Muslim Law notes for Judiciary Preparation [Download Free PDF]

Author : Yogricha

Updated On : January 17, 2024

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Overview: Muslim Law is a part of the syllabus for Gujarat Judiciary, Uttarakhand Judiciary and other state judiciary exams. If you are preparing for any of the states that cover Muslim law in its syllabus for prelims or mains, then you must go through this article. We will discuss all the essential details related to Muslim law for the Judiciary,the preparation tips, the important topics and notes you would need for your judiciary preparation. 

Before we start we have to understand Muslim law for Judiciary exams. It is not a major subject in most states. However, it is essential for prelims and mains. You must go through all the PYQs (Previous Year Questions) of all state judiciary exams and make a list of all the topics that have been asked in the previous year's question papers.

In this blog, we will cover:

  • Important topics from Muslim law for Judiciary
  • Notes on important topics for judiciary exams and law school
  • Download Preparation strategy for Muslim Law
  • Download Muslim Law Notes for Judiciary exams
  • Tips to prepare Muslim Law for Judiciary
  • Important questions for practice

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Important topics from Muslim law for Judiciary

Who is a muslim?
Sources of Muslim Law
Schools of Muslim Law
Guardianship in Muslim Law and Minor’s Property
Concept of Divorce
Concept of Marraige
Wakf
Concept of Maternity and Paternity in Muslims Law
Wasiyat
Gift Under Muslims Law
Guardianship in marriage
Dower
Iddat

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Notes on important topics for Judiciary exams and Law school

Introduction

Muslim Law, also known as Sharia (Shariah or Syariah) in Arabic, constitutes a significant component of Family Law. It operates as a personal law within the realm of civil law, specifically addressing family-related issues when the involved parties adhere to the Islamic faith.

Key points to understand about Muslim Law include:

  1. Definition of Sharia: Sharia encompasses the Islamic legal system, covering various aspects of life, including family matters.
  2. Fiqh: Fiqh represents the comprehension of specific details within Sharia, and it pertains to the conclusions and interpretations made by scholars regarding Islamic jurisprudence.
  3. Sharia Principles: Sharia refers to the foundational principles that underlie Fiqh, guiding the overall framework of Islamic law.
  4. Muslim Identity: The term 'Muslim' derives from 'Islam' and signifies an individual who adheres to the Islamic faith.
  5. Integration of Religious and Secular Life: Muslim Law generally does not distinguish between religious and secular aspects of life, encompassing both within its purview.

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Origin of Muslim Law

Muslim Law, also known as Islamic Law, is believed to have divine origins. It was conveyed by the Divine to Prophet Muhammad and recorded in the Quran. Over time, Muslim jurists, who were disciples of Prophet Muhammad, have refined and elaborated upon these principles. The Quran contains comprehensive provisions that address various aspects of human life.

The term "sharia" is described by scholars as an ancient Arabic word signifying "the path to be followed" or "the path to the water hole." The latter interpretation is rooted in the significance of finding the way to water, which is vital in arid desert environments.

Sharīah, also spelled as Sharia, represents the core religious concept of Islam, specifically its legal system. This systematization occurred during the 2nd and 3rd centuries of the Muslim era, spanning the 8th and 9th centuries.

The fundamental tenet of Islam is total and unwavering submission to the will of Allah (God). Consequently, Islamic law embodies Allah's directives for Muslim society. In practice, it establishes a set of obligations that a Muslim is duty-bound to fulfill based on their religious convictions.

Known as the Sharīʿah, which translates to "the path leading to the watering place," this legal framework serves as a divinely ordained guide for conduct. It directs Muslims towards a practical manifestation of their religious faith in the present world, with the ultimate goal of attaining divine favor in the hereafter.

Who is Muslim?

A Muslim is an individual who adheres to the Islamic faith. From a legal standpoint, the Court is concerned with determining whether a person can be categorized as Muslim.

There exist two essential criteria that must be met for an individual to be recognized as a Muslim. These two criteria serve as the foundational and minimal requirements for identifying someone as a Muslim:

  • By conversion
  • By Birth

Sources of Muslim Law:

The legal framework governing Islamic practices is known as "Sharia." Islam provides humanity with an all-encompassing legal system, encompassing personal, civil, criminal, evidentiary, and international law. Under Muslim law, sources of authority can be categorized into three types:

  1. Ancient sources
  2. Customary sources
  3. Modern sources.

Ancient Souces:

  • The Quran
  • The Sunnah
  • Ijma' (consensus)
  • Qiyas (analogy)

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The Quran:

According to Islamic belief, constitutes the direct words of Allah, which were revealed to and conveyed by the Prophet Muhammad. It serves as the foundational source of Islamic knowledge, and all other sources of Islamic law must align with its essential principles. In instances where the Quran does not explicitly or comprehensively address a particular topic, Muslims resort to alternative sources of Islamic law.

Since the text of the Quran is held to be the very word of Almighty God Himself, it almost goes without saying   that   the   Quran   is   not   only   a   source   of   Sharia   but   the   primary   material   source.

It is criticised that Quran is not a code of law because of two main reasons. Firstly, it is argued that Quran is rather a moral code determining ones way of life. Secondly, it is also said that Quran is not a code of law as out of its 6219 verses, no more than about 600 deal with specifically legal matters.

However, one must remember that, unlike western legal systems, the Sharia makes no distinction between religious and civil matters; it is the codification of God's Law, and it concerns itself with every aspect of legal, social, political and religious life. Secondly, information is judged by its quality not quantity. It is the Quran that identifies six specific crimes against religion i.e.“hadd punishments”.

The Quranic legislation also covers a range of other topics, e.g. homicide, marriage, divorce and inheritance. There is an authentic hadith of the Prophet that “he who knows the law of inheritance is possessed of half the knowledge of the world”.

But if we look at the Quran, the complete outline of the law of inheritance is encapsulated within only three verses (11, 12 and 176) of Surah Al- Nisa and Ijma and Qiyas, which give the details of succession, derive their authority from these three verses only. No description, however, can fully capture the great importance of the Quran to Muslims. Objectively, it is the foundation and framework of Islamic law, and its primary material source.

The Sunnah

Sunnah is the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to and he lived his life according to the Quran, putting the Quran into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship.

People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Quran.

The Sunna:

The Sunna is the second most important source of Islamic law. It comprises the practices and precedents set by the Prophet Muhammad himself. The authority of the Sunna is derived from the text of the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the Prophet to fully understand the Quran.
The Sunna clarifies the ambiguities of the Quran.

The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. The details of the acts of prayer, fasting, alms-giving and pilgrimage were all illustrated by the Sunna of the Prophet. Again, it was established by the Sunna that a killer cannot inherit from the property of his victim.

Thus, for answers to many problems to which the Quran offers no solution jurists turn to the second source of Islamic Law. For, according to the Quran itself, Prophet Muhammad was not only in possessions of the Book; he was also endowed with Wisdom.

But the wide legislative role of the Sunna cannot overcome that of the Quran because it lacks originality in itself; rather it is just the elaborations of the Quran put into the practice by the Prophet. The Words of the “Quran” are of “divine” origin while the words of the “Hadith” are words of the “Prophet” reported by people. And it is obvious that divine words have the utmost precedence.

Secondly, after the death of the Prophet, it was not earlier than two and a half centuries that the written hadith compilation from religious scholars came onto the scene and a lot of fabrication took place into that period. But Quran is the only book of Allah which has not been distorted and thus it is the only reliable source of Islamic law. There is an authentic tradition of the Holy Prophet (p.b.u.h) in which he is reported to have said that if you find any tradition of mine contrary to the instructions of Quran, then leave my tradition and follow the Quran.

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Ijma' (Consensus):

When Muslims encounter situations where they cannot find a specific legal ruling in the Quran or Sunnah, they turn to the consensus of the community, or at the very least, the consensus of the legal scholars within the community. The Prophet Muhammad once stated that his community, which refers to the Muslim community, would never unanimously agree on an erroneous interpretation.

Ijma' represents the third source of Islamic law, akin to delegated legislation. It refers to the consensus among scholars during a specific period on a religious matter. This consensus is considered a valid basis for action, as the Prophet of Islam proclaimed, "My community will not collectively err."

A notable example of the principle of Ijma' occurred immediately following the Prophet's death when there was uncertainty about who should assume the role of political leader. The election of Abu Bakr as the caliph, through the votes of the people, marked the initial manifestation of Ijma'. Today, within the Muslim community, various schools of law exist. For these schools, the doctrine of consensus serves as a unifying factor.

However, the emergence of different schools of law has also posed challenges to the concept of Ijma'. Over time, it became increasingly difficult to reach a consensus on a particular issue by consulting all Islamic legal experts. There was no overarching organization representing all jurists. Consequently, Ijma' started to be determined by examining historical precedents. Unlike the Quran, the authority of Ijma' in the context of legal innovation is quite limited, which is why it ranks lower than the Holy Quran in terms of legal significance.

Qiyas (Analogy)

When a legal ruling is required for a situation that hasn't been explicitly addressed in other sources, judges may employ analogy, reasoning, and precedent to establish new case law. This often occurs when a general principle can be applied to novel circumstances.

Qiyas serves primarily as an interpretative tool and is not a means to alter existing laws. It can only be employed to discover a legal principle consistent with the Quran and Sunnah (the traditions of Prophet Muhammad) for a new factual scenario. Ijtihad, which signifies "individual reasoning," plays a crucial role in this process. It involves both a deep understanding of Islamic law's rules and the exercise of individual judgment. In fact, Qiyas would be impossible if jurists were not permitted to apply their own reasoning.

For instance, consider the prohibition of alcohol. Drinking wine is regarded as one of the religious offenses according to the Quran. However, as other alcoholic beverages unknown during early Islam emerged, jurists extended the prohibition of wine to include these drinks through analogical deduction from the Quranic ruling.

Nevertheless, this source of law has its limitations. Firstly, it is subordinate to the Quran because its authority derives from it. Human reasoning is expected to align with the Divine Will as expressed in the Quran, rather than acting independently. Secondly, the concept of Ijtihad has been a subject of contention in Islamic history.

Once the Islamic law schools were firmly established, it was widely accepted that the privilege of Ijtihad was reserved for eminent scholars of Islamic law, such as the founders of these schools. Consequently, by the 10th century, it was widely believed that the fundamental principles of Islamic law had been firmly established, and the "gates of Ijtihad" had been closed. Thus, it is evident that Qiyas/Ijtihad is subordinate to the Quran because the Quran continues to serve as an ever-illuminating source of Islamic law, while Qiyas/Ijtihad has waned in significance over time.

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Customary Source:

During its early stages, Islamic jurisprudence drew significant inspiration from existing customary practices. This included the practices of the Caliphs, rulings handed down by judges, and traditions followed by the people. However, even during this period, the Quran served as a guiding influence.

For example, Caliph Abu Bakr mandated alms payment based on Quranic guidance, judges (Qazis) sought direction from Quranic verses to administer justice, and it was through Verse 3 of Surah Al-Nisa that the customary practice of unrestricted polygamy was limited to a maximum of four wives. Consequently, the Quran's supremacy as a primary source of Islamic law was firmly established during this era.

Modern Sources:

In addition to the aforementioned primary Sources of Law, contemporary legal principles occasionally complement Islamic law. The following summarizes these supplementary sources:

  • Isti Hasan - Juristic preference - Equity
  • Isti Salah - Public interest
  • Ijtehad - Exercising one's own reasoning to deduce rule of law (Shariat)
  • Taqlid - Law of Precedents
  • Fatwa's - Decisions of Muslim Judges.

Isti Hasan - Juristic preference - Equity

Imam Abu Hanifa adopted the principle of Isti Hasan for the relief from absolute dependence on analogical reasoning. Isti Hasan literally means liberal construction or juristic preference or what we call today as law of equity. This term was used to express liberty of laying down such rule as may be necessary and the special circumstances may require. The objection taken against it is that it left an almost uncontrolled discretion in the exposition of the law.

Isti Salah- Public interest
Imam Malik, who will be presently mentioned as the founder of a school of Sunni law, also felt the necessity of surer test for the development of law on right lines than the use of analogy. He approved the introduction of Isti Salah (public interest) in preference to Isti Hasan. He laid down that ordinarily, analogy was used to expand law but if it appears that a rule indicated by analogy is opposed to general utility then Isti Salah (principles of public interest) should be resorted to.

Under this system, rule of law pointed out by analogy could not be set aside either: (i) on the opinion of the individual expert of the law of (ii) with reference merely to the circumstances of particular case: it could be disregarded only if it would be harmful to the public in general.

Ijtehad - Exercising one's own reasoning to deduce rule of law (Shariat)
When Quran and Hadis did not disclose the precise line to follow, Ijtehad came to be born. Ijtehad means independent judgement or considered opinions of individuals or exercising one's own reasoning to deduce a rule of Shariat. As a method of reasoning in law, Ijtehad of prophet tersely has gained almost equal footing with the first four founders of the law.

In deducing Ijtehad, Quran and Hadis cannot be over looked but exigency of time and public interest were also to be borne in mind. Where a legal principle is silent, Ijtehad can be used with advantage.

But Ijtehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids (great scholars) based not on his holding any office in the State but is derived purely from the learning and reputation of the individuals. The qualifications of the Mujtahids consists of a complete knowledge of Quran i.e., he should know the sacred text by heart and should be able to say when and where each verse was revealed and he should also have a perfect knowledge of all the traditions (Sunna-Hadis) and all the branches of the science of law.

He should, besides, be a man of austere piety. In short, the qualifications required are such that as far as the Sunni Law is concerned, after the death of Ibne Hanbal (856 after Christ) there have been no recognised Mujtahids. With the end of Mujtahids, the doors of Ijtehad no longer remained open. This is known as the closure of the golden gate of Ijtehad- Bab-al ijtehad.

