Qiyas on the failure of other sources.

4. He recognised the principle of Muslahat (public welfare) which was   A H
Istihsan.

The Shafei School:

Founder of this School, Ash Shafei was an eminent scholar of Islamic jurisprudence. He was a pupil of
Malik-ibn-Anas and was related to the Prophet. He developed his doctrines at Baghdad and Cairo. Ash
Shafei also relied upon the traditions of the Prophet. But his reliance on the traditions was more critical
than that of Malik.

He examined the traditions in the light of legal reasoning and logic in order to get a very balanced and
systematic rule of law. Throughout his life he endeavored to systematize the traditions. Joseph Schacht
rightly observes that his legal theory is the achievement of a powerful individual mind, and at the same
time a logical outcome of a process which started when traditions from the Prophet were first adduced
as arguments in law.

According to Ash Shafei, there was not a single problem of human life which could not be solved by
Quran or the traditions of the Prophet. Such solutions may be obtained either directly in these texts or
from analogical deductions.

He      Q           B   
Qiyas is to be considered only after considering Quran, Traditions and Ijma. He not only approved Ijma
as a source of new law but also enlarged its scope. Besides these four sources, the Shafei jurists
      M   Istidlal (public welfare).

B A H     I       O  
important characteristics of the Shafei School is that a woman is never regarded to be a free agent in her
marriage. Even if she is adult, the consent of her guardian is necessary to validate the marriage.

It was Ash Shafei who for the first time incorporated usul or principles of law in his book Kitab-ul-umm.
H ‘         O    “
doctrines are Tuhfat-al-Muhtaj by Hajar, Nihojat-al- Muhtaj by Ramli and Al-Wajiz by Ghazzali. From
Cairo the Shafei principles spread in the lower parts of Egypt, Hejaz, Indonesia, Malaysia and South-East
Asia. Some of the Muslims in the Western Coast of India are followers of this school.

35
Some important features of his school are as follows:
1. Imam Shafei relied on the traditions more than Hanafis but also studied them more critically than
Malik. He devised ways to compromise between contradictory traditions.
2. He based his analogy on the Quran, the Sunnah, the Ijma and the Qiyas.
3. He adopted a midway between Imam Abu Hanafi and Imam Malik in using traditions and analogy. He
made more use of analogy than Imam Malik.
4. He gave wider scope to Ijma than Imam Malik.
5. He was the creator of Classical theory of Islamic Jurisprudence.
6. He was also the founder of science of Usul.

The Hanbali School:

The fourth and the latest school of the Sunni sect was established by Ibn Hanbal. He studied under
several scholars of eminence, including Ash Shafei. His peculiar feature was that he rigidly adhered to
the traditions of the Prophet. It is therefore said that Hanbal was traditionist rather than a jurist. He
relied so much upon the traditions that other sources of law namely Ijma and Qiyas were neglected by
him.

He recognised Ijma only of the Companions of the Prophet. Under this school therefore, there is no
scope for private judgments and human reasoning. The result is that the doctrines of this school are
rigid and uncompromising. Because of this, Ibn Hanbal and his followers were always regarded as
reactionaries and were harassed by the authorities from time to time.

Musnad-ul-bnam Hanbal, is an important book on Hanbali law. It is a collection of about fifty thousand
traditions by Ibn Hanbal. Other books by him are Kitab-ul-Mashaekh and Kitab-ul-Alal. At present very
few Muslims are the followers of this school. Generally the Hanbalis are in Saudi Arabia and Qatar.

Some of the distinguishing features of this school are:

1. Imam Hanbal was more of a traditionalist than a jurist, but his interpretation of traditions was very
liberal which did not satisfy the orthodox and fanatics.
2. He did not give importance to the Ijma and Qiyas, but relied solely on the traditions of the Prophet.
3. As a traditionalist, he perfected the doctrine of Usul.
4. He considered Ijma as confined to the Companions.
5. He permitted a very narrow scope to the doctrine of analogy. The followers of this school are in Saudi
Arabia and Qatar.

36
 7. Difference Between SHIA & SUNNI Schools:
1. Sunnis do not have formal clergy, just scholars and jurists, who may offer non-binding opinions. Shias
believe that their supreme Imam is a fully      M 
(light). Their Imams are believed to be inerrant interpreters of law and tradition.

2. On a practical daily level, Shias have a different call to prayer, they perform wudu and salat differently
including placing the forehead onto a piece of hardened clay from Karbala, not directly onto the prayer
mat when prostrating. They also tend to combine prayers, sometimes worshipping three times per day
instead of five.

3. Laws of Marriage:
(1)Among the Shias temporary marriage (Muta) is lawful but it is unlawful among the Sunnis.
(2)According to the Shias only the father and grandfather are guardians for marriage, others are
regarded as Fazuli or unauthorised persons and, consequently, marriages contracted by the latter have
no legal effect, unless ratified by the party concerned on attaining puberty. The Sunnis recognise a long
list of other guardians for marriage besides the father and the grandfather, who can act as Wali-ul-
Nikah,        so ever, brother, other paternal relations, mother,
paternal uncle, etc.
(3)The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia
law does not deem it a necessary condition. The Shia law requires the presence of two witnesses at the
time of dissolution of marriage, but under the Sunni law, presence of witnesses is not necessary at the
time of divorce.
(4)As regards consummation of marriage, the Sunni law presumes consummation if there has been a
valid retirement of the husband and wife into the nuptial chamber under circumstances which leave no
doubt as to sexual intercourse (Khilwat-us-Shiha). But this doctrine of valid retirement is not recognised
in Shia law. Under Shia law consummation is presumed by actual intercourse only.

4. Dower:
Ten Dirhams is the minimum amount of dower, under Sunni law, whereas under Shia law there is no
minimum limit fixed. But under  “        D U 
Sunni law no upper limit is laid in any case.

5. Divorce (Talaq):
(i) Talaq under Sunni law may be affected orally or by a written document. Under the Shia law a Talaq
must be pronounced orally in the presence of two witnesses and a talaq communicated in writing is not
valid unless the husband is physically incapable of pronouncing it orally.
(ii) The pronouncement of Talaq under the Shia Law must be strictly in accordance with the Sunnat. So
Talaq-ul-Biddat is not recognised under it, whereas Sunni law recognises it.
(iii) Under Sunni law, if the words of divorce used by the husband are      
if it was pronounced under compulsion or in a state of voluntary intoxication whereas the Shia law does
not recognise divorce pronounced under such circumstances.

6. Maternity:
Maternity under Sunni law is fixed in the woman who gave birth to the child whether from the
adulterous intercourse or of a valid contract of marriage. The Shia law, on the other hand, distinguishes

37
between child of fornication and child whose mother was validly married before the conception but her
husband disavowed its parentage. In the case of latter, maternity is established in the woman while the
former is deemed to have no mother at all.
7. Guardianship:
The mother under Sunni law is entitled to the custody of a boy until he has completed the age of seven
and girl until she has attained the age of puberty. Under the Shia law, the mother is entitled to the
custody of a boy until he attains the age of two years and a girl until she attains the age of seven years.
In default of her, it belongs to the father and in default of him to the grandfather.

8. Maintenance:
Under the Sunni law the liability to maintain the father rests on his children. The sons are liable even if
the father is earning. But under the Shia law it is not obligatory to maintain if the father is in a position
to earn.

9. Gift:
A gift of undivided share (mushaa) in a property which is capable of division is irregular under Sunni law,
unless some special conditions are satisfied. Under Shia law a gift of an undivided share is valid, though
it is a share in a property capable of partition. Similarly, Shia law recognises a gift of a property to two or
more donees as valid, though no division is made either at the time of gift or subsequently.

10. Waqf:
(a) A waqf inter vivos is completed under Sunni law by a mere declaration of endowment by the owner,
whereas under Shia law a Waaqf inter vivos cannot be created by a declaration. There must also be
delivery of possession.
(b) Under Sunni law the settler
(i) May provide for his maintenance out of the income of the waqf property
(ii) May reserve the whole income for himself, for his life, or
(iii) May provide for the payment of his own debts out of the income of the Waqf property. Under the
Shia law the settlor cannot reserve for himself a life-interest in the income of the Waqf property or
provide for the payment of his personal debts out of the income of the Waqf property.

38
 8. Classification of Marriages

Introduction:
Marriage or Nikkah is the most important institution in Islam.
Marriage in Islam is not in the nature of sacrament or a religious rite performed only to invoke grace of
God, but on the other hand it is a pure and simple contract between a man and a woman legally capable
of contracting a marriage and besides others, one of its incidents, is that a duty is cast upon the husband
to provide his wife with maintenance according to his means as long as the marriage subsists.

Types of Marriages:
There are three types of Marriages in Islam;
1. Valid or Sahih
2. Void or Batil
3. Irregular or Fasid

1. Valid Marriages: (Sahih)

In case marriage is free from all sorts of defects and infirmity, perfect in every respect and absolutely valid,
it is called Sahih. It conforms to all the requirements laid down by the Sharia for marriage;

1. The parties must have the capacity to marry

2. There must be a clear proposal and acceptance.
3. Free consent
4. No Legal disability

Thus if all the legal conditions are fulfilled there is a valid marriage.

2 Void Marriages: (Batil)

This is not a marriage at all. Violation of rules of blood relationship, affinity or fosterage results in
making the marriage void. The marriage with the wife of another is also void.
There is no process to legalise such a union. The void marriage is an unlawful connection which
produces no mutual rights and obligations between the parties. Hence no question of dower arises
unless there has been consummation. The children are not legitimate.
If one dies the other cannot inherit the property. The marriage is void ab-initio.

3. Irregular Marriage: (Fasid)

If absolute prohibitions of a marriage are violated, the marriage becomes void. But if a temporary
prohibition is violated, it becomes irregular.

If the impediment or prohibition to marriage is temporary or remedial, then a marriage performed in

violation of such impediments is not void, but, irregular.

An irregular marriage, under Muslim law, is not the same thing as voidable marriage under English law
or Hindu law. A voidable marriage is a perfectly valid marriage till it is avoided, and it can be avoided
only by either party to the marriage. No third person can take a stand on it. A voidable marriage on its

39
 annulment has, practically, the same consequences as a void marriage. On the other hand, an irregular
marriage is not a valid marriage: nor is it a void marriage.

An irregular (fasid) marriage is not a valid marriage to begin with, but it can be validated and made a
fully valid marriage by removing the impediment, or by remedying the prohibition. Thus, when a person
                  
O   “              
Islam, the marriage becomes valid. Such marriages have been held fasid and not batil, and therefore
continues to subsist, till terminated in accordance with law.
Hence the wife and children of such marriages are entitled to maintenance.
An irregular marriage is totally an ineffective marriage before consummation. Either party to an irregular
marriage has a right to terminate it at any time, either before or after consummation, by just expressing
an intention to do so.
If consummation has taken place in an irregular marriage, then the wife is entitled to dower, proper or
specified, whichever is less.
The parties to an irregular marriage have no right of mutual inheritance.
A marriage under Muslim law is irregular in the following cases:

1. A marriage contracted without witnesses.

2. A marriage with a fifth wife by a person having four wives
3. A marriage with a woman undergoing iddat
4. A marriage prohibited by reason of difference of religion
5. A marriage with two sisters etc.

The reason why the aforesaid marriages are irregular, and not void, is that in case
(a) The irregularity has arisen from an accidental circumstance; in clause
(b) The objection may be removed by the man divorcing one of his four wives; in clause
(c) The impediment ceases on the expiration of the period of iddat ; in clause
(d) The objection may be removed by the wife converting to Muslim, or the husband adopting the
Muslim faith; and in clause
(e) The objection may be removed by the man divorcing the wife who constitutes the obstacle; thus, if a
man who has already married one sister marries another, he may divorce the first, and make the second
lawful to himself.

Shia Law:
The Shia law does not recognize the distinction between irregular and void marriages. According to
that law a marriage is either valid or void. Marriages that are irregular under the Sunni Law are void
under the Shia Law.

40
 9. State the importance of Shariat Act, 1937 dealing with the application of
Muhammadan Law in India.

Introduction:
The Muslim Personal Law in India is not the Islamic Sharia law. It has not been codified by Muslim jurists.
In fact, it is a codification and compilation of court judgments of Muslim personal law cases during the
British colonial period which are compiled    M Muhamadan Law. These precedents are
the basis of the verdicts issued by Indian courts today. Mulla is not a Muslim scholar  he was a Parsi
jurist. These precedents were given the force of law by a very short Act passed by the British colonial
    “ A A
It provides that Muhamadan law should be the basis of court verdicts for a number of situations
including inheritance of personal property, marriage, dissolution of marriage
through talaq, ila, zihar, , khula, maintenance, mehr, guardianship, gifts, trust and waqfs in cases
where both parties are Muslim.
Even this Act is not applicable to all Muslims because there are separate laws for some sub-communities
like Cutchi Memons and sections of Mapillas where local customs have been given preference over the
Islamic Shariat. Bohras and Meos too have their special laws. The Shariat Act does not apply to even
Jammu & Kashmir, the only Muslim-majority state in India, where Sri Pratap Consolidation of Laws of
1920 still applies. Likewise, Muslims in Goa, Daman & Diu and Puducherry too are not governed by the
Shariat Act of 1937.

Shariat Act of 1937:

At present the application of Muslim Personal Law is generally regulated by this enactment. This is the
most important and far reaching enactment containing 6 sections. It became operative from 7th
October 1937.
The Shariat Act is applicable to both Shia and Sunni schools. It does not define the word Muslim. It is
applicable to all kinds of property except agricultural land, testamentary succession in certain
communities, and charities other than Waqfs.

Provisions of this Act regarding the application of Muslim Personal Law are summarised as under:

(a) Section 2 of the Shariat Act provides that in a case where both the parties are Muslims the rule for
decision shall be Muslim Law, if the case involves any of the following matters:
(1) Intestate succession (i.e. inheritance),

(2) Special property of the females,

(3) Marriage (including all incidents of marriage),

(4) Dissolution of marriage (including all kinds of divorce),

(5) Maintenance,

41
(6) Dower,

(7) Guardianship,

(8) Gift,

(9) Trust and trust properties, and

(10) Wakf.

It is; therefore, clear that in respect of the above-mentioned matters, if both the parties to a case are
Muslims, the courts shall apply only the Muslim personal law and nothing else. A custom or usage
contrary to Muslim law cannot be applied now.

I             M   Section 2 of the Act, are
mandatory, meaning thereby that the courts are not only empowered but also bound to administer only
Muslim personal law in the situations mentioned therein.

(b) In the cases involving adoption, wills and legacies, the courts have no authority to apply Muslim law
under Section 2 of the Act, because these subjects are not included in the said section.

But Section 3 of the Shariat Act provides that courts may apply the rules of Muslim law in cases of
adoption, will and legacies provided a Muslim expressly declares that he wants to be governed by
Muslim law in respect of these matters in addition to the aforesaid ten matters.

On this point the relevant provisions of Section 3 of the Shariat Act, are given below:
“ 
Any person who satisfies the prescribed authority:
(a) That he is a Muslim, and
(b) That he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872,
and;
(c) That he is a resident of a territory to which this Act extends.

may by declaration in the prescribed form and filed before the prescribed authority declare that he
desires to obtain the benefit of the provisions of this section, and thereafter the provisions of Section 2
shall apply to the declarant and all his minor children and their descendants as if in addition to the
         

It is, therefore, clear that since adoption wills and legacies are not mentioned in Section 2, the courts
will not apply Muslim law to all the Muslims in these three matters unless they desire to be governed by
Muslim law also in these matters.

This desire must be expressed through a declaration to that effect. Procedure for such a declaration has
been laid down in Section 3(2) and Section 4 of this Act. It may be noted that the effect of such a
declaration is that not only the declarant but also his children and all the descendants shall be governed
by Muslim law in these three additional subjects.

42
On the other hand, if there is no such declaration by a Muslim, the courts are not bound to apply
Muslim personal law on these matters and they may freely apply customs and usages or the local
enactments, if any.

(c) The Shariat Act, 1937, was enacted by the Central Legislature and it was beyond its legislative
competence to make laws for provincial (State) subjects. Agricultural lands, charities and charitable
endowments, being provincial (State) subjects, had to be expressly excluded from Section 2 of the Act.

The result is that the courts cannot apply Muslim law on these questions under the authority of the
Shariat Act. But State legislatures are competent to enact laws on these subjects. In most of the States
of India, therefore, succession to agricultural lands is regulated by local tenancy laws and not according
to the Muslim law of inheritance.

However, in the States of Andhra Pradesh and Tamil Nadu, in the matters of agricultural lands, charities
and charitable institutions, Muslims are governed by Muslim personal law.

The reason is that in these States an amendment in Section 2 of the Shariat Act has been made under
which these matters have not been exempted from the application of Muslim personal law.

(d) Section 6 of the Shariat Act repeals certain provisions of those earlier enactments which gave
authority to the courts to apply Muslim law before the commencement of the Shariat Act. For example,
Section 26 of Bombay Regulation Act, 1827, Section 16 of the Madras Civil Courts Act, 1873, Section 3 of
Oudh Law Act, 1876, Section 5 of Punjab Laws Act, 1872 and the Central Provinces Laws Act, 1875, have
been repealed and are now not in force. But two points must be noted regarding the repeal of these
provisions:

(1) The whole of the above mentioned Acts have not been repealed by Section 6 of the Shariat Act.
Therefore, except the repealed sections, other provisions of these Acts are still enforceable within their
own limitations.

(2) The provisions which have been repealed were such provisions which authorised the courts to apply
customs or usages to the Muslims. At present, therefore, all customs and usages, contrary to Muslim
personal law, have been abolished and cannot be applied on matters enumerated in the Shariat Act.

The Cutchi Memon and Mapilla Muslims:

The Cutchi Memons and the Mapillas are converted Muslims and are generally found in the southern
part of India. Formerly, in the matters of successions they were governed by their own customary laws
which were against the rules of Muslim personal law.

This was provided under special enactments made for these communities. But the Cutchi Memons Act X
of 1938, which is now in force, provides that all Cutchi Memons shall, in matters of succession and
inheritance be governed by Muslim personal law and not by their customary laws.

Similarly the Mapillas were also allowed to be governed by their own customary laws in respect of
testamentary or intestate successions. But the Mapilla Succession Act of 1918 and the Mapilla Wills Act
of 1928 now provides that in matters of inheritance and wills, Muslim law shall be applied to them like
other Muslims.

43
It is, however, interesting to note that like other Muslims, it is not necessary for a Mapilla to make a
declaration for being governed by Muslim law also in the matters of wills and legacies. They are
compulsorily governed by the Muslim personal law on these matters.

But the customary law of Mapilla Muslims regarding the succession of joint family property (Tarvad and
Tavazhi) continues to apply to this community; this has neither been abolished by special enactments
for this community nor by the Shariat Act, 1937.

44
 UNIT 2
10. Examine the effect of Apostasy of a Muslim on his/her marriage
and succession rights.

Apostasy in Islam is commonly defined as the conscious abandonment of Islam by a Muslim in word or
through deed. It includes the act of converting to another religion, by a person who was born in
a Muslim family or who had previously accepted Islam.

Apostasy means renouncing or giving up one's religion. Before 1939 if either of the party to a marriage
renounced Islam, the marriage dissolved immediately whether the renunciation of Islam was by
husband or by wife. But after the commencement of the Dissolution of Muslim Marriages Act, 1939 law
on this point has been modified by Section 4 of this Act. The present law relating to the effects of
apostasy by husband or wife may be discussed as under:

(a) Apostasy by Husband:

If a Muslim husband renounces Islam the marriage dissolves immediately.
Section 4 of the 1939 Act does not apply to apostasy by a husband. The result is that apostasy by the
husband is still governed by the old law under which renunciation of Islam by the husband operates as
immediate dissolution of the marriage and the wife ceases to be a Muslim wife of that husband. As
such, the wife is then not governed by Muslim law and is free to marry to another person without
waiting for the Iddat period.

