Muslim Law

                                                Table of Contents

1. Who is a Muslim; Application of Muslim Law

2. Schools of Muslim Law

3.. Sources of Muslim Law

4. Marriage

5. Mahr (Dower)

6. Dissolution of Marriage and Matrimonial Reliefs

7. Parentage: Illegitimate and Legitimate Children

8. Guardianship and Hizanat

9. Maintenance

10. Hiba (Gifts)

11. Administration of Estates

12. Succession

13. Wassiyat (Wills)

14. Shuffaa (Pre-emption)

15. Wakfs

CHAPTER 1 - Who is a Muslim: Application of Muslim Law

In modem India, Muslim law means that portion of Islamic law which governs the Indian Muslims in their personal matters. Since Muslim Law applies to the Muslims alone, we have to define who is a Muslim. In modem Hindu law, the term "Hindu" has not been defined strictly in terms of religion, whereas the term "Muslim" in Muslim law has always been defined in terms of religion, even though the orthodoxy or hetrdoxy of belief is no concern of the court.

For the purpose of the application of Muslim law, the Muslims fall under the following two categories: (a) Muslims by origin; and (b) Muslims by conversion.

Muslims by conversion may be further subdivided into the following categories: (i) Muslims who profess Islam, and (ii) Muslims who undergo formal conversion.

Muslim by Origin

No person can be a Muslim who does not subscribe to the basic tenet of the Islam. A person, who subscribes to the basic tenets of Islam, is a Muslim. The basic tenets of Islam are the following two: (a) The principle of the unity of God, i.e., God is one, and (b) Muhammad is the Prophet of God.

In Muslim law, a child born to Muslim parents is presumed to be a Muslim. The Shariat lays down that if one of the parents is a Muslim, even then the child will be a Muslim.' The ordinary rule in India is that the child takes to the religion of his father, unless the contrary is proved. This rule is now subject to the rule of modern Hindu law, viz., if one of the parents is a Hindu and the child is brought up as a Hindu, then the child will be a Hindu. To this category of Muslims, Muslim personal law applies in its totality and no rule of Muslim law can be modified by custom.

Muslim by Conversion

A non-Muslim may become a Muslim by professing Islam, i.e., by acknowledging that there is only one God and Muhammad is his prophet/ or by undergoing the ceremonies of conversion to Islam. A convert of Islam is ordinarily governed by Muslim law. Till 1937, it was possible for a convert to be continued to be governed by his personal law, including customary law. After the coming into force of the Shariat Act, 1937, the generality of that statement stands modified, though, it is submitted, the application of custom to the Muslims has not been totally abrogated.

Profession of Islam.—"Profession with or without conversion is necessary and sufficient to remove the disability of having another religion." Thus, observed Lord Macnaughten in Abdul Razak v. Aga Mahommed (1893) 21 JA at 64. In this case, a wealthy Muslim, Abdul by name, had died, apparently, without any heir. But, one Abdul Kazak made a claim to his estate on the plea that he was the son of the pre-deceased brother of Abdul. The brother of Abdul had married a Burmese woman, Mah Thai, a Buddhist by religion, but it was not established that she had been converted to Islam either before, or after, the marriage. It was established that she used to recite the Muslim prayers. The court came to the conclusion that, since the marriage of Abdiil's brother with the Buddhist woman was void under Muslim law, Abdul Razak, though a Muslim, could not succeed to Abdul's estate, being an illegitimate child. The converse situation arose in Mst. Resham Bibi v. Khuda Baksha, 1938 Lah 277, where a Muslim wife, with a view to ending an unhappy marriage, renounced Islam, and prayed to the court that Muslim law of apostasy should be applied to her, and her marriage should be deemed to have been automatically dissolved from the date of her apostasy. Curiously enough, the District Judge ordered a plate of pork to be brought in the court room, and the wife was asked to eat it. On her refusal to do so, the court concluded that her apostasy was insincere. Accepting the appeal, the appellate court observed: "One may relinquish a faith which is an easy thing to do, but one may not acquire liking for those things which one has been taught to detest throughout one's life." The court accepted the wife's statement that she no longer believed in Allah, in Muhammed as her Prophet and in the Koran, and thus ceased to profess Islam. The court then said: " a person's religious belief is not a tangible thing which can be seen or touched. It is the mental condition of one's believing in certain articles of faith that constitutes one's religion and if one ceases to believe in them, which again is a mere mental condition, one automatically ceases to profess that religion." Whether mere profession of Islam is sufficient to make a non-Muslim a Muslim, is not entirely free from doubt. It is true, as Lord Macnaughten had stated, no court of law can test or gauge the sincerity of religious belief. In all cases where, according to Muslim law, disbelief, or difference of creed, is a bar to marriage with a true believer, it is enough if the alien in religion embraces Islam. It is submitted that a non-Muslim will become a Muslim by professing Islam, provided that it is not colourable or mala fide or made with a view to perpetrating fraud upon law.

Conversion to Islam.—It appears to be a well-established proposition of law that a non-Muslim, on undergoing the ceremonies of conversion prescribed under Islam, becomes a Muslim. In Islam, the ceremonies of conversion are very simple. A person seeking conversion to Islam may go to a Muslim mosque. On the Imam asking him, "Are you voluntarily embracing Islam", if he answers affirmatively, he is given the Kalma to recite. On the completion of the recitation of the Kalma, the conversion ceremony is over, and the non-Muslim becomes a Muslim. The Imam then confers a Muslim name on the convert. In most of the mosques, a register is kept in which the name of the person embracing Islam is entered and the convert puts his signature thereto. Conversion of a Muslim from one sect to another does not amount to apostasy, and a person changing from one sect to another continues to be a Muslim. The genuineness of belief in the new faith is immaterial, and even when a convert does not practise the new faith, he will continue to be a Muslim. But it is necessary that the conversion should be bona fide, honest, and should not be colourable, pretended or dishonest. In the leading case. Skinner v. Orde, (1871-) 14 MIA 309. a Christian woman was cohabiting with a married Christian man. With a view to legalizing their living together as husband and wife, both of them underwent a ceremony of conversion to Islam. After conversion, they married. Later on, when the question of validity of this marriage arose, the Privy Council held that the marriage was null and void on the ground that conversion was not bona fide. Moreover, it was a fraud upon the law, since the parties underwent the ceremony of conversion with a view to eluding their personal law. The question of colourable, fraudulent and dishonest conversion, has come up before the Indian High Courts in a number of cases, where a non-Muslim has embraced Islam, either to claim divorce on the ground of apostasy, or to enter into a polygamous marriage. Thus, in the matter of Ram Kumari, (1891) 18 Cal 264 a Hindu married woman adopted Islam, and assuming that this meant automatic dissolution of her marriage, took a second husband. She was prosecuted and convicted for bigamy. In Rokeya Bibi v. Anil Kumar, (1948) 2 Cal 119 this aspect of the matter has been very cogently and brilliantly discussed by Chakravarti, J. In this case, a married Hindu woman, with a view to getting rid of her impotent husband, embraced Islam, and sought a declaration that on her conversion to Islam, her Hindu marriage stood dissolved. Observing that the question whether conversion was bona fide or merely a device for terminating the marriage, was very important, the learned judge said: "it may be that a court of law cannot test or gauge the sincerity of religious belief, or that, where there is no question of genuineness of a person's belief in a certain religion, a court cannot measure its depth or determine whether it is an intelligent conversion or an ignorant superficial fancy. But a court can and does find the true intention of ends lying behind their acts and can certainly find out from the circumstances of a case whether a pretended conversion was really a means to some further end Indeed, it seems to us to be| elementary that if a conversion is not inspired by religious feelings and undergone for its own sake, but is resorted to merely with the object of creating a ground for some claim of right, a court of law cannot recognize it as a good basis for such claim, but must hold that no lawful foundation of the claim has been proved. When conversion gives a legal right through a mock conversion and set up as basis of that right is to commit fraud upon the law. We are clearly of opinion that where a party puts forward his conversion to a new faith as creating a right in his favour to the prejudice of another, it is proper and necessary for a court of law to inquire and find out whether the conversion was a bona fide one." The court found that conversion as not bona fide, since the mind of the convert, the unhappiness caused by her husband's impotence and conversion to Islam as a means to escape from that unhappiness, were interconnected.

Consequences of conversion.—When a person converts to Islam, the following questions arise :

(a) How far conversion can change the existing rights and the status of the convert, and

(b) How far Muslim law applies to the convert and his descendants.

Rights and status of the convert—The question of rights and status of the convert arises mostly when a married person converts to another religion. The question has arisen in some acute form in cases where a person whose personal law prescribe monogamy and who converted to Islam with a view to taking advantage of the Muslim law provision which permits polygamy. It is happening that Hindu or Christian who wants to take a second wife and who has no ground available to divorce his first wife, converts to Islam and takes another wife. Since Muslim law permits polygamy, such a person cannot be prosecuted for bigamy, and his former spouse has to put up with such situation. Of course, under Hindu law, she may divorce her convert husband under the Hindu Marriage Act, 1955, but that is not what she wants though her convert husband may welcome it.

The Supreme Court in Sarla Mudgal v. Union of India, AIR 1995 SC 1531. has wiped out the entire dust from this matter. It has laid down that if a monogamously married husband converts to Islam and takes another wife, taking advantage of four-wife polygamy rule of Muslim law, he will be guilty of bigamy and liable to be prosecuted under Section 494 of the Indian Penal Code. His second marriage will be void. There is yet also another aspect of the matter. There has been some misconception that on conversion of a person to Islam, his marriage stands automatically dissolved. This is not so. This rule has two parts, one relating to conversions taking place in Muslim countries and the other relates to conversions which take place in non-Muslim countries. In Baillie's Digest, the second part of the rule is thus formulated : "When one of the married parties adopts the Muslim faith in a foreign country, the cutting off their marriage is suspended for the completion of three menstrual periods. And, if the other party also adopts the faith before their completion, the marriage remains subsisting." The first part of the rule lays down that on conversion, the convert has to offer Islam to the other party. This may be done by the kazi, "time after time, till the completion of three" (i.e., the Islam is to be offered thrice), and the parties are to be separated if the other party refuses to accept Islam. For the purposes of application of Muslim law, India is considered neither a Muslim country nor a non-Muslim country. In India, a marriage cannot be dissolved at the instance of the spouse who had embraced Islam on the ground that the other spouse refuses to accept Islam.

Developments after the case  Lily Thomas v. Union of India

The judgement of Sarla Mudgal was reviewed by the Supreme Court in the case of Lily Thomas v. Union of India in 2000, on the ground that the judgement in the impugned case violates the fundamental right to life and liberty and freedom to practice any religion enshrined under Articles 20, 21, 25 and 26 of the Indian Constitution.

The court held that the contention of the petitioner that the judgment of Sarla Mudgal amounts to the violation of freedom of conscience and free profession, practice and propagation of religion as guaranteed under Article 25 and 26 of the Constitution, is far fetched and is alleged by those who hide behind the cloak of religion to escape the law.

The court further stipulated that the freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon similar freedom of the other persons. The petition also claimed that making converts liable for committing polygamy would be against Islam. The apex court observed the ignorance of the petitioners and rightly said that even under Islamic law, purity of marriage is upheld by Prophet Mohammad.

The interpretation of Islamic law in the modern sense would never allow such acts in its religion. Islam is a progressive, pious and respected religion that cannot be given a narrow concept as has been allegedly done by the petitioners.

Application of Muslim law to converts.—On conversion of a person to Islam, ordinarily, the Muslim law of succession applies to him. On the question whether the entire personal law applies to a convert, the Privy Council in Abraham v. Abraham, (1863) 9 MIA 199, observed that a convert who renounced his old religion may also renounce his old law, or, if he thinks fit, may abide by the old law, even though he had renounced his old religion. This view was reiterated by the Privy Council in Muhammad Ismail v. Lai Sheomukh. (1912) 18 IC 571. Several statutes passed during the British rule lay down that in certain matters, a person may continue to be governed by custom after his conversion. The generality of the observation of the Privy Council in Abraham v. Abraham, is true only theoretically. In reality, even at the time when decision in Abraham's case was rendered, there were very few matters in which a convert to Islam continued to be governed by his old personal law. Even the limited application of old personal law or custom to Muslim converts, was resented by a section of the Muslim community on the specious plea that it amounted to interference in their religious matters. The result was that Shariat Act was passed in 1937, with a view to give effect to "the cherished desire of Muslims of India that customary law should, in no case, take the place of Muslim personal law".

Shariat Act.—The substantive provisions of the Shariat Act, 1937, are contained in Ss. 2 and 3. Section 2 enumerates ten matters in which every Muslim will be governed by Muslim law, but the section expressly excludes three matters, viz;, agricultural land, charities, other than wakfs and charitable and religious endowments. Section 3 enumerates three matters on which a Muslim will be governed by Muslim law if he files a declaration to that effect. In matters other than these thirteen (i.e., those enumerated in Ss. 2 and 3), a Muslim still continues to be governed by custom or any other law already applicable to him. Section 5 of the Act repeals certain enactments. If there is an enactment which is not repealed by this section, and which provides for the application of custom, then, in that case, Muslims may still be governed by custom. Thus, converts to Islam, from the point of view of application of Muslim law, fall into the following categories;

A. All converts to Islam are governed by Muslim law in matters relating to marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trust and trust properties and wakfs, other than charities and charitable institutions and religious and charitable endowments. (These are the matters enumerated in S. 2 of the Shariat Act).

B. In certain cases, a convert may still be governed by custom.

When a person ceases to be a Muslim.—A Muslim may convert to another religion or he may renounce Islam. In such cases he will cease to be a Muslim. But no one has a right to condemn a person with Muslim name, as non-Muslim until he or she renounces Islam or converts to another religion.'' In Vishva Lochan Madan v. Union of India, AIR 2014 SC 2957 Supreme Court has made certain observations about legal sanctity of fatwas. The court observed that fatwas have religious sanctity and strength. Hence, issuance of fatwas on rights, status and obligation of individual Muslim at behest of rank outsider wanted not be permissible. Further, the court observed that Shariat courts are not established by law. They are not part of corpus juris of state. Opinion expressed by it is not enforceable.

Chapter 2 - Schools of Muslim Law

Introduction

The Muslim Law is based on the teachings of the Quran and Prophet Mohammad. In all the circumstances where the explicit command is provided, it is faithfully provided but there have been many areas which are not covered by these sources and as a result, the great scholars had themselves devised their interpretation of what should be done in such a situation.

As these scholars provided their interpretations (Qiyas) regarding the Muslim Law, it led to various opinions among many of them and out such difference, different schools of Muslim Law originated. Each school has its own explanation and reasons for their interpretation and it often leads to conflict in judgments.

In the absence of express rules, it cannot be said that one school is better or higher positioned than other school and thus all the schools have been accepted as valid and if a person follows any of these schools, he is considered to be on the right path.

Schools under Muslim Law -

The people have been divided into two sects having different views regarding certain aspects of Islam. Thus, the schools of Muslim law can be broadly classified into two categories:

1. Sunni Schools

2. Shia Schools

1. Sunni Schools

In Sunni sect, there are four major schools of Muslim law which are as follows;

A. Hanafi School

Hanafi School is the first and the most popular schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which was based on the name of the city of Koofa in Iraq. Later, this school was renamed as Hanafi School based on the name of its founder Abu Hanafee.

The Prophet had not allowed his words and traditions from being written, the Hanafi School relied on the customs and decisions of the Muslim community. Thus, Hanafi School codified the precedent which in prevalence during that time among the Muslim community.

The founder of this school Abu Hanafee had not written any book for laying down the rules of this school and therefore this school had grown through his two disciples- Imam Muhammed and Imam Abu Yousuf. Both of them gave to the Juristic preference (Isthi Hasan) and codified the Ijma’s of that period.

This school became widely spread in various territories, as a result, the majority of Muslims in countries such as India, Pakistan, Syria, and Turkey belong to Hanafi School. In India, since the majority of Muslims are from Hanafi School, the Courts decide the case of a Sunni Muslim as per the Hanafi School unless it is specified that they belong to other schools.

In Hanafi School, Hedaya is the most important and authoritative book which was created over a period of 13 years by Ali bin Abu Baker al Marghinani. This book provid es laws on various aspects except for the law of inheritance. Lord Warren Hasting tries to translate the Hedaya to English. He appointed many Muslim Scholars to translate the book.

But the Sirajiyya is considered as the authoritative book of the Hanafi Law of Inheritance. The book is written by the Sheikh Sirajddin, and the first English translation is written by Sir William Jones.

B. Maliki School

This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his disciples flourished with Hanafi Schools. He discovered about 8000 traditions of Prophet but complied only about 2000 of them. When the disciples of Imam Abu Haneefa codified their law based on Ijma’a and Isthihsan.

The maliki school gives the importance to the Sunna and Hadis whereas the Hanafi school gives the importance to the people and Isthihsan. As per Maliki School and Law, they rarely accept the Ijma’a. As per the Law, the person gave Fatwa challenging the sovereign authority of Khaleefa, he faced enmity and of lack of support from Muslim governments. Thus, this Maliki school did not get much popularity.

In India, there are no followers of this school but when the Dissolution of Muslim marriage act 1939 came in the picture, some of the laws and provision of this school was taken in account as they are giving more rights to the women than any other school. In Hanafi School, if the women not get any news of her husband, she has to wait till 7 years for Dissolution of the marriage, whereas in Maliki School the women have to wait 2 years for Dissolution of the Marriage. Mu-atha of Imam Malik is considered as the most authoritative book of the Maliki School. This book is also the first book written on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.

C. Shaffie School

The Shaffie School gets its name on the name of Muhammad bin Idris Shaffie, his period was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena. Then he started working with the disciples of Imam Abu Haneefa and went to Khoofa. He concluded the ideas and the theories of Hanafi School and Maliki School in a friendly manner.

The Imam Shaffie was considered as one of the greatest jurist of Islam. He created the classical theory of the Shaffie Islamic Jurisprudence.

According to this school, they considered Ijma’a as the important source of the Muslim law and provide validity to the customs of the Islamic people and follows more methods of Hanafi School. The main contribution of Shaffie School is the Quiyas or Analogy.

The Al-Risala of Imam Shaffie was considered as the only authoritative book of Islamic Jurisprudence. In that book they discuss and interpret the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal reasoning) Isthihsan (Juristic preference) and Ikhthilaf (Disagreement) in separate chapter in his book Risala.

His other book Al-Umm is the authority on Fiqh (science of way of life).

The followers of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.

D. Hanbali School

The Ahmad bin Hanbal is the founder of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the disciple of Imam Shaffie and supports Hadis. He strongly opposed the Ijthihad methods. He introduced the theory of tracing the root of Sunna and Hadis and try to get the answer all his question.

His theory was to return to the Sunna of the Prophet. When the Imam Shafie left for Baghdad, he declared that the Ahmad bin Hanbal was the only one after him who is the better jurist after him. The followers of Hanbali school found in Syria, Phalastine and Saudi Arabia.

2. Shia Schools

As per Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They enjoy the political power only in Iran though they don’t have the majority in that state also.

A. Ithna-Asharis

These schools are based on the following of Ithna-Ashari laws.

The followers of these schools are mostly found in Iraq and Iran. In India also there is the majority of the shia muslim who follows the principles of the Ithna-Asharis School. They are considered political quietists. This school is considered as the most dominant school of the shia muslims. the ja’farifiqh of the shias in most cases indistinguishable from one or more of the four sunni madhahib, except mutah is considered as the lawful marriage. The people who follow the IthnaAsharis school believe that the last of the Imams disappeared and to be returning as Mehdi(Messiah).

B. The Ismailis

According to Ismailis school, in India there are two groups, the Khojas or Western Ismailis represents the followers of the present Aga Khan, who they considered as the 49th Imam in this line of Prophet, and the Bohoras i.e. the Western Ismailis are divided into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the followers of this school. It is considered that the follower of these schools has special knowledge of religious doctrine.

C. Zaidy

The followers of this school are not found in India but are maximum in number in South Arabia. This sect. of the shia school is the most dominant among all in Yemen. The followers of these schools are considered as political activism. They often reject the twelver shia school philosophies.

D. Motazila School

The followers of this School are in minority and can be found in Iran. This Sect was founded by Al-Gazzal. The followers of this Sect believed in true divine justice and unity and believed that evil could be overpowered by the good and that the Quran itself can only be the truest and divine source to overcome evil from the society.

Other schools

Besides the schools under Shia and Sunni sects, there are some other schools which are also present which are:

Ibadi School

Ibadi is a school which belongs neither to the Shia nor Sunni sect and this school claim that its history traces back to the times of 4th Khaleefa Ali. The Ibadi school gives more preference to the Quran and they do not give the Sunna much importance. This school has its followers in Oman. One of the most important points about this school is that besides the Quran, it has provided principal consideration to Ijtihad  (personal reasoning) which has been partially accepted by the Sunnis and has been completely rejected by the Shias.

Ahmadiya School

The followers of Ahmadiya school claim to be Muslims but they do not follow Prophet Muhammed. This school has a recent origin and they are followers of one Ahmed who was alive in the 19th century.

This school is said to have a British-Indian origin and Mirza Ghulam Khadiani is the founder of this school, who served the British Government. Even though this school claims to be a follower of Islam, none of the Muslim Government has accepted them as Muslims because they believe this school’s faith is completely against the faith of Muslims.

The Khadiyan village which is situated in Punjab in India is said to be the birthplace of Ahmed and thus it is their holy place and the followers are also known as Kadhiyani. There is no authoritative book of this school and because its origin is also recent, it has no recognition by the other authoritative books of Islam.

There are many differences between the Ahmadiya School and Muslims therefore, they are not regarded as part of Islam. The major points of difference between them are as follows:

The Muslims believe that Prophet Mohammad was the Messenger of God on Earth and he was the last Prophet who had spoken with God. Thus, his teachings are an important part of the lives of Muslims but the Ahmadiyas believe that God still communicates with his holy servants even after Prophet Mohammad.

The Ahmadiyans claim that the list of Prophets before Mohammad includes Buddha, Krishna, Zoroaster and Ramchandra and they claim it is according to the Quran but the non-Ahmadiyans do not accept such claims and refuse to acknowledge them as Prophets.

Unlike the Muslims, the Ahmadiyans do not accept the claim of the Sultan of Turkey as the Caliphate and they claim that every Muslim person should remain loyal to the Government of their country.

While Muslims believe that Mahdi will have a holy war or Jihad and Islam will be spread by the sword, the Ahmadiyas believe that it will be spread by arguments and heavenly signs and not through violence.

Chapter 3 - Sources of Muslim Law

Primary sources. Primary sources are such sources of law which the Prophet Mohammed himself directed to be the source of Muslim law. Therefore, these sources are of the highest quality and importance in their respective order. These sources are universally accepted and they are deemed as a primary source which means these sources shall have been relied before any other source exists.

1. The Quran-

AL-QUR’AN - The word Quran has been derived from the Arabic word Quarra which means to read.

The Holy Quran is the first and most important source of Islamic law. The word Qur’an literally means “the reading” or “the recitation”, and refers to the divinely revealed scripture given to Prophet Muhammad. Since Prophet Muhammad is considered the last prophet of God, the Qur’an is considered the ultimate revelation from God to humanity. The Qur’an is the book revealed the messenger of Allah, Muhammad (PBUH) as written in the Mashaf and transmitted to us from him through authentic continuous narration (tawatur) without doubt. Other jurist defines that the Qur’an is the words of Allah (Exalted) that were revealed to the Prophet (PBUH) in Arabic through the Angel Jibril. As a complete code of life in terms of its stated morality and laws, the holy Quran guides humans in spiritual and worldly matters, as well as individual and collective aspects of life. The holy Quran, the last book of Allah Almighty which He revealed on Prophet Muhammad (PBUH), is the foundation of religion and the fountainhead of Islamic law. This is a complete book and a code for man’s guidance. It is addressed to the whole humanity without the discrimination of race, colour, religion or time. It is the first source of Islamic law and, without any doubt, is the recipe for success in this world and the hereafter. In other words, Muslims believe that the Quran is the direct word of Allah (SWT), as revealed by Muhammad (SAW). All sources of Islamic law must be in necessary agreement with the Quran. The Quran was written and preserved during the life of Muhammad (SAW), and was compiled soon after the death of Muhammad (SAW). As the Qur’an was revealed over a period of twenty three years in relation to particular events and it is explained in the holy Qur’an as follows. More than 200 verses of the Holy Quran make up the body of Islamic law that governs legal relations. It is notable here that all the rules in these 200 verses leave their mark in the five basic principles that lay the very foundation of the Islamic legal system. The brief break of these verses is as follows: 70 verses on family and Inheritance law 70 verses on obligations and contracts 30 verses on criminal law 20 verses on procedure 10 verses on other matters.

Aga Mohammad Jaffer v. Koolsom Beebee and others - It was a judgment delivered by the Privy Council on 7th April 1897. It was observed that where a passage of the Quran was interpreted in both Hedaya (a work of Sunni Law), and in the Imamia (a work of the Shia Law) it was not open to a judge to construe it in a different manner. The courts should not compare any traditional settled law with Quran.

2. SUNNA (SUNNAT)

The Sunnah is the next important source, the Sunnah or path or way of Prophet Muhammad (PBUH). The Sunnah consists of the sayings, deeds and words of Prophet Muhammad (PBUH) which are not revelations of the Quran. In order to understand the teachings of Quran, the understanding of Sunnah is compulsory. It is the traditions or known practices of the Prophet Muhammad, accepting words, deeds, silent assertions about him and statements and activities, many of which have been recorded in versions of Hadith literature. According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin). Manifest or express revelations were the very words of Allah and came to the Prophet through the angel Gabriel. Such revelations became part of the Quran. On the other hand, the internal revelations were those which were the ‘Prophet’s words’ & did not come through Gabriel, but Allah inspired the ideas in his sayings. Such internal revelations formed part of Sunna.

Traditions, therefore, differ from Quran in the sense that Quran consists of the very words of God whereas a Sunna is in the language of Prophet.

Kinds of Traditions-The Traditions are of two kinds :- 1. Sunnat : and 2. Ahadis.

Sunna or traditions consists of:

•           Sunnat-ul-Qual (word spoken)

•           Sunnat-ul-Fail (conduct)

•           Sunnat-ul-Tahrir (silence)

Sometimes, the Prophet gave his opinion or after consulting with some of his companions but most of his verdicts were influenced by divine authority. He was considered as a role model and others were inspired by whatever he did. This was known as Sunnat-ul-fail, which means whatever he did by himself.

There were many instances when in his presence people did some acts which were in accordance with the Quran. The acts of the people which he allowed without openly expressing his consent through words were known as Sunnat -ul-Tuqrir'. All the enjoined words & the precepts of the Prophet were known as Sunnat-ul-Qaul.

The three classes of Ahadis are given below. This classification unlike the above, has been made on the basis of the authenticity of the traditions which in its turn is dependent in the manner in which each particular tradition has been preserved:

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

(ii) Ahadis-i-Mashhoor, i.e., Traditions which though known to a majority of peopie, do not possess the character of universal propriety.

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

3. HADITH (HADEES)

The literal meaning of Hadith ("talk" or "discourse") in Islam refers to what Muslims believe to be a record of the words, actions, and the silent approval of the Islamic prophet Muhammad. Hadith have been called "the backbone" of Islamic civilization, and within that religion the authority of hadith as a source for religious law and moral guidance ranks second only to that of the Quran (which Muslims hold to be the word of God revealed to his messenger Muhammad). Scriptural authority for hadith comes from the Quran which enjoins Muslims to emulate Muhammad and obey his judgments . While the number of verses pertaining to law in the Quran is relatively few, hadith give direction on everything from details of religious obligations (such as Ghusl or Wudu, for salat(Namaz) prayer), to the correct forms of salutations and the importance of benevolence to slaves. Thus the "great bulk" of the rules of Sharia (Islamic law) are derived from hadith, with than the Quran.

Difference between Sunna and Hadith

The terms “Sunna” and “?adith” are often used interchangeably. This use is inaccurate. “Sunna” denotes what the Prophet said, did, approved, and disapproved of, explicitly or implicitly. “?adith,” on the other hand, refers to the reports of such narrations. Furthermore, while “?adith” and “Sunna” are used synonymously because the ?adith literature is the main source of the Sunna of the Prophet, it is not its only source. There are two others sources. First, practices of the people of Medina were considered to have come from the Prophet. Medina is the city where the Prophet lived his last ten years, where most legislations of the new religion were revealed in the Qur’an or devised by the Prophet, and where the first three khalifa and most Companions continued to live. In other words, Sunnah is an action that was performed by our beloved prophet Muhammad and hadith is the where sunnah is written for us to read.

4. IJMA (CONSENSUS OF OPENION)

Ijma is a term used for an opinion or order of Islam where all good and respected scholars of Islam are unanimous in their rule. Those people who had knowledge of law here called “Mujtahids” jurist. When Quran and tradition could not supply any rule of law for a fresh problem, the jurist and the unanimously give their common opinion or unanimous decision and it was turned as “Ijma”. For example, scholars believe that there are five obligatory prayers (Namaz), or that adan should be offered before the namaz, or that the funeral prayer should be recited over the deceased believer, or swine is prohibited in Islam, etc.

Importance of ljma.-The Law is something living and changing. Social values are subject to constant changes and these changes in their turn affect law. Hanafi School is of the view that law must change with the changing of times. According to Maliki School, new facts require a new decisions. The aim of the law is to fulfil the needs of the Society. The principle of ljma is based upon the following texts: "God will not allow His people to agree on an error and whatever Muslims hold to be good is good before God". With the march of time, development of civilization and the expansion of the Islamic influence numerous problems arose which could not be decided by reference to only Quran and Ahadis (Traditions). The jurists, therefore, evolved the principle of Ijma The laws are needed for the benefit of the community, therefore, the Divine Legislator has delagated power to lay down laws by the resolution of those men in the community who are competent in that behalf, i.e., the Mujtahids or jurists. Since the Muslim religion does not admit the possibility of further revelation after the death of the Prophet, the principle of ljma is the only authority for legislation in the present Muslim system.

There are three kinds of Ijma:

(a) Ijma of the Companions of the Prophet.-It is universally acceptable, throughout the Muslim world and is unrepealable. Abdur Rahim in his book entitled Muhammadan Jurisprudence says: "Great weight will be attached to the Ijma of the Companions of Prophet inasmuch as the Companions were appointed with the viewpoint of Prophet and remaining close to the Prophet they had almost adopted the same way of reasoning as the Prophet. However, due weight could only be attached to such Ijma of the Companions which was well-known in their lifetime and has been held thereafter by reliable men".

(b) ljma of Jurists.-So far this particular kind of Ijma is concerned there is divergence of opinion regarding--(a) the exact procedure of formation-Which nowhere has been laid down, (b) the exact number of jurists necessary to form Ijma, (c) whether the ljma is by majority decision or by unanimous opinion, (d) whether should be preceded by reasoning, and (e) whether all of the jurists should sit together to form Ijma.

(c) Ijma of the People-Though in theory the opinion of Muslim population as a whole may have any importance but in actual practices of Muslim public had no value with regard to legal matters, but in matters relating to religion, prayer and other observances great weightage is attached to it. The fundamental observances of lslam as to prayers, fasting. pilgrimage and proof rate have been established by ljma of the people. Ijma cannot be confined or limited to any particular age or country. It is completed when the jurists, after due deliberation, come to a finding. It cannot then be questioned or challenged by any individual Jurist. 1jma of one age may be reversed or modified by the ljma of the same or subsequent age

Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding on people. Without Ijma, these rules of Islamic law would have been diffused and incomplete. Its principles cover the vast subject. Ijma authenticated the right interpretation of the Quran and the Sunna.

IJTEHAAD The literal meaning of ijtihad is derived from the root word jihad or effort, to find in the solution the guidance of the Quran and Sunnah.

5. QIYAS –

“Qiyaas is a term used when determining the root-cause of the process to do Ijtehaad. Qiyaas is a process whereby a clear ruling of the permissibility or impermissibility of an act or thing is applied to an issue closest related to it. For example, Allah and His Messenger (saws) have declared khamr (wine, alcohol, etc.) haraam. Now if someone were to ask for a ruling on the usage of marijuana, the scholars of Islam would do Qiyaas and determine the root cause of the haraam of khamr is its intoxication; thus all things that intoxicate would be considered haraam. Because the usage of marijuana intoxicates, it too would be considered haraam. Whatever written of Truth and benefit is only due to Allahs Assistance and Guidance, and whatever of error is of me. Allah Alone Knows Best and He is the Only Source of Strength.”

The expression “Qiyas” was derived from the termed “Hiaqish” which means ‘beat together’. In Arabic “Qiyas” means ‘measurement, accord and equality. The holy Quran was not capable of dealing with new emerging difficulties arising from contact with the outside world. To resolve this problem, the Muslim jurist commenced referring to “Quaran”, “Izma” “Sunna’ to compare the situation and reduced to answer to the problem based on some analogy. When the answer found, all the jurist together agree to it was called the “Qiyas”.

The verses of the Quran are classified into two categories-MUHAKAMAT and MUTASHABEHAT-Muhakamat are clear in meaning whereas Mutashabehat are such verses which are capable of various meaning. It is the duty of a jurist to ascertain the meanings of such verses. Sometimes they are expressive, sometime indicative and sometimes elucidative, hence such verses provide room for Qiyas.

Conditions for the validity of Qiyas

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

2. The law of the text must not be such that its raison de'tre cannot be understood by human intelligence nor must it be in the nature of an exception to some general rule.

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

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

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

6. The deduction must not be such as to involve a change in the la embodied in the text. However, concluding the discussion it can be said that Qiyas is a weal source of law and rules analogically deduced do not rank so high as authority as those laid down by Quran or Hadith or by consensus of opinion. The reason that with respect to analogical deductions one cannot be certain that they are what the law giver intended. Such deductions always rest upon the application of human reason which always are liable to err.

Secondary sources of Muslim Law

These are those sources that are advancements in the establishments set somewhere around the primary sources. These sources are not essential sources of Muslim law but rather the strengthening source of Muslim law. These sources clarify or change the primary sources. They manage the requirements of the Islamic culture in the cutting edge time. These are likewise called superfluous sources. The four essential secondary sources of Muslim law

I. Urf or Custom

Customs are fundamentally rehearsed that individuals follow ceaselessly for an extensive period. Indeed, they tail them for such a long time that they get the status of law now and again. Muslim law contains different traditions directing acts of individuals.

Under the watchful eye of Islam, standard law administered Arabia. At that point, the Prophet nullified the greater part of them, as they were Un-Islamic and awful. The Shariat Act, 1937 has annulled the vast majority of the traditions. Segment 2 records ten issues including legacy, marriage, separate, wakf and, support wherein customs and uses can’t be applied any longer.

A few traditions, nonetheless, were proceeded because of the Prophet’s quiet endorsement. Some were even remembered for his conventions. Something else, a few traditions made due because of their fuse in the Ijma. For instance, Prophet Mohammad never repeals the entire of the pre-Islamic standard law of Arabia. In the different matter of Muslim law, custom assumes a huge job when the issue is identifying with:

Agricultural land;

Testamentary succession among certain communities; and

Charities other than wakf, because these matters have not been included in the Section 2 of Shariat Act, 1937.

Requirements of Valid Customs

1. General prevalence in a country is necessary. The practice of  a limited number of individuals cannot be regarded as custom.

2. It must be Territorial.

3. Customs must be immemorial which means beyond human memory.

4. It should be ancient and invariable.

5. It should not oppose public policy.

6. It is anything but a proper source, yet, without rule of law in the writings of the essential sources, the standard practices are viewed as law. The English Courts in India held that custom would beat a composed book given that the exceptionally was old and invariable.. Nonetheless, it can’t be denied that custom has consistently been given a spot under Muslim law, on the off chance that it is in congruity with Muslim law.

II. Judicial Decisions or Precedents

This encompasses the choice of the privy council, the supreme court as well as high courts of India. in finding out precise cases, the judges enunciate what the law is. these decisions have seemed as a precedent for future cases and the courts are certain to follow the precedents.

It is said that the law secures just the watchful. This is a lot of right on account of Muslims in India. The advancement of Muslim law by the legal executive went to its full improvement during the 1980s because till at that point, the Muslim people have been dozing on their privileges or were uninformed about their privileges.

Courts have settled numerous significant legitimate oddities utilizing legal understandings. Law of pre-emption, legitimacy of blessings to the minor spouse, extra grounds of the disintegration of marriage, and even enthusiasm on unpaid dower are not many of the fields where courts have stepped in with new understandings or caution based on equity, value and great inner voice to build up the law further.

Numerous multiple times, enactments have overruled or refuted the principles; they are as yet a wellspring of law. It might be finished up accordingly, that somewhat, the courts in India have attempted to change the guidelines of Muslim individual law as applied in India. Except if overruled or negative by some administrative authorization, these principles through the choices, keep on being a source of Muslim law.