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Taqlid - Law of Precedents

After Ijtehad or rather on the closure of the Gates of Ijtehad, a parallel doctrine of Taqlid (Law of precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions of another person without knowledge o the Authority or the authority for such opinion, a Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of Shariat, being ignorant, he was asked to follow the opinions of those who knew better. Those who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence, the vicious circle of Taqlid (imitation - Law of Precedents).

Fatwas - Decisions of Muslim Judges

As already aforesaid, the Law sent down by Allah by direct revelations is recorded in Quran and what is sent down by him is recorded in Sunna/Sunnat of Prophet of Islam. Even the King has no authority to make law and therefore, the Muslim Kings called upon the Muslim scholars to guide them in the matter of Law. The opinions tendered by Muslim Jurists to King were accepted by King of enforce the Law in the territory of his kingdom. Therefore, the opinions of Muslim Jurists were always held in high regard.

With the advent of time, even the ordinary Muslims would turn to such jurist and ask for his opinion. Such opinion of Muslim Jurist is referred to as Fatwas. In India, during the Seventeenth Century A.D. when Mughal Emperor Aurangazeb came in power, he appointed Shaykh Nizam Burhanpuri and four others to prepare a compilation of Fatwas. Accordingly, they sent questionnaire various juris-consults and Muftis. Their Replies are the collection of Fatwas, popularly known as Fatwa-e-Alamigir. However, Fatwas are not source of law.

Schools of Jurisprudence

  • Madhhab    
  • Hanafi    
  • Maliki  
  • Shafii    
  • Hanbali  
  • Ẓāhirī

Madhhab

Madhhab is an Islamic term that refers to a school of thought or religious jurisprudence within Sunni Islam. Several of the Sahaba had a unique school of jurisprudence, but these schools were gradually consolidated or discarded so that there are currently four recognized schools.

The differences between these schools of thought manifest in some practical and philosophical differences. Sunnis generally do not identify themselves with a particular school of thought, simply calling themselves "Sunnis", but the populations in certain regions will often - whether intentionally or unintentionally - follow the views of one school while respecting others.

Hanafi

The Hanafi school was founded by Abu Hanifa an-Nu‘man.   It   is   followed   by   Muslims   in the Levant, Central Asia, Afghanistan, Pakistan,India, Bangladesh, Western Lower Egypt, Iraq, Turkey, the Balkans and by most of Russia's Muslim community. There are movements within this school such as Barelvis, Deobandis, and the Tablighi Jamaat, which are all concentrated in South Asia and in most parts of India.

Maliki

Maliki school was founded by Malik ibn Anas. It is followed by Muslims in North Africa, West Africa, the United Arab Emirates,Kuwait, in parts of Saudi Arabia and in Upper Egypt. The Murabitun World Movement follows this school as well. In the past, it was also followed in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily.

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Shafii

The Shafii school was foundednby Muhammad ibn Idris ash-Shafiʿi. It is followed by Muslims in Eastern Lowe rEgypt, Somalia, Jordan,Palestine, SaudiArabia, Indonesia, Thailand, Singapore, Philippi nes, Yemen, Kurdistan, Kerala (Mappilas) and is officially followed by the governments of Brunei and Malaysia.

Hanbali

The Hanbali school was founded by Ahmad ibn Hanbal. It is followed by Muslims in Qatar, most of Saudi Arabia and minority communities in Syria and Iraq. The majority of theSalafist movement claims to follow this school.

Lāhirī

The Lāhirī school was founded   by Dawud   al-Zahiri.   It   is   followed   by   minority   communities in Morocco and Pakistan. In the past, it was also followed by the majority of Muslims inMesopotamia, Portugal, the Balearic Islands, North Africa and parts of Spain.

Schools of Theology in Islamic Aqidah

The term "Aqidah" in Islam refers to one's creed or belief system. It encompasses any religious belief system or creed, but in the context of Muslim history and theology, it holds a specific and significant technical meaning, representing the convictions that Muslims hold. Aqidah is often translated as "theology." These theological traditions cut across sectarian divisions within Islam. For instance, a person who adheres to the Mu'tazili theological tradition may belong to various schools of jurisprudence, such as Jafari, Zaidi, or even Hanafi.

Textualist Approach:

  • Athari    
  • Kalām    
  • Ash'ari  
  • Maturidi  
  • Murji'ah  
  • Mu'tazili

Athari

The Athari school derives its name from the Arabic word Athar, meaning "narrations". The Athari creed is to avoid delving into extensive theological speculation. They use the Qur'an, the Sunnah, and sayings of the Sahaba - seeing this as the middle path where the attributes of Allah are accepted without questioning 'how' they are. Ahmad bin Hanbal is regarded as the leader of the Athari school of creed. Athari is generally synonymous with Salafi. The central aspect of Athari theology is its definition of Tawhid, meaning literally unification or asserting the oneness of Allah.

Kalām

Kalām is the Islamic philosophy of seeking theological principles through dialectic. In Arabic, the word literally means "speech/words". A scholar of kalām is referred to as amutakallim (Muslim theologian; plural mutakallimūn). There     are many schools of Kalam, the main ones being the Ash'ari and Maturidi schools in Sunni Islam.

Ash'ari

Ash'ari is a school of early Islamic philosophy founded in the 10th century by Abu al-Hasan al-Ash'ari. It was instrumental in drastically changing the direction of Islam and laid the groundwork to "shut the door of ijtihad" centuries later in the Ottoman Empire.[citation needed] The Asharite view was that comprehension of the unique nature and characteristics of God were beyond human capability.

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Maturidi

A Maturidi is one who follows Abu Mansur Al Maturidi's theology, which is a close variant of the Ash'ari school. Points which differ are the nature of belief and the place of human reason. The Maturidis state that belief (iman) does not increase nor decrease but remains static; it is piety (taqwa) which increases and decreases. The Ash'aris say that belief does in fact increase and decrease. The Maturidis say that the unaided human mind is able to find out that some of the more major sins such as alcohol or murder are evil without the help of revelation. The Ash'aris say that the unaided human mind is unable to know if something is good or evil, lawful or unlawful, without divine revelation.

Murji'ah

Murji'ah (Arabic:  ) is an early Islamic school whose followers are known in English as "Muالمرجئةrjites"  or "Murji'ites" (المرجئون). During the early centuries of Islam, Muslim thought encountered a multitude of influences from various ethnic and philosophical groups that it absorbed. Murji'ah emerged as a theological school that was opposed to the Kharijiteson questions related to early controversies regarding sin and definitions of what is a true Muslim.
They advocated the idea of "delayed judgement".

Only God can judge who is a true Muslim and who is not, and no one else can judge another as an infidel (kafir). Therefore, all Muslims should consider all other Muslims as true and faithful believers, and look to Allah to judge everyone during the last judgment. This theology promoted tolerance ofUmayyads and converts to Islam who appeared half- hearted in their obedience. The Murjite opinion would eventually dominate that of the Kharijites.

The Murjites exited the way of the Sunnis when they declared that no Muslim would enter the hellfire, no matter what his sins. This contradicts the traditional Sunni belief that some Muslims will enter the hellfire temporarily. Therefore the Murjites are classified as Ahlul Bid'ah or "People of Innovation" by Sunnis, particularly Salafis.

Mu'tazili

Mu'tazili theology originated in the 8th century in al-Basrah when Wasil ibn Ata left the teaching lessons of Hasan al-Basri after a theological dispute. He and his followers expanded on the logic and rationalism of Greek philosophy, seeking to combine them with Islamic doctrines and show that the two were inherently compatible.

The Mu'tazili debated philosophical questions such as whether the Qur'an was created or eternal, whether evil was created by God, the issue of predestination versus free will, whether God's attributes in the Qur'an were to be interpreted allegorically or literally, and whether sinning believers would have eternal punishment in hell.

Marriage

Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding.

Requirement of the valid marriage

  • Offer & Acceptance
  • Presence of Witnesses
  • Capacity of the Parties
  • Free consent
  • No legal dissability
  • Offer & Acceptance

In Muslim law, for a marriage to be valid, both the proposal and acceptance must occur during the same meeting. It is imperative that both the proposal and acceptance are expressed in a single gathering; if the proposal is made at one meeting and the acceptance at another, it does not constitute a valid Muslim marriage. Additionally, there is no requirement for a written document or a religious ceremony.

In Sunni law, the proposal and acceptance should take place in the presence of two adult male Muslims who are of sound mind and have reached puberty. Alternatively, it can be witnessed by one male and two adult female Muslims who are sane. The absence of witnesses does not render the marriage void but may make it voidable.

Under Shia law, witnesses are not obligatory at the time of marriage, and the proposal and acceptance need not be in writing. If they are documented, the written record is referred to as a 'Nikah nama' or 'Kabin-nama.'

The proposal can be made by one of the parties or on their behalf, and the acceptance can be made by female witnesses who are sane and adults, and they must be Muslim.

In the Hanafi, Shafi, and Hanbali schools, two adult male witnesses or one male and two females are required. However, in Maliki and Ithna Ashari's law, the presence of witnesses is recommended but not mandatory, as long as there is sufficient public acknowledgment of the marriage in Maliki law.

Every mentally sound Muslim who has reached puberty is eligible to enter into a marriage contract. Puberty, in this context, signifies the age at which an individual becomes an adult, capable of engaging in sexual intercourse and procreating children. It is generally presumed that an individual has reached puberty upon turning 15 years old. Therefore, both boys and girls who have reached puberty can legally enter into a marriage contract under Muslim law, provided they fulfill all other requirements stipulated by the law.

However, in accordance with the Child Marriage Restraint Act of 1929, a marriage involving a male below the age of 21 and a female below the age of 18 is classified as child marriage and is strictly prohibited. The Act specifies that, for a marriage to be valid, the minimum age for a male should be 21, and for a female, it should be 18.

Parties who contravene the provisions of the Child Marriage Restraint Act may face legal consequences. Nevertheless, it is important to note that the marriage between two Muslims who have reached puberty remains valid even if they have violated the age requirements set forth by the Child Marriage Restraint Act.

In Muslim law, the uncoerced consent of both parties is an absolute prerequisite for a valid marriage. Without free consent, a Muslim marriage is considered void. According to Muslim Law, if a mentally sound and pubescent individual is married without their consent, the marriage is void.

Similarly, if a girl who has reached puberty and is of sound mind is married without her consent, the marriage is void unless later ratified. If consent to the marriage is obtained through force or deception, the marriage is considered invalid unless it is subsequently ratified. If a marriage is consummated against a woman's will, it is also void, and the defrauded party has the right to repudiate the marriage.

Lunatics and minors who have not reached puberty may have their marriages validly contracted by their respective guardians. A minor lacks the capacity to provide valid consent, and the right to contract a minor in marriage belongs successively to the following individuals:

  1. Father
  2. Paternal Grandfather (however high in status)
  3. Brothers and other male relatives on the father's side
  4. Mother
  5. Maternal uncle or aunt and other maternal relatives

Under Shia law, only the father and paternal grandfather are recognized as guardians for contracting the marriage of a minor. If a minor, whether male or female, is contracted in marriage by a more distant guardian while a closer guardian is present and available, and the closer guardian does not consent to the marriage, the marriage is void. However, if the parties ratify the marriage after reaching puberty, it becomes valid. In cases where the closer guardian is absent at a distance that prevents them from taking action, a marriage contracted by the more distant guardian is also lawful.

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Absolute Prohibition

Under Muslim law, there are absolute prohibitions on certain degrees of relationship within which marriage is not permitted. These prohibitions include:

1. Prohibited Degrees of Consanguinity (Blood Relationship): Consanguinity refers to blood relationship, and it prohibits a man from marrying certain females, including:

  • His mother or grandmother (regardless of their status)
  • His daughter or granddaughter (regardless of their status)
  • His sister, whether she is a full-blood sister, half-blood sister, or uterine sister
  • His niece or great-niece (regardless of their status)
  • His aunt (whether paternal or maternal) or great-aunt (regardless of their status)

A marriage with a woman who falls within the prohibited degrees of consanguinity is considered absolutely void, and children born from such a marriage are illegitimate.

2. Prohibited Degrees of Affinity (Relationship by Marriage): Certain female relatives are prohibited from marriage due to their close relationship to a man through marriage. A man is prohibited from marrying:

  • His wife's mother or grandmother (regardless of their status)
  • His wife's daughter or granddaughter (regardless of their status)
  • His father's wife or paternal grandfather's wife (regardless of their status)
  • The wife of his own son, son's son, or daughter's son (regardless of their status)

A marriage with a woman who falls within the prohibited degrees of affinity is void.

3. Prohibition Due to Fosterage (Milk Relationship): Fosterage, also known as the milk relationship, arises when a child is breastfed or suckled by a woman other than its biological mother. In such cases, that woman becomes the foster mother of the child. There are prohibitions on marriage related to fosterage. Shia jurists consider fosterage to have the same limits of relationship prohibitive to marriage as consanguinity. Therefore, a man may not marry:

  1. His foster mother or foster grandmother (regardless of their status)
  2. His foster sister (the daughter of the foster mother)

However, Sunnis do not follow the same restrictions regarding fosterage in marriage.

Polyandry (Marriage to Multiple Husbands): Polyandry refers to a woman marrying more than one husband simultaneously. Under Muslim law, polyandry is strictly prohibited. A married woman cannot marry a second husband while her first marriage is still valid, and her first husband is alive. If a woman violates this prohibition and enters into a second marriage, the second marriage is void, and she may be punished for bigamy under Section 494 of the Indian Penal Code.