(b) Apostasy by Wife:

If a Muslim wife renounces Islam, the marriage is not dissolved. The apostasy by a Muslim wife does not
operate as immediate dissolution of the marriage. She continues to be a wife married under Muslim
law. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the
dissolution of her marriage on any of the grounds specified in Section 2 of the Act.

Exception, Where the wife was a converted Muslim at the time of her marriage, and such converted
Muslim wife renounces Islam and again embraces her original religion, then the marriage dissolves
immediately. Thus, an apostasy by a converted Muslim wife results in the immediate dissolution of her
marriage.

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 11. Apostasy

Faith in God: a Natural Instinct

According to Islam, every child is born with the innate ability to know and believe in his Creator; this
cognition has been placed by God into his nature (fitra). The Quran describes the human soul in a very
beautiful way.
Almighty Allah has made our souls such that we are able to distinguish between what is good and what
is evil. But for human soul to function on its fitra, there is a condition--it must be kept pure, it must be
immunized against spiritual corruption.

The soul is like a bulb which can give light provided, it itself is not surrounded with a thick cover or dust;
every human being has that light in his soul; however, those who keep it pure can enlighten their path
with it while those who allow the `spiritual dirt' to gather upon it cannot see the path towards Allah.
(Incidentally, kufr (infidelity) literally means a cover, and so it implies that kufr prevents the inner light
from showing the right path.)

The Prophet of Islam emphasized the same point when he said, "Every child is born with the believing
nature (al-fitra), it is his parents who make him into a Jew or a Christian."

Besides this fitra, Allah has also provided muslims with various means to know Him and believe in Him;
He sent prophets and messengers, He revealed the scriptures.

Can Islam be forced on others?

The Quran clearly says that,
"There is no compulsion in the religion." (2:256)
What this verse actually means is that: "There is no compulsion in (accepting) the religion (of Islam)."
Why? The verse continues,
"Surely the Right Path is clearly distinct from the crooked path."
So Muslims can always show the difference between the right and the wrong paths, but not force the
non-Muslims to accept Islam.

What after submission?

What was said above was about accepting Islam, coming into the fold of Islam. It is very clear that no
one can be forcefully brought into the fold of Islam; Islam cannot be imposed on any person or society.
This was all about a person who is outside the fold of Islam. Now we move on to the next step.
If a person is raised in a society which protects his soul from the impurities of atheism (kufr) and
polytheism (shirk), or if a person is shown the Right Path and accepts it willingly -- can such a person
reject the Islamic faith? Is he allowed to apostate (become murtad) and renounce Islam? Can he declare
that he does not believe in God or Prophet Muhammad or the Day of Judgment?

Once a person enters into the fold of Islam, the rules change. As soon as a person becomes a Muslim by
his own choice, he is expected to submit himself to Allah totally and completely.

O    E   (2:208)

46
K gives the sense of "all" and "completely". Once a person becomes a believer, he surrenders the
right of making decisions to Allah and the Messenger:

"No believing man and no believing woman has a choice in their own affairs when Allah and His
Messenger have decided on an issue." (33:36)

Even the question of apostasy,  or deserting of one's faith, for a Muslim, is a religious (shar`i) issue
and even in this issue he is governed by the laws of Islam. And Islam clearly says: No! You cannot
become an apostate. After coming into the fold of Islam, rejection of the fundamentals is not tolerated.
If there are doubts in your mind about the fundamental beliefs of Islam, then question, discuss, debate,
study, and solve them BUT you are not allowed to leave Islam or desert your own fitra!

On the issue of openly rejecting Islam, Islam cannot just stand aside and see one of its followers going
astray. It would allow discussions to understand and solve the problems, but not allow its followers to
lower themselves from the sublime status of "surrendering to the will of Allah--Islam" to the status of
those "who have hearts but do not understand, ears but do not hear, and eyes but do not see.

Riddah (apostasy):
It refers to when a Muslim becomes a disbeliever by saying a clear statement to that effect, or by uttering
words which imply that (i.e., which imply kufr or disbelief), or he does something that implies that (i.e.,
an action which implies kufr or disbelief).

What constitutes apostasy?

The matters which constitute apostasy are divided into four categories:
(a) Apostasy in beliefs:
Such as associating others with Allah, denying Him, or denying an attribute which is proven to be one of
His attributes, or by affirming that Allah has a son. Whoever believes these, is an apostate and a
disbeliever.
(b) Apostasy in words:
Such as insulting Allah or the Messenger.
(c) Apostasy in actions:
Such as throwing the Quran into a filthy place, because doing that shows disrespect towards the words of
Allah, so it is a sign that one does not believe. Other such actions include prostrating to an idol or to the
sun or moon.
(d) Apostasy by omission:
Such as not doing any of the rituals of Islam, or turning away from following it altogether.

Apostasy is Equal to Treason:

Why does Islam not allow apostasy? Apostasy or  in Islam is equal to treason.
The Western world limits treason to political and military terms. In the USA, treason consists "only in
levying war against Americans, and in adhering to their enemies, giving them aid and comfort."

47
In Islam, the concept of treason is not limited to political and military aspects; it also has a spiritual and
cultural dimension to it. In the Islamic order of sacredness, Allah, then the Prophet, and then the Quran
occupy the highest positions.

Just as upholding and protecting the constitution of a country is sign of patriotism, and undermining it is
a form of treason - in the same way open rejection of the fundamental beliefs of Islam by a Muslim is an
act of treason.

Apostasy, i.e., the public declaration of rejecting the fundamentals of Islam, has also negative influence
on the Muslim society; it is indeed a major fitna. And that is why Islam has prescribed harsh punishment
for .

It must be emphasized that the  that here involves open rejection, without any force and with full
realization of what one's statements or actions imply. If a Muslim has a genuine doubt on an Islamic
matter, that process of doubting does not automatically classify him as a murtad.

As long as he is still in state of doubt, the punishment of  is suspended. A murtad must fully
realize the implications of his open rejection and what it means--casting doubt on the truth and honesty
of Prophet Muhammad as the Messenger of God.

What is the ruling on the apostate?

If a Muslim apostatizes and meets the conditions of apostasy  i.e., he is of sound mind, an adult and does
that of his own free will  then his blood may be shed with impunity. He is to be executed by the Muslim
ruler or by his deputy  such as the qaadi or judge, and he is not to not be washed (after death, in
preparation for burial), the funeral prayer is not to be offered for him and he is not to be buried with the
Muslims.
T              P W  
   N y al-Bukhaari, 2794). What is meant by religion here is Islam (i.e.,
whoever changes from Islam to another religion).
T P  I          M       
god except Allah and that I am His Messenger, except in one of three cases: a soul for a soul (i.e., in the
case of murder); a married man who commits adultery; and one who leaves his religion and splits from
     M N  -Bukhaari, 6878; Muslim, 1676)

Thus it is clear that execution of the apostate is something that is commanded by Allah, when he
commanded the Muslims to obey the Messenger, as He says (interpretation of the meaning):
O    O A    M Mmad), and those of you (Muslims)
   

The punishment prescribed by the shariah for apostasy is death.

Even the terms used by the shariah for apostates give the idea of treason to this whole phenomenon.
"Murtad" means apostate. Murtad can be of two types: fitri and milli.

(1) "Murtad Fitri" means a person who is born of a Muslim parent and then he rejects
Islam. "Fitrah" means creation. The term "murtad fitri" implies that the person has apostate from the

48
faith in which he was born.
(2) "Murtad Milli" means a person who converted to Islam and then later on he rejects Islam. Milli is
from millat which means religion. The term "murtad milli" implies that the person has apostated from
his religion and the Muslim community.

In the first case, the apostasy is like the treason against God; whereas in the second case, the apostasy is
like the treason against the Muslim community. Probably, that is why the Shia jurisprudence deals with
these two kinds of murtads differently:

 A    became a Muslim and then apostates (murtad milli), he is given a second chance: if
he repents, then he is not to be killed; but if he does not repent, then he is to be killed.

 B       M    murtad fitri), he is to be killed even if he repents.
It is important to understand that in case a murtad fitri repents, Allah may accept his repentance and he
may be forgiven in the hereafter, but he still has to go through the punishment prescribed for his
treason in this world.

This punishment is only applicable in case of apostasy by men; in case of women, the punishment is not
death but life imprisonment. And if such a woman repents, then her repentance is accepted and the
punishment is lifted.

In the writings of some of the Shia jurists, one gets the sense that the punishment of murtad is to be
implemented only    -I (i.e., the Muslim world), and that if the murtad flees to  -
kufr (i.e., the abode of kufr), then he is not to be pursued.

Conclusion:
In conclusion, the answer is that Allah is the One Who revealed this religion and enjoined it. He is the
One Who ruled that, the one who enters it and then leaves it is to be executed. This ruling does not
   M   

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 12. Who are entitled to be the guardians of the person and property of
a minor? When can a legal guardian sell the immovable property of a
minor Muslim?
Introduction:
I      Q        to the orphans when they come of age,
their substance; do not substitute bad for good, nor devour their substance by adding it to your own, for
    
However the term Guardianship (wilayat) means the guardianship of a minor. Minor is one who has not
attained the age of majority, Puberty and majority are in the Muslim Law one and the same. Puberty is
presumed to have been attained on the completion of 15 years but now the Muslims are governed by the
Indian Majority Act, except in the matters relating to marriage, divorce and dower. However 15 years is
the age of majority for the purposes of marriage, dower and divorce under the Muslim Law.

Definition Of Guardian:
The term guardian is defined in the Guardians and Wards Act, A      person of a
           

Types of Guardians:
1. Natural Guardian
2. Testamentary Guardian
3. Court Guardian
4. De facto Guardian

Kinds of guardianship under Muslim law:

Guardianship (Wilaya) may be in respect of:
(a) The person
(b) The property and
(c) Marriage.

1. Guardianship of person of the minor for custody (hizanat)

(i) Mother:
Under Hanafi School, mother is guardian of her minor son till he attains age of 7 years and of her daughter
till she reaches puberty. Under shia school, mother is guardian of her son till he attains the age of 2 years
and of her daughter till she attains the age of 7 years.

An illegitimate child is left in the charge of mother till the age of 7 years but legally belongs to neither of
his parents.

In the absence of mother, under Hanafi School, custody belongs to:

(a) M 

(b) F 
(c) Full sister
(d) Uterine sister
(e) Consanguine sister

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 (f) F  
(g) Uterine  
(h) C  
(i) Maternal aunt
(j) Paternal aunt

However, the right of hizanat of the mother and other female relations is lost if she leads an immoral life
or, neglects to take proper care of the child or, marries a person not related to the child within prohibited
                 
place.

In Rahima Khatoon v Saburjanessa, the court held that the mother loses the guardianship of the minor
daughter if she remarries with a person not related to the child within prohibited degrees. In this case,
           

In default of mother and other female relations, hizanat belongs to:

(a) Father
(b) Nearest paternal grandfather
(c) Full brother
(d) Consanguine brother
(e) F  
(f) C  
(g) Full brother of the father
(h) Consanguine brother of the father
(i) Son    
(j) “    

(ii)Father:
Father is the defacto guardian of a son over the age of 7 years under Hanafi School, and 2 years under
Shia school.
Father is the defacto guardian of an unmarried daughter till she attains puberty under Hanafi School, and
over the age of 7 under Shia school.

T                  
conduct or is unfit as regards external circumstances or waives his right or enters into an agreement to
the contrary or is out of jurisdiction of the court or intends to go abroad.

Illegitimate child:
The mother of an illegitimate daughter is entitled to its custody.

Termination of hizanat:
(a) General disqualifications- minor and non Muslim
(b) Disqualifications affecting females- immoral, has married a stranger, resides at large distance from
father, neglects the child.
(c) Disqualifications affecting males- no male entitled custody of female child who is not within prohibited
degree.

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(d) Disqualifications affecting parents- T          
only if he is unfit in character and conduct or is unfit as regards external circumstances or waives his right
or enters into an agreement to the contrary or is out of jurisdiction of the court or intends to go abroad.
The mother does not lose her right to the custody of the children by divorce by the father of the children.
(e) Disqualifications affecting husband- if the wife has not attained puberty, mother has greater right over
her.

2. Guardianship of Property:
(a) Dejure guardianship- legal or natural guardian order of persons entitled to guardianship of the
property of a minor:-
(i) Father
(ii) E    
(iii) F 
(iv) E       

(b) Certified guardianship- guardian appointed by the court- in absence of legal guardians, the duty of
appointing a guardian falls on the court.

(c) De facto guardianship- a person who is neither a legal guardian nor a guardian appointed by court
but has voluntarily placed himself in charge of the person and property of a minor is known as de
facto guardian. He is a mere custodian of the person and property of the minor and has no right over
them.

Removal of guardian:
A guardian can be removed in the interest of the minor. The court may remove a guardian appointed or
declared by court or a guardian appointed by will or other testament if:

(1) He abuses trust

(2) Fails to perform his duties
(3) Incapacity to perform duties
(4) Ill-treatment or neglect of ward
(5) Continuous disregard of provisions of Guardianship and Wards Act or of any order of the court
(6) Conviction of an offence showing moral turpitude
(7) Having interest adverse to his duties as a guardian
(8) Ceases to reside within limits of the court
(9) Goes insolvent (guardian of property)
(10) Ceases to be under the law to which the minor is subject

Cessation of authority of guardianship:

(A) Guardian of person:
(1) Death, removal or discharge
(2) By the court of wards assuming superintendence of the person of the minor
(3) Ward ceases to be minor
(4) In case of female, her marriage
(5) In case of minor whose father was unfit for guardianship, with father ceasing to be so.

(B) Guardian of property:

(a) Death, removal or discharge

52
(b) By the court of wards assuming superintendence of the property of the minor
(c) Ward ceases to be minor

Powers Of Legal Guardian:

1. Regarding Immovable Property:
Legal guardian cannot alienate by sale or mortgage the immovable property of the minor except when
alienation is absolutely necessary or for the clear benefit of the minor:

1. When the minor has no other means of livelihood and sale is absolutely necessary for
maintenance.
2. Where the double price of the property can be obtained by him.
3. Where the expenses exceed he income of the property.
4. When the property is falling into decay.

The legal guardian has no power to carry on business of his ward especially if the business is one which
        

2. Powers regarding movable properties:

The guardian is empowered to sell or pledge the goods and chattels of the minor,   
necessities as food, clothing and nursing etc. Muslim Law does not impose upon minors any obligation
to pay interest on sums advanced to them. The legal guardian is bound to deal with the property as
carefully as he has dealt with it if it were his own property, as held by Madras High Court in l940.

Cases:
A de facto guardian has no right at all. The leading case is Imambindi Vs. Mutsaddi.
Z had two children (minors). She conveyed certain shares (of herself and of children) of
Value Rs. 10, 000 to P. Held by Ameer Ali J that mother had no power to alienate as she
was not the legal guardian.

3. Guardianship in marriage (jabar):

The following persons can act as guardians in the marriage of a minor, in the order of enumeration:-

(i) Father
(ii) F 
(iii) F         
(iv) Mother
(v) Maternal relations within prohibited degrees
(vi) Qazi or the court

Shia law recognizes o              
marriage of a minor.

The rule of Muslim law is that when a remote guardian allows marriage, when the nearer one is present,
the validity of the marriage is dependent upon      A   
remoter guardian when the nearer guardian is present and has given his consent is not only irregular but
void.

53
13. Explain Acknowledgement of Paternity under Muslim Law

1. Introduction:
Parentage includes paternity and maternity. It is the result of institution of marriage. So
parentage is the legal relationship of parents to their children.
Paternity of a child is established if the child is born during continuance of a valid marriage or
within 280 days of its dissolution, the mother remaining unmarried.
Maternity of a child is established in the woman who gives birth to the child; it is immaterial
whether the child is an offspring of a valid or irregular marriage, or even of a fornication or
adultery.
The establishment of paternity confers a status of legitimacy on the child. The child
acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or illicit relations.
Acknowledgement is a mode to establish paternity.

2. Principle of the Doctrine of Legitimacy by Acknowledgement:

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a child
and the marriage of its mother. Since a marriage among Muslims may be constituted without
any ceremony, the existence of a marriage in a particular case may be an open question. If no
direct proof of such marriage is available, indirect proof may be relied upon. Acknowledgment
of legitimacy of a child is one of the kinds of indirect proof.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child, the
paternity of that child is established in him. But the doctrine applies only to cases where the fact
of an alleged marriage is an uncertainty.

It cannot be availed of to legitimise a child who is known to be illegitimate. The doctrine of

legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and
establishment of legitimacy by the force of such acknowledgement.

3. Acknowledgement of paternity (Iqrar):

Muslim law recognises Iqrar. It has three incidents:
(i) Unknown paternity (The paternity of the child should be doubtful)
(ii) Child must not be illegitimate,
(iii) There must be nothing to rebut presumption.

(i) Unknown paternity: That is, if the paternity of the child is not certain.
The leading case: Muhammad Allahabad Vs. Muhammad Ismail.
A claiming to be the eldest son of G brought a suit against Ismail and his 3 sisters for his rights in
certain villages. Ismail and his 3 sisters were born to Mothi Begum after her marriage to G. But A
was born to her at a time when it was unknown, who the father of A was. G during his life time
had acknowledged A as his legitimate son. It was held:
(a) That there was no proof of paternity of A.
(b) That it was not proved that it was by illicit intercourse.

54
 Therefore it was held: That A was legitimate and he had a right to inherit.

(ii) It must not be illegitimate: According to Muslim law there is no legitimation.

Hence an illegitimate son cannot be acknowledged to make him legitimate.
The leading case is: Sadig Hussan Vs. Hashim All.

In this case the Privy Council held that acknowledgement by the Muslim father of the child as his
son is substantive evidence relating to the legitimacy, and hence, the child was legitimate.

iii) There must be nothing to rebut the presumption of paternity:

a. The parties must be such as to be so related as husband, wife and child in conformity with the
presumption of paternity.
b. Marriage must be possible between the father and mother of the child.
c. The person acknowledged must not be the child of an illicit intercourse; and
d. There must not be any disclaim or repudiation by the father.
The leading case is: Habibur Rehman Chowdary vs. Altaf Chowdary,
A was the daughter's son of the Nawab, N. One person H, son of Cohen sued A and
claimed that the Nawab had married Cohen. Hence, he claimed his share as a son. Held
neither marriage nor acknowledgement was proved and hence, A failed.
4. Conditions of a Valid Acknowledgement of Legitimacy:
Muhammadan law prescribes a special mode of establishing the legitimacy of a child. When a
man either expressly acknowledges, or treats in a manner tantamount to acknowledgement of,
another as his lawful child, the paternity of that child will be established in the man, provided
that the following seven conditions are fulfilled:

1. The acknowledger must possess the legal capacity for entering into a valid contract.

2. The acknowledger must acknowledge the child as his legitimate child not and just as his child.

3. The ages of the acknowledger and the acknowledged must be such as to admit of the relation
of parentage, i.e., the acknowledger must be at least twelve-and-a-half years older than the
person acknowledged.

4. The person to be acknowledged must not be the offspring of intercourse which would be
punishable under Muhammadan law, e.g., adultery, incest or fornication.

In Rashid Ahmad v. Anisa Khatun, the child acknowledged was the issue of marriage between
the divorced persons. The husband had repudiated the marriage in talak-ul-bidaa form and no
intermediate marriage and divorce of the woman took place. Thus, the marriage was void.

“            
within the prohibited degreesprohibitions might be on the ground of consanguinity, affinity or
fosterage,the marriage being void, no valid acknowledgement can be made.

55
 The same is true of the case where it is proved that no marriage took place between the
acknowledger and the mother of the acknowledged person when the child could have been
begotten; the child in such a case will be the issue of fornication, and, therefore, no valid
acknowledgement can take place. But if the marriage is found to be irregular, the child will be
legitimate.

5. The paternity of the person acknowledged must not be established in anyone else

6. The acknowledgement must not be repudiated by the acknowledged person.

T            
and the child must verify (or at least must not repudiate) the acknowledgement.

