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Model Q. & Ans. for Judicial Service Main Exams On Muslim Law Q. 1 Discuss the sources of Muslim Law.

Ans Sources of Muslim Law Main sources of Muslim Law are (1) The Quran (2) The Sunnat and Ahadis (3) The Ijama (4) The Qiyas (5) Customs & Usage (6) Judicial Decisions (7) Legislation. (8) Justice, Equitys Good Conscience. (1) The Quran: The Quran is composed of such express revelations as were made in the very words of God to Prophet Mohammad, through angel Gubriel. The Quran in its present form is a book divided into 114 chapters and consists of about 6666 Ayats. It is in the form of a series of divine communications between God and Prophet Mohammad. It was given to the world in fragments during last 23 years of life of Prophet Mohammad, but it was never collected and arranged in the life time of Prophet. Abu Bakar, for the first time collected the passage of Quran and after him the Usman, gave it textual form, in which we have it at the present day. The Quran deals with variety of subjects but its only 200 verses are concerned with legal principles and nearly go verses are concerned with marriage, dower, divorce and inheritance. Its some verses seek to repeal the objectionable customs, such as infanticide, gambling, usury and unlimited polygamy etc. some verses seek to make reforms in cases of woman succession and inheritance, while some verses lay down punishments for some offence like theft, murder and fornication etc. it also contains general injunctions, international law of war and peace and reforms in unlawful heathen customs, & drinking of intoxicants. The Quran also gives direction relating to the treatment of enemy and non Muslim. The Quran is the first and most important source of Muslim law, despite, it is not a complete code of Muslim Law.
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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(2)

The Sunnat and Ahadis: The Prophet Mohammad, in his life time pronounced some verdicts, did certain things and also allowed tacitly the doing of certain things permitted by Islam. Consequently what was said or done or upheld in silence by the Prophet became primary sources of Muslim Law, next to Quran. The Sunnat is the model be haviour of the Prophet and Ahadis are verdicts of Prophet, which were orally handed down from generations to generations by some authorized Muslims. That is why a minute inquiry is necessary to a accept an Ahadis. The importance of Ahadis as an important source of Muslim Law has been laid down in the Quran itself. The Ijama: According to Abdul Rahim Ijama is the agreement of jurists among the followers of Prophet Mohammad in a particular age on a particular question of law. After death of Prophet, with the expansion of the Islamic influence, a large number of new situations and new problems croppedop, which would not be decided by reference only to Quran and Ahadis. Then the jurists took the recourse to the principle of Ijama. The laws are needed for the benefit of the community, so, the Divine Legislator has delegated power to lay down laws by the resolution of those men in the community who are competent in that behalf, i.e. the jurists. Since the Muslim religion does not admit the possibility of further revelation after the death of the Prophet, the principle of Ijama is the only authority for legislation in the present Muslim system. Ijama is not a text, rather it is an opinion or judgment based on the authority of some text, contained in Quran and Sunnah. Thus Ijama cannot repeal the Quran or the sunnat, but a latter Ijama can repeal a former Ijma. Thus Ijma is the third most important source of Muslim Law.

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The Qiyas: The Qiyas is an analogical deductions based on Quran. Ahadis and Ijma. In Qiyas rules are deduced by exercise of reasonings. Thus Qiyas is an extension of law with help of above three primary sources of Muslim Law, by applying the text of law to such cases, which are not covered in the exact language of the Quranic text. But the result of Qiyas should not be
2 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

inconsistent with any verses of Quran or any established Sunnah. The Qiyas is the last primary source of Muslim Law. (5) Customs and Usage: A custom is a tradition passing on from one generation to another, that originally governed human conduct and has obtained the force of law in a particular locality. It is natural source of Muslim Law. But the Muslim jurists do not expressly describe it as source of Muslim Law, but those customs and usage, which has not been modified or abrogated by the Prophet remained good and valid. The Muslim Law includes many rules of pre-Islamic customary law, which have been embodied in it by express or implied recoginition. Custom does not command any spiritual authority like Ijma, but a transaction sanctioned by custom is legally operative, even if it is in violation of a rule of law derived from analogy, but it must not be opposed to clear text of the Quran or of an authentic tradition. Judicial decisions: The decisions of the privy council, the Supreme Court and High Court are regarded as precedents for future cases. While applying and interpreting law in a particular case, the judges expressly or impliedly declare as to what law would apply in a particular circumstances. The decisions become an authority for subsequent cases arising in courts. The Muslim Law has been supplemented on many points by judicial decisions. On some points, judicial decisions have modified the pure Muslim Law. Legislation: There have been many legislative enactments, which have considerably amplified, altered or modified the original Muslim Law. Some important enactments which considerably influenced the Muslim Law are following The Guardian and wards Act 1890. The Mussalman waqk validing Act 1913 The child marriage Restraint Act 1939. The Muslim personal law or the Shariat Act 1937 The Dissolution of Muslim Marriage Act 1939
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(1) (2) (3) (4) (5)

S.K. Shukla

(6) (7) (8)

The Muslim women (Protection of Rights on Divorce) Act 1986. The Indian Contract Act 1872 etc. Justice, equity and good conscience: Under Muslim Law. The principle of justice, equity and good conscience can also be regarded as sources of law. Abu Hanifa expounded the principle that the rule of law based on analogy could be set aside at the option of the judge on a liberal construction or juristic preference to meet the requirement of a particular case. These principle of Muslim Law are known as juristic equity.

Q. 2 Make distinction between Sunni and Shia School of Muslim Law Ans Main differences of Sunni and Shia School of Muslim Law may be summarized as follows: (1) Sunni School recognized the seat of Khalifa as the successor of Prophet Mohammad, while Shia School recognized the seat of Imam as successor of the Prophet Mohd. Mutta marriage is not valid under Sunni School, while it is valid under Shia School. Witnesses are essentially required at the time of nikah under Sunni School, while witnesses are not essentially required at the time of nikah under Shia School. In Sunni School the marriage relations are either valid. Irregular or void, while in Shia School, the marriage relations are either vaid or void. Witnesses are not required at the time of talaq under Sunni School, while two witnesses are required at the time of the talaq under Shia School. Some part of dower may be prompt and some part deferred under Sunni School while the dower is only prompt without any condition under Shia School.

(2) (3)

(4) (5) (6)

S.K. Shukla

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(7) (8) (9)

Talaq can be given orally or in writing under Sunni School, while Talaq must be pronounced orally and in Arabic language under Shia School. Talaq under intoxication and pressure is not void under Sunni School, while Talaq under intoxication and pressure is void under Shia School. The mother of a son is guardian upto age of 7 years and of a daughter upto age of attaining puberty under Sunni; Sunni School and the mother of a son is a guardian upto age of 2 years and of a daughter upto age of 7 years under Shias. The maternity of a child is recognized from mother who give birth to such child without having any consideration of the reason of birth under Sunni School, while under Shias School, if the child is born as a result of illict relationship of the mother, the child is treated as motherless. The consent of successor is necessary for a will under Sunni School while the consent of successor is not necessary for a valid will under Shia School.

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Q. 3 Define Nikah. State its object, nature, formalities or essentials and effect. Marriage among Mohammedans is not a sacrament but purely civil contract. Discuss this statement with reference to essentials of a valid Muslim marriage. Ans Definition of Nikah (marriage) According to Hedaya: Muslim marriage is a intercourse and for procreation and legitimation of children and social life in the interest of society by creating the rights and duties between the parties themselves, and children born from the union. In Abdul Kadir Vs Salima Justice Mahmood has observed as follows: Marriage among Mohammedans is not a sacrament but purely a civil contract for the completion of which due offer and acceptance is essential. In words of Ameer Ali:
S.K. Shukla 5 Mo: 9899660723

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

Marriage is an institution ordained for the protection of society and in order that the human being may guard themselves from foulness and unchastity. Object of Marriage The main object of Muslim marriage are (1) Religious (2) Social (3) Legal. (1) Religious: Islam recognizes marriage as basis of society. It not only a contract but also sacred covenant. Marriage is an institution which helps not only in the continuence of the human rece, but also develops love and labour between thespouses. Prophet Mohammad himself was in great favour of marriage, because as per him, it helps in raising the status of a woman. He said that the validity of character is the best reason for marriaging with a woman. According to sir A. Fyzee Marriage partakes the nature of both I badat (worship) and mumalat (wordly affeirs). Social: From social point of view the marriage in Muslim society (1) gives high social status to the married woman (2) places restrictions upon the unlimited polygamy. Earlier in preIslamic times polygamy was unlimited. Legal: Legally, Muslim marriage is purely a contract of civil nature. It is not a sacrament but a quasi contract. from a legal point of view a Muslim marriage contains the following three characters: A marriage cannot be completed unless free consent is obtained from other party to marriage If a marriage is dissolved by the act of parties or by operation of law, it is deemed as breach of contract The terms of the contract of marriage can be altered by a suit in an individual case within certain legal limits. Nature of Muslim Marriage

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(i) (ii) (iii)