Relative Prohibitions: Under Muslim law, there are certain relative prohibitions that render a marriage irregular rather than void. These prohibitions include:

a. Unlawful Conjunction: A man is prohibited from simultaneously marrying two wives who are related to each other by consanguinity, affinity, or fosterage. This means that if two women could not lawfully intermarry due to their relationship, a man cannot marry both of them simultaneously while the first wife is still alive. However, he can marry the second wife after the death or divorce of the first wife. This situation is known as unlawful conjunction. Under Sunni law, it results in an irregular marriage, while under Shia law, it is considered void.

b. Marrying a Fifth Wife (Polygamy): Muslim law permits polygamy, allowing a Muslim man to have up to four wives at the same time. If a man marries a fifth wife while having four other wives, the fifth marriage is irregular. However, it can be made valid after the death or divorce of any one of the four existing wives. Under Shia law, marriage with a fifth wife is void.

c. Absence of Proper Witnesses: A marriage contract must have proper and competent witnesses present during the ceremony. Under Sunni law, at least two male witnesses or one male and two female witnesses must be present to testify that the contract was properly entered into. If a marriage occurs without witnesses, it is considered irregular. Under Shia law, the presence of witnesses is not necessary, but the marriage becomes invalid without them.

d. Differences in Religion (Marriage with Non-Muslims): Marriage with non-Muslims is treated differently under Sunni and Shia law. Under Sunni law, a Muslim man can marry a Muslim female or a Kitabia (a person who believes in a revealed religion possessing a Divine Book, such as Christianity and Judaism). However, he cannot marry an idolatress or a fire-worshiper. A marriage with an idolatress or a fire-worshiper is irregular but not void. A Muslim woman cannot marry a non-Muslim man, and such a marriage is considered irregular or void depending on the interpretation of Islamic jurists.

Under Shia law, both spouses must be Muslims, and any marriage with a non-Muslim is void. In India, a Muslim marrying under or registering their marriage under The Special Marriage Act, 1954, cannot marry a second spouse during the lifetime of the first marriage.

ccording to Sunni schools of thought, the marriage guardian should typically be agnates, who are close male relatives of the person getting married. If there are no agnates available, then the responsibility of guardianship will fall upon the closest relatives. If there are no eligible relatives, then the Head of the State may become the guardian.

In the Ithna Ashari school of thought, having a guardian is crucial for the validity of marriages involving minors or individuals with legal capacity issues, whether they are minors or adults.

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Guardianship in marriage

⦁    Guardianship “With” the right of compulsion, which is exercised over a person of no or limited legal capacity wherein the guardian may conclude a marriage contract which is valid and takes effect without the consent or acceptance of the ward;
⦁    Guardianship “Without” the right of compulsion, which is exercised when the woman possess the full legal capacity but delegates the conclusion of her marriage to a guardian.

Islamic law also requires the parties to a marriage contract to have the capacity to enter into the contract. According to Hanafi and Ithna Ashari's any sane adult, whether male or female, has the capacity to conclude his or her own contract of marriage. According to traditional Islamic law, majority is attained at the onset of physical puberty. There is an irrefutable presumption of law that no female below the age of nine and no male below the age of 12 has attained majority and an equally irrefutable presumption that by the age of 15, majority has been reached by both sexes.

The right of a female to contract her own marriage is, however, not absolute according to Hanafi doctrine. Her guardian may seek dissolution of the marriage if she marries a man who is not her equal according to the law. Equality is determined with regard to piety, lineage, wealth and occupation. However, the right of the guardian to dissolve the marriage lapses if the woman becomes pregnant.

In Maliki, Shafi and Hanbali law a virgin woman may never conclude her own marriage contract. In Maliki law the hierarchy of marriage guardians follows strictly the order of succession. Accordingly, the son of the woman ranks before her father. In Hanbali law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnatic kinsman. The woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship.

There are three types of marriages in Sunni school:

Sahih - Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance.
Batil Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or obligations exist between the parties.

  • Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:
  • Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male.
  • Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.
  • The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.
  • Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.

Fasid - Thirdly, there is a “Fasid” (irregular) marriage, which is middle way out. This is also no marriage, but can be regularized in certain conditions.

  • Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:
  • There is an absence of witnesses.
  • A woman who is already married.
  • A woman who is still observing the idda period.
  • A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.
  • A man may not marry at the same time two sisters or a mother and her daughter.
  • A man who already has four wives may not validly marry a fifth.
  • A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyahA Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.
  • According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.
  • According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.

The Effects of Impediments to Marriage

The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove such as if the woman is married to another man. Where any other impediment exists, the marriage is not void but irregular. If the marriage is irregular certain effects flow from it:

  • The parties may not be found guilty of zina.
  • Any children born out of the union will be held to be legitimate.
  • When the parties separate, and separate they must, the woman must observe an idda period.

A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have acted in good faith, i.e. they were unaware of the existence of the impediment. This is the only instance where Islamic law recognises ignorance of the law as a defence.

Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties:

  • Mutual Rights – Legitimacy of children, inheritance, sexual intercourse.
  • Rights of the Wife (Maintenance).
  • Rights of the Husband (Polygamy).

Muta marriage:

The Shia Law recognizes two kinds of marriage, namely (1) permanent, and (2) muta (literally means enjoyment or use) or temporary. The fundamental difference between the two is that in former the term is not specified while in the later it is. Sunnis do not recognize such marriage. ‘Muta Marriage is an ancient Arabian custom.

A shia male may contract a muta marriage with kitabia woman (professing Muslim, Christian or Jewish religion) or even with a woman who is fire-worshipper but not with a woman following any other religion. But a shia woman may not contract a muta marriage with a non-Muslim.

A Shia male can contract any number of muta marriages. All the requisite formalities of marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is essential to the validity of muta marriage that:-

  • the period of cohabitation should be fixed ( a day, a month, year , years) and that
  • some dower should be specified otherwise marriage will be void. If the period is not specified , though dower is specified, it should be considered as a permanent union, even if the parties call it a muta.

That main incidents of muta marriage are:

  • No mutual rights of inheritance created between the spouses, but children considered legitimate and capable of inheriting from both parents. Thus, a muta marriage is different from prostitution and it is not a marriage for pleasure or a marriage of convenience.
  • Wife is not entitled to maintenance (unless specified). However, she is entitled to maintenance as a wife under the Cr. P.C
  • If marriage is not consummated, the wife is entitled to only half of the dower. If consummated, then full dower.
  • On the expiry of the term of marriage, if the marriage has been consummated, the wife is required to undergo iddat to three courses.
  • Husband has the right to refuse procreation i.e. izl.
  • Marriage come to end ipso facto on the expiry the term, unless extended. Husband and wife do not have a right of divorce, but he can terminate the union earlier by making a “gift of the term”(hiba-i-muddat). In that case, the wife is entitled to full dower. The wife has a right to leave the husband before the expiry of the term of the muta marriage; if she does so, the husband has a right to deduct the proportionate part of the dower for the unexpired period.
  • If there is evidence of the term for which the muta marriage was fixed and cohabitation continues after that term, muta marriage stands extended for the whole period of cohabitation. And, the children conceived during the extended period shall be legitimate.

Dower:

Dower, in the context of marriage, is a monetary sum or property that the husband is obligated to give to the wife as a result of their marriage. This requirement is derived from Surah Al-Nisa, Verse 4 of the Quran, which states: "And give the women (on marriage) their dower as a free gift."

Both Sunni and Shia interpretations agree that the dower can consist of any item or asset that has monetary value, is beneficial, and is considered ritually clean. Therefore, the dower can include assets such as land, buildings, livestock, crops, and personal property. It is essential that the dower's description be reasonably specific.

Vague descriptions, such as "an animal" or "a house," are not considered valid unless the details are adequately specified, although they do not invalidate the marriage contract itself.

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Dower and the Bride

Dower is a distinctive aspect of Muslim marriage, and it should not be confused with a bride-price, as often misunderstood in the West. While a bride price was indeed customary in pre-Islamic times, the concept of dower represents a significant reform introduced by the Quran. According to Hanafi Jurist Al Kamal, dower serves to emphasize the dignity and prestige of the marriage; it is not a consideration akin to a price that would be set as a prior condition.

It's important to note that dower is not a prerequisite for marriage. Surah Baqara, Verse 236 of the Quran states: "It is no sin for you if ye divorce a woman while yet ye have not touched them nor appointed unto them a portion (dower)." This means that there is no sin if no dower is paid, and the woman is divorced before consummation. Since divorce can only occur after a valid marriage contract, this illustrates that dower is not a precondition for marriage.

Furthermore, dower differs from a bride price because a bride price was paid to the bride's father, whereas dower is an inherent and non-transferable right of the wife. It is inalienable, meaning that it is presumed even if not explicitly stated in the contract.

If the husband includes a condition in the marriage contract stating that no dower will be paid, this condition shall be void, but the rest of the contract remains valid. It is also imprescriptible, meaning that the wife does not lose her entitlement to it over time through non-fulfillment.

Classical jurists did not set an upper limit for the dower. However, there is no consensus on the minimum dower. The Shafis, Hanbalis, and Shias contend that there is no minimum limit. In contrast, the Malikis established a minimum dower of a quarter dinar of gold or three dirhams of silver, drawing an analogy with the Sharia limit for punishable theft.

A dirham weighs approximately 2.97 grams. Hanafi doctrine maintains a minimal dower of 10 dirhams, citing the authority of a tradition attributed to the Prophet, although its authenticity is disputed by other schools. The Shia school suggests that the minimum limit should be based on what was given to Bibi Ayesha.

Types of Dower

Dower in Muslim marriages can take various forms, and its terms can be specified by the parties involved. Here are different types and aspects of dower:

  1. Specified Dower: Parties to a marriage can stipulate a specific amount as the dower in the marriage contract. This specified dower may be adjusted, either increased or decreased, through mutual agreement. For such an adjustment to be binding on the husband, certain conditions must be met:
  • It must be clearly determined, with no ambiguity; a vague statement like "I have added to your dower" without further specifics is not valid.
  • The adjustment must occur while the husband and wife are living together, without any divorce or separation.
  • The acceptance of the adjustment must happen during the same sitting where it was offered.

Similarly, a wife with full legal capacity can discharge her husband, after the marriage contract, of all or part of the specified dower. This discharge is valid if the husband accepts it or remains silent but becomes void if rejected. However, if the waiver is made under duress or due to the husband's deathbed conditions, it is not valid. Unlike increasing the dower, the guardian of a minor wife cannot reduce her specified dower.

If no dower is specified in the contract or if it expressly states that no dower will be paid, the wife is still entitled to receive a proper dower. Sunni and Shia schools agree that the proper dower should be determined by considering the amounts given as dower to comparable members of the wife's family, such as sisters or cousins, taking into account the wife's personal attributes like her virginity, age, education, and beauty.

  1. Prompt and Deferred Dower: The parties can agree on when the dower will be paid. If it is payable immediately upon the marriage contract's conclusion, it is referred to as prompt dower. Dower becomes deferred if it is payable at a later time, but it will become payable immediately in case of death or divorce. If the marriage contract is silent on this matter, it is presumed to be prompt.

  2. Entitlement to Dower:

  • Full Dower: According to Sunni consensus, the entire dower becomes due to the wife upon either of two events: consummation of the marriage or the death of either spouse before consummation. If the wife dies, her heirs can claim it from the husband. However, if the wife kills her husband before consummation, she loses her entitlement to any dower, except according to Hanafi school.
  • Half Dower and Mutat: Half of the stipulated dower becomes due if divorce occurs before consummation due to an act of the husband, except for options like puberty or recovery from insanity. Mutat is granted when no dower is specified in the contract.
  • No Dower: No dower, specified or proper, is due if the husband dissolves the marriage before consummation through the exercise of his option of puberty, recovery from insanity, or other lawful means. If the wife dissolves the marriage before consummation by any lawful means or takes khula, she is not entitled to dower.
  1. Legal Disputes over Dower: Various legal disputes may arise regarding the payment of dower. One common dispute concerns the amount of dower specified in the contract. While large dower sums are sometimes publicly announced, private agreements for lesser amounts may exist. Courts may enforce the privately agreed amount.

Another dispute revolves around the refusal of conjugal relations due to non-payment of dower. In Pakistan and Bangladesh, if the mode of payment is unspecified, the dower is presumed to be prompt and payable on demand. Some legal interpretations permit a Muslim wife to refuse consummation if prompt dower has not been paid.

Remission of dower by the wife is another potential dispute. For remission to be valid, it must be given freely and without coercion. Any waiver made under duress is considered void.

Finally, unpaid dower is treated as an unpaid debt, and the wife can sue to enforce payment. In case of unpaid dower, the widow has the right to retain possession of the deceased husband's property until the dower debt is paid to her.

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Addressing the Issue of Refusal Over Unpaid Dower:

The issue of a Muslim wife refusing conjugal relations due to non-payment of dower, even after consummation, has been a matter of legal contention. In the case of "Abdul Kadir v. Salima," where a Muslim wife refused conjugal relations after consummation due to unpaid dower, the court ruled that the wife had forfeited her right to refusal once consummation had occurred. This decision was based on the perspectives of Hanafi Disciples rather than Abu Hanifa's views.

A similar situation arose in the recent Indian case of "Rabia Khatoon v. Muhammad Ahmad." Although the court acknowledged that, under classical Hanafi law, a wife may refuse to live with her husband due to non-payment of dower even after consummation, they upheld their traditional stance due to policy and societal considerations. Consequently, the court granted the husband's claim for restitution of conjugal relations and ordered the payment of the outstanding dower.

However, the legal landscape in Pakistan underwent a change with the case of "Rahim Jan v. Muhammad." In this case, the High Court had to determine whether, according to Hanafi law, a wife retains the right to refuse living with her husband after consummation when her prompt dower remains unpaid. It was established that the comments made in "Abdul Kadir's case" were obiter, and the court firmly held that even after consummation, the wife retains the right to refuse fulfilling marital obligations until the prompt dower is paid.

Another dispute concerning dower pertains to its remission by the wife. For such remission to be valid, it must be made freely and without coercion. In the case of "Shah Banu Begum v. Iftikhar Muhammad," the wife had remitted the dower to prevent her husband from taking another lover. However, the court declared the waiver void and ineffective.