7. The acknowledger should be one who could have lawfully been the husband of the mother of
the child, when it was begotten. Thus, where there is direct proof that there was no marriage
between the man and the mother of the child, or that if there was such a marriage between
them, it would have been void, and then the presumption of legitimacy cannot be raised by
acknowledgement, however strong such presumption may be. (Rashid Ahmed v. Anisa Khatun,
(1932) 34 Bom L.R. 475 PC. 59 I.A. 21)
I ‘ A  A  M    B      t
afterwards, continued to cohabit with her, and to treat her as his wife for fifteen years. During
this period, five children were born to them, all of whom he treated as his legitimate children.

However, the Privy Council held that the children were illegitimate. In this case of divorce by
   A           
man in the interval and divorced by that man.

As there was no proof of such marriage with another man and a divorce by him, a presumption
   A              
illegitimate, and could not inherit from their father.

5. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied
(ii) Express
In Md. Azmad v. Lalli Begum, the Privy Council opined that there need not be any proof of an
express acknowledgement, but that an acknowledgement of a child by a Muslim as his child may
be inferred from his having openly treated him as such.

6. Capacity for making acknowledgement:

(i) Person who is sound mind.
(ii) Have attained the age of puberty.

7. When acknowledgement is void:

When the mother of the acknowledged child could not be possibly have been the lawful

56
 wife of the acknowledger at any time when the acknowledgee could have
been begotten, the acknowledgement will be void.

8. Rules of presumption as to legitimacy:

Rules of presumption as to legitimacy are as under.
(i) A child born in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
Exception:
(i) If the husband accuses his wife of adultery in the court, such a child would be
illegitimate.
(ii) A child born with in 2 years after the termination of marriage is presumed to be
legitimate.

9. Effect of acknowledgement:
In the case of the son, it produces all the legal effects of natural paternity, and vests in the child,
the right of inheritance. In the case of the wife, the mother of the acknowledged son has the
effect of giving her the status of a legal wife and entitlement to inheritance and maintenance.
An acknowledgement is not revocable.
10. Conclusion:
To conclude, the doctrine of acknowledgement of paternity confers a status of legitimacy on a
child whether a son or a daughter. It is a kind of legal evidence. Once the acknowledgement is
made the right to disclaim is lost. The acknowledged child may be a son or a daughter.

57
14. Discuss the Law relating to conversion to Muhammadanism

1. Make sure you know what it means to be Muslim:

The first and foremost rule of being a Muslim is believing that Allah is one and only one. Allah is
the only god, the only creator and the Almighty. He is the only one you should be doing your
good deeds for and the only who shall be worshipped. There should be nothing stood beside His
place. Allah's messenger Muhammad is the messenger who is believed as the last prophet who
came down to Earth and there will never be any more prophets after that. Islam considers itself
to be the natural way of all creation. That is, Islam is the original, perfect state of being. So,
when a person "converts" to Islam, he/she is actually reverting to their own original nature.

2. Read Islamic scripture:

The Quran is the central religious book of Islam, believed to be the unadulterated word of
God. Another very important religious scripture is the Hadith, the sayings and accounts of
Muhammad. Hadith collections form the basis for much of Islamic law. Reading these writings
will give you an understanding of the stories, laws, and teachings that make up Islamic belief.

3. Talk with an Imam:

Imams are Islamic religious scholars who conduct religious services inside and outside the
mosque (Masjid). Imams are chosen for their knowledge of Islamic scripture and their good
character. A good Imam will be able to provide you with advice when deciding whether you're
ready to devote yourself to Islam.

4. Say the Shahada:

If you're absolutely sure you want to become a Muslim and fully submit to the will of God, all
you need to do is recite the Shahada, a short oral declaration of faith. Be aware that once you
have said the Shahada you are committed to following Islam for life. The words of the Shahada
are "La ilaha illallah, Muhammadun rasulullah " This translates to "I testify that there is no other
god but Allah, and Muhammad is God's messenger (prophet)." By saying the Shahada, you
become a Muslim.

The Shahada must be said with sincerity and understanding to be binding. You can't become a
Muslim just by pronouncing the words - the oral recitation is a reflection of belief that's held in
the heart.

5. Witnesses:
To become a legal member of the Muslim community, have witnesses present at your
recitation. Witnesses are not strictly required to become a Muslim - God knows all things, so a
Shahada said alone, with conviction, will make you a Muslim in God's eyes. However, to become
legally recognized by the Muslim mosque, you generally must make your Shahada in front of
witnesses - two Muslims or an Imam (Islamic religious leader).

6. Wash yourself:

58
Immediately upon becoming a Muslim, you should take a shower or bath as a form of purification.
This is a symbolic act that signifies the washing away of the past and of emerging from darkness to
light.
No one's sins are too grave to prohibit newfound purity. Upon making your Shahada, your past sins
are forgiven. You symbolically begin a new life centered around striving to improve your spiritual
state through good deeds.

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 UNIT 3

15. Discuss how marriage under Muslim Law can be dissolved in

various ways.

Divorce: There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce

1. Extra judicial divorce:

The category of extra judicial divorce can be further subdivided into three types, namely:
A. By husband:
(a) Talaq (Repudiation)
(b) lla (Vow Of Continence)
(c) Zihar (Injurious Assimilation)
B. By the wife :
(a) Talaq-e-Tafwid (Delegation of power to divorce).
(b) Lian (Mutual imprecation)

C. By common consent:
(a) Khula (Redemption)
(b) Mubaraa (Mutual freeing).

2. Judicial divorce
(a) Under Muslim Marriage Dissolution Act 1939.

1. Extra judicial divorce:

A. By husband:
(a) Talaq (Repudiation):
T       I        
        I M L       
marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband
using appropriate words. In other words Talaq is repudiation of marriage by the husband in accordance
with the procedure laid down by the law.

The Muslim husband must be of sound mind. The divorce operates from the date of pronouncement of
Talaq. The presence of wife is necessary; giving of notice is not essential. The words must clearly
indicate the intention to dissolve the marriage. He may declare 'I divorce my wife, X forever and render
her haram for me',

60
Hanafi Law prescribes no form. But according to Asharia Law, Talaq must be in the presence of two
male witnesses.

There are different types of Talaqs.

Talaq may be revocable or irrevocable. Revocable is approved form. Irrevocable is disapproved form.

Approved forms (Talaq ul Sunnst):

1. Talaq ehsan:
One pronouncement of Talaq is made by husband during the period of Tuhr (purity) i.e., when she is
between two menstrual courses, plus abstinence during 'Iddat'. This may be revoked during
Iddat i.e., three months from the date of declaration. It may be express or implied. Redemption of
conjugal relationship is implied revocation.
After the period of Iddat, the divorce becomes irrevocable.
Talaq is a cruel word. Hence, repetition is not necessary.

2. Hasan Form:
This is an approved form. There are three successive pronouncements during three consecutive periods
of Tuhr with abstinence thereof.
The procedure is:
(i) During Tuhr, the husband pronounces Talaq.
(ii) During the second period of Tuhr, he pronounces again Talaqthere should be complete abstinence
by husband,
(iii) After this, during the third period of Tuhr he pronounces Talaq.
This is final and binding. Divorce becomes complete and irrevocable.

Disapproved forms:
1. Triple declaration:
Three declarations made during Tuhr. In one sentence Talaq Talaq Talaq. It is lawful though it is
sinful according to Hanafi. Other schools do not approve this form.
Jurist Ameer Ali says King Humayun seems to have initiated this as, it was advantageous to him.

2. Single irrevocable declaration:

This is also not approved.

Legal effects:
(i) When divorce is irrevocable marital intercourse becomes unlawful.
(ii) If the husband or wife dies during Iddat with revocation each is entitled to inherit from the other.
(iii) If the divorce is irrevocable neither of them can inherit from the other.
(iv) Wife is entitled to maintenance during Iddat.

(b) lla (Vow Of Continence):

61
Husband takes oath to abstain from sexual intercourse. He should follow this for four months. Among
Shia's, Itthna Asharia school, the wife should get a decree if divorce is to be effective.

(c)Zihar (Injurious Assimilation) :

Zihar is a form of divorce by the husband. It means injurious assimilation. This is very rare
in India and of no practical importance. Here the husband swears that 'to me the wife is like the back of
my mother' or she is my sister. If he intends to revoke this declaration, he, must pay money by way of
expiation or fast for a certain period.
If he abstains for four months, the wife may get a decree of divorce from the court.
This was in existence in pre-Islamic Arabia, It is an archaic form of oath. Tyabji says that Zihar has no
significance in Indian law courts. But, Section 2 of the Shariat Act 1937 has recognised Zihar.

B: By the wife :
(a) Talaq-e-Tafwid (Delegation of power to divorce):

Talaq-e-tafwid or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim
husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may
delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of
power is revocable but a temporary delegation of power is not. This delegation must be made distinctly
in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly
stated. The po           F     
divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without
the intervention of any court and is now beginning to be fairly comm  I

This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai,
under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount
of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a
power to pronounce divorce to his wife. The husband left his father-in-    
amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the
exercise of the power delegated to her. Delegation of power may be made even in the post marriage
agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to
pay her maintenance or taking a second wife, she will have a right of pronouncing divorce on herself,
such an agreement is valid, and such conditions are reasonable and not against public policy . It should
be noted that even in the event of contingency, whether or not the power is to be exercised, depend
upon the wife she may choose to exercise it or she may not. The happening of the event of contingency
does not result in automatic divorce.

(b) Lian (Mutual imprecation):

If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode
of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the
husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground
of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an

62
allegation of infidelity against her, then what the husband says in response to the bad behaviour of the
wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.

C. By common consent:
(a) Khula (Redemption, Divorce at the request of wife):
Khula is the mode of dissolution of marriage when the wife does not want to continue with the marital
tie. Khula or redemption literally means "to lay down". In law it means laying down by a husband of his
right and authority over his wife. The wife proposes to her husband for dissolution of the marriage.
This may or may not accompany her offer to give something in return. Generally, the wife offers to
give up her claim to dower (Mehr). Thus, Khula is a divorce which proceeds from the wife which the
husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered
to give him in return. In Mst Bilquis Ikram Versus. Najmal Ikram, it was said that under the Muslim
law, the wife is entitled to Khula as of right if she satisfies the conscience of the Court that it will
otherwise mean forcing her into a hateful union.
Khula has been aptly defined by their Lordships of the Judicial Committee in Moonshee-Buzlu-ul-
Raheem Versus. Lateefutoon-Nisa, "A divorce by Khula is a divorce with the consent and 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. It signifies an arrangement entered into for the purpose of dissolving a
Connubial connection in lieu of compensation paid by the wife to her husband out of her property.
Khula in fact is thus a right of divorce purchased by wife from her husband."

Essentials of a valid Khula:

1. Competence of the Parties:
The husband and wife must be of sound mind and have attained the age of puberty (fifteen years). A
minor or insane husband or wife cannot lawfully effect Khula.
The guardian of a minor husband may not validly effect Khula on his behalf.
2. Free Consent:
The offer and the acceptance of Khula must be made with the free consent of the parties. But under
Hanafi law a Khula under compulsion or in the state of intoxication is also valid.
But, under all other schools including Shia law, without free consent of the parties, the Khula is not
valid.
3. Formalities:
There is an offer by the wife to release her form the matrimonial tie. The offer is made to the husband.
The offer for Khula must also be accepted by the husband. Until the offer is accepted, the divorce is not
complete and it may be revoked by the wife. But once the offer has been accepted, the divorce is
complete and becomes irrevocable. Offer and acceptance may either be oral or in writing. The offer and
acceptance must be made at one sitting that is at one place of meeting.
Under Sunni law the presence of witnesses is not necessary. But under Shia law the offer and
acceptance of Khula must be made in presence of two competent-witnesses. Further, under Shia law,
the Khula is revocable by wife during Iddat.

63
4. Consideration:
For her release, the wife has to pay something to the husband as compensation. Any sum of money or
property may be settled as consideration for Khula. There is no maximum or minimum limit as is in the
case of dower. But once this consideration has been settled, it cannot be increased.
Generally the wife relinquishes claim of her dower for her release or for her Khula. She may
relinquish her full dower or only a part of it. Where the dower has already been paid to the wife, the
wife may give to the husband some money or property. As a general rule, the exchange or consideration
is to be paid immediately to the husband. But the parties may agree for the payment of consideration
on a future date. In the Khula the marriage dissolves as soon as the proposal has been accepted even if
the payment of consideration has been postponed. Therefore, if she does not pay the consideration to
husband, the divorce is valid. In such cases, the husband may sue the wife for the recovery of that
amount.

(b) Mubarat (Mutual release):

Mubarat is also a divorce by Mutual consent of the husband and wife. In Khula the wife alone is
desirous of separation and makes the offer, whereas in Mubarat both the parties are equally willing to
dissolve the marriage. Therefore, in Mubarat the offer for separation may come either from husband
or from wife to be accepted by the other. The essential feature of a divorce by Mubarat is the
willingness of both the parties to get rid of each other, therefore, it is not very relevant as to who takes
the initiative. Another significant point in the Mubarat from of divorce is that 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.

Legal Consequences of Khula and Mubarat:

The legal effects of a valid Khula or Mubarat are the same as that of a divorce by any other method. The
wife is required to observe iddat and is also entitled to be maintained by the husband during the period
of iddat. After completion of Khula or Mubarat, the marriage dissolves and cohabitation between the
parties becomes unlawful.

Distinction Between Khula And Mubarat:

First,
In KHULA, There is Redemption of the contract of marriage where as in MUBARAT, Mutual release
from the marital tie.

Second,
In KHULA, Offer comes from the wife, husband accepts. Whereas in MUBARAT, Any party may make
the offer, the other side accepts.

Third,
In KHULA, Consideration passes from wife to husband where as in MUBARAT, No question of
consideration.

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Fourth,
In KHULA, Aversion is on the side of the wife where as in MUBARAT Mutual aversion is present.

2. Judicial divorce:
The Dissolution Of Muslim Marriage Act, 1939
Introduction:
Despite the Quranic injunction and the traditions of the Prophet, the Anglo-Indian Courts had denied
to Muslim women the rights of dissolution available to them under the Shariat. Before 1939, a
Muslim wife could seek her divorce by a judicial decree only on the grounds of,
(a) Option of puberty (Khyar-ul-Bulugh),
(b) Impotency of the husband,
(c) Lian that is false charge of adultery by the husband against her.

On the other hand, the husband need not go to the court at all as all the forms of divorce (Talaq, Ilia,
Zihar, Khula or Mubarat) depend solely upon his will. The classical Hanafi law of divorce was
causing great hardships as it consisted no provision whereby a Hanafi wife could seek divorce on such
grounds as disappearance of the husband, his long imprisonment, his neglect of matrimonial
obligations etc. Finding no other way to get rid of undesired marital bonds, many Muslim women felt
compelled by their circumstances to renounce their faith.

But now, the Dissolution of the Muslim Marriages Act, 1939 has introduced a revolutionary change in
this respect and has restored to her, right of divorce granted to her under Shariat. It is applicable to all
Muslim women irrespective of their school to which they belong. Section 2 of the Act contains nine
grounds on the basis of any one of which a wife married under Muslim law, may file a petition for
divorce. The grounds for matrimonial relief under Section 2 of the Act are available only to the
wife, not to the husband. This is because the Muslim law has already given an absolute right to the
husband to divorce his wife without judicial intervention and without any reason. The words used by
Section 2 of the Act are a "Woman married under Muslim law" and not a "Muslim Woman". This
protects women who have already abjured Islam in the hope of getting their marriage dissolved
and are thus no longer Muslims, they also can get their marriage dissolved on any of the grounds
given in the Act.

Grounds for decree for dissolution of marriage:

Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides that 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 grounds enumerated therein. The specified grounds are as under:

(1) Absence of Husband:

If the whereabouts of the husband are not known for a period of four years a woman married under
Muslim law shall be entitled to obtain a decree for the dissolution of her marriage, but, a decree passed
on this ground will not take effect for a period of six months from the date of such decree, and if the

65
husband appears either in person or through an authorized agent within that period, and satisfies the
Court that he is prepared to perform his conjugal duties, the court must set aside the said decree.

N               
(i) The names and addresses of the persons who would have been heirs of the husband under Muslim
Law if he had died on the date of the filing of the plaint shall be stated in the plaint.
(ii) Notice of the suit shall be served on such persons, and
(iii) Such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as party even if he or they
are not heirs.

(2) Failure to maintain:

If the husband has neglected or has failed to provide for her maintenance for a period of two years, a
married Muslim woman can obtain a decree for the divorce.
(2-A) That the husband has taken an additional wife in contravention of the provisions of the Muslim
Family Laws Ordinance, 1961;
The wife is not entitled to present a litigation of divorce against her husband on the following grounds:
a) When she lives separately without any reasonable cause. Yusuf Saramma -1971.
b) When she is unchaste to her husband: Mu. Khadiza v/s Abdula-1942.

(3) Imprisonment of husband:

If the husband has been sentenced to imprisonment for a period of seven years or upward the wife is
entitled to decree of the Court dissolving her marriage, but no decree can be passed on this ground
unless the sentence has become final.

(4) Failure to perform marital obligations:

If the husband has failed to perform, without reasonable cause, his marital obligations for a period of
three years, the wife can get her marriage dissolved by means of a decree.

(5) Impotency of husband:

If the husband was impotent at the time of the marriage and continues to be so, the wife is entitled to
judicial divorce for the dissolution of her marriage.

Before passing a decree, the Court shall, on application by the husband, make an order requiring the
husband to satisfy the Court within a period of one year from the date of such order that he has ceased
to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed
on the said ground.

(6) Insanity, leprosy or venereal disease:

If the husband has been insane for a period of two years or is suffering from leprosy or a virulent
venereal disease the wife may claim a judicial divorce under the Act.

(7) Repudation of marriage by wife (option of puberty):

66
If she, having been given in marriage by her father or other guardian before attaining the age of 15
years, repudiated the marriage before attaining the age of 18 years and the marriage is not
consummated, she is entitled to a decree of divorce.

(8) Cruelty of husband:

Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty, that is to
say:
(a) Habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conducts
does not amount to physical ill-treatment.
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her from exercising her legal right over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more wives than one, and does not treat her equitably in accordance with the injunctions of
the Quran.
Noorjahan Bibi v/s Kazim Ali-1977:
A false charge of adultery by husband over wife was considered to be cruelty.
Begum Zohar v/s Mohammad Isfaq ut Majid-1955:
The use of abusive language by husband and use of defamatory words by husband was held to be cruelty.

(9) Grounds of dissolution recognised by Mohammaden Law:

The wife is also entitled to a decree for the dissolution of her marriage on any other ground which is
recognised as valid for the dissolution of marriage under Muslim law. They are known as Traditional
Grounds, such as: IIa, Zihar, Khula, Mubarat and Tafweez.
Thus, while giving some additional grounds of divorce to a Muslim wife, the Act has not affected her
right of divorce on the ground already available under Muslim law.
In Muhammad Usman Versus Sainaba Umma, the Court has held that Section 2(9) is a residuary ground
where courts have an area of discretion and freedom to dissolve the marriage. This clause has been
interpreted to mean that if a wife finds that it is impossible for her to continue the marriage and that
her marital life has totally been broken down then she should not be compelled to live with the husband
for want to any defined ground for divorce. Where the court is satisfied that marital relations between
have actually been broken down beyond reasonable doubt, the Court may include any reason or ground
for giving relief to wife.

Effect of conversion to another faith:

If a husband converts to another religion the marriage is dissolved at the instance, so if a husband changes
religion his wife has a ground for divorce under section 4 of the Act-1939.

If a Muslim wife renounces Islam, the marriage is not dissolved. The apostasy by a Muslim wife does not
operate as immediate dissolution of the marriage. She continues to be a wife married under Muslim
law. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the
dissolution of her marriage on any of the grounds specified in Section 2 of the Act.

67
Exception, Where the wife was a converted Muslim at the time of her marriage, and such converted
Muslim wife renounces Islam and again embraces her original religion, then the marriage dissolves
immediately. Thus, an apostasy by a converted Muslim wife results in the immediate dissolution of her
marriage.