S.K. Shukla

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

There is divergence of opinion with regard to the nature of Muslim marriage. Some jurists opine that Muslim marriage is purely a civil contract while others say that it is a religious sacrament. The jurists who say Muslim marriage a civil contract, point out following reasons: (1) (2) (3) (4) The marriage among Muslims starts with offer and acceptance. Just as contract, marriage may be contracted by the parents or close relatives of parties, if they are minor. The terms of marriage contract may be altered The parties to Muslim marriage may enter into any ante-nupial or post nuptial agreement which is enforceable by law, provided it is reasonable and not opposed to the policy of Islam. The same is the case with the contract. The contractual aspect of Muslim marriage has been pointed out by justice Mahmood in Abdul Qadir Vs Salima as follows: Marriage among Mohammedans is not a sacrament, but purely a civil contract for the completion of which due offer and acceptance is essential. In case of Sabroonnisa Justice mittar observed that marriage under Muslim law is a civil contract and is like a contract of sale. Sale is a transfer of property for a price. In contract of marriage the wife is the property and dower is the price. However in case of Shoharat Singh Vs Jafri Begum the Privy Council said Nikah under Muslim Law is a religious ceremony and ibadat. The jurists who say Muslim marriage is social and religious institution, point out following reasons: (1) (2) Unlike civil contract, it cannot be made contingent on future event. Except Muta marriage, it cannot be for a limited time as a contract.
7 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(3)

There are buyers and sellers in a contract of sale and the subject matter is goods, whereas in a contract of marriage, the wife herself is to receive dower and not her parents. This is against the basic principles of natural justice to think that marriage is a matter of buying and selling of a woman under Muslim Law. Therefore on the basis of these observations it can be concluded that the marriage among Muslims is an institution of Ibadat clothed in legal form of contra regulating sexual intercourse and procreation of legitimate children. Thus the marriage in Islam is neither a purely a civil contract, nor a sacrament. It has the character of both.

Formalities of a Muslim Marriage The formalities of a Muslim marriage were observed by Justice Mir. Ahmed as under: According to Mohammedan law it is absolutely necessary that the manor someone on his behalf and the woman or someone on her behalf should agree to marriage at one meeting and agreement should be witnessed by two adult witnesses. As woman are in pardah, it is customary to send a relative of the woman to the house accompanied by two witnesses. The relative asks the girl within the hearing of the witnesses, whether she authorizes him to agree to the marriage on her behalf for the dower money offered by the proposed husband. He explains her in detail about the proposed. Dower when the girl says yes or signifies her consent by some other method, then three person come out the future husband and those three others persons are then placed before the Mullah. The Mullah asks the boy whether he offers to marry the girl on payment of specified dower. He says yes. Then the relatives who had gone inside tells the mullah that he is the agent of the girl. The mullah ask him whether he agrees to the marriage on payment of specified dower the relative says yes. The witnesses are present there so that if the mullah has any doubt he should question them as to whether the relative is duly authorized agent of the girl. When both sides have said yes, the mullah reads the scriptures (Kalama ) and the marriage
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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

is complete. However there some differences regarding formalities under Sunni & Shia School. Essentials of a valid Muslim Marriage The following are the main essential for a valid Muslim Marriag e: (1) (3) (5) (1) Proposal (Ijab) Free consent Capacity of parties. Proposal (Ijab): Under Muslim law marriage is a civil contract between the parties to marriage. So it is necessary that there should a declaration of proposal on the part of one party to marriage. Acceptance (Qubul): For a valid Muslim marriage, proposal of marriage must be accepted by the 2 nd party to marriage. The proposal and acceptance must be made in unequivocal terms and must denote a permanent and immediate relation. A mere promise to marry in future does not constitute marriage. In Zainba Vs Abdul Rahman AIR 1945 it was observed that there is no particular form in which the proposal and acceptance should be made. But the words must indicate with reasonable certainty that a marriage has been contracted. (3) Consent: Consent of the parties to the marriage must be free i.e. without coercion, undue influence, fraud, mistake or miss-representation. If the marriage lacks free consent, it must be ratified after words. The consent may be express or implied. If the consent has not been obtained, the marriage is invalid and even consummation with the approval of the woman will not validate the marriage. Consent should not depend upon any contingency or future event. (2) (4) Acceptance (Qubul) Sufficient witnesses.

(2)

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(4)

Sufficient witnesses: According to Sunni School at least two adult witnesses are required but under Shia School witnesses are not essential at the time of marriage, rather they are required at the time of dissolution of marriage. Capacity: Every Muslim of sound mind who has attained majority can enter into a contract of marriage. Majority is attained at puberty. The presumption is that a person attains majority at 15 years or when it gets puberty. The marriage of a minor can be contracted only by their guardians. Such a marriage, although valid is capable of being repudiated. A marriage entered into by a girl while she had not attained puberty was not a marriage in the eyes of law and was therefore void. The age of puberty means the age on the completion of which a person is presumed to have acquired the competence to have sexual intercourse. This competency may be ascertained on the basis of natural signs or physical features of the boy and girl. Legal Effect of a Valid Marriage Main legal effect of a valid Muslim marriage are:

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(1) (2) (3) (4) (5) (6)

The wife becomes entitled to get maintenance from her husband. The husband become entitled to exercise put some restraints on the movement of his wife in a reasonable manner. The sexual inter course between spouses becomes lawful. The children born as a result of such marriage become legitimate. The wife gets or becomes entitled to get dower (mahr) A valid marriage creates the right of inheritance. The prohibition regarding marriage due to the rules of affinity comes into operation.
10 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(7)

If any agreement is entered into by the parties of marriage at the time of marriage or afterwards, its stipulation come into operation provided they are not contrary to law. The status of a woman is not changed. She remains subject to her own premarital School of Muslim law.

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Q. 4 - (1) What is paternity and maternity under Muslim Law? How these are determined? (2) Discuss the conditions for valid acknowledgement of paternity and legal effect of acknowledgement. Ans According to Wilson The relation between a father and child is called paternity and the relation between a mother and her child is called maternity. One of the peculiar features of the Mohammendan law is that in cases where the paternity of a child is doubtful, the acknowledgment of a person as his son, confers the status of legitimacy on such child.

There are two ways of conferring paternity (1) (2) The children born of a valid or irregular marriage automatically gets the paternity of their original father, Where it is doubtful to which person the paternity of a child belongs, the acknowledgment of paternity of a person confers the status of legitimacy to such child. In short the doctrine applies only to cases where either the fact or the exact time of the alleged marriage is a matter of uncertainty that is neither proved nor disproved. Conditions for valid acknowledgement: (1) The acknowledgment must be made in such a way that it shows that the acknowledger has accepted the other his legitimate son.
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In Jiand Khan Vs Province of Sind AIR 1948 the court held that A mere casual acknowledgement of paternity, not intended to confer the status of legitimacy, will not have effect of conferring that status. There must be an intention to confer that status. (2) (3) (4) (5) The acknowledger must be at least 12 years older than the person acknowledged. The person acknowledged must not be the offspring of Zina i.e adultery, incest (sex between prohibited relationships) or fornication The person acknowledged must not be known to be child of another man. The acknowledgement must not have been repudiated by the person acknowledged. The person acknowledged is entitled to repudiate the acknowledgement, if he has attained an age when he can understand the transaction.

Acknowledgement (Iqrar) Acknowledgement of paternity takes place in Islam: (1) (2) (3) (4) Where the paternity of a child is not known or established beyond a doubt. When it is not proved that the claimant is the offspring of Zina (illicit intercourse) and The circumstances are such that they do not rebut the presumption of paternity. When an acknowledgement of paternity by the father is possible and effective.

Legal effects of acknowledgement: (1) The acknowledgement of paternity of a child by a person raises presumption of a marriage between the acknowledger and the mother of such child.
12 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(2) (3) (4)

Acknowledgement, unless rebutted gives the child the status of legitimate son of the acknowledger. It gives a right of inheritance to such child. The mother of such child also gets the status of a lawful wife of acknowledge.

Q. 5 (a) Define and explain the Gift & Hiba. (b) Who can make a gift under Muslim Law. (c) What are the essentials of valid Gift. (d) When gift can be revoked? When the power to revoke the gift comes to an end. (e) When delivery of possession is not required for valid gift. (f) Describe the different kinds of Gift under Muslim Law. (g) Make distinction between (1) Hiba, (2) Hiba-biliwaz and (3) Hiba ba Shart ul - iwaz. (h) Whether a gift of undivided property (Musha) can be made. (i) What is Ariyat (Gift of usufruct) Ans (a)Gift & Hiba According to Mulla Gift is a transfer of property, made immediately and without any exchange by one person to the other and accepted by or on behalf of latter According to Fyzee Hiba is the immediate and unqualified transfer of the corpus of the property without any return. In India it is often assumed that the term gift is the exact equivalent of hiba and both are understood to connote all transfers of property without consideration. However gift is an expression of much wider connotations than hiba. Baillie has defined hiba as the conferring of a right in s omething specific without an exchange.