Lastly, there is the matter of unpaid dower, which represents an outstanding debt. In such cases, the wife has the right to sue for the enforcement of payment. The widow, in particular, has the right to retain possession of her deceased husband's property until the dower debt is settled, as exemplified in the case of "Maina Bibi v. Chaudhri Vakil." In this instance, the wife defended her possession of certain property, claiming unpaid dower as her rightful entitlement, and the court ruled in her favor.

Iddat:

In Islam, the concept of "iddah" or "iddat" refers to the obligatory waiting period that a woman must observe following the death of her spouse or after a divorce. During this period, she is not allowed to marry another man. The primary purpose of iddah is to establish the paternity of any potential offspring conceived after the termination of a marriage, ensuring that the male parent is known. The duration of iddah varies depending on specific circumstances.

For a woman who has been divorced by her husband, the iddah period typically spans three menstrual cycles, unless she is pregnant. In the case of pregnancy, the iddah lasts until she gives birth. If the marriage was not consummated, there is no iddah requirement. However, if a woman does not menstruate, Islamic scholars suggest that she should observe a full iddah period of one year, with nine months accounted for pregnancy and three months for iddah itself.

In the event of a woman's husband passing away, the iddah period is four lunar months and ten days, regardless of whether the marriage was consummated. The calculation of this period is based on the woman's menstrual cycle.

Islamic scholars view this directive as a balance between mourning the husband's death and safeguarding the widow from potential criticism that may arise if she were to remarry too quickly after her husband's demise. Additionally, this waiting period serves to ascertain whether a woman is pregnant, as four and a half months align with approximately half the duration of a normal pregnancy.

Furthermore, husbands are encouraged to make a will in favor of their wives, ensuring one year's residence and maintenance, unless the wives decide to leave the house or take similar steps on their own accord.

Regarding the concept of divorce under Muslim law, it is considered an exception to the continuity of marriage. While Islam emphasizes the preservation of the marital bond, divorce is permitted when the marital relationship becomes untenable. The basis for divorce in Islamic law is the inability of the spouses to maintain a harmonious and affectionate union, rather than any specific fault or guilt attributed to either party. Divorce can be initiated by either the husband or the wife and can be enacted through various methods, which will be discussed further.

Modes of divorce under Muslim Law:

There are various modes of divorce under Muslim law, categorized into two primary types: extra-judicial divorce and judicial divorce.

  1. Extra-judicial divorce can be further subdivided into three types:
  • By Husband: A husband can divorce his wife through methods like "talaaq," "ila," and "zihar." Talaaq involves the husband pronouncing his intention to divorce the wife, and it is the most common method. Ila and zihar are similar to talaaq in substance but differ in form.

  • By Wife: A wife generally cannot initiate divorce unilaterally. However, she can do so if the husband delegates this right to her or under a mutual agreement. Under an agreement, a wife may use methods like "khula" or "mubarat" to divorce her husband.

  • By Mutual Agreement: Divorce can also occur by mutual agreement between the husband and wife. Khula and mubarat are two such methods where both parties consent to the divorce. Khula typically involves the wife offering something in return for the divorce, while mubarat is a mutual agreement to dissolve the marriage.

  1. Judicial Divorce: The Dissolution of Muslim Marriages Act 1939 provides grounds for a Muslim wife to seek divorce through a court order. Before this act, a Muslim wife had limited rights to seek divorce, primarily based on grounds like false charges of adultery, insanity, or impotency of the husband.

In terms of the most common method, "talaaq," it refers to the dissolution of marriage by the husband using appropriate words and following the procedure laid down by the law. It signifies the husband's freedom from the marital bond. The Quran supports the husband's authority to pronounce unilateral divorce. All the schools of thought among Sunnis and Shias recognize the concept of talaaq, albeit with some differences in details.

In the Muslim world, talaaq has been widespread, and even Imams practiced it. The husband's absolute power to divorce his wife unilaterally, without providing a reason, has been acknowledged in modern India. The husband can pronounce talaaq at his discretion, even in jest or while under the influence of intoxication, without needing to involve the court and in the absence of the wife.

The method or circumstances of pronouncing talaaq, such as how and when it is done, are less critical. Sunnis recognize various forms of talaaq, including express, implied, contingent, constructive, and delegated, while Shias primarily acknowledge express and delegated forms of talaaq.

Conditions of Valid Talaaq

1. Capacity and Rules for Pronouncing Talaaq:

In Islamic law, specifically related to the practice of divorce (known as "talaaq"), several rules dictate who has the capacity to pronounce it and under what circumstances it is valid:

  • Capacity: Any Muslim husband of sound mind, who has reached the age of puberty, is competent to pronounce talaaq. It is essential for the husband to be mentally sound and of the appropriate age. A husband who is a minor or of unsound mind cannot pronounce talaaq, and if they do, it is considered void. However, if a husband is lunatic but pronounces talaaq during a "lucid interval," it is considered valid.

  • Guardian's Role: The guardian of a minor husband cannot pronounce talaaq on their behalf. If an insane husband has no guardian, a Qazi (Islamic judge) or a judge may dissolve the marriage in the interest of the husband.

2. Free Consent in Pronouncing Talaaq:

  • Except Under Hanafi Law: The consent of the husband in pronouncing talaaq must be freely given. However, under Hanafi law, a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is considered valid and dissolves the marriage.

  • Involuntary Intoxication: Even under Hanafi law, talaaq pronounced under forced or involuntary intoxication is void.

  • Shia Law: Under Shia law (and many other schools of Sunni thought), a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is also void and ineffective.

3. Formalities for Pronouncing Talaaq:

  • Sunni Law: In Sunni Islam, talaaq can be pronounced orally or in writing. It can be a simple utterance by the husband or a written declaration known as a "Talaaqnama." No specific formula or particular words are required for a valid talaaq; any expression clearly indicating the husband's desire to end the marriage is sufficient. Witnesses are not necessary for the pronouncement to be valid.

  • Shia Law: Under Shia law, talaaq must be pronounced orally, except when the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq is considered void. Shia law requires that talaaq must be pronounced in the presence of two witnesses.

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4. Express Words in Talaaq:

  • Express Talaaq (by husband): Clear and unequivocal words, such as "I have divorced thee," are considered express talaaq. Express talaaq falls into two categories:

    a. Talaaq-e-sunnat: This includes two forms: i) Talaaq-e-ahsan and ii) Talaaq-e-hasan. The former consists of a single pronouncement of divorce made during the period of tuhr (purity) or at any time when the wife is free from menstruation, followed by abstinence from sexual intercourse during the iddat period. The latter involves pronouncing talaaq three times during three successive tuhrs. It becomes final and irrevocable after the third pronouncement.

    b. Talaaq-i-Biddat: This form of talaaq, known as "triple talaq," is considered heretical and condemned by many schools of thought due to its irrevocability.

  • Ila: Besides talaaq, a Muslim husband can repudiate his marriage using Ila. In Ila, the husband takes an oath not to have sexual intercourse with his wife, followed by a period of four months. After this period, the marriage dissolves irrevocably unless the husband resumes cohabitation or says, "I have retained thee."

  • Zihar: In Zihar, the husband compares his wife to a woman within his prohibited relationship (e.g., mother or sister). After this comparison, the husband must refrain from cohabiting with his wife for four months. Upon the expiry of this period, the wife has certain rights, including seeking judicial divorce.

5. Divorce by Mutual Agreement:

  • There are two forms of divorce by mutual consent: Khula and Mubarat. Both involve the wife parting with her dower or other property in exchange for divorce.

    a. Khula: Khula signifies an agreement between spouses to dissolve their marriage, with the wife paying compensation to the husband out of her property. It can be initiated by either spouse.

    b. Mubarat: In Mubarat, both spouses mutually desire divorce and initiate the process. It signifies their willingness to end the marriage.

6. Divorce by Wife:

  • The wife can seek divorce in three categories: Talaaq-i-tafweez, Lian, and under the Dissolution of Muslim Marriages Act 1939.

    a. Talaaq-i-tafweez: A Muslim husband can delegate his power of pronouncing divorce to his wife or another person, either temporarily or permanently. This form of delegated divorce is commonly stipulated in prenuptial agreements.

    b. Lian: If the husband falsely accuses his wife of adultery, she can seek divorce under Lian. However, it applies when the husband makes a voluntary and aggressive false charge.

    c. Dissolution of Muslim Marriages Act 1939: This law allows a woman to obtain a divorce on various grounds, including the husband's whereabouts being unknown for four years, failure to provide maintenance for two years, imprisonment for seven years or more, and cruelty among others.

7. Guardianship and Custody:

  • The source of law for guardianship and custody in Islamic law is rooted in Quranic verses and hadiths. Natural guardians, including the father and sometimes the grandfather, are responsible for the person and property of minors. Testamentary guardians can be appointed by the father, grandfather, or court. If these avenues fail, the court can appoint a guardian under the Guardians and Wards Act 1890. The Act considers the child's welfare, age, sex, and personal law when appointing a guardian.

Maintenance:

Maintenance in Islam: Maintenance, in the context of Islamic law, consists of providing accommodation, food, and clothing for the wife. It is considered the lawful right of the wife in a valid marriage, regardless of her financial means or religion. The authority for this entitlement is derived from the Quran, the Prophet's tradition (Hadith), and consensus among Islamic scholars.

1. Assessment of Maintenance:

  • The Holy Quran and Sunna do not specify the scale of maintenance, leaving it to juristic opinions.
  • In Hanafi, Maliki, and Hanbali law, maintenance is calculated as the mean between the husband's resources and the wife's previous living standard.
  • Shafis and Shia law calculate maintenance based solely on the means of the husband.
  • The husband is obligated to provide a safe and separate house for the wife, excluding other family members, except for infant children from his previous marriage. Shia law differs on this point.
  • The right to maintenance belongs to the wife even if she is wealthy while her husband is poor.

2. Entitlement & Loss of Maintenance:

  • Maintenance is due to the wife during a valid marriage, provided certain conditions are met.
  • Conditions include a valid marriage, availability (tamkeen) of the wife for her husband, and obedience of the wife.
  • Disobedience, defined as leaving the matrimonial home without lawful excuse, can lead to the loss of maintenance.
  • Maintenance is also lost if the wife travels unaccompanied by her husband, but lawful reasons can exempt her from this rule.
  • The wife's maintenance can be suspended, but not extinguished, if she disobeys her husband for lawful reasons.
  • Maintenance is generally not due to a wife in jail, even if innocent, unless consummation occurred.

3. Termination of Wife’s Maintenance:

  • Maintenance terminates upon the death or divorce of the wife.
  • In the case of divorce, maintenance during the iddat (waiting) period is generally allowed, with some differences among Islamic schools.
  • Some schools permit full maintenance for non-pregnant divorced women only if they are irrevocably divorced and actually pregnant.
  • Maintenance is not due after the iddat period, as divorced women are expected to return to their families or remarry.
  • However, a husband can voluntarily provide maintenance for his ex-wife beyond the iddat period.

4. Mutat (Gift or Maintenance):

  • Mutat is payable in deserving cases as a goodwill gesture, not as a general entitlement.
  • Different Muslim states have incorporated Mutat payments into their laws, but the amount varies.
  • Mutat can be provided as compensation for arbitrary talaq (divorce without lawful justification).
  • In India, legal reforms have also focused on the right to maintenance for divorced Muslim women.
  • The "Shah Bano" case affirmed that divorced Muslim wives have the right to maintenance even after the iddat period.
  • The Muslim Woman (Protection of Rights on Divorce) Act 1986 was enacted to provide further remedies for divorced Muslim wives in India.
  • The Act allows divorced Muslim wives to seek maintenance if their ex-husbands fail to provide for their future.

5. Maintenance Laws in Different Countries:

  • In Pakistan and Bangladesh, maintenance laws for divorced women vary.
  • Pakistani law does not typically require ex-husbands to provide maintenance beyond the iddat period.
  • In contrast, Bangladesh follows a similar approach to India, emphasizing a husband's obligation to provide maintenance for his divorced wife beyond the iddat period.

Wasiyat

The term "Will" in Anglo-Mohammedan culture corresponds to "Wasiyat." Primarily, Wasiyat refers to a will but encompasses additional connotations, such as a moral guidance, a specific bequest, or the authority vested in the executor. In a broader context, a will represents a written document that outlines an individual's wishes regarding the utilization or distribution of their assets after their demise. As per Section 2(h) of the Indian Succession Act 1925, a Will constitutes the legally recognized declaration of a testator's intentions concerning the disposition of their property, to be executed following their death.

For Muslims, Wasiyat holds a sacred status since it is regulated by the Quran. It provides the testator with a mechanism to modify the traditional inheritance framework to a certain extent, acknowledging the worth of those family members who might be excluded from the usual inheritance, or recognizing the contributions of individuals who assisted them during their lifetime or in their final moments. Prophet Mohammad, however, emphasized that this authority is not boundless and should not be exercised to the detriment of the legitimate heirs.

Competence of the Testator (Who Can Create a Will) Any adult Muslim, whether male or female, of sound mind, is eligible to create a will. The age of adulthood, in the context of wills, is determined by the Indian Majority Act. A will made by a minor is considered invalid but can be ratified after the minor reaches adulthood. A person of unsound mind lacks the competence to create a valid will, and any will made by such an individual is void. If a person initially creates a will while of sound mind but later becomes of unsound mind, the will becomes invalid.

In the case of Abdul Manan Khan vs. Mirtuza Khan (AIR 1991), the Patna High Court ruled that any mentally sound adult Muslim, who is not a minor, can create a legally valid will to distribute their property. In terms of formality, the law does not prescribe any specific format for creating a valid will. The key requirement is an unambiguous expression of the testator's wishes.

Regarding the will of a person who has committed suicide, under Sunni Law, such a will is considered valid. However, under Shia Law, a will made by a person who has taken any action toward committing suicide is invalid. If the will was made before any such action, it is deemed valid.

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Who can make a will?