Right to dower not be affected:

Nothing contained in this Act shall affect any right which a married woman may have under Muslim law
to her dower or any part thereof on the dissolution of her marriage

(Repeal of section 5 of Act, XXVI of 1937):

Repealed by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.

68
 16. Who are entitled to claim maintenance? Under which law a
divorced Muslim Woman is entitled to claim maintenance? Explain.

Introduction:
Under the Muslim Law a man is bound to maintain his wife and his minor children irrespective of his and
her means as long as he is not indigent. (Suffering from extreme poverty: impoverished.)

Definition of Maintenance:
M    A N   W      .
However in the legal sense maintenance signifies and includes three things:
(i) Food
(ii) Clothing
(iii) Shelter.

Maintenance of wife:
1. Maintenance during the subsistence of marriage:
The husband is liable to maintain the wife from the date when the wife attains puberty and as long as she
is obedient and faithful to her husband. The husband is bound to maintain her even though she may have
the means to maintain herself.

A Muslim wife who is living separately may claim maintenance against him for example if the husband
treats her cruelly or marries with second wife without her consent. The maintenance of the wife's servants
is also incumbent upon her husband, provided he is in opulent circumstances.

If a woman refuses to surrender herself to her husband on account of non-payment of dower, her
maintenance does not drop and it would still incumbent be upon the husband.

If the wife is a minor so that the marriage cannot be consummated, there is no legal obligation on the
husband's part, according to the Hanafis, to maintain her.

If a wife is disobedient or refractory and goes abroad without her husband's consent, she is not entitled
to any support from him until she returns and makes submission.

2. Maintenance of a divorced wife:

In case of a divorced wife, she is entitled to maintenance during her period of probation (iddat) and further
the wife cannot re-marry a second time for three months, which is the period of iddat.

In a case of Mohammad Ahmad Khan v/s Shah Bano Begum-1985, although the Muslim law limits the
        fe up to the period of Iddat, The court held
that if the divorced wife is unable to maintain herself after the period of Iddat she is entitled to take
recourse to section 125 of Cr.P.C.

3. Maintenance of a Widow:

69
The right to maintenance ceases on the death of husband. Wife is entitled during Iddat that is 4 months
and 10 days, or if she is pregnant (at the time of the death of the husband), until she delivers the child.

4. Failure to maintain:
If a husband fails to maintain or neglects his wife for two years, she is entitled to dissolution of her
marriage under the Dissolution of Muslim Marriage Act 1939. But, she has no right to maintenance, for
her life time.
If a husband absents himself, leaving his effects in the hands of another, his wife is entitled to get
maintenance out of the husband's effects. In fact, children and parents of the husband will also get
maintenance out of the assets.

5. Quantum Of Maintenance:
In determining the quantum of maintenance, regard is to be given to the status and condition of both
the parties. If both the parties are wealthy, he must support her in an opulent manner; if both be poor,
the husband is required to provide for her accordingly; if he be rich and she poor, he is to afford her a
moderate subsistence such as is below the former and above the latter.

If the maintenance of a wife is decreed by a Qazi or Court at a time when the husband was poor but
afterwards he becomes rich, she can sue for a proportionate addition to her maintenance, and a decree
must be given in her favor.

Protection of Rights on Divorce Act-1986:

Shaw Banu's Case: In this case, the Muslim husband H an advocate, divorced his wife Shaw Banu by
declaring Talaq, when the wife sued for maintenance under Section 125 Cr. P.C. The Supreme Court held
that she was entitled to maintenance irrespective of the personal laws of the spouses.
However, this led to wide spread demonstrations and controversy which pressurized the then Rajiv
Gandhi government to pass Muslim Women Protection of Rights on Divorce Act (1986).
Section 3(a) says:
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period
by her former husband;
This legislation failed to address the real issue. This law created new confusion and contradiction
amongst the views of different High Courts because of the loose drafting.

Section 3 of this Act tries to prevent a Muslim woman from seeking remedy under Section 125Cr. P.C.
The controversy in section 3 are the words in the iddat period.

But no where the Parliament has provided that reasonable and fair provision and maintenance is limited
only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless
she gets married for a second time.
The constitutionality of this act was challenged in 2000 in the case of: DANIAL LATIFI vs UNION OF INDIA
AIR 2000 (SC)

70
While upholding the validity of the Act, the following conclusions were reached:

1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife
which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond
the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the
Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat
period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain
her in proportion to the properties which they inherit on her death according to Muslim law from such
divorced woman including her children and parents. If any of the relatives being unable to pay
maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such
maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

The Danial Latifi judgment remains the final case law in this regard.

It was held that sec 3 of Muslim Women Protection of Rights on Divorce Act entitles a Muslim women for
maintenance even beyond IDDAT period and the controversy was set aside once and for all.
The following are the provisions:
1. A reasonable and fair provision and maintenance to be made and paid to her within the Iddat period
by her former husband.
2. Where she herself maintains the Children born to her before or after her divorce, a reasonable and fair
provision of maintenance for a period of two years from the respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or
at any time thereafter according to Muslim Law.
4. All the properties given to her before or at the time of marriage or after the marriage by her relatives
or friends or the husband or any relatives of the husband or his friends.
5. The affected Muslim woman should claim maintenance from her relatives in the first instance, and
from the Wakf Board if need be i.e., when the relatives are unable to maintain her.

Conclusion:
By virtue of judicial pronouncements and other steps, rights of Muslim women has been restored.

Children:
In respect of children, father should maintain the sons till they attain puberty and the daughters until
they are married.

In case of an illegitimate son, the father is bound to maintain his illegitimate child (from the judgments
of Section 125 of the Criminal Procedure Code, 1973, which provides that all such unfortunate children
are maintained by their fathers). The father would be liable to pay this amount even if the mother
refuses to surrender the illegitimate child to him.

71
If a child prefers to live with the mother due to natural affection or attachment for her, that would not
affect the liability of the father to maintain the child.

In case when the mother is not poor and the father is necessitous, then the mother is liable to maintain
the children.

Parents:
The liability to maintain parents rests only on the children and is not shared by anyone else. As between
the parents the mother is entitled to preference over the father.

17. What are the grounds on which wife can claim divorce from her
husband under the Divorce Act, 1869?

72
The Divorce Act of 1869 is an Act to amend the law relating to divorce and matrimonial causes of
persons professing Christian religion. This Act amends to the whole of India except the state of Jammu &
Kashmir.

Grounds for Dissolution of marriage:

Section 10 of this Act has been amended by the Indian Divorce (Amendment) Act 2001 which came into
force on 03-10-2001. According to the amended provision of section 10(1) any marriage solemnized
whether before or after the commencement of the said Amendment Act may on a petition presented to
the District Court by the husband or the wife be dissolved on the ground that since the solemnization of
the marriage, the respondent:

1. Has committed adultery

2. Has ceased to be Christian by conversion to another religion
3. Has been incurably of unsound mind for a continuous period of not less than 2
years immediately before the presentment of the petition.
4. Has been suffering from a virulent and incurable form of leprosy for a minimum period of 2
years immediately preceding the presentment of the petition.
5. Has been suffering from a venereal disease in a communicable form for a minimum period of 2
years immediately preceding the presentment of the petition.
6. Has not been heard of being alive for a period of 7 years or more by those persons who should
have naturally heard of the respondent if the respondent had been alive.
7. Has willfully refused to consummate the marriage and thus, the marriage has not been
consummated.
8. Has failed to comply with the decree of     for a period of 2 years or
more, after the passing of the decree against the respondent.
9. Has deserted the petitioner for at least 2 years immediately preceding the presentment of the
petition.
10. Has treated the petitioner with such  that may have caused reasonable apprehension in
the mind of the petitioner that it would be harmful for the petitioner to live with the
respondent.
The amended provision of section 10(2) is only applicable in case of wife as the petitioner of the
dissolution of marriage.

According to Section 10(2), a wife is entitled to the presentment of the petition for dissolution of her
marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of 

1. Rape
2. Sodomy
3. Bestiality

18. Bars to matrimonial remedies

Introduction:

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Even when the respondent is guilty of a matrimonial offence, the petitioner will not be granted divorce
if it is established that he is not an innocent party or he has done something disentitling him from the
remedies. Thus, the burden of proof is on the petitioner. There are mainly eight bars to matrimonial
remedies. They are as follows:
1. Doctrine of strict proof
2. Taking     wrong or disability
3. Accessory
4. Connivance
5. Condonation
6. Collusion
7. Delay
8. Any other legal ground
A decree passed in disregard of the bars is a nullity.

M          who comes to      
The second, third and fourth bars mentioned above are laid down on basis of this maxim.

Doctrine of Strict Proof:

The doctrine of strict proof is recognized under all the matrimonial laws. Just like in an ordinary civil case
proceedings, in matrimonial cases also there are three situations which usually arises 
i.The defendant appears in the courts and opposes the claim of the plaintiff
ii.The defendant, even after the summons, does not appear before the court and the court, therefore,
proceeds in his absence.
iii. The defendant puts up appearance in the court and admits the claim of the plaintiff.
In a normal civil proceeding, it is only in the first situation that the plaintiff has to establish his case by
adducing oral and documentary evidence, as may be necessary and the case will be decided accordingly.
However, in a
matrimonial proceeding, the petitioner must establish the ground of matrimonial remedies beyond all re
asonable doubts in all the three situations.
No petition can be decreed merely on the basis of admissions of parties. In Hirakali v Avasthy, the court
refused to recognize a consent decree for judicial separation since it felt it was violative of the
requirement of doctrine of strict proof enacted in section 23(1).

T A    W  D

This bar has not been enacted in all Indian personal laws. It has been enacted only in the Hindu Marriage
act. Under the Hindu Marriage act this bar applies to all matrimonial causes except a petition for
annulment of marriage on the grounds of incapacity to give consent.
T                
petition cannot be granted.
A petition in a matrimonial cause can be granted only if the petitioner comes to the court with clean
hands.
The Indian Divorce Act lays down that a petitioner may be refused a decree of divorce if the court finds
that he or she has been, during the marriage, guilty of adultery or cruelty towards the respondent or of
deserting her or him and of willfully separating from her or him and such conduct has conduced to the
adultery of the respondent.

74
Accessory:
This bar is applicable only when petition is filed         H
Marriage Act, the Special Marriage act, and the Divorce act.
In the Parsi Marriage and Divorce Act, section 12 says the following:
I             tiff has to show that he has not connived
               
Accessory is usually a term used in criminal law. It implies an active participation by the petitioner in the
crim    B            
participation in the act, and if such a participation is established, the petitioner cannot get a decree of
divorce or judicial separation even if he has been a       
doubts.
T      I        

Connivance:
As provided in the Hindu Marriage Act, the Special Marriage act, and the Divorce act, connivance is a bar
to the matrimonial offence of adultery alone. But in the Parsi Marriage and Divorce Act, connivance is a
general bar.
C            A   
of the same quality but in the former there is an active participation by the petitioner whereas in the
latter, there is corrupt intention but no active participation. Consent, either expressed or implied, is
necessary to constitute connivance. In K.J. v K, it was said that when a spouse by voluntary deliberate
conduct encourages the other spouse to commit a matrimonial offence it amounts to connivance.
Once consent is established for the first act, it is no defence that he did not consent to its repetition.
However, mere intention, negligence, folly, dullness or apprehension or imprudence does not amount to
connivance.

Condonation:
Under the Hindu Marriage Act, and the Special Marriage act, condonation applies to the matrimonial
offences of adultery and cruelty. Under the Divorce Act, condonation applies only to adultery. Under the
Parsi marriage and Divorce Act, condonation is a general bar and applies to all the matrimonial offences.

Condonation can be defined as follows:

Condonation is the reinstatement of a spouse who has committed matrimonial offence in his or her
former matrimonial position with the intention of remitting it, that is to say, with the intention of not
enforcing the rights which accrue to the wronged spouse in consequence of the offence.

Condonation has two essential elements: forgiveness and reinstatement. The innocent spouse must
forgive and reinstate the guilty spouse. Forgiveness must be followed by resumption of cohabitation.
In Dastante v. Dastante, the husband continued to suffer the ill treatment from his wife and continued to
cohabit with her and a few months before the presentation of the petition for judicial separation on the
          T “ C    

75
of sexual intercourse was evidence of both forgiveness and reconciliation and raised a presumption of
condonation.
Any condonation procured by fraud will be of no consequence and therefore it will not amount to
condonation.
If husband condoned her adultery on her misrepresentation that she was seduced while drugged or that
she was not pregnant by the co-respondent.
Handerson v. Handerson lays down that condonation once given cannot be revoked. The exception to this
rule is that in every condonation, there is an implied condition that the offending spouse will behave in
the future and if this is violated, the old matrimonial offence will revive. An example for this can be seen
in the case of Yaduraj v. Sunder Bai where the wife could seek relief on the basis of the condoned offence
after he misbehaved.

However, the doctrine of revival of condoned offences does not continue for all times to come. In Candy
v. Candy, the court observed that the revival of the condoned offence depends upon the circumstances
of the offence, the time which has elapsed since it was committed, the behaviour of the spouse in the
meantime, the seriousness of the conduct alleged to have revived the offence and its circumstances
including the manner and custom of the grade of society to which the parties belong. A time will come
when the offence is completely obliterated so that no future misconduct of any sort will revive it.

Collusion:
Originally under the Hindu Marriage Act, and the Special Marriage act, collusion was a bar to all
matrimonial reliefs, but the Marriage Laws (Amendment) Act has abolished collusion as a bar to the
petitions for a declaration that a marriage is null and void under the Hindu Marriage Act. However, such
an amendment has not been made under the Special Marriage Act. Collusion is also a bar to all
matrimonial reliefs under the Parsi Marriage and Divorce Act. Under the Divorce Act collusion is a bar to
relief of dissolution of marriage.
Collusion is an agreement, arrangement or understanding, express or implied, between the parties or
their agents whereby matrimonial remedies is sought to be obtained by deceiving the court by
misrepresentation, exaggeration or suppression of facts or by fabricating evidence where in fact no
ground or sufficient ground exists for the matrimonial relief sought. The burden of proof of no collusion
is on the petitioner.
C                 
     

Collusion should not be a mere mechanical inference. The doctrine of collusion is based on the principle
that all those who seek relief from the matrimonial court should go there with clean hands.
Under the Indian law divorce by consent can be obtained on the fulfillment of certain conditions, one of
which is that prior to the presentation of the petition for divorce by mutual consent, parties must show
that they have been living separately for a period of one year. Parties may state that they have been so
living, though in fact it is not so. This will amount to collusion.

Improper and Unnecessary Delay:

76
Improper or unnecessary delay is a bar to relief in respect of all matrimonial causes under the Hindu
Marriage Act, the Special Marriage act, and the Parsi Marriage and Divorce Act. Under the Indian Divorce
Act unreasonable delay is a bar only to the matrimonial relief of divorce. In Mina Devi v. Bachan Singh
Deoki Nandan J said that the matrimonial bar of delay should not apply when marriage is void. A marriage
which is null and void is no marriage and a decree of nullity is merely a formal judicial declaration of an
existing fact.
The period within which a petition must be presented is laid down in some of the grounds such as in cases
of a petition for nullity on the ground of pre-marriage pregnancy or on the ground that consent was
obtained by fraud or force. The Parsi Marriage and Divorce Act specifically lays down that bar of
unreasonable delay applies only to those cases where definite period of limitation is not laid down in the
Act. Even though no specific provision has been enacted in the other Indian matrimonial statutes, it still
exists.
In Nand Kishore v Munni, it was made clear that the Indian Limitation Act does not apply to petitions
under the matrimonial causes. To determine the period the equitable doctrine of laches has been made
applicable. It broadly means that any delay which can be reasonably or properly explained is not a bar to
any matrimonial relief.
The burden of proof that there has not been any improper or unreasonable delay is on the petitioner.

Residual Clause, Other Legal Grounds:

Hindu Marriage Act, the Special Marriage act, and the Parsi Marriage and Divorce Act, there is a residuary
clause which lays down there should be no other legal ground for refusing the petition. This is a general
bar applicable to all matrimonial remedies. There is no such clause under the Divorce Act.
This residuary clause has not yet come up for interpretation before the Indian courts. However, the editor
 M H                  
with the various grounds of matrimonial causes. According to Derrett, this clause authorizes the court to
apply the learning accumulated in India and abroad which modifies the bare rights to seek matrimonial
relief set out in Sections 9 to 13 of the Hindu Marriage Act. According to Paras Diwan, this clause has been
enacted to cover some hard cases where the relief has to be refused on account of some principle of
public policy.

19. Write a note on alimony under Indian Divorce Act.

Sections:

77
36, 37, 38 of The Indian Divorce Act, 1869

36. Alimony pendente lite:

In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has
obtained an order of protection the wife may present a petition for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the
statements therein contained, may make such order on the husband for payment to the wife of alimony
pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one-     
income for the three years next preceding the date of the order, and shall continue, in case of a decree
for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as
the case may be.

37. Power to order permanent alimony:

The High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any
decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the
confirmation of any decree or his declaring a marriage to be dissolved, or on any decree of judicial
separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money,
or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if
any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that
purpose may cause a proper instrument to be executed by all necessary.

Power to order monthly or weekly payments:

In every such case the Court may make an order on the husband for payment to the wife of such monthly
or weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall
be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the
whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in
part as to the Court seems fit.

38. Court may direct payment of alimony to wife or to her trustee:

In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid
either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose
any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new
trustee, if it appears to the Court expedient so to do.

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79
 UNIT 4
20. Discuss the limitations on the testamentary power of a Muslim in
bequeathing his properties under a will.

Introduction:
When a person dies his/her property devolves upon his/her heirs. A person may die with or without a
will (Testament). If a person dies leaving a will the property is distributed among his/her heirs according
to the rules of Testamentary Succession. In other words, the property is distributed as per the contents
of the testament or will. On -the other hand if a person dies leaving no testament (will) i.e. dies
intestate, the rules of intestate Succession are applied for distribution of the property among heirs.

When a Muslim dies there are four duties which need to be performed. These are:
1. Payment of funeral expenses
2. Payment of his/her debts
3. Execution of his/her will
4. Distribution of the remaining estate amongst the heirs according to Sharia

The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the
  T             T
one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is
generally referred to as a legatee (al-musa lahu). Technically speaking the term "testatee" is perhaps a
more accurate translation of al-musa lahu.

The importance of the Islamic will:

The importance of the Islamic will (wasiyya) is clear from the following two Hadiths:
"It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will
about it." (Sahih al-Bukhari)
"A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament,
the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a
man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed
will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah)

The will gives the testator an opportunity to help someone (e.g. a relative in need such as an orphaned
grandchild or a Christian widow) who is not entitled to inherit from him.)

Property:
A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in
existence and transferable at the time of testator's death.

To whom applicable:
Any person having capacity to hold the property can be a legatee (The person/s, in whose favour, the
will is created is called 'Legatee'). The Legatee may be a Muslim or a Non-Muslim, man or woman a

80
major or a minor or even a child in the womb provided the child is born within 6 months of the death of
the testator.
However, Shia Law differs in respect of this period and says Will can be made in respect of an unborn
child even if it takes birth in the longest period of gestation i.e. ten lunar months. A Muslim wife can
never be disinherited. However, if she is one of multiple wives, she is required to share her inheritance
in equal portions.

Essentials:
1. The Will (Al-wasiyya):
The Islamic will includes bequests and legacies, instructions and admonishments, and assignments of
rights.
Under Muslim law, it is not necessary to make a Will only in writing. It may be made either orally or in
writing. No particular form is prescribed and a written Will need not be signed or attested. The only
requirement is, the Intention must be clear. There should be two witnesses to an oral declaration of
the wasiyya. A written wasiyya where there are no witnesses is valid if it written in the known
handwriting/signature of the testator.

2. Capacity:
Every Muslim, who is of sound mind is entitled to make a will. He must not be a minor. A Muslim attains
majority at 15 but, according to the Indian Majority Act, he attains majority at 18, to make a will. A will
made under coercion, undue influence or fraud is invalid.