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13

Mo: 9899660723

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Juristically in Muslim Law Hiba is treated as a contract consisting of a proposal or offer on the part of the donor to give a thing and acceptance by done. Themost essential ingredient of hiba is the declaration I have given. Since Muslim Law views the law of gift as a part of law of contract, there must be an offer (Ijab) and an acceptance (Qubul) and delivery of possession (Qubza) (b) Who can make gift Under Muslim law any person can make gift of his own property who is major and of sound mind. (c) Essentials of valid Gift Under Muslim Law the requisites or essentials of a valid gift are as follows: (1) (2) (3) (4) (1) Parties to gift Subject matter of gift. Extent and Formalities or mode of gift. Parties to Gift: The parties to a gift transaction are two (1) T he donor (2) The donee. The donor must be major and a sound minded person. The donee may be any person capable of holding property, which includes a juristic person. Thus sex, age, creed or religion are no bar to the taking of a gift. (2) (a) (b) (c) Subject matter of a gift: The general principle is that the subject of a gift can be any thing over which dominion or right of property may be exercised or any thing which can be reduced to possession. any thing which exists either as (i) a specific entity or (ii) as an enforceable right: or
14 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(d) (e) (f) (3)

any thing which comes within the meaning of word mal. (goods) The property must be in existence at the time of making gift. the donor must have title and possession over subject of gift. Extent of Donors Right: The general rule is that the donors power to gift his property is unrestricted. He may not only give the whole of his property, but also any portion he likes irrespective of the fact that the disposition of property will adversely affect on the expectant heirs right to inherit the property. But in case of gift made during death illness, the donor cannot gift more than one third of his whole property and it can not be in f avour of an heir.

(4) (i) (ii) (iii)

Formalities and modes of Gift: The act of making a gift should fulfill the following three conditions: A declaration by the donor Acceptance by or on behalf of the donee. Delivery of possession by the donor and taking of possession by the donee. According to Tyabji on Muslim Law Even when the declaration and acceptance are not expressed in words, so long as the intention is evidenced by conduct, it would be sufficient.

(i)

A declaration by the donor: There must be a clear and unambiguous intention to make a gift by the donor. When there is no bona-fide intention to make a gift, the gift will be void. Acceptance by done or on his behalf: There should be an acceptance of the gift, express or implied by or on behalf of the donee. The acceptance may be given at any time subsequent to the gift.

(ii)

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(iii)

Delivery of possession: There must be actual delivery of physical possession of the subject matter of the gift from the donor to donee, subject to some exceptions. Revocation of Gift Revocation of gift under Muslim law may be classified into two categories:

(d)

(i)

Before delivery of possession: A donor is fully competent to withdraw his offer of gift, if delivery of possession was not made. No order of court is necessary in such cases. After delivery of possession: After delivery of possession, the gift cannot be ordinarily withdrawn. A suit for the purpose has to be filed in court of law. In such cases revocation can be made with consent of donee also. In Mahboob Vs Abdul AIR 1964 Raj H.C held that After the delivery of possession the donor has a right to revoke the gift either with the consent of the donee or by a formal decree of court

(ii)

When gift becomes irrevocable? But power of donor to revoke the gift comes to an end (i) (ii) (iii) (iv) (v) (vi) When the donor is dead. When the donee is dead. When the donee is related to the donor in prohibited degrees of consanguinity. e.g: brother and sister etc. When the donor and the donee stand in marital relationship i.e as husband and wife. When the subject of the gift had been transferred by the donee by sale, gift or otherwise to any other person. When the subject of gift has been destroyed, lost or so changed as to lose its identity.
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(vii) When the subject of gift has increased in value and the incensement is inseparable. (viii) When the gift is Sadaqa. (ix) (e) (1) When anything has been accepted in return. When Delivery of possession not required If the donor and donee both are residing in the same house which is to be gifted, no delivery of possession is required. In Baldeo Prasad Vs Subratan A Muslim whose daughter -in-law living in his house declared in clear language that he divested himself of ownership of half of the house and authorized her to take possession of that half. The daughter-in-law continued to reside in that half as before. It was held that the gift was valid and complete although there was no mutation of names in the municipal register. (2) (3) Where the property is in the possession of tenant no delivery of possession is necessary. If the property is already in the actual possession of the donee as a bailee, pledge, mortgagee or even as a trustee, the gift is complete, even without delivery of possession. The delivery of possession is not necessary, where the gift is made by the husband to the wife or vice versa. If a gift of property takes place from a father or other guardian to a minor, no delivery of possession is required and all that is necessary is to establish a bona-fide intention to give. Kinds of Gift Under Muslim Law there are 4 kinds of gift: (1) Hiba
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(4) (5)

(f)

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(2) (3) (4) (1)

Hibabil-iwaz Hibabashartul-iwaz. Sadaqa. Hiba: A hiba is a transfer of property, made immediately and without any exchange by one person to another and accepted by or on behalf of donee. There is no consideration for hiba. Delivery of possession is absolute necessary. It is revocable in certain cases. Hiba-bil-iwaz: It is a gift for consideration. It is just like a contract of sale. It has 2 separate parts (i) Hiba i.e original gift by donor to donee and (ii) an iwaz i.e return gift from donee to donor. e.g: A makes a gift of a cow to B and latter B makes a gift of a house to A. It is Hiba-bil-iwaz. There are two conditions for a valid hiba -bil-iwaz

(2)

(i) (ii) (3)

actual payment of consideration i.e iwaz on part of donee; and bona-fide intention on the part of donor to divest himself in present property and to confer it upon done. Hiba-ba-shart ul-iwaz: When a hiba is made by some one with a stipulation for return, such transaction is called hiba-ba-shart ul-iwaz. Tyabji Says In such hiba the two gift and return go hand in hand, not one before other and the return is in completion by both parties. Once hiba-ba-shart-ul-iwaz is completed by delivery of possession, neither of the party to it can revoke it. Hiba-ba-shart-ul-iwaz is also subject to the right of pre-emption.

(4)

Sadaqa: A Sadaqa is a gift made with the object of acquiring religious merit. It is a gratuitous transfer in the same manner as a gift (hiba). The
18 Mo: 9899660723

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

delivery of property is essential and once possession is delivered it becomes irrevocable. (g) (1) Distinction among (1) Hiba (2) Hiba-bil-iwaz and (3) Hiba-ba-Shart-uliwaz. Hiba is a pure and simple gift. Hiba-bil-iwaz is like a contract of sale. Hiba ba Shart ul iwaz is initially like a gift but operates like a sale when the promised condition is performed. Hiba is generally revocable. Hiba-bil-iwaz is irrevocable from the moment of its making. Hiba-ba-Shart-ul-iwaz becomes irrevocable after the performance of the promised condition but not before. Hiba of Musha, where the property is liable to be divided is invalid. Hiba-biliwaz of Musha is lawful even where the property is divisible. Hiba-ba-Shartul-iwaz of Musha where property is divisible is invalid. Delivery of possession is a condition precedent for the validity of Hiba. Delivery of possession is not essential in hiba-bil-iwaz. Like hiba, delivery of possession is essential in hiba-ba-Shart-ul-iwaz. In hiba ownership in property is transfers without consideration. In hiba-biliwaz ownership in property is transferred for consideration called iwaz. In hiba-ba-Shart-ul-iwaz ownership in property is transferred for consideration (iwaz). But there is also an express condition with the gift for return. Whether a gift of undivided property (Musha) can be made? Or what is doctrine of Muha and its exceptions.

(2)

(3)

(4)

(5)

(h)

Ans Undivide share in property is called Musha. Where the subject matter of the gift is incapable of division, a gift may validly made, of an undivided share (Musha) in it. e.g: A makes a gift to B of his house and of right to use a stair case used by him jointly with owner of an adjoining house. Since the gift of AS undivided share in the use of the stair case is not capable of division, it is valid.
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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

But where the property is capable of division, a gift of an undivided share (Musha) therein is irregular, though not valid under Hanafi law (Sunni law). e.g: A a partner in a firm makes a gift of his share of the partnership property to B. The gift is not valid, unless the share is divided and handed over to B. thus irregularity may be corrected and made valid by subsequent partition and delivery to the donee of the share given to him. Exception to the doctrine of Musha In Mohd. Mumtaz Vs Zubaida Jan the P.C had held The doctrine relating to the invalidity of gifts of Musha is wholly unadopted to a progressive state of society and ought to be confined within the strictest limits. So there are some exceptions to the doctrine of Musha as follows: (1) (2) Gift of Musha in a property which is incapable of division. Gift by one heir to a co-heir. e.g: A Mohammedan dies leaving as heirs his mother, daughter and son. Any one of them may make a gift of his or her undivided share in the property to one of the other two or both jointly. (3) Gift of a share in free hold property In a large commercial town. e.g: A gift of share of 1/3 in a house in Mumbai. (4) (5) (6) (7) Gift of share in company. Gift of a share in a holding in which the donee is admittedly in joint possession with the donor. When the gift is to poor or it is in the natre of Sadaqa. The gift of an undivided share is anything which is of such a nature that it can be used to better advantage in the undivided condition is valid.
20 Mo: 9899660723 S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

S.K. Shukla

(i)

What is Ariyat (Gift of Usufruct) The grant of a licence, resemble at the grantors option to take and enjoy the Usufruct of a thing is called Ariyat. It is a transfer of right to enjoy the use of profits without any return. In hiba the donee gets the ownership in the gifted property, but in Ariyat, he only obtains the use or beneficial enjoyment for a limited period and the ownership in property does not pass to him. It is made for a definite period. It does not devolve upon the heir of the done on his death. It can be revoked any time.