There is a range of judicial decisions that have given a new dimension to Muslim law.

1. The first landmark judgment that deals with Muslim personal law became the 1986 judgment in Shah Bano Begum v. Md. Ahmed Khan 1985 (2) SCC 556. In this case, the apex courtroom held that Muslim women have a right to upkeep below segment 125 of the Code of Criminal Procedure even though the Quran or their non-public laws have furnished for a trade remedy. the same ratio becomes upheld through the apex court in Daniel Latifi v. Union of India (2001) 7 SCC 740.

2. In Maini Bibi v. Choudhry Vakil Ahmad, 11 December, 1924 held that a widow possesses the proper to maintain the assets of her husband till her dower money becomes paid.

3. Recently, within the leading case of Shayara Bano v. Union of India Writ Petition (C) No. 118 of 2016, the apex court held the system of instantaneous divorce by the utterance of the phrase ‘Talaq’ thrice orally unconstitutional because the proper to instant divorce is only with the men and now not women. Besides, the system is unfair, and for this reason, violative of Article 14. Consequently, the judiciary has assisted with the improvement of Muslim personal regulation.

III. Legislation

Legislation means resolutions sanctioned by the Parliament or the State law-making body for the guideline of human activities from a specific perspective. God is the supreme law-making body according to Islam. Muslim law in India is uncodified, therefore Parliament has made a few legislatures that bring a few changes to control some Islamic practices. For instance, The Muslim Personal Law (Shariat) Application Act, 1937 administers marriage, progression, and legacy. The Dissolution of Muslim Marriages Act, 1939 is another law managing certain separation cases among Muslims.

Similarly, substitute enactment accessible to all religions has had its effect felt on the Muslim personal law. For instance, a couple that marries under the Special Marriage Act, 1954 will be controlled by this represent matters concerning marital life and not by the personal laws of the party. The legacy and intestate progression of the life partner or beneficiaries will likewise be administered under The Indian Succession Act, 1925. It doesn’t make a difference whether the people getting married under this law are from a similar religion or group or not.

In Indian Muslims are additionally administered by the different legislations passed either by parliament or by state governing body.

The latest advancement in enactments has been the Triple Talaq Bill (The Muslim Women Protection of Rights on Marriage Bill 2019) that disallowed any type of an oral or composed affirmation of separation to be illicit except if it is executed with the due procedure of law.

IV. Justice, Equity, and Good Concise

The doctrine of fairness, Justice, Equity, and good concise is regarded as one of the sources of Muslim law. These concepts of Muslim law are known as ‘Istihsan’ or ‘Juristic Equity’. Istihsan manner approbation and can be translated as liberal construction or juristic choice or what we call today as the law of equity. Numerous regions of Muslims have been changed to meet the changing situations in India.

Sources of law according to Shias.-

The following are the sources of law according to Shias: 1. The Quran; 2. Ahadis; and 3. The ljma.

Like the Sunnis, the Shias also hold the Quran as the first and foremost source of Muslim Law, the difference between them is due to the fact that they differ in its interpretations, the Shias hold only those Ahadis as authentic which came down from the Prophet or his family members and are very strict in this respect, and, therefore, the Shias have got very few Ahadis. In the absence of the first two sources of law the Shias take recourse to the Ijma and particularly when the Imam could not be consulted. Shias do not accept Qiyas as a valid source of law.

CHAPTER 4  - MARRIAGE

Marriage or Contract

The fundamental concept of individual liberty and responsibility, which is a corner-stone of Muslim jurisprudence, is incorporated in the institution of marriage. In Muslim law, marriage depends upon the free volition of the parties concerned, so does its dissolution, though the wife's volition in this regard is subordinate to that of the husband, since the Muslim jurists, subscribe to the notion that of the two partners, the husband, on account of his physical and intellectual superiority, has to play a dominant role, and the wife is, therefore, subordinated to him, so much so that she practically enjoys no marital freedom. Some theories treat the dower as consideration for the alienation of her marital freedom.^ Wedded as it is to the notion of wife's subordination to the husband, Muslim jurisprudence confers on-the husband almost absolute power of divorcing his wife, but denies like freedom to the wife, and consequently, the wife can obtain divorce only when the husband agrees to her proposal, and she either forgoes her dower, or gives him something in return for his consent, to release her from the marital bond. It is in this context that Schacht observed : "Marriage (nikah; zawi. the husband; zawaja the wife) is a contract of civil law, and it shows trace of having developed out of the purchase of the bride; the bridegroom concludes the contract with the legal guardian {wali) of the bride, and, he undertakes to pay the nuptial gift {Mahr Sadak) or 'dower' not to the wali as was customary in the pre-Islamic period, but to the wife herself'. Wilson defines a Muslim marriage as "a contract for the purpose of legalizing sexual intercourse and the procreation of children". Fitzgerald goes to the extent of saying that "although a religious duty marriage is emphatically not a sacrament. There are no sacraments in Islam. Nor is it a coverture".^ Judicially, Mahmood, J. defines a Muslim marriage as a civil contract, upon  the completion of which by proposal and acceptance, all the rights and obligations, which it creates, arise immediately and simultaneously. The learned judge further observed : "Marriage among Muhammadans is not a sacrament, but purely a civil contract; and though solemnized generally with recitations of certain verses from the Koran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion." On the other hand, Abdul Rahim says that a Muslim marriage is both in the nature of ibadat, devotional act, and muamalat, a dealing among men. Krishna Iyer, J. concurs with the view. In his paper, "Reform of the Muslim Personal Law", he said : "The impression that a Muslim marriage is a mere contract and not, therefore, sufficiently solemn or sacred is another fallacy of the Hindu and Western student."

Human beings, at some stages of the development of the institution of marriage, have attached some sanctity—some going to the extent of calling it a sacrament, a permanent union, just as Hindus and Christians did—to marriage and to that extent a Muslim marriage, too, may be called an ibadat but the most remarkable feature of Muslim jurisprudence is, that even at the beginning of the development of their juristic thought, they squarely considered the marriage essentially as a civil contract—a concept which developed in the western world fully only after the Industrial Revolution. That of the two partners to a marriage, it accorded dominant position to the husband, was but natural at the stage in the development of human society which was starkly partriarchal. Thus, it is submitted that in its formation, the Muslim marriage is essentially a contract, though in its dissolution, the dominant position of the husband is recognized.

Kinds of Marriages

Being a civil contract, the validity of a Muslim marriage depends upon the conclusion of the marriage contract.

Muslim law does not insist upon any particular form of marriage.

If there is a proposal from one side, and its acceptance on the other, a valid marriage will come into existence, provided that the other conditions of marriage are fulfilled.

No writing is necessary.

Even the presence of witnesses is not necessary (the Sunnis do insist on the presence of two competent witnesses).

There is only one form of marriage called nikah.

A normal Muslim marriage is a permanent marriage in the same sense in which the modern Christian marriage is a permanent union even though the husband enjoys the power of unilateral termination of marriage at any time, without any cause and without going to a court of law. But, since, no term is fixed in a normal nikah, the Muslim marriage is a permanent marriage. However, the Ithna Ashari law recognizes, as it.is commonly, though incorrectly, called, temporary marriage, known by the name of muta marriage. It would be proper to call muta marriage as "term marriage". No other sect of Muslim recognizes muta marriage. It should be noticed that even in a muta marriage, there is nikah. Just like the Sunnis, the Shias also recognize the regular permanent marriage.

Muta marriage.—"The believer is only perfect when he has experienced a muta", thus observed the Shia theologian al-Hurr-al-Amili. It may be difficult to say that when an Ithria Ashari Muslim enters into a muta marriage, he does so with a view to perfecting his belief. The fact of the matter is that a muta marriage is a survival of a pre-Islamic Arab custom whereby the Arab women used to entertain men in their own tents. This union gave rise to no mutual rights and obligations. The man entering the tent had, of course, to pay the entrance money. The man could get out of the tent whenever he wanted and the woman could throw him out whenever she chose, if any child was born of such a union, it belonged to the woman. It seems that, later oh, it developed into a fixed term union on payment of some consideration by the man, and acquired the name of muta. This pre-Islamic institution of muta continued to exist for some time even after the advent of Islam in Arabia, as it was found useful during the times of war on travel. It appears that on account of its widespread prevalence, the fiat of the Prophet, too, tolerated it for some time, but ultimately, he came out emphatically against such unions and declared them to be unlawful. But the institution survived in spite of the Prophet. It was Caliph Omar who liquidated it ruthlessly. Since the Ithna Ashari do not accept the first three Caliphs (in which is included Omar), they continue to recognize the muta.

An Ithna male has capacity to contract any number of muta marriages (he can even cross the limit of four) with a woman who is Muslim, Christian, Jewish or a fireworshipper, but with none else.^ But an Ithna Ashari female can contract a muta marriage only with a Muslim. If the woman is major, her wait (guardian) cannot object to muta, even when the woman is virgin. But a minor girl can enter into a valid muta marriage only with the consent of her guardian, otherwise it would be unlawful. The Sharaya considers it to be abominable for a man to contract a muta marriage with a fathereless virgin girl.

All the requisite formalities of marriage, such as of offer and acceptance, have to be observed in the muta marriage.

The following conditions are necessary for a valid muta marriage.

First dower must be specified, without which the contract is void, and no union results. Secondly, the terms must be specified.

The duration of the muta marriage may be a few hours, a few days, a few weeks or a few months or a few years. But in every case, duration of the term must be clearly specified. However, if the term is unspecified, then the implication is that the parties stipulated a permanent union

The fundamental difference between a muta marriage and a permanent marriage is that in the former, the term is specified, while in the latter, it is not. If the term is not specified, it should be considered as a permanent union, even if the parties, call it a muta. In such a case, the inference would be that the parties intended to conclude a permanent marriage. And if this inference is drawn, then all the consequences of a permanent marriage flow, namely, the right of mutual inheritance arises, the wife is entitled to maintenance, and all the restrictions such as that the husband cannot take more than four wives, come into existence. It is submitted that in cases like these, our judges should play the role of mujtahid.

Incidents of Muta marriage.—The main incidents of the muta marriage are :

(i) in a muta marriage parties have no right to mutual inheritance, even if one the parties dies when the muta is subsisting. There is a difference of opinion among the Shia authorities whether a specific stipulation to that effect in a muta is valid.

(ii) A wife in a muta marriage is not entitled to maintenance. But if in the contract of marriage, it is specifically stipulated, the wife will be entitled to maintenance during the whole term, even if the husband chooses not to cohabit with her. In the absence of such a stipulation, the court has power to grant her maintenance, under Section 125 of the Code of Criminal Procedure.

(iii) If the marriage is not consummated, the wife is entitled to only half of the dower. If the marriage has been consummated, then the wife is entitled to full dower, even if the husband does not cohabit with her during the entire term or part of the term. On the other hand, if the wife leaves the husband before the expiry of the term, she is entitled to only proportionate dower.

(iv) When the marriage has been consummated, the wife is required to undergo idda of three course; if there is no consummation of marriage, no idda is required.

(v) It seems that in the muta marriage, the husband has the right to refuse procreation, that is to say, “Izl” is allowed, and no permission of the wife is necessary.

(vi) The offspring of muta marriage has the status of legitimate children, and is entitled to inherit the property of both parents in the same manner as the offspring of a permanent marriage.

(vii) The muta marriage comes to an end automatically on the expiry of the term, unless extended, or on the death of either party. The question of husband's right of talak does not arise. However, the parties may terminate the union by mutual consent if the husband wants to terminate the union earlier, he can do so by making a "gift of the term" or of any portion of it. This is called hiba-i-muddat for which consent of the wife is not necessary.

Classification of Marriage

All the schools of the Sunnis classify marriage into : (a) Sahih (valid), (b) Batil (void), and (c) Fasid (irregular). The Ithari Ashari school of the Shias does not recognize the irregular marriage, and, therefore, among them, marriages are either valid or void.

1. Sahih (valid) marriage.—A marriage performed between the parties having full capacity to marry with all the necessary formalities is a valid marriage. Here, the words "capacity" is used in a wide sense, which includes, all the legal requirements of a valid marriage. If the marriage is sahih, then, all the consequences of a valid marriage flow from it.

The legal effects of a valid marriage are : (i) The parties to the marriage acquire the status of husband and wife, thereby, sexual intercourse between the two becomes legal. (ii) The mutual rights of inheritance are conferred on the parties. (iii) The wife acquires the right of maintenance, dower and lodgement. (iv) The marriage imposes an obligation on the wife to be faithful and obedient to her husband and admit him to sexual intercourse. (v) On the dissolution of marriage, either due to divorce, or death, the husband cannot marry the wife's sister. (vi) The marriage subjects the wife to the husband's power of restraining her movement, that is to say, the husband can prohibit her from going out and appearing in public. But this power of the husband is subject to the contract to the contrary. (vii) It confers on the husband the power of reasonable chastisement and correction when she is disobedient or rebellious. (viii) It confers the status of legitimacy on the children. (ix) In addition to these, other rights and obligations may also arise as agreed upon the marriage contract. Under Muslim law, the wife's sect or school does not undergo a change on marriage. Nor does a marriage confer any right or power on each other's property.

2. Batil (void) Marriage.—When a marriage is performed in violation of absolute impediments or perpetual impediments, the marriage is batil, null and void—void ah initio.

A void marriage is no marriage and no legal consequences flow from it. Neither it confers the status of husband and wife on the parties, nor the status of legitimacy on the children, nor mutual rights and obligations arise from such marriage.

It is called a marriage because two persons have undergone the necessary formalities of marriage. But since they totally lack capacity to marry, marriage cannot come into existence between the two.

Thus, marriages performed in violation of rules of consanguinity, fosterage or affinity, or with another's wife, are batil marriages.

There is no process recognized or prescribed in law whereby such marriages can be validated.

Since the marriage is void ah initio, the parties are free to go their own way. If the wife enters into another marriage, she will not be guilty of bigamy.

Third persons can take a stand and say that the marriage is void, even though the marriage has not, been formally terminated. Thus, A and B have undergone a ceremony of marriage, but their marriage is void, since they are related to each other within the degrees of prohibited relationship. A dies leaving behind his father P and B. P claims A's entire property by saying that since the marriage of A with B was void, B has no status of wife, and he is, therefore, entitled to the property. His claim will stand. Although no legal action is necessary for the declaration of such a marriage as null and void, any person who is interested in getting such a declaration can file a declaratory suit under S. 9, C.P.C. read with S. 34, Specific Relief Act, 1963.

Under Muslim Law, the matrimonial cause of nullity of marriage is not recognized.

3. Fasid (irregular marriage).—If the impediment or prohibition to marriage is temporary or remedial, then a marriage performed in violation of such impediments, is not void, but, as the Muslim law—gives call, irregular.

An irregular marriage, under Muslim law, is not same thing as voidable marriage under English law or Hindu law. A voidable marriage is a perfectly valid marriage till it is avoided, and it can be avoided only by either party to the marriage.

No third person can take a stand on it.

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

A Fasid marriage is not a valid marriage to begin with, but it can be validated and made a fully valid marriage by removing the impediment, or by remedying the prohibition. Thus, when a person marries his wife's sister, the marriage is irregular, but he can validate it by pronouncing talak on his wife. Such a marriage has been held fasid and not batil, therefore, till terminated in accordance with law, it continues to subsist. Hence, the wife and children of such marriage were entitled to maintenance. Or, when a Sunni male marries an idolater, the marriage is irregular, but, on his wife's conversion to Islam, the marriage becomes valid. An irregular marriage is totally an ineffective marriage before consummation. Either party to an irregular marriage has a right to terminate it at any time, either before or after consummation, by just expressing an intention to do so. Any words indicating such an intention are enough, such as one party may say to the other, "I have relinquished thee". If consummation has taken place in an irregular marriage, then the wife is entitled to dower, proper or specified, whichever is less. The wife is required to perform idda of three courses on dissolution of marriage, either by divorce, or, by death of the husband. The children of such marriage are fully legitimate, and have rights of inheritance to the property of both parents. The parties to an irregular marriage have no right of mutual inheritance.

A marriage under Muslim law is irregular in the following cases;

(i) A marriage performed without witnesses;

(ii) A marriage performed with a woman undergoing idda;

(iii) A marriage prohibited on account of difference of religion;

(iv) A marriage with a fifth wife;

(v) A marriage performed in violation of the rule against unlawful conjugation. Since the Ithna Ashari law does not recognize irregular marriages, a marriage under heads (ii) to (v) are void under that law. But for a Shia marriage no witness is necessarily.

Formalities

All that is necessary for the conclusion of a Muslim marriage is that there should be a proposal iijab) of marriage made by, or on behalf of, one of the parties, and accepted (qubul) by or on behalf of the other, at one and the same meeting. If the proposal is made at one meeting and is accepted at another then, it does not result in a valid marriage. Among the Sunnis, the proposal and acceptance should be made in the presence and hearing of two adult male witnesses (or one male and two female witnesses). The Shias do not insist on the presence of witnesses. Muslim law does not prescribe any specific words to be uttered on the occasion though the words used in the proposal, and the acceptance, must clearly and unequivocally convey the intention to be married. The Radd-ul-Muhtar says that marriage does not depend on the use of any express terms so long as the purpose is distinctly understood. The usual (though not prescribed) form is ; "I have married myself to you", and the other says, "I have consented myself to you".'' When the proposal is made by the bridegroom to the father of the bride, the usual form is : the bridegroom addresses the father of bride thus : "Marry your daughter to me", and the bride's father replies, "I have consented".^ The Ithna Ashri law requires the use of the following Arabic words, "tawiz" or "nikah".^ But even if proper words are not used, consummation on marriage cures the deficiency, and all incidents of a valid marriage flow from it. If parties are unable to utter the Arabic word, the equivalent words in the language they understand may be spoken. The Hanafi law requires that the contract of marriage must be expressed in words implying sale (bay) or gift (hiba), or transfer of ownership (tamlik), or any other expression implying permanent union. Use of words implying hire or pledge is not proper.

Ordinarily, in India, marriages among all sects are solemnized by a person conversant with the requirements of law, who is designated for the occasion by the kazi or the mulla. Two other persons formally appointed for the purpose, act on behalf of the contracting parties, with certain number of witnesses, and the terms are usually embodied in a deed or marriage called kabin namah. In the deed of marriage all the conditions of marriage such as the amount of dower, mode of its payment, questions relating to custody of children, or any other conditions which the contracting parties desire to lay down, are incorporated. In India, ordinarily and usually, Muslim marriages are celebrated at the bride's father or guardian's residence, in the presence of agents (vakils) and guests some of which act as witnesses. It is also usual that kazi or mulla is present on the occasion who recites certain Koranic verses and confers benediction on the parties.

From the contractual concept of Muslim marriage, it flows that the consent of the parties if adult, or of their guardians, if minors, must be expressed clearly and unequivocally by them- or their agents. Among the Hanafis and the Shias, an adult person is himself or herself competent to give the consent, and no consent of the wali is necessary. If a party is not competent to enter into a contract, either on account of infancy, or insanity, then the consent of the guardian for marriage is necessary. The Shafii law, on the one side, insists that consent to marriage must be given by the girl herself, the wali merely communicates that consent; on the other, it insists that the girl, even though adult, cannot herself convey the consent—it must be conveyed through the wali. The Malikis also take this view. It appears that according to these schools, a female is emancipated only on her marriage. A Shafi virgin adult girl can contract a valid marriage without the consent of her father or a wali. Among the Hanafis and the Shias, an adult woman can herself contract a valid marriage; she may, as well, choose to marry through her wali.

Thus, the offer and acceptance of the offer in one and the same meeting are the only essential element of formality of marriage. It may be oral or it may be in writing. But Muslim law does not insist on any type of writing or any religious ceremony. Even Mulla is not needed. Nor is the presence of Kazi mandatory.

Registration of Marriage - The registration of Muslim marriages in India is not compulsory. In some States, statutes exist under which facilities for voluntary registration of marriages are provided.

Presumption of Marriage

In Muslim Law, presumption of marriage arises in the following three cases :

(i) When prolonged continual cohabitation is established between the parties as husband and wife, who have no legal impediment against their marriage;

(ii) When the man acknowledges the woman to be his wife;

(iii) When a man acknowledges a child as his legitimate offspring, then a presumption of valid marriage between the man and the mother of the child arises.

Guardianship in Marriage

Under Muslim law, a person below the age of puberty, or a person of unsound mind, has no capacity to enter into a marriage contract without the consent of his or her father, or, in the absence, of his or her guardian in marriage. If the minor possesses understanding (ruhd), then a minor's contract without the consent of the guardian is not void, it is valid; subject to the ratification by the guardian. The Muslim law-givers are unanimous that a person of male sex, who has attained the age of puberty, and who is of sound mind, can enter into a valid contract of marriage without the consent of the guardian; but they are not unanimous whether an adult girl of sound mind can marry without the consent of her guardian. The Hanafis hold the view that the guardian's power of giving the child of both sexes in marriage comes to an end when the child attains the age of puberty (bulughyet). According to the Hedaya. "It is not lawful for a guardian to force an adult virgin into marriage. None, not even a father nor the sovereign, can lawfully contract a woman in marriage who is adult and of sound mind without her consent, whether she be a virgin or not." The Shias also hold the same view. According to the Maliki and the Shafii schools, the father's power over female children does not come to an end till they are married, since these schools hold the view that it is the marriage which alone emancipates a female child from the patria potestas of the father. Ameer Ali remarks : "This harsh doctrine, however, does not appear to be enforced in any community following the Maliki or the Shafii tenets." The Kerala High Court has held that the marriage of an adult Shafii girl without the consent of her father, or any other guardian in marriage, is valid. Raghavan, J. observed that the authority of the father or grandfather to act as a guardian of a Shafii girl ceases when she becomes competent to contract, and, therefore, the guardianship in marriage ceases when the girl attains puberty. Pillai, J. puts it more neatly : "Marriage among Muslims being a contract and the contracting parties being the husband and the wife, the consent contemplated in the Shafii sect is that of the wife and not the father or grandfather or any other person who acts as wali at the time of marriage. The person, who acts as wali, merely communicates the consent of the wife to the kazi who conducts the marriage and the husband." It is submitted that this view is not only in consonance with the basic concept of Muslim marriage, but also accords well with the modern social conditions.

Only an adult Muslim of sound mind can be a guardian for marriage. It is doubtful whether the Caste Disabilities Removal Act, 1850, has removed the disability of a Muslim guardian who converts to some other religion. In all the schools of Muslim law, so long as the father is alive and fit, he is the sole guardian and no one else can act as the guardian. The various schools of Muslim law do not agree as to who is guardian after the death of the father. With the exclusion of the Malikis, all the other schools agree that an executor cannot act as a guardian in marriage. According to the Sharya-ul-Islam, an executor has no power to act as the guardian in marriage even if expressly authorized to do so by the will, though he may contract in marriage an adult person who is deficient in understanding. Among the Hanafis, after the father, the guardianship in marriage passes to his agnates, nearer being preferred. Imam Muhammad holds the view that in the absence of the agnates, the maula (successor by contract) has the right of guardianship in marriage. After him comes the rules or the judge who may delegate his authority to any person.

The Shias hold the view that after the father, the guardianship belongs to the grandfather, and after him, no relation is entitled to act as the guardian. Under the Shafii school, after the father, the guardianship belongs to the father's father howsoever high then to the son (by a previous marriage), then full brother, the nephew, the uncle, the cousin, the tutor and the kazi. No female is recognized as the guardian in marriage by the Shafts. After the father, the order of guardianship, among the Malikis, is as follows: the son, the father, the full brother, the consanguine brother, the nephew, the paternal grandfather, the paternal uncle, the cousin, the manummitter, and the kazi. They also do not confer guardianship in marriage on any female.

In those cases where a wali improperly refuses to give his consent, or altogether withholds it, the minor child may approach the kazi for the sanction of marriage, and either kazi himself may give the required consent or he may authorize the next wali to do so. Improper refusal to give consent by the wali is considered to be an act of oppression. Where a minor has no wali, and there is no kazi who may be approached, then, the minor is free to contract marriage. But, if the dower is small, or the man is not equal to her, the marriage is void, though she may ratify it on attaining majority.

Where a guardian in marriage is incapacitated to exercise the right of giving the child in marriage on account of mental illness, or because, he has become a ghibat-ul-munkata,^ or he has been sentenced to a long term of imprisonment, then the next wali, in order of guardianship, may give the child in marriage. When a minor child has two guardians equal in degree, e.g., two paternal uncles, then the marriage contracted by anyone of them is valid. If both have arranged the marriage with two different persons, then the contract prior in time will be void. If both the contracts are contemporaneous, then both of them will be inoperative, till the child on attaining majority, declares anyone of them as first. A marriage contracted by a remoter guardian in the presence of a nearer guardian is not invalid, the nearer guardian may ratify it, otherwise the marriage will be invalid. But the right of ratification or cancellation of marriage by the guardian may be lost on account of his latches, such as on the birth of a child of the marriage.

When a minor is married by a guardian, other than the father, or the grandfather, the minor has the right of repudiation of marriage on attaining puberty; this is known as option of puberty (khyar-ul-bulugh). When the child is married by the father or grandfather, then, too, the child can repudiate the marriage but only in certain circumstances.

Capacity to marry

Under Muslim law, every male, who is of sound mind, and who has attained the age of puberty, is competent to contract a marriage. The presumption is that, a minor attains the age of the puberty on the completion of the age of fifteen years. This provision should be read subject to the provisions of the Child Marriage Restraint Act, 1929, which makes it an offence for any male, who has not completed the age of 21 to marry. As has already been stated, a male child who has not attained the age of puberty, or who is of unsound mind, can be contracted into marriage by his guardian in marriage. The Child Marriage Restraint Act, 1929-1978, allows the marriage of girls who have attained the age of 18. However, there are some minor variations among different schools. Except the Maliki and the Shafii schools, the two other schools of the Sunnis, and all the schools of the Shias, confer capacity to marry a girl who has attained puberty, and who is of sound mind.

A girl, who has not attained puberty, or who is not of sound mind, can be contracted into marriage by her wali. The Shafiis take the view that a girl, even though major, cannot marry without the consent of the wali. The Malikis hold that an adult thayyaiba is free to contract her marriage, but an adult virgin is not. Our courts have dissented from this view, and held that a Shafii or a Maliki major girl, whether virgin or non-virgin (thayyiba), has capacity to marry herself Thus, it is submitted that under Muslim law in modern India, a girl, who has attained the age of eighteen, has the capacity to contract her marriage without the consent of the wali. A marriage of a Muslim male of that age, too, will be valid in India, since the Sharda Act does not invalidate that marriage of a male below 21 years, though it provides punishment for those persons who perform, conductor direct such a marriage, and for the parent or guardian who is in charge of the minor. All legislation with regard to child marriage have been replaced with the Prohibition of Child Marriage Act, 2006, which is a secular law. It is submitted all child marriage would be governed by this law now. Following the new Act, it has been held by Madras High Court that preventing marriage of Muslim girls below the age of 18 years is not against religious rights of Muslims. It enables all girl children to get proper education and empowerment and equal status as men in society. (M. Mohammed Abbas v. The Chief Secretary, Government of Tamil Nadu, AIR 2015 Mad. 237.)

Inter-sect and inter-religious marriage.—In Muslim law, there is no prohibition of inter-sect marriages, and the Muslims belonging to any sect can inter-marry. Such marriages are perfectly valid, and does not imply any change of sect or school on the part of either party. The Shias are very strict as to inter-religious marriages. Under the Shia law, the marriage of Shia male, or female, with a non-Muslim is null and void. The Sunnis do not adopt such a rigid attitude. They take the view that a Muslim male can validly contract a marriage with a kitabia, but not with an idol-worshipper or a fire-worshipper. The word "kitabia" means a person who believes in a holy book containing revelations. The Christians and the Jews fall under this category, but not Sikhs. It appears that if a Muslim male marries a Christian woman, he can do so only under the Indian Christian Marriage Act, 1872, since that law requires that if one of the parties to the marriage is Christian, then the marriage must be solemnized under that law. This means that the marriage must be solemnized in the presence of a marriage registrar, otherwise, it will be void. It is submitted that in such a case, the marriage, will be a Christian marriage, unless the Muslim formalities are also complied with. Even then, to such a marriage, the provisions of the Indian Divorce Act, 1869, will be applicable, which means that such a marriage can only be dissolved thereunder. Thus, even if a husband pronounces talak on his wife, dissolution of marriage will not take place. Although a Hanafi male is not allowed to marry, a fire-worshipper or an idolatress, the considered view seems to be that such a marriage is not valid, but merely irregular. A Muslim female belonging to any school of the Sunnis is not allowed to marry a non-Muslim, whether a kitabia or a non-kitabia. Mulla, however, holds the view that the marriage of a Sunni female with a non-Muslim is not void but merely irregular.

 Fyzee considers it to be .an inaccurate statement of law, and, citing authority of the Koran, holds the view that such a marriage is void. A Muslim female cannot also enter into a valid marriage with a Christian under the Christian Marriage Act, 1872, since S. 88 of that statute lays down that a marriage which is forbidden by the personal law of either party will not be valid by virtue of any of its provisions. A Muslim, male or female, can perform a valid marriage with a non-Muslim under the provisions of the Special Marriage Act, 1954. But then, such a marriage will be civil marriage, and all the provisions of the Act will apply to such a marriage. Succession to the property of such persons will be governed by the Indian Succession Act, 1925.

Degrees of Prohibited Relationship

Under Muslim law, various categories of prohibited relationships are laid down, in violation of which two persons are not permitted to marry each other. These are : (i) consanguinity, (ii) affinity, (iii) fosterage, and (iv) unlawful conjugation.

The first three are absolute impediments to marriage and render it batil, null and void; while the last is a temporary impediment and renders the marriage fasid (irregular). On the prohibited relationship, the Koranic verses run thus, "Marry not women whom your father have had as wife (except that is already past) for this is an uncleanliness, an abomination, and an evil way". "We are forbidden to marry your mothers, your daughters, your sisters, and your aunts, both on the father's and on the mother's side; your brother's daughters and your sister's daughters; your mothers who have given you birth and your foster-sisters; your wife's mothers; your step-daughters born of your wives with whom you have cohabited", "You are also prohibited to take to wives two sisters (except what is already past), and to marry women who are already married".

Consanguinity—The prohibition on the ground of consanguinity is a prohibition to marry some of the blood relations, the Muslim law-givers reckon the prohibition from the male's side. The relations with whom a Muslim male is absolutely prohibited from marrying (violation of which renders the marriage null and void) are: (a) his mother or his grand-mother how highsoever, (b) his daughter or grand-daughter how lowsoever, (c) his sister, full, consanguine or uterine, (d) his niece or great-niece how lowsoever, and (e) his aunt or great-aunt both on father's side and mother's side how highsoever. The expressions "how highsoever" and "how lowsoever" means ascendants of any degree and descendants of any degree. For example, one cannot marry his mother, mother's sister, father's sister, or father's father's father's sister, and so on. Similarly, one cannot marry one's brother's daughter, brother's daughter's daughter, or brother's daughter's daughter's daughter. In some cases, these degrees of ascent or descent are reckoned on both sides. Thus, one cannot marry one's father's sister as well as mother's sister or ascendants through them. The prohibition on the ground of consanguinity is identical in all the schools of the Sunnis and Shias.

Affinity—The prohibition on the ground of affinity relates to prohibition of marrying certain persons, relationship with whom arises on account of marriage. The peculiarity of this doctrine is that all the schools of Muslim law both the Sunnis and the Shias, with the exception of the Shafi schools, hold the view that relationship by affinity comes into existence, not merely when a marriage is valid, but also when it is invalid. Not merely this, relationship comes into existence from an adulterous connection, and a person is prohibited from marrying all\ relations of the woman with whom the relationship by affinity would have arisen had he married her. The Shafis do not subscribe to this view, and the prohibition of affinity does not arise on the basis of adulterous relationship. The Shias, on the other hand, go a step further, and hold the view that a perpetual prohibition arises by any of impudicity between two adolescent youths.^ All the schools of the Shias and the Sunnis agree that, once a valid marriage is contracted, the prohibition by affinity, arises even though the marriage has,not been consummated.

The prohibited relations on the basis of affinity are : (i) one's wife's mother or grandmother how highsoever, (ii) one's father's wife or father's father's wife how highsoever, (iii) one's wife's daughter or grand-daughter how lowsoever, and (iv) one's son's wife or son's son's wife how lowsoever. The rule is also applicable to women. Thus, a woman cannot marry her daughter's husband, or daughter's daughter's husband how lowsoever. The prohibited relationship with wife's daughter, or wife's daughter's daughter, arises only if the marriage is consummated. A marriage entered into in violation of the rule of affinity is null and void.

Fosterage—All Schools of the Sunnis and the Shias agree that prohibited relationship arises on the basis of fosterage, but they differ in detail. The Shias take the view that foster relationship arises only when the child has been actually nourished at the breast of the foster-mother; in that case all prohibited relationships arise as they arise on the basis of consanguinity or affinity. The Sunnis do not go to that extent. They permit a marriage with the following foster relations: (a) Marriage of the father of the child with the mother of his child's foster-mother, (b) With her daughter, (c) The marriage of the foster-mother with the brother of the child whom she has fostered, and (d) The marriage with the foster-mother of an uncle or aunt.^ The prohibitions arising out of consanguinity, affinity and fosterage are applicable to both man and woman.

Relative Impediments

Under this head, we would discuss those impediments which render a marriage, either irregular or does not affect its validity at all, the impediments being of a recommendatory or moral nature. The relative impediments are : (i) prohibition-on the basis of unlawful conjugation, (ii) prohibition from marrying a woman undergoing idda, (iii) a marriage performed in violation of the doctrine of equality, (iv) marriage while on pilgrimage, and the like

Unlawful conjugation.—The prohibition of unlawful conjugation lays down that a man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either had been a male, they could not have lawfully intermarried. Thus, a person cannot marry two sisters or an aunt and her niece. The Shias permit a marriage with wife's aunt, but one can marry one's wife's niece only with the wife's permission. The rule of unlawful conjugation applies only when the first marriage subsists. Thus, if one had divorced his wife, then one is free to marry one's wife's sister or wife's aunt. The predominant view is that under the Sumi law, such marriages are not void, but irregular, though Fyzee complains that this is so by judicial legislation, otherwise in accordance with the Koran, such marriage should be void. It is submitted that the decisions holding such marriage as irregular are in consonance with the spirit of Muslim law which leans heavily against illegitimacy. If such marriages are considered to be irregular, the children will be legitimate, otherwise they will be bastards. Under the Shia law, marriages in violation of rule of, unlawful conjugation are void.

Marriage with a woman undergoing idda.— The Muslim law lays down that when a marriage is dissolved by divorce or death, the woman must wait for some time before she can remarry. The period, during which she is prohibited for remarrying, is known as idda. The abstinence from remarrying is imposed with a view to ascertaining the pregnancy of the woman, so as to avoid confusion of paternity. The different periods of idda are provided depending upon the manner in which the marriage is dissolved. Thus, when a marriage is dissolved by divorce, the woman must perform idda of three menstruation courses, if she is subject to them, if not, of three lunar months. If it is found that she is pregnant, then the period of idda continues till she delivers the child. But if the marriage has not been consummated, she is not bound to observe any idda and is free to remarry immediately. When the marriage is dissolved by death of the husband, the wife is to observe idda, whether the marriage is consummated or not, for a period of four lunar months and ten days. If the woman is pregnant at the time of the death of the husband, then the period of idda is four lunar months and ten days, or until delivery, whichever period is longer. The period of idda commences immediately from the day the marriage is dissolved, even though the woman may come to know of the divorce or death of the husband later on. And if she comes to know of it only after the termination of the period of idda, she need not perform any idda. Muslim law lays down that one should not marry a woman who is undergoing idda. Not merely the woman is prohibited from marrying during the period of idda, even the husband of the woman cannot remarry during the period she is undergoing idda. It is a settled view that a marriage performed during the period of idda is not void, but merely irregular. But under the Shia law, such a marriage is void.

Marriage in violation of doctrine of equality.—The doctrine of equality in marriage reflects the Koranic enjoinment that all Muslims are brothers. In the family law, it means that marriage should be between two equals.

The Hedaya lays down: "cohabitation, society, and friendship cannot be completely enjoyed excepting by persons who are each other's equal...... as a woman of high rank and family would abhor society and cohabitation with a mean man; it is requisite, therefore, that regard be had to equality with, respect to the husband, that is, the husband should be equal of the wife."

In Muslim law, this principle has come to mean that the man should be equal to woman, though the woman need not be equal to man, since, it is asserted, that the husband can raise her to his own rank.

The Hanafi law lays down several conditions of equality, such as the family must be equal, the man should be free, Muslim, of good character and good means.