3. Revocation:
The person making the Will may revoke it at any time either impliedly or expressly. If A makes a will
bequeathing his farm house to B and later sells it to C, there is implied revocation.
The express revocation may be either oral or in writing.
If the testator makes a second will, the first will is superseded.
If the same thing is given to two different persons in the same will, then the bequest is to be shared
equally.

4. Restrictions:
There are two main restrictions:
(a) A Muslim can make a Will only in respect of one-third portion of his property and the other two
thirds of the property goes in inheritance to the legal heirs.
When the testator dies, funeral expenses, debts and other charges are to be met first. Then in the
residue, one third is the "bequeathable third." E.g., Rahman dies leaving 2 lakh Rupees. The funeral
expenses, debts and others account for Rs. 80,000. Hence the balance is Rs. 1, 20,000. The bequeathable
third is Rs. 40,000. Any bequests above this amount are void.
Thus, a Muslim cannot deprive his legal heirs of more than 1/3rd of his estate.

(b) He should not bequeath to his own heirs. However, the bequest is valid, if other heirs give their
consent on the death of the testator.

81
Example, Salman has two heirs, Shahrukh and Aamir. He wants to give some property to one of his heirs
Shahrukh. I   “     “       “ 
Aamir consents to the giving of property. Therefore, if Aamir says no, Shahrukh does not get his
property/asset.

The will fails if these restrictions are not followed.

If the heirs do not question the Will for a very long time and the legatees take and enjoy the property,
the conduct of such heirs will amount to consent. Once a heir gives his consent to the bequest, then he
cannot rescind it later on.

5. Object:
The will is invalid if the will is opposed to Islam, Hence, a will to build a Hindu temple, a Christian Church
or a Jewish Synagogue, is void.

6. Legatee:
A bequest may be made in favour of any person, irrespective of his religion. It may be made to an
institution, or for a religious charitable object not opposed to Islam, A legatee who has killed the
testator is disqualified.

7. Bequests:
a. It is not necessary for the things to be bequeathed to exist at the time of making the will. It should
exist at the time of death.
b. Contingent bequests are void. A bequest has to be unconditional.
c. Alternative bequests are allowed.

Example, If Salman says  I   “       A     
are     “ A K    

8. Executors:
The person carrying out the will is an executor. He can be anyone chosen by the testator. Religion is no
bar.

When not applicable:

But if the marriage of a Muslim has been held under the Special Marriages Act, 1954, then such a
Muslim cannot execute a Will under the Muslim law as the provisions of Indian Succession Act, 1925
shall be applicable in such cases.

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 21. State the rules of succession applicable to a Parsi dying intestate.

The Indian Succession Act 1925, Sections 50-56.

Distribution of properties of Parsi person as per succession laws:

The Following points have to be considered while distributing the property of a Parsi dying intestate:
1. Persons born in the lifetime of the deceased Parsi person, or at the date of his death conceived in the
womb and subsequently born alive, is considered.
2. If a lineal descendant i.e a child or remoter issue dies before the deceased Parsi without leaving
widow or widower or lineal descendant or widow or widower of lineal descendant, the share of such
child shall not be taken into consideration.
3. Where a widow or widower of any relative marrying again during the lifetime of the intestate Parsi,
such widow or widower is not entitled to receive any share in the property of the deceased Parsi.

General Rules for Division of the property of a Parsi dying intestate among widow, widower, children
and parents:
1. Widow & Children:
Each of them receive equal shares.
E.g. Son Widow Daughter
1 1 1
2. No Widow & only Children:
Equally among children E.g.
Widow Son Daughter
0 1 1
3. Parents in addition to widow or widower and children:
F                     
the daughter. If one of the parents survives, he or she gets the same share. E.g.
Widow Son Daughter Father Mother
1 1 1 ½ ½

Some important points to be noted:

a. The parents get the share only when the son dies without the will and not in the case of the daughter
b. Parents does not include stepfather & stepmother.
c. Sons and daughters include both full blood & half blood.

A) Rules for Division of share of predeceased child of Parsi dying intestate leaving lineal descendants:
1. If the deceased child is a son:
His widow & children shall take the shares as per the above general rules as if he had died immediately
after his deceased father.
2. If the deceased child is a daughter:

83
Her share shall be equally divided among her children.
3. If any child of such deceased child has also died during the lifetime of the Parsi intestate, his share will
be divided in accordance with the above general rules.
4. If the remoter lineal descendants had died during the lifetime of the Parsi dying intestate, his or her
widow/widower and /or children will take the share of their predeceased parent.

B) Rules for Division of property where a Parsi dying intestate leaves no lineal descendants but leaves
widow or widower or a widow or widower of any lineal descendants:
1. Widow or Widower but no widow or widower of a lineal descendant:
Widow or Widower Relatives
½ ½
2. Widow or Widower and also widow or widower of a lineal descendant:
Widow or Widower Widow of lineal descendant Relatives
1/3 1/3 1/3
3. No Widow or Widower but widow/(s)of a lineal descendant:
i) One widow of lineal descendant Relatives
1/3 2/3
ii) More than one widow of lineal descendants Relatives
2/3 1/3
4. Relative Share distribution:
The shares will be distributed in the following order and the next of kin standing first will be preferred to
those standing second and the second will be preferred to the third and so on.
i) Father and mother.
ii) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as
shall have predeceased the intestate.
iii) Paternal grandparents.
iv) Children of paternal grandparents and the lineal descendants of such of them as have predeceased
the intestate.
v) Paternal grandparents' parents.
vi) Paternal grandparents' parents' children and the lineal descendants of such of them as have
predeceased the intestate.
vii) Maternal grandparents and their lineal descendant and their children.
viii) Half brothers and sisters and the lineal descendants of such of them as have predeceased the
intestate.
ix) Widows of brothers or half brothers and widowers of sisters or half sisters.
x) Paternal or maternal grandparents' children's widows or widowers.
xi) Widows or widowers of deceased lineal descendants of the intestate who have not married again
before death of the intestate

C) Where there is no relative as specified above, the property of the Parsi who has died intestate shall
be divided equally among those of the intestate's relatives who are in the nearest degree of kindred to
him.

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 22. Define Probate. Explain the procedure for obtaining probate.

Definition:
A Probate is a document that certifies that the copy of the Will that is attached to it, has been proved in
a relevant court. A Probate is issued under a seal of the Court. A Probate can be granted by the Court only
to the Executor (i.e. the person who will implement or execute the Will after its maker's death). The legal
effect of the grant of a Probate is that it establishes the legal character of the Executor to implement the
Will and to the validity of the Will.
For example if a person appointed as the Executor, transfers certain shares of a company to another
person as per the Will, then the company whose shares are being transferred can ask for the status of the
Executor, since on their record, the owner is another person. In such a case the Probate establishes the
Executor's right to apply for the transfer of the shares since the owner has died and that the Will is valid.

To whom can a Probate be granted?

A Probate can be granted by the Court only to the Executor. A Probate establishes the legal character of
the person (to whom the Probate has been granted) as the one who can act on behalf of the maker of the
Will who has died. A Probate cannot be granted to a minor or a person of unsound mind or to an
association of individuals (unless it is a company, in certain cases). However, "there is nothing in the law
to prevent the Executor from acting as an Executor and exercise a power given to him without obtaining
Probate. A Probate mainly gives adequate protection...".

When can a Probate be granted?

A Probate can be granted only after seven clear days from the date of death of the person who has made
the Will.

When is a Probate necessary?

A Probate is necessary when the Will is that of Europeans, East Indians, Armenians, Jews, Indian Christians
and Parsis. It is also necessary in case of Wills of Hindus, Buddhists, Sikhs or Jains in Chennai, Kolkata and
Mumbai or where they relate to immovable asset in these places. It is also necessary where a debt due to
the estate of a Hindu is to be recovered.

Procedure for Obtaining Probate:

A petition for probate must be filed in court along with the will in question. It should contain the following
facts.
a. The time of the Testator's death
b. That the writing annexed is his last will and testament
c. That it was duly executed
d. The amount of assets which are likely to come to the petitioner's hands, and
e. The petitioner is the executor named in the will

The application for probate shall be signed and verified by the executor or beneficiary.
The petitioner shall furnish a blank stamp paper of value equal to the requisite court fee, along with the
application. The court shall grant the probate on the said stamp paper.

85
After receipt of the petition, the court issues notice to the next of kin of the deceased to file their
objections, if any, to the grant of probate.
A general public notice is also given in a newspaper.
The petitioner is thereafter asked to establish the
a. Proof of death of the testator;
b. Proof that the will has been validly executed by the testator
c. Will is the last will and testament of the deceased.

What is a Letter of Administration?

A Letter of Administration is issued by a competent authority and appoints the Administrator to dispose
of the asset of a person who has died without making a Will or in relation to an asset that is not covered
in the Will.

When can a Letter of Administration be granted?

A Letter of Administration can be granted after 14 clear days from the date of death of an intestate.

To whom can a Letter of Administration be granted?

A Letter of Administration may be granted to one or several people who may apply to the Court. If no one
applies, it may be granted to a creditor of the deceased. A Letter of Administration cannot be granted to
a minor or a person of unsound mind.

23. State the rules of succession applicable to a Non Parsi dying

intestate.

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 Introduction:
Inheritance in Absence of a Will under Indian Succession Act, 1925,
The Indian Succession Act, 1925 came into operation on 30th September 1925 and it seeks to
consolidate all Indian Laws relating to succession. It has no retrospective operation and is applicable to
intestate and testamentary succession.

Sections: 31-50

Intestate Succession:
Intestate means when a person dies without making a will, which is capable of taking effect. The
property devolves upon the wife or husband or upon the relatives of the deceased in the following
manner.
1. A has left no will:
He has died intestate in respect of the whole of his property.

2. A has left a will, whereby he has appointed B his executor; but the will contains no other provisions:
A has died intestate in respect of the distribution of his property.

3. A has bequeathed his whole property for an illegal purpose:

A has died intestate in respect of the distribution of his property.

4. When a will is partially incapable of being operative:

A has bequeathed RS 1000 to B and RS 1000 to the eldest son of C, and has made no other bequest; and
has died leaving the sum of Rs. 2000 and no other property. C died before A without ever having had a
son. A has died intestate in respect of the distribution of Rs.1000.

Application:
1. Hindus, Muslims, Buddhist, Sikh, Jains:
This part does not apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jains.
Muhammadans are governed by Muhammadan Law of Inheritance and the Hindus Buddhists,
Sikhs and Jains by the Hindu Succession Act, 1956.

2. Parsis:
The following provisions do not apply to Parsis.

3. Special Marriage Act:

Notwithstanding anything contained in the Indian Succession Act with respect to its application
to members of certain communities, succession to the property of any person whose marriage is
solemnized under the Special Marriage Act and to the property of the issue of such marriage
shall be regulated by the provisions of the Indian Succession Act.

However if two persons who are Hindus get married under the Special Marriage Act the above
provision does not apply and they are governed by the Hindu Succession Act.

87
Distribution of property:
The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred
of the deceased, in the order and according to the rules given below.

However a widow is not entitled to the provision hereby made for her if, by a valid contract made
before her marriage, she has been excluded from her distributive share of her husband's estate.

A. Where the intestate has a widow:

1. And any lineal descendants:
One third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal
descendants, according to the rules here in after contained;

2. And Kindred only:

One-half of his property shall belong to his widow, and the other half shall go to those who are of
kindred to him, in the order and according to the rules here in after contained:

3. And no kindred:
The whole of his property shall belong to his widow.

Lineal descendants mean descendants born in lawful wedlock only.

B. Where intestate has left no widow, and where he has left no kindred.
It shall go to the Government.

Rights of widower:
A husband surviving his wife has the same rights in respect in respect of her property, if she dies
intestate, as a widow has in respect of her husband's property, if he dies intestate.

C. Rules of Distribution (Children, Grandchildren Etc.):

The rules for the distribution of the intestate's property (after deducting the widow's share, if he has left
a widow) amongst his lineal descendants are as follows:

1. Where intestate has left child or children only:

Where the intestate has left surviving him a child or children, but no more remote lineal descendant
through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be
equally divided among all his surviving children.

Child or children:
The word "child" does not include an illegitimate child, but must be one born out of lawful wedlock. The
words "any child" mean and include "children" as well.

2. Where intestate has left no child, but a grandchild or grandchildren:

Where the intestate has not left surviving him any child, but has left a grandchild or grandchildren and
no more remote descendants through a deceased grandchild, the property shall belong to his surviving
grandchild if there is only one, or shall be equally divided among all his surviving grandchildren.

88
 3. Where intestate has left only great-grandchildren or remoter lineal descendants:
In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the
intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote
degree.

4. Where intestate leaves lineal descendants not all in same degree of kindred to him, and those
through whom the more remote are descended are dead.
1. If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him,
and the persons through whom the more remote are descended from him are dead, the property shall
be divided into such a number of equal shares as may correspond with the number of the lineal
descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or,
having been of the like degree of kindred to him, died before him, leaving lineal descendants who
survived him.
2. One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree
of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of
such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal
descendants shall belong to his surviving child or children or more remote lineal descendants, as the
case may be; such surviving child or children or more remote lineal descendants always taking the share
which his or their parent or parents would have been entitled to respectively if such parent or parents
had survived the intestate

D. Rules of Distribution (No lineal descendants)

Where an intestate has left no lineal descendants, the rules for the distribution of his property (after
deducting the widow's share, if he has left a widow) are as follows.

1. Where intestate's father is living:

If the intestate's father is living, he shall succeed to the property.

2. Where intestate's father is dead, but his mother, brothers and sisters are living:
If the intestate's father is dead, but the intestate's mother is living, and if any brother or sister and the
child or children of any brother or sister who may have died in the intestate's lifetime are also living,
then the mother and each living brother or sister, shall be entitled to the property in equal shares, such
children (if more than one) taking in equal shares only the shares which their respective parents would
have taken if living at the intestate's death.

3. Where intestate's father is dead and his mother and children of any deceased brother or sister are
living.
If the intestate's father is dead, but the intestate's mother is living, and the brothers and sisters are all
dead, but all or any of them have left children who survived the intestate, the mother and the child or
children of each deceased brother or sister shall be entitled to the property in equal shares, such
children (if more than one) taking in equal shares only the shares which their respective parents would
have taken if living at the intestate's death.

89
4. Where intestate's father dead, but his mother living and no brother, sister, nephew or niece.
If the intestate's father is dead, but the intestate's mother is living, and there is neither brother, nor
sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.

5. Where intestate has left neither lineal descendant, nor father, nor mother.
Where the intestate has left neither lineal descendants, nor father, nor mother, the property shall be
divided equally between his brothers and sisters and the child or children of such of them as may have
died before him, such children (if more than one) taking in equal shares only the shares which their
respective parents would have taken if living at the intestate's death.

6. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.
Where the intestate has left neither lineal descendants, nor parents, nor brothers, nor sisters, his
property shall be divided equally among those of his relatives who are in the nearest degree of kindred
to him.

24. What are the duties of an Executor or Administrator?

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Introduction:
If a person dies leaving assets, there must be some legal representative of the deceased who can legally
dispose of the assets left behind. Where the deceased person has left a Will and named a person to deal
with his assets, such person is an Executor. Where the deceased person has not left a Will, i.e. he has died
intestate, then an Administrator is the legal representative.

Who is an Executor?
An Executor is a legal representative of the deceased person (who has made a Will) and who is either
named or implied as such in the Will. An Executor is the person who disposes of or oversees the settlement
of the assets of the deceased person in accordance with the wishes of the deceased person as stated in
the Will.
An executor is usually appointed by name in the Will.
An executor may also be appointed by implication from the wording used in the Will such as where the
testator fails to nominate a person in express terms but, on construction of the Will, it appears that a
particular person has been appointed to perform the essential duties of an executor. In such a case, the
ex            W
A                 
    “          
If a person is appointed an executor under a Will but does not wish to take on the role, he or she can
 P        “ C

Who is an Administrator?
An Administrator is a person appointed by a competent authority to oversee the disposal of the estate
(assets) of the deceased person where he has not made a Will or where a Will is made but no Executor
has been appointed in the Will or where the Executor is legally incapable or refuses to act as an Executor.

The Indian Succession Act:

Administrators and executors are an important part of the Succession aspect especially in regard to the
matters of will. Chapter 6 of the Indian succession Act deals with the Powers of the Administrators
Sections (305 - 315) while chapter 7 deals with the duties (316  331).

What are the powers of an Executor?

The Executor has the power to
1. Sue or be sued on behalf of the deceased testator:

All rights to prosecute or defend any action or special proceeding existing in favour of or against a person
at the time of his decease, survive to and against his executors or administrators;
(i) Except causes of action for defamation, assault, as defined in the Indian Penal Code, (45 of 1860.) or
(ii) Other personal injuries not causing the death of the party; and
(iii) Except also cases where, after the death of the party, the relief sought could not be granted.

Illustrations
(i) A collision takes place on a railway in consequence of some neglect or default of an official and a
passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any
action. The cause of action does not survive.

(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.

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2. Recover debts on behalf of the deceased testator

3. Dispose of the assets of the deceased testator in accordance with his wishes:
Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the
property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he
may think fit.

4. Incur expenses for the management of the assets or the estate of the deceased until its disposal:
An executor or administrator may incur expenditure:
(a) On such acts as may be necessary for the proper care or management of any property belonging to
any estate administered by him, and

(b) With the sanction of the High Court, on such religious, charitable and other objects, and on such
improvements, as may be reasonable and proper in the case of such property.

5. Collect Commission or agency charges:

An executor or administrator shall not be entitled to receive or retain any commission or agency charges
at a higher rate than that fixed under the Administrator-G A    

6. P       

If any executor or administrator purchases, either directly or indirectly, any part of the property of the
deceased, the sale is voidable at the instance of any other person interested in the property sold.

7. Powers of several executors or administrators exercisable by one:

When there are several executors or administrators, the powers of all may, in the absence of any direction
to the contrary, be exercised by any one of them.

8. Survival of powers on death of one of several executors or administrators:

Upon the death of one or more of several executors or administrators, in the absence of any direction to
the contrary in the will or grant of letters of administration, all the powers of the office become vested in
the survivors or survivor.

9. Powers of administrator of effects unadministered:

The administrator of effects unadministered has, with respect to such effects, the same powers as the
original executor or administrator.

10. Powers of administrator during minority:

An administrator during minority has all the powers of an ordinary administrator.

11. Powers of married executrix or administratrix:

When a grant of probate or letters of administration has been made to a married woman, she has all the
powers of an ordinary executor or administrator.

12. Executor's or Administrator's year:

An Executor or an Administrator is not bound to dispose of assets of the deceased until one year from the
date of death. This is so even if a testator desires that it should be paid earlier. This provision in law gives
time to the Executor or Administrator to act. However, an Executor or Administrator can act within one
year, but they cannot be compelled to do so.

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What are the duties of an Executor?
The Executor has the duty to
1. Provide funds for the funeral of the deceased from the estate of the deceased
2. Prepare an inventory of the assets of the deceased and its value:
(1) An executor or administrator shall, within six months from the grant of probate or letters of
administration, or within such further time as the Court which granted the probate or letters may appoint,
exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and
all the credits, and also all the debts owing by any person to which the executor or administrator is entitled
in that character; and shall in like manner, within one year from the grant or within such further time as
the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his
hands and the manner in which they have been applied or disposed of.

(2) The High Court may prescribe the form in which an inventory or account under this section is to be
exhibited.

(3) If an executor or administrator, on being required by the Court to exhibit an inventory or account
under this section, intentionally omits to comply with the requisition, he shall be deemed to have
committed an offence under section 176 of the Indian Penal Code (45 of 1860.).

(4) The exhibition of an intentionally false inventory or account under this section shall be deemed to be
an offence under section 193 of that Code.

3. To collect the assets and debts due to the deceased:

The executor or administrator shall collect, with reasonable diligence, the property of the deceased and
the debts that were due to him at the time of his death.