Problem: Point out whether the following gifts by a Mohammendan are valid, void or voidable: (i) (ii) (iii) Ans (1) (2) Vide Imam Sahib Vs Ameer Sahib AIR 1955 A gift to an unborn person is void under Muslim Law. Vide Azim-un-nissa Vs Dale (1871) Madras H.C held A gift made with intent to defraud the creditors of donor is voidable at the option of the creditors. However such intention cannot be inferred from the mere fact that the donor used some debts at the time of gift. Vide Kamar-un-nissa Bibi Vs Hussaini Bibi 3 All -266 A gift under the Mohammedan law is complete when the subject matter of the gift is delivered to donee and is accepted by him or on his behalf by any person. There is no requirement of any written instrument for validity of gift either of movable or of immovable property under Muslim law. Thus oral gift of
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Gift to an unborn person Gift made with intent to defraud creditors. Oral gift of immovable property worth Rs. 500.

(3)

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

immovable property worth Rs. 500 is valid under Muslim law if all other requirement are complied with. Q. 6 (a) What is divorce under Muslim Law. Explain different forms of dissolution of marriage (Nikah) (b) (c) (d) (e) Ans What are the rights and obligations that arise on divorce in a Muslim Marriage. Discuss the divorce by Muslim wife under the dissolution of Muslim Marriage Act 1939. Can a divorced Cauple vemany validly in Muslim law. Distinguish between Sunni and Shia Law of Talaq. (a) Divorce Under Muslim Law Simply Divorce means dissolution of marriage. This ter m divorce includes all forms of repudiation of marriage. Divorce can be classified as follows: (A) (B) (C) (A) Divorce by death of a spouce. Divorce by the Act of parties Divorce by Judicial process. Divorce by death of a spouce: The death of the husband or the wife operates in Muslim Law as a dissolution of Muslim Marriage. When the wife dies, the husband may remarry immediately, but the widow has to wait for a certain period before she can re-marry. The period of Iddat of death is four month and ten days from the death of husband and if wife is pregnant, iddat period continued till she delivered child or till the termination of preganancy. Divorce by the Act of the parties: Are of following kinds By the husbands Talaq.
22 Mo: 9899660723 S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(B) (1) (i)

S.K. Shukla

(ii) (iii) (2) (iv) (3) (v) (vi) (1)

Ila Zihar. By the wifes Talaq-e-Tafwiz. By common consent (i) Khula (ii) Mubaraat. Talaq: Under Muslim law Talaq means to make a wife free from the bondage of marriage. According to Muslim law Any husband, who is of sound mind and has attained puberty may divorce his wife whenever he desires without assigning any reason at his mere whim or caprice. Talaq may be Oral or written. i.e by spoken words or by a Talaqnama. If husband is of unsound mind the guardian can pronounce talaq on his behalf. There is no special form of talaq recognized by the Sunni law but under Shia law there is prescribed formula. Under Shia law a talaq can be made validly by any dumb person by any sign, but under Sunni law a dumb persons talaq is valid only if it was expressed in positive signs. Under Muslim there are two modes of talaq:

(i) (i)

Talaq-i-Sunnat & (ii) Talaq-ul-Biddat. Talaq-i-Sunnat: Is divided in to two forms (1) Ahsan and (2) Hasan forms. Ahsan is the most approved form of talaq. In Ahsan form husband pronounces the formula of divorce in a single sentence during wifes state of purity (tuhr) and also abstains from sexual. Intercourse during the period of iddat. In Hasan form, there is to be three successive pronouncements of the formula of divorce during three tuhar (purity) period. There should not be sexual intercourse during these three periods of tuhr.

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(ii)

Talaq-ul-Biddat: Is most commonly used form of talaq in India. In this form three pronouncements of Talaq are made in a single tuhr, either in one or three sentences. Its effect is that the marriage is dissolved at once. In Reshma Vs Rashid 2009 (1) Court held that Talaq -ul-biddat pronounced in triple form can be revoked only before third pronouncement.

(2)

Divorce by Ila: Literally Ila means Oath. Under Muslim law Where a husband, who has attained majority and is of sound mind, swears by God that he will not have sexual inter course with his wife and leaves the wife to observe iddat, he is said to make ila the vow not to approach wife for four months or more. It may be cancelled by the husband by resuming sexual intercourse within the period of four month. Or by a verbat interaction thereof. Divorce by Zihar: Signifies a husband comparing his wife to any of his female relative with whom he cannot marry e.g:- mother, sister etc. The effect of Zihar is that the man cannot have any relation with his wife. Zihar may be expiated by a fasting. In default of expiation, the wife may apply for judicial divorce. Talaq-i-Tafwiz: Is the talaq by the wife under t he husbands delegated power. An agreement made either before or after the marriage providing that the wife would be at liberty to divorce herself from her husband is valid under Muslim law. Certain conditions may be attached with such agreement. e.g:- whenever husband will make sexual intercourse with any other then wife will be at liberty to make free herself from husband, at her desire by talaq-i-Tafwiz.

(a) (b) (3)

(4)

(5)

Khula: Khula is a divorce with the consent of husband at the instance of the wife, in which she gives or agrees to give a consideration to the husband for release her from the marriage tie. In fact it is a right purchase divorce by the wife from her husband. Its essentials are

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(1) (2)

an offer from the wife with the consideration for the release her from marriage tie. the offer must be accepted by the husband. If the wife fails to give something as a consideration, after being divorced, the divorce does not become invalid but husband will have a legal right to claim the consideration.

(6)

Mubaraat: The term mubaraat denotes the act of freeing of other spouce mutually. In such divorce shouce feels happy at the prospects of getting rid of each other. In divorce through mubarat the ofer for the dissolution of marriage may proceed either from the husband or the wife. Offer once accepted, completes the dissolution of marriage. In mubarat, the husband can what the wife had received from him. Any excess is unlawful. Dissolution By Judicial Process: Under the pure Muslim law If a husband charges his wife with adultery, he may be called upon, on the application of the wife, either to retract the charge or to confirm it by Oath coupled with an imprecation in the terms The curse of God be upon him if he was liar when he cast at her the charge of adultery. Then wife must be called upon either to admit the truth of the imputation or to deny it on Oath coupled with an imprecation in these words:- The wrath of God be upon me, if he be a true speaker in the charge of adultery, which he has cast upon me. If she takes Oath, the Kazi must believe her and pronounce a separation between the parties. The husband had to be given every opportunity to retract charge, as the offence of making a false accusation of adultery was earlier severely punishable under Islam. But now there is no obligation on the courts in India to give husband an opportunity to retract the charge. Rights and obligations that arise on Divorce The following rights and obligations arise on the completion of a divorce, whatever may be mode of divorce:

(C)

(B)

(1)

Cohabitation becomes unlawful: After the dissolution is effective, marital intercourse between the parties becomes unlawful.
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S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(2)

Dower become immediately payable: If the marriage was consummated, the wife is entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred. If marriage was not consummated and the amount of dower was specified in the contract, she is entitled to half of that amount. Where a marriage is dissolved upon the apostasy of the wife, she is entitled to the whole dower, if the consummation of the marriage has taken place. Maintenance: The husband has to provide maintenance to the wife during iddat period. In heritance: So long as the divorce is revocable the spouse can inherit from the other, but when the divorce becomes irrevocable the right of inheritance terminate inter-se. Right to contract another marriage: Where the marriage was consummated, the wife has to wait till the expiration of her iddat in order to be able remarry. The husband, if he has four wives, must wait until the completion of the divorced wifes iddat. Where the marriage was not consummated, the parties can marry immediately, without waiting for the expiry of the iddat.

(3) (4)

(5)

(C)

Right of a Divorced Muslim Woman to claim Maintenance In Mohd. Ahmad Khan Vs Shah Bano Begum 1985 the S.C held that There is no conflict between the provisions of S -125 Cr.P.C and those of Muslim personal law regarding Muslim husbands obligation to provide maintenance for his divorced wife, who is unable to maintain herself.

(D)

Divorce By Muslim wife under D.M.M Act 1939 U/S -2 of DMM Act 1939 A Muslim wife can apply for divorce in the court of law on the following grounds:

(1)

Husband missing.
26 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(2) (3) (4) (5) (6) (7) (8) (9) (1)

Failure to maintain. Imprisonment of husband. Failure to perform mutual obligation Impotency of husband. Insanity, leporacy and virulent veneral disease. Option of puberty. Cruelty of husband. Any other ground recognized by shaviat. Husband Missing: If the whereabouts of husband have not been known for a period of four years, a Muslim wife can apply in the court for the decree of dissolution of marriage. In case a decree is passed by the court, it will be enforceable after six month of its issue. In the meantime, if husband appears either in person or through an authorized agent and satisfies the court that he is prepared to perform his conjugal relations, such decree will be set aside by the court. Failure to maintain: The wife is entitled to obtain a decree for the dissolution of her marriage if the husband has neglected or has failed to provide her maintenance for a period of two years. Such failure not be willful. Even when husband finds himself unable to do so due to his poverty, failing health, loss of work, imprisonment or due to any other case, the wife will be entitled to divorce. In Bai Fatima Vs Mumna Miranji 1957 Bombay H.C held If the wife lives separately from her husband, without any reasonable cause or she intentionally refuses to perform her part of marital duties, she can neither claim the maintenance nor divorce from her husband.