 According to the Malikis and the Shias, only two conditions are necessary, viz., the man should be a Muslim and should have ability to maintain his wife. In its application to modem conditions, how far the doctrine of equality can be applied, is doubtful. If a minor has been married to a totally unsuitable person, then, in certain cases, the minor has the opinion of repudiating the marriage on attaining majority. But if an adult marries herself to an unequal person, it is submitted that no court of law in India can annul such a marriage. Ameer Ali opines that if a woman were to contract a runaway marriage with a servant of the family, then such a marriage would be annulled on an application from the wali. It is submitted with great respect that this cannot be so even if the girl happens to be a princess or a daughter of a great industrialist. Fyzee also seems to support Ameer Ali's view. According to him, the rule may be formulated thus : "Where a woman, being of age, contracts herself in marriage with a man who is not her equal (ghayr kuf), without the consent of any of those male relations who would be entitled to be guardians of her marriage (wali) if she were a minor, the court on the application of such relations has the power to rescind the marriage."'' This is rather a peculiar position, if the so-called wali (there is no wali of an adult in the Hanafi law) does not file proceedings, such runaway marriages will be valid. Thus, the custodian of equality is the so-called wali. It is submitted that no court of law in modem India will hold such marriages invalid. However, there is a possibility of developing law of annulment of marriage on the basis of this doctrine in another direction. The doctrine of equality should apply to physical capacity. If either party turns out to be impotent, then the other party-'should have a right to get the marriage annulled. But then, it should be clear, it is submitted that the right of getting the marriage annulled belongs to either party to the marriage and not to the so-called wali.

Other impediments.—The Ithana Ashari and the Safii laws lay down that a person, who is on a pilgrimage, should not marry. For example, a person enters the sacred precincts of the Kaba in pilgrim-dress, finds another woman there and marries her, the marriage will not be valid. It is submitted that such a marriage cannot be declared null and void by any Indian court. Muslim law prohibits a man from remarrying the woman whom he had already divorced by the triple talak, unless the woman marries another man, the marriage is actually consummated with him and, then he divorces her. A marriage in violation of this rule is invalid.

Proof of marriage by acknowledgement.—When in a trust deed executed by late Nizam, certain ladies at one place were called "wives", at another place "ladies of position", this could not be considered as a valid proof of marriage by acknowledgement.

Chapter 5 - Mahr (Dower)

Muslims perfected the concept of sale and found it more convenient to express many of their transactions, including marriage, in the language of sale. It was in that sense though historically correct, yet conceptually imprecise that mahr is defined as consideration for marriage. Historically, the idea of sale is latent in the law of mahr.

In the Pre-Islamic Arabia, two forms of marriage prevailed. In the beena form, the wife, on marriage, did not accompany her husband to his home, but continued to remain in her own home, where the husband visited her. In this form, it was customary to give, on marriage, a gift to the wife. This gift was known as sadaq, and the wife was known as sadaqi, (a woman friend, not a girl friend).

In the other form, known as baal marriage, the wife, after marriage, accompanied her husband to the matrimonial home set by him, and the husband in consideration of wife's leaving her parents' home paid some amount to her parents. This amount was known as mahr, and was, therefore, likened to bride-price. The baal form of marriage is akin to Hindu asura marriage. When Islam spread in Arabia, the Prophet reformed the law of marriage.

Combining 'sadaq and mahr', the Prophet redeemed the marriage from the bride-purchase notion. Sadaq-mahr became a sort of marriage settlement, where the amovint was not paid to the wali (guardian in marriage) but to bride herself. In Muslim law, there is nothing like matrimonial community of goods or property, and no dot or marriage portion, the dowry in the western sense. Mahr is something in the nature of a nuptial gift which a Muslim undertakes to make to the wife. It is inherent in the Muslim concept of marriage. In this sense, mahr is an integral part of Muslim marriage. The Muslim jurists also used it as a sort of deterrent to the husband's absolute power of pronouncing divorce on his wife. But, as Tahir Mahmood says, it is possible that a very low amount of mahr coupled with the husband's arbitrary freedom to pronounce divorce may prove disastrous for woman; but an exorbitant mahr, coupled with a pre-marriage stipulation curtailing man's right to dissolve the marriage, might play havoc with men.

Mahr: Definition

Mulla defines it (is submitted erroneously) as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage". Why the Muslim law-givers use the expression "consideration", Mahmood J. explained it thus ; "mahr has been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Muslim jurists are accustomed to refer to by way of analogy".

It is submitted that Abdul Rahim correctly and succinctly defines it thus : "Mahr is either a sum of money or other form of property to which the wife becomes entitled by marriage. It is not a consideration proceeds from the husband for the contract of marriage but it is an obligation imposed by the law on the husband as a mark of respect; for the wife as is evident from the fact that non-specification of dower at the time of marriage does not affect the validity of marriage." Thus, dower is an integral part of marriage. It is inherent in the Muslim concept of marriage. The amount of mahr may be settled before marriage, or at the time of the marriage; it may even be settled after the marriage. When it is fixed ' by mutual consent after the marriage, it is known as mahr-i-tafweez; when the amount is settled by arbitrators or the Judge, it is known as mahr-i-takkin. The amount of mahr may be increased after the marriage. In those cases where mahr is not settled, the law implies it; the proper mahr will be, nonetheless, payable by the husband to the wife. Such is the importance of, mahr in Muslim law of marriage that a stipulation in the marriage contract before its solemnization that the wife abandons all her rights to dower is invalid and inoperative, and the wife will be, nevertheless, entitled to proper dower. But a wife, who has attained puberty, may remit the whole or part of the amount of dower in favour of her husband or husband's heirs.

Dower, dowry and kharch-i-pandan.—Dower should not be confused with dowry and kharch-i-pandan. The Dowry Prohibition Act expressly excludes mahr from the definition of dowry. But, it seems that, this exception was enacted in view of the prevailing definition of mahr, i.e., mahr is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage. As we have submitted earlier that this is not so. The mahr being an integral part of Muslim marriage, it is paid as a mark of respect to the wife. It is also not a sum of money which is received by a Muslim wife on dissolution of marriage under any customary or personal law obligation within the meaning of Section 127(3)(b), Criminal Procedure Code. In this view, mahr cannot be covered under definition of dowry even if the exception is not enacted imder the Dowry Prohibition Act, 1961.

The term mahr is also different and distinct from another term in Muslim law, kharch-i-pandan or mewa khori. The kharch-i-pandan or mewa khori is a personal allowance paid by the husband to the wife among the Muslims of rank. At times, it is stipulated in the marriage contract. When the parties are minors, the contract is entered into by the parents of the parties, and the wife as a beneficiary can claim, it in a court of law.

Quantum of Mahr

Since mahr is an integral part of Muslim marriage, it may be fixed by an agreement between the parties; in case it is not done, it will be determined by operation of law. In the former case, it is known as specified dower, and in the latter case, proper dower. With the exception of the Hanafis and the Malikis, among whom a minimum amount (though not maximum) of dower is laid down, Muslim law-givers do not fix any minimum or maximum amount of mahr. The Hanafis fix the minimum amount at ten dirhams and the Malikis at three dirhams. In India, the value of ten dirhams is between Rs. 3-4. Thus, the minimum of mahr in both schools is nominal. The peculiar feature of Muslim law of mahr is that no maximum amount of mahr is prescribed, and, therefore, a husband is free to fix any amount of mahr, even though it is beyond his means or ability to pay or earn. Whenever a claim is made to enforce the payment of the amount of the dower, the court ordinarily awards the entire amount stipulated in the contract. Sometimes, with a view to preventing the husband from divorcing his wife, the amount of mahr is deliberately fixed very high. The husband cannot plead in equity and say by way of his defence, that the amount is too excessive and beyond his means. Mahr need not be a sum of money; any type of property can be conferred by way of mahr. Anything, which falls within the meaning of mal, and has value, may, according to the Hanafi law, form the subject of dower. Even instructions in the Koran may be the subject-matter of mahr. It may, on the other hand, be immovable property, land or house. Usually a written deed of mahr known as mahr-nama is executed; but no deed is necessary. It has been earlier stated that when dower is fixed by a contract between parties, it is known as specified dower; when dower arises by operation of law, it is known as proper dower.

Specified Dower

The amount of dower may be fixed by mutual agreement between the parties to the marriage. The amount of the dower may be fixed by the father if the son is minor or of unsound mind. Among the Sunnis, the rule is that the dower as fixed by the father, is binding on the son; and the father has no personal liability to pay it. He is not liable as a surety or in any other capacity. But among the Shias, the rule is that if the son has no means to pay it, the father is liable. Under the Ithna Ashari law, a woman, who has attained majority, and is not of weak or facile disposition, may validly agree not to receive any mahr. Under the Hanafi law, the wife in every case is entitled to receive the minimum amount of mahr, viz., ten dirhams, even if she has agreed to receive less. Under the Shia and the Shafi law, the wife agreeing to any amount (even less than ten or three dirhams) is not entitled to an amount more than what is fixed, unless the amount is destitute of any value. Sometimes, it happens that for the purpose of glorification of the husband, a large sum of dower is announced in public, but in private, a moderate amount, in accordance with the means of the husband and the status of the wife, is fixed. In such a case, the dower fixed in private is the real dower and that alone can be realized. The specified dower is usually in two parts : (i) prompt dower, and (ii) deferred dower.

Prompt and deferred dower—The prompt is payable immediately after marriage at any time on demand by the wife, while the deferred amount is payable at such time, or on the happening of such contingency, to which it is deferred; but in every case, it is payable immediately on the dissolution of marriage, by divorce or death of either party. Ordinarily, which part of the dower is prompt and which is deferred, is fixed in the contract or in mahr-nama or in kabilnama. It is usual to fix half of the amount as prompt and the other half, as deferred. But there is no hard and fast rule. It is customary to pay the prompt dower immediately on marriage, or, in any case, at any time thereafter, on the demand of the wife. Parties are also free to stipulate the immediate payment or postponement of the whole of the dower. When at the time of marriage, it is not specified as to which part of the dower is prompt and which part is deferred, the Shias take the view that the whole of the amount is prompt. Among the Sunnis, the rule is that one part should be treated as prompt and the other part as deferred. The Madras High Court takes the view that irrespective of the fact whether the parties are Shias or Sunnis, in the absence of any specific contract, the entire amount should be presumed to be prompt. A Full Bench of the Lahore High Court held the view that the matter may be determined on the basis of usage or custom in wife's family : in the absence of usage or custom, the presumption is that one-half is prompt and the other half deferred. It is also possible that the proportion may be different in different cases. According to the High Court of Bombay, even when the parties are Hanafis, the court has power to award the whole of the dower as prompt dower.

The basic distinction between the prompt and deferred dower is this : the prompt dower is realizable and payable at once after the solemnization of marriage; and the wife can refuse all conjugal rights to the husband till her prompt dower is paid. On the other hand, the deferred dower becomes payable on the expiry of the specified period, or on the happening of the specified contingency, to which it is deferred, and in every other case, it becomes payable on the dissolution of marriage by divorce or death of the party.

The Hedaya is specific on this : "The wife has the right to deny her person [to her husband] or to go on a journey with him until she receives the dower. Her right in the consideration is the same as that of her husband in the object of the consideration [his conjugal right over her person] as in sale. The husband has no power to prevent her from travelling or going out of his house and visiting her friends until he has paid the whole eligible dower, because the right of restraint is given to a person who has right, and he has not the right to secure fulfilment before rendering fulfilment (himself). It is a settled law in India that a wife, who has not been paid her prompt dower, has the right to refuse to live with her husband, or admit him to sexual intercourse, and if the husband sues for restitution of conjugal rights, his suit will not succeed. But if consummation of marriage has taken place, then the suit for restitution cannot be dismissed on the ground of non-payment of prompt dower. Abu Yusuf and Imam' Muhammed, regarding the surrender of the wife to her husband as bearing an analogy to delivery of goods in sale, held the view that the lien of the wife for her dower as a plea for resisting cohabitation ceased to exist on consummation. In view of this, in Abdul Kadir v. Salima, (1886) 8 All 149, Mahmood J. observed "after consummation of marriage, non-payment of dower, even though eligible, cannot be pleaded in defence of an action for restitution of conjugal rights; the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in a separate suit." Mulla, it is submitted, rightly says that in such a case decree for restitution of conjugal rights should be passed conditional on payment of prompt-dower.

Proper Dower

When the amount of dower is not fixed under the contract, then the wife is entitled to proper or customary dower (mahr-i-misl or mahrul-mithl). The wife is entitled to proper dower even if she has contracted out the dower totally. The law in this regard is the same in both sects of the Muslims. "The mahr-i-misl of a woman is regulated by a regard to the nobility of her birth, the beauty of her person, and the custom of her female relations". "In fixing the amount of the mahr-i-misl regard, must be paid to local customs, with special reference to the dower of the woman who are equal of the female in question, in knowledge, lineage, wealth, understanding and such like." According to the Sunni authorities, the proper dower is to be fixed with reference to the social position of her father, and her own personal qualifications, and considering the amount of dower that has been given to her female paternal relations, such as consanguine sisters or paternal aunts. In cases where no examples are available from women of her father's family, the court would inquire about the customs among strangers occupying the same rank in life and under similar circumstances. It should be noted that in fixing the quantum of proper dower, the husband's social position or status is not the criterion.

Under the Shia law, the mahr-i-misl can never exceed 500 dirhams. In case either party dies before the consummation of marriage, and no dower has been stipulated in the contract, then the wife is entitled to no dower. She is not entitled to a present either.

If, at the time of marriage, fixation of mahr, has been left to the discretion of the husband, then he may fix any amount of mahr, but if it is left to the discretion of the wife, she cannot fix it at more than 500 dirhams.

It would, thus, appear that among the Shias, the mahr may be of three types : (a) the specified, mahr-i-musamma, (b) the proper dower, the mahr-i-misl, the dower of an equal, and (c) the dower on the basis of tradition, the mahr-i-sunnat, i.e., the amount of dower fixed for the prophet's daughter Fatima. This is also called sharh fatimi : in Indian currency it comes to Rs. 32.32.

Confirmation of Dower

According to the Hanafi law, the dower is confirmed, i.e., the wife becomes entitled to it, in any one of the following three circumstances;

(i) on the consummation of marriage, (ii) on the valid retirement, and (iii) on the death of either party, irrespective of the fact whether the marriage was consummated or not.

In any one of these circumstances, the dower vests in the wife, she may proceed to realize the prompt dower at once. The whole of dower, both parts, the prompt as well as the deferred, becomes her property and she may deal -with it in any manner she likes. She may make an assignment of the whole, or any part of it, as a specified debt against her husband. Once the dower is confirmed^ no forfeiture of it could occur, even on the ground of gross misconduct on her part, such as apostasy or adultery, or even when she murders her husband. Neither will it be lost when she dies, or is killed by her husband. On her death it will devolve upon her heirs.

Among the Shias and the Shafis, the dower is confirmed either on actual consummation of marriage or on the death of either party.

If the dower is not confirmed by consummation or valid retirement, and the parties separate, then, according to the Hanafis, the wife is entitled to half of the specified dower. If it is not specified, then she is entitled to a present only if the separation has taken place on account of the husband, but not otherwise. Thus, where the husband divorces an apostate or adulterous wife (in such cases the divorce is on account of the wife), she is entitled to only a present. When the wife is entitled to a present, the quantum of present depends upon the usage. Where the dower is settled after the marriage, and the parties separate before the consummation, then, again, the wife is entitled to a present only and to no portion of the dower. The Shias, in this regard, are in substantial, agreement with the Sunnis, but hold the view that in all cases of specified dower (whether specified before, at the time, or after the marriage), if separation takes place before the consummation of marriage, the wife is entitled to half of the dower. The Shias take the view that in those cases, where the dower is not specified and separation takes place before the consummation of marriage, the wife is entitled to a present, the amount of which is determined on the basis of the position and means of the husband.

Remission of Dower

The wife has the power of remitting the whole or a portion of the dower in favour of her husband or his heirs. Remission of dower is valid even if made without consideration, provided that the wife is adult and of sound mind. The High Courts of Patna and Madras hold the view that for the purpose of remission on the dower, the age of majority should be reckoned with under the Indian Majority Act, i.e., the wife should have completed the age of eighteen years. On the other hand, the Allahabad High Court is of the view that the age of majority is to be determined under Muslim law, and, therefore, a wife who has attained puberty, may validly remit her claim to dower. It is submitted that, on a strict interpretation of the provision of the Indian Majority Act, the Allahabad High Court's view is correct, but socially, the better view is that of the Patna and Madras High Courts. It is necessary that the remission of the dower must be made by the wife with her free consent, i.e., without coercion or undue influence. Thus, when she is in great mental distress, such as when her husband is on death-bed or had died, the consent cannot be said to be free. The wife also has the power of reducing the amount of the dower voluntarily. The remission of the dower may be conditional. Thus, in lieu of the dower, she may agree to receive any annuity. No acceptance of the remission of the dower on the part of the husband or his heirs is necessary.

Dower as a Debt : Its Nature and Enforcement

The amount of the dower is like any other actionable claim and may be recovered as such or assigned as such. In its nature it is a debt, but it is not a secured debt. It is like any other unsecured debt, and she must stand in the queue along with other creditors of the husband. The only difference that the Muslim law-givers recognize between the dower-debt and other debts, is this that if the wife is in possession of her husband's property, she can retain possession till her dower-debt is paid. Thus, the matter may be examined from two angles : (i) dower as a debt, and (ii) right of retention of possession of the husband's property.

Dower as a debt.—Dower is an unsecured debt which the wife or widow, or divorcee, can recover from her husband, when alive, or from his estate when dead. Not merely the widow has the right to recover the dower-debt, but, on her death, her heirs, too, can recover it. Similarly, the dower-debt can be recovered not only from the husband, but also, after his death, from his heirs. It has already been stated that when the prompt dower is not paid, the wife can refuse conjugal rights to the husband, and non-payment of the prompt dower is a firm defence against the husband's suit for restitution of conjugal rights. Not merely this, if on account of non-payment of the dower, the wife is living separately from her husband, he is bound to maintain her. Further, if the wife is a minor, then the guardian may refuse to allow the husband to take her to the matrimonial home, till the dower is paid. The wife can also file a suit against the husband for the recovery of her dower-debt.

It is obvious that the question of payment of the deferred dower can arise only after the dissolution of marriage, or on the happening of the specified contingency to which the payment of the deferred dower was deferred. Once her claim of deferred dower arises, she can recover it against the husband, or his estate, like any other creditor of the husband. In Kapoor Chand v. Kadar-unnissa, (1950) SCR 747. the Supreme Court laid down the following three propositions :

(a) the widow is like any other creditor of the husband and cannot, therefore, claim any priority for the dower-debt over other creditors; (b) the widow's claim for dower-debt has priority over the claim of heirs (but it seems, if she omits to put up her claim for dower and allows a person to take the amount of his legacy from the estate of the deceased husband, she cannot afterwards retract her assent);^ and (c) the heirs of the deceased husband are not personally liable for the dower-debt of the widow; the amount can be realized rateably from their share in the estate.

Dower as a charge.—Ordinarily, the dower is not a charge on the property of the husband, though one may be created by agreement,® or by a decree of a court. Whether court should create a charge by its decree is still not a settled question. It appears to be clear that if a court creates a charge on the husband's property by a decree, the charge is enforceable. Mulla opines that, although, it is within the competence of the court to create a charge, it should not ordinarily do so, as thereby the dower-debt gets priority over the debt of other creditors, and he, therefore, suggests that what the court should do, is to pass a simple money decree. It is submitted that the purpose of creating a charge is to give priority to the dower-debt over the unsecured debt of their creditors. In those cases, where the dower is not a charge on the husband's estate, it may be the only way to protect the interest of the widow, and, therefore, it is submitted, that the court's discretion should not be inhibited by any such consideration, but rather, the widow's interest should be the paramount consideration before it.

Right of retention.—Most text book writers discuss the subject under the title, "Widow's Right of Retention". It is submitted that the right of retention means that the woman, whose marriage has been dissolved, by death or divorce, has a right to continue to hold the possession of her husband's property till her dower-debt is satisfied. The right of retention of the possession of her husband's estate is not available to a wife during the subsistence of the marriage, unless she proves a contract under which she has acquired a right of lien or possession over her husband's property. In Maina Bibi v. Vakil Ahmad, (1924) 52 lA 145, the Privy Council explained the right of retention thus : the possession of property being once peacefully acquired, the right of the widow to retain it till her dower-debt is paid is conferred upon her under Muslim law. It is not exactly a lien, nor a mortgage. The widow, who holds possession of her husband's property until she has been paid her dower, has no interest or estate in the property as a mortgagee under an ordinary mortgage has. In this case, on the death of her husband in 1870, the widow, Maina Bibi, entered in possession of her husband's property. In 1902, some heirs of the husband filed a suit to obtain possession of their share. The widow, inter alia pleaded that her possession was in lieu of her dower in the exercise of her right of retention. In 1903, the trial court passed a decree in favour of the heirs on the condition that they paid certain sum of money together with interest to the widow towards her dower. No amount was paid to the widow, and she continued in possession of the property. In 1907, the widow made a gift of his property which was challenged by the heirs. The Privy Council held that the widow merely had a right of retention of possession till she was paid; she could not alienate or otherwise deal with the property. It is settled law that the widow must have come into possession of the property lawfully and without force or fraud. There is still some controversy whether the possession of the widow or divorcee (the wife) should be with the consent, express or implied, of the husband or the heirs. The controversy arises on account of certain observations made by the Privy Council in Hamira Bibi v. Zubaida Bibi, (1916) 43 lA 294. The High Courts of Calcutta, Patna and Allahabad held that the consent is necessary. On the other hand, the High Courts of Madras and Bombay held that such consent is not necessary. It is submitted that in view of the nature of the right of retention, the latter view is preferable. When the wife was- in possession of her husband's property during his life time, and continued to be in possession, after his death, the presumption is that she lawfully obtained possession and the consent of the husband is implied. If in mutation proceedings the name of the widow is entered into the Record of Rights with knowledge of the heirs, their consent will be implied. Once a Muslim widow or divorcee lawfully obtains possession, she has the right to retain it, until her dower-debt is satisfied. However, she is liable to account to those who are entitled to property, subject to her claim to profits received. It should be clearly understood that the right of retention does not her to remain in possession, and, if dispossessed, she can sue for the recovery of possession. In such a case, in respect of immovable property, the period of limitation is six months from the date of dispossession, and in respect of movable property, three years from the date on which she first learnt in whose possession the property was. The title in the property vests in the heirs, including the widow. The widow's right as heir should not be confused with her right of retention which is different and distinct from the former. As an heir, she has the rights and remedies of an heir, which are distinct from the rights and remedies of a widow whose dower has not been paid.

The implications of the right of retention are: (i) the widow is liable to render full account of all the income and profits, (ii) she has no right of alienation of the property, and (iii) her possession of the property in the exercise of her right of retention is not a bar to her suit for the recovery of the dower-debt.

(i) Liability to render full account.—It is a well established proposition of law that the widow or divorcee is liable to render full account of the rents and profits of the property received by her to those who are entitled to the property, the heirs in the former case, and the husband, in the latter case. She is entitled to compensation for forbearing to enforce her right of the dower-debt; such compensation is in the form of interest on the principal amount of the dower. The widow may give up her right of compensation. She has the right to satisfy her dower-debt out of the rent and profits of the property.

(ii) No right of alienation.—The right of retention does not confer on her any right of alienation, for value or gratuitously, for the satisfaction of her dower-debt or otherwise. However, if she makes an alienation, it will be valid to the extent of her share qua heir, as her husband's widow (we should remember that under Muslim law a widow is always an heir to her husband). Any alienation made by the widow cannot affect the share of other heirs, and to that extent, will be void. If an alienation is made by the widow, but she retains possession, such as when she executes a mortgage without giving possession, the other heirs have a right to get a declaration that the alienation is void, but they will not be entitled to the possession of the property; the possession will remain with the widow. But, if, with alienation, she hands over the possession to the alienee, the heirs get an immediate right of possession, and when they sue for declaration that alienation is null and void, they, immediately, on the passing of the decree in their favour, become entitled to possession. Possession cannot be restored to the widow, since she has voluntarily transferred it to the alienee. The heirs have the right of alienating their shares in the estate and if they alienate them, the alienation will be valid, but the alienee will take the property subject to the widow's right of dower-debt, and he cannot disturb her possession.

(iii) No bar to suit for recovery of dower possession,—The mere fact, that the widow is in possession of the estate of her husband, is no bar to a suit by her for the recovery of her dower-debt from the heirs of her husband. But in such a -suit, she must offer to give up possession in the event of a decree being in her favour. If a widow sues only for part of her dower, she cannot file a fresh suit for the recovery of the balance, since the implication is that by suing for a part she has relinquished her claim to the rest.

When right of retention is lost—

The right of retention is lost in the following three cases : (a) when from the income and profits of property her dower-debt is satisfied; (b) where she alienates the property together with possession to the alienee, the other heirs get a right to immediate possession of property; and (c) where she voluntarily hands over possession of the property to other heirs.

Widow's right of retention vis-a-vis other heir's rights—

The widow's right of retention of the possession of the property does not prevent the heirs from exercising their rights over that property; the heirs have a right to the recovery of possession of their respective shares of property. When even an heir files a suit for the recovery of the possession of his share of property, the court will pass a decree subject to his paying the proportionate amount of dower-debt within a specified period. Suppose, a decree is passed in favour of the heir, but, eventually, it is dismissed, as the heir did not pay the dower-debt. The dismissal of the suit, in such circumstances, does not create a bar of res judicata, or any other bar, for a subsequent suit for possession when the dower-debt is satisfied out of the rents and profits from the property. A decree obtained by the creditors of the heirs for possession, can also not be enforced so long as the widow's right of retention subsists. (Aminuddin v. Ramkhelawan, 1949 Pat 427.)

Right of retention : whether heritable.—The question, whether the right of retention is heritable and transferable, remains still unresolved. One view is that, since the right of retention is a personal right, it is neither transferable for value or gratuitously, nor it is heritable. (Hadi Ali v. Akbar Ali, (1968) 20 All 262.) The other view is based on the assumption that the right of retention is not a mere personal right, but is a property, and, therefore, it is both transferable and heritable. (Amir Hasan v. Mohammad, 1932 All 354; Beejibi v. Syed MooHija, (1920) 43 Mad 24; Majidmiyan v. Bibisaheb, (1916) 40 Bom 34; Sogia v. Kitaban, 1982 Pat 224; Rakija v. Sharifa, (1983) 1 MLJ 332; Hussain v. Rahim, 1954 Mys 24.)

In some cases, it has been held that the right of retention is heritable. Such cases leave open the question whether it is also transferable. In Ghouse Yar Jang V. Khenur Fatima, 1988 AP 315. the Court, dissenting from Lohair Ahmed v. Jai Nandan, 1960 Pat 47 took the view that right of retention is both alienable and heritable. A further question arises: can the right of retention be transferred independently of the dower-debt? In some cases, it has been held that the right of retention cannot be severed from the dower-debt, and, therefore, when the right of retention is transferred, the dower-debt also stands transferred.

Period of limitation.—The period of limitation for the recovery of dower-debt is three years. But if she is in possession of her husband's property, she can retain it, till her dower is paid and the period of limitation of three years will not apply. (Syed Yousauf v. Syed Mutuza, 1983 AP 225.)

Suit for Recovery of Dower

No petition or suit lies for the recovery of the sum of dower in the family court or in any civil court, but in the Magistrate's court under Section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986.

Chapter 6 – Dissolution of Marriage and Matrimonial Reliefs

The term faskh means annulment or abrogation. It could have been used in all those cases where an irregular marriage was avoided. The term has been given the meaning of dissolution or rescission of the contract of marriage by a judicial decree.

Unlike Hindu law, death dissolves a marriage under Muslim law. But on the death of her husband, a Muslim wife cannot re-marry before the completion of the period of idda. The reliefs available are : (I) Dissolution of marriage, (II) Restitution of conjugal rights, and (III) Declaratory suits and annulment of marriage.

I. Dissolution of Marriage

Despite the precept of the Prophet, "With Allah, the most detestable of all permitted things is divorce," in Muslim law of modern India, divorce in its uninhibited form is recognized. In Muslim law, divorce is placed in the category of permissible things, and divorce was considered to be the most despisable of the permissible things, yet this despisable thing has existed in abundance. Today, divorce is the largest aspect of Muslim matrimonial law. In Muslim law, dissolution of marriage takes place either on the death of either party to the marriage, or, at the instance of one of the parties, or both the parties. In Muslim law, divorce may be studied under the following three heads ;

(A) Unilateral divorce 

(i) at the instance of the husband, and

(ii) at the instance of the wife.

(B) Divorce by mutual consent.

(C) Judicial divorce.

In the former two cases, no decree of court or intervention of any other person, body, or authority is required.

Divorce in both these cases is essentially the private act of either one party or both the parties.

(A) Unilateral Divorce

At the Instance of the Husband: Talak

When the husband exercises the right of pronouncing divorce on his wife, technically, this is known as talak. The most remarkable feature of the Muslim law of talak is that all the schools of the Sunnis and the Shias recognize it; they differ only in some details.

The absolute power of a Muslim husband of divorcing his wife unilaterally, without any cause, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband pronounce talak", how he does it, when he does it, or in what manner he does it, is not very material. In Hannefa v. Pathummal, 1972 KLT 512 the judicial conscience of Khalid, J. was disturbed at this, and he dubbed it as a "monstrosity". Among the Sunnis, talak may be express, implied, contingent, constructive, or, even delegated. The Shias recognize only the express and the delegated talak.

Express Divorce and Its Forms

When clear and unequivocal words, such as "I have divorced thee" are uttered, the divorce is express. The express talak falls into two categories:

(i) Talak-ul-sunna (approved), and (ii) Talak-ul-badai or talak-ul-bidaat or talak-ul-bida (unapproved). This form of divorce has been rendered illegal by the Supreme Court in Shayara Bano and Ors. v. Union of India.

The talak-ul-sunna has two forms:

(a) ashan, and

(b) hasan

The former is most approved and the latter is approved.

The talak-ul-badai, also has two forms:

(a) the triple divorce or three declarations at one time, and

(b) one irrevocable declaration

The basic distinction between the talak-ul-sunna, and talak-ul-badai, is, that in the former case the pronouncement of divorce is revocable while in the latter, it is irrevocable. This seems to be the reason why the talak-ul-sunna is considered to be approved divorce, and the talak-ul-badai as unapproved.

Ashan Talak—The ashan talak consists of a single pronouncement of divorce made in a period of tuhr (purity, i.e., the period between mensturations), or, at any time, if the wife is free from mensturation, followed by abstinence from sexual intercourse during the period of iddat. The requirement that pronouncement of talak should be made during a period of tuhr applies only to oral divorce, it does not apply to talak in writing. Similarly, this requirement is not applicable when the wife has passed the age of mensturation, or the parties have been away from each other for a long time, or, when marriage has not been consummated.

The advantage of this form is that divorce can be revoked at any time before the completion of the period of idda; that hasty, thoughtless, divorces can be prevented. The revocation may be effected expressly, or impliedly. Thus, if before the completion of the period of idda, the husband resumes cohabitation with his wife, or when he says to her, "I have retained thee", the divorce is revoked. Resumption of sexual intercourse before the completion of idda also results in the revocation of divorce. It is this aspect of ahsan talak, viz., its revocability, which makes it the most proper divorce.

Hasan talak.—In the hasan talak, the husband is required to pronounce the formula of talak (i.e., the utterance of the words, "I divorce thee") three times during three successive tuhrs. If the wife has crossed the age of mensturation, then the pronouncement of talak may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement, is made, the talak becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during that period of tuhr. For instance, W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talak on her. This is first pronouncement. Thereafter, H resumes sexual intercourse with W, or revokes the pronouncement by express words. Then, again, when the wife gets the next period of purity, and before he indulges in sexual intercourse, H makes a pronouncement of divorce on her. This is second pronouncement. H again revokes it. Again, when the wife enters her third period of purity and before any intercourse takes place, H makes a pronouncement of divorce. This is third pronouncement. The moment H utters the third pronouncement, the marriage stands dissolved irrevocably, irrespective of idda.

The significance of the hasan form of talak can be understood only in the background of the pre-Islamic Arabian practice, under which pronouncement of divorce in one tuhr, followed by its revocation, and again a pronouncement followed by revocation could go on endlessly, leading to misery, harassment and humiliation of women. To put an end to this vicious practice, the Prophet laid down that the divorce will become final and irrevocable at the third pronouncement. To impose a further deterrent on this arbitrary practice, it was laid down that the parties were not firee to remarry unless the wife married another man who had actually consummated the marriage, and then divorced her. On the completion of idda, the woman could marry her former husband. This is a penal provision meant to chastise the husband who repudiates his wife thoughtlessly. No thoughts were wasted on the fact that it was a greater punishment and humiliation to the woman.

Talak-ul-bidda.—The Talak-ul-bidda came into vogue during the second century of Islam. Ameer Ali depicts the historical background thus : "The Omayyid monarchs finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of law and found a loophole to effect their purpose. The talak-ul-bidda has two forms: (i) the triple declaration of talak made in a period of purity, either in one sentence,' such as, "I divorce thee triply or thrice" or in three sentences, such as "I divorce thee, I divorce thee, I divorce thee", the moment pronouncement is made, marriage stands dissolved irrevocably, (ii) The other form of talak-ul-bidda constitutes a single irrevocable pronouncement of divorce made in a period of purity or even otherwise. This also results in the irrevocable dissolution of marriage. The triple pronouncement is not an essential part of the talak-ul-bidda, if the intention is clear, the divorce will take place. Thus, if a husband says to his wife, "I had divorced thee in talak-ul-bidda or talak-ul-bain form", that is enough, and an irrevocable divorce results.

This form of divorce is condemned. It is considered heretical, because of its irrevocability. The talak-ul-bidda which is "good in law though bad in theology" is the most common mode of divorce prevalent in India. In Khlemnissa v. State of U.P., Writ Petition No. 57 of 1993. Tilhari J., had held that triple divorce was unconstitutional, as it perpetrated male authoritarianism. The learned judge added that triple divorce was contrary to Articles 14, 15 and 21 of the Constitution of India and hence void. And finally a Full Bench decision rendered in Shayara Bano v. Union of India, AIR 2017 SC 4609 has declared this form of divorce and Parliament has been directed to enact a law in this regard.

Implied and Contingent Divorce

Implied Divorce

Sometimes the words used in the pronouncement of talak are not clear, for instance, when a husband says to his wife, "I give up all relations and would have no connection of any sort with you : or, I have released thee from being my wife"; in such cases divorce will be implied if the intention to divorce is proved. According to Ameer Ali, "The word talak in its different grammatical forms is regarded as express by other expressions which may be construed as meaning repudiation of the marriage by the husband, but are also capable of other meanings, are regarded as allusive. When express words are used no question can arise as to what was meant, but allusive words require construction".

Contingent Divorce

When a husband pronounces divorce so as to take effect on the happening of a future event, the talak is known as contingent, and it becomes effective on the happening of the event.

The Shias do not recognize the implied and the contingent talak.

Hamad All v. Imtiazan, (1878) 2 Bill 71. illustrates both the implied and the contingent talak. When the wife insisted on going to her father's house against the wishes of the husband, the husband said to his wife : "Thou art my cousin, my paternal uncle's daughter, if thou goest". Despite this, the wife left for her father's house. The words used by the husband constitute implied divorce, while the wife's going to her father's house constitutes the contingent event. The Allahabad High Court held that it amounted to divorce, though the court overlooked that in Muslim law paternal uncle's daughter is not within the prohibited relationship. It should be clearly understood that if talak is pronounced conditionally, or is made dependent on the happening of a contingency not impossible in its nature, the talak will be effective on the happening of that event. In Bashchoo v. Bismillah, 1936 All 387, the husband gave an undertaking in writing that he would pay her the amount of maintenance within the specified period, and that, if he defaulted in making the payment, it would operate as talak. On the husband's failure to pay the amount within the stipulated period, the court held that the writing took effect as a valid talak. But even among the Sunnis the repudiation cannot be qualified with an option. Thus, if a husband says to his wife, "I have divorced thee but I reserve to myself an option for three days". The talak will be valid, but option will be void.

Delegated Divorce (talak-i-Tafweez)

Talak-i-tafweez or delegated divorce is recognized both by the Sunnis and the Shias. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any person. He may delegate the power, absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable, but a temporary delegation of power is not. The delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. This has been thus illustrated by Ameer Ali : if a husband says, "Choose thyself or "Choose a repudiation", and if the wife answers, "I choose", or "I have chosen myself or "I have chosen a talak", it would be sufficient. But if he were merely to say, "Choose", and the wife replies, "I have chosen", this is not sufficient, and there is no talak.