4. Obtain a Probate where a probate is required

5. Issue assent of the legacy to any legatee to complete and perfect the legatee's title to the asset
Bequeathed.

6. Maintain an account of how the assets have been disposed of:

Expenses to be paid before all debts:
Funeral expenses of a reasonable amount, according to the degree and quality of the deceased, and
death-bed charges, including fees for medical attendance, and board and lodging for one month previous
to his death, shall be paid before all debts.

Expenses to be paid next after such expenses:

The expenses of obtaining probate or letters of administration, including the costs incurred for or in
respect of any judicial proceedings that may be necessary for administering the estate, shall be paid next
after the funeral expenses and death-bed charges.

Wages for certain services to be next paid, and then other debts:
Wages due for services rendered to the deceased within three months next preceding his death by any
labourer, artisan or domestic servant shall next be paid, and then the other debts of the deceased
according to their respective priorities (if any).

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Save as aforesaid, all debts to be paid equally and rateably:
Save as aforesaid, no creditor shall have a right of priority over another; but the executor or administrator
shall pay all such debts as he knows of, including his own, equally and rateably as far as the assets of the
deceased will extend.

Debts to be paid before legacies:

Debts of every description must be paid before any legacy.

Executor or administrator not bound to pay legacies without indemnity:

If the estate of the deceased is subject to any contingent liabilities, an executor or administrator is not
bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become
due.

Abatement of general legacies:

If the assets, after payment of debts, necessary expenses and specific legacies, are not sufficient to pay
all the general legacies in full, the latter shall abate or be diminished in equal proportions, and, in the
absence of any direction to the contrary in the will, the executor has no right to pay one legatee in
preference to another, or to retain any money on account of a legacy to himself or to any person for whom
he is a trustee.

Non-abatement of specific legacy when assets sufficient to pay debts:

Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary
expenses, the thing specified must be delivered to the legatee without any abatement.

Rateable abatement of specific legacies:

If the assets are not sufficient to answer the debts and the specific legacies, an abatement shall be made
from the latter rateably in proportion to their respective amounts.

Illustration
A has bequeathed to B a diamond ring valued at 500 rupees, and to C a horse, valued at 1,000 rupees. It
is found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only
999 rupees. Of this sum rupees 333 are to be paid to B, and rupees 666 to C.

25. State and explain different kinds of domicile.

In a recently reported decision [Naina Saini v. State of Uttarakhand, AIR 2010 Utr 36] a Single Judge of the
Uttarakhand High Court has revisited the law relating to domicile of a person to declare that there is no
separate domicile for each State and there is only one domicile for the entire country. The decision was
rendered in the wake of the challenge to the decision of the Uttarakhand local authority's order denying
OBC domicile certificate to the petitioner on the ground that though she was born in Uttarakhand but
since she had married a person from Delhi, she no longer possessed the domicile of the State of
Uttarakhand. The High Court held otherwise.

94
Declaring the law to this effect, the High Court discussed the concept of domicile inter alia in the following
terms;
What is domicile? Domicile as a concept is of immense importance, both in municipal law as well as in
Private International Law or the conflicts of laws, as it is called. The concept denotes "the place of living",
or more precisely a permanent residence. Domicile as pointed in Halsbury's Laws of England (Fourth
Edition) Volume 8, Paragraph 421 "is the legal relationship between an individual and a territory with a
distinctive legal system which invokes that system as his personal law." Although the notion which lies
behind the concept of domicile is of "permanent residence" or a "permanent home", yet domicile is
primarily a legal concept for the purposes of determining what is the "personal law" applicable to an
individual and therefore, even if an individual has no permanent residence or permanent home, even then
he is invested with a "domicile" albeit by law or implication of law.

There are three main categories or classes of domicile,

A) Domicile of Origin,
B) Domicile of Choice, and
C) Domicile by law.

"Domicile of origin" is the domicile which each person has at birth i.e. the domicile of his father or his
mother. On birth, the person acquires the domicile of his father, if he is a legitimate child and domicile
of the mother if he is an illegitimate child.

"Domicile of choice" is the domicile which a person of full age is free to acquire in substitution for that
which he presently possesses. In other words, the "domicile of origin" is what is attached to person by
birth whereas the domicile of choice is what is acquired by residence in a territory subject to a distinctive
legal system with the intention to reside there permanently or indefinitely. What should be always
remembered is that a domicile denotes an area with a separate and distinctive legal system and not just
a particular place in a country. This aspect is elaborated in paragraph 442 of Halsbury's Laws of England
(Fourth Edition) Volume 8, which states as under:

"Even person who has, or whom the law deems to have, his permanent home within the territorial limit
of a single system of law is domiciled in the country over, which is the whole of that country even though
his home may be fixed at a particular spot within it."

The third category of domicile would be "Domicile by operation of law". All the same, the concept of
domicile, as discussed above, acquires importance only when within a country there are different laws or
more precisely, different systems of laws are operating. Let us for the sake of argument imagine that in
India there is one matrimonial law operating in Tamil Nadu and quite another in U.P., or one law of
inheritance in State of Maharashtra and quite another in West Bengal. In such a situation the "domicile"
of a person would matter: for he would then be punished or rewarded in law, depending upon his
domicile! But then this is not the case in India! Right from Kashmir to Kanyakumari and from Rann of Kutch
in the west, to the east in Arunachal Pradesh, there is one system of law, which is being followed.
Therefore, there has to be only one "domicile" in India. Each citizen of this country carries with him or

95
her, one single domicile which is the "Domicile of India". The concept of regional or provincial domicile is
alien to Indian legal system. The difference in personal laws in India is not regional based but religion or
community based and a "Muslim" or a "Hindu" will be governed by a single system of personal laws
whether he resides in Tamil Nadu or in Uttar Pradesh.

The seminal decision on this is the judgment of Supreme Court passed in the case of Pradeep Jain Vs.
Union of India reported in AIR 1984 SC 1420. In fact in the present case the above judgment is being
heavily relied upon not only because it is seminal but because in the understanding of this Court, it states
the undiminished and settled position of law. The aspect of domicile is defined and elaborated in the said
judgment and needs to be referred here. Paragraph 8 of the said judgment would firstly be relevant, which
reads as follows:

"Now it is clear on a reading of the Constitution that it recognises only one domicile, namely, domicile in
India. Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile,
namely, "domicile in the territory of India." Moreover, it must be remembered that India is not a federal
State in the traditional sense of that term. It is not a compact of sovereign States which have come
together to form a federation by ceding a part of their sovereignty to the federal State. It has undoubtedly
certain federal features but it is still not a federal State and it has only one citizenship, namely, the
citizenship of India. It has also one single unified legal system which extends throughout the country. It is
not possible to say that a distinct and separate system of law prevails in each State forming part of the
Union of India. The legal system which prevails throughout the territory of India is one single indivisible
system with a single unified justicing system having the Supreme Court of India at the apex of the
hierarchy, which lays down the law for the entire country. It is true that with respect to subjects set out
in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject
to the overriding power of Parliament, the State can also make laws with respect to subjects enumerated
in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such
laws are made by the States is a single legal system which may truly be described as the Indian legal
system. It would be absurd to suggest that the legal system varies from State to State or that the legal
system of a State is different from the legal system of the Union of India, merely because with respect to
the subjects within their legislative competence, the States have power to make laws. The concept of
'domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or
by the States.

It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or
another forming part of the Union of India. The domicile which he has is only one domicile, namely,
domicile in the territory of India. When a person who is permanently resident in one State goes to another
State with intention to reside there permanently or indefinitely, his domicile does not undergo any
change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian
domicile. We think it highly detrimental to the concept of unity or integrity of India to think in terms of
State domicile. The Apex Court also took note of the common misconception of the various State
Governments with the term domicile and observed that it is not uncommon for the State Governments
to use the term 'domicile' when what they actually intend to state is 'permanent residence'. However, the

96
Apex Court also cautioned the State Governments to desist from using the term domicile in any other
manner except what the word actually conveys or means. In the above case, the argument that domiciliary
requirement for admission to medical colleges and other colleges situated within the State territory is
actually used not in its technical legal sense but in a popular sense denoting residence or an intention to
reside permanently was also discussed in this judgment and this practice of wrongly using the
nomenclature 'domicile' was severely depreciated.

The judgment at another place speaks as under: "Now if India is one nation and there is only one
citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the
territory of India and to reside and settle in any part of India, irrespective of the place where he is born or
the language which he speaks or the religion which he professes and he is guaranteed freedom of trade,
commerce and intercourse throughout the territory of India and equal protection of the law with other
citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home
in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen
having his permanent home in Maharashtra or speaking Marathi language be regarded as an outsider in
Karnataka. He must be held entitled to the same rights as a citizen having his permanent home in Uttar
Pradesh or Karnataka as the case may be. To regard him as an outsider would be to deny him his
constitutional rights and to derecognize the essential unity and integrity of the country by treating it as if
it were a mere conglomeration of independent states.

But, unfortunately, we find that in the last few years, owing to the emergence of narrow parochial loyalties
fostered by interested parties with a view to gaining advantage for themselves, a serious threat has
developed to the unity and integrity of the nation and the very concept of India as a nation is in peril. The
threat is obtrusive at some places while at others it is still silent and is masquerading under the guise of
apparently innocuous and rather attractive clap-trap. The reason is that when the Constitution came into
operation, we took the spirit of nationhood for granted and paid little attention to nourish it, unmindful
of the fact that it was a hard won concept. We allowed 'sons of the soil' demands to develop claiming
special treatment on the basis of residence in the concerned State, because recognizing and conceding
such demands had a populist appeal. The result is that 'sons of the soil' claims, though not altogether
illegitimate if confined within reasonable bounds, are breaking as under the unity and integrity of the
nation by fostering and strengthening narrow parochial loyalties based on language and residence within
a State. Today unfortunately, a citizen who has his permanent residence in a State entertains the feeling
that he must have a preferential claim to be appointed to an office or post in the State or to be admitted
to an educational institution within the State vis-a-vis a citizen who has his permanent residence in
another State, because the latter is an outsider and must yield place to a citizen who is a permanent
resident of the State, irrespective of merit. This, in our opinion, is a dangerous feeling which, if allowed to
grow, indiscriminately, might one day break up the country into fragments."

It must be stated here that in D.P. Joshi's case, the matter which was challenged before the Supreme
Court was the validity of an order passed by the Madhya Bharat Govt., whereby a lesser fee was being
charged from those students who were permanent resident of Madhya Bharat and higher fee from such

97
students who were coming from outside the Madhya Bharat. This action of the State authorities was
justified in D.P. Joshi's case and it was held not to be violative of Article 14 of the Constitution of India. In
Pradeep Jain's case as well such reservation based on residential requirement within a State or even the
institutional preference for students was justified to some extent. This law, whereby on certain given
contingencies, a preferential treatment given to those who reside in a given State, is being followed right
from D.P. Joshi's as well as in Pradeep Jain's case and in many later decisions of the Apex Court. Therefore,
on certain justifiable grounds, special treatment can be given by the State authorities on grounds of
residence, even institutional preference may be granted. What kind of preference has been given and to
what extent will depend upon from case to case. However, what is anathema to our Constitution is the
assertion of a concept of regional domicile, which is alien to our legal system.

There is more in this Country which unites us and very little that divides us. Domicile is one concept, which
is inclusive of a single concept throughout the country and it is a unifying rather than a dividing factor.
Apart from this, if we do not have one single domicile in the country, then there are various provisions in
the Constitution of India, which would loose their relevance. Reference would be necessary here of Article
5, which speaks about "domicile in the territory of India". It does not talk about domicile in the territory
of a particular State. Apart from this, Article 15 prohibits any kind of discrimination, inter alia, on the
ground of place of birth. Similarly, Article 16 mandates that there shall be an equality of opportunity for
all citizens in matters relating to public employment and there shall be no discrimination, inter alia, on the
ground of descent, place of birth or residence.

Consequently, the denial of caste certificate to the petitioner by the authorities in Uttarakhand is based
on a misconception of the term 'domicile'. Petitioner was never a domicile of Uttarakhand, U.P. or Bihar,
or for that matter of any one province. She was, and continues to be a domicile of India, as there is nothing
like a "domicile of Uttarakhand" or a "domicile of Bihar" or of any other State. It is emphasised, even at
the cost of repetition, that in India each citizen has only one domicile, which is the "domicile of India".
Thus, the denial of caste certificate to the petitioner by the State authorities in Uttarakhand on the ground
that she is presently a domicile of the State of Bihar and not of Uttarakhand is clearly wrong, in fact
misconceived.

26. What is the significance of succession certificate? State the

procedure to obtain it.

Introduction:
When a deceased person does not make a Will and dies then a document named Succession Certificate
is obtained in India and it is governed by The Indian Succession Act 1925, sections 380-386. A Will is a
           “ C    
          n. A qualified friend gets the
  “ C     

98
What is a Succession Certificate?
A Succession Certificate gives authority to a person who obtains it to represent the deceased for the
purpose of collecting the debts and securities due to him. It is meant for protection of debtors, so that
they know as to whom they can safely pay, the debt due to the deceased person. The certificate does
not establish the title of the holder of the certificate as the heir of the deceased, but only furnishes
him/her with an authority to collect the debts and allows the debtors to make payment without
incurring any risk. A Succession Certificate is not granted in cases where obtaining a Probate of Letter of
Administration is necessary.

Definition of debt:
T   as used in Section 214, sub-section (1), is defined to include any debt except rent,
revenue of profits payable in respect of land used for agricultural purposes.

Definition of ''Security'':
It is very essential to know the word '' Security'' means, any bond, debenture, promissory note, any
stock or debenture of, or share in , a company , any debenture or other security for money issued by or
on behalf of a local authority, that too, any other security which the Governor -General in Council may
declare to be security for the purpose of succession certificate, any annuity charged by Act of Parliament
on the revenues of India etc.

How to apply for ''Succession Certificate''?:

i) An application should be made to The District Judge under section 372 of the Act;
ii) Court-fees in cash on application for a certificate or for its extension:
Every application for a certificate or for extension of a certificate must be accompanied by a deposit as
per Section 379 (to be placed in the treasury, of a sum equal to the Court-fee payable under the Court-
fees Act.
ii) The petitioner must sign and verify the petition, Section 372:
iii) The residences of the relatives and family of the deceased must be mentioned;
iv) In case of The Hindu Succession Act (Act XXX OF 1956), the names of the heirs must be mentioned in
the petition;
v) The right of the petitioner should be mentioned;
vi) Either Ordinary residence of the deceased, at the time of death, or the property of the deceased
should be within the limits of the Jurisdiction of the Court concerned;
vii) The debts and securities as to which the succession certificate is applied for should be mentioned;
The debts and securities in respect of which a certificate is applied for must be detailed at length in the
application and also the certificate must be limited in terms to the debts and securities specified in the
application and also in the certificate
viii) The absence of any impediment u/sec. Sub section (1) of Section 370 of the Act or any other
provisions of the Act or any other enactments to the grant of succession certificate or to the validity of it
in case of it was granted, must be mentioned.

99
The time, date, place of death details should also be mentioned in it and the death certificate and any
other documents as the court may require should be attached.

Apart from a mandatory notice to the respondents, a newspaper notice is also issued. When a
newspaper notice is given it specifies a time frame within which, if anyone who has objections can do so,
usually it will be one and a half months time frame. If it is not contested and if the court is satisfied then
it will issue a succession certificate to the petitioner.

It roughly takes around 6  8 months from the date of filing to receive a Succession Certificate. Both
District Court and High Court have concurrent jurisdiction and a petition for Succession Certificate can
be heard.

Where a Probate of Letter of Administration is necessary then Succession Certificate is not granted in
those cases. The court also levies some percentage of value of estate as a fee which may be 3% of value
of asset. When the certificate is handed over to the concerned person he/she has the authority to
distribute assets as per succession laws. In Muthia vs Ramnatham, (1918 MWN 242) it was held that a
grantee gets the title to recover the debt due by deceased when he gets the certificate and any payment
to grantee will be a discharge of debt.

Effect of Succession Certificate:

To know the effect of succession certificate, it is apt to see section 381 of the Act. The succession
certificate simply affords protection to the parties paying debts. It is thus clear that there is absolutely
no adjudication of title of the deceased.

Grant of Succession Certificate- Certain Restrictions:

Under the following circumstances, no succession certificate can be granted.
i) Under section 370 (1) of the Act, as to any debt or security to which a right is required to be
established by probate or letters of administration;
ii) That too, if sections 212 of the Act applies;
iii) If section 213 of the Act applies;
iv) That is to say that where law requires probates or letters of administration as mandatory to establish
right to property as in the cases of Parsis, Jews, East Indians, Europeans and Americans.
v) Provided that nothing will prevent as to granting a succession certificate to any person entitled to the
effects of a deceased Indian Christian or any part thereto pertaining to any debt or security, that the
right can be established by letters of administration.

No Addition Yet Extension of Succession Certificate:

Section 376 of the Act provides that the succession certificate can be extended in respect of any debt or
security not originally specified therein and if such extension is ordered, it shall have the same effect as
if the debt or security to which the succession certificate is extended had been originally specified. The
District Judge can extend a succession certificate only on the application of the holder of a succession
certificate and not of any other person.

100
Revocation of the Succession Certificate:
As per Section 383 of the said Act, a certificate so issued may be revoked for any of the following
causes:-
Process for obtaining the certificate was defective.
Certificate was obtained fraudulently.
Certificate becomes useless and inoperative due to circumstances.
Decree or order of other competent court in dealing with the debts and securities of the same deceased
person, renders it proper that the certificate is revoked.
Against an order of the District judge, in the matter of grant, refusal or revocation of certificate, a
person may appeal to the appropriate High Court.

Grant of Probate or Letters supersedes succession certificate:

Under Section 215, a grant of Probate or Letters of Administration supersedes a certificate granted
under Part X of the Indian Succession Act, 1925, or under the Succession Certificate Act, 1889.

Surrender of the certificate if it is invalid or has been superseded:

By Section 389, the holder of a certificate which has been superseded or is invalid from any of the
causes mentioned in Section 386 is bound to deliver it up on being required to do so by the Court which
granted it, any may be punished for wilfully or without reasonable cause omitting to do so.

Case-Laws:
In the case of Muthia vs Ramnatham, 1918 MWN 242, it was held that the grant of certificate gives to
the grantee a title to recover the debt due to the deceased, and payment to the grantee is a good
discharge of the debt.'' In the case of Srinivasa vs Gopalan, , it was held that '' The question whether the
debt belonged to the deceased is not a matter to be decided on an application for a succession
Certificate.'' In the case of Paramananda Chary vs Veerappan, AIR 1928 Madras 213: 82 IC 604, it was
held that ''The grant of succession certificate is conclusive against the debtor. Even if another person
turns out to be the heir of the deceased, it does not follow that the certificate is invalid.'' In the case of
Ganga Prasad vs Saudan , it was observed that section 381 of the Act protects the debtors and affords
full indemnity to the persons liable to pay the debts and in respect of the securities covered by the
certificate as persons having the same paid in ''good faith''.

UNIT 5

27. Explain the different kinds of legacies. When is a legacy deemed to

be adeemed?

Types of Bequests/Legacies:

101
Residuary or General Bequest:
A gift of the remainder of the estate after all bequests have been made and debts cleared is called a
Residuary Bequest. It may be Part, or all, of the estate (after debts, funeral costs and pecuniary gifts are
paid)

A General Legacy is a gift of something which, if the testator leaves sufficient assets, must be raised by
the executor out of the personal estate. It is a legacy not of any particular thing, but of something which
          A       I  $ 100 to
X

Pecuniary Bequest:
A gift of a fixed sum of money in a Will is called a Pecuniary Bequest. A specific sum, which can be
index-linked to safeguard its future value. Generally the value of pecuniary legacies will decrease over
time, as the cost of living increases.