Competency of the Legatee (Recipient of the Bequest) Any person with the legal capacity to own property can be named as a legatee in a will. Hence, factors like gender, age, religion, or creed do not pose any restrictions. However, a person cannot be made the beneficial owner of the bequest against their will; the legatee must provide express or implied consent to accept the legacy for the transfer to be completed.

An institution can also be named as a legatee, and even a non-Muslim can be a legatee as long as they are not an enemy of Islam and harbor no hostility toward Islam. Under Sunni law, a person who has murdered the testator cannot be a legatee, while under Shia law, if the murder was accidental, the murderer may still be named as a legatee.

In the case of unborn persons, Sunni Law considers a child born within 6 months of the will's creation as existing and eligible as a legatee, while Shia Law extends this period to 10 months, which represents the maximum gestation period.

Bequests for charitable purposes are considered valid. Validity of the Subject of the Will For a property to be bequeathed in a will, it must meet the following criteria:

  • Capability of being transferred.
  • Existence at the time of the testator's death, even if it did not exist at the time of making the will. Therefore, a bequest cannot be made for something that is to be produced or performed in the future.
  • Ownership by the testator.

A bequest that is contingent upon an uncertain event happening is termed a contingent bequest and is void. However, a bequest with a condition that diminishes its completeness remains valid and takes effect as if the condition did not exist. For instance, if a grant is made to X for their lifetime, with a stipulation that it should go to Y after X's death, X receives the grant entirely, and Y gets nothing. Thus, a bequest for a life estate is not valid, whether under Shia or Sunni Law.

Extent of Power of the Will The testamentary power of a Muslim is subject to two limitations:

  • Limitations related to individuals - As established by the Allahabad High Court in Ghulam Mohammad vs. Ghulam Hussain (1932), a bequest in favor of a legal heir is not valid unless the consent of other heirs is obtained after the testator's death. The determination of whether a person qualifies as an heir or not is made at the time of the testator's death. Under Shia law, a testator can bequeath to a legal heir as long as it does not exceed one-third of their property, and no consent from other heirs is necessary. In Hussaini Begam vs. Mohammad Mehdi (1927), it was ruled that if all the property was bequeathed to one heir and others received nothing, the entire bequest would be void.
  • Limitations related to the amount - The general principle is that a Muslim cannot bequeath more than one-third of their property after deducting funeral expenses and debts. However, under Hanafi law, it may be valid if heirs consent after the testator's death. In Shia law, such consent can be obtained either before or after the testator's death. An exception exists for a testator with no legal heirs, as they can bequeath any amount. The government cannot act as an heir for a person with no legal heirs.

Gift under Muslim Law

As Islamic law treats the law of Gift as an integral part of the law of contracts, it necessitates the presence of certain elements, including an offer (izab), acceptance (qabul), and transfer (qabza). In the case of Smt. Hussenabi vs. Husensab Hasan, as reported in AIR 1989 Kar, a grandfather extended an offer of a gift to his grandchildren. Furthermore, he accepted the offer on behalf of the minor grandchildren.

However, there was no explicit or implicit acceptance by one of the adult grandsons. The Karnataka High Court ruled that since all three elements of a valid gift were not fulfilled concerning the adult grandson, the gift was deemed invalid. Nevertheless, it remained valid with respect to the minor grandchildren.

In summary, the following are the essential requirements for a valid gift in accordance with Muslim law:

  1. A clear and unambiguous declaration by the donor, expressing the intent to make a gift.
  2. Acceptance by the donee, without which the gift is considered void. In the case of a minor, the legal guardian may accept on their behalf.
  3. The transfer of possession by the donor, accompanied by the taking of possession by the donee. In Islamic law, possession refers to the control and enjoyment of the property's benefits. The key criterion for establishing possession is to determine whether the donor or the donee is the one benefiting from the property. If the donor continues to enjoy the property's benefits, the transfer of possession has not occurred, rendering the gift invalid.

Conditions for Gift

  • Parties
  • Subject of Gift
  • Extent of Donors right to gift

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Conditions for Donor - (Who can give)

The conditions required for a valid gift are as follows:

  1. Parties: A valid gift transaction involves two parties - the donor and the donee:

  • Both must have reached the age of majority as per the Indian Majority Act, 1875.
  • They must be of sound mind and possess an understanding of the transaction.
  • The transaction must be free from fraudulent or coercive advice and undue influence.
  • The donor must have legal ownership of the property to be transferred as a gift.
  • A married woman can make a valid gift, and the same legal rules and consequences apply to her. In the case of a pardanashin woman, her gift is valid, but in case of a dispute, the burden of proof that the transaction was not conducted under coercion or undue influence falls on the donee.
  • A gift by a person in insolvent circumstances is valid if it is made in good faith and is not intended to defraud creditors.
  1. Conditions for Donee: The recipient of the gift (donee) must meet certain criteria:

  • Any person capable of holding property, including juristic persons, can be a donee. A Muslim can also make a lawful gift to a non-Muslim.
  • The donee must be in existence at the time of receiving the gift. If the donee is a minor or a lunatic, the possession of the gift must be given to their legal guardian; otherwise, the gift is void.
  • A gift to an unborn person is invalid. However, a gift of future usufructs to an unborn person is valid as long as the donee exists when the interest opens up for heirs.
  1. Conditions for the Subject of the Gift: The subject of the gift must meet specific criteria:

  • It must be capable of being transferred.
  • It must exist at the time of making the gift; gifts of future items are void.
  • The donor must have ownership of the gift.
  • In Muslim law, a distinction is made between the corpus (Ayn) and the usufructs (Manafi) of a property. Corpus represents absolute ownership rights that are heritable and unlimited in duration, while usufructs represent the right to use and enjoy the property, which is limited and not heritable. The gift of the corpus is called Hiba, while the gift of only the usufructs is called Ariya.
  1. Subject of Gift: The subject of the gift must be:

  • Something over which dominion or property rights can be exercised.
  • Something that can be reduced to possession.
  • Something that exists either as a specific entity or as an enforceable right.
  • Something that falls within the definition of "mal" (property).
  • In the case of Rahim Bux vs. Mohd. Hasen (1883), it was ruled that the gift of services is not valid because it does not exist at the time of making the gift. Gifts of indivisible property can be made to multiple recipients.

Extent of Donor's Right to Gift: Generally, a donor's right to gift is unrestricted. However, there is one exception:

  • A person on their deathbed (Marz ul maut) cannot gift more than one-third of their property, and they cannot gift it to any of their heirs.

Types of Gifts: There are several variations of Hiba, including Hiba Bil Iwaz, Hiba ba Shart ul Iwaz, Sadaqah, and Ariat.

  • Hiba Bil Iwaz: This type of gift involves a mutual exchange of gifts between two parties, one from the donor to the donee and one from the donee back to the donor. It is akin to a sale, requires registration, and does not necessitate delivery of possession.
  • Hiba ba Shart ul Iwaz: This gift is made with a stipulation for return, with the consideration paid after the gift. Delivery of possession is essential, and the transaction becomes final upon delivery. It can be revoked until the consideration is paid, after which it becomes irrevocable.
  • Ariat: An ariat involves granting limited rights related to the use or usufructs of property or a right.
  • Sadaqah: Sadaqah refers to voluntary charity in Islam. It encompasses acts of giving driven by compassion, religious duty, or generosity. Sadaqah should be given sincerely for the pleasure of Allah, from lawful sources, and without seeking praise or recognition from others. Concealing the act of giving is encouraged, and sadaqah should not be delayed.

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Exceptions to the Delivery of Possession:

There are situations in which the delivery of possession by the donor to the donee is not required. These exceptions include:

  1. Gift by a father to his minor or lunatic son: In the case of Mohd Hesabuddin vs. Mohd. Hesaruddin (AIR 1984), the donor, who was the father, gifted land to his son who was taking care of him and his mother, while other sons were neglecting their responsibilities. Even though there was no physical delivery of the land, the gift was considered valid.
  2. When the donor and the donee reside in the same house to be gifted: In such cases, the departure of the donor from the house is not necessary for the gift to be valid.
  3. Gift between husband and wife: If the donor had a genuine and bona fide intention to make the gift, the delivery of possession is not required in the case of gifts between spouses.
  4. Gift from one co-sharer to another: A bona fide intention to gift is necessary, and physical delivery of possession is not mandatory.
  5. Part delivery: If there is evidence that some of the properties in a gift were delivered, the delivery of the rest can be inferred.
  6. Zamindari villages: Delivery is not necessary if the gift includes parcels of land in zamindari (landlord's domain) where physical possession is impossible. Such gifts can be completed through the mutation of names and transfer of rents and incomes.
  7. Subject matter in the occupation of a tenant: If a tenant is occupying the property, the gift can be accomplished by changing ownership records and requesting the tenant to acknowledge the donee.
  8. Incorporeal rights: The gift can be completed by transferring control according to the nature of the gift. For instance, a gift of a government promissory note can be achieved through endorsement and delivery to the donee.
  9. Where the donee is already in possession: If the donee is already in possession of the property, physical delivery is not required. However, if the property is in the adverse possession of the donee, the gift is not valid unless the donor recovers the possession and delivers it to the donee or does everything in their power to let the donee take possession.

Void Gifts:

Certain gifts are considered void under Muslim law:

  1. Gift to an unborn person: A gift to an unborn person is void. However, a gift of a life interest in favor of an unborn person is valid if the person comes into existence when the interest becomes available.

  2. Gifts of future property: Gifts of things that will come into existence in the future are void. For example, a gift of a crop that will be produced in the future is invalid.

  3. Contingent gifts: A gift that takes effect after the occurrence of a contingency is void. For instance, a gift from A to B that is dependent on A not having a male heir is void.

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Gift with a Condition:

A gift must be unconditional. If a gift is made with a condition that hinders its completeness, the gift itself is valid, but the condition becomes void. For example, if A gifts B his house on the condition that B will not sell it or will sell it only to C, the condition is void, and B takes full ownership of the house.

Mushaa (Hiba bil Mushaa):

Mushaa refers to an undivided share in a property. The gift of an undivided share in an indivisible property is valid under all schools of thought. However, there is no consensus among different schools regarding the gift of an undivided share in a divisible property. In Shafai and Ithna Asharia laws, it is valid if the donor relinquishes control over the property in favor of the donee. In Hanafi law, such a gift is invalid unless it is separated and physically delivered to the donee.

Revocation of a Gift:

Under Muslim law, voluntary transactions, including gifts, are generally revocable, though considered abominable under Hanafi law. In Shia law, a gift can be revoked by mere declaration, while in Sunni law, it can be revoked only through court intervention or with the consent of the donee.

The following gifts, however, are absolutely irrevocable:

  1. When the donor is deceased.
  2. When the donee is deceased.
  3. When the donee is related to the donor within prohibited degrees of consanguinity (except in Shia law, where gifts to blood relatives are irrevocable).
  4. When the donor and the donee are in a marital relationship (except in Shia law, where a gift between spouses is revocable).
  5. When the subject of the gift has been transferred by the donee through a sale or gift.
  6. When the subject of the gift is lost, destroyed, or changed beyond recognition.
  7. When the subject of the gift has increased in value, and the increment is inseparable.
  8. When the gift is a sadqa (charitable donation).
  9. When anything has been accepted in return for the gift.

Wakf:

The term "Wakf" has its literal meaning as "detention," "stoppage," or "tying up," as observed in the case of M. Kazim vs. A. Asghar Ali (AIR 1932). Technically, it refers to the dedication of specific property for a pious purpose or the act of setting aside property for religious or charitable purposes.

According to Muslim jurists like Abu Hanifa, Wakf involves the retention of a particular asset owned by the waqif (the donor or appropriator) and the allocation of its profits or usufructs to charitable causes, the impoverished, or other virtuous objectives, similar to endowments or commodity loans.

The Wakf Act of 1954 provides the following definition for Wakf: "Wakf means the permanent dedication by a person professing the Islamic faith of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable."

Essential Elements for a Valid Wakf:

  1. Permanent Dedication of Property: To create a valid Wakf, there must be a clear and unambiguous dedication of specific property for religious, charitable, or pious purposes. This dedication must be permanent, and there is no prescribed form for it. It can be in written or oral form, but the intention to dedicate the property must be evident. According to Abu Yusuf, a mere declaration of dedication is sufficient for the completion of Wakf, and neither the delivery of possession nor the appointment of a Mutawalli (administrator) is necessary.
  2. Permanent Dedication: The dedication of property for Wakf must be permanent. Temporary dedications, such as for a specific period or until the death of someone, are invalid.
  3. Ownership of the Property: The subject of the Wakf must be owned by the dedicator (waqif). One cannot dedicate someone else's property.
  4. By a Muslim: Only a Muslim can create a Wakf. The individual must also have reached the age of majority as per the Indian Majority Act and should be of sound mind.
  5. Purpose Recognized by Muslim Law: The purpose or object of the Wakf must be recognized as religious, pious, or charitable according to Muslim Law. Specific naming of a purpose is not necessary; a declaration that the property may be used for any charitable purposes permitted by Shariah is sufficient.

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Valid Objects for Wakf:

Some objects recognized as valid for Wakf in several cases include mosques and provisions for Imams to conduct worship, celebrating the birth of Ali Murtaza, repairs of Imambaras, maintenance of Khanqahs, providing for the burning of lamps in mosques, payments to fakirs, grants to idgahs, support for colleges and professors, and the construction of bridges and caravan sarais.

Shia Law Requirements:

In addition to the above requirements, Shia law imposes further conditions for a valid Wakf, including the necessity of delivering possession to the first person in whose favor the Wakf has been created, an absolute and unconditional dedication, and complete removal of any benefits or interests by the dedicator.