The power of Talak may be delegated to the wife, and as Fyzee observes, "This form of delegated divorce is perhaps that most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India." This form of delegated divorce has been commonly used in pre-nuptial agreements. Once the husband in Kabinama unilaterally delegates unconditional power to wife to give him divorce ex parte and at her will, she can validly exercise the power to pronounce divorce.

In Md. Khan v Shahmai, 1972 J & K 8, under a pre-nuptial agreement, a husband, who as a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house. The husband left the house without paying the amount. The wife exercised the right and divorced herself It was held that it was a valid exercise of the power of talak delegated to her.

Delegation of power to divorce may be made even in the post-marriage agreements between the husband and the wife. Thus, where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the wife will have the right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy.'' It should be noted that even on the happening of the contingency or event stipulated in the agreement, whether or not the power is to be exercised, depends upon the wife; she may choose to exercise it or she may not. The happening of the event or the contingency does not result in an automatic divorce. The power so delegated to the wife, either under a pre-marriage or post-marriage agreement, is not recoverable by the husband. The wife may exercise this power after the husband has filed a suit for restitution of conjugal rights, and if she does so, it will result in a divorce.

In the talak-i-tafweez, though it is the person to whom the power is delegated who exercises the power of divorcing, the divorce in the eyes of the law is made by the husband. Thus, when a wife is delegated the power of divorce, and in exercise of that power she pronounces the divorce, the power is exercised on behalf of the husband who had delegated it to her, and, therefore, in law it is a talak of the wife by the husband.

Constructive Divorce : Ila and Zihar –

Two forms of constructive divorce have existed in Muslim law, Ila and Zihar. According to Abdul Rahim, "In some cases the conduct of the husband will have the effect of a repudiation, though he did not use the word talak or any other expression with the intention of dissolving the marriage. This is when he swears that he will have nothing to do with his wife and in pursuance of such oaths abstains from her society for four months. The legal effect of such a conduct would be a single irrevocable divorce. This form of divorce is known as Ila. The Shafis and the Shias hold that this does not result in talak, but merely gives the wife the right of judicial divorce. According to the Ithana Asharis, this form of divorce can be used only after the consummation of marriage. If the husband resumes intercourse with his wife, or has retracted from it before the expiry of the period of four months, the ila does not take place and stands cancelled. If the husband assents of ila after four months, then the cancellation will be valid only if the wife assents to it.

Zihar, on the other hand, is an inchoate divorce. In this "form, the husband expresses his dissatisfaction with his wife by comparing her with the back of his mother, or sister, or any other woman within the degrees of prohibited relationship. In such a case the wife acquires a right to refuse cohabitation with her husband till he performs a penance. If the husband refuses to perform the penance, the wife gets a right of judicial divorce. Among the Ithana Asharis, the declaration of divorce in zihar (the period of purity, i.e., when the wife is not in her mensturation course), sexual intercourse during that period having not taken place, Tyabji remarks that zihar has hardly any significance so far as the law courts in India are concerned; the words do not come naturally to Indian Muslims.

Formalities of Talak

No school of the Sunnis prescribes any formalities for talak. On the other hand, the Shias insist that divorce must be pronounced orally and in the presence of two competent witnesses. The specific formula of divorce must be pronounced. Shias do not require the presence of witnesses for marriage, but insist on the presence of two competent witnesses for divorce, while the Sunnis do not require any witnesses for divorce, though insist on the presence of two competent witnesses at the time of marriage. The Sunnis permit divorce in writing, too, but the Shias insist that talak should be oral, unless the husband is physically incapable of pronouncing it orally The IthanaAsharis also require that certain Arabic words must be used in the formula of divorce, though mispronunciation is tolerated, and vernacular is permitted if the husband does not know Arabic language. Among the Hanafis, the talak may be oral or in writing, so long as the intention is clear, no specific form is necessary Any words may be used.

Capacity

All schools of the Sunnis and the Shias agree that every Muslim male of sound mind who has attained puberty, may pronounce divorce. A minor has no capacity of pronouncing talak under any circumstances. It seems that under certain circumstances the guardian of a minor may pronounce talak on his behalf. The most curious aspect of the Hanafi law of talak is that a divorce pronounced under compulsion, or in a state of voluntary intoxication, or .to satisfy or please one's father or some other person, or in jest, is valid. (Ibrahim v. Enayetur, (1969) 4 Beng LR 13 (AC); Rashid v. Anisa, (1932) lA 21.)

The Fatwai Alamgiri puts it thus : "A talak pronounced by an adult and sane Muslim male is valid, even though pronounced under compulsion, or even when it is uttered in sport or jest or inadvertently by a mere slip of tongue". It is necessary that at the time of pronouncement of talak the husband must be awake. Ameer Ali observes that for the validity of a talak pronounced Under compulsion, three conditions are necessary ; (i) the compeller must be in a position to do what he threatens to, (ii) there is a strong possibility of threat being carried out, and (iii) the threat involves some imminent and serious danger to the man.

The Shia law does not recognize a divorce pronounced under compulsion, nor obtained by fraud, or given under influence. The Malikis and the Shafts also do not recognize a talak pronounced under compulsion or threat. Among the Hanafis, there is some controversy whether a divorce pronounced under intoxication is valid. In India, it seems to be the established view that talak pronounced under voluntary intoxication is valid. The Shafis seem to agree with the Hanafis. The Shias and the Malikis do not recognize a divorce pronounced under intoxication, voluntary or otherwise.

The Prophet once said that in three things, viz., marriage, divorce and manumission, "jesting is not allowed to dissuade from trifling with such solemn affairs of life". From this tradition a rule of law is deduced that a divorce pronounced in jest or sport is valid. The juristic principle on which this rule is founded is the hypothesis that divorce from the point of view of wife means restoration of her liberty. This is also the basis of the Hanafi doctrine of recognition of divorce under compulsion. The Shafis, the Malikis, the Hanbals and all the schools of the Shias, are against such divorce and do not accord recognition to it.

All schools of law agree that a talak pronounced by one who happens to be delirious, or in a faint, or a sleep, or unconscious, or lost in astonishment is invalid. A dumb person may pronounce divorce by signs, but if he is literate, he should do so in writing.

However, for pronouncement of divorce by husband under the Muslim law an effort to reconcile is not a pre-condition.

Return of benefit under contract of marriage –

Where a Muslim husband gives talak to his wife who is willing to live with him, and has no intention to break that marriage, the husband is liable to return the articles received from the wife at the time of marriage.

Divorce by Mutual Consent –

The Khul and the Mubaraa are considered by many as/species of divorce by mutual consent. But, as has been submitted earlier, it is proper to call khul as divorce at the instance of the wife. Since in mubaraa or mubaraat the aversion is mutual and proposal for divorce may emanate from either party it alone falls under the category of divorce by mutual consent. The word, "mubaraa" denotes the act of freeing each other by mutual consent.

In the words of Fyzee, "In the case of khul, the wife begs to be released and the husband agrees for a certain consideration, which is usually a part or the whole of the mahr, while in mubaraa apparently both are happy at the prospect of being rid of each other."

Among the Sunnis when the parties to marriage enter into a mubaraa, all mutual rights and obligations come to an end.

The Shia law is stringent. It requires that both the parties must bona fide find the marital relationship to be irksome. According to them, the mubaraa is a form of divorce which dissolves a marital bond which both parties find irksome.

Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. If the husband were to say to his wife, "I have discharged you from the obligation of marriage for such a sum, and you are separated from me", divorce would result.

Among both the Sunnis and the Shias, the mubaraa is an irrevocable divorce as in the talak-ul-bain. In the words of Al-Karkhi, "When the husband receives a compensation from the wife the divorce is bain and even when it is without compensation and consequently rajai (reversible at the option of the husband), if during the wife's idda he were to accept from her a compensation, the separation would be equally bain. The other requirements of the mubaraa are the same as that of the khul. Just as in the khul, so in the mubaraa the wife must undergo idda. In both the khul and mubaraa, the divorce is essentially an act of parties, and no intervention of the court is required.

Divorce at the Instance of the Wife

Under the Muslim law in modern India, a Muslim wife can seek divorce in the following three cases:

(a) when the power of divorce has been delegated to her by the husband, the talak-i-tafweez. Once the power is delegated to her, it is entirely on her to exercise it, or not to exercise it; when she exercises it, consent or dissent ofthe husband is immaterial,

(b) The khul or (Khula).

(c) The judicial divorce.

(a) Talak-i-tafweez (already discussed)

(b) The Khul- The word Khul or khula literally means "to put off. When a man or woman puts off his garments it is said that he or she has khul them. "In law it is laying down by a husband of his right and authority over his wife for an exchange".® The Fatwai Alamgiri puts it thus : "When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine law, that they cannot perform the duties imposed on them by the conjugal relationship, the woman can release herself from the tie by giving up some property in return, in consideration of which the husband is to give her a khula, and when they have done this, a talak-ul-bain would . take place".^ In an early case the Privy Council said : "A divorce by khoola is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of bargain are a matter of arrangement between the husband and wife, and the wife may, as a consideration, release her dyn-mohr and other rights, or make any other agreement for the benefit of the husband." Thus, when a wife desires a divorce, either on account of her aversion to her husband, or for any other reason, she may obtain a release from him by giving some consideration therefor which is usually her mahr, whole or part of it, or it may be some other property.

It appears that just as in talak so in khula, the husband must be a person of sound mind and must have attained puberty; the same is true for , the wife. A minor, or a person of unsound mind, has no capacity to enter into a khul. The khul may be entered into by any party or through an agent. Under the Hanafi law, the guardian of a minor wife may enter into a khul on her behalf. In such a case, the consideration will be payable by the guardian, and not by the wife. Even under the Hanafi school, the guardian of a minor husband cannot enter into a khul. It appears that under the Shia law, a minor or insane wife cannot enter into a khul. According to the Shafis, the khul is a personal right, and therefore, wife alone can enter into a khul on her behalf The Shias insist on a special form of khul and among them, khul given under compulsion is not valid. On the other hand, the Sunnis do not insist on any form. It appears that they recognize a khul obtained even under compulsion. All the schools agree that consent of the husband should be in a definite language. Thus, if a wife says, "Give me a khul in exchange of my dower", and the husband replies, "I do", a legal dissolution of marriage results. According to the Sunnis, the consent to Khul may be conditional or unconditional. An unconditional khul results in an irrevocable divorce as in talak-ul-bain. When it is conditional, it takes effect on the fulfilment of the condition. Among the Shias, the conditional khul is not recognized.

Although consideration for khul is essential, the actual release of the dower, or delivery of the property constituting the consideration for khul is not a condition precedent for the validity of the khul. Once the husband gives his consent to the khul, it results in an irrevocable divorce as in talak-ul-bain. The husband has no power of cancelling the khul on the ground that the consideration has not been paid. His remedy is to sue the wife for it.

The consideration for khul may be anything. Usually, it is the mahr whole or part of it. But it may be any other property, though it should not be illusory, i.e., something over which the woman has no right. If compensation is illusory, the Sunni law takes the view that the husband is not bound to release the wife. "Whatever is lawful as dower, or capable of being accepted as dower, may lawfully be given in exchange of khul." Since any consideration which is not illusory is valid, a khul may be entered into in consideration of a fraction of the dower. When this is so, and the wife has not received her mahr, then neither the wife can claim the balance nor can the husband claim the fraction. If she has received the mahr, then she must pay the fraction of the whole dower, if the marriage has been consummated; and if the marriage has not been consummated, then she must give the fraction of half of the dower. It is possible that the khul may be entered into on consideration to be determined later on. In such a case, consideration cannot be more than the amount of mahr unless the wife agrees. It cannot also be less than the amount of mahr, unless the husband agrees.

Among the Hanafis and the Ismailis, the khul divorce results in an irrevocable divorce as in talak-ul-bain. The Shaffis differ inasmuch as they do not require an intermediate marriage if the parties concerned want to remarry. The Ithana Ashari authorities differ among themselves whether or not the khul results in an irrevocable divorce. However, they agree that once the husband accepts the khul, he has no power of revocation, but the wife may at any time during the idda re-claim consideration, and if she does so, the husband may revoke the khul at his option.

According to all the schools of Muslim law, a proposal for khul made by the wife may be retracted by her at any time before it has been accepted by the husband. It also stands revoked, if before its acceptance, she raises from the meeting whether the proposal is made. A khul with an option to the husband to revoke it cannot be validly entered into. According to the Hanafis, the khul with an option is valid and operates as an absolute divorce, and the option is void. Under the Shia law, both the khul and the option are void. Most of the textbook writers discuss khul under the title, "Divorce by mutual consent", but it is submitted, since in the khul the desire to separate emanates from the wife, and she has to make her husband agree to it by giving consideration, it would be proper to call it divorce at the instance of the wife.

Judicial Divorce

Muslim law-givers also provided for the dissolution of marriage by a decree of the court. It is called turkaf, literally, separation.

Before the Dissolution of Muslim Marriage Act, 1939, Indian Courts granted a decree of divorce to the wife only on two grounds: lian (mutual imprecation) and apostasy. Apostasy of either party leads to dissolution of marriage. Reconversion of wife to Hinduism would dissolve marriage but would not effect husband's prerogative of talaq. In the latter case, since apostasy of either spouse then resulted in automatic dissolution of marriage, it was doubtful whether a decree of court was necessary. As would be evident, the Dissolution of Muslim Marriage Act, 1939, contains certain fault grounds. The pre-Act fault grounds too have been saved. By judicial interpretation (or valour) breakdown, theory of divorce has been discovered in Muslim law.

Fault Grounds

The Dissolution of Muslim Marriage Act, 1939, as amended by the Act of 1959 is applicable to whole of India and to all Muslims irrespective of the sect or school they may belong to. The Act does not apply to the State of Jammu and Kashmir which has its own statute enacted in 1942, with slight modifications. Section 2 contains eight fault grounds. Section 4 relates to apostasy. Clause (ix) of S. 2 saves the existing grounds on which wife may sue for divorce. Under the Act, it is the Muslim wife (not the Muslim husband) who can sue for divorce. The wife may obtain a decree of divorce on any one of the grounds specified in the Act by filing a suit in the lowest civil court:

(i) the whereabouts of the husband are not known for a period of four years,

(ii) the failure of the husband to provide maintenance to the wife for a period of two years of more,

(iii) the husband being sentenced to a term of imprisonment for a period of seven years or more,

(iv) the husband’s failure without reasonable cause to perform marital obligations,

(v) impotency, leprosy, and venereal disease of the husband,

(vi) insanity of the husband,

(vii) the repudiation of marriage by the wife, and

(viii) cruelty of the husband.

Four years absence of the husband.—If the whereabouts of the husband are not known to the wife for a period of four years (in Hindu law the period is seven years) or more, the wife is entitled to a decree of divorce. But such a decree will not take effect for a period of six months from the date of such decree, and if the husband appears, either in person or through an agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court must set aside the decree.

Two years' failure to provide maintenance.—If the husband has failed or neglected to provide maintenance to the wife for a period of two years or more, the wife is entitled to a decree of divorce. The inability of the husband to maintain his wife, or the failure to maintain her is on account of his poverty, failing health, loss of work, imprisonment or any other cause whatever, is no basis for refusing the wife's decree for divorce, unless her conduct has been such as to disentitle her to maintenance under Muslim law. However, it has been held that this right cannot be made conditional or subject to qualification that wife was entitled to claim maintenance or permit husband to plead that he was under no obligation to pay maintenance due to her conduct. Where the wife is living separate from her husband on account of his failure to pay her prompt dower, and the husband does not provide her maintenance for a period of two years, the wife is entitled to a decree of divorce. Similarly, a wife, who is living separate from her husband on account of his taking a second wife and to whom no maintenance has been provided by the husband for a period of two years or more is entitled to a decree of divorce. It is no defence that the wife is rich. Maintenance includes all those things which are" necessary for the support of life, as food, clothes and lodging. The provision of maintenance should be in consonance with the status of the husband, and sufficient to meet the reasonable wants of the wife. Half-hearted and illusory attempts to provide for maintenance will not do.

Seven years' imprisonment of the husband—The wife is entitled to a decree of divorce if the husband has been sentenced to imprisonment for a term of seven years or more, but a decree can be passed on this ground only if the sentence has become final.

Failure to perform marital obligations—On the failure of the husband to perform marital obligations without any reasonable cause for a period of three years or more, the wife is entitled to obtain a decree for the dissolution of her marriage. The failure, it is submitted, relates to the basic matrimonial obligation.

Impotence of the husband—Impotence of the husband was a ground of divorce even before the coming into force of the Dissolution of Muslim Marriage Act, 1939. Under the old law, the wife had to prove that the husband was impotent at the time of the marriage, and continued to be so till the filing of the suit, and the wife was not aware of the husband's impotence at the time of marriage. The old law has now been changed.^^ Now the wife is entitled to a decree of divorce, if the husband was impotent at the time of marriage and continued to be so till the filing of the suit; but, before passing a decree in the suit, the court is bound, on the application of the husband, but not otherwise, to make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the court within that period, no decree can be made in the suit. Under the Act, the burden of proof, is on the husband that he is free from impotency. The impotency may be qua the wife. But once he gets himself medically examined, the court has no jurisdiction to direct him to get examined by Medical Board afresh.

Insanity, leprosy and venereal disease.—Insanity of the husband, with or without lucid intervals, pre-marriage as well as post-marriage, arising either before or after the consummation of marriage, was a ground of divorce under the old law, particularly, among the Shias and the Shafis. Under the Act, the requirement is that the husband has been suffering from insanity for a period of two years or more preceding the presentation of the suit. The Act does not spell out whether the provision relates to post-marriage or pre-marriage insanity. It also does not specify that insanity must be continuous and incurable. It is possible to take the view that insanity under the Act has the same meaning as was given to it before the coming into force of the Act. Similarly, leprosy is a ground for a decree of divorce. Leprosy is without qualifications. Even the duration of leprosy is not stated. It would, therefore, appear that it may be of any duration, and it may be of any type; it need not be virulent or incurable. The wife can also file a suit for divorce on the ground that the husband is suffering from virulent venereal disease, it would appear that under the Act, the venereal disease need not be in a communicable form, that the only requirement is that the disease should be in a virulent form. Even if the disease has been contracted from the wife, the wife will be entitled to a divorce, since "the taking advance of one's wrong" doctrine of Hindu law has not been enacted in the Act. It is submitted that the court is free to import this doctrine on the general principles of equity, he who comes to equity must come with clean hands.

Repudiation of marriage by the wife.—The wife is entitled to file a suit for the dissolution of her marriage on the ground that she was given in marriage by her father or grandfather or any other guardian, before she attained the age of fifteen that the marriage had not been consummated, and that she had repudiated the marriage before she attained the age of eighteen.'' This provision existed under the old law also, though in a slightly different form.

Cruelty.—Under the old laws as well as under. the Dissolution of Muslim Marriage Act, 1939, cruelty is a ground for divorce. Under the Act, the wife is entitled to a decree of divorce if her husband treats her with cruelty, that is to say :

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment. In Siddique v. Amina, AIR 1996 Ker 140, it was established that husband had administered his wife with some drug causing miscarriage. He also physically tortured her. It was a clear case of cruelty. It is submitted that this definition will include all cases to physical and mental cruelty of the modern matrimonial law.

(b) The husband associates with women of evil repute or leads an infamous life. It appears that if the husband associates with a woman of evil repute the clause will not apply, association should be with women (more than one). This is something like living in adultery, and that, too, not with ordinary women; it should be with prostitutes. "One or two lapses from virtue" will not be enough.

(c) The husband attempts to force her to lead an immoral life. In countries where cruelty has been considered to be a ground for matrimonial relief this has been considered to constitute cruelty.''

(d) The husband disposes of her property or prevents her from exercising her legal rights over it. In Zubaida v. Sarda Shaha, 1943 Lab 310 the Lahore High Court opined that the clause was not happily worded. Abdul Rahman, J. observed : "It is not easy to say whether it 'was only meant to convey a person who had been in the habit of selling his wife's property for his own selfish ends or also converts the single act of a person who sells or assigns his wife's property of any value, however insignificant, and not for his own advantage, but, say, for the purpose of procuring medicine for his ailing wife when he did not have the means to buy it himself out of his own money. Nor am I sure that the legislature was not intending to provide for cases where a person gets rid of the whole or substantial portion of his wife's belongings but also for cases where a husband happens to dispose of a ring say of Rs. 3 in value. I should interpret the word property in the sense of a substantial portion of wife's property and its disposal in the sense of getting rid of the property not for wife's benefit but for the selfish "ends of the husband, not with the object of meeting a pressing need but more in the sense of waste and this also when done with the object of depriving the wife of her property and not with the consent or for. things in and from which her consent might have been reasonably or legitimately presumed, implied or inferred." It is true that disposal of a trifle of fraction of property, may not amount to cruelty under the clause, but then, it is submitted that the learned judge has tried to narrow down the clause so much that unless substantial portion of property is disposed of, it would not amount to cruelty. Muslim law does not recognize any doctrine (such as Hindu law does), whereunder the husband can take away wife's property even in need. Then what is a trifle depends not upon the pecuniary value of a thing. A ring, in its pecuniary value, may be worth only Rs. 3.00, but its sentimental value may be great. It is submitted that any disposal of property which hurts the sentiments of the wife, or causes emotional or mental strain on her will be covered under this clause.

(e) The husband obstructs her in the observance of her religious profession or practice. It is submitted that the clause will apply even when the wife is a non-Muslim. This clause came in for interpretation before the Kerala High Court. Krishna Iyer J. said that the religious practices, the obstruction of which amounts to statutory cruelty under Section 2(vii)(e), Dissolution of Muslim Marriage Act are "those observances, the performance of which makes a man or woman Muslim and departure from which deserves to be castigated as un-Islamic—not deviation from every inconsequential though orthodox, ritual or mode of life. The statutory vice lies in fundamental violations and obstructions. Again, if every fugitive passion for fashion coming from either spouse can, with Las Vegas levity, work a legal disruption of wedlock, marriages will become plaything of passing fancies and too fluid to be regarded as a firm institution—a view most subversive of our cultural heritage. It will be cruel to the concept of cruelty and outraging the modesty of the statute to cast the net of guilt so wide as to catch within it such pleasurable pressures as persuasion to see a cinema or don a dainty saree on her young figure". In this case, the two instances of cruelty complained of by the wife were the fact that the husband forced the wife to see a cinema and to don a sari. In this case, the wife also alleged that the way of life that the husband led was un-Islamic. The learned judge rightly observed that un-Islamic ness of the husband was not covered under the clause, though on facts the judge also found that it was not so; mere departure from standards of suffocating orthodoxy, and from the bigotted beliefs and ritualistic observances, do not constitute un-Islamic behaviour; nor is the subscription to religious reforms and modern way of life un-Islamic.

(f) The husband who has more wives than one, does not treat her (plaintiff) equitably in accordance with the injunctions of the Koran. In an early case, a view was expressed that only a very gross failure to tender to a wife her just rights could be considered to be covered under this clause. The Koran enjoins that a man should take more than one wife only when he can treat them all equitably, otherwise, he should be satisfied with one. Thus, if a husband fails to treat his wives equitably, then anyone of them, or all of them may sue for divorce under this clause. The unequitable treatment may be gross or mild. Umatul-Hafiz v. Talib Husain, 1945 Lah 56 is a case which is clearly covered under this clause. A husband went abroad leaving behind two wives in India. He provided maintenance for one wife from there, but ignored the other. The court held that the other wife was entitled to divorce under this clause.

In Md. Sharif v. Nasrin, AIR 1996 Raj 23 the wife had petitioned for divorce under the Dissolution of Muslim Act, 1939, on the ground of husband's cruelty and adultery. The Court said that mere allegation of cruelty or adultery without cogent evidence thereof were not enough to entitle a spouse to divorce. It is necessary that specific instance should be stated and proved. "Further, it has been held that it would be mental cruelty where husband married second time within 5 months of separation from first wife, had child from second wife. The fact that husband was willing to live with first wife while continuing with second marriage is no ground to prevent wife from taking divorce. The fact that polygamy is allowed in Muslim law does bar wife to take divorce.

Lian or imprecation—

Lian means a testimony confirmed by oath and accompanied with imprecation. Under the pure Muslim law, the lian may be described thus: When a man charges his wife with adultery, on the application of the wife, he may be called upon either to retract the charge or to confirm it on oath, coupled with an imprecation in these terms: "The curse of God be upon him if he was a liar when he cast at her the charge of adultery." The wife then must be called upon either to admit the truth of the imputation or, to deny it on oath coupled with an imprecation in these terms: "The wrath of God be upon me if he be a true speaker of the charge of adultery which he has cast upon me." If the wife takes the oath, the Kazi must believe her, and pronounce a divorce. Under the pure Muslim law, the husband was given every opportunity to retract the charge, since false accusation of adultery was a serious offence under Muslim law. Dissolution of marriage by mutual imprecation is mentioned in the Koran and is supported by tradition. In the Muslim law of modern India, the wife is entitled to sue for a dissolution of marriage on the ground that the husband has falsely charged her with adultery. It should be noted that the charge of adultery by itself, does not lead to the dissolution of marriage; a decree of the court dissolving the marriage is necessary. The court will pass a decree if the charge of adultery is false; no decree will be passed if the charge is proved to be true. There is conflict of opinion whether the husband can retract the charge after the wife has filed the suit. One view is that he can retract it at any time before the close of evidence. The Bombay High Court, on the other hand, held that "retraction has no place in the procedure" of Indian Courts. But in a later decision, the court has held that retraction may be made before the end of trial. The retraction in every case must be honest and straight-forward.

Apostasy.—Renunciation of Islam or conversion of a Muslim to some other religion, is called apostasy from Islam. Apostasy may be express or implied. When a Muslim says, "I renounce Islam", or "I do not believe in God and the Prophet Muhammad", the apostasy is express, when a Muslim uses grossly disrespectful language towards the prophet or the Koran the apostasy is implied. Formal conversion to another religion also amounts to apostasy. A mere declaration, such as "I renounce Islam" is enough, no formal conversion is necessary. Muslim law considered apostasy as a treasonable offence. A male apostate was liable to death sentence and a female apostate to life imprisonment. Under the Muslim law in modem India, the rule came to be established that apostasy of either husband or wife operated as a complete and immediate dissolution (or instant dissolution, as Ameer Ali puts it). Now, after the. coming into force of the Dissolution of Muslim Marriage Act, 1939, the position is as follows:

(i) The apostasy of the husband still results in an instant dissolution of marriage, thus, where on the apostasy of the husband, the wife married another man, even before the expiration of idda, it was held that she was not guilty of bigamy.

(ii) If a Muslim wife who belonged to another faith before her marriage, reconverts to her original faith, or to some other faith, then also, it results in the instant dissolution of marriage.

(iii) The apostasy of a Muslim wife does not result in the dissolution of marriage, instant or otherwise. Apostasy of the wife does not bar her right to sue for divorce on any ground specified in Section 2, Dissolution of Muslim Marriage Act, 1939.

It seems that the Hanafis took the view that the apostasy led to instant dissolution of marriage only when marriage was not consummated. But if the marriage was consummated, the cancellation of marriage remained suspended till the completion of the period of idda: with this view the Shafis also agreed. Ameer Ali is of the view that even in the Hanafi law this was the position taken by the latter jurist. Among the Shias, if the husband apostates before the consummation of marriage, the wife is entitled to half of the dower but if it is she who apostates, then no claim for dower can be advanced. If marriage is consummated, she is entitled to full dower. The Hanafis take the view that the results of the dissolution of marriage on the ground of apostasy are same as of talak.

Ameer Ali is of the view that when both parties apostate and adopt another faith, the marriage remains intact by consensus.

In Mohd. Abdul Zadil Ahned v. Marina Begum, AIR 1999 Gau. 28, the Gauhati High Court has added a new dimension, to Section 2. In this case, wife was seeking divorce under Section 2Civ), (viii)(a) of the Act, i.e., on the ground of non-performance of martial obligations by husband and cruelty. After this both the parties filed an application for divorce by mutual consent. Since ground of divorce under Section 2 were already met, it was held decree of divorce can be passed in terms of compromise between the two even in absence of a specific provision of divorce by mutual consent under the Act.

Breakdown of Marriage as a Ground of Divorce -

We have the following two breakdown grounds of divorce : (a) non-payment of maintenance by the husband, irrespective of the fact whether the failure has resulted on account of the conduct of the wife. (This is based on the interpretation of clause (ii) of S. 2, Dissolution of Muslim Marriage Act),^ and (b) When there is "total irreconciliability between the spouses", or, if we may use the term current in the modern matrimonial law of western countries, both the communist and non-communist, the marriage has broken down irretrievably or beyond the possibility of repair. These two breakdown grounds are available to the wife alone, and not to the husband, as judicial divorce at the instance of the husband is still not recognized in Muslim law of modern India—the judicial legislation has its own limits; so has the judicial valour.

II Restitution of Conjugal Rights

According to Tyabji, "Where either the husband or wife has, without lawful ground, withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, and may put either party on terms securing to the other the enjoyment of his or her legal rights.”

The defences that have been valid against a suit for restitution of conjugal rights may be summarized. They are :

(i) Cruelty of the defendant. It seems that not merely physical cruelty but legal cruelty in its wider connotation, including all the instances of cruelty stated in clause (vii) of-S. 2, Dissolution of Muslim Marriage Act, 1939, is included imder the definition of cruelty. Thus, in a husband's petition for restitution of conjugal rights, the court held that cruelty of a character that renders it unsafe for the wife to live with the husband is a valid defence. The court further observed : It may be, that gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him for the benefit of the wife might, if properly proved, afford good ground for refusing to him the assistance of the court". Actual violence, resulting in an injury to life, limb or health or causing a reasonable apprehension thereof is obviously cruelty/ Institution of criminal cases against the wife and her relatives and their vigorous pursuit by the husband amounts to cruelty and husband is not entitled to a decree for restitution of conjugal right? Any matrimonial misconduct of the husband though not amounting to a ground for a matrimonial relief, may also constitute a valid defence. If the husband keeps a concubine in the same house in which his wife lives, resulting in quarrels between the two, it amounts to cruelty.'' In Itwari v. Asghari, 1966 All 684; (See also A/i/iis Begum v. Muhammad Shafa Wali, 1933 All 634) one A took a second wife, as a consequence of which his first wife refused to live with him. On A's petition for restitution of conjugal rights, the court held that the very act of taking a second wife constitutes cruelty since Muslim law enforced in India considers "polygamy as an institution to be tolerated but not encouraged". The court further added that today the onus is on the husband to prove that his taking of second wife has not caused an insult or cruelty to his first wife, and in the absence of cogent explanation "the court will presume, under the modern conditions, that the action, of the husband in taking a second wife involved cruelty to the first”. If the husband accuses his wife of unchastity, adultery or immorality, it amounts to cruelty.''

(ii) When the marriage is void, irregular, or has been avoided, in the exercise of the option of puberty, or when the marriage has been validly repudiated, the suit for restitution of conjugal rights will fail. Similarly, where sexual intercourse becomes improper, such as after lian or zihar, restitution of conjugal rights cannot be granted.

(iii) If the plaintiff is guilty of apostasy, the suit for restitution will not succeed.®

(iv) Where the wife is living separate from the husband on account of non-payment of prompt dower, restitution of conjugal rights cannot be granted.

(v) A valid separation agreement is a good defence to a suit for restitution of conjugal rights.

(vi) When the suit for restitution of conjugal rights is not bona fide, and is filed to serve some ulterior motive, such as taking possession of wife's property, the restitution of conjugal rights cannot be decreed.

(vii) The court may also refuse to pass a decree for restitution of conjugal right if it feels that it would be just and reasonable to do or that it would be inequitable to pass a decree. Venkataramiah, J. very pertinently, and, it is submitted, rightly observed : "It has to be home in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the husband. The court should also consider whether it would make it equitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be altered in such a way as to bring them in conformity with the modern social conditions.

There is some ancient authority for the view that the court may order a husband to be attentive to his wife; and where he has more wives than one, to be just and equitable to all of them. It is submitted that whether courts will do so in modern India is doubtful, since courts have no means to enforce such orders.

Ill Enforcement of Agreements between the Spouses

A remarkable feature of Muslim matrimonial law is that it permits the spouses to enter into agreements, either at the time of marriage, or even thereafter. These agreements, relate mainly to two aspects : (i) regulation of matrimonial life, and (ii) stipulation for dissolution of marriage on the happening of stipulated contingency. It is obvious that only those agreements will be enforced which are not unlawful or contrary to public policy. It has been held that an agreement for future separation between a Muslim husband and wife is void as being against public policy.'' Mulla takes a different view. According to him, "If a Mahomedan wife can lawfully stipulate for a divorce there is no reason why she cannot stipulate for future separation, at all events if the separation is for a justifiable cause. Such stipulations can hardly be said to be against the policy of the Mahomedan law." With this view the present writer is in respectful agreement. Ameer Ali holds the view that agreements stipulating for the following are enforceable; (a) The husband will not contract a second marriage during the subsistence of the first. (b) The husband will not remove the wife from the conjugal domicile without her consent. (c) The husband will not absent himself from the conjugal domicile beyond a certain period. (d) The husband and wife will live in a specified place. (e) Certain amount of dower will be payable immediately after marriage or within a stated period. (f) The husband will pay to the wife a fixed sum for maintenance, (g) The husband will maintain the children of the wife from her former husband. (h) The husband will not prevent her from receiving visits from her relations whenever she likes.

IV Declaratory Suits and Annulment of Marriage

The Muslim law-givers have used the term faskh for annulment of marriage. When a marriage is dissolved by a decree of court, they use the term furqat literally meaning separation, which in modem law is equivalent to dissolution of marriage. When a marriage is annulled for a cause imputable to the wife, then it is called faskh. The term faskh, though literally translated as annulment of marriage, is not equivalent to the term "annulment of marriage", as it is used in the modern matrimonial law; in fact, in Muslim law there has never been anything like a voidable marriage. In Muslim law, there have been very few cases in which an action in a court was deemed necessary in respect of a marriage.

V Option of Puberty and Repudiation of Marriage

A person who has been married during his minority by the father, or a guardian in marriage, has the right of repudiation of marriage on attaining majority. Muslim law deals with this matter under two heads : (a) when the child is given in marriage by the father or grandfather, (b) when the child is given in marriage by a guardian in marriage other than the father or the grandfather. The Muslim law-givers make some distinction between the woman's power of repudiation and the man's power of repudiation.

When the child is given in marriage by father or grand-father— Right of repudiation.—The Muslim jurists have not been unanimous whether a child who is married by its father or grandfather can repudiate the marriage on attaining puberty.® The consensus of opinion seems to be that the child can do so only in certain circumstances. According to the Radd-ul-Muhtar, "If the marriage is in all aspects suitable, the bride and bridegroom are equally matched in rank, position and age, and there is no deformity or evil habits on one side or the other, the dower is not unreasonably low, in such a case the minor, on attaining puberty, has no option; for it is presumed that all these circumstances combining the love which a father or grandfather bears to his children or grand-children, must have actuated him in making his choice, which ought not to be set aside at the mere caprice of the young people after they attain the age of puberty."

It seems that this prohibition has been absolute in the case of female children, and thus a girl who was given in marriage by her father or grandfather could not repudiate the marriage in any circumstances. It appears to be the established position that if the father or the father's father has acted carelessly, wickedly, fraudulently or negligently, or where the minor is married to a lunatic, impotent person, or to a person of unsound mind, or to an idiot, or to a person who is not equal in rank, or the marriage is to the manifest disadvantage of the child, the child has the right of repudiating the marriage. Ameer Ali takes the view that in these cases the marriage is subject to the ratification of the minor, which may be express or implied. Others hold the view that such a marriage is voidable at the option of the minor, if the minor on attaining majority does not repudiate it, the marriage will be a perfectly valid marriage. The better view seems to be that the right of repudiation may be exercised on attaining majority, unless it has been lost by express or implied ratification. The courts in India have allowed the right of repudiation to girls even when they have been married by the father or grandfather. In Aiz Bano v. Muhammad, (Azia v. Muhammed, (1925) 47 All 823) the Allahabad High Court said that a Shia girl given in marriage by her father to a Sunni male has an option of repudiation of marriage, unless she has ratified it by consummation or otherwise; to hold otherwise, the court added, would be contrary to all rules of equity and justice. After coming into force of the Dissolution of Muslim Marriage Act, 1939, a Muslim female who has been given in marriage before she attained the age of puberty, has been given a statutory right of getting a decree of divorce on that basis.