Specific Bequest:
A particular named item left as a gift in the Will, is known as a specific bequest, for example a piece of
jewelry. It is a particular item to be used or sold by the beneficiary.
A specific legacy is a gift of some particular thing or of some interest, legal or equitable, forming part of
   I             
           I    
legacy is a gift of a severed or distinguished         
          A       I  
  B  X  I      X

Contingent Bequest:
A gift in your Will that depends upon the occurrence of an event which may or may not happen is known
legally as a contingent bequest. An example is a bequest to a charity which applies only if other
beneficiaries named in the Will die before the testator (person who made the Will).

Reversionary Bequest:
A Reversionary legacy allows you to leave assets to a named individual for their lifetime while deciding
who should benefit after they have passed away.

Demonstrative Bequest:
A Demonstrative Legacy shares characteristics of both general and specific legacies. It is in the nature of
a specific legacy in that it is a gift of a specified amount or quantity which is directed to be satisfied
primarily out of a particular fund or asset. It is in the nature of a general legacy, in that it could be paid
           A       I 
$           “ 

The definition of a demonstrative legacy and its nature are clearly set out by the learned author of
Williams on Executors & Administrators, 13th ed., vol. 2, pp. 610-11, as follows:
A legacy of quantity is ordinarily a general legacy; but there are legacies of quantity in the nature of
specific legacies, as of so much money, with reference to a particular fund for payment. This kind of
legacy is called a demonstrative legacy: the testator, after making a positive gift, points out the

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particular fund which he desires to have first applied, and which he supposes to be adequate for the
purpose. If the fund indicated is not adequate, the gift is intended to take effect nevertheless out of
some other property of the testator. Such a legacy is general in that if the fund is called in or fails, the
legatee will not be deprived of his legacy, but will be permitted to receive it out of the general assets; it
is specific in that it will not be liable to abate with general legacies upon a deficiency of assets, provided
the fund from which it is primarily to be taken is not exhausted.

I think it is clear that if a bequest, general in form, but, as stated by the learned author of Williams on
Executors & Administrators, supra, in the nature of a specific legacy relating to a particular fund for
payment, is to be declared a demonstrative legacy, the will must disclose:
(1) That recourse for payment of the legacy is first to the fund, and,
(2) There is no expressed intention of the testator precluding satisfaction of the legacy out of some
other property of the testator, if the particular fund proves inadequate.

Adeem: To revoke (a legacy) by ademption.

Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine
what happens when property bequeathed under a will is no longer in the testator's estate at the time of
the testator's death. For example, if a will bequeathed the testator's car to a specific beneficiary, but the
testator owned no car at the time of his or her death, the gift would be adeemed and the
aforementioned beneficiary would receive no gift at all.
General bequests or general gifts - gifts of cash amounts - are never adeemed. If the cash in the
testator's estate is not sufficient to satisfy the gift, then other assets in the residuary estate will need to
be sold to raise the necessary cash.
Some property lie in a "gray" area, in which the testator's specific intent must be determined. For
example, where the testator bequeaths "500 shares of stock" in a company, this may be read as a
general bequest (that the estate should purchase and convey the particular stocks to the beneficiary), or
it may be read as a specific bequest, particularly if the testator used a possessive ("my 500 shares").
Such a gift is deemed to be a demonstrative gift. Such demonstrative gifts are deemed to be a hybrid of
both specific and general gifts. If one were to bequeath "500 shares of stock," most states would deem
that to be a demonstrative gift. The resultant gift to the heir receiving "500 shares," would be the date
of death value of 500 shares of that particular stock.
Ademption may be waived if the property leaves the estate after the testator has been declared
incompetent. Furthermore, in some cases the beneficiary will be entitled to the proceeds from the sale
of property, or to the insurance payout for property that is lost or destroyed.
To avoid confusion as to what may or may not be adeemed, sometimes the phrase "if owned by me at
my death" is placed into the articles of a will in which property is being bequeathed.
Ademption is taking away of a legacy which was before bequeathed. Strictly speaking, ademption is
applicable only to specific legacies. The word ademption is considered as synonymous with the word
"extinction."
It should be observed here that if the stock or money so bequeathed be sold or disposed of, there is
complete extinction of the subject and nothing remains to which the word of the Will can apply;
because it proceeds from such sale or disposition but if some other properties were to be substituted
and permitted to pass, the effect would be to convert a specific legacy into a General legacy.

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After making a will, the Testator may transfer other properties to the legacy and may either by express
words or by application of law, substitute the second gift for the one contained in his will, the legacy is
thereby adeemed or taken away from the will. The ademption is occasioned by the act of the testator
alone. The ademption may result in the partial or total loss of legacy. If, however, the ademption affects
no other provision of the will, the testamentary document still remains in full force and effect as to its
other provisions. If the ademption is total, the entire legacy is eliminated. This is applicable to the will of
Hindus, Buddhists, Sikhs and Jains.
Illustrations:
(i) A bequeaths to B the Diamond Ring presented to him by C. Then A in his life time only, sells diamond
ring. The legacy is adeemed.
(ii) A bequeaths to B all the horses in the stable. At the death of A, no horse was in the stable. The legacy
is adeemed.
(iii) A bequeaths to B certain bales of goods. A takes the goods with him on voyage. The ship and goods
are lost at sea. The legacy is adeemed.
Ademption takes place in the following cases:
1. When the gift bequeathed was to be received from the third party (and not from the testator) by the
legatee and that gift was received by the Testator himself in his life time (naturally, therefore, then
nothing remains to be received), legacy is adeemed (Section 154).

For example, A bequeaths to B the debt which C owed to him. C discharged his debt by paying off the
amount to A. The legacy is adeemed.
2. If the Testator, instead of entire amount of property has received only a part, the legacy is adeemed
to that extent. A bequeaths Rs. 10,000/ debt to be received from C to B. A receives only Rs. 5,000/. The
legacy is adeemed so far as it concerns Rs. 5,000/ (Section 155).
3. If a portion of an entire fund or stock bequeathed is received by the Testator, the fund/stock operates
as an ademption only to the extent amount received and residue of the fund/stock shall be applicable to
the discharge of the specific legacy (Section 156).
4. When Stock specifically bequeathed does not exist at the Testator's death, A bequeaths his capital
stock of 1001 in East India stock. A sells the stock. The legacy is adeemed (Section 158).
5. When stock exists only in part at the Testator's death, the legacy is adeemed partly. A bequeaths Rs.
10,000/ in 5 12% Loan of Central Government Loan. A sells half of it. Only one half of legacy is adeemed
(Section 159).
6. When Testator bequeaths some valuable (rather a right to receive a thing) to be received from third
person and the Testator (or his representative) receives it, and Testator mixes it up with the general
mass of his property the bequest, is adeemed (Section 162).
Ademption does not take place in the following cases:
1. When goods/property bequeathed are removed for any temporary cause, by fraud or without the
knowledge/sanction of the Testator (Section 160), legacy is not adeemed.
(i) A bequeaths all house goods in his dwelling house in Calcutta at the time of his death. The goods are
removed to save him from fire. Legacy is not adeemed.
(ii) The goods are removed in absence of A. A dies without having sanctioned their removal. Legacy is
not adeemed.

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2. If goods bequeathed are removed from its place mentioned in the will but mentioning of the place
where goods are lying is just to complete the description of the place (where goods are lying) and
nothing more (Section 161). For example, A bequeaths to B all his furniture then in house in Calcutta.
The testator had one house at Calcutta and one at Chinsurah. Being possessed with one set of furniture,
he used to remove it along with his to each house. At the death, the furniture was lying in the house of
Chinsurah, legacy is not adeemed.
3. When Testator bequeaths some valuable (rather than a right to receive a thing) to be received from a
third person and the Testator (or his representative on his behalf) receives it but the Testator does not
mix it up with the general mass of his property, the bequest is not adeemed (Section 162).
4. Changes taking place from the date of will to the date of death of Testator, on account of (a)
operation of law in execution of any legal instrument under which the gift bequeathed was held (b)
without the knowledge of Testator or (c) without his sanction (Sections 163 164).
5. Where stock specifically bequeathed is sold and an equal quantity of the same stock is afterwards
purchased and belongs to the Testator at his death (Section 166).
6. Where stock is lent on a specific condition, that it shall be replaced and in fact it is accordingly
replaced (Section 165).
SCHEDULE III
Restrictions and modifications in application of foregoing sections:
1. Nothing therein contained shall authorise a testator to bequeath property which he could not have
alienated inter vivos, or to deprive any person of any right of maintenance of which, but for the
application of these sections, he could not deprive them by will.
2. Nothing therein contained shall authorise any Hindu, Muhammadan, Buddhist, Sikh or Jain, to create
in property any interest which he could not have created before the first day of September, 1870.
3. Nothing therein contained shall affect any law of adoption or intestate succession.
4. In applying Section 70, the words "than by marriage or" shall be omitted.
5. In applying any of the following sections, namely, sections seventy five, seventy six, one hundred and
five, and hundred and nine, one hundred and eleven, one hundred and twelve, one hundred and
thirteen, one hundred and fourteen, one hundred and fifteen, and one hundred and sixteen to such wills
and codicils the words "son", "sons", "child", and "children" shall be deemed to include an adopted
child; and the word "grand children" shall be deemed to include the children, whether adopted or
natural born, of a child whether adopted or natural born; and the expression "daughter in law" shall be
deemed to include the wife to an adopted son.

28. Describe the constitution, powers and functions of family courts.

Introduction:
Marriage as an institution has become the subject of great judicial scrutiny. There are a number of judicial
provisions dealing with marriage and its various aspects. The need to establish the Family Courts was first

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emphasized by the late Smt. Durgabi Deshmukh. After a tour of China in 1953, where she had occasion
to study the working of family courts, Smt. Deshmukh discussed the subject with Justice Chagla and Justice
Gajendragadkar and then made a proposal to set up Family Courts in India to Prime Minister Pt. Jawahar
Lal Nehru.
The formation of family court was a mile stone in the history of Indian judiciary. The Family Courts Act
1984 established the creation of Family Courts through a Gazette notification by the Central Government.
These courts are to be established in a town or city where the population exceeds one million or in any
area where the State Government considers establishing it. One or more judges constitute the Family
Courts but each judge is competent to exercise all the powers of the court.

The Family Courts Act also covers areas of the following Acts:
i. Hindu Marriage Act, 1955
ii. Special Marriage Act, 1954
iii. Hindu Adoption and Maintenance Act, 1956
iv. Parsi Marriage and Divorce Act, 1936
v. Indian Divorce Act, 1869
vi. Christian Marriage Act, 1972
vii. Dissolution of Muslim Marriage Act, 1939
viii. Hindu Minority and Guardianship Act, 1956
ix. Criminal Procedure Code, 1973, Sec 125, 126, 127 and 128
x. Guardians and Wards Act, 1890

Objectives:
The Preamble to the Family Courts A     I P     A A 
provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy
settlement of disputes relating to marriage and family affairs and for matters  

Functions:
The Family Courts are free to evolve their own rules of procedure, and once a Family Court does so, the
rules so framed over ride the rules of procedure contemplated under the Code of Civil Procedure. In fact,
the Code of Civil Procedure was amended in order to fulfil the purpose behind setting up of the Family
Courts.
Special emphasis is put on settling the disputes by mediation and conciliation. This ensures that the matter
is solved by an agreement between both the parties and reduces the chances of any further conflict. The
aim is to give priority to mutual agreement over the usual process of adjudication. In short, the aim of
these courts is to form a congenial atmosphere where family disputes are resolved amicably. The cases
are kept away from the trappings of a formal legal system.

The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission
of the Court. However, invariably the court grants this permission and usually it is a lawyer which
represents the parties. The most unique aspect regarding the proceedings before the Family Court are
that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the

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issue successfully, the matter taken up for trial by the Court. The Conciliators are professionals who are
appointed by the Court. Once a final order is passed, the aggrieved party has an option of filing an appeal
before the High Court. Such appeal is to be heard by a bench consisting of two judges.

Legal Jurisdiction of Family Law Courts:

The legal jurisdiction of Family Courts extends to all matters that pertain to matrimonial issues,
maintenance, alimony and custody of children in a marital dispute or a divorce. Further, Family Courts
deal with the following:
 Suits or proceedings between parties to a marriage for a decree of restitution of conjugal rights,
judicial separation, nullity of marriage or divorce.
 Maintenance related issues.
 For an order of injunction in certain circumstances arising in a matrimonial relationship.
 For declaring legitimacy of any person.
 Suits or proceedings between parties regarding dispute about the property.
 Guardianship or custody of any minor or child.

What Makes Indian Family Courts Unique:

 Family courts are empowered to formulate their own procedures but till then they have to follow
the Civil Procedure Code.
 Evidence need not be recorded.
 Judgment can be concise with statement of the case, points for determining decision and reasons.
 Appeal to the High Court can be filed within thirty days from the date of judgment, order or decree
of the Family Court.
 If the party desires, in camera proceedings can be conducted.
 No party to a suit or proceeding under the Family Court shall be entitled to be represented by a
legal practitioner but the court may requisition the services of a legal expert as amicus curiae.

Association of social welfare agencies:

The State Government may, in consultation with the High Court, provide for association with a Family
Court:
(a) Institutions or organisations engaged in social welfare or the representatives thereof;
(b) Persons professionally engaged in promoting the welfare of the family;
(c) Persons working the field of social welfare; and
(d) Any other person whose association with a Family Court would enable it to exercise its jurisdiction
more effectively in accordance with the purposes of this Act.

Counsellors, officers and other employees of Family Courts:

(1) The State Government shall, in consultation with the High Court, determine the number and categories
of counsellors, officers and other employees required to assist a Family Court in the discharge of its
functions and provide the Family Court with such counsellors, officers and other employees as it may think
fit.

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(2) The terms and conditions of association of the counsellors and the terms and conditions of service of
the officers and other employees, referred to in sub-section (1), shall be such as may be specified by rules
made by the State Government.

Conclusion:
The lack of uniformity regarding the rules laid down by different states leads to confusion in the proper
application of the Act. Though the Act was aimed at removing the gender bias in statutory legislation, the
goal is yet to be achieved. The frequent changing of marriage counsellors is causing hardship to women
who have to explain their problems afresh to the new counsellors each time.

29. Write a note on powers of curator.

Introduction:
Provisions are made in the Indian Succession Act to protect the property of the deceased against
misappropriation waste or neglect. The property may be movable or immovable. A Curator is a person
appointed by the court to protect the estate of the deceased.

Sections:

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(Sections 192-210)

Application:
A person who has a right by succession to the deceased, may make an application to the District Court,
when actual possession has been taken by another person or when forcible means of seizing possession
are apprehended. [On behalf of minor, a relative or next friend may file the application]. It should be
filed within 6 months of the death of the proprietor whose property is claimed by right of succession
(Section 205).

Inquiry:
The District Judge examines the applicant on oath, to find out whether there are sufficient grounds to
entertain and whether application is made bona fide and whether regular suit would be prejudicial. If
satisfied, he summons the opposite party, hears him, and determines summarily who is having the right
to possession. The judge in suitable cases may appoint an officer of the court to make an inventory of
the properties of the deceased.

Appointment of Curator:
If the judge apprehends misappropriation, or waste of property, before the proceedings are completed
and if delay is risky, he may proceed to appoint a curator on terms fixed by him, and, in consequence
property is handed over to him. The appointment is duly published.

Powers and functions:

(i) As per the terms of his appointment by the District Judge he takes possession of the property and
exercises his powers.
(ii) If probate, letters of administration, or Succession Certificate had been issued, the curator has no
powers.
(iii) Curator should give security as per the orders of the District Judge.
(iv) Curator should prepare an inventory including expenses, income etc, and submit to the court. He
should file quarterly statement of accounts
(v) He may be paid compensation for his services,
(vi) To sue, to defend, or taking any other action should be as per the directions of the court.
(vii) The appointment is only for a limited purpose.
What the court determines is only the right to possession. This is not about title etc. Hence there is no
appeal. (Section 209).

Punishment:
The curator is punishable by the District Judge, for violation of his powers or dereliction of duties.

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 30. Write a note on unprivileged wills.

Introduction:
A person can ensure as to how his property should devolve and to whom it shall devolve, after his death,
through a Will. If a person dies without leaving behind his Will, his property would devolve by way of law
of intestate succession and not testamentary succession (i.e. in accordance to the Will) Hence, it is
preferable that one should make a Will to ensure that one's actual intention is followed and the
property is devolved accordingly. Will is an important testamentary instrument through which a testator
can give away his property in accordance to his wishes.

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A Will defined in “  is that leg        
on how his property is to be managed and/or disposed off after his death. The person for whom this legally
valid Will is made is called the testator. A person cannot give his ancestors property in the form of a Will
but he can make a Will only of his Self-Acquired property. A Will does not involve any transfer, nor affect
any transfer inter-vivos (from one living person to another), but it is a document in which a person
specifies the person (executor) as well as the method to be applied in the management and distribution
of his estate after his or her death. A Will therefore comes into effect only after the death of the testator
and can be revoked by the testator alone, until such a time that he is legally competent to dispose of his
property.

H B  W

The origin and growth of Will amongst the Hindus is unknown. However Wills were well known to the
Muhammadans and contact with them during the Muhammadan rule, and later on with the European
countries, was probably responsible for the practice of substituting informal written or oral
testamentary instruments with formal testamentary instruments. The Indian Succession Act, 1925,
consolidating the laws of intestate (with certain exceptions) and testamentary succession supersedes
the earlier Acts, and is applicable to all the Wills and codicils of Hindus, Buddhists, Sikhs and Jainas
throughout India. The Indian Succession Act, 1925, does not govern Mohammedans and they can
dispose their property according to Muslim Law

Types of Wills:
Privileged and unprivileged Wills:
Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills
and Wills executed according to section 66 of the Indian Succession Act, 1925 are called privileged Wills.

Privileged Wills:
Wills made by a few Privileged Persons. A Privileged Will is one which is made by any soldier, airman or
mariner employed in an expedition or engaged in actual warfare. A soldier includes all officers in service
but does not include a civilian engineer employed by the army, having no military status.
A soldier while making an instrument of Will must have attained the age of 18 years.
A will made by a soldier in the oral form, is valid only for a month whereas a written Will always remain
operative.
A privileged Will may be revoked by the testator by an unprivileged Will or codicil, or by any act
expressing an intention to revoke it or by the burning, tearing or otherwise destroying the same by the
testator.

Unprivileged Wills: An Unprivileged Will is one which is created by any testator who is not employed as a
soldier, airman or mariner. The testator of an Unprivileged Will is bound by the general requirements of
a valid Will.

W C M W

Every person who is competent to contract may make a will but he must be major, sound mind and
willing to write a Will. Any person who is the sole owner of a self-acquired property can bequeath by
way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will cannot be
made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A Will

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executed by a minor is void and inoperative though a testamentary guardian can be appointed for the
minor to dispose off the property. A Will can be made by the deaf and dumb persons by showing
consent through writing or gestures in sign language. Nothing prevents a prisoner or alien in India from
drawing a Will.

F W T W C B M

Any person capable of holding property can be a legatee under a will. A minor, lunatic, a corporation, a
Hindu deity and other juristic person cannot be a legatee.
“     I “ A    s on the disposition of property
by will in certain cases.
Dispositions of property by will in some cases have been declared void. If the minor person has been
named as legatee by a testator then a guardian should be appointed by the testator himself to manage
the bequeathed property.

What Can Be Bequeathed In A W

Any movable or immovable property can be disposed of by a will by its owner. The property must be a
self acquired property of that person and it should not be an ancestral property of the testator.

G P T M A W:

A W                W.
There is no defined format for making a Will but a general procedure should be adopted while writing a
Will by the testator which includes:
1. Declaration In The Beginning:
In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full
senses and free from any kind of pressure and undue influence and he has to clearly mention his full
name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to
write a Will.

2. Details of Property and Documents:

The next step is to provide list of items and their current values, like house, land, bank fixed deposits,
postal investments, mutual funds, share certificates owned by testator. He must also state the place
where he has kept all the documents. If the will documents are under safe custody of the bank then
testator has to write details about the releasing of the Will from the bank. It is the most important duty
of the testator to communicate the above matter to the executor of the Will or any other family
members, which will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should specifically
mention that who should own his entire property or assets so that it will not affect the interest of the
successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of
the property should be appointed to manage the property.