Methods of Creating Wakf:

Muslim law does not specify a particular method for creating a Wakf. It can be created through various means:

  1. By an act of a living person (inter vivos): A person declares the dedication of their property for Wakf during their lifetime. This can also be done while the person is on their deathbed (marz ul maut), but in such cases, they cannot dedicate more than 1/3 of their property for Wakf.
  2. By will: A person includes a Wakf dedication in their will to take effect after their death. Previously, it was believed that Shia individuals could not create Wakf by will, but this notion has been approved.
  3. By Usage: When property has been used for religious or charitable purposes for an extended period, it is deemed to belong to Wakf. No formal declaration is necessary.

Types of Wakf:

  • Public Wakf: Dedicated for general religious and charitable purposes.
  • Private Wakf: Created for the creator's family and descendants (technically known as Wakf alal aulad). After the Wakf Validating Act of 1913, private Wakfs can be created, but certain limitations apply. Both public and private Wakfs are created in perpetuity, and the properties become inalienable.

Wakf ala aulaad:

Is it possible to establish a Wakf for one's own family?

Yes, it is indeed possible to create a Wakf for one's family. According to all schools of Muslim jurisprudence, dedicating a Wakf to one's children and subsequently to the poor is considered a valid Wakf. This is because, within Islamic law, the concept of charity encompasses a broad range of provisions, including those made for one's immediate family and descendants. Providing for one's family or descendants to prevent them from falling into poverty is regarded as an act of charity.

Wakf alal-aulad, or a Wakf for one's family, is distinctive in that its income and revenue are intended exclusively for the support of the wakif's (the person establishing the Wakf) family members. Like other Wakfs, Wakf alal-aulad is governed by Islamic law, and there is no differentiation in terms of sanctity or the legal consequences that follow their establishment. In the eyes of the law, Wakf alal-aulad is considered Divine property, and when the rights of the wakif cease to exist, it becomes the property of God, with the benefits accruing to His creatures. Similar to public Wakfs, a Wakf-alal-aulad cannot under any circumstances fail, and when the line of descendants becomes extinct, the entire corpus is dedicated to charitable purposes.

The tradition of private Wakf can be traced back to the Prophet himself, who established a charitable endowment for the support of his daughter and her descendants, placing it on par with dedications to mosques.

In summary, it is clear that one can create a Wakf for their own family, but it is crucial that the ultimate purpose of the Wakf aligns with what Islam recognizes as pious, religious, or charitable.

Quasi public Wakf

At times, a third category of Wakf is also recognized, known as a Quasi-public Wakf. In a Quasi-public Wakf, the primary purpose is partly to provide benefits to specific individuals or a class of individuals, which may include the settler's family, and partly to the public. Therefore, these Wakfs have elements of both public and private Wakfs.

A Wakf that relies on the occurrence of a specific event is referred to as a contingent Wakf and is considered invalid. For instance, if an individual creates a Wakf stating that their property should be dedicated to God only if they die childless, such a Wakf would be invalid. Similarly, under Shia law, a Wakf dependent on certain contingencies is also invalid.

In the case of Khaliluddin vs. Shri Ram in 1934, a Muslim executed a deed to create a Wakf, which included a provision that no action under the wakfnama would be enforceable until a specified debt was paid by him. It was determined that this provision did not impose any condition on the creation of the Wakf, and thus, it was considered valid.

However, if a condition is imposed that, in the event of mismanagement of the dedicated property, it should be divided among the wakf's heirs, or if the wakif reserves the right to revoke the Wakf in the future, such a Wakf would be considered invalid. On the other hand, conditions related to debt payments, improvements, repairs, or the appointment of a Mutawalli (administrator) would not invalidate the Wakf. In the case of a conditional Wakf, it is up to the wakif to remove the illegal condition and make the Wakf valid, or else it would remain invalid.

Completion of wakf

The establishment of a Wakf is considered complete when the first Mutawalli (administrator) is appointed for the Wakf. The Mutawalli can either be a third party or the Wakif (donor) themselves. If a third party is appointed as the Mutawalli, a simple declaration of the appointment and endowment by the Wakif is sufficient. However, if the Wakif appoints themselves as the first Mutawalli, the only requirement is that the transaction should be made in good faith.

There is no need for the physical possession or the transfer of property from the Wakif's name as the owner to their name as the Mutawalli. In both cases, though, a mere intention to set aside the property for the Wakf is not enough; a declaration to that effect is also required.

In the case of Garib Das vs. M A Hamid AIR 1970, it was determined that when the founder of the Wakf is also the first Mutawalli, there is no necessity for the property to be transferred from the donor's name as the owner to their name as the Mutawalli.

Under Shia law, when the first Mutawalli is a third party, the delivery of possession to the Mutawalli is required for completion. Even when the owner themselves is the first Mutawalli, the character of ownership must be changed from owner to Mutawalli in the public register.

Legal Consequences (Legal Incidents) of Wakf Once a Wakf is established and complete, the following legal consequences occur:

  1. Dedication to God: The property becomes vested in God, meaning that nobody can claim ownership of it. Even in the case of Wakf alal aulad, the property is dedicated to God, and only the usufructs are used by the descendants.
  2. Irrevocable: In India, once a Wakf is declared and complete, it cannot be revoked. The Wakif cannot reclaim the property in their name or anyone else's name.
  3. Permanent or Perpetual: Perpetuity is an essential element of Wakf. Once the property is given to Wakf, it remains dedicated to Wakf forever. It cannot have a specified time duration. For example, the Wakf of a house built on land leased for a fixed term was deemed invalid in the case of Mst Peeran vs. Hafiz Mohammad, as held by the Allahabad HC.
  4. Inalienable: Since Wakf property belongs to God, no human being can transfer it for themselves or any other person. It cannot be sold or given away to anybody.
  5. Pious or Charitable Use: The usufructs of the Wakf property can only be used for pious and charitable purposes. In the case of a private Wakf, it can also be used for the benefit of descendants.
  6. Extinction of the Rights of Wakif: The Wakif loses all rights to the property, even the usufructs. They cannot claim any benefits from the property.
  7. Power of Court Inspection: The courts have the authority to inspect the functioning and management of Wakf property. Misuse of the property or its usufructs is considered a criminal offense as per the Wakf Act of 1995.

Revocation of Wakf In India, once a valid Wakf is established, it cannot be revoked because no one has the power to divest God of His ownership of the property. It cannot be given back to the Wakif, nor can it be sold to someone else without the court's permission.

A Wakf created inter vivos (during one's lifetime) is irrevocable. If the Wakif includes a condition of revocability, the Wakf is considered invalid. However, if the Wakf has not yet come into existence, it can be canceled. For example, a testamentary Wakf can be canceled by the owner themselves before their death by creating a new will. Additionally, a Wakf created on one's deathbed is valid only for up to 1/3 of the Wakif's property. Beyond that, it is invalid, and the property goes to the heirs instead.

Mutawalli 

A Mutawalli serves as the manager of a Wakf, with neither ownership nor trustee status over the property. Their role is that of a superintendent, responsible for ensuring that the usufructs of the property are being used for the intended valid purposes set forth by the Wakif (donor).

Their authority is limited, primarily concerning the control over the usufructs. In the case of Ahmad Arif vs. Wealth Tax Commissioner AIR 1971, the Supreme Court held that a Mutawalli has no authority to sell, mortgage, or lease Wakf property without prior court permission, unless explicitly granted such power in the Wakfnama (deed of endowment).

Criteria for Mutawalli Selection

A person eligible to serve as a Mutawalli must be of legal age, mentally sound, and capable of carrying out the functions of the Wakf as specified by the Wakif. Regardless of their religious background, both males and females can be appointed as Mutawallis unless the duties of the Wakf involve religious activities. In the case of Shahar Bano vs. Aga Mohammad 1907, the Privy Council held that there is no legal restriction on a woman becoming a Mutawalli if the duties of the Wakf do not encompass religious activities.

Generally, it is the Wakif who appoints a Mutawalli. The Wakif may even appoint themselves as the Mutawalli. If a Wakf is created without naming a Mutawalli, it is considered valid in India, and the Wakif becomes the first Mutawalli under Sunni law. However, according to Shia law, while the Wakf remains valid, it must be administered by the beneficiaries. The Wakif also has the authority to establish rules for the appointment of a Mutawalli. The following is the order in which the power to nominate the Mutawalli is transferred if the previous nominee fails:

  1. Founder
  2. Executor of the founder
  3. Mutawalli on their deathbed
  4. The court, following certain guidelines:
  • The court should not disregard the directions of the settler (Wakif), but it must prioritize public interest.
  • Preference should be given to a family member of the Wakif over a complete stranger.

Powers of a Mutawalli

As the manager of the Wakf, a Mutawalli has control over the usufructs of the property and possesses the following rights:

  1. Utilization of Usufructs: The Mutawalli can use the usufructs in the best interest of the Wakf's purpose. They can take reasonable actions in good faith to ensure that the intended beneficiaries benefit from the Wakf. However, unlike a trustee, the Mutawalli does not own the property and cannot sell it. The Wakif may grant specific rights to the Mutawalli by explicitly stating them in the Wakfnama.
  2. Selling or Borrowing: The Mutawalli can acquire the right to sell or borrow money by obtaining permission from the court, provided there are appropriate grounds or urgent necessity.
  3. Legal Actions: The Mutawalli is authorized to file a lawsuit to protect the interests of the Wakf.
  4. Leasing Property: For agricultural purposes, the Mutawalli can lease the property for less than three years, and for non-agricultural purposes, for less than one year. Extending the term requires court permission.
  5. Remuneration: The Mutawalli is entitled to remuneration as specified by the Wakif. If the remuneration is deemed too small, the Mutawalli can apply to the court for an increase.

Doctrine of Mushaa in the Present Society

In contemporary Indian society, the Mushaa doctrine neither holds legal necessity nor practical significance. Originally, the Mushaa doctrine was formulated to simplify the process of gifting small undivided properties. In the past, joint property divisions did not require the technical formalities demanded today.

However, applying the Mushaa doctrine in the present day may lead to inconvenience and complications instead of avoiding confusion. In today's commercially advanced society, this doctrine could restrict an individual's rights to deal with their properties. Gifts are not transactions driven by commerce; they are voluntary and altruistic transfers.

Therefore, gifts should be subject to as few restrictions as possible. Furthermore, in cases where a constructive delivery of possession is sufficient to validate the gift, actual division is unnecessary; symbolic possession by the donee of the gifted share in the property suffices.

In the case of Masoom Sab v. Madan Sab, the Andhra Pradesh High Court ruled that a gift of Mushaa is not invalid if the donor performs a constructive delivery of possession. Therefore, there is no legal obstacle if the Mushaa doctrine is not applied to a gift of an undivided property.

Courts have generally favored methods to circumvent the Mushaa rule. Even the Privy Council, in Sheikh Muhammad Mumtaz v. Zubaida Jan, observed that the doctrine of Mushaa is not adaptable to a progressive society and should be confined within strict limits. Therefore, it can be argued that the Hanafi doctrine of Mushaa is neither legally necessary nor practically meaningful for contemporary society.

Shia Law: Shia law does not recognize the doctrine of Mushaa. Under Shia law, a gift of a share of divisible joint property is valid even without partition.

Doctrine of Pre-Emption:

Nature of Pre-Emption: Pre-emption is akin to an easement and is attached to land under Muslim law. It comes into play when adjacent property is sold. It grants the pre-emptor, by virtue of a legal incident related to the sale itself, the right to step into the shoes of the buyer concerning the rights and obligations arising from the sale. It is worth noting that the right of pre-emption is not recognized in Madras, primarily due to its perceived restriction on property transfer, which is seen as contrary to justice, equity, and good conscience (Ibrahim v. Muni Mir Uddin, (1870) 6 M.H.C. 26).

Objective of Pre-Emption: The pre-emption rule aims to prevent the inconveniences that might arise within families and communities when unfamiliar individuals become co-owners or close neighbors through property transactions.

Pre-Emption by Contract: Pre-emption rights can also be established through a contract. When interpreting such a contract, the court will honor the parties' expressed intentions. In the absence of a contrary agreement, it is presumed that a pre-emption contract will follow Hanafi law, with all required formalities. In cases where pre-emption rights are based on a contract, a Muslim co-sharer can exercise these rights even against a Hindu purchaser (Sitaram v. Jiaul Hasan, (1921) 48 I.A. 475).

The doctrine of pre-emption applies to all Muslims and, in certain circumstances, to Hindus as well:

  • By legislation in regions like Punjab and Oudh, where general territorial enactments exist.
  • By custom in Bihar and some parts of Gujarat.
  • Through a contractual agreement between the parties.

In the Mofussil of Bombay, under regulation IV of 1827, the law of pre-emption can apply based on principles of justice, equity, and good conscience or due to custom. However, it has been ruled that pre-emption is contrary to justice, equity, and good conscience (Mahomed Beg Amni Beg. & Anr. v. Narayan Meghaji Patil & Ors., (1916) I.L.R. 40 Bom. 358). Therefore, it can only be applied based on custom.

Who Can Claim Pre-Emption? According to Muhammadan law, the right of pre-emption belongs to the following individuals:

  • A Shafii-i-sharik, i.e., a co-sharer or partner in the property sold.
  • A Shafii-i-khalit, i.e., a partner in the amenities and appendages of the property (such as rights to water and roads). These individuals have a connection to the property sold through dominant or servient heritages or shared rights.
  • A Shafi-i-jar, i.e., an owner of neighboring immovable property. However, this right of pre-emption for reasons of vicinage is not applicable to large estates such as villages and zamindaris but is limited to houses, gardens, and small parcels of land.

Shia Law

Under Shia law, the right of pre-emption is limited to co-sharers, and specifically, only when the number of co-sharers does not exceed two.

When both the vendor and the pre-emptor follow the same school of thought, either Sunni or Shia, the pre-emption laws of that particular school apply, with the law followed by the vendee being irrelevant. According to the Allahabad High Court, if one of them adheres to Shia law, then Shia law governs the pre-emption. Conversely, as per the Calcutta High Court, if the vendor and the pre-emptor do not share the same school of Muslim law, the pre-emption rights are determined by the law of the pre-emptor.