Option of puberty—

A minor cannot legally enter into a marriage contract nor is contract of marriage entered into by a guardian on his or her behalf, always binding on the minor. The minor can on attaining puberty ratify such a contract if he or she chooses. This right of dissolution of marriage on attaining puberty is called Khayar-ul-Bulugh or option of puberty. This right is one of the safeguards which the Muslim Law provides against an undesirable marriage. Hadith provide women the right to repudiate the marriage forced on them through pressure direct on indirect under the assumption that girl being minor cannot exercise her independent discretion regarding the marriage due to her physical and mental immaturity and in such a situation she can be victim of undue influence rather these types of marriage might have had very bad consequences. The Shias go a step further and hold the view that in such a case marriage is wholly ineffective unless ratified by the minor or attaining puberty.

The option of puberty is subject to the following limitations;

(a) The option should be exercised immediately on attaining puberty. This continues to be the position in respect of Muslim males, but in respect of Muslim females, the Dissolution of Muslim Marriage Act, 1939, lays down that the option may be exercised before the girl attained the age of eighteen.

(b) The marriage should not have been consummated. The court by judicial legislation have mitigated some of the hardships inherent in the rigid application of these limitations.

The courts have taken the view that the minor wife does not lose her right of repudiation of marriage if she does not know that she has the right, and, therefore, she can exercise the right after she has come to know of it.

Further, she can exercise the right within a reasonable time after she became aware of it. This view is in consonance with Imam Muhammad, though it is contrary to the views propounded by Abu Hanifa and Abu Yusuf. Ameer Ali also favours this view. The courts have gone to the extent that delay in the exercise of the option may be condoned even on account of non-acquiescence.

The same liberal interpretation has been given to the second limitation. The courts have held that the consummation must have taken place with the consent of the wife.

Under the Dissolution of Muslim Act, 1939, a Muslim female can file a suit for dissolution of her marriage on the ground that she was given in marriage before she attained the age of fifteen (the Act does not talk of puberty) by the father, grandfather or any other guardian (the distinction between the father and grandfather, on the one side, and the other guardians, on the other, has been done away with). The limitations are: the option must be exercised before the girl attained the age of eighteen years and marriage should not have been consummated. The courts have again interpreted this provision liberally. In Gulam Sakins v. Falak Sher, 1950 Lah 45 where the marriage of a girl was solemnized and consummated before she attained the age of fifteen, the court held that this did not amount to' consummation within the meaning of the Act. In Mustafa v. Khurshida, AIR 2006 Raj 31, the girl was married at the age of 7 years, fact was proved by birth certificate and marriage was not consummated. She lawfully exercised option of puberty. She was entitled to divorce. There has been some conflict of judicial opinion whether a decree of the court is necessary to confirm the exercise of the option of puberty. In an early case, it was held that a woman who solemnized a second marriage after exercising the option was not guilty of bigamy even though the option was not confirmed by a decree of the court. Again, in a case, decided before the Dissolution of Muslim Marriage Act, the court held that an assertion by the wife that she had exercised the option of puberty amounted to repudiation of marriage by her.® In a case decided after the Dissolution of Muslim Marriage Act, the Madhya Pradesh High Court held that repudiation of marriage in exercise of the option of puberty must be confirmed in the court. However, in Khatija Tul Qubra v. Iqbal Mohd., AIR 2009 Raj 82, it has been held that wife was married as minor she repudiated it on attaining puberty and remarried another person. Factum of revocation was proved. Second marriage was held valid. This judicial conflict, in fact, reflect the conflict among the authorities on Muslim law. The Radd-ul-Muhtar takes the view that no confirmation by the kazi is necessary, while the Hedaya holds confirmation by the kazi is necessary.

CHAPTER 7 -  Parentage: Illegitimate and Legitimate Children

In Muslim law, the rules relating to legitimacy are fairly liberal, and on the other, illegitimacy is condemned, and the woman guilty of having illicit relationship is punishable for zina. The Muslim law-givers condemned all sex relationship outside wedlock as illicit and provided for its punishment.

Abdul Rahim observes : "The parentage of a child is determined on the principle that it always follows the marital bed. The father of a child born in wedlock is presumed to be the husband of the woman giving birth to it and child which is born after six months of a marriage and during its continuance is said to be born in wedlock. The legal effect of marriage in fixing the paternity of a child also continues, according to the Hanafis, for two years, and according to the Malikis and the Shafis, for four years, after the separation by divorce or death.

Parentage—Maternity and Paternity

In Muslim law, maternity of a child is established in the woman who gives birth to the child, irrespective of the fact whether she is married or unmarried, or the child is the offspring of zina. Thus, it is the actual birth of the child which determines maternity; the woman who gives birth to the child is its mother.

The paternity, on the other hand, is the legal relationship between the man and the child which comes into existence when the child is born within the lawful wedlock, i.e., to the woman who is his wife. The marriage of the man with the mother of the child may be sahih (valid) or fasid (irregular). But if the marriage is void, no father-child relationship comes into existence. Similarly, if the man commits zina with the mother of the child, then the child has no legal relationship with him, i.e., he will not be considered to be the father of the child

Legitimacy

The legitimacy of a child, that is the father-child relationship, is entirely based on the lawfulness of the wedlock between its both parents. Marriage between the parents of the child may be established:

(i) By direct proof of marriage, or

(ii) By indirect proof; Indirect proof of marriage may arise:

(a) By the presumption of prolonged and continuous cohabitation, or

(b) By acknowledgement of the woman as wife or by acknowledgement of the child as one's legitimate child.

The indirect proof of marriage, whether on the basis of prolonged and continuous cohabitation or acknowledgement, merely raises a presumption which may be rebutted. Thus, where evidence is led, and it is established, that there was no marriage at all during the entire period when the child could have been begotten, the offspring will not be legitimate, even if proof of prolonged cohabitation, or of acknowledgement, is forthcoming.

Legitimacy direct proof of marriage—

When a valid marriage between the parents of the child is established, then the child born of such marriage will be presumed to be legitimate. In order to confer the status of legitimacy on the children, Muslim law, like English common law, requires that conception should take place after the marriage, though the marriage may be sahih, fasid or muta.

The Muslim law-givers laid down the following three rules of presumption of paternity, when direct proof of marriage between the man and the mother of the child is available:

(a) A child born after six months (i.e., six lunar months plus one day or more) of the marriage is legitimate, unless the father disclaims it.

(b) A child born within six months of the marriage is illegitimate unless the father acknowledges it.

(c) A child born after the termination of marriage is legitimate, if born; (i) within ten lunar months under the Shia law, (ii) within two lunar years under the Hanafi law, and (iii) within four lunar years under the Maliki and the Shafii law.

Section 112 of the Evidence Act, 1872, lays down the rule of presumption thus : "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." This section lays down that: (i) a child born within the lawful wedlock (at any time, even soon after the marriage), or (ii) a child born within 280 days of the dissolution of marriage by death or divorce, will be conclusively presumed to be the child of his father, provided the mother remained unmarried.

Since Muslim law regards the children of valid and irregular marriages as legitimate, both the marriages will be valid within the purview of S. 112 of the Evidence Act, 1872.

Acknowledgement of paternity—

The acknowledgement of paternity under Muslim law is in the nature of a declaration by the father that a child is his legitimate offspring. It is not a process of legitimation of an illegitimate child. As has been seen earlier, Muslim law does not recognize legitimate or legitimation. In Sadik Husain v. Hasin Ali, (1916) 43 lA 212, the Privy Council observed that no statement made by one man that another, who is proved to be illegitimate but where no proof of that kind is given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate child of the person who makes the statement, provided that his legitimacy is possible.

The acknowledgement of paternity may be express or implied. In Md. Azmad v. Lalli Begum, (1881) 9 lA 8, the Privy Council opined that there need not be any proof of an express acknowledgement, but that an acknowledgement of a child by a Muslim as his child may be inferred from his having openly treated him as such.

The following conditions are necessary for a valid acknowledgement:

(i) The paternity of the child should be doubtful, i.e., it should be proved nor disproved that the child is illegitimate. If the child is known to be illegitimate, it cannot be acknowledged to be legitimate. In Md. Allahadad v. Md. Ismail, (1888) 10 All 289 at 334, Mahmood J. said : "The Muhammadan law of acknowledgement of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or the adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved.

The doctrine relates only to cases where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved as distinguished from disproved. In other words, the doctrine applies only to cases of uncertainty of as to legitimacy, and in such cases acknowledgement has its effect, but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child."

In this case, T, a Muslim, died leaving behind three daughters A, B and C, and two sons P and Q. All of them were children of the same mother, M. It was an established fact that A, B, C and Q were born to T and M after their marriage. But it was not certain that P was born to M when she was married to T. F brought a suit against A, B, C and Q for his share in properties of T. It was established that during his life time T had acknowledged P as his legitimate son, that there was no proof of paternity, of P, though it was established that there was no legal impediment in the marriage between T and M, and that it was not proved that P was the offspring of zina. On these facts court held that since P was acknowledged by T as his child, P has the status of a legitimate son.

(ii) The acknowledger must acknowledge the child as his legitimate child and not just as his child. However, the ordinary rule that when one person calls another as his son or daughter, he means to call him as his legitimate son or daughter, applies. But a casual acknowledgement of paternity not intended to confer the status or legitimacy, will not be enough. The intention to confer  the status of legitimacy must be clear.

(iii) The ages of the acknowledger and the acknowledged person should be such that they appear to be the father and the child. There appears to be some authority for the view that the acknowledger should be at least twelve and a half years senior to the person acknowledged.

(iv) The person acknowledged must not be the offspring of adultery, fornication or incest (zina). This is, in fact, a corollary of condition one. In all those cases, where the legal marriage between the acknowledger and the mother of the acknowledged person is not possible at the time when this child could have been conceived, then such a child is a child of zina and cannot be acknowledged as a legitimate child. Thus, in all those cases where the marriage of the acknowledger and the mother of the acknowledged person would have been void, had it taken place, the child cannot be validly acknowledged a legitimate child.

In Rashid Ahmad v. Anisa Khatun, 932 PC 25, the child acknowledged was the issue of marriage between the divorced persons. The husband had repudiated the marriage in talak-ul-bidaa form and no intermediate marriage and divorce of the woman took place. Thus, the marriage was void. Similarly, where the acknowledger's marriage with the mother of the person acknowledged was within the prohibited degrees—prohibitions might be on the ground of consanguinity, affinity or fosterage—the marriage being void, no valid acknowledgement can be made. The same is true of the case where it is proved that no marriage took place between the acknowledger and the mother of the acknowledged person when the child could have been begotten; the child in such a case will be the issue of fornication, and, therefore, no valid acknowledgement can take place. But if the marriage is found to be irregular, the child will be legitimate.

(v) The paternity of the person acknowledged must not be established in anyone else.

(vi) The acknowledgement must not be repudiated by the acknowledged person. Under Muslim law, a person who has attained the age of discretion i.e., ability to understand the transaction, has a right to repudiate the acknowledgement. Conversely, the acknowledger, who is of the age of discretion can confirm it or acquiesce in it. But for the validity of acknowledgement of paternity, no confirmation by the person acknowledged is necessary.

Once an acknowledgement of paternity is made, it cannot be revoked.

When a valid acknowledgement of paternity is made, the following consequences flow from it:

(a) It raises a presumption of valid marriage between the acknowledger and the mother of the person acknowledged.

(b) The acknowledger and the acknowledged person have mutual rights of inheritance, (c) The mutual rights of inheritance also arise between the acknowledger and the mother of the acknowledged person.

Mere acknowledgment of plaintiff as foster son would not make him legitimate son thus giving him share in suit property.

Illegitimacy

Muslim law subscribes to the notice that an illegitimate child is filius nulius owing no nasab to either parent.

The Shias take the notion of nulius to its logical end, and hold the view that a child born outside the lawful wedlock is related neither to the father nor to the mother. The Hanafis do not take such a rigid stand and adopt the view that an illegitimate child, for certain purposes, such as for feeding and nourishment, is related to the mother. For these purposes the Hanafi law confers some rights on its mother.

Macnaughten said : "A bastard child belongs, legally speaking, to neither of the parents and it is in every sense of the word filius nulius; it should, imtil it has attained the age of seven years, be left in the charge of the mother. After that age, it may make its own election with which of the parties it will reside, or it may live apart from them altogether." The mother has the right of custody of her children till they attain the age of seven. Probably, in respect of daughters it extends upto the age of puberty.

Muslim law, it seems, confers no obligation of maintenance of illegitimate children on either parents, though the Hanafis recognize the obligation of nurture till the child attains the age of seven; the Shias do not recognize even this obligation. Under no school of Muslim law an illegitimate child has any right of inheritance in the property of his putative father.

Under the Hanafi law, it seems, the mother and her illegitimate children have mutual rights of inheritance. There is no process recognized under Muslim law by which a status of legitimacy may be conferred on an illegitimate child.® Muslim law also does not provide for the guardianship of illegitimate children, but, it seems, in modern India, by judicial legislation, it has come to be established that guardianship of an illegitimate child vests in its mother.

Adoption

Muslim law does not recognize adoption. The Prophet was against the institution of adoption. Before the Shariat Act, 1937, adoption among some Muslims was recognized by custom. Under the Oudh Act 1869, S. 29, a Muslim talukadar was permitted to adopt. But it seems, to a very great extent, the custom of adoption stands abrogated. If no declaration under the Shariat Act, 1937, has been made, it is open to a person to plead and prove the custom of adoption and if he succeeds, it will be given effect to. In Jammu and Kashmir, adoption is recognized under custom. Before the Hindu Adoptions and Maintenance Act, 1956, a Hindu convert to Islam could give his Hindu son in adoption. Now, after the coming into force of the Act, this cannot be done.

Chapter 8 - Guardianship and Hizanat

Tahir Mahmood states that: “Guardianship of a person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child’’. It may be said therefore, that mother has a right to the custody of her child for some time, because except her, no one can handle and nurse a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for the upbringing of child.

According to the principle of established Muslim jurisprudence, father is the natural guardian (wali) of the person and property of the minor child. Whereas custody (hizanat) is a right of the child and not either of the parents, or any other person claiming through them. The basic consideration is to give a child the most natural, most considerate and most compassionate atmosphere to grow up as a better member of society. Law of hizanat in sharia has been framed keeping in view the roles of both parents. That is why mother are given preference while deciding custody of the children out of the wedlock during child’s initial year (till 7 years). There is consensus of all sunni schools of thought on this. Schools of fiqh differ in custody laws for boys and girls after 7 years of age.

In the context of family responsibilities towards a child the Muslim law speaks of four different concepts:

(a) Hizanat (custody of child)

(b) Walayat-e-Nafs (guardianship of person)

(c) Walayat-e-Mal (guardianship of property)

(d) Walayat-e-Nikah (marriage guardianship)

Meaning of Guardians and Guardianship

Guardianship is a relationship created by state law in which a court gives one person or entity(the guardian) the duty and power to make personal and/or property decision for another(the ward). Guardianship was designed to protect the interest of incapacitated adults and elders in particular. A person who is authorized under the law to protect the person or property of a minor, is called a guardian. Simply custody of the child upon a certain age.

Generally, in Muslim law, guardianship is also known as ‘Hizanat’. It simply means overall oversight or take care of the child throughout his/her minority. Normally a father, or his executor or the child’s grandfather is the natural guardian of any child. Custody is different from guardianship. It simply means a physical possession (custody) of a minor up to a certain age.

The sources of law of guardianship in Muslims came from Quran & some Hadis.

Nature

The term guardianship connotes guardianship of minor i,e a person who has not attained puberty. Puberty is assumed to have been attained at age 15 years in general. However, as far as guardianship is concerned, a Muslim will be governed by the Indian Majority Act of 1875 which provides that the age of majority is 18 years and 21 years if the minor has been appointed a guardian by the court. A guardian will be appointed by court under the guardian and wards act of 1890 for the welfare of the minor.

Kinds of Guardians recognized by Muslim Law

(1) Natural or Legal Guardian

(2) Testamentary Guardian

(3) Guardian appointment by court or statutory guardian

(4) Defacto guardian

Classification of Guardianship

In Muslim law, guardians fall under the following three categories:

(i) Natural guardians, (ii) Testamentary guardians, and (iii) Guardians appointed by the court.

To this list, we may add the de facto guardian who has been discussed by the Muslim authorities under the head, fizuli, and who has practically no position in the Muslim law of modem India.

(i) Natural Guardians.—

The Muslim law-givers and jurists do not use the expression "natural guardian", but it seems to be clear that in all schools of both the Sunnis and the Shias, the father is recognized as guardian—which term in the context is equivalent to natural guardian, and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father.

Since the mother is not the legal guardian of her minor children, she has no right to enter into a contract to alienate the minor's property. The question of her being the natural guardian during the life time of the father does not arise.

The father's right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father's right to control the education and religion of minor children is recognized. He also has the right to control the upbringing and the movement of his minor children. So long as the father is alive, he is the sole and supreme guardian of his minor children.

The father's right of guardianship extends only over his minor legitimate children. He is neither entitled to guardianship nor to custody of his minor illegitimate children at any time, even after the death of the mother, though it is a different matter that he may be appointed as guardian by the court.

In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody. Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to his executor. Among the Shias, after the father, the guardianship belongs to the grandfather, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather. It appears that the Shias consider the father as a natural guardian, and in his absence the grandfather is considered to be the natural guardian. No other person can be a natural guardian, not even the brother. In the absence of the grandfather, the guardianship belongs to the grandfather's executor, if any. A minor cannot be represented by the grandfather when father is alive.

(ii) Testamentary Guardian—Among the Sunnis, the father has full power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian. Among the Shias, the father's appointment of testamentary guardian is valid only if the grandfather is not alive. The grandfather, too, has the power of appointing a testamentary guardian. No other person has any power of making an appointment of a testamentary guardian.

Among both the Shias and the Sunnis, the mother has no power of appointing a testamentary guardian of her children. It is only in two cases in which the mother can appoint a testamentary guardian of the property of her minor children, both legitimate and illegitimate viz., first when she has been appointed a general executrix by the Will of the child's father, she can appoint an executor by her Will, and secondly, she can appoint an executor in respect of her own property which will devolve after her death on her children. The first exception is more apparent than real : any executor of the father has the power to appoint an executor by his Will : this provision applies to all executors. The latter exception, too, has little significance, since every person is free to appoint an executor of his or her own property. The mother can be appointed a testamentary guardian or executor by the father, or by the grandfather, whenever he can exercise this power.

Among the Sunnis, the appointment of a non-Muslim mother as testamentary guardian is valid, but among the Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot be a guardian of the person as well as the property of a minor.

According to all Muslim authorities, a non-Muslim alien cannot be appointed as a testamentary guardian; if such an appointment is made, it is null and void. It seems that the appointment of non-Muslim fellow-subject (zimmi) is valid, though it may be set aside by the kazi. According to the Malikis and the Shafii law, a zimmi can be validly appointed testamentary guardian of the property of the minor, but not of the person of the minor. The Shias also take the same view.

The Durr-ul-Muhtar states that if a minor, a bondman, non-Muslim or a fasik (reprobate), is appointed as a testamentary guardian, then he should be replaced by the kazi. But any act done by them before their removal, will be valid. Further, if disability ceases to exist before their removal, they cannot be removed.

The Fatwai Alamgiri also takes this view, but holds that the appointment of a minor or insane person as guardian is void, and, therefore, any act done by them before or after his removal will be void and non-effective.'' There is some controversy among the Muslim jurists on the point whether a person, who was a minor at the time of his appointment but who ceased to be so before his removal, can be removed on the ground that when his appointment was made, he was unqualified.' It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian. The Muslim jurists of all schools agree that a profligate, i.e., a person who bears in public walk of life a notoriously bad character, cannot be appointed as guardian. However, all acts done by such a person before his removal are valid and binding unless found to be contrary to the interest of the minor. Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court.

Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and unequivocal. A testamentary deposition made by a testator may be invalid, but appointment of the testamentary guardian of minor children will be valid.

The appointment of the executor may be general or particular. The testator must have the capacity to make the Will at the time when it was executed. This means that the testator should be major, of sound mind, i.e., at the time of execution of the Will he should be in full possession of his senses.

The executor of the testamentary guardian is designated variously by Muslim law-givers, indicating his position and powers. He is commonly called, wasi or guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., the personal representative of the testator. As in other systems of law, it is the duty of the executor under Muslim law to administer the estate and assets of the testator, to carry out the wishes of the testator with utmost fidelity, and to act as guardian of the minor children whenever he is appointed as a testamentary guardian.

(iii) Guardian appointed by the Court.—On the failure of the natural guardians and testamentary guardians, the kazi was entrusted with the power of appointment of guardian of a Muslim minor. In modern India, the Muslim law of appointment of guardians by the kazi stands abrogated.

Now the matter is governed by the Guardians and Wards Act, 1890. This Act applies to the appointment of guardians of all minors belonging to any community. The High Courts also have inherent powers of appointment of guardians, though the power is exercised sparingly.

Under the Guardians and Wards Act, 1890, the power of appointing or declaring any person as guardian is conferred on the District Court. The District Court may appoint or declare any person as guardian of a minor child's person as well as property whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes, of the child as well as the wishes of the parents and the personal law of the minor.

The disqualification to be a guardian is, if the mother married second time. As regards the mother or a female guardian, marriage to a person not related to the child within the prohibited degrees is a bar to guardianship. It is further provided that the mother does not lose the custody of her infant children merely because she is no longer the wife of her former husband, but where she marries a second husband, the custody of such children normally belongs to her former husband. In that case other relations failing the mother, by absence or disqualification, the following female relations are entitled to custody in order of priority—(i) mother's mother, how highsoever, (ii) father's mother, how highsoever and (iii) full sister and other female relations including aunts.

Powers of the Natural and Testamentary Guardians

No distinction is maintained between the natural guardian's powers and testamentary guardian's power over minor's property under Muslim law. It seems that the Muslim law-givers first lay down the powers of an executor or testamentary guardian and then state that the natural guardian has the same powers. The Muslim law-givers also approach the subject from the point of view of the needs of the minor; what acts are necessary which should be done on behalf of the minor. After classifying the acts, they state which acts can be performed on behalf of the minor, and by whom.

The Hedaya classifies these acts under the following three heads :

(a) Acts of guardianship, such as contracting a child in marriage, or selling and buying goods for him. These acts can be done solely by the wali or the natural guardian, whom the law "constitutes the minor's substitute in those points";

(b) Acts arising from the want of the child, such as buying or selling for him to satisfy his needs, such as food, clothing, shelter or hiring a nurse for him. These acts can be done by the maintainer of the child, whether he be brother, uncle or the mooltakit (in case of a foundling), or the mother, provided she be the maintainer of the child. Since these persons are entitled to do these acts, the wali as well as the natural guardian, is also empowered to do so. In the case of the guardian, it is not necessary that the child should he under immediate protection;

(c) Acts which are advantageous to the minor such as accepting presents or gifts and keeping them for him may be done by a mooltakit, brother, uncle, and also by the minor himself, if he is of the age of discretion. Since these acts are entirely of a beneficial character, the child himself, or any person under whose protection the child is, can perform them.

Some authorities divide the acts in respect of the minor under the following three heads : (i) Acts which are beneficial or advantageous to the minor; (ii) Acts which are absolutely injurious to the minor; and (iii) Acts which are mid-way between the first two.

As to the acts falling under the first category, any person, whether a guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts as are, acceptance of gifts and alms. If the minor is of the age of discretion, he himself can perform them. The acts which are absolutely injurious to the minor, such as emancipating a slave, or divorcing a wife, no person is empowered to do them on behalf of the minor. As to the acts under the third category, such as sale or hiring of property for profit, they can be done only by the father, grandfather, or the executor, irrespective of the fact whether the child is in his custody or not, it is because the power is invested in him by virtue of his being the guardian of the minor.

Guardian's power can be discussed under the following heads:

1. Power of alienation.—The Muslim law-givers and the jurists mostly talk of sale of minor's property. They seldom talk of any other type of alienation. They make a distinction between movable and immovable property. The power of the guardian over movable property of the minor is wider than his powers over immovable property. The guardian is allowed to dispose of the minor's immovable property only in exceptional cases. The Hedaya sets forth the reason for this distinction thus : "The ground of this is that the sale of movable property is a species of conservation, as articles of this description are liable to decay, and the price is much more easily preserved than the article itself On the contrary, with respect to immovable property, it is in a state of conservation in its own nature, whence it is unlawful to sell it-unless, however, it be evident that it will otherwise perish or be lost, in which case the sale of it is allowed. The author of the Durr-ul-Muhtar says that the sale of immovable property is not valid as the chance of its being lost is extremely rare. It appears to be clear that sale of movable property is justified not for the necessity of the minor, but on the basis of its conservation. Whenever, the guardian can sell movable property for an adequate consideration and invest the sale proceeds in a more profitable undertaking, the sale will be justified. Not merely this, the guardian is allowed to take all reasonable risks which are involved in the world of business in his handling of movable property.

The sale of movable property can be avoided by the minor on attaining majority only on the ground of fraud resulting in inadequacy of consideration, or when inadequacy of consideration is such as to cause serious loss or detriment to the minor, though there is no indication of fraud. In such a case the transaction is voidable at the instance of the minor.

On the other hand, if the transaction is entered into bona fide with due care and diligence, then the guardian is not responsible for any unforeseeable consequences adversely affecting the interest of the minor.

The powers of alienation of immovable property are limited. The Durr-ul-Muhtar lays down that it is lawful for the executor to sell immovable property if there is an imminent danger of its being lost, or to sell it, if it can get double of its value, or for the maintenance of minors, or for the discharge of debts of the testator, or for the payment of legacies which cannot be paid otherwise, or where the income of the property does not exceed the cost of its up-keep, or when it is in the hands of a powerful misappropriator or usurper (muta-ghallab).

The Durr-ul-Muhtar lays down that the father is legal guardian of his minor children has the same powers as the executor. The Muslim authorities appear to take the view that the father's powers are not greater than the powers of the executor. There is a difference of opinion among them whether the executor can sell the properties to himself.

According to Abud Hanifa, he can; according to Mohammed, he cannot; and according to Abud Yusuf, he can only if the sale is to manifest advantage of the minor. The consensus of the authorities is that the sale of a minor's immovable property by his legal guardian is valid in the following cases:

(i) when the guardian can fetch the double of its value,

(ii) when the sale is to the manifest advantage of the minor,

(iii) when there are some general provisions in the Will, such as payment of legacies, which cannot be carried into effect, without the sale of the property,

(iv) when there are debts of the testator, and they cannot be liquidated, save by the sale of property,

(v) where the income of the property is less than the cost of its up keep,

(vi) when it is imminent danger of being lost or destroyed by decay, etc.,

(vii) where the property is in the hands of an usurper and the guardian has reasonable belief that there is no chance of recovery, and (viii) when the minor has no other property and the sale is absolutely necessary for his maintenance.

Numbers (ii) and (iv) above do not apply in the case of father and grandfather.

An improper alienation made by a legal guardian is not void, but only voidable, and the minor on attaining majority can avoid it. The basis of the guardian's power of alienation under Muslim law is the need or necessity of the minor.

Where the guardian is permitted to sell the minor's property, it is necessary that the sale must be for adequate consideration, i.e., for consideration usually current in transactions of similar kind, otherwise, the sale may be set aside. The case law on the guardian's power of alienation is consistent and clear. It has been held that the guardian can sell the minor's property in cases of urgent necessity or for the benefit of the minor, or for maintenance of the minor, or for the conservation of the property. But where neither there is any need nor is the minor's property in a bad shape, alienation will not be justified.

2. Power to grant lease.—The Fatwai Alamgiri has the following passage : "If the executor gives a long lease of part of estate for the payment of the deceased debts, it would not be lawful He has no power to lend to another the property of the orphan according to all authorities and if he should do so he would be responsible. Neither the judge has power to do so." Thus, it appears that the Muslim authorities were not in favour of conferring any power on the guardian of leasing out the minor's properties.

Ameer Ali takes the view that the executor may give on lease the minor's property, if there be need to do so, and if it is advantageous to the minor. He has also the power to pledge the goods and other movable property of the minor if it is necessary for the maintenance of the minor. ^ The position of the father also appears to be the same.

3. Power to carry on business.—The Hedaya lays down that the guardian has power to carry on trade or business on behalf of the minor just like a person of ordinary prudence can do so in respect of his own business, provided the business or trade is not speculative of hazardous nature. The Fatwai Alamgiri empowers an executor to invest minor's property, in partnership and he may enter into partnership with others.

4. Power to incur debts and enter into contracts.—It appears to be clearly established that the guardian of a minor has the power to incur debts on behalf of the minor if there is an urgent need for it. A debt contracted without any necessity is not binding on the minor. It appears that the guardian has also the power to execute a promissory note on behalf of the minor in those cases where the incurring of debt is justified. In India, there has been conflict of judicial opinion as to whether the guardian of a minor (both under Muslim law as well as Hindu law) can enter into a contract on behalf of the minor, and whether such a contract is specially enforceable against the minor.

5. Power to make partition.—According to the Fatwai Alamgiri, the wasi or the executor, has no power to make partition among the minors, and if he does so, the partition is not lawful. But, the Fatwai Alamgiri further lays down that if among the heirs some are minors, and some are adults, then, if the adults are present, the executor can separate their share from the share of the minors and hand it over to them, and retain the share of the minors in his hands.'' But in no case should the guardian separate the shares of each minor; if he does so, it is unlawful and entire partition is invalid. If all the heirs are minors, the executor may allot the shares to the legatees, and retain the rest in his hand. In case a guardian is appointed by the court with general powers to deal with all matters of the minor, then the guardian has power to effect a partition.

6. Other powers of the guardian.—The Bombay and the Allahabad High Courts hold the opinion that the guardian has the power to assert a right of pre-emption on behalf of the minor, or to refuse or accept an offer of a share in pursuance of such right, and the minor will be bound by such act, if done in good faith.

The de jure guardian has power to acknowledge debts on behalf of the minor.

Certificated Guardian's (guardian appointed by the court) - Powers

Regarding the certificated guardian's powers over the minor's property, the law in India is uniform, and regulated by the Guardians and Wards Act, 1890. Section 27 of the Act lays down the general powers and obligations of the guardian. The generality of the power is limited by the rule that the guardian should deal with minor's property in the same manner as a man of ordinary prudence deals with his own property. Within this limitation, and subject to specific limitations laid down in the Act, the guardian has the authority to do all things necessary for the realization, protection and benefit of the minor's property.

Section 29 lays down the limitation in respect of guardian's powers of alienation of property : the guardian has no power to charge or transfer by sale, gift, mortgage, exchange or otherwise, or to lease any part of the property for a term exceeding five years or for any term extending more than one year beyond the date on which the minor will cease to be minor, without the prior permission of the court.

The court will accord permission for alienation only if it arrives at the finding that the proposed alienation is for necessity or for the evident advantage of the minor. Any alienation of the immovable property by the guardian in contravention of the aforesaid provision is voidable at the instance of the minor or any other person affected thereby.

Section 33 of the Act empowers the court to define, restrict or extend the powers of the guardian from time to time. The court also has the general power of defining or fixing the limits of the guardian's powers at the time of his appointment. In respect of other matters, the guardian's powers are governed by the generality of the provision of S. 27 of the Guardians and Wards Act.

Hizanat (Custody)

All Muslim authorities recognize the mother's right of hizanat. According to the Radd-ul-Muhtar, "The right of the mother to the custody of her child is re-established whether she be a Mosalman, or a kitabia or a majoosia, even though she be separated from her husband. But it does not belong to one who is an apostate.

The Fatwai Alamgiri puts it thus : "The mother is of all persons the best entitled to the custody of her infant children during concubial relationship as well as after its dissolution. The term hizanat is applied to the woman to whom belongs the right of rearing a child. Of all the persons, the first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody and care of children during the period laid down in Muslim Law, so long as she is not disqualified from retaining them.

The mother's right of hizanat is recognised in the sense that it can be enforced against the father or any other person, but it is a right to which obligations are attached.

The mother's right of hizanat is solely recognized in the interest of children, and, in no sense, it is an absolute right; she cannot exercise it the way she likes to exercise it. Mother's right of hizanat is, in fact, a right of rearing of children.

If she is not found suitable to bring up the child, or her custody is not conducive to the physical, moral and intellectual welfare of the child, she can be deprived of it.

Since Muslim law considers the right of hizanat as no more than the right of rearing of the children; it terminates at an early age of the child. In this regard Muslim law makes a distinction between the son and the daughter.

The son—According to the Fatwai Alamgiri, the mother is entitled to the custody of a boy until he is independent of her care, that is, until he is seven years old.

Among the Hanafis, it is an established rule that the mother's right of hizanat over her son terminates on the latter's completing the age of seven years.

The Shias hold the view that the mother is entitled to the custody of her son until he is weaned. (This is considered to be the completion of two years), and that during this period the mother cannot be deprived of the custody of her son under any circumstances whatever, except with her own consent. On the completion of the age of two by the son, the mother's right of custody terminates.

According to the Malikis, the mother's right of hizanat over her son continues till the child attains puberty.

The rule among the Shaffis and the Hanbalis is the same as among the Hanafis. But these schools hold the view that on completion of the age of seven years, the child is given a choice of living with either parent.

But in every case, the father is entitled to the custody of his son when it attains puberty. Even though the mother is entitled to custody of son below the age of 7, considering the welfare of the child the father was guaranteed visitation rights.

The daughter—Among the Hanafis, the mother is entitled to the custody of daughters till they attain the age of puberty.

Among the Malikis, the Shafis and the Hanbalis, the mother's right of custody over her daughters continues till they are married.

On the other hand, under the Ithana Ashari law, the mother is entitled to the custody of her daughters till they attain the age of seven. In all the schools of Muslim law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband. The mother has the right of custody of her children upto the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Since the right of hizanat of the mother is a right of rearing of children given to her in the interest of children, she cannot surrender her right to any person, including her husband, the father of the child. For instance, if she obtains khula from her husband on the stipulation that she would surrender her right of hizanat to the father of the child, the khula will be valid and the stipulation will be void. Further, the mother cannot be deprived of her right of hizanat on the ground of her property; it is for the father of the child to provide her with sufficient funds for the maintenance of the child.

Other females who are entitled to hizanat.—Among the Hanafis, the following females are, after the mother, entitled to hizanat of the minor children of the age upto which the mother is entitled to it (the list is as given by Mulla) : (a) Mother's mother, how highsoever, (b) Father's mother, how highsoever, (c) Full sister, (d) Uterine sister, (e) Consanguine sister, (f) Full sister's daughter, (g) Uterine sister's daughter, (h) Consanguine sister's daughter, (i) Maternal aunts, in like order as sisters, and (j) Paternal aunts, in like order as sisters.

Tyabji and Ameer Ali give a different list. The rule is that among the females, the nearer excludes the remoter.

Under the Shia school, after the mother, the hizanat belongs to the father. In the absence of both the parents, or on their being disqualified, the grandfather is entitled to the custody.

Authorities are not clear as to who is entitled to the custody after the grandfather. Some Shia authorities have laid down certain rules of preference on the basis of which the text book writers have compiled a list of persons who are entitled to the custody of minor children, in the absence of the grandfather. Ameer Ali holds the view that after the grandfather, hizanat belongs to the grandmother, after her it belongs to the ascendants, then to collaterals within the prohibited degrees, the nearer excluding the remoter.

Among the Malikis, the following females are entitled to the custody of minor in the absence of the mother: (a) the maternal grandmother, (b) the maternal great grand-mother, (c) the maternal aunt and grand-aunt, (d) the full sister, (e) the uterine sister, (f) the consanguine sister, and (g) the paternal aunt.

Father's right of hizanat.—All the schools of Muslim law recognize the right of the father to the custody of his minor children in the following two cases : (i) on the completion of the age by the child upto which mother or other females are entitled to its custody, and (ii) in the absence of the mother or other females who have the right to hizanat of minor children. The father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit. The father's right of hizanat continues till the child attains puberty.

Other male relations entitled to hizanat.—In the absence of the father in both the aforesaid cases, the following persons are, according to the Hanafis, entitled to the custody of children: (i) nearest paternal grandfather, (ii) full brother, (iii) consanguine brother, (iv) full brother's son, (v) consanguine brother's father, (vi) full brother of the father, (vii) consanguine brother of the father, (viii) father's brother's son, and (ix) father's consanguine brother's son. Among the above, the rule is that the nearest excludes the remoter. Among the Shias, hizanat belongs, in the absence of the father, to the grandfather. As to who is entitled to hizanat after the grandfather, the Shia authorities are not clear. In no case a person not related to the child within the prohibited degrees is entitled to the custody. Among the Malikis, the persons entitled to the custody after the father are, the father's executor, the father's son, the father's nephew, the father's imcle, and the father's cousin.

When Right of Hizanat may be Lost by a Hazina

According to the Radd-ul-Muhtar, " hazina (female entitled to custody) should be free, adult, trustworthy and capable of bringing up the child, and not married to a stranger."

All the schools of Muslim law agree that a hazina should be : (i) of sound mind, (ii) of good moral character, (iii) living at such a place where there is no risk, morally or physically, to the child, and (iv) of such an age which would qualify her to bestow on the child the care it may need—this will not apply to mother.