(2)

(3)

Imprisonment of husband: If the husband of a Muslim wife has been sentenced by a court for imprisonment for the period of seven years or more such wife is entitled to obtain the decree for the dissolution of marriage. But such decree cannot be passed on this ground until the sentence has become final. Failure to perform marital obligations: If a husband, without any reasonable cause, fails to perform his marital obligations for a period of three
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(4)

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

years, the wife is entitled to obtain the decree for the dissolution of her marriage. (5) Impotency of husband: The wife is entitled to obtain a decree for the dissolution of her marriage if the husband was impotent at the time of marriage and continues to be so. In such a case before the passing of decree, a court is bound to make an order requesting the husband to satisfy the court within one year from the date of such order that he has ceased to be impotent. If husband does so, a court cannot pass decree of dissolution of marriage on this ground. The order of court will be subject only to application of the husband before passing of the decree of dissolution of marriage. (6) Insanity, leprosy and virulent veneral disease: If a husband of a Muslim wife is insane for two years or he is suffering from leprosy or a virulent veneral disease, the wife may obtain a decree for the dissolution of marriage. Option of puberty: If the marriage of a Muslim wife was performed by her father or grandfather when she was minor i.e under the age of 15 years, she can repudiate such marriage before attaining the age of 18 years provided that the marriage has not been consummated. Cruelty of husband: If a Muslim husband treats his wife with cruelty, she is entitled to a decree for the dissolution of marriage when a husband keeps more than one wife and does not treat her with equality as per Quaranic injunctions. Any other ground recognized by shariat: The wife is entitled to a decree for the dissolution of her marriage on any other ground which is recognized as valid under Muslim law/Shariat Act. 1937 Can a divorced couple remarry validly in Muslim law?

(7)

(8)

(9)

(E)

Ans When a Muslim husband has repudiated his wife by three pronouncements, it is not lawful for him to marry her until she has married another man and the latter husband has divorced her or died after actual consummation of the marriage.
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In all other cases, the divorced parties may remarry as if there had been no divorce either during the iddat or after its completion. (f) Distinguish between Sunni and Shia law of Talaq.

Ans The distinction between Sunni and Shia law of Talaq may be marked as follows: (1) Under Sunni law Talaq may be given orally or in writing, but the Shias do not recognize talaq in writing unless husband is physically incapable of pronouncing it. Under Sunni Law no witnesses are required to be present at the ti me of pronouncing talaq, while under Shia Law, the presence of two male witnesses is necessary at the time of pronouncing talaq. Under Shia law intention is a necessary ingredient which is dispensed with under Sunni law. Hence a talaq pronounced under intoxication or compulsion or in jest is invalid under Shia Law because under such circumstances man does not do what he intend, but in Sunni Law, even such situations talaq is valid and effective. Sunni Law recognizes talaq-ul-Sunnat and talaq-ul-biddat both, while Shia Law permits talaq-ul-Sunnat only. Sunni law does not prescribe any formula, while Shia law prescribe a formula for talaq. Under Sunni law talaq may be given in any language, but under Shia law only in Arabic language.

(2)

(3)

(4) (5) (6)

Q. 7 (i) Define will or Wasiyat. What are essentials of a will? What is the object of making will. Is any form of will required? (ii) What are the restrictions or limits on will making power of a Muslim. Can a Sunni Muslim make a will in favour of single heir ? Whether probate of a Muslim will is necessary?
29 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

Ans

Definition of will According to S -2(h) of the Indian Succession Act 1925 A will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. According to Farman: A will is an instrument by which a person makes a disposition of his property to take effect after his demise and which is in its own nature ambulatory and revocable during his lifetime. Thus will is a conferment of right to ones property on another , which is to take effect after the death of the testator. Essentials of a will The essential requisites of a valid will under Mohammadan Law are as follows:

(1) (2) (3) (4) (5) (6) (7) (8) (9)

The testator must be competent to make the will. The legatee must be competent to take the legacy or bequest. The subject of bequest must be valid one. The bequest must be within the limits imposed on the testamentary power of a Muslim. The intention of the testator should be clear and unequivocal. It must be enforceable after the death of testator. The will must be made by a person of sound mind. The testator should have attained the age of majority. A will of minor will be valid, if he ratifies it after attaining majority. The will should not have been made under coercion, undue influence or fraud.

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Form of will: Under Mohammdan Law no particular form has been prescribed for making a will by a Muslim. A will can either be made verbally or in writing. Written will: In majority of cases for obvious reasons, the wills are made in writing. A will is written form does not require any attestation or any signatures. It will be valid even if it is not signed by testator. Only the intention of the testator should be reasonably clear so that the testament done by him may take effect fully. A letter written by the testator shortly before his death and containing a direction concerning the disposition of his property was considered to constitute a valid will. Oral will: A Muslim can make a will orally. In Venkat Rao Vs Namdeo (1931) It has been held that the burden of establishing an oral -will is always a very heavy one, it must be proved with utmost precision and with necessary to prove the validity of a will is the intention of the testator, if it is reasonably sufficient, the intention even by gesture is enough. Revocation of will/Bequeath Muslim law permits a testator to revoke the will or any part of it at any time either expressly or impliedly. Normally a testator is also free to make any addition to his will, but if such addition makes the delivery of the subject matter of will impossible, the bequeath shall stand revoked. Limits/Restrictions on Testamentary Powers The Mohammedan Law which does not provide unlimited power to make a will, restricts in two ways (1) (2) Limits as regards the person. Limits as regards the property.

Limitation as regards the person: This topic may be dealt with under the following heads (i) Bequest in favour of an heir.
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S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(ii) (iii) (iv) (i)

Bequest in favour of an heir and a stranger Bequest to an unborn person Bequest to the testators murderer. Bequest in favour of an heir Sunni Law: Bequest in favour of a hair is invalid unless the other heirs consent to it, after the death of testator. If the testator has no heirs he may bequeath the whole of his property to a stranger. Shia Law: (a) No consent is required if to the extent of 1/3 of the property is bequeathed. (b) Even for more than 1/3rd of it may be valid if the co-heirs consent either before or after the testators death.

(ii)

Bequest in favour of an heir and stranger When the bequest is made to an heir and also a stranger, the bequest to the heir is invalid unless assented by other heirs, but the bequest to stranger is valid to the extent of 1/3 of the estate. Illustration A bequeaths 1/3 of his property B, a stranger and 2/3rd to C, one of his heirs. The other heirs do not assent to the bequest to C. The result is that B will take 1/ under the will and the reaming 2/ rd will be divided among all the heirs of 3 3 A.

(iii)

Bequest to an unborn person Sunni Law: A bequest to an unborn person is void, but it is valid if made to the child in the womb provided it is to be born within 6 month of the will. Shia Law: A bequest to a child in the womb is valid, if it is to be born in the longest period of gestation i.e 10 month.

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(iv)

Bequest to a testors murderer: Under Sunni Law A bequest to a person who causes the death of the testator, whether intentionally or accidentally is void. Under Shia Law Such bequest is void when the murder was intentionally done. If the murder was committed accidently, such a will is not void.

Limitation as regards the property A Muslim cannot dispose of more than 1/3 of his estate that remains after payment of funeral expenses and debt. This freedom is to make a will to the extent of 1/3 stands for the strangers only because in case of a will in favour of an heir, no portion can be bequested without the consent of other heirs. Nature of property bequeathed: (1) (2) A Muslim cannot create by will an estate repugnant to the law. It is not necessary that the thing bequeathed should be in existence at the time of making the will. It is sufficient if it exists at the time of testators death. A bequest may be made of any property which is capable of being transferred. A contingent bequest purporting to take effect on the happening or nonhappening of an uncertain event is void. In case of conditional bequest, the condition is void and the bequest is valid. If the bequest is not made in absolute terms but imposes restriction e.g:legatee. Will not transfer the property, the condition is void and the bequest is valid. Can a Sunni Muslim make a will in favour of an heir?
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(3) (4) (5)

Q.

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

Ans. Yes, a Sunni Muslim can make a will in favour of an heir, but a bequest to heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir consent so as to bind his own share Q. Whether probate of a Muslim will is necessary?

Ans. According to Muslim Law A will of a Mohammedan may be admitted in evidence after due proof, even though no probate has been obtained. The estate of testator vests in the executor from the date of death provided executor accepts the office. Q. 8 (i) What is right of pre-emption? What is nature and requirement of preemption. (ii) Ans When the right of pre-emption arises and when it does not arises? When right of pre-emption is lost? What are the legal effect of pre-emption? (1) Right of Pre-emption The law of pre-emption is based clearly upon the texts of Islamic law and while there seem to be foreign elements in it. It is a well established doctrine in India. It was adopted by Islam in general to prevent the introduction of a stranger among co-sharers and neighbours, likely to cause both inconvenience and vexation. According to Mulla: The right of Shufaa (pre-emption) 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. In Audh Behari Singh Vs Gajadhar AIR 1954 SC held The right of pre-emption is an incident annexed to the property. Although it is not essentially a right in rem, its exercise from the time it arises, upto the time of the decree, is restricted as a personal right which is neither heritable nor transferable. Illustration