In summary, if the vendor is Sunni and the pre-emptor is Shia, the Allahabad High Court suggests that Shia law should be applied. If the vendor is Shia and the pre-emptor is Sunni, the Allahabad High Court maintains that the matter should still be decided according to Shia law. However, the Calcutta High Court's stance in such cases is to apply Sunni law. In all cases, the personal law of the purchaser is inconsequential.

Hence, it would not be entirely accurate to assert that the prevailing law of pre-emption in India is solely the pure Sunni law of pre-emption.

Constitutional Validity of Pre- Emption

The High Courts of Rajasthan, Madhya Bharat, and Hyderabad have ruled that the right of pre-emption based on vicinage (as mentioned in point 3) became void after January 26, 1950, as it imposed an unreasonable restriction on the fundamental right guaranteed under Article 19(1)(f) of the Constitution. However, pre-emption rights between co-sharers (as mentioned in point 1) and owners of dominant and servient heritages (as mentioned in point 2) are preserved by Article 19(5) of the Constitution.

In contrast, the Bombay, Allahabad, and Patna High Courts have taken a different stance, upholding the constitutional validity of pre-emption for all three classes of individuals mentioned above. Nevertheless, the Supreme Court has now endorsed the Rajasthan High Court's perspective.

The Supreme Court has emphasized that the right of pre-emption is an inherent aspect of property and is attached to the land itself (Audh Singh v. Gajadhar Jaipuria, AIR 1954 S. C., 417). In this case, the Supreme Court ruled that when the right of pre-emption is based on custom, it becomes the lex loci or the law of the place, and this right applies to properties situated in that location.

The Allahabad High Court has further noted that when there exists a right of pre-emption without specifying how it is to be enforced or exercised, or without providing complete details of that custom, it is presumed that the right of pre-emption aligns with the rights allowed by Muhammadan Law. This perspective has been established in several cases and has been followed in subsequent judgments.

Additionally, a Division Bench of the Bombay High Court has observed that the law of pre-emption remains valid even after the enactment of the Constitution and has not been rendered void by Article 13 in conjunction with Article 19(1)(f) of the Constitution of India (Bhimrao Eknath v. P. Ramkrishan, AIR 1960 Bom. 552).

For a pre-emption claim to be deemed valid, a specific formula is not required as long as the claim is asserted unequivocally. However, Sunni law imposes strict formalities that must be followed. A person cannot exercise the right of pre-emption unless he, his representative, or someone authorized on his behalf has completed the following three demands:

  1. Talab-i-mowasibat: This refers to the immediate demand (or demand of jumping), which becomes effective only when it is followed by a formal claim known as "talab-i-ishhad" (detailed below). Talab-i-mowasibat involves an announcement by the pre-emptor of his intention to make a claim. This announcement must be made promptly upon receiving information about the sale, but it should occur after the sale is finalized, not before.

  2. Talab-i-ishhad: This is a demand made with the invocation of witnesses. The talab-i-mowasibat (demand of jumping) remains ineffective unless it is succeeded by a formal claim, known as talab-i-ishhad (demand with invocation of witnesses). In this step, the pre-emptor must:

Confirm his intention to assert his pre-emption right, explicitly referring to having made the "demand of jumping." Make a formal demand:

  • Either in the presence of the buyer or seller, or on the premises being sold.
  • In the presence of at least two witnesses, specifically called to bear witness to this demand. Any unreasonable delay in making this second demand will jeopardize the pre-emptor's right.

The demand process in Muhammadan law before filing a pre-emption suit is highly technical. The talab-i-mowasibat is the first demand, followed by the talab-i-ishhad as the second demand. Both of these demands are prerequisites for exercising the right of pre-emption.

The talab-i-mowasibat (first demand) should be made promptly once the sale becomes known to the claimant. Any undue or unnecessary delay will be considered as an election not to pre-empt (Shaikh Mohammad Rafiq v. Khalilur Rahman and anr. (1972) 11 S.C. W.R. 102).

It is not obligatory for the pre-emptor to tender the price at the time of making the talab-i-ishhad. The third and final formality is the initiation of a pre-emption lawsuit.

When it is impossible to prove the legitimate descent of a child from its father through the existence of a marriage between the parents at the time of conception or birth, such a legitimate descent and marital relationship can be established through an "acknowledgment."

This acknowledgment of paternity doesn't have to be explicitly stated; it can be inferred from the consistent and open treatment of one person as the legitimate child of another. As the Privy Council has noted, "It has been determined in several cases that there is no requirement for proof of a direct acknowledgment, but rather an acknowledgment of children by a Muhammadan as his sons can be deduced from his consistent and public treatment of them as such." (Muhammad Azmat v. Lalli Begum 1881 9 I.A. 8)

The paternity of a child is considered established if the child is born while a valid marriage is in effect or within 280 days following the dissolution of the marriage, provided that the mother remains unmarried during this period.

Maternity of a child is ascertained by the woman who gives birth to the child. It doesn't matter whether the child is born from a valid or irregular marriage, or even as a result of fornication or adultery.

Principle of the Doctrine of Legitimacy by Acknowledgement

The acknowledgment of legitimacy and marriage within Muhammadan law serves as a distinct method to establish the legitimacy of a child and the marriage of the child's mother. In the context of Muslim marriages, which may be contracted without formal ceremonies, the existence of a valid marriage in a specific case may remain uncertain. In situations where direct evidence of such a marriage is lacking, indirect evidence such as the acknowledgment of a child's legitimacy becomes relevant.

This doctrine of acknowledgment comes into play when there is uncertainty about the existence of a marriage, but it cannot be used to legitimize a child who is known to be illegitimate. It relies on the presumption of legitimacy and establishes it through acknowledgment.

Under Muhammadan law, certain conditions must be met for the acknowledgment of paternity to establish the paternity of a child. These conditions include:

  1. The acknowledger must have the legal capacity to enter into a valid contract.
  2. The acknowledgment should not merely pertain to sonship but must explicitly acknowledge legitimate sonship.
  3. The age of the acknowledger and the acknowledged person should allow for a parent-child relationship, with the acknowledger being at least twelve-and-a-half years older than the person acknowledged.
  4. The person to be acknowledged must not be the result of intercourse that would be punishable under Muhammadan law, such as adultery, incest, or fornication.
  5. The parentage of the person to be acknowledged must not be unknown, meaning the child should be known to be the offspring of another person.
  6. The acknowledged person must believe themselves to be the acknowledger's child, and the child should either verify or not repudiate the acknowledgment.
  7. The acknowledger should have the legal capacity to be the husband of the child's mother at the time of conception.

It's important to note that if there is direct evidence showing no marriage between the man and the mother of the child or that any such marriage would be void, the presumption of legitimacy through acknowledgment cannot be raised, even if there is a strong presumption. (Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)

In the case of Rashid Ahmed, A divorced his wife B through three pronouncements of talak but continued to cohabit with her, treating her as his wife for fifteen years. During this period, five children were born to them, all of whom he treated as his legitimate children.

However, the Privy Council ruled that the children were illegitimate. For a valid remarriage between A and B after the divorce, B should have been married to another man in the interim and then divorced by that man. As there was no evidence of such a marriage and divorce by another man, the presumption of remarriage between A and B could not be established, leading to the children being declared illegitimate and ineligible to inherit from their father.

The acknowledgment of paternity in Muhammadan law relates specifically to cases where there is uncertainty regarding the legitimacy of a child and operates on the assumption of a lawful union between the parents of the acknowledged child.

Heritable property refers to property available for inheritance by legal heirs. After the death of a Muslim, his assets are used to cover funeral expenses, debts, and legacies, if any. What remains after these obligations are settled is termed heritable property.

In Muslim law, any type of property may be considered heritable property. Unlike English law, Muslim law does not distinguish between corpus and usufruct, movable and immovable, or corporeal and incorporeal property for the purposes of inheritance. Under Muslim law, all properties owned by the deceased at the time of their death can be subject to inheritance.

In Shia law, a childless widow is entitled to her share (1/4) of the inheritance only from the movable property left by her deceased husband.

Joint or Ancestral Property

In contrast to Hindu law, which recognizes the concept of joint family and coparcenary property, such a notion is not present in Islamic law. In the event of a Muslim's passing, their properties are inherited by their heirs in specific shares, with each heir becoming an absolute owner of their allotted portion. Upon the subsequent demise of such an heir, their properties are once again inherited by their own legal heirs, and this cycle continues.

In Islamic law, there is no provision for ancestral or joint-family property. Therefore, the Muslim law of inheritance does not differentiate between self-acquired and ancestral property. All properties, regardless of whether they were acquired by a Muslim during their lifetime or inherited from their ancestors, are considered individual property and may be inherited by their legal heirs.

No Birth-Right

Inheritance in Islamic law only becomes applicable after the death of a Muslim. The principle of "Nemo est haeres viventis" dictates that no individual can be an heir to a living person. Thus, until a person passes away, their heirs have no legal interest in their properties. Unlike Hindu law, Islamic law of inheritance does not acknowledge the concept of a "right by birth" (Janmaswatvavad).

Under Islamic law, an heir does not possess any rights before the death of an ancestor. It is solely the death of a Muslim that triggers the right of inheritance for their legal heirs. In fact, until a person's demise, their relatives are not considered legal heirs; they are merely heirs-apparent and hold a mere "chance of succession" (spes successionis). If an heir-apparent outlives a Muslim, they become the legal heir, and the right of inheritance is conferred upon them. Conversely, if the heir-apparent does not outlive the Muslim, they cannot be considered heirs and have no claim to inherit the property.

The doctrine of representation is a well-known principle recognized by Roman, English, and Hindu laws of inheritance. Under this principle, the son of a predeceased son represents his father for the purposes of inheritance. The doctrine of representation can be illustrated as follows: Let's consider a family with a patriarch P who has two sons, A and B. A has two sons, C and D, while B has a son, E.

During P's lifetime, the family consists of P, A, B, and three grandsons: C, D, and E. If B unfortunately passes away before P, the surviving members of P's family at the time of P's death include A and his three grandsons: C, D, and E. Under the doctrine of representation, E would represent his deceased father, B, and inherit P's properties as if B were alive at the time of P's death.

However, Islamic law does not recognize the doctrine of representation. According to Islamic law, the nearer heir completely excludes the remoter heir from inheritance. In the example provided, E would be entirely excluded from inheriting P's properties under both Shia and Sunni law. Therefore, E cannot argue that he represents his deceased father, B, and should inherit in his place.

Under Islamic law, the closer heir always takes precedence over a more remote heir in the inheritance. In the case of A and E, A would entirely exclude E from inheritance because A is closer (in degree) to P, while E belongs to the second degree of generation. Islamic jurists justify this stance by arguing that an individual does not even have an inchoate right to their ancestor's property until the ancestor has passed away. Therefore, they conclude that there can be no claim through a deceased person in whom no right could have been vested under any circumstance.

Nonetheless, it could be argued that the non-recognition of the principle of representation in Islamic inheritance law may seem unreasonable and harsh. It may appear unjust that a son, whose father has passed away, is unable to inherit his grandfather's properties along with his uncle.

Distribution among heirs of the same class but from different branches can be categorized as per capita or per strip. In a per capita distribution, the estate is divided equally among the heirs based on their number. Each heir receives an equal share of the heritable assets of the deceased. In contrast, per strip distribution allocates shares to heirs from different branches based on the property available within their respective branches, rather than the total number of heirs.

Under Sunni law, the distribution of assets follows the per capita method, where an heir does not represent their branch in any way. To illustrate this, consider a case where M has two sons, A and B. A has three sons, S1, S2, and S3, while B has two sons, S4 and S5. If both A and B pass away before M, leaving only their five grandsons as heirs, Sunni law dictates that the total assets of M would be divided equally among all five heirs, regardless of their branch affiliation. Therefore, each heir would receive a 1/5 share of M's total assets. Notably, Sunni law does not recognize the principle of representation for determining an heir's claim or share.

In contrast, Shia law follows a per strip distribution when several heirs of the same class descend from different branches. In this method, each heir's share depends on the property available within their respective branch. For example, if A and B each constitute a branch with equal shares of M's property and both A and B predecease M, the surviving heirs of A (S1, S2, and S3) would share equally from the 1/2 property allocated to A's branch. Similarly, the heirs of B (S4 and S5) would equally share the 1/2 property allocated to B's branch. The Shia law, to some extent, accepts the principle of representation for calculating an heir's share but only for this limited purpose.

Inheritance rights in Islam are granted equally to males and females, and both genders have equal rights as heirs. However, the general practice is that the share of a male heir is usually double that of a female heir of the same status or degree. This practice is justified by the fact that, under Muslim law, a female heir receives additional property or money as her Mehr (dower) and may also be entitled to maintenance from her husband. In contrast, a male heir does not receive these benefits and is primarily responsible for the maintenance of his children, unlike a female heir who may have this responsibility only in exceptional cases.

A child in the womb of its mother is eligible to inherit if born alive. An embryo is considered a living person, and property vests immediately in the child in the womb. However, if the child in the womb is not born alive, any share previously vested in the child is divested, and it is presumed as if there was no such heir in the womb.