All the schools of Muslim law also agree that a hazina will forfeit her right of hizanat in any of the following cases : (a) by her apostasy, (b) by her marriage to a person not related to the child within the degrees of prohibited relationship, (c) by her misconduct, such as negligence or cruelty towards the child, and (d) by her going away and residing, during the subsistence of marriage, at a distant place from father's place of residence.

When Right to Hizanat may be Lost by Hazin

A male entitled to the custody of the child is known as hazin.

The Muslim law-givers have not dealt with the disqualification of a hazin in any detail but it seems to be clear that, just as in certain cases, a hazina may be deprived of the custody of the child, similarly, a hazin may also be deprived of it. Thus, a hazin, who is a minor, or ofunsound mind, has no right to the custody of the child.

A hazin, who is leading an immoral life, or who is a profligate, has no right to the custody of the child.

 Aghair-mehram is also not entitled to the custody of the child.

Any male relation of the child, who is not within the prohibited degrees by consanguinity, is not entitled to the custody of the child. The Muslim authorities lay down that a minor girl should not be handed over to an agnate not within the prohibited degrees, so long as a non-agnate within the prohibited degrees such as maternal uncle, is available. In short, if a marriage is possible between the hazin and the child, then the former is not entitled to the custody of the child. It is submitted that this prohibition can obviously apply in respect of female child only. Thus, a boy may be entrusted to the custody of the paternal uncle's son, but a girl cannot be. The basis of this rule is that where a marriage between the guardian and the girl is possible, the guardian is not entitled to the custody of the child. It seems that this rule is not recognized by the Shias.

Welfare of the Child is Paramount Consideration

Just as under the personal law of any other community, so also under Muslim law, in determining all questions relating to minor children, including custody, the welfare of the child is the paramount consideration. In Salamat Ali v. Majjo Begum, 1985 All 29 the Allahabad High Court observed that under the personal law if mother is entitled to custody of a minor child she could normally get it, but the court should also consider whether in so doing it would be for the welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her custody, then she should not be given custody of the child. The court should not give effect to the personal law, but should be guided by the paramount consideration of the welfare of the child.

(iv) De Facto Guardian

It appears that both Hindu law and Muslim law recognize de facto guardians to some extent : but what has happened is that by judicial interpretation the powers of the de facto guardians were enlarged under Hindu law, while they were limited under Muslim law.

When a person having no right to do so assumes the charge of another's estate and carries on the administration and management of the estate—this continuous course of conduct results in conferring on him the status of de facto manager. In respect of a minor's estate, such a person is known as de facto guardian.

Whether this status gives him some powers, or rights, different systems of law differ, yet all agree that it imposes on him certain liabilities and obligations. Thus, de facto guardianship is a concept under which past acts result in present status. A de facto guardian is a self-appointed guardian. A fugitive or isolated act of a person in regard to minor's property does not make him a de facto guardian, nor does staying with the minor for some time. It is only some continuous course of conduct in respect of a minor's property that makes him a de facto guardian.

Tyabji defines a de facto guardian as "an (unauthorized) person who as a matter of fact (de facto) has custody and care of the person and/or of his property".^

Powers of the De facto Guardian

The Muslim authorities classify the acts which are required to be done in respect of a minor under three categories, viz., acts of guardianship, acts arising out of the want of the minor, and acts which are purely advantageous to the minor. The Muslim authorities hold the view that the last two acts may be performed by a 'maintainer' or 'taker up' of the minor. The 'maintainer' or the "taker-up" may be relative or a stranger, but he is not a de jure guardian. He is nothing but a de facto guardian. But the Privy Council put a damper on de facto guardian's power at an early date.

In Matadeen v. Md. Ali, (1918) 45 Cal 878, the Privy Council said: "It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a de facto guardian. He may, by his de facto guardianship, assume important responsibilities in relation to minor's property, but he cannot thereby clothe himself with legal powers, to sell it.

Then came Imambandi v. Mustasaddi, 1952, SC 358 which is considered to be the leading case, and which laid down that under Muslim law a de facto guardian has no power of alienation of a minor's property, and that such an alienation, is void.

In Md. Amin v. Vakil Ahmed, (Also see, Anto V. Reoti, 1936 All 837 (FB); Mosiuddin v. Ahmed, (1920) 47 Cal 713; Md. Sardan V. Babu Gyanu, 1952 Nag 17; Rang Illahi v. Mahboob, (1925) 7 Lah 35; Kunhi BU v. Kalliani, 1939 Mad 881; Jhulan v. Ram, 1979 Pat 54) reiterating this position, the Supreme Court observed: A de facto guardian has no power to convey any right or interest in immovable property which the transferee can enforce against the minor. This has come to be the established position. It seems that such an alienation is void. But if a co-sharer and de facto guardian of a minor sells his interest as well as of the minor's, sale will be valid as to his interest but void as to the minor's.

There is sufficient authority for the view that a de facto guardian has the power to sell or pledge movable properties of the minor for the minor's imperative needs, such as food, shelter, clothing, or medical care.

If de facto guardian has alienated minor's property, it is the minor who can challenge the alienation. If the minor has not done so, no one else can do so. An alienation made by de facto guardian which is not binding on the minor can be challenged by the minor. But no third person has the authority to do so.

In Md. Amin v. Vakil Ahmed, the Supreme Court has ruled that a de facto guardian has no power to enter into a family arrangement on behalf of the minor.

It also seems to be clear that a de facto guardian has no power to refer a dispute relating to the minor's property to arbitration. The minor is not bound by any award rendered by the arbitrator in such a case.

Even if the de facto guardian is later on appointed as guardian by the court, the award will not be binding on the minor.

 Similarly, the de facto guardian has no power to sign an agreement on behalf of the minor for the continuance of a business in which minor's deceased father was a partner.

A de facto guardian can also not validate to an heir by consenting on behalf of the minor who is a co-heir.

The de facto guardian can borrow money for the minor's imperative needs. But if it is not done to meet the imperative needs of the minor, or, no emergent need for borrowing is shown, then such a debt will not be binding on the minor. Further, a de facto guardian cannot bind the minors by execution of a hand note for a debt which their father owed.

CHAPTER 9 Maintenance

The Muslim law of maintenance differs from the law of maintenance in most other systems of law, since in most cases the obligation of a Muslim to maintain another arises only if the claimant has no means or property out of which he or she can maintain himself or herself.

The dictionary meaning of the word nafah (maintenance) is the money someone gives to a person that they are legally responsible for, in order to pay for their food, clothes, and other necessary things. The implied meaning here is the money given by the husband to maintain his wife and children.

What is nafah (maintenance)?

Generally, it includes food, clothing, dwelling and other necessary articles, which are necessary for the livelihood and comfort of a woman. The basis for the liability of maintenance is marriage.

Under the Shariah, a wife cannot be compelled to cook and stitch her clothes; it is the husband who has to provide her with a servant for that work. The husband is also bound to provide her with a separate house or a separate portion of a house with a separate entrance or exit. If the wife resides at her parent’s house for a valid reason, her right of maintenance is not affected.

It is obligatory on the part of the husband to maintain his wife, behave with her on equitable terms and take proper care of the wife. If he has more than one wife, he should provide maintenance to all of them and treat them equitable, should not discriminate between them in providing maintenance and should not prefer one against the other.

In the valid marriage, it is the liability of the husband to maintain the wife. There is no liability of maintenance in case of an irregular marriage where irregularity is due to absence of witnesses at the time of nikah ceremony. Where the wife refuses to live with the husband due to non-payment of prompt dower, her refuses to live with the husband or return to his house due to some valid reason e.g. his cruelty, the right of maintenance is not affected.

The Muslim law of maintenance may be discussed from the point of view of the persons entitled to maintenance. Such persons are: (i) the wife or husband, (ii) the children, (iii) the parents and grandparents, and (iv) the other relations.

The Wife

The Muslim husband's obligation to maintain his wife arises in the following two circumstances; (a) on account of status arising out of a valid marriage, and (b) on account of a pre-nuptial agreement entered into between the parties to the marriage, or between the parents in case both the parties or one of them is a minor.

Obligation Arising out of Status

A Muslim husband is bound to maintain his wife even if she is rich, i.e., has means of her own, and notwithstanding that the husband is without any means. Under Muslim law, the wife's right of maintenance is a debt against the husband and has priority over the right of all other persons to receive maintenance.

A Muslim husband is bound to maintain his wife of a valid (sahih) marriage, and not the wife of a void or irregular marriage. Only in one case he is bound to maintain the wife of an irregular marriage, viz., when the marriage is irregular for want of witnesses. According to the Durr-ul-Muhtar, maintenance is due only to the wife who has been regularly married (i.e., when the marriage is Sahih), and if the marriage is found irregular, such as when he had married her while in idda for another husband, or if the marriage is void, such as when he had married his father's wife, then the man may demand back any money that he might have given to her for her maintenance.

However, it is immaterial that the wife is rich or poor, Muslim or non-Muslim, young or old, enjoyed or unenjoyed. The wife has also the right to pledge the credit of her husband for providing herself with maintenance.

In India, in all the schools of Muslim law, a wife who has not attained puberty is not entitled to maintenance. The husband's obligation to maintain his wife exists only so long as the wife remains faithful to him and obeys all his reasonable orders.

A wife does not lose her right to maintenance, if: (a) she refuses access to him on some lawful grounds, such as when the husband keeps a concubine, or is guilty of cruelty towards her (wife), or (b) marriage cannot be consummated owing to: (i) husband having not attained puberty, (ii) his absence from her without her prior permission, or (iii) his illness, or (iv) malformation.

A wife cannot release her right of maintenance except after it has become due.

Quantum of Maintenance.

The Hedaya lays down that the quantum of maintenance should be determined on the basis of rank and financial position of both the parties.

Imam Shafii was also of the view that the financial position of both the parties should be taken into consideration.

It seems that under the Hanafi law, rank and the financial position of both the parties are to be considered, while under the Shafii law only that of the husband.

The Shias lay down that the amount of maintenance is to be determined on the basis of wife's requirements of condiments, food, clothing, residence, service and implements of anointing, due regard being also had to the custom of her equals among her own people in the same city. The above requirements apply to each of the wives, where a person has more than one wife. It appears that the wife (and when there are more wives, each wife) is also entitled to a separate apartment for herself, free from intrusion of any person other than her husband.

Divorced Wife's Right to Maintenance and Dower

Prior to the Supreme Court decision in Md. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, a divorced Muslim wife was not entitled to any maintenance from her husband after the expiry of the period of idda.

The law is as under: Muslim law givers lay down different rules regarding the claim of maintenance by wife when the marriage is dissolved by death or when it is dissolved by divorce.

When the marriage is dissolved by death, the wife is not entitled to maintenance during the period of idda.

When a marriage is dissolved by divorce, the wife is entitled to maintenance during the period of idda.

If the divorce is not communicated to the wife even after the expiry of the period of idda, she is entitled to maintenance till it is communicated to her.

The Shias and Shafis lay down that the wife is not entitled to maintenance even during the period of idda, if the marriage is dissolved in the irrevocable form. They, however, admit that if the irrevocable divorce is pronounced during the period of pregnancy, the wife is entitled to maintenance imtil delivery.

The Muslim authorities also lay down that if the marriage is dissolved on account of wife's apostasy, or for some cause of criminal nature, then she is not entitled to maintenance even during the period of idda.

On the expiration of the period of idda, the wife is not entitled to any maintenance under any circumstances.

Muslim Law does not recognize any obligation on the part of a man to maintain a wife whom he had divorced.

In Arab Ahemadha v. Arab Bail, AIR 1985 SC at 952, the Gujarat High Court held that a divorced Muslim wife is entitled to maintenance even after the period of idda as well as under Section 125, Cr. P.C. She is entitled to reasonable and fair amount of maintenance, i.e., courts should see that divorced wife gets sufficient means of livelihood after divorce and that she does not become a destitute or is not thrown on the streets without a roof over her head and without any means of sustaining herself and her children. This is even after the passing of the Muslim Women (Protection of Rights and Divorce) Act, 1986.

Maintenance under Ante-nuptial Agreements

A wife may validly stipulate that in case the husband ill-treats her, takes a second wife or keeps a concubine, she will be entitled to live separately and claim certain amount (as laid down in the agreement) of maintenance against the husband.

Similarly, an agreement with the first wife at the time of the second marriage of the husband stipulating that if she would not be able to live amicably with the second wife, she would be entitled to live separately from him, and claim maintenance from him, is valid and enforceable.

An agreement with the second wife that she will live at her parent’s home and that the husband will pay her certain amount of maintenance is also valid.

An agreement under which the wife is allowed maintenance even after divorce is valid. In all these cases the wife is entitled to claim the amount of maintenance as stipulated in the agreement.

The wife is also entitled to the special allowance known by the name of kharch-i-pandan, guzara or mewa-khori, if stipulated in an ante-nuptial agreement between the parties to the marriage, or between their parents, in cases where the parties are minors.

In Ali Akbar v. Fatima, (1929) 11 Lah 85. under an anti-nuptial agreement it was agreed that, in addition to the amount of maintenance, the husband would also pay to the wife a sum of Rs. 25 monthly even when the wife lived separately from the husband. The agreement was held enforceable.

Maintenance Issues of Muslim Women in India:

On the continuance of marriage, it was held in a case that a husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. A husband is not bound to maintain a wife who disobeys him by refusing to live with him. But what degree of disobedience will disentitle of maintenance, it is immaterial that she has the means to maintain herself while the husband has no means.

The wife loses rights to maintenance in the following circumstances:

1. She is a minor, incapable of consummation

2. She refuses free access to him at all reasonable times.

3. She is disobedient.

4. She refuses to live with him in the conjugal home or abandons the conjugal home without any reasonable ground.

5. She deserts him. But if the husband is guilty of cruelty or keeping a concubine at home, she retains the right of maintenance.

The Holy Quran imposes an obligation on Muslim husbands to provide maintenance on their divorce wives. If the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for ceases with the expiration of the period of Iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Criminal Procedure Code 1973. This was the position prior to the passing of the Muslim Women (Protection of rights on Divorce) Act, 1986.

Muslim Women (Protection of rights on Divorce) Act, 1986:

Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of women.

A “Wife” includes a divorced wife for the purpose of Section 125. Hence, any women who has been divorced or has obtained divorced from her husband and has not remarried can seek a maintenance order against her former husband, if she is unable to maintain herself and her husband has failed to maintain her despite having sufficient means to do so.

On such an application by the wife, the Magistrate can order the husband to pay a monthly allowance (maximum up to Rs. 5000). If he fails to comply with the order of the Magistrate, the Magistrate can issue a warrant for levying the amount fixed in the order. If he still continues to evade the order and the amount remains unpaid in full or part, the Magistrate can sentence him to imprisonment up to one month or till due payment is made, whichever is earlier.

Under Section 127(3) the Magistrate shall also cancel the order has been passed gets remarried, where she was divorced by the husband and if she has received, whether before or after the date of the said order, the whole of the sum which under any customary or Personal Law applicable to the parties was payable on such divorce or where she had obtained divorced from the husband and if she had voluntarily surrendered her right of maintenance after her divorce.

The most important judgment, which changed the course of Muslim law regarding Muslim women in India, was Mohd. Ahmad Khan vs. Shah Bano AIR 1985 SC 945, the Supreme Court held that a Muslim husband is liable to provide maintenance to a divorced wife who is unable to maintain herself. The Court also held that dower is unable to maintain herself. The Court further held that the fact that deferred dower (mahr) is payable at the time of dissolution of marriage cannot justify the conclusion that it is payable on divorce. Divorce may be a convenient or identifiable point of that at which the deferred amount is to paid by the husband to the wife. Hence mahr in not the amount, which is mentioned under Section 127(3) (b). This judgment led to a large scale protests by Muslim throughout the country and it was regarded as interference into the Personal Law of the Muslims. The intense controversy led to the passing of the Muslim Women (Protection of Rights on Divorce) Act 1986.

Let us now examine the provisions of Muslim Women (Protection of Rights on Divorce)Act 1986.

It is a declamatory law.

The jurisdiction under the Act rests with the Criminal Courts to ensure speedy disposal of cases.

Definitions - Under Section 2(a) of the Act a “divorced women” means a Muslim law who was married according to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim law.

Section 2(b) defines “iddat Period” in the case of a divorced women as (i) three menstrual courses after the date of divorce if she is subject to menstruation, (ii) three lunar months after her divorce, if she is not subject to menstruation and (iii) if she is enceinte at the time of divorce, the period between the divorce and delivery of her child or the termination of her pregnancy, whichever is earlier.

Under section 2(c) a Magistrate means a Magistrate in the first class exercising jurisdiction under the Code Criminal Procedure 1973 in the area where the divorced women resides.

Section 3(i) lays down that notwithstanding anything contained in any other law for the time being in force, a divorced women shall be entitled to

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband

(b) where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children,

(c) an amount equal to the sum of mahr agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by fair provision and maintenance or the husband or any relatives of the husband or his friends.

Section 3(2) – Under the provision, where a reasonable and fair provision and maintenance or the amount of mahr or divorced women on her divorce, she or anyone duly authorized to a divorced women on her divorce, she or any one duly authorized by her behalf, make an application to the Magistrate for an order for payment of such provision and maintenance, mahr or dower, or the delivery of properties, as the case may be.

Under Section 3(3) where an application has been made under sub Section (2) by a divorced woman, the Magistrate may, if he is satisfied that

(a) her husband having sufficient means has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children, or

(b)the amount equal to the sum or dower has not been paid or that the properties referred to in clause(d) of sub Section (1) have not been delivered to her, make an order within one month of the date of filing of application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced women as he may determine fit and proper having regard to the need of the divorced women, the standard of life enjoyed by her during her marriage, and the means of her former husband and as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub Section (I)to the divorced women.

Section 3(4) – Under the provision, if any person against whom an order has been made under Section 3(3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or dower due in the manner provided for levying fine under the Code of Criminal Procedure, 1973, and may sentence such person for the whole or any amount remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one year or until payment, is made.

Under Section 4(1), if the Magistrate is satisfied that a divorced women has not remarried and is not able to maintain herself after the “iddat period”, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine as fit and proper. While making such order, the Magistrate shall have regard to the needs of the divorced woman the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such period as he may specify in the order. The provision says that if the divorced woman has children, the Magistrate shall order the parents of the divorced women to pay maintenance to her. The second provision says that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on a proof of such inability furnished to him, order that the share of such relatives as may appear to have the means of paying the same in such proportions as the Magistrate may think fit.

Under Section4 (2), if the divorced women is unable to maintain herself and she has no relatives as mentioned is sub Section (1), or such relatives or any of them have not enough means to pay the maintenance ordered by the Magistrate, or the other relative have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relative under the provision to sub-Section (1), the Magistrate may, by order direct the State Waqf Board functioning in an area where the women resides, to pay such maintenance as determined under sub Section (1)or to pay the shares of such of the relatives who are unable to pay.

Under Section 5, if on the date of the first hearing of the application under sub-Section (2) of Section 3, a divorced women and her former husband declare, by affidavit it or any other declaration in writing either jointly or separately that they would prefer to be governed by the provision of section 125 to 128 of the Code of Criminal Procedure, 1973 and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.

Section 6(1) provides for to make rules for carrying out the purpose of this Act.

Under Section 6(2) the rules for carrying out the rules may provide for the form of affidavit and deceleration to be filled under Section 5 and the procedure to be followed by the Magistrate while disposing of the application under the Act.

Section 7 is transitional provision. It provides that where an application by a divorced women under Section 125-127, Code of Criminal Procedure, 1973 is pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the provisions of this Act.

It was held in Aga Mohamed Jaffar Bindaneen vs. Koolsum Beebee, (1897)24 IA, 196, that a Muslim widow had no right of maintenance out of her deceased husband’s estate in addition to what she takes by inheritance or by will.

In Danial Latifi vs. UOI, AIR 2001,SC, 3958 the Supreme Court held that reasonable and fair provision and maintenance under Section 3(i) (a) is not limited for the iddat period, it extends for the entire life of the divorced wife, until she marries. The Court further held that right to a reasonable and fair provision referred to in Section 3 is a right enforceable and fair provision referred to in section 3 is a right enforceable only against the divorced women’s former husband and is in addition to what he is obliged to pay as maintenance. Reasonable and fair provision would be worked out with reference to the needs of the divorced women, the means of the husband and the standard of life enjoyed during subsistence of marriage.

Again in Sabra Shamim vs. Maqsood Ansari, (2004)9, SCC,616, it was held by the Supreme Court held that under Section 3(1) (a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986, a divorced wife is entitled to maintenance not merely till iddat period but for her entire life until she remarries.

Maintenance under Section 4 of the Act: In Tamilnadu Waqf Board vs. Syed Fatima Nochi, AIR, 1995, Mad, 88, the Court held that it is futile for a divorced women seeking maintenance to run after relatives who are not possessed of means to offer her maintenance and fighting litigation in succession against them in order to get negative order justifying her last resort of moving against the state Waqf Board. She can plead and prove such relevant fact regarding the inability of her relatives to maintain her in one proceeding and direct her claim against the State Waqf Board in the first instance.

Anti-Nuptial Agreement for Grant of Maintenance: In Muhammad Moinuddin vs. Jamal Fatima, (1921)ILR 43 AII 650 a case the parties had entered into a pre-nuptial agreement for grant of an allowance in case of disunion or dissension between the couple. On dissension the husband divorced her and the wife claimed the allowance. The Court held that contract valid and held the divorced wife to be entitled to receive the allowance as per the contract.

In Mydeen Beevi Ammal vs. T.N. Mydeen Rowthe AIR, 1951 MAD 992, the husband settled certain properties on his first wife for maintenance for her life (after he married for the second time without her consent). Subsequently, he divorced the first wife and fields a suit for the possession of the properties settled on her. The Court held the wife entitled to the income of the properties for her lifetime whether she was divorced or not.

Impotency of Husband: In Siraj Mohd. Khan Jan Mohd.Khan vs. Hafizunnissa yasin Khan, AIR 1981, SC, 1972. the Court held that impotency of husband amounts to both mental and legal cruelty, hence is a just ground for wife’s refusal to live with the husband and claim maintenance from him.

Cruelty: A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him. Attribution of un-chastity to a wife without justification or proof amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the claim of maintenance. In a case, the husband leveled false and baseless allegations of un- chastity on the wife, disowned the paternity of his two children and in another case, the husband made allegations of adultery against the wife. In both the cases, the Court held that the behavior of the husband amounts to cruelty and the wife is entitled to live separately and claim maintenance.

                                                            The Children

Welfare of the Child is Paramount Consideration

Just as under the personal law of any other community, so also under Muslim law in determining all questions relating to minor children, including custody, the welfare of the child is the paramount consideration. In Salamat Ali V. Majjo Begum, Baillie, 11, 103; The Hedaya, 147. the Allahabad High Court observed that under the personal law if mother is entitled to custody of a minor she should normally get it, but the court should also consider whether in so doing it would be for the welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her custody, the court should not give effect to the personal law, but should be guided by the paramount consideration of the welfare of the child.

Prophet Mohammed enjoined upon a person to maintain his children. The Fatwai Kazi Khan holds that a poor person shall not be compelled to maintain other than four classes of persons, his minor children, his daughters who have attained puberty, whether unmarried or thayyiba, wife and slaves. The primary obligation of maintaining children rests on the father. According to the Hedaya, The maintenance of minor children rests on their father, and no person can be an associate or partner in furnishing it. In Muslim law, a person has no obligation to maintain his illegitimate children. The Hanafis recognize the nurture in respect of illegitimate children upto the age of seven. No school of Muslim law recognizes any obligation whatever of maintaining illegitimate children on either of the parents. The father's obligation to maintain his illegitimate children exists under S. 125, Criminal Procedure Code, 1973.

Father's obligation to maintain minor children.—The primary obligation of maintaining children is on the father. The Muslim authorities have laid down that a father, who wilfully neglected or deserted his children or refused to maintain them, when he had means to do so, could be punished. This is not possible in modem India. The obligation to maintain children is a personal obligation of the father. The father is bound to maintain his children of both sexes of any creed or religion.

The father is required to provide maintenance even when the child is in the custody of the mother or any other person entitled to its custody. Even when the father has divorced the mother of the child, his obligation to maintain his children continues. Father's obligation to maintain his child even after he had divorced his wife is not affected by the Muslim Woman (Protection of Rights on Divorce) Act, 1986. This has been further reiterated by Supreme Court that right to maintenance of Muslim children is not affected by the Act even when they are living with the divorced wife. At one time it was thought that in such a case only bare maintenance need be provided, but this is no longer correct; the father has to provide full maintenance.

When it is said that father's obligation to maintain his children is personal, it does not mean that children's right to maintenance can be made a charge on father's property. The mere fact, that the father is in straitened circumstances, is no excuse for not maintaining the children. Any person, who provides maintenance for children or incurs debt for maintaining them, can recover the amount actually spent on their maintenance. Although the father's obligation to maintain his children is personal, it is not absolute. The father has no obligation if the children have their own property or income. In case it is necessary, the father has also the power of selling the property of his children. It is immaterial that the father is in a position to maintain them. The father's obligation to maintain his children arises only when the children have no property. However, if the father has maintained his children out of his own resources, he cannot recover the amount so spent on the children out of their property. Similarly, if the children are earning, then the father has the right to spend their earnings for their maintenance, though he is bound to keep the surplus in trust for them. However, the work, in which the children are employed or engaged, must be suitable to their station in life. Ordinarily, father's obligation to maintain children terminates on their attaining majority, exceptionally he has the obligation to maintain major children also. It was held major unmarried daughter cannot claim maintenance under Section 125, Cr. P.C. but under personal law. However, in this case the order was not interfered with.

Mother's obligation to maintain minor children.—The mother has the secondary obligation to maintain her children. rule is that when the father is poor and the mother is rich, then the mother is bound to maintain the children. But the mother has the right to recover the amount so spent on the maintenance of children as and when the father is in a position to repay it. Among the Shias, there is no such obligation on the mother, even when she is rich. Under the Shia law, if the father is poor, then it is the grandfather who is bound to maintain the grandchildren. The Hanafi law imposes the obligation of maintenance on the grandfather when both the parents are not in a position to maintain the children. In such a case the grandfather can recover the amount so spent on the maintenance of the grandchildren from the father as and when he is in a position to repay it.

Parental obligation to maintain major children,—Ordinarily, the parental obligation of maintenance comes to an end when the child becomes major. However, in certain exceptional cases Muslim law recognizes the parental obligation to maintain even adult children. Thus, the father is required to maintain an adult son who has been disabled on account of some disease, or physical or mental infirmity, or is engaged in study. In case the mother and father both are in a position to pay the maintenance of disabled adult children, then Muslim law lays down that both should do so. In such a case the ratio of payment between the father and mother will be 2/3 : 1/3.

If the adult daughter does not have any independent means of maintenance, then the father should maintain her till she is married. The Muslim law-givers hold the view that the father cannot hire out the female children for work or send them into service with any male person not related within the prohibited degrees. It is submitted that this rule is no longer valid in India. Under Muslim law, a parent has no obligation to maintain a married daughter. When the father is entitled to the custody of the daughter and offers to keep her with him, then the daughter is entitled to maintenance only if she lives with him, unless the circumstances justify her living apart.

Parents and Grandparents

The general rule is, thus, summed up by the Fatwai Alamgiri : "The children are required to support their aged and infirm parents so far as they are not able to support themselves". Under Muslim law, the obligation to maintain poor parents rests on sons and daughters, provided that they have means. If some of the children are themselves poor, then the obligation lies on those who are in easy circumstances. Muslim law lays down the following conditions for the maintenance of parents and grandparents : (i) the maintainer should be in easy circumstances, and (ii) the claimant should be poor. A person, who has sufficient means to be prevented from accepting alms, is considered to be a person in easy circumstances. A person, who cannot be prevented from begging, is poor. A Muslim has an obligation to maintain his poor grandparents, both maternal and paternal. The obligation is of the same nature as of the parents. However, if one's father or mother is alive, then one has no obligation to maintain his grandparents, since the children have a prior obligation to maintain their parents. Parents and grandparents are entitled to maintenance even if they have ceased to be Muslims.

Persons within Prohibited Relationship – Under Muslim law, a person, who is in easy circumstances, i.e., not poor, has an obligation to maintain his poor relations within the prohibited degrees.

Muslim law does not recognize any obligation to maintain those relations who are not within the relationship of prohibited degrees by consanguinity, even though poor. The second requirement is that such a relation must be poor, i.e., without means. Ordinarily, a Muslim has no obligation to maintain his relations by affinity. Thus, a Muslim has no obligation to maintain his widowed daughter-in-law. But it seems that a Muslim has an obligation to maintain the wife of his son, if the son is too young and has neither the means nor the ability to earn. Similarly, a Muslim has an obligation to maintain his stepmother, if she is weak and infirm, and without means to maintain herself. But it seems that it is more in the nature of a moral than a legal obligation.

Chapter 10. Hiba (Gifts)

1. Definition of Hiba

The Muhammadan Law defines the Hiba or gift as a transfer of a determinate (amount of) property without any exchange from one person to another, and accepted by or on behalf of the latter. It is clear that under Muslim law, a gift is called Hiba. When a Muslim transfers his property through gift, the transfer is called Hiba. The religion of the person to whom the gift is made, is not relevant. If the transferor is Muslim, the gift is Hiba. Thus, where a Muslim makes a gift of his properties in favour of a Hindu, the gift is nonetheless a Hiba. In India, the subject of gifts is governed by the Transfer of Property Act, 1872. Chapter VII of this Act is applicable to gifts made by any person in India, irrespective of religion, caste or creed. But, Chapter VII of the Transfer of Property Act does not apply to Muslim gifts or the Hiba.

2 Constitutionality of Hiba:

The Transfer of Property Act, 1882 contains besides general principles relating to transfer of property-the laws relating to sale, mortgage, charge, lease, and exchange, transfer of actionable claims and gifts of property. All the Chapters of this Act except that on gifts are applicable to the Muslim. As regards the general principles relating to disposition of property contained in Chapter 2 of the TPA, the Act declares that ‘nothing in the second Chapter of this Act shall be deemed to affect any rule of Mohammedan Law. This exemption may appear to be discrimination on the ground of religion which is against the Article 14 (i.e., right to equality) of the Indian Constitution. But in Bibi Maniran v. Mohd. Ishaque, AIR 1963 Pat 229, the court now made it clear that this exemption is constitutional and lawful. Muslim gift or the Hiba has been associated and has also been included in the Shariat Act, 1937, to be regulated only by Muslim personal law. Therefore, the exemption under Section 129 of the Transfer of Property Act does not violate Article 14 of the Constitution of India.

Essentials of a Valid Hiba

1. Qualifications for the Parties 2. Subject matter of a Hiba 3. Formalities of a Hiba

1. Qualifications for the Parties:

A. Capacity for a Donor (Wahib):

A donor, who has the following qualifications, has capacity to make a Hiba :

i. Mohammedan: A donor must be a Mohammedan.

ii. Sex: A donor may be a male or female.

iii. Status: A donor may be married or unmarried.

iv. Age of Majority: A donor must have attained the age of majority. The age of majority is the age prescribed under Section 3 of the Indian Majority Act, 1875 as amended in 1999, which now means eighteen years.

v. Ownership of Property: The person making a Hiba must be the owner of the property which is the subject matter of the Hiba. In other words, the ownership of the property must be with the donor, at the time of making a gift. A gift by a widow who is in possession of the property of her husband in lieu of dower cannot make a gift of such property.

vi. Free Consent : A gift made under compulsion is not valid but voidable. Free consent of the donor must be associated with the gift when a gift is made by a pardanasheen lady, the proof of independent outside advice is the usual mode of discharging the burden by the donee that the gift was free from compulsion. The gift will be valid, if the pardanasheen lady had the advantage of independent advice, and the contents of the deed were fully explained to and understood by her.

B. Capacity for a Donee (Mahub-lahu)

A donee, who has the following qualifications, has capacity to take a Hiba:

i. Mohammedan: A donee may be a Mohammedan or non-Mohammedan. After the completion of the gift, to a non-Mohammedan, the property will be subject to the personal law of the donee.

ii. Sex: A donee may be a male or female.

iii. Status: A donee may be married or unmarried.

iv. Age of Majority: A donee may be a major or minor.

v. Soundness or unsoundness of mind: A donee may be an insane. But when a gift is made to a minor or a person of unsound mind, the gift will be complete by the delivery of possession to the guardian of the minor or of the person of the unsound mind.

vi. Existence of a donee or Child in Womb: A Hiba cannot be lawfully made in favour of an unborn person. Such a Hiba to unborn person is invalid, with one exception. For example, if the donor makes a gift of some property to a donee and after his death to donee’s son who is not in existence, such gift will be void. But a gift to an unborn donee, who is in womb and is born within 6 months of making of the gift, is valid. Therefore, the child in its mother’s womb is a competent donee. Although the child in mother’s womb has no worldly existence yet, in the eyes of law it is regarded as a living person. Under the Muslim law, a gift in favour of a child in the womb is valid provided such child is born alive within six month from the date on which the gift was made.

vii. A Hiba cannot be made in favour of a dead person. When a widow makes a Hiba of her Mehr to her deceased husband, though such a transaction if called Hiba-a-Mehr. It is in fact a unilateral foregoing of the right to Mehr by the widow to which the principle of ‘Hiba’ do not apply.

viii. And a gift of future usufruct to unborn person is valid provided the donee is in being at the time when interest opens out of heirs.

ix. Joint donees : A Hiba jointly in favour of two or more persons is not ipso facto invalid. In other words, a gift may be made jointly to two or more persons but the shares of each should be clearly specified. For example, if a gift of a property capable of being divided is made to two or more person without specifying their shares or without dividing them, then the gift is not valid but if such donees themselves make any mutual arrangement and take possession of their individual shares, then the gift is valid.

2. Subject-matter of a Hiba (Mouhub):

A Muslim can make a Hiba of the whole of his/her property. Every form of property or right which has some legal value may be the subject-matter of a Hiba. However, the property must be transferable under Section 6 of the Transfer of Property Act, 1882. As a matter of fact, any property (mal) over which ownership may be exercised, may be transferred through a gift. Tangible as well as intangible property may be the subject matter of a gift. Whatever is mal according to Muslim jurisprudence can be lawfully subjects of gifts at Muslim law.

3. Formalities of a Hiba

Under the Muslim law, for the validity of a gift, the following formalities must be complied with:

i. Clear and unequivocal declaration by the donor

ii. Acceptance by the donee

iii. Delivery of possession.

i. Clear and unequivocal declaration by the donor:

The first condition required for the validity of a gift is the declaration of intention. Such declaration may be made orally or in writing. A clear and unequivocal declaration of intention of making a gift by the donor or his agent the first is essential element of the validity of a gift. The form of declaration is not immaterial. Such declaration of intention must be bona fide. Such declaration may be made orally or by writing a deed. A gift made with the intention of defrauding creditors, of the donor, will be invalid because there is no bona fide intention with the property and continues in possession.

Such declaration may be made by the donor himself or his agent.

ii. Acceptance by the donee: The second condition necessary for the validity of a gift is acceptance by the donee or his agent. Such acceptance may be made expressly or impliedly. (Munni Bai v. Abdul Gani, AIR 1959 MP 226).

Acceptance is not required in the following cases:

a. Where the gift is made by the guardian to his ward: A gift may be made by a guardian to his ward, and in such cases, acceptance of the wards is not necessary. But if a gift is made to minors other than the guardians, then acceptance of the minor is required.

b. Where the gift of a debt is made to the debtor: A gift of a debt may be made to a debtor. In such a case the acceptance of the debtor is not required but a debtor may refuse to accept the gift of the debt. But a surety is not released from the debt unless the debtor accepts         

iii. Delivery of Possession :

A gift is complete only after the delivery of the possession. So the third and most essential condition required for the validity of a gift is delivery of possession of the property whether movable or immovable of gift. A gift not accompanied by possession is void ab initio. Under the Muslim law, a gift is complete only after the delivery of the possession.