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There are two houses X and Y adjacent to each other, X is owned by A and Y is owned by B. B sells his house Y to Q. A in certain circumstances, may claim the substitution in place of the stranger. In other words, A will have right to purchase Bs house Y on the same terms on which it was sold to Q. This right enjoyed by A is called the right of pre -emption. Nature of right of Pre-emption The right of pre-emption is a kind of preferential right which is given to the owner of a property to purchase another property adjoining to his or of which he is the co-owner or in which he is entitled to immunities or appendages. This right of pre-emption must subsist till matter is finally decided by ultimate court. In Govind Dayal Vs Inayat Ulla Allahabad H.C held preemption is in effect, as if from the sale deed the vendees name were rubbed out and the pre-emptors name was inserted in its place. In Bishon Singh Vs Khazan Singh AIR 1958 the S.C observed that the right of pre-emption is a right of substitution but not of repurchase, the pre-emptor takes the entire bargain and steps in to shoes to the original vendee. Therefore, it becomes evident that a right of pre-emption is attached to the property and passes to the successor, who has inherited it. Requisites of pre-emption (1) (2) (3) The pre-emptor must be the owner of the immovable property. The property which is subject matter of sale must not be of his own. There must be some relationship between the pre-emptor and vendor in respect of property sold. Requirements of pre-emption:

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The right of pre-emption cannot be established unless the pre-emptor, on hearing about the transfer of any immovable property makes the demand in following order: 1. Talab-i-mowasibat or immediate demand: It should be made as soon as the fact of sale is known to the claimant. Any unreasonable or unnecessary delay will be construed as an election not to exercise his right of pre-emption. In Rajendra Kumar Vs Rameshwar Dass AIR 1981 The sale deed was registered on 27-12-1972. The pre-emptor made the first demand on 23-021973, though the registration of sale deed had come to his knowledge much earlier. Held, the demand was not made within reasonable time. 2. Talab-i-ishhad or demand with invocation: It is also called talab-i-taqrir or confir matory demand. After talab-i-mowasibat, he must also with the least practicable delay make a formal declaration affirming the intention. expressly refer to his previous talab-i-mowasibat. before two competent witnesses, and in the presence of either the vendor or vendee of the property sold. Talab-i-tamlik or demand of possession: It is also called demand by litigation by which he should finally enforce his claim by a regular suit within the period prescribed. Institution of suit for enforcing the right of preemption is not always necessary. It is necessary only when the first two demands are not conceded.

(i) (ii) (iii) (iv) 3.

Rules for making demand, viz- talab-i-mowasibat and ishhad: (1) (2) Talab-i-mowasibat should be made after the sale is complete. It is of no effect before the completion of sale. Both the demands (talabs) should be made by the pre-emptor in person. If unable to do so, them through a messenger or letter.
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S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(3) (4) (5)

No particular formula is necessary for any of two talabs, but the claim must be unequivocally asserted. Demand must be made immediately and without delay. An unreasonable delay mean estoppel. The two demands may be combined, if the witnesses are called at the time of making of first demand nd the second talab is made in the presence of the vendor or vendee of the property sold. If there are more than one-premptors, one cannot make a demand on behalf of others, unless he has been authorised to do so. If there are more than one buyer, the demand must be made to all buyers. If it is made to some of them, the shares of those buyers only can be preempted. Tendor of price in cash is not essential. The above formalities must be observed and proved to have been observed, because the right of shufaa is a feeble right. If the pre-emptor dies pending the suit for pre-emption, the suit may be continued by his legal representative.

(6) (7)

(8)

Main Rules of pre-emption in India The main rules of the right of pre-emption were described by Honble Justice Subba Rao in Bishan Singh Vs Khazan Singh AIR 1958 SC 838. These are as under: (1) (2) The right of pre-emption is not a right to the thing sold but a right to offer of a thing about to e sold. This right is called the primary or inherent right. The pre-emptor has a secondary right or a remedial right to follow the thing sold.

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(3) (4) (5) (6)

It is a right of substitution but not of re-purchase, i.e the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. It is a right to acquire the whole of the property sold and not a shave of the property sold. Preference being essence of right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.

When right of pre-emption arises? The right of pre-emption arises only (1) (2) (3) When a property is validly sold. When there is an exchange of property for property. When there is foreclosure of mortgage property.

When right of pre-emption does not arise: The right of pre-emption does not arise in respect of (a) Gift (b) Sadaqa (c) Wakf (d) In heritance (e) Bequest (f) Lease. When right of pre-emption lost? The right of pre-emption may be lost in the following cases: (1) (2) (3) (4) by acquiescence or waiver by death of pre-emptor by mis-joinder by release
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S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

Legal effects of pre-emption: When a pre-emptor succeeds in getting decree for pre-emption in his favour, he stands in the shoes of the vendee and takes the property subject to all existing equities. If claimant fails is getting decree from the court, due to some or other reason, his right of preemption is lost. Some main legal effect of pre-emption are 1. 2. 3. A vendee becomes the vendor of the pre-emptor. The pre-emptor stands in all respects in the shoes of buyer and takes the property in question, subject to prior equities. The original vendee becomes entitled to mesne profits such as rent and other profits of the property for a period from the date of first sale to the dte of transfer of property to pre-emptor. The right of pre-emptor remains unaffected even by death of vendee. Pre-emptor cannot transfer the decree of pre-emption to any one.

4. 5.

Q. 9 Define Wakf. Who is capable to make wakf? What are essentials of valid wakf. Classify the wakf. What are legal incidents of a valid wakf? What are main valid objects of wakf. Which property can be dedicated to wakf. How is a valid wakf created. Whether wakf can be revoked Ans Definition of Wakf According to S -2 of the Mussalman wakf validating act, 1913 Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. According to Abu Yusuf Wakf is the detention of a thing in the implied ownership of Almighty God in such a manner that its profits may revert to or be applied to the benefit of his creatures.
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Abu Hanifa Says: It is the detention of a specific thing in the ownership of wakf or appropriator and devoting its profits or usufruct to charity the poor or other good objects in the manner of ariyat or commadate loan. Person Capable of making Wakf A waqf can be created by any person who has attained majority and is of sound mind. According to Amir Ali and Mulla even a non Muslim could make waqfs. But accordin to S -3 (1) of Waqf Act 1954 Any person making dedication of nay movable or immovable property must be a person professing Islam and that the dedication must be for any purpose recognized by the Muslim law as pious, religious or charitable. But by amendment made in 1964 The Wakf Act 1954 is made applicable to professing Islam for the support of certain waqf. Therefore, now the word waqf includes all properties given or endowed by any person professing any religion, other than Islam for the support of

(1) (2) (3)

Mosques, idgahs, imambaras, dorgahs, khanqas or maqbaras. Graveyards of persons professing Islam and Charities of persons professing Islam. Essentials of a valid wakf

(1) (2)

The motive of wakf must always be religious. It is generally temporal. The wakf property belongs to God. Therefore such dedication must be permanent and irrevocable.
40 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(3) (4)

Any property which is capable of being endowed in perpetuity can only be the subject matter of wakf. Mutawalli is appointed to manage the wakf property for that purpose, he is merely a procurator, manager or superintendent. The wakf property is never vested in him, as such he can never be a trustee. Classification of wakfs Waqf may be classified into (1) Public waqf and (2) Private waqf. Public waqf is created for the benefit of public whereas a private waqf is one which is for the setllors own family and descendants. Private waqf is generally created in favour of unborn descendants. It is technically known as waqf ala-aulad. It may be of two type

(i) (ii)

exclusively for the family and partly for the family and partly for charity Legal incidents of a valid wakf

(1) (2)

Perpetuity: Perpetuity is an essential characteristic of a waqf. A waqf for a limited period is not recognized by law. Irrevocability: Waqf cannot be revoked or altered after it has been completed. No subsequent repudiation can invalidate it. A testamentary wakf operates only from the death of the testator. If a condition is inserted in a deed of waqf that the wakif reserves to himself the power of revoking the waqf, the waqf is void ab-initio. Inalienability: Once the property is dedicated by a Muslim to God, it cannot be alienated. However there are certain exceptions to this general rule. e.g:- A Mutawalli may alienate the waqf properties. He can also sell or grant lease of the waqf with the permission of court.
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(3)

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(4) (5)

Contingency: According to Tyabji A dedication purported to be made subject to a contingency is void. Property vests in God: The creation of a waqf is essentially based on a legal fiction that the ownership of the property vests in God in perpetuity. The income of property is permitted to be utilized for certain specified purposes which under the Muslim law recognized as pious or religious. Application of income to waqf property: The income of waqf property may be applied in the order in which they are mentioned. Maintenance and repair of subject of wakf. The specified objects of the waqf. The incidental expenses necessary for carrying out the specified objects. The benefit of poor. Other objects of permanent character recognized by Muslim Law as religious, pious or charitable. Public welfare be ultimate object: A waqf is valid only when its ultimate object is the public welfare or charity. It has been laid down in S -3 of the Mussalman Wakf Validating Act 1913 That the ultimate benefit should be given expressly or impliedly for the poors and other religious, pious and charitable purposes of permanent character. Power of inspection of court: Once a wakf in created, a court gets power whenever necessary to inspect it. Valid objects of a wakf According to Muslim Law the following are the valid objects for creating a wakf:

(6) (i) (ii) (iii) (iv) (v) (7)

(8)

(1) (2)

Maintenance or management of a mosque. Opening or maintenance of school or college.