 A   W

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 At the end, once the testator completes writing his Will, he must sign the will very carefully in presence
of at least two independent witnesses, who have to sign after his signature, certifying that the testator
has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of
the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must
sign to avoid any legal disturbances.

 E  A W
On the death of the testator, an executor of the Will or a heir of the deceased testator can apply for
probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If
there are no objections, the court grants probate. A probate is a copy of a Will, certified by the court. A
probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the
Will comes into effect.
Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to the
power of the executor. The grant of probate to the executor however does not confer upon him any title
to the property.

10 Important Characteristics of a Valid Will:

1. The Name of The Testator:
The person executing the Will is called the testator. The name of the testator should be mentioned
accurately without any error in initials, spelling or grammatical mistake so that it will not affect the
instrument of Will. The name of the testator can also be clarified by looking into his birth certificate or
any school certificates.

2. Intention of The Testator supreme:

Section 74 of ISA provides that a Will maybe made in any form and in any language. No technical words
need to be used in making a Will but if technical words are used it is presumed that they are in used in
their legal sense unless the context indicates otherwise. Any want of technical words or accuracy in
grammar is immaterial as long as the intention is clear.

3. Executors:
The testator appoints one or more executors to act on the intentions of the testator as is set out in the
Will. An executor need not necessarily be one of the legatees or beneficiaries of the Will.

4. Legatee:
The Will clearly stipulates legatee or the beneficiary of the Will.

5. Codicil:
Any additions or alterations in the Will can be made by executing a codicil.
Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is
deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which
has already been executed. If the testator wants to change the names of the executors by adding some
other names, or wants to change certain bequests by adding to the names of the legatees or subtracting
some of them, a Codicil in addition to the Will can be made to do so. The codicil must be reduced to
writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court

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 to arrive at the intention of the testator by reading the Will and all the codicils.

6. ‘  W:
Section 62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered
anytime during the lifetime of the testator. Section 70 of ISA provides the manner in which it can be
revoked. A mere intention to revoke is not an effective revocation. The revocation of the Will should be
in writing and an express revocation clause would revoke all the prior Wills and codicils.

A Will is liable to be revoked by the maker of it at any time when he is competent to dispose of his
property by Will. A Will can be revoked by testator of the Will at any point of time which can be
classified into two aspects such as:-
 V ‘ A testator who wishes to revoke his original Will which is made by him on a
specified date and time, he can make revocation of the will himself by writing a subsequent Will or
codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or
striking out the signature of the original instrument of a Will.
 I ‘ According to the Section: 69 of the Indian Succession Act, 1925 which deals
               H
“    I “ A           Will
invalid.

7. The Last will:

With the execution of any subsequent Will, the previously executed Will stands automatically cancelled.

8. Signature and Attestation:

A Will must be signed and attested.
Section 63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is unable to write
his signature then he may execute the Will by a mark and by doing so his hand maybe guided by another
person. In another words a thumb impression has been held as valid.

Attesting means signing a document for the purpose of testifying the signature of the executants.
Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be
said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the
testator but it is not necessary that the testator have to sign in their presence. Further it is not
necessary that both the witnesses have to sign at the same time. It is also not necessary that the
attesting witnesses should know the contents of the Will.

9. Registration:
A   “    ‘ A      W   
Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the
registering officers and the latter had attested the same after. The process of registration begins when a
Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself
or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is
satisfied with all the documents then registrar will make the entry in the Register-Book by writing year,
month, day and hour of such presentation of the document and will issue a certified copy to the
testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised
agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is

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 satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the
refusal of registration by the registrar.

10. To Take Effect After Death:

Unlike gifts, a Will comes into operation only after the death of the testator.

Restrictions on A Will:
1. Transfer to unborn persons is invalid.
Where a bequest is made to a person by a particular description, and there is no person in existence at
the testator's death who answers that description, the bequest is void. Section 113 of Indian Succession
Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in
another person and the bequest must comprise of whole of the remaining interest of the testator.
In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who was
yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer
to an unborn person and the Court held that since the vested interest was transferred when the
grandsons were born and only the enjoyment of possession was postponed till they achieved the age of
twenty one the transfer was held to be valid.

2. Transfer made to create perpetuity:

Section 114 of the Indian Succession Act, 1925.

The rule against perpetuity provides that the property cannot be tied for an indefinite period. The
property cannot be transferred in an unending way. The rule is based on the considerations of public
policy since property cannot be made inalienable unless it is in the interest of the community.

In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be
1) A transfer
2) An interest in an unborn person must be created
3) Takes effect after the life time of one or more persons and during his minority
4) Unborn person should be in existence at the expiration of the interest

3. Transfer to a class some of whom may come under above rules:

Section 115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom
it is inoperative by reasons of the fact that the person is not in existence at the testator's death or to
create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the
whole class.
A number of persons are said to be a class when they can be designated by some general name as
grandchildren, children and nephews.

4. Transfer to take effect on failure of prior Transfer:

Section 116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114
and bequest in favour of a person of a class of persons is void in regard to such person or the whole of

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such class, any bequest contained in the same Will and intended to take effect after or upon failure of
such prior bequest is also void.
The principle of this section is based upon the presumed intention of the testator that the person
entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the
prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any
male descendants whether born as son or daughter to them absolutely. In the absence of any issue,
         B       go to C. It was held
that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter
and hence the gift in favour of C was also invalid. However alternative bequests are valid.

W B M U M L A Will under Mohammedan Law is called as Wasiyat,
which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to
make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a
Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate
by writing will, which will take effect after his death. A will may be in the form of oral or written if the
will is in writing need not be signed if signed need not be attested. According to Shia Law if served
bequests are made through a will, priority should be given to determination by the order in which they
are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major
and possessing a absolute title, in favour of a person who is capable of holding property except unborn
persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator.
A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary
power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.

31. Write a note on Types of Wills:

Types of Wills:
1. Privileged and unprivileged Wills:
Privileged Wills are a special category of Wills and other general Wills are known as unprivileged Wills.
Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills
and Wills executed according to section 66 of the Indian Succession Act, 1925 by a soldier or airman or
mariner employed in an expedition or engaged in actual warfare are called privileged Wills.

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Privileged Wills: A Privileged Will (Section 66 of the Indian Succession Act) is one which is made by any
soldier, airman or navy persons who is willing to dispose of his or her estate during the course of his or
her employment. This could refer to an expedition, engagement in actual warfare or a mariner being at
sea. A soldier does not include a civilian engineer employed by the army who has no military status. A
soldier while making an instrument of Will has to be a major not a minor, with the legal definition of
major being a person who is above the age of 18 years.
Unprivileged Wills: An Unprivileged Will (Section 63 of the Indian Succession Act) is one which is created
by any testator who is not employed as a soldier, airman or mariner. The testator of an Unprivileged Will
is bound by the general requirements of a valid Will.

2. Conditional or Contingent Wills: A Will expressed to take effect on the happening or not happening of
some event is called a Contingent Will. A Conditional Will is based on certain conditions and if these
conditions become contrary to law, then the Will is not legally enforceable.
A   W              . A   
that year. The Will becomes inoperative.
I ‘  “     W         s
wife.
If it is ambiguous whether the testator intended to make a Will conditional, the language of the
documents as well as the circumstances are to be taken into consideration.

3. Joint Wills:
Two or more persons can make a joint Will. If the joint Will is joint and is intended to take effect after the
death of both, it will not be admitted to probate during the life time of either and are revocable at any
time by either during the joint lives or after the death of the survivor.
A Will executed by two or more testators as a single document duly executed by each testator disposing
of his separate properties or his joint properties is not a single Will. It operates on the death of each and
is in effect for two or more Wills, on the death of each testator, the legatee would become entitled to
the properties of the testator who dies.

4. Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits
constituting the other as his legatee. In the event the legatees are distinct from the testators, the Will is
not mutual. Mutual Wills are also known as reciprocal Wills and its revocation is possible during the
lifetime of either testator.

5. Duplicate Wills:
A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be
deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the
one which is in his custody it is revocation of both.

6. Concurrent Wills:
Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience
a testator may dispose of some properties in one country by one Will and the other properties in another
country by a separate will.

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In the event the testator disposes of some of his properties in one country by one Will and other properties
in another country by a separate Will, these are regarded as Concurrent Wills. In such cases both the Wills
        W 

7. Sham Wills: The intention of the testator is regarded as one of the essential condition of a valid Will. If
a document is deliberately executed with all due formalities purporting to be a Will, but if it can be shown
that the instrument was executed for some collateral object without any intention of the testator to make
it operative, the Will is regarded as a sham Will. It is considered as invalid in the eye of law.

8. Holograph Wills: Wills which are written entirely by the hand of the testator are called Holograph
Wills.

32. Write a note on Invalid Wills

1. Wills are invalid due to fraud, coercion or undue influence:

S.61 of ISA provides, that a Will, or any part of a Will made, by fraud or coercion is basically not a free
Will and will be void and the Will would be set aside.
Fraud:
S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through
1) Misrepresentation

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2) Concealment.
Fraud in all cases implies a willful act on the part of anyone whereby, another is sought to be deprived
by illegal or inequitable means, of a thing which he is entitled to.

Coercion:
S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or
imprisonment would invalidate a Will.
In Ammi Razu v. Seshamma , a man threatening to commit suicide induced his wife and son to give him a
release deed. It was held that even though suicide was not punishable by the Indian Penal Code yet it
was forbidden by law and hence the release deed must be set aside as having been obtained by
coercion.

Undue influence:
Undue influence u/s.16 of Indian Contract Act is said to be exercised when the relations existing
between the two parties are such that one of the parties is in a position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other. However neither fiduciary
relationship nor a dominating position would raise a presumption of undue influence in case of Wills as
all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a
person in fiduciary relationship would be lawful so long as the testator understands what he is doing.
Thus it can be said that a testator maybe led but cannot be driven.

2. Wills are Void Due To Uncertainty:

S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will
then it would be invalid. The Will may express some intention but if it is vague and not definite then it
will be void for the reason of uncertainty. The Will may depose of the property absurdly or irrationally
i.e the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty
to be proved it has to be proved that the intention declared by the testator in the Will is not clear as to
what is he giving or to whom is he giving. Only if the uncertainty goes to the very root of the matter,
then only the Will has to be held void on the grounds of uncertainty.

3. Wills Void Due To Impossibility Of Condition:

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A
conditional Will is that Will which is dependent on the happening of a specific condition the non-
happening of which would make the Will inoperative. S.126 of ISA provides that a bequest upon an
impossible condition is void. The condition maybe condition precedent or condition subsequent.

4. Will void due to illegal or immoral condition:

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The
condition which is contrary, forbidden, or defeats any provision of law or is opposed to public policy,
then the bequest would be invalid. A condition absolutely restraining marriage would also make the
bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the
property bequeathed is to be enjoyed then the direction would be void though the Will would be valid.

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 33. Write a note on Privileged Wills

Introduction:
A Privileged Will (Section 66 of the Indian Succession Act) is one which is made by any soldier, airman or
navy persons who is willing to dispose of his or her estate during the course of his or her employment.
This could refer to an expedition, engagement in actual warfare or a mariner being at sea. A soldier does
not include a civilian engineer employed by the army who has no military status. A soldier while making
an instrument of Will has to be a major not a minor, with the legal definition of major being a person who
is above the age of 18 years.

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 Features and Privileges Assigned to a Privileged Will:
1. A Will written wholly by hand of the testator need not be signed and/or attested.
2. If written wholly or in part by any person other than the testator it must be signed by the testator but
need not attested.
3. In case the Will has been written by any other person and it has not been signed by the testator, it has
     W              Wll.
4. An incomplete Will can nevertheless be deemed to be valid if some cause other than the abandonment
of the testamentary intentions expressed in the instrument.
5. If the testator has given instructions for preparing a Will but has died before the Will could be prepared
and executed, then such instructions are to be considered to constitute his Will, although they may not
have been put into writing in his presence, nor read over to him.
6. Where a Will is made by the testator by word of mouth, declaring his intention before two witnesses
present at the same time, such a Will shall become null and void at the expiration of one month after the
testator, being still alive, has ceased to be entitled to make a Privileged Will.

34. Discuss the need for an Uniform Civil Code.

Introduction:
Uniform civil code is a term which has originated from the concept of a civil law code. A Uniform Civil
Code essentially means a common set of laws governing personal matters for all citizens of the country,
irrespective of religion or region. This supersedes the right of citizens to subject themselves to different
personal laws based on their religion or ethnicity. Currently, different laws regulate these aspects for
adherents of different religions.

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An example is the case in which Justices Vikramjit Sen and Shiva Kirti Singh made their intervention: A
Christian man has questioned a provision that requires a Christian couple to be judicially separated for
two years before getting a divorce, whereas this period is one year for Hindus and other non-Christians.

The common areas covered by a civil code include:

- Marriage
- Divorce
- Inheritance
- Adoption and Maintenance

Articles 37 and 44:

Article 44 of the Directive Principles in India implements the Uniform Civil Code. According to this article,
"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India".
But, Directive Principles are only guidelines and it is not mandatory to use them. As Article 37 makes
clear, they are not enforceable by any court.

When was the Uniform Civil Code demanded?

It is during the per-Independence period that Personal laws came into existence, majorly for Hindu and
Muslim citizens. But with an objective to gain and promote women's rights, equality and secularism,
Uniform Civil Code was demanded in the 20th century by women activists.

Debate:
What falls squarely for consideration whenever a debate on the Uniform Civil Code picks up pace are the
   I             C
and Article 25, which guarantees the freedom to practice, profess and propagate any religion. By the
42nd Amendment of 1976, India was declared a secular nation.
As a result of this, and the understanding of Article 25, the State and its institutions have not interfered
with religious practices, including in relation to various personal laws.
C   A    “          
        therefore, it is argued, Article 25 is no bar to having
a Uniform Civil Code.
The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures
the right to equality. Litigants have contended that their right to equality is endangered by personal laws
that put them at a disadvantage.
The first prominent case founded on Article 14 was Shah Bano (1985) in which the apex court ruled that
a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.
Following protests from Muslim leaders, Rajiv Gandh      M W
(Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling. The Act allowed
maintenance to a divorced woman only during the period of iddat, or for 90 days after divorce,
according to provisions of Islamic law, but in stark contrast to general provisions under the CrPC. In
Daniel Latifi vs Union of India (2001), the Supreme Court upheld the Act in so far as it confined the time
period of maintenance to the iddat period, but held that the quantum of maintenance must be

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         I       
between the Shah Bano judgment and the 1986 law.

It is not only a Hindu-Muslim debate but involves other religious minorities as well.
Secularism means that citizens have to follow uniform civil code whether they are Hindus, Muslims,
Christians, or Sikhs. UCC does not limit the freedom of people to follow their religion; it means every
person must be treated equally.
Most of the personal laws have bias against rights of women such as Unilateral Oral Talaq in Muslim law,
Restitution of Conjugal Rights issue in Hindu law and limited property rights of women in Christian
Law. Bias is not only against women but also operates against men.
Other than Hindu Marriage Act, no other personal law provides alimony to husband from wife.
Similarly, personal laws don't allow for inter-religion marriages, thus are divisive in society.
Personal Laws confer unconstitutional benefits - Hindus get tax exemption under Hindu Undivided
Family and Muslims need not register gift deeds thus saving stamp duty. These benefits are entirely
based on religion and hence unconstitutional.

Common Myths:
1. Uniform civil code means imposition of Hindu law:
This is absolutely incorrect. Uniform civil code only means uniformity in personal laws. It will be a
neutral law which will have nothing to do with religion.

2. Uniform civil code will take away freedom of religion:

No, it will not. Freedom of religion is granted as a Fundamental right and will remain so under the
Constitution.

3. We don't really need the Uniform Civil code, India is working just fine:
By that logic no laws are required for that matter. Codification of Hindu law was not required. But the
act helped the community in the long run.

India should implement Uniform civil code for the following reasons:
a) To be 'Secular':
In order to be completely secular, laws should have nothing to do with religion. All we have right now, is
different factions of the population practicing different laws. The true implementation of India's
secularism would be made by enacting personal laws outside the purview of religion. All Indians will
truly be treated equally regardless of our religions.

b) To reduce the burden on the legal system:

Different personal laws for different communities creates unnecessary burden on the legal system.
Bringing a Uniform Civil code would reduce that. It would also help in simplifying a lot of technicalities
which are present in different personal laws. It will also address all the loopholes present in different
personal laws.

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c) It will promote unity:
Single personal law for all Indians would promote unity. It will also help in the progress of India as a
nation.

d) Better laws will be enacted:

A lot of different personal laws which are grossly unjust, unfair, discriminatory and downright
unconstitutional are given protection under religious freedom. Most of these laws do not help people.
Uniform Civil code will bring about better laws and will promote a better legal system.

e) It will help better the situation of Muslim women:

Monogamy should be mandated on all the Indians. This will happen through Uniform Civil code. Uniform
Civil code is also a major step towards gender justice.
Muslim women have hardly got any rights as to maintenance or inheritance. Providing a strong Uniform
civil code will help better the situation of Muslim women which will in turn help the community's
progress. The progress of women is most important if any community wishes to rise above poverty and
progress.
Also certain provisions of Christian law and Hindu law needs amendment. That too will happen with
Uniform civil code.

f) It will help end vote bank politics:

If all Indians have same laws governing them, then the politicians will have nothing to offer to any
community in exchange of their votes.

The Supreme Court has time and again reiterated the importance of enacting a Uniform Civil Code.
Every modern nation which has truly embraced 'Secularism' has a Uniform Civil Code.
The Uniform Civil Code (UCC) is the sign of a modern progressive nation, which shows that the nation
has moved away from religion, race, caste, sex and place of birth discrimination.

35. Wtite a Note on Mushaa ; (Undivided Share)

Mushaa comes from Shuyuu, which means "confusion".

Mushaa is "undivided share in the property, movable or immovable. Gift of mushaa in the property is
valid according to Muhammedan law.

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K, the owner of a house, gifts his house to G, and also his right to use a staircase which he (K) was using
jointly with the adjoining owner. Held the mushaa was valid.

Kasim Russian Vs. Shariffunnissa.

Gift of mushaa in a property which is divisible is irregular (fasid), and not void, it can be regularised by
making the partition and delivering of the share property to the donee.
In the following circumstances a gift of undivided share (mushaa) is valid even if partition and delivery
are not made.

(i) Gift by one coheir to another,

(ii) Gift of a share in zamindari.
(iii) Gift of property situated in large commercial areas etc.

Limitation:
1. Mushaa does not apply to progressive societies,
2. It does not apply when there is consideration.

36. Write a Note on Public and Private Waqf

Introduction:
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim vs A Asghar Ali AIR
1932. Technically, it means a dedication of some specific property for a pious purpose. As defined by

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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.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a person professing 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
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 Sakur vs 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:
A Wakf 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 vs Nabi Bux, 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 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 Kunhamutty vs Ahman Musaliar 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.

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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.
These 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 his death bed (marj ul maut), 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 Wakf alal aulad. 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.

Wakf alal aulad (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 Muhammadan 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 wakf-alal-aulad is that only the members of
                L 
wakfs, wakf alal-aulad 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. Wakf alal aulad is, in

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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 wakf-alal-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 public Wakf:

Sometimes a third kind of wakf is also identified. In a Quasi public wakf, 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 Khaliluddin vs Shri 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.

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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 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 nobody can claim ownership of it. In Md. Ismail vs
Thakur Sabir Ali AIR 1962, SC held that even in wakf alal aulad, 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 wakf for ever. Wakf cannot be for a specified time duration. In Mst Peeran vs 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 nobody 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

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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 to 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 Arif vs 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 non-muslim cannot be appointed.
In Shahar Bano vs 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 a family member of the wakif instead of an 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 non-
agricultural purpose for less than one year. He can exceed the term by permission of the court.

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 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 Bibi Sadique
Fatima vs Mahmood Hasan 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.

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