Exception to actual delivery of Possession : In every case of property, whether movable or immovable, actual or physical delivery of possession must be made except in few cases. In such cases symbolic or constructive delivery of possession is sufficient. The exception are :

a. Joint residence of the donor and the donee : When the donor and the donee are both residing in the house, which is subject-matter of gift, the actual or physical delivery of possession is not necessary, in such a case the gift will be completed by some overact by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the property.( Mohd. Ibrahim Khan v. LRs. Of Azad Rasul & others, AIR 2008 (NOC) 187 (Raj); Mst. Husaina Bai v. Mst. Zohara Bai, AIR 1960 MP 63; Mohd. Saleem v. Abdul, AIR 1972 Pat 279)

b. Property in possession of other persons : The property of gift may not be in the possession of the donor himself but in the possession of some other person like as a mortgagee, tenant or licensee. This property of the gift may be held adversely by other persons or under attachment of arrears of revenue. A valid gift may be made of the possession of a mortgagee, even if the donor makes a constructive delivery of possession. Such a possession may be made by the donor by handing over the gift-deed and divesting himself of his title, right and interest in the property. When the property is in the occupation of tenants, a valid gift may be made without giving physical delivery of possession but by delivering title-deeds or by mutation in the revenue records.

c. Gift between spouses : When a husband or a wife makes gifts to each other of some property in their joint possession, then the physical delivery of possession is not required. Where the donor handed over the keys of the house to his wife, the subject-matter of the gift, the gift would be valid even though the husband continued to live in that house.

d. Gift by a guardian to his ward: In the case of a gift made by a guardian to his ward, actual delivery of possession is not necessary, only an indication of a bona fide intention to stand in loco parentis to the donee or is in lawful custody of donee.

Revocation of Gift

Under Islamic law all voluntary transactions are revocable, therefore this revocability should also be attributed to Gift. Gift is a voluntary and gratuitous transfer of property. The donor makes a gift of the properties of his own free will and the transfer without any consideration or exchange.

In the transfer of property by way of gift, there are three stages : Declaration, Acceptance and the delivery of possession. As discussed earlier without the delivery of possession there is no gift at all.

Revocation before delivery of possession: Delivery of possession makes a gift complete, so before the delivery of possession all gifts are revocable. A gift may be revoked by the donor at any time before the delivery of possession. A mere declaration by the donor that he has revoked the gift is sufficient.

Revocation after delivery of possession: When delivery of possession is made by the donor, the gift becomes complete. After the delivery of possession, the gift cannot be revoked by donor through mere declaration.

For the revocation of such a gift, there are two ways:

Exception or Irrevocable Gift: There are certain exceptions, when even after the delivery of possession, a gift cannot be revoked. Such exception are according to the Hanafi law, exceptions are as follows:

i. Gift between the spouses: A gift between the spouses is irrevocable, if made only during the subsistence of their marriage, even though the marriage is irregular and is dissolved afterwards.

ii. Relationship by prohibited degrees : When the donor and the donee are related within prohibited degrees, by consanguinity, the gifts are irrevocable. Gift in favour of persons other than related by blood, is not irrevocable. For example, a gift in favour of a brother is irrevocable and in favour of a son-in-law is revocable because son-in-law is not a blood relation.

Shia Law : Under the Shia law, a gift to a relation whether within the prohibited degrees or not, is not revocable, but irrevocable.

iii. Death of either party : The right of gift is personal right and so if either the donor or the donee dies, the gift is irrevocable, their heirs have no right of revocation.

iv. Where the donee has transferred the property to another person : After completion of the gift the donee becomes an absolute owner of the gifted property. As such, the donee may transfer that property to another person. In such cases, interest of that third person would be affected and he would be put to loss without any fault of his own.

v. Where the property is lost or has been destroyed : After revocation of a gift, the property should revert back to the donor but if it is lost or destroyed there would remain nothing to be given back to the donor.

HIBA-BIL-IWAZ

Hiba-bil-Iwaz is a peculiar concept of the Muslim personal law. Hiba means gift and Iwaz means consideration or return. Hiba-bil-iwaz, is, therefore, a gift with an exchange or a gift for consideration. Under all the systems of law there cannot be any consideration or exchange in the transaction of gift. But Muslim law recognises a gift with an exchange as a kind of Hiba. If a gift has duly been made and completed, but subsequently the donee also gives something to the donor in lieu of this gift, then the gift is called Hiba-bil-Iwaz. Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions which together make up Hiba bil Iwaz.

Essentials of Hiba-bil-iwaz :

The following two conditions are necessary to render a transfer as Hiba-bil-Iwaz :

I. A valid and complete gift by the donor to donee. It means the three essentials condition for a valid Hiba is essentials namely, the declaration, acceptance and delivery of possession. Every Hiba-bil-Iwaz is pure gift in its inception. But as soon as the donee also makes a gift in return of the original gift, the original gift becomes Hiba-bil-Iwaz.

II. The donee must may something to the donor after the completion of the gift. If donee pays the consideration, the gift is Hiba-bil-Iwaz. It the donee does not pay, the gift continues to be pure Hiba. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam, AIR 1939 Lah 292 held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient.

III. It is important here that donee must mention it clearly that he is transferring the property to doner in return of a gift made to him.

The consideration (iwaz) paid by the donee to the donor, need not be equal to the value of the property gifted. It may be a nominal consideration or less in value as compared to the subject matter of the gift. In this regard, the Privy Council observed: Undoubtedly, the adequacy of the consideration is not the question. A consideration may be perfectly valid which is wholly inadequate in amount when compared with the thing given. Some of the cases have gone so far as to say that even a gift of a ring may be sufficient consideration.

Difference between Hiba and Hiba-bil-Iwaz

1. A Hiba is a transfer of some property or right by one person called donor to another called donee, without any consideration. But a Hiba-bil-Iwaz is a Hiba for consideration or in return or Iwaz of something.

2. In Hiba-bil-Iwaz , there are two transactions, one is for a Hiba and the second is for the return or iwaz but in Hiba there is only one transaction. Both these transactions together are known as a Hiba-bil-Iwaz.

3. Indian Hiba-bil-Iwaz is in reality a sale and has all the incidents of a sale.

HIBA-BA-SHART-UL-IWAZ

Shart means stipulation and Hiba-ba-Shart-ul Iwaz means a gift made with a stipulation for return. Unlike in Hiba-bil-Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect.

It has the following requisites –

1. Delivery of possession is necessary.

2. It is revocable until the Iwaz is paid.

3. It becomes irrevocable after the payment of Iwaz.

4. Transaction when completed by payment of Iwaz, assumes the character of a sale.

Difference between Hiba-bil-iwaz and Hiba-ba-shartul-iwaz :

i. In Hiba-bil-Iwaz the consideration is paid by donee voluntarily whereas in Hiba-ba-Shart-ul-Iwaz its payment is a condition precedent.

ii. In Hiba-bil-Iwaz the consideration is at the will of the donee but in a Hiba-baShart-ul-Iwaz the value and kind of consideration is at the direction of the donor.

iii. Hiba-bil-iwaz is not Hiba, it is either sale or exchange whereas Hiba-ba-Shartul-Iwaz is treated as Hiba.

iv. Doctrine of Musha is not applicable to Hiba-bil-Iwaz whereas this doctrine is applicable to Hiba-ba-Shart-ul-Iwaz.

v. Since Hiba-bil-Iwaz is not a gift, it is sale or exchange, therefore, it must be in writing and registered. On the other hand, writing and registration is neither necessary nor sufficient for Hiba-ba-Shart-ul-Iwaz.

Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz

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

Gift of Musha or Gift of undivided share :

The word Musha means an undivided share or part in a property. Such property may be movable or immovable. Under Muslim law, Musha signifies an undivided share in a joint property. Musha is therefore, a co-owned or joint property. If one of the several owners of this property makes a gift of his own share, there may be confusion as to which portion or part of the property is to be given to the donee. Under the Hanafi doctrine of Musha, gift of a share in the co-owned property is invalid (irregular) without partition and actual delivery of that part of the property to the donee. However, if the co-owned property is not capable of partition or division, the doctrine of Musha is inapplicable.

A. Musha Indivisible : Gift of Musha indivisible is valid. There are certain properties which are by nature indivisible. The physical partition or division of such properties is not practical. For example, bathing ghat, a stair case or a cinema house etc., are indivisible Musha properties. Where a stair case is co-owned by, say two persons, then each being the owner of half of the stain-case, is entitled to make a Hiba of his share. But, if the stair-case is divided into two parts, it would either be too narrow to be used or it would become useless.

The doctrine of Musha is not applicable where the subject matter of gift is indivisible. According to all the schools of Muslims law, a gift of Musha indivisible is valid without any partition and actual delivery of possession.

B. Musha Divisible:

Where the subject-matter of a Hiba is Musha-divisible, the Hanafi doctrine of Musha is applicable and the gift is not valid unless the specific share, which has been gifted, is separated by the donor and is actually given to donee. However, under the Hanafi doctrine of Musha, the gift without partition and actual delivery of possession is not void ab initio, it is merely irregular (fasid). The result is that where such a gift has been made, it may be regularised by a subsequent partition and by giving to the donee the actual possession of the specified share of the property. It is evident, therefore, that the doctrine of Musha is limited, both in its application as well as in its effects.

Illustration

(a) A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift.

(b) A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law, A can give his undivided share of the wheat to D if he withdraws control over it but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D.

Chapter 11. Administration of Estates

The concept of administration of estates was introduced in India for the first time during the British rule by the Probate and Administration Act, 1881. This was merely an enabling statute. The Probate and Administration Act, 1881, was replaced by the Indian Succession Act, 1925. In modem India, the administration of the estate of a deceased Muslim as well as of the members of other communities, is governed by one uniform law, viz., the Indian Succession Act, 1925. It should be noted that the substantive law that is applicable to the estate of a deceased Muslim is still Muslim law, i.e., the law of the school to which the deceased belonged at the time of his/her death. At the same time, it should also be noted that if the deceased Muslim had married under the Special Marriage Act, or his marriage was registered under that Act, the succession to his estate, including the substantive law, will be entirely governed by the provisions of the Indian Succession Act, 1925.

Administration —The administration of estate means that the estate of the deceased is to be applied successively to the payment of funeral expenses (not the amount spent in ceremonies performed for securing the peace of the soul of the deceased), expenses of proceedings for obtaining probate or letters of administration, wages and services rendered to the deceased within three months of his death, debts of the deceased, and legacies. The remaining estate is to be distributed among the heirs.

Legal representative—As a general rule, the executor or administrator (or in their absence, the heirs) of a deceased Muslim is his legal representative, and all the assets of the deceased vest in him. It is the duty of the executor or the administrator, where there is one, to collect the assets, discharge the debts, pay the legacies, and distribute, the balance of assets among the heirs. However, even when a Muslim, dies leaving behind a will, it is not necessary for the executor to obtain the probate of the will. But, if the debts due to the deceased are to be recovered, the representation is necessary, as no court of law will pass a decree in favour of the estate of the deceased unless the representation, in any form, as laid down in the Succession Act, 1925, is obtained. Thus, when a deceased dies leaving behind a will, the probate may be obtained. In case he dies intestate, the letters of administration may be obtained. In case the executor is not able to carry out the administration in his life time, he can, under the Hanafi. law, appoint a successor to himself to carry out the purpose of the will. In case he dies without appointing a successor, it seems, the appointment of another executor by the Court will be necessary. The Shia authorities hold the view that unless an executor has been authorized to nominate his successor by the testator, he has no power of appointing a successor to himself. Where there is more than one executor, the survivors are competent to continue to act as executors. It seems that under Shia law, the court has no power of appointing an executor so long as there is any surviving executor.

After the payment of funeral expenses and debts of the deceased, the executor, under Muslim law, acts as an active trustee in respect of bequeathable one-third, and as a bare trustee for the heirs in respect of the remaining two-third. The powers and duties of executors and administrator are laid down in the Indian Succession Act. These provisions also apply to executors and administrators of a Muslim.

According to the strict Muslim law, a non-Muslim cannot be an executor, but in modem India a non-Muslim can be validly appointed as an executor.

In case an executor appointed under a will does not obtain probate, the court has power to appoint any person as an administrator with the will annexed. The letters of administration may be granted to a person who is an heir, legatee or creditor of the deceased. Any person claiming an interest in the estate of the deceased may bring a suit for administration for the purpose of ascertainment of the estate and of debts and liabilities relating to it, for a proper allocation of debts to the properties to which different rules of descent apply, for accounts, and for the declaration and delivery of the interests therein to those entitled to him.

Vesting of estate.—

The estate of the deceased vests in the executor, where there is one, and it vests in him, even if no probate was obtained by him. In case the letters of administration have been obtained, the estate vests in the administrator. If there is neither an executor nor an administrator, then the property vests in the heirs. The law may be stated thus:

A. When a Muslim dies leaving behind a will whereimder he had appointed an executor, then his estate vests in him, as he is the legal representative of the deceased.

In particular:

(i) the bequeathable one-third vests in him for the purpose of the will, and

(ii) the rest vests in him as a bare trustee for the heirs.

An executor is required to do the following: (a) to collect all the assets of the deceased, including the debts, (b) to pay all charges against the estate, such as funeral expenses, (c) to pay the debts of the deceased, (d) to pay the legacies, and (e) to distribute the remaining property among the heirs. Although it is not necessary for an executor to obtain the probate, but no court will pass a decree against a debtor of the deceased, or allow execution proceedings, unless probate is obtained. For the purpose of realization of the debts of the deceased, an executor who had not obtained the probate might obtain a certificate under the Administrator General's Act, 1963, or a succession certificate under the Indian Succession Act, 1925.

B. In case a Muslim dies intestate and letters of administration have been obtained, then the assets of the deceased vest in the administrator. The administrator is the legal representative of the deceased.

An administrator is required to do the following: (a) to collect the assets and debts of the deceased, (b) to pay all the charges against the estate, such as funeral expenses, (c) to pay the debts, and (d) to distribute the balance among the heirs.

C. When a Muslim dies without appointing an executor, or dies intestate, and no letters of administration have been obtained, then the property of the deceased vests in the heirs. In such a case, the heirs are also the legal representatives of the deceased. But neither a decree can be passed against the debtors of the deceased, nor can execution proceedings be launched against judgment-debtors of the deceased unless : (i) a certificate is obtained under the Administrator General's Act, or (ii) a succession certificate is obtained under the Indian Succession Act, 1925.

When the estate vests in the heirs it vests in them not jointly but in severality as from the time of the death of the deceased in proportion to their respective shares in the estate. They hold it subject to the payment of the charges and debts in proportion to their shares in the estate, and also subject to the payment of legacies, if any, upto the bequeathable one-third.

Legal Actions Against and on Behalf of the Estate of the Deceased

Under Muslim law, the estate of the deceased devolves on the heirs the moment he dies, and heirs are free to distribute it among themselves at any time thereafter. "The estate of Muslim dying intestate devolves under the Islamic law upon his heirs at the moment of his death, i.e., the estate vests immediately in each heir in proportion to the shares ordained by the personal law and the interest of each heir is separate and distinct. Each heir is under the personal law liable to satisfy the debts of the deceased only to the extent of the share of the debt proportionate to his share in the estate." It is not incumbent upon them to postpone the distribution of assets till the debts are paid. However, each heir is liable for the debts of the deceased |to the extent of his share, even after the distribution of assets of the deceased but no more.

Suit by creditors—When a Muslim dies indebted, the creditors may sue the executor or administrator, and, in the absence of an executor or administrator, the heirs, for the realization of their debts. In case the estate of the deceased has not been distributed among the heirs, a creditor can execute a decree against the entire estate, irrespective of the extent of the liability of each heir.

Recovery of debts due to the deceased—It has been seen earlier that a suit for the recovery of debts due to a deceased Muslim may be filed by an executor, administrator or an heir. Such a suit can be filed by an executor who has obtained probate of the will, or by an administrator to whom letters of administration have been issued.

Heirs liability to pay debts—The nature of the liability of the heirs to pay the debts is not a joint liability. Each heir is to pay the debts proportional to the estate that he gets. The heirs of a Muslim dying intestate on whom falls the liability to discharge the debt, proportionate: to their respective shares in the estate devolved, can hardly be classified as joint contractors, partners, executors or mortgagees. They are by themselves independent debtors, the debt having been split by operation of law. Inter se they have no jural relationship as co-debtors or joint debtors so as to fall within the shadow of contractors, partners, executors or mortgagees or in a class akin to them. They succeed to the estate as tenants-in-common in specific shares. Therefore, the acknowledgement of the debts by only one heir can be confined to himself and cannot be extended to the other co-heirs, for they are independent debtors, and not as an agent, express or implied, on behalf of other co-heirs could not be said to be a payment on behalf of all so' as to extend period of limitation as against all. The fact that the heir acknowledging the debt by making payment was in possession of entire estate and had not parted with it by means of partition to the other co-heirs, would not make him liable for entire debt.

Alienations

Alienation by an heir of his share before the payment of debt.—Since the estate of a Muslim vests in the heirs immediately on his demise, a heir has the power of alienating his share and pass a good title to a bona fide alienee for value, even if no distribution of assets of the deceased has taken place, and notwithstanding the outstanding debts of the deceased. Under Muslim law, a sale of his share by an heir in execution of a decree of his creditor amounts to a transfer and passes a good title to the transferee. If an alienation is made by an heir during the pendency of a suit of a creditor of the deceased in which a charge is created on the estate, then the transferee will take the. property subject to the charge.

Alienation by an heir for payment of debt—

When one of the heirs of a deceased is in possession of the entire estate, he has no power of alienating out of the estate of the deceased more than his share, even for the discharge of the debts of the deceased." If he does so, then such an alienation operates as a transfer of his interest in the estate, and is not binding on the other heirs and creditors of the deceased. It is possible that an heir may mortgage his undivided share in some of the properties of the deceased. In such a case the mortgagee takes the property subject to the right of other heirs to enforce a partition. When a partition is made on the suit of other heirs, and the mortgaged properties are allotted to the share of some heirs other than the mortgagor, then the heir takes the property free from the mortgage and the mortgagee can proceed only against the properties allotted to the mortgagor, unless fraud is pleaded.

CHAPTER 12 Succession

The Islamic laws of inheritance can be divided into Hanafi law of succession and Shia law of succession, both of which derive from the common law of India. They have the force of law by virtue of the Muslim Personal Law (Shariat) Application Act, 1937. The source of the rules of succession under Islamic law comes from the Holy Quran, Hadith, Ijma, and Qiyas. The rules of succession come into play only upon the death of the ancestor, and only then does his property vest in his heirs.

Intestate succession in Islamic law

Succession refers to the transmission of the property of an ancestor upon his death, to the rightful heir.

Where the inheritance of property is carried out according to the Will of the deceased, it is called testamentary succession.

In some cases, the deceased dies without leaving a will, and hence the succession is executed according to the general rules. This is called Intestate succession.

The fundamentals of intestate succession were compared to pre-emptive rights in the case of Gobind Dayal vs Inayatullah (1885). The Islamic succession is derived from the customary law of succession and is based on a patriarchal family system. After attaining the age of majority, a girl, as well as a boy, have equal rights to hold and dispose of the property inherited. They can lease it, mortgage it, or bequeath the property for themselves.

The Surah IV of the Quran states that “From what is left by parents and those nearest related, there is a share for men and a share for women, whether the property is small or large- a determinate share.”

In order to understand the rules of succession, it is crucial to know the meaning of the following:

Agnates: A person who is descended from the same male relation. For eg.: son, son’s son, son’s son’s son, etc.

Cognates: A person who is related to the deceased through a female relation. For eg.: Daughter’s son, mother’s father, etc.

Collaterals: Descendants in parallel lines from the ancestors. They can be either agnate or cognate. For Eg.: Consanguine brothers, Paternal aunts, etc.

Heir: A person who is entitled to inherit the property of another, after his death is an heir.

General principles of inheritance

Following are the general principles followed while under Islamic law:

1. Nature of Property: The property of the deceased becomes heritable only after the payment of funeral expenses, debts, and legacies. The remaining property, whether movable or immovable, is heritable. Muslim law does not differentiate between corpus or usufruct, corporeal or incorporeal property. There is no concept of ‘joint family property’ and ‘separate property’.

2. The Doctrine of Representation: Doctrine of representation refers to the principle of representation of a pre-deceased father by his son for the purpose of inheritance of the property of the pre-deceased father’s father. However, this doctrine is not recognized under Islamic law. The nearer heir excludes the remoter one in Muslim law. This means that if two people claim the inheritance, it will be determined according to the degree of closeness to the deceased.

3.  No birthright: The Islamic inheritance can only be availed upon the death of an ancestor. A person cannot be an heir of a living person. The right of inheritance, thus, is not a birthright. Until the death of an ancestor, a heir apparent is a mere spes successionis (chance of succession).

4. The Succession of murdered deceased: A person who causes the death of the deceased is not entitled to inherit property, whether the murder was intentional or by accident. Any act committed by the heir apparent which causes the death of his ancestor, punishable under the law, forbids him to inherit the ancestor’s property.

5. Illegitimate child: An illegitimate child is considered to be the child of the mother only. Hence, it cannot inherit from the father, and neither can the father inherit from it. Inheritance rights exist only between the child and its maternal relations.

6. Missing person: The Islamic law is not clear regarding the period for which the share of a missing person should be held. This is because of the uncertainty of the fact as to whether he is alive or dead. The Indian Evidence Act, 1872 prescribes under Section 108 that if it is proved that a person is missing for 7 years and has not been heard of, then the burden of proof of his life is on the person to affirm it. In other words, a person who has not been heard of for 7 years is legally presumed dead and the inheritance of his properties is commenced.

7. Apostasy: A person who changes into a different faith than Islam or an apostate is not entitled to inherit the property of a deceased Muslim under Islamic law. However, Section 3 of the Caste Disabilities Removal Act, 1850 abolished this disability. In India, an apostate is entitled to inherit the property of a deceased Muslim, but his descendants are not entitled to inherit.

8. Escheat: In the cases where a deceased dies without leaving behind any heirs, then his property is inherited by the State. The State is considered to be the heir of every deceased.

9. Child in the womb: A child in the womb is considered to be a living person provided that he is born alive. Hence, a child in the womb can inherit the property of the deceased.

Classes of heirs

The heirs under Islamic law can be divided into three classes. This division is made keeping in mind the closeness to the deceased. Under intestate succession, two primary questions are required to be answered:

(i) Who are the heirs of the deceased?

(ii) What is the share of each of the heirs?

The Islamic law divides heirs into 7 classes, 3 principal classes and 4 subsidiary classes. The principal classes are:

Quranic heirs or Sharers or dhawul-furud

Agnatic heirs or Residuaries or asabat 

Uterine heirs or Distant kindred or dhawul-arham    

The subsidiary classes are:

Successor by contract

Acknowledged kinsman

Sole legatee

Escheat

Upon the death of the deceased, the first step is to make the payment for funeral expenses, debts and legacies of the deceased. Next, the property is divided amongst the respective relations or sharers in proportion to the shares they are entitled to receive. If any residue remains, it is then divided among the residuaries. If there are no sharers and residuaries, the whole property will be inherited by the distant kindred. 

A successor by contract is a person who entered into a contract with the deceased before his death, in consideration to receive a payment. This payment can be interest, fine etc. An Acknowledged kinsman is a person with whom the deceased made an acknowledgement of kinship. Like, a man can acknowledge another as his brother, who becomes an acknowledged kinsman. In the absence of any relation in the principal classes and the first two subsidiary classes, a person who is entitled to inherit the property of the deceased is known as the sole legatee. Finally, in the absence of any of the principal or subsidiary classes, the property of the deceased is inherited by the State and his whole estate would escheat to the Government.

Quranic heirs

The Quranic heirs or the sharers are those relations of the deceased whose shares have been determined by the Quran. Their share and the order of preference in succession is fixed under the Quran. There are 12 Quranic heirs.

Husband: A surviving husband inherits his wife’s property. In case he has a child or child of a son how low soever, his share is ¼ of the heritable estate. But if he does not have a child or child of a son how low soever, then he inherits ½. 

Wife: A surviving wife is entitled to receive ¼ of the heritable property where the husband has not left any child or son’s or grandson’s child. If the husband has left a child, then the wife inherits ?. In the exceptional cases where there is more than 1 wife, then they have to divide this share equally amongst themselves. 

Father: The father becomes a Quranic sharer only if the deceased has left a child or son’s or grandson’s child. Otherwise, he is not a Quranic sharer. A father who is a Quranic heir inherits ? of the deceased estate.

Mother: There are 3 distinct scenarios for the mother’s inheritance:

? share – Where there is a child or son’s child how low so ever or where there are 2 or more brothers or sisters or 1 brother and 1 sister, whether full, consanguine or uterine.

? share – When there is no child or child of the son how low so ever and no brothers or sisters.

? of remaining share after deducting the wife’s/husband’s share – Where there is a father and a wife/husband.

5. Maternal Grandmother: In cases where the mother of the deceased is absent, the maternal grandmother will be entitled to inherit ? of the share. 

6. Paternal Grandmother: Only in those cases where both the parents of the deceased are absent, the paternal grandmother becomes a Quranic heir. She is entitled to get ? share of the heritable estate. If there are 2 or more grandmothers of the deceased (maternal or paternal) who become Quranic sharers, then both the grandmothers will get a joint share of ?  which they have to share equally.

7. Paternal Grandfather: A paternal grandfather becomes a Quranic sharer only when the father of the deceased is absent. He is entitled to receive ? of the share. Maternal grandfather is not a Quranic sharer in any case.

8. Daughters: The daughters of the deceased become Quranic heirs only in the absence of a son. Single daughter receives ½ share, but if there are more than 1 daughter, then all of them inherit ? share collectively, which they share equally. 

9. Son’s Daughter: The son’s daughter becomes a Quranic sharer only if she has predeceased the son of the deceased and such a son has not left behind any son of his own. So, a single son’s daughter receives ½ share while 2 or more son’s daughters receive ? collectively, which they are required to share equally. If such grand-daughters survive with a single daughter of the deceased, they collectively get ? share.

10. Full sister: A single full sister receives ½ share of the heritable estate when there is no son how low so ever, father, grandfather, daughter, son’s daughter or brother. When there are 2 or more full sisters and no excluder, the sisters will get ? share collectively.

11. Consanguine sister: When there is only 1 consanguine sister with no full sister and no excluder, then she is entitled to receive ½ share. But if there is 1 full sister, then she will get only ? share. 2 or more consanguine sisters take ? share collectively in the presence of no excluder. But if there are 2 or more surviving full sisters, then the consanguine sister is not a Quranic heir.

12. Uterine sister-brother: Uterine sisters and brothers become Quranic heirs only if there is no child, son’s child how low soever, father and grandfather of the deceased. The share of one such sister or brother is ? and if there are 2 or more, they collectively inherit ? share and divide it equally. 

Agnatic heirs

Agnate heirs or residuaries come into the picture only when after dividing the heritable estate between the Quranic heirs, there is still some estate left. This residue estate goes to the residuaries. All the residuaries are related to the deceased through males only. The residuaries are further divided into the following sub-categories:

Residuaries in their own rights

This class involves the agnatic male relations of the deceased. No female is included in this line of relationship. Residuaries in their own rights is divided into:

Offspring of the deceased, that is the son of the deceased or the male lineal descendants. 

The root of the deceased, which is the father or the grandfather of the deceased, how high so ever.

Offspring of the father, that is the full brothers, consanguine brothers and their male lineage. 

Offspring of the true grandfather, how high so ever. 

Residuaries in another’s rights

Those females who become residuaries, only when they coexist along with certain males fall under this category. This means that the females become residuaries when there exist males on the same degree, or of a lower degree who would receive such share. These are:

Daughters with sons

Son’s daughters with a son’s son or a male descendant 

Full sister with the full brother

Consanguine sister with her brother

Residuaries together with another

There are only two residuaries together with another:

Full sisters, with the daughters or son’s daughters

Consanguine sisters, with the daughters or son’s daughters

Uterine heirs

Only in the absence of sharers and residuaries, the heritable estate of the deceased is inherited by the uterine heirs or the distant kindred. One exceptional circumstance is that only when the wife or husband of the deceased survives, leaving behind no other sharer or residuary, then the distant kindred can inherit the rest of the estate remaining after the share of the wife or husband. In this class of heirs, all those relations who do not fit in the above classes are included. Meaning thereby, the female agnates and the cognates are placed in this class. Uterine heirs can be divided into 4 categories:

Descendants of the deceased

Daughter’s children and their descendants

Children of son’s daughters how low so ever and their descendants

Ascendants of the deceased

False grandfathers, how high so ever.

False grandmothers, how high so ever.  

Descendants of parents

Full brother’s daughters and their descendants.

Consanguine brother’s daughters and their descendants.

Uterine brother’s children and their descendants. 

Daughters of full brother’s sons how low so ever.

Daughters of consanguine brother’s sons how low so ever.

Sister’s (full, consanguine or uterine) children and their descendants.  

Descendants of immediate grandparents

Full paternal uncle’s daughters and their descendants.

Consanguine paternal uncle’s daughters and their descendants.

Uterine paternal uncles and their children and their descendants. 

Daughters of full paternal uncle’s sons how low so ever.

Daughters of consanguine paternal uncle’s sons how low so ever. 

Paternal aunts (full, consanguine or uterine) and their children.

Maternal uncles and aunts and their children.

Descendants of remote ancestors how high so ever (true or false). 

Doctrine of Aul

There may be cases where the arithmetic sum of the functional shares allotted to the heirs of the deceased is more than equity or less than equity. Where the sum of the shares is less than equity, then the doctrine of Aul or doctrine of increase is applied. When the total shares exceed unity, then the shares of each sharer is reduced by making a common denominator and increasing the denominator in order to equate it to the sum of numerators. 

Let us understand with the help of an illustration.

Where the husband gets ½ share and 2 full sisters get ? share, the total becomes 7/6 which is greater than 1. This means that the doctrine of Aul is to be applied. 

Step 1: Make a common denominator. So, the common denominator is 6.

Step 2: Increase the denominator and make it equal to the sum of the numerators. So, 3/6 + 4/6 changes to 3/7 + 4/7 = 7/7 = 1. 

Now, the shares are divided proportionately. The husband will get a 3/7 share and the sisters will get 4/7 share collectively.     

Doctrine of Radd

After the division of shares, the total allotted shares are less than 1, and there is no residuary to inherit the residue, then the residue reverts back to the sharers in the same proportion of their shares. The only exception to this rule is that the wife or husband is not entitled to receive the return in the presence of an heir. This is the doctrine of radd or doctrine of return. 

Following is an illustration for better understanding.

The Mother of the deceased has ? share and the daughter has ½ share of the estate. The total is ?, which is less than 1. Hence, the doctrine of radd will be applied.

Step 1: Make a common denominator. Here, the common denominator is 6.

Step 2: Decrease the denominator and make it equal to the sum of the numerators. So, ? + 3/6 becomes ¼ + ¾ which is equal to 1. 

Thus, the mother will get ¼ share and the daughter will get ¾ share.

Chapter 13 - Wassiyat (Wills)

A Muslim may dispose of his entire property by gift inter vivos. He may also tie down his entire property in perpetuity by creating a wakf for his alal aulad. He also has the testamentary power of disposing of his property. But his testamentary power is limited to the disposal of only one-third of his property.

Thus, the Muslim law of wills is a compromise between two opposite tendencies. One, when the Prophet has laid down clearly, specific and detailed rules for the distribution of the property of a Muslim after his death among his heirs, it is natural to consider it undesirable for any man to interfere with the divine law. Secondly, it is considered to be a moral duty of every Muslim to make arrangements for the distribution of his property (within the specified limit of one-third) after his death. This seems to be the reason why the word wassaya or wassiyyat has two meanings; it means a will and it also signifies a moral exhortation.

Thus, the Muslim law of wills is a compromise between two opposite tendencies. One, when the Prophet has laid down clearly, specific and detailed rules for the distribution of the property of a Muslim after his death among his heirs, it is natural to consider it undesirable for any man to interfere with the divine law. Secondly, it is considered to be a moral duty of every Muslim to make arrangements for the distribution of his property (within the specified limit of one-third) after his death. This seems to be the reason why the word wassaya or wassiyyat has two meanings; it means a will and it also signifies a moral exhortation allowed to bequeath one-third with a view to fulfilling his duty in respect of those who have served him, who have shown devotion to him in his last moments, and who get nothing. Both these limitations can be made nugatory if the heirs consent to the disposition made in violation of these limitations. Under the Hanafi law, such consent to be valid must be given after the death of the testator.

The will of Muslim is governed by Muslim law. The provisions of testamentary succession laid down in the Succession Act, 1925, affect the Muslim wills marginally.

Capacity to Make a Will

Every Muslim, who is sound to mind and of the age of majority, has the capacity to make a will. As has been seen earlier in this work, with the exception of marriage, dower and divorce, the age of majority of Muslim is regulated by the Indian Majority Act, under which the age of majority is the completion of eighteenth year in ordinary cases, and completion of twenty-first year in cases where the guardian of a minor is appointed under the Guardians and Wards Act. Muslim law-givers lay down that a will of a minor can be ratified by him on attaining majority, but the will of a person of unsound mind cannot be ratified on his regaining sanity. Not merely this, the Muslim authorities hold that the will made by a sane person will become invalid, if subsequently he becomes insane. Under the Shia law, a will made by a person, who has taken poison, or has wounded himself with a view to committing suicide, is invalid. But a will made by a person, who subsequently commits suicide, is valid. A will made by a person under coercion, undue influence, or fraud is invalid. Similarly, the court will scrutinize the will of a pardanaseen lady very carefully before admitting it.

Formalities of a Will

Muslim law requires no specific formalities for the execution of a will. A will may be oral or in writing. When the will is in writing, no specific form is laid down. It may not even be signed by the testator or attested by witnesses. However, it is necessary that the intention of the testator should be clear and unequivocal. Thus, a letter written by a Muslim shortly before his death, containing directions for the disposition of his property, was accepted to constitute a valid will. When a will is oral, no form of declaration is necessary. Obviously, the burden of establishing an oral, will is very heavy, and an oral will must be proved with utmost precision and with every circumstance of time and place.

Under Muslim law, a will may be made by gestures.

Subject-Matter of Will

Any type of property, immovable or movable, corporeal or incorporeal, which is capable of being transferred, may form the subject-matter of a bequest. It is not necessary that the subject-matter of the will should be in existence when the will is made, it is sufficient, if it is in existence at the time of testator's death. The bequest may consist of the corpus or of the usufruct. Under Muslim law, it is possible that a testator may give to one person and the usufruct to another. Thus, a right to occupy a house during a future period of time, or to take the rents, or future produce, or usufruct for a limited time, or for the life time of the legatee may validly constitute the subject-matter of a will. As has been stated earlier, the testamentary power of a Muslim is limited to the bequeathable one-third.

Bequeathable one-third—The bequeathable one-third means a third of the estate of a testator as it is left after the payment of his funeral expenses, debts and other charges. The law in this respect may be stated thus;

(i) All schools of Muslim law, except the Ithana Ashari school, hold that the bequest of more than the bequethable one-third is invalid unless consented to by the heirs after the death of the testator. Consent can be inferred from the conduct. Mere silence by other heirs by not participating in the concerned proceedings and by remaining ex parte cannot be considered as implied consent.

(ii) According to the Ithana Ashari school, the consent of the heirs, to validate a bequest of more than one-third, may be given even during the life time of the testator, and it does not need ratification after the death of the testator. The Ithana Asharis also hold that a bequest of any part of the estate even more than bequeathable one third may be made for the performance of the obligatory religious duties or by way of muzaribat or qeraz (both words have the same meaning, an enterprise in which one invests his capital and another his labour with mutual participation in profit is known as mazari hat or qeraz) on the terms of equal division of profits between the legatee and the heirs.

(iii) Under a valid custom, a Muslim may be allowed to dispose, of his entire property under his will.

(iv) If a testator has no heirs, he may dispose of his entire property by a Will. The right of the State to take the property by escheat does not prevent an heirless testator from bequeathing his entire property.

(v) A bequest of more than one-third may be validated by the consent of heirs. The rationale behind this rule is that the limitation on the testator's power of disposition is solely for the benefit of the heirs, and if they want to forego the benefit, they are free to do so. The consent of heirs may be express or implied. For instance, P bequeaths his entire property in favour of X, a stranger. The will is attested by P's two sons, A and B, who are the only heirs. After Fs death, X enters into possession of the property and recovers rents with the full knowledge of A and B. These facts are sufficient to indicate the implied consent on the part of A and B.^ Consent once given cannot be^ rescinded.

(vi) Where a testator dies leaving behind only a wife/husband as the sole heir and no blood relations, then if the testator is a male, he can bequeath 5/6 of his estate, and if the testator is a female, she can bequeath 2/3 of the estate. For instance, a Muslim woman makes a will under which she bequeaths one-half of her properties to her husband. She dies leaving behind her husband and no blood relation. Under Muslim law, bequests to the heir upto 1/3 of property are valid. Thus, the husband will take 1/3 of the estate .(the bequeathable 1/3 under the will and 1/2 of the remaining as an heir. In all he takes 2/3—1/3 under the will and 1/3 as an heir). Ordinarily, the remaining 1/3 will go to the State by escheat, but on account of the bequest of 1/2 to him (a woman can bequeath upto 2/3 under these circumstances), he again takes 1/6 of the remaining 1/3 to complete the one-half estate that is bequeathed to him. In the result the husband takes 1/3 as heir and 1/3 + 1/6, as a legatee, i.e., in all he takes 5/6; the remaining 1/6 goes to the State by escheat

(vii) An heirless Muslim can bequest his entire property. A Muslim who has only his wife as an heir can bequest the entire property minus the share of the wife.