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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16)

Distribution of alms to poor and assisting them (poor) to enable them to perform pilgrimage to Macca. Celebrating the birthday of Ali-Murtza. Keeping Tazias. Maintenance of Khankah. Repairs of Imambara. Burning lamps in Mosque. Grant to an Idgah/Dargah. Payment of money to fakirs or poors. Reading quran in public places and at privte houses. To perform journey of Haz. For sinking wells or tanks. To pay the debts of settlor, with ultimate dedication to the poor. Works of general utility. Funeral expenses of or distributing food to poor people etc. Property which can be dedicated as wakf According to Abdul Rahim the property dedicated must possess two characteristics

(i) (ii)

It must be tangible property and It must be capable of being used without being consumed U/s -2(1) of wakf Act 1913 the expression any property includes almost every species of property. e.g:- Govt. promissory note, cash, right of a grove holder and offerings on a shrine may be validly dedicated. The property dedicated must be in the ownership and possession of wakif e.g:- A bequeaths certain land to B who purports to dedicate it in As lifetime. Later A dies. The wakf is not valid. In olden days, wakfs were of a reasonably permanent character and consisted of lands, fields or gardens. But later on it was decided that some other kinds of property could also be dedicated. For instance working cattle, and implements of husbandry, Rurans for reading in Mosques, other

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movables not necessary consumed in their use, ware houses, camels and swords and a chest of money for loans to the poors. However a wakf cannot be made of the rights of a usufructuary mortgage, nor of dower debt, which may or may not be paid, nor of simple money decree. How a valid wakf is created? A valid wakf may be created in any of the following ways: 1. By an act inter vivos: A waqf by an inter Vivos is a waqf which is constituted during the lifetime of the waqif and takes effect from that very time. By will: A waqf by will takes effect after the death of the waqif; so it is called testamentary waqf. A waqf by will cannot operate upon more than one-third of net assets without the consent of heirs. In Baqar Ali Khan Vs Anjuman Ara Begum, Allahabad H.C has held that A waqf created by will is not invalid because it contains a clause that the waqf shall not operate if a child in born to testator. The reason is that a testator has power in law to revoke or modify his will at any time he likes, and therefore he may revoke a waqf created by will even without reserving any express power in that behalf. 3. During death illness (Marz-ul-maut): A waqf created during the death illness is regarded as a testamentary waqf. So it will operate only to extent of one-third of the property without the consent of the heirs of the waqif. Wakf by user: A wakf may, in the absence of any direct evidence of dedication be established by evidence of user. If a land has been used from time immemorial for a religious purpose e.g:- for a mosque, for a burial ground, then the land is by user, a wakf, though there is no evidence of express dedication.

2.

4.

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Formalities for making a wakf: There is no special formality prescribed under the Muslim law for creation of waqf. A waqf may be created by oral or written words showing an intention to that effect. Completion of waqf: A waqf is completed in case where a third person is appointed as first Mutawalli of the waqf by (i) declaration of waqf (ii) appointment of Mutawalli and (iii) delivery of possession to Mutawalli. Where the founder of waqf is himself Mutawalli (i) no physical possession is necessary (ii) nor it is necessary that the property be transferred from his name as owner into his name as Mutawalli. However, the transaction must be bona-fide. The onus of proving the contrary is on the person alleging that the waqf was not bona-fide. However setllor and those clining under him can argue that no waqf was created. (Garib Das Vs M.A. Hamid AIR 1970) Revocation of waqf As per Hedaya A waqf once validly constituted cannot be revoked. In Assobai Vs Noor bai 1906: Bombay H.C held that if a condition is stipulated in the deed of waqf by wakif that he reserve to himself the right to revoke that wakf or that wakf will stand revoked on happening of an event such wakf will be void. Further in Abdul Sattar Vs Noorbai 1937 Bombay H.C held that It is impossible to contemplate property transferred to Almighty God, subject to a condition enforceable in the temporal courts for recovering that property for the benefit of the settlor. So where a wakif is himself a Mutawalli can sell or transfer of encumber the wakf property for protection or better management of the wakf but he will have to obtain the prior permission of the court before doing so. However a wakf can be revoked under the following circumstances:

S.K. Shukla

45

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(1)

When a settlor (wakif) had reserved to himself, at the time of dedication, the power to alter the beneficiaries either by adding to their number or excluding some from it. The wakif reserves to himself certain power in these terms i.e If during my life time I so desire I shall be competent to rescind or alter by a fresh wakfnama, the provision as to the appointment of Mutawalli and other rules and procedure. A wakif reserves to himself the power to amend the wakf after its completion but he has an absolute power to change the object of wakf.

(2)

(3)

Q. 10- (i) Who may be appointed Mutawalli? What are the powers and remuneration of a Mutawalli? How a Mutawalli may be removed. (ii) In a waqf deed, no Mutawalli is appointed or designated. Is this waqf valid?

Ans (i) Who may be appointed Mutawalli Any adult and sane person who is capable of performing the duties of a Mutawalli, may be appointed as Mutawalli. Thus the following persons are eligible for being appointed as Mutawalli (a) (b) (c) (d) the settlor himself children and descendants of settlor. any other person, even a female, except in wakf where religious and spiritual functions are to be performed. any non-Mohammedan; except in a wakf, where spiritual and religious functions are to be performed. Appointment of Mutawalli: The first Mutawalli is appointed by the founder of a wakf. (i) He can day down a scheme for the administration of the trust and for the successor to the office of Mutawalli and
46 Mo: 9899660723 S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

S.K. Shukla

(ii) (iii)

He may nominate the successors by name, or He can indicate the class persons together with their qualification from whom Mutawallis may be appointed. A Mutawalli may be appointed by the court also, when A person appointed as Mutawalli dies. Or refuses to act in the trust or when the office of Mutawalli is vacant and there is no provision in the deed of waqf regarding succession to the office. In brief, a new Mutawalli can be appointed

(a) (b) (c) (d)

by the founder of the wakf, or failing him by the executor; of the founder, or failing him by a Mutawalli on his death-bed as a successor for the time being; or failing him by the court. When the Mutawalli is appointed by court, the following rules will be kept in consideration while making such appointment.

(1) (2) (3)

The direction of wakif cannot be disregarded except for the manifest benefit of the endowment. An stranger cannot be appointed so long as there is any member of the founders family in existence and he is qualifi ed to hold the office. If there is a contest between the lineal descendant of the founder and one who is not his lineal descendant, the court is free to exercise its discretion in a appointment of Mutawalli. However the court has discretion to appoint the other claimant as Mutawalli in some cases. Powers of Mutawalli

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Mutawalli does not possess any personal right over the wakf property, because he is neither the trustee nor the owner of such property. as such he is simply meant to perform te legal, moral and religious duties connected with the waqf for which he is appointed as superintendent or a manager. In view of this fact, he has the following powers: (1) (2) (3) (4) (5) (6) A Mutawalli has a power of management and administration of wakf properties. He can apply the income of the wakf property if he has been specifically authorised to do so in the wakf deed. He can alienate the wakf property if he has been specifically authorised to do so in the wakf deed . He can sell, mortgage or exchange the wakf property with the prior permission of the court. He can grant a lease of wakf property upto 3 years if it is agricultural land and upto period of one year, if it is non agricultural land. He can appoint his successor on death bed, in case the founder and executor of that wakf are dead and there is no scheme of succession after art going Mutawalli. He can appoint deputy Mutawalli for his help. Remuneration of Mutawalli The founder may provide for the remuneration of the Mutawalli. Such remuneration may be a fixed sum or it may be residue of the income of the wakf property after defraying the expenses necessary for the maintenance of the wakf property. In Sayid Ismail Vs Hamidi Begum 1921 Patna H.C held If no provision is made by the founder for the remuneration of the Mutawalli, the court may fix a sum not exceeding one-tenth of income from the wakf property.
S.K. Shukla 48 Mo: 9899660723

(7)

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

In Mohiuddin Vs Sayiduddin 1893 Culcutta H.C held If the amount fixed by the founder is too small, the court may increase the allowquce put it must not exceed the limit of one-tenth of income from wakf property. Removal of Mutawalli Normally a Mutawalli once appointed cannot be removed from his post by the wakif. However the court has power to remove him on following grounds (i) Misfeasance. (ii) Breach of trust (iii) Unfitness for the post. (iv) Insolvency. (v) Negligence to perform duties. (vi) Claiming the wakf property as his own. (vii) Any other reasonable cause. (ii) In a wakf deed, no Mutawalli is appointed. Is the wakf valid.

Ans Yes, the wakf is valid, because according to Hanafi law there are only two essentials for a valid waqf (i) (ii) an intention to create wakf and a declaration that a wakf is created. Thus according to this school a mere declaration o f endowment by the owner is sufficient to complete the waqf. Neither the appointement of a Mutawalli, nor the delivery of possession to him is essential to create a wakf. (Gobinda Vs Abdul Majid AIR 1944 cal)

(11)

Short Notes on:


49 Mo: 9899660723

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(i) (1) (2) (3) (4) (5) (6) (7) (8)

Legal Effects of a Valid Marriage these are The wife becomes entitled to get maintenance from her husband The husband become entitled to exercise marital authority over his wife. He can also put restraint on the movement of his wife in a reasonable manner. The sexual inter course between spouces becomes lawful. The children born as a result of such marriage become legitimate. The wife gets or becomes entitled to get dower. Such a marriage creates a right of inheritance. The prohibition regarding marriage due to the rules of affinity comes into operation. The wife cannot re-marry with her husband after divorce without observing certain formalities. If any contract is made, by the parties of marriage, at the time of marriage or afterwards, its stipulations come into operation, provided they are not contrary to law. Iddat According to Ameer Ali Iddat is an interval which the woman is bound to observe between the termination of one matrimonial alliance and the commencement of another. The period of iddat commences from the date of divorce or death. If the information of divorce or death, reaches to woman after the expiry of iddat period, she is not bound to observe iddat. Iddat is observed to avoid confusion of parentage. When the marriage is dissolved by divorce, the duration of the iddat is three menstruation, and if woman is not subject to menstruation, it is 3 lunar months.