(viii) If a Muslim had married or got his marriage registered under the Special Marriage Act, 1954, then Muslim law of succession does not apply to him. He is governed by the Succession Act, 1925, and, therefore, he can bequeath his entire property by a will.

Bequests in future and contingent bequeaths—A bequest in future is void; so is a contingent bequest. When a Muslim makes a bequest with a condition, then the condition is void, and the bequest is valid.

Bequest for pious purposes—A bequest may be made for pious purposes. Such bequests fall under three categories : (i) bequests for faraiz, i.e., for purposes expressly ordained by the Koran such as haj (pilgrimage), zakat (tithe) and expiation, (ii) bequests for wajiwat, i.e., which are themselves necessary and proper, though not expressly ordained, such as sadaka, filrat, charity given on the day of breaking of the fast, and sacrifices, and (iii) bequests for nawafil, or the bequests of purely voluntary nature, such as bequest for the poor, for building mosque, a bridge or an inn. The one-third rule applies to bequests for pious purposes also. The bequests for faraiz have priority over the other two, and the bequests for faraiz, a bequest for haj has priority over zakat and expiation, and zakat over expiation. When a bequest violates the one-third rule, and some of the heirs consent to it, while others do not, the bequest is payable out of the shares of the consenting heirs only.

Abatement of legacies—When a testator bequeaths in violation of one-third rule and the heirs refuse to give consent, the bequests, under the Hanafi law, abate rateably. Thus, if a Sunni Muslim bequeaths 1/2 of his estate to P and 1/4 to Q, since the total exceeds one-third, the legacies will be rateably reduced at the ratio of 1/2 : 1/4. Under the Shia law, the rule is different. Bequest of prior date takes priority over those of later date unless the later bequest was intended to revoke the earlier. For instance, a Shia bequeaths 1/3 of his estate to A, 1/4 to B and 1/2 to C. The heirs do not consent. The result will be that A will take 1/3, while B and C will not take an3rthing. Or, suppose A gives 1/12 to P, 1/4 to Q and 1/6 to R. Then P will take 1/12 and Q will take 1/4. Since this completes the 1/3 estate, R will take nothing but if the same 1/3 successively bequeathed to A, B and C, then it means that the last bequest is in revocation of the former two. Then C will take 1/3, and A and B will take nothing.

The Legatee

Under Muslim law, a bequest to a person not in existence at the time of the testator's death is void. However, Muslim law permits bequests to be made to a child in the womb, provided it is born within six months of the death of the testator. A legacy made to a person, who does not survive the testator, lapses and forms part of the estate of the deceased. A legacy can be made to any person, man or woman, adult or minor, Muslim or non-Muslim. A bequest can also be made for a religious or charitable object which is not opposed to Islam. Thus, a Muslim cannot lawfully make a bequest for building a Jewish synagogues or a Christian church; or for translating the taurat, or injeel; or directing that so much of his property should be given to named person for reading the Koran over his grave; or for plastering his grave or for the construction of a value or arch over it; or for shrouds to Muslims; or for aiding a tyrant or an oppressor.

Bequest for heirs.—The Muslim authorities lay down that no bequest can be made to an heir, unless the other heirs consent to it, after the death of the testator under the Hanafi law, or at any time under Shia law. In a case, where Will was consented to by all the heirs, property was divided accordingly. It is not necessary that all heirs should consent. A single heir may consent so as to bind his share. The determination, as to who are the heirs of the testator, is not made at the time when the will is made but at the time of the death of the testator. The consent of the heirs may be express or implied; but silence cannot amount to consent.

The law, as a matter of policy, does not allow a person to interfere with the Koranic mode of devolution of property. If he is allowed to make a bequest to the heirs, then it will amount to the diminution of the shares of other heirs, and will, therefore, induce a breach of the ties of kindred. However, if the heirs themselves consent to the bequest, they admit voluntary reduction in their shares, and the law allows them to do so. It is immaterial that at the time when the heir gave his consent he was an insolvent.

Custom—A custom which limits the choice of persons in whose favour a will can be made, cannot be said to be against the public policy. Among the Eunuch Community of Madhya Pradesh, under Guru-Chela system, a guru cannot will more than one-third of his property to an outsider without the consent of Chela. The custom was held valid.

Legacy of murder.—In most systems of law, it is a rule that a murderer or a person, who abets the murder of the deceased, is not entitled to a legacy. Under the Hanafi law, this rule is found in most strict terms. The rule is that the murderer is excluded from taking legacy, whether the homicide was intentional or accidental. The Ithana Ashari law excludes the man-slayer only when the homicide is intentional. It is immaterial whether the bequest is made before or after the act causing the death.

Construction of Wills

The general rule governing the construction of wills is that a Muslim will is to be construed in accordance with the rules of construction of the will laid down in Muslim law, the language used by the testator and the surrounding circumstances. It is also a general rule of construction of wills that unless a different intention appears, a will speaks from the death of the testator, and the bequests, contained in it take effect accordingly.

Revocation of the Will

Just as in other systems of law, so tinder Muslim law, a testator may revoke his will or any part of it any time, either expressly or by implication. Similarly, a testator is also free to make any additions to his will. But if the addition to the subject of the bequest is such that the subject of the bequest cannot be delivered with the addition, then the bequest stands revoked.

Express revocation.—If a testator makes a bequest of some property to a person, and by subsequent will, he bequeaths the same property to another person, the first bequest is revoked. But bequest of the same property to one person in earlier portion of the will and to another person in the later portion of the will does not revoke the earlier bequest, but both the legatees share the property equally. A will may be expressly revoked by tearing it off, or by burning it. It seems that mere denial of a will, will not operate as its revocation.

Implied revocation—Any act inconsistent with the bequest will go to revoke the will. Thus, an act which results in the extinction of the subject-matter of the bequest, or extinction of the proprietary rights of the testator will impliedly revoke the will. For instance, bequest of a plot of land is revoked when the testator builds a house on it; or bequest of a house is revoked when the testator sells or makes a gift of it to another.

II Marz-uI-Maut (death-illness)

Gifts and Acknowledgments

The death-bed gifts are recognized in many systems of law, though to what extent and in what circumstances such gifts can be made, the laws differ. Marz-ul-maut gifts of Muslim law derive their rules from two branches of Muslim law, the law of gifts and the law of wills. The law relating to the marz-ul-maut is a combination of rules derived from both the branches. Buckley, L.J., aptly described as donatio rnorits causa, as a gift of amphibious nature; not exactly a gift, nor exactly a legacy, but partaking the nature of both. The different schools of Muslim law take divergent views on the marz-ul-maut gifts. The Malikis take the view that the marz-ul-maut gifts are void. The Hanafis and the Shia hold that such gifts to the extent of one-third are valid.

Marz-ul-maut.—A. gift to be valid as marz-ul-maut gift must be made during marz-ul-maut, or death-illness. The most valid definition of marz-ul-maut is that a malady which, it is highly probable, will issue fatally. A gift must be deemed to be made during marz-ul-maut, if it was made "under pressure of the sense of the imminence of death. But where the malady is of long duration, such as consumption or albuninuria, and there is no apprehension of death, the malady cannot be called marz-ul-maut. The Muslim law-givers hold the view that if a disease continues for a period of more than one year then it cannot be called marz-ul-maut, because, as the Durr-ul-Mukhtar puts it, when a person suffers from a malady which is ordinarily mortal for over a year, it ceases to have any apprehensive influence on his mind as it has become part of his nature.' When a person is in imminent fear of death whether from disease or any other cause, so that in case of an illness the man is so broken by it as to be incapable from conducting his ordinary avocations outside his house; for example, a fakih (jurist) from going to the mosque, a tradesman to his shop, a woman from attending to her indoor occupation, it is marz-ul-maut. Another test is thus laid down : when the malady has become so severe as to make it permissible for the sufferer to offer his prayers without standing up, it must be regarded as illness of death. It is submitted that all those ailments, whether dangerous or not, which result in death, should be regarded as marz-ul-maut maladies and those from which death does not ensure should not be regarded as marz-ul-maut maladies. A feeling, a sense of imminent death should be there. But an apprehension in the mind of an old man that he may die suddenly at any time is not such a feeling of imminent death which may be called marz-ul-maut. It is now established that in order to constitute a marz-ul-maut gift, the following conditions must be satisfied: (i) the malady or illness must result in death, (ii) the malady or illness must cause a reasonable or genuine apprehension of death in the mind of the sufferer, (iii) there should be some external indicia of a serious illness or malady, and (iv) delivery of possession must be given to the donee. In every case, whether a malady or illness is marz-ul-maut or not, will depend upon its facts. It is an essential ingredient of a marz-ul-maut gift that the donor must die of the malady from which he was suffering at the time when he made the gift. What is required to be proved upon the preponderance of probabilities is whether the gift was made by the ailing person while under the apprehension of the death and further whether while so ailing he died. If he survives the malady—whatever be the nature of malady-the gift cannot be called the marz-ul-maut gift. In such an eventuality the only question will be whether there has been a valid hiba. If it is valid as a hiba, then it will take effect as hiba.

The second requirement of a marz-ul-maut gift is that there must be an apprehension of death in the mind of the donor, irrespective of the fact whether there is or there is none, in the mind of others attending on him, including the physician. If there is an apprehension of death in the mind of the sufferer, it is not necessary that he should be confined to bed. It is a unique feature of marz-ul-maut. gift that it must fulfil all the requirements of a valid hiba, including the delivery of possession, and, at the same time, it is subject to all the restrictions of a will.

A marz-ul-maut gift cannot exceed one-third of the properties of the deceased. Under the Hanafi law, a marz-ul-maut gift cannot be made to an heir, unless other heirs consent to it. Under the Ithana Ashari law, it can be made to an heir also. But among the Ismailya Shias, such a gift cannot be made to an heir without the consent of other heirs.

Acknowledgement of Debts

Like Hindus, Muslims also emphasise the moral and legal obligation of a man to pay his debts. According to a tradition, when the heir of a deceased Muslim was brought to the Prophet, and on his coming to know that the deceased had died in debt, he refused to conduct the funeral service, until someone undertook to pay the debt of the deceased. Under Muslim law, a person may acknowledge his liability or debt whether in health or ailing. The Muslim authorities take the view that a declaration or admission of liability by a Muslim is binding not only on the person, who makes the declaration or admission, but also on his heirs. When the only proof of a debt or liability of the deceased is the death-bed acknowledgement of it, then the Muslim law-givers rank it, in respect of priority, midway between other debts and legacies. This means that other debts have priority over the death-bed acknowledgement. Such debts have priority over legacies. Under a Hanafi law, a marz-ul-maut acknowledgement of debt or liability in favour of an heir is no proof of debt or liability at all, and no effect can be given to it. Under the Ithana Ashari law, such an acknowledgement is valid. In death-illness acknowledgement of debts and liability, the danger of fictitious acknowledgements is great and a duty is cast on the court that such acknowledgements should not' become an engine of fraud and fraudulent preference. A divorce pronounced by person, who is suffering from a mortal malady, cannot deprive the wife of her right of inheritance.

Chapter 14 Shufaa (Pre-Emption)

In the words of Mulla, "The right of shufaa or pre-emption is a right the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person." The foundation of the right of pre-emption is the human desire to avoid the inconvenience and disturbance which is likely to be caused by the introduction of a stranger into the land.

It is the right of an owner of immovable property to acquire by purchase another immovable property which has been sold to another person. In other words, under this right owner of an immovable property is entitled to repurchase an adjacent property which has been sold to someone else.

Definition of pre-emption is also given by Mahmood, J., in Gobind Dayal case (Govind Dayal v. Inayatullah, (1885) 7 All 779) in which he observation as, ‘Pre-emption is a right which the owner of immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person.

For example - A and B is owners of their houses which are adjacent to each other. B sells his house to C, who may be a stranger for A. Under this pre-emption right, A who is a pre-emptor can legally repurchase that house from C at the same price at which B sold it to C. In this manner, the right of pre-emption would enable A to avoid C from being his permanent neighbour. As a matter of fact, an apprehended inconvenience which may be caused by a stranger has been the very basis of this right.

The law of pre-emption was not a part of the personal law of Muslim. Before the advent of Moghul Rule in India, there was nothing akin to the law of pre-emption. It was only during the Moghul rule, that the law of pre-emption was introduced and made applicable as rule of general law of the land for all communities.

 According to the Hedaya : A Muslim and Zimmee (non-Muslim) being equally affected by principles on which Pre-emption is established, and equally concerned in its operation, are, therefore, on an equal footing in all cases regarding the principle of preemption.3 With the result pre-emption was adopted by Hindus as a custom.

In Indira Bai v. Nandkishore, 1991 SC 1055 the Supreme Court observed that the right of pre-emption is a weak right and it can be defeated by estoppel. Even in Muslim law, which is the genesis of this right, as it was unknown to Hindu Law and was brought in the wake of Mohammedan Rule, it is settled that the right of pre-emption is lost by estoppel and acquiescence. Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it, great many injustice may have been perpetrated.

Object of the right of Pre-emption:

The law is based on the principle of convenience. According to the Hedaya, ‘Besides, according to our tenets the grand principle of Pre-emption is the conjunction of property, and its object is...... to prevent the vexation arising from a disagreeable neighbour.......’

The right of Pre-emption and Its Constitutional Validity :

As far as constitutional validity of right of pre-emption is concerned, it can be divided two stages, (i) before 44th Constitutional Amendment, and (ii) after 44th Constitutional Amendment.

(i) Before 44th Constitutional Amendment, 1978 : Article 19(1) (f) of the Indian Constitution provides all citizens had a fundamental right to acquire, hold and dispose off property. Article 19 (5) provided that reasonable restrictions may be imposed on this right of a person to acquire, hold and dispose off a property yet it was protected under Clause (5) of Article 19. With the help of power exercise under this Clause, this right on the ground of vicinage or on ground of consanguinity or on ground of participation of some immunity was held Constitutional. Further, the right held Constitutional whether it was exercised under some enactment or under Muslim personal law. But in 1962, in the case of Bhau Ram v. Baij Nath, (AIR 1962 SC 1476) the Supreme Court overruled this view and held that Pre-emption only on the ground of vicinage was unconstitutional and cannot be enforced. The court held that unless the Preemptor and the vendor are co-sharer or participators in some immunity, the right cannot be protected. Accordingly, claim of Pre-emption on ground of being co-sharer or participator in immunity was constitutional but Pre-emption only on ground of vicinity was unconstitutional. The Supreme Court reaffirmed this view in Sant Ram v. Labh Singh (AIR 1965 SC 314).

(ii) After 44th Constitutional Amendment : Article 19(1) (f) has now been repealed by the 44th Amendment Act, 1978. The result is that now there is no fundamental right of acquiring, holding and disposing off a property. Thus, right to acquire, hold and dispose off, is neither a fundamental right nor a mere constitutional right. However, Pre-emption still continues to be a legal right. It is therefore, submitted that the reasonableness of the right of pre-emption can still be examined under Article 14 and 15 of the Constitution. In Atma Prakash v. State of Haryana, (1986) 2 SCC 249 the Supreme Court held that claim of Pre-emption on ground of consanguinity is ultra vires. The court observed that the reasons which justified Pre-emption in the past namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession, are totally irrelevant. The court held that the claim for possession by way of Pre-emption only on ground that claimant had superior rights being father’s brother’s son of the owner, cannot be sustained. Accordingly, Section 15 of Punjab Pre-emption Act, 1923 (which provided Pre-emption to co-sharer for kinsfolk of a vendor) was held to be unconstitutional by the Supreme Court because there was no reasonable classification of the co-sharer entitled to claim Pre-emption.

CLASSIFICATION OF PRE-EMPTORS OR WHO MAY PRE-EMPT

Only three classes of persons may claim the exercise of the right under Muslim law. Under Muslim law, pre-emptor are classified into three categories:

i. The Co-sharers or Shafi-i-Sharik

ii. The Participators in Immunities or Shafi-i-Khalit, and

iii. The Owners of Adjacent Properties or Shafi-i-Jar

i. The Co-sharers or Shafi-i-Sharik The persons who are entitled to inherit the properties of a common ancestor are called cosharers. The co-sharers have the preferential right of pre-emption against any other class of pre-emptors. For example, brothers or two sisters are the co-sharers. If one of them sells his/her house, the other is entitled to claim pre-emption. Co-sharers are given preference against other categories of pre-emptors because they are common blood-relations

ii. The Participators in Immunities or Shafi-i-Khalit In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt in the following cases : In Bhau Ram v. Baij Nath,8 the Supreme Court has held that pre-emption on the basis of participation exists only in the easements of way and water on private land. It does not extend to any other easement such as easements of air and light.9 It may be noted here that for claiming the right of pre-emption on the basis of being a Shafi-i-Khalit, is that the right to way and right to discharge water must be a private right. The right to use common thoroughfare such as common village roads will not give rise to the right of pre-emption. A person cannot said to be the Shafi-i-Khalit and would not be entitled to the right of preemption in the following cases :

a. The right of pre-emption cannot be claimed on the basis of easement of light or air.

b. The mere fact that the owners of land have the right to draw water from a Government water course does not give them any right of pre-emption.

c. On the basis that the branches of his tree project over the land of a neighbour, the owner of the tree cannot claim the right of pre-emption as Shafi-i-Khalit on the sale of that land.

d. The right to use common thoroughfares, such as village roads, big canals, etc. does not give rise to the right of pre-emption.

iii. Owners of Adjacent Properties or Shafi-i-Jar : Shafi-i-Jar is the owner of an adjoining property or in other words it is mere neighbour who can be a pre-emptor i.e., there is vicinage if two properties are adjacent to each other, but only in the absence of Shafi-i-Sharik and Shafi-i-Khalit. The right on the basis of neighborhood arises only in favour of the owner of the adjoining immovable property. So, the right does not belong to a tenant or to a person who is in possession of property but does not have any ownership in it

However, as discussed earlier, after the Bhau Ram’s case in 1962, the claim of pre-emption only on the ground of vicinage has now been declared to be unconstitutional.

There are some differences between Sunni and Shia law on pre-emption. These are of the following:

i. Shia law recognises co-sharers as the only class of pre-emptors. The other two categories, namely, the Participators in Immunities and Owners of Adjacent Properties cannot become pre-emptors.

ii. Under Shia law, the co-sharers too are entitled to pre-empt only where their number does not exceed two. If there are more than two co-sharers, the right is not available to any one of them.

iii. Under the Shia law, if there are two co-sharers, they are entitled to pre-empt only in proportion of their respective shares. Their right of pre-emption is simultaneous but not equal in magnitude. For example, A and B are the two Shia co-sharers having 2/3 and 1/3 shares respectively. Upon the sale of pre-empted property, A is entitled to repurchase 2/3 of the property whereas B is entitled to re-purchase only 1/3 of it.

Formalities for Pre-emption: The formality for the claim of this right consists of three demands. The demand must be made by pre-emptor step by step and at proper time.

1. The First Demand (Talab-i-Mowasibat) : The Arabic expression ‘Talab-i-Mowasibat’ means ‘Demand of Jumping’ which shows that it must be made immediately. It is essential that the first demand must be made immediately on the hearing of the completion of sale. Every class of pre-emptor must demand immediately, meaning thereby that pre-emptor belonging to inferior class should not wait till a pre-emptor belonging to superior class waives his right for exercise of his right.

The Second Demand (Talab-i-Ishhad) : The expression, Talab-i-ishhad means a demand with the invocation of witnesses. After making the first demand, it is the second demand. The second demand is repetition of the first demand, therefore, it is also called as the confirmatory demand. The pre-emptor must, as soon as he can, affirm the intention of asserting his right by making the second demand in which he refers to the fact that he had already made the first demand. It is must and indispensable. No particular forms are prescribed. For the validity of the second demand, the following requirements must be fulfilled:

i. The Second demand must be made in the presence of at least two witnesses expressly called to bear witness to the second demand,

ii. The Second demand is effective only when the first demand was lawfully made at an earlier date.

iii. The pre-emptor must mention that he has already placed his first demand and now he is asserting the claim for the second time.

The Third Demand (Talab-i-Tamlik) If the pre-emptor fails to get the desire result after making first two demands, he may take legal action. Therefore, if the purchaser sells the property to him, then no further formality is required and the pre-emptor is substituted in place of vendee. But, if after the first two demands, the pre-emptor fails to re-purchase the property, then he has to take legal action. In other words, the third and the last step are to maintain an action in a court of law. Filing of a suit for the claim of pre-emption is known as the Third Demand. This is also termed as ‘demand of possession’.

First and Second Demands may be Clubbed: The pre-emptor may combine both the demands. If at the time of the first demand, the pre-emptor invokes the witnesses in the presence of the Vendor or the Vendee or on the property it will suffice for both the demands. If once both the demands have been combined and made, there would be no need to make the second demand subsequently, and if made it would be superfluous.

Shia Law : As far as all the demands are concerned, the law is the same as Hanafi law. Under Shia law while Talab-i-Ishhad (second demand) is made, reference to first demand is absolutely necessary. If this reference is not made the second demand would become defective.

Right of Pre-emption when lost -  

The right of pre-emption may be lost in the following cases :

1. By acquiescence or estoppel or waiver or forfeiture: When the pre-emptor fails to observe necessary formalities prescribes i.e., making three demand.

There may be other circumstances also from which acquiescence on the part of pre-emptor may be observed:

i. A pre-emptor may waive his right by acquiescence i.e., by not asserting his claim. Upon the sale of the pre-empted property, a pre-emptor may either assert his right by making demands or may willingly forego his claim by not making any demand.

ii. The right of pre-empt is lost when the pre-emptor enters into a compromise with the vendee, not to claim the right of pre-emption.

iii. The right is lost when the pre-emptor permits a sale to be made to another person.

However, in the following circumstances acquiescence or estoppel or waiver will not be inferred:

a. A mere offer by a pre-emptor to purchase from the vendee the property at the sale price with a view to avoiding litigation, does not amount to acquiescence.

b. When the pre-emptor had previous notice of the sale or of the fact that negotiations for the sale were going on and did not offer to buy the property, then also no acquiescence will be inferred

2. By death of the pre-emptor : When the pre-emptor dies after making the two demands but before the filing of the suit i.e., third demand then also the right of pre-emption is lost, his legal representatives have no right to file the suit. However, under the Shia and Shafi law, if a pre-emptor dies during pendency of the suit, the right is not lost.

3. By misjoinder of plaintiffs: When the pre-emptor joins himself as a co-plaintiff with a person who is not entitled to claim the right of pre-emption then also the right to pre-empt is lost. But if he joins with himself as co-plaintiff a person who could have filed a suit for pre-emption, but for the reason that he did not make the two demands the right to pre-empt will not be lost.

4. By release: The pre-emptor would lose his right if there is a release for consideration to be paid to the pre-emptor.

5. Loss of right before final decree: If the pre-emptor loses his right before the final decree is passed, he would lose his right. Therefore, his right must exist till the date when final decree is passed by trial court.

6. By statutory disability: The right of pre-emption may be forfeited if there is any statutory disability on the part of pre-emptor to repurchase the pre-empted property. In such a circumstance a pre-emptor who may otherwise be competent to enforce the right, is unable to claim the right because of statutory disability.

Effect of Pre-emption

Once a suit for pre-emption is decreed, the pre-emptor stands in the shoes of the vendee and takes the property subject to all existing equities. However, the original vendee is entitled to mesne profits, such as rents and profits, of the property between the date of the first sale and the date of transfer to the pre-emptor. The date of transfer is not the date of decree, but the date when the pre-emptor pays the purchase price. The right of pre-emption cannot be defeated, or affected by any disposition of property, made by the vendee, nor can it be defeated by the death of the vendee. A decree of pre-emption cannot be transferred by the pre-emptor. If the pre-emptor transfers the decree, then the transferee of the decree is not entitled to take possession of the pre-empted property.

Chapter 15 - Wakfs

Introduction

The institution of Waqf has developed with Islam. There were no auqaf or any such parallel institutions in Arabia before the advent of Islam. Credit must be given to the Muslim jurists for having developed the jurisprudence of Waqf.

Although there is no mention of Waqf in Quran but such Quranic injunctions which deal with charity are at the root of the development and extension of auqaf. One of such Quranic verse is, “Giving alms to the poor has the reward to one alms, but that giving to kindred has two rewards”.

The law of Waqf, writes Ameer Ali, is “most important branch of Muslim Law, for it is interwoven with the entire religious life and social economy of Muslim. Waqf in its literal sense means detention or stoppage”.

Khawaja Mohammad Noor observes that the legal meaning of Waqf according to the accepted Doctrine of the Hanafi School is the extension of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefits of the mankind”. Waqf under the Muslim Law owes its origin to a rule laid down by the Prophet of Islam; and means, “the tying up of property in the ownership of the God almighty and the devotion of the profits for the benefit of human beings”. As the result the creation of a waaqif (settler) in the property is extinguished and the ownership is transferred to the Almighty.

DEFINITION

When we talk about the term ‘Waqf”, it literally means ‘detention, ‘stoppage’ or ‘tying up. Technically it means a dedication in perpetuity of some specific property for a pious purpose or a succession of pious purposes.

As defined by a Muslim Jurist, Abu Hanifa, Waqf means it is the detention of a specific thing in the ownership of the waaqif or appropriator, and the devoting its profits or usufruct to charity, the poor, or other good objects, in the manner of areeat or commodate loan.

Another eminent Muslim Jurist, Abu Yusuf defined Waqf as 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 hid creatures.

The Shara-ya-ul-Islam says, “Waqf is a contract the fruit or effect of which is to tie up the original and to leave its usufruct free”.

The most comprehensive and simple definition of ‘Waqf’ is given in the Mussalman Waqf Validating Act, 1913 under Section 2 explains that waqf is the permanent dedication by a person professing the Mussalman faith by any property for any purpose recognised by Mussalman Law as religious, pious or charitable.

The Waqf (Amendment) Act, 2013 has substituted the definition of ‘Waqf’ in Section 3(r) of the Act 1995. It defines Waqf as the permanent dedication by any person of any movable or immovable property for any purpose recognised by the Muslim Law as religious, pious or charitable.

Essentials of Waqf -

Sunni Law -

The essentials of a valid waqf according to the Hanafi School (Sunni Law) are as follows:

1. Permanent dedication of any property – The dedication of property for waqf must be permanent and the waaqif himself devote such property for the recognized purpose like religious, charitable or pious. If waqf made by the waaqif is for a limited period then such waqf is not a valid one and also there must not be any such condition or contingency should be attached otherwise then it will become invalid. Further, in Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed, the house was dedicated by a Muslim merely for the use of travellers irrespective of their religion and status. The Court was of the opinion that it was not a waqf on the ground that under Muslim Law a Waqf must have a religious and pious motive and it must be for the benefit of Muslim community only and even if is secular in nature then the charity should be for the poor only.

2. Competency of the Waqf – The dedicator (waaqif) should be a person professing Mussalman faith and of sound mind and must not be a minor or lunatic.

3. For any purpose recognised by Muslim Law – This is also called the object of waqf. Thus the third essential of a valid waqf is that the dedication should be for a purpose recognised as religious, pious or charitable under Muslim Law.

Shia Law

According to Shia Law, ” waqf is a contract, the fruit or effect of which is to tie up to the original and to have its usufruct free” (Sharya-ul-Islam) .

The ‘Sharya-ul-Islam’ mentions four conditions aa being required in the subject of waqf. These are as follow:

1. As in Sunni law, it must be perpetual.

2. It must be absolute and unconditional.

3. The possession must be given of the thing appropriated (unlike Sunni law where mere declaration is sufficient).

4. It must be entirely taken out of waaqif. It means that the waaqif should not reserve any right or interest, even the usufruct of the dedicated property.

Who can create Waqf?

1. The person who is constituting waqf out of his own properties is called the founder of waqf or waaqif. The person who is dedicating his property must be competent enough to do so. There are some following conditions which need to be followed to become a waaqif and constitute a waqf-

The person must be a Muslim. The High Courts of Madras and Nagpur have observed that a non-Muslim can also constitute a valid waqf provided that the objective of such waqf must not be against the principles of Islam. Further, the Patna High Court was of the opinion that a valid waqf can be constituted by a non-Muslim but such a waqf would only be created under a public waqf and cannot be a private waqf, for example, an Imambara.

The person should be of sound mind. Any person who is not of sound mind is incompetent to create a waqf property on the ground such person is unable to judge the legal consequences of such an act. Hence, a waqf created by an insane or minor is void.

The person should have attained the age of majority.

2. Any individual may profess the capacity to constitute a waqf but may not have any right to constitute a waqf. The person of such kind cannot constitute a valid waqf. The subject matter of the waqf constituted should be owned by the Waaqif at the time waqf is created. The question of creation of waqf depends upon that a waqf can be created by a particular person depends upon whether there exists a legal right for the waaqif to transfer the ownership of the property or not.

A waqf of any property which is held by a widow in lieu of her unpaid dower then such property cannot be constituted by her because she is not an absolute owner of such property.

If a pardanashin lady wants to dedicate her property for creation of waqf then it is the duty of the beneficiary and the mutawalli to prove that woman had exercised such thing with her mind independently and after fully understanding the nature of such transaction.

3. A person can dedicate his entire property to constitute waqf but in case of the testamentary waqf, more than one-third of the property cannot be dedicated for such purpose.

Doctrine of Cypress

The word Cypress literally means, “as nearly aa possible”. This term is essentially applicable to trust and in its technical sense means that if the wishes of the author of a trust cannot be carried out literally, they will be carried out as nearly as possible in the way desired by the author.

This doctrine is applicable to waqfs also. In cases where it is not possible to continue any waqf because of lapse of time or changed circumstances or legal difficulty or where the specified object has already been completed then the waqf may be permitted to continue further by applying this doctrine.

Legal Incidents of Waqf

1. Irrevocability – The view of Abu Hanifa is that a waqf can be revoked by waaqif, unless the declaration has been confirmed by a decree of a Court. But Abu Yusuf takes a contrary view and hold that a declaration of waqf is in its nature irrevocable. The opinion of Abu Yusuf is followed in India.

2. Inalienability – As the waqf property belongs to God, no human being can alienate it for his own purposes.

3. Perpetuity – It is an essential condition of waqf. A waqf for a limit period is invalid.

4. Pious or charitable use of usufruct – The product and benefits of the waqf property are utilised for such purposes which are recognized as religious, pious or charitable under Muslim Law.

5. Absoluteness – The settlement of the property in waqf is absolute. A conditional or contingent waqf is void.

Modes of creation of Waqf

Waqf can be created by the following modes-

1. By an act inter vivos – It means ‘between living voices, i.e., during the lifetime. A waqf under this mode is which is constituted during the lifetime of the waaqif and takes effect from that very time

2. By will – It is contradictory to the waqf created by an act inter vivos, which means that it takes effect after the death of the waaqif.

3. During death or illness (marz-ul-maut) – As the gifts are made while the donor is on the death bed, it will operate till the extent of one-third of the property without the prior consent of the heirs.

4. By immemorial user- Waqf property can be established by way of immemorial user although limitation of time also applies to the creation of waqf.

Completion of Waqf

The question as to how a waqf is completed, may be studied from the following two angles-

1. Where third person is appointed as the first mutawalli.

2. Where founder constitutes himself as first mutawalli, i.e., manager or superintendent.

Kinds of Waqf

Under Muslim Law, waqfs have been classified into two categories :

1. Public waqf – A public waqf is one for public, religious or charitable purposes.

2. Private waqf – It is one for the settlor’s own family and descendants and is technically called, waqf-ulal-aulad. However, it is a family settlement by way of waqf.

Waqf Act, 1913

The salient features of The Mussalman Waqf Validating Act, 1913 are the following-

1. According to this Act, a Muslim can tie up his property in perpetuity for the purpose of supporting his family and children, provided that he makes a provision that the ultimate benefits should go to the charitable object of a permanent nature.

2. Under this Act, it is not necessary that there should also be a concurrent gift to charity. A Muslim need not provide for any gift to charity until after the extinction of the whole line of descendants of the settlor’s family.

3. According to this Act, a Hanafi Muslim cannot enjoy the whole income or a life interest in the income of the trust property. He can only share in the income by way of maintenance.

4. The objective of the Act is explained under Section 3 of the Act, it states that it is lawful for a Muslim person to constitute a waqf which in all other aspects in accordance with the provisions of Muslim law, for the following purposes:

a) For maintaining and supporting his family, children or descendants wholly or partially.

b) If a person who is creating a waqf is Hanafi Muslim, also for his own maintenance and support during his lifetime or for the payment of his debts our of rents and profits of the property dedicated.

The Statutory and Administrative control of Waqfs in India -

There are certain enactments which are provided for the creation and protection of public endowments, some of them are –

1. Charitable Endowments Act, VI of 1890

2. Official Trustees Act II of 1913

3. Religious Endowments Act XX of 1863

4. Section 92 and 93 of The Code of Civil Procedure, 1908

5. Charitable and Religious Trusts Act XIV of 1920

Mutawalli

The manager or superintendent of the waqf is known as Mutawalli. Under the Muslim system, in case of a waqf, all the rights of ownership to the property vest in God. The Mutawalli has no right in the property. He is merely a manager of the property.

In Allah Rakhi v. Shah Mohammad (AIR 1934 PC 77), the judicial committee called Mutawalli as ‘procurator’. It is not correct to say that holder of the post of a Mutawalli is not the holder of a mere office but is the holder of a property.

Who can be appointed as Mutawalli?

Any individual who is of sound mind, who has attained the age of majority and the person is capable of performing the functions which are to be discharged under a particular waqf, can be appointed as Mutawalli of a waqf. If religious duties or spiritual functions are part of the duties of a Mutawalli then a female or non-Muslim cannot be appointed as a Mutawalli. A foreigner cannot be trustee of any waqf property in India.

Who can appoint a Mutawalli?

Generally, the Mutawalli is appointed by the founder of the waqf at the time of creation of waqf. But if a waqf is created without appointment of a Mutawalli then in such circumstances he will be appointed by following eligible persons –

1. By the founder

2. Failing him, by the executor of the founder

3. Failing him, by the Mutawalli on his death-bed

4. Failing him, by the Court which in making the appointment of Mutawalli should be guided by the following rules:

a) The Court should not disrespect the directions of the settlor.

b) Preference must be given to a member of the settlor’s family rather than an utter stranger.

c) In a contest between settlor’s lineal descendant and ones who is not lineal, the Court is free to exercise its own discretion.

Under some cases, the Mutawalli can be appointed by congregation

Powers and Duties of Mutawalli

A mutawalli may do all acts that are reasonable and proper for the protection of the waqf property and for the administration of the waqf under the circumstances of the case. In regard to his powers and duties, his position is akin to that of a trustee. Being a manager or superintendent of the waqf , he has the following rights –

1. Mutawalli has the right to use the usufruct for the best interest of waqf. Mutawalli is having the authority to take all reasonable decisions and actions in good faith and ensure that the end beneficiaries are getting all the called benefits from the waqf. Mutawalli is not the owner of the property so he is prohibited from selling the property.

2. Mutawalli can take authorisation from the Court in regards to sell and borrow money by showing the Court the existence of appropriate grounds or existence of such emergency.

3. Mutawalli can also file a suit to protect the interest of the waqf.

4. Mutawalli while holding such a position has the power to lease the property for the purpose of agriculture for less than 3 years and for non-agricultural purposes for less than 1 year. He can even get the term extended for the same with the prior permission of the Court .

5. Mutawalli is entitled to remuneration as given by waaqif. If the remuneration is very small then he can apply to the court for getting it enhanced.

Removal of Mutawalli

A mutawalli can be removed by following ways-

1. By Court- Once a mutawalli is duly appointed, he cannot be removed by the waaqif. But the court will remove a mutawalli who-

a) denies the waqf character of property and sets up an adverse title to it in himself.

b) with sufficient funds in his hand neglects to repair the waqf premises and allows them to fall into disrepair.

c) knowingly and intentionally causes damage or loss to the waqf property or misdeals with (commits breach of trust). In Bibi Sadique Fatima v. Mahmood Hasan (AIR 1978 SC 1362) the Supreme Court held that use of waqf money for purchasing some property in the name of his wife would amount to breach of trust.

2. By the Waqf Board- Under Section 64 of the Waqf Act, 1995, the Waqf Board can remove the mutawalli from his office under the condition mentioned therein.

3. By the Waaqif- Abu Yusuf was of the opinion that even if the waaqif has not reserved a right to remove mutawalli in the waqf deed he can, nevertheless remove him. Imam Mohammad however opined that unless there is such a reservation , the waaqif cannot do so. The latter view has been adopted in Fatwa-e-Alamgiri and is approved generally in India.