(ii)

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If woman is pregnant at the time of divorce, it is up to delivery. When marriage is dissolved by death, the duration of the iddat is four months and ten days. If the marriage is dissolved by divorce, but marriage was not consummated, the wife is not bound to observe iddat and is free to marry immediately. If the marriage is dissolved by death, the wife is bound to observe the iddat, whether the marriage was consummated or not. Incidents of Iddat (1) (2) (3) (4) The wife cannot contract another marriage during the period of Iddat. She has right to claim maintenance during iddat period. The parties have a right to inheritance in certain cases. The wife is also required to observe mourning during iddat period by abstinence from rich clothes, perfumes and other objects of beautifying her body. The wife becomes entitled to deferred dower and if the prompt one has not been paid, it becomes immediately payable. Mutta Marriage Mutta-Marriage is a temporary marriage, fixed for a specified perioe for pleasure, in consideration of an specified amount or reward. It was popular amongst Arabs in Olden days and was justified because that was the period of wars and travels. Today it is practice is very limited to some sects of Shia Muslims only. Essentials of Mutta Marriage (1) The terms must be specified.
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(5) (iii)

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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(2) (3) (4) (5) (6) (7) (8) (1) (2) (3)

The duration of marriage must be specified. e.g- for 4 hours, or 1 week or 2 months or 3 years etc. Some dower must be specified in the contract The parties must have attained the age of puberty and they must be of sound mind The consent of both parties must be free The parties should not be within prohibited degrees of relationship The offer made by one party must be accepted by other party. A Shia female cannot contract Mutta marriage with non-Shia male. Legal Effects of Mutta Marriage Mutta Marriage does not create any mutual right of inheritance between parties to such marriage. Wife in Mutta marriage is not entitled to maintenance Wife is entitled only for half dower, if marriage has not been consummated. If marriage has been consummated she is entitled for full dower. if the husband leaves her before the expiry of stipulated terms, she will be entitled only to proportionate dower. Wife has to undergo iddat of two course, if her marriage has been consummated and it is 45 days if wife is not subject to mensum. If it was not consummated, no iddat is required. Husband in a Mutta marriage has a right to have wives more than four. The children born of Mutta marriage are legitimate like that of regular marriage. Mutta marriage comes to an end on the expiry of the stipulated term, but it may be extended or prior terminated by mutual consent of both parties. Even husband alone can terminate the marriage by making a gift of the term or nay portion of it. In such cases, the consent of wife is not necessary. The husband is not bound to provide residence to the Mutta wife.
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(4)

(5) (6) (7)

(8)

S.K. Shukla

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(9)

The Mutta wife is required to observe iddat in case of death of her husband for a period of 4 months & 10 days. In case of pregnancy, iddat period is extended to delivery or termination of pregnancy by any cause. Effect of Apostasy on Marriage Apostasy from Islam is the renunciation of Islam by a Muslim or the conversion of a Muslim to some other religion. The apostasy is either expressed or implied. If a Muslim says that I renounce Islam or I do not believe in Allah (God) or Prophet Mohammad. It is the express form of apostasy. If he uses grossly disrespectful language towards prophet or the quran, it amounts to apostasy in the implied form. In whatever form the apostasy from Islam may be, it automatically dissolve the marriage. It is an established rule in Muslim Law that apostasy of either husband or wife operates as a complete and immediate dissolution of a Muslim marriage. After the passing of the dissolution of Muslim marriage act 1939, the position in this regard is

(iv)

(a) (b)

the apostasy of husband results in an instant dissolution of marriage. if a Muslim belonging to another religion before her marriage, reconverts to her original religion or to some other faith (religion), it results in the instant dissolution of marriage. the apostasy of a Muslim wife does not result in the dissolution of marriage instantly or otherwise. According to Shia law apostasy leads to instant dissolution of marriage, if it was not consummated. If marriage was consummated, the marriage is held not annulled so long as the period if iddat is not complete. The wife is entitled to half of the dower if the dissolution of marriage due to apostasy of husband takes place before consummation of such marriage. However if wife herself apostates, she cannot claim any such right.

(c)

(v)

Dower

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According to Justice Mahmood: Dower under the Mohammedan law is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon wife. According to Mulla: Dower is a sum of money or other property, which the wife is entitled to receive from the husband in consideration of marriage Thus it is clear that 1. 2. 3. 4. Dower is an essential element of marriage If dower is unspecified it must be adjudged on definite principles. Dower is a kind of debt which can be realized by wife from te property of her husband A wife can keep lien on the property of husband so long as dower debt is not satisfied.

Amount of Dower: The amount of Dower may be fixed or not. If it is fixed, it shall the principles minimum laid down by the Muslim law. It is under Hanafi law -10 dirhams and under Maliki law -3 dirhams. But under Shafi and Shia law it has no minimum limit. Maximum limit under Shia law is 500 dirham but Sunni does not fix any maximum limit. Kinds of dower: The dower can be divided into the following categories: (1) (2) As to amount (a) Specified dower & (b) Unspecified dower. As to time (a) Prompt dower & (b) Defferred dower. According to Shia School mahr can be divided into the following categories: (a) Mahr-i-sunnat
54 Mo: 9899660723 S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09 S.K. Shukla

(b) (c)

Mahr-i-misi Mahr-i-mausamma

Specified Dower (ai-mahru al-musamma): The amount of dower is generally settled at the time of marriage, but antenupital or post-nupital agreements are permissible and such agreements are binding on the parties. If the parties to the marriage have attained the age of puberty and are of sound mind, they are competent to settle themselves the amount of dower. Unspecified dower: When the amount of the dower has not been settled or even when the marriage has been contracted on an express stipulation that wife shall not claim any dower, she is entitled to proper or customary dower. It is laid down in Hedaya that following factors play an important role for fixing the amount of dower (a) age of bride (b) Beauty of bride (c) fortune (d) understanding (e) virtues. It is at the discretion of the court as to what it considers proper for the women, but the court is generally to be guided by the following consideration (a) (b) (c) (d) Social position of the family of womans father. Her own personal qualification The dower that have been given to her female relations i.e her sisters or aunts Position of husband
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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

(e)

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

Prompt Dower: The amount of dower payable to wife immediately after marriage is called prompt dower. the prompt dower can be realized by the wife at any time before or after consummation. If it is not paid at once, it will come into category of deferred dower. if its payment is postponed until demanded by the wife, it will be prompt dower. Deferred Dower: When the dower is payable on dissolution of marriage, it is called deferred dower. it does not become prompt merely because the wife demands it. (vi) Womans right to retain possession on husbands property: Mohammedan law gives to the widow, whose dower has remained unpaid a very special right to enforce her demand. It is called The widows right of retention. She can exercise such right so long as her dower debt is not paid to her. It is a personal right as against other heirs and creditors. In Maina Bibi Vs Chaudhary Vakil Ahmed privy council said that the possession of property being once peaceably and lawfully acquired the right of the widow to retain it till her dower debt is paid is conferred upon her by Mohammedan law. It is a personal right given by Muslim law to safeguard the position of the widow. But she is not authorised to alienate it by sale, mortgage or otherwise. In case a widow alienate the property of husband, such alienation will be valid only upto the extent of her own shre. Such alienation will not have any adverse effect on the shares of other heirs of her husband. Q. What are the differences between a Mutta Marriage and a Nikah?

Ans (vii) Difference between Nikah & Mutta Marriage:


S.K. Shukla 56 Mo: 9899660723

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09

Main differences between regular marriage (Nikah) and Mutta-Marriage are as under: (1) (2) (3) Regular marriage (Nikah) is a permanent contract, while Mutta marriage is temporary contract for some time being. Regular marriage (Nikah) gives a right of inheritance to spouses on the property of each-other, while in Mutta marriage, it is not so. The relation once established between a wife and husband due to regular marriage is dissolved only on divorce or death of any of them, where as Mutta marriage is automatically dissolved on the expiry of the specified period. The woman becomes entitled to get the full amount of dower in regular marriage, whether consummated or not the payment of dower in Mutta marriage depends upon the consummation of such marriage. In case marriage is not consummated in Mutta marriage, the wife is entitled to half dower only. Regular marriage can be dissolved only through divorce and the payement of dower is very necessary before doing so, but in case of Mutta marriage, it is terminated on expiry of the prescribed period automatically. The dower can either be express or implied marriage it is always express. Otherwise it will be void. In regular marriage, wife is entitled to get maintenance while in Mutta marriage wife has no such right. Regular marriage is recognized by Shias and Sunni is both, while Mutta marriage is recognized by only Shias. Divorce is not recognized in Mutta marriage, while divorce is fully recognized in regular marriage.

(4)

(5)

(6) (7) (8) (9)

S.K. Shukla

57

Mo: 9899660723

S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09