Other Important Points:

  • Muslim law does not recognize the principle of primogeniture, where the eldest son enjoys special privileges. Instead, all sons are treated equally under Islamic law. However, under Shia law, the eldest son has exclusive rights to inherit specific items, such as his father's garments, sword, ring, and a copy of the Quran, provided he is of sound mind and the father has left other properties besides these articles.
  • Step-children do not have the right to inherit the properties of their step-parents, and vice versa. Step-parents and step-children cannot inherit from each other. However, step-brothers and step-sisters, whether uterine or consanguine, have the right to inherit each other's properties. Muslim law provides for mutual inheritance rights between uterine and consanguine brothers and sisters.
  • In cases of simultaneous death of two or more heirs where it cannot be determined who died first, all the heirs are presumed to have died at the same moment under Muslim law. This results in these heirs being excluded from the inheritance, and the inheritance opens without considering them.
  • According to Section 108 of the Indian Evidence Act, 1872, if a person is missing for at least seven years and there is no proof of their being alive, that person is legally presumed to be dead, and the inheritance of their properties opens. This provision has superseded the Hanafi rule, which required a missing person to be presumed dead only after ninety years from the date of their birth.
  • When a deceased Muslim has no legal heirs under Muslim law, their properties escheat to the government, making the state the ultimate heir.
  • If a Muslim contracts their marriage under the Special Marriage Act, 1954, they are no longer considered a Muslim for the purposes of inheritance. In such cases, the properties of the deceased do not follow the Muslim law of inheritance but are governed by the Indian Succession Act, 1925.

Tips to prepare Muslim Law for Judiciary

Muslim Law in Judiciary exams is not asked in-depth. However, you must understand the concepts thoroughly to score better in the examination. Here are quick tips for preparing for Muslim Law:

  • Go through the previous year's papers and make a comprehensive list of all the topics that were asked in the previous years.
  • Once you have done that, make sure that you read this article and download the notes for your preparation.
  • Read from reliable sources, and start making your own notes.
  • Include examples, explanations and essential case laws.
  • This will help you in developing a better understanding of all the subjects.
  • Make sure that your notes are brief; make short notes while covering all the essential topics and details.
  • After making notes, make sure you revise everything 2-3 times at least.
  • Practice PYQs and sample questions to test your knowledge on a regular basis.

Important Questions of Muslim Law For Judiciary

Sample Questions of Muslim Law for Judiciary for prelims:

1. Religion of Islam is essentially
(a) polytheistic
(b) monothestic
(C) paganistic
(d) either (b) or (c) and not (a)

2. Islamic law is formally contained in
(a) Hadith
(b) Quran
(c) ljma and qiyas
(d) all the above

3. A marriage prohibited by reason of difference of religion is:
a. valid
b. void
c. irregular
d. none of the above
Ans. (C)

4. Shariat Act, 1937 came into operation on
(a) 4th April 1937
(b) 7th January, 1937
(c) 7th July, 1937
(d) 7th October, 1937

5. Muslim law applies to
(a) all persons who are Muslims by conversion
(b) all persons who are Muslims by birth
(C) all persons who are Muslims either by birth or by conversion
(d) all persons who are Muslims by birth only and not to Muslims by conversion

6. How many witnesses are necessary for marriage under hanafi school?
a. 1
b. 2
c. 3
d. 4

7. For a valid Muslim marriage
(a) offer and acceptance must be at the same place
(b) offer and acceptance must be at the same time
(c) offer and acceptance must be at the same time and place
(d) offer and acceptance may be at different times and at different places

8. What is the age of puberty for a female in Hanafi law:
a. 11
b. 18
c. 15
d. 16

9. The essentials of a Muslim marriage do no not include:
(a) Valid offer and acceptance by the parties to the marriage
(b) The parties to the marriage must offer and accept the offer at one and same meeting
(c) The presence of at least two Muslim male witnesses (or one male and two female witnesses) of sound mind and of the age of majority
(d) The offer and acceptance of marriage must be carried out by the bride and the bridegroom personally

10. A Muslim girl aged 17 years was given in marriage by her grandfather and her consent was not sought. The marriage is:
(a) Void
(b) Voidable
(c) Valid
(d) Either void or voidable

Important questions of Muslim Law for Judiciary Mains Examination:

  1. Discuss briefly the sources of Mohammedan law.
  2. Explain the origin, evolution and development of muslim law.
  3. Muslim marriage is a civil contract. Critically evaluate the statement.
  4. Define marriage and muta marriage. State the differences between the two.
  5. Enumerate the differences between Sunni and Shia law with respect to marriage, dower and divorce.
  6. What are the effects of conversion by a married mohammedan on his marriage.
  7. Who is a muslim? What are the consequences of colourable conversion. Examine with the help of decided cases.
  8. Explain the various schools and sub-schools of muslim law.
  9. Distinguish between void and irregular marriage and state the effects of valid, void and irregular marriages.
  10. Define Dower. Explain the various kinds of dower.
  11. Explain the essentials of a valid marriage
  12. Define dower. Discuss the wife’s rights and remedies on non-payment of dower.
  13. When does muslim marriage become irregular and what are its effects?
  14. Discuss the essentials and legal consequences of muta marriage.
  15. Explain the different ways in which marriage may be dissolved under Mohammedan Law.
  16. Write an essay on dissolution of marriage by ‘Judicial Process’ under muslim law.
  17. Explain the principles of acknowledgement of paternity.
  18. What are the grounds for judicial separation under Indian Divorce Act, 1869?
  19. Who are entitled to claim maintenance? Under which law a divorced muslim woman is entitled to claim maintenance? Explain.
  20. Who are the legal guardians of a muslim minor for his property? What are their powers and duties?
  21. What are the protections available to muslim divorced wife under the Muslim women (Protection of Rights on Divorce) Act 1986?
  22. What are the grounds on which wife can claim divorce from her husband under the Divorce act, 1869?
  23. What are the grounds for judicial separation under the Divorce Act, 1869?
  24. Who are entitled to be the guardians of the person and property of a minor?
  25. When can a legal guardian sell the immovable property of a minor muslim?
  26. What are the powers of ‘Dejure Guardian’ and ‘Defacto Guradian’ under Mohammedan Law?
  27. Write a note on Shah Bano’s case and its consequences.

Conclusion:

  • To prepare Muslim Law for Judiciary you should make sure that all the important topics of Muslim Law are covered by you and you make notes for yoursef\lf.
  • For revision you should prefer reading your notes majorly.
  • Reach out to your mentors and faculties in case you find difficulty in making a strategy to study for Muslim Law.

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Muslim Law notes for Judiciary Preparation [Download Free PDF]

Author : Yogricha

January 17, 2024

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Overview: Muslim Law is a part of the syllabus for Gujarat Judiciary, Uttarakhand Judiciary and other state judiciary exams. If you are preparing for any of the states that cover Muslim law in its syllabus for prelims or mains, then you must go through this article. We will discuss all the essential details related to Muslim law for the Judiciary,the preparation tips, the important topics and notes you would need for your judiciary preparation. 

Before we start we have to understand Muslim law for Judiciary exams. It is not a major subject in most states. However, it is essential for prelims and mains. You must go through all the PYQs (Previous Year Questions) of all state judiciary exams and make a list of all the topics that have been asked in the previous year's question papers.

In this blog, we will cover:

  • Important topics from Muslim law for Judiciary
  • Notes on important topics for judiciary exams and law school
  • Download Preparation strategy for Muslim Law
  • Download Muslim Law Notes for Judiciary exams
  • Tips to prepare Muslim Law for Judiciary
  • Important questions for practice

Learn more: Judiciary Exam 2023 Online Coaching

Important topics from Muslim law for Judiciary

Who is a muslim?
Sources of Muslim Law
Schools of Muslim Law
Guardianship in Muslim Law and Minor’s Property
Concept of Divorce
Concept of Marraige
Wakf
Concept of Maternity and Paternity in Muslims Law
Wasiyat
Gift Under Muslims Law
Guardianship in marriage
Dower
Iddat

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Notes on important topics for Judiciary exams and Law school

Introduction

Muslim Law, also known as Sharia (Shariah or Syariah) in Arabic, constitutes a significant component of Family Law. It operates as a personal law within the realm of civil law, specifically addressing family-related issues when the involved parties adhere to the Islamic faith.

Key points to understand about Muslim Law include:

  1. Definition of Sharia: Sharia encompasses the Islamic legal system, covering various aspects of life, including family matters.
  2. Fiqh: Fiqh represents the comprehension of specific details within Sharia, and it pertains to the conclusions and interpretations made by scholars regarding Islamic jurisprudence.
  3. Sharia Principles: Sharia refers to the foundational principles that underlie Fiqh, guiding the overall framework of Islamic law.
  4. Muslim Identity: The term 'Muslim' derives from 'Islam' and signifies an individual who adheres to the Islamic faith.
  5. Integration of Religious and Secular Life: Muslim Law generally does not distinguish between religious and secular aspects of life, encompassing both within its purview.

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Origin of Muslim Law

Muslim Law, also known as Islamic Law, is believed to have divine origins. It was conveyed by the Divine to Prophet Muhammad and recorded in the Quran. Over time, Muslim jurists, who were disciples of Prophet Muhammad, have refined and elaborated upon these principles. The Quran contains comprehensive provisions that address various aspects of human life.

The term "sharia" is described by scholars as an ancient Arabic word signifying "the path to be followed" or "the path to the water hole." The latter interpretation is rooted in the significance of finding the way to water, which is vital in arid desert environments.

Sharīah, also spelled as Sharia, represents the core religious concept of Islam, specifically its legal system. This systematization occurred during the 2nd and 3rd centuries of the Muslim era, spanning the 8th and 9th centuries.

The fundamental tenet of Islam is total and unwavering submission to the will of Allah (God). Consequently, Islamic law embodies Allah's directives for Muslim society. In practice, it establishes a set of obligations that a Muslim is duty-bound to fulfill based on their religious convictions.

Known as the Sharīʿah, which translates to "the path leading to the watering place," this legal framework serves as a divinely ordained guide for conduct. It directs Muslims towards a practical manifestation of their religious faith in the present world, with the ultimate goal of attaining divine favor in the hereafter.

Who is Muslim?

A Muslim is an individual who adheres to the Islamic faith. From a legal standpoint, the Court is concerned with determining whether a person can be categorized as Muslim.

There exist two essential criteria that must be met for an individual to be recognized as a Muslim. These two criteria serve as the foundational and minimal requirements for identifying someone as a Muslim:

  • By conversion
  • By Birth

Sources of Muslim Law:

The legal framework governing Islamic practices is known as "Sharia." Islam provides humanity with an all-encompassing legal system, encompassing personal, civil, criminal, evidentiary, and international law. Under Muslim law, sources of authority can be categorized into three types:

  1. Ancient sources
  2. Customary sources
  3. Modern sources.

Ancient Souces:

  • The Quran
  • The Sunnah
  • Ijma' (consensus)
  • Qiyas (analogy)

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The Quran:

According to Islamic belief, constitutes the direct words of Allah, which were revealed to and conveyed by the Prophet Muhammad. It serves as the foundational source of Islamic knowledge, and all other sources of Islamic law must align with its essential principles. In instances where the Quran does not explicitly or comprehensively address a particular topic, Muslims resort to alternative sources of Islamic law.

Since the text of the Quran is held to be the very word of Almighty God Himself, it almost goes without saying   that   the   Quran   is   not   only   a   source   of   Sharia   but   the   primary   material   source.

It is criticised that Quran is not a code of law because of two main reasons. Firstly, it is argued that Quran is rather a moral code determining ones way of life. Secondly, it is also said that Quran is not a code of law as out of its 6219 verses, no more than about 600 deal with specifically legal matters.

However, one must remember that, unlike western legal systems, the Sharia makes no distinction between religious and civil matters; it is the codification of God's Law, and it concerns itself with every aspect of legal, social, political and religious life. Secondly, information is judged by its quality not quantity. It is the Quran that identifies six specific crimes against religion i.e.“hadd punishments”.

The Quranic legislation also covers a range of other topics, e.g. homicide, marriage, divorce and inheritance. There is an authentic hadith of the Prophet that “he who knows the law of inheritance is possessed of half the knowledge of the world”.

But if we look at the Quran, the complete outline of the law of inheritance is encapsulated within only three verses (11, 12 and 176) of Surah Al- Nisa and Ijma and Qiyas, which give the details of succession, derive their authority from these three verses only. No description, however, can fully capture the great importance of the Quran to Muslims. Objectively, it is the foundation and framework of Islamic law, and its primary material source.

The Sunnah

Sunnah is the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to and he lived his life according to the Quran, putting the Quran into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship.

People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Quran.

The Sunna:

The Sunna is the second most important source of Islamic law. It comprises the practices and precedents set by the Prophet Muhammad himself. The authority of the Sunna is derived from the text of the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the Prophet to fully understand the Quran.
The Sunna clarifies the ambiguities of the Quran.

The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. The details of the acts of prayer, fasting, alms-giving and pilgrimage were all illustrated by the Sunna of the Prophet. Again, it was established by the Sunna that a killer cannot inherit from the property of his victim.

Thus, for answers to many problems to which the Quran offers no solution jurists turn to the second source of Islamic Law. For, according to the Quran itself, Prophet Muhammad was not only in possessions of the Book; he was also endowed with Wisdom.

But the wide legislative role of the Sunna cannot overcome that of the Quran because it lacks originality in itself; rather it is just the elaborations of the Quran put into the practice by the Prophet. The Words of the “Quran” are of “divine” origin while the words of the “Hadith” are words of the “Prophet” reported by people. And it is obvious that divine words have the utmost precedence.

Secondly, after the death of the Prophet, it was not earlier than two and a half centuries that the written hadith compilation from religious scholars came onto the scene and a lot of fabrication took place into that period. But Quran is the only book of Allah which has not been distorted and thus it is the only reliable source of Islamic law. There is an authentic tradition of the Holy Prophet (p.b.u.h) in which he is reported to have said that if you find any tradition of mine contrary to the instructions of Quran, then leave my tradition and follow the Quran.

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Ijma' (Consensus):

When Muslims encounter situations where they cannot find a specific legal ruling in the Quran or Sunnah, they turn to the consensus of the community, or at the very least, the consensus of the legal scholars within the community. The Prophet Muhammad once stated that his community, which refers to the Muslim community, would never unanimously agree on an erroneous interpretation.

Ijma' represents the third source of Islamic law, akin to delegated legislation. It refers to the consensus among scholars during a specific period on a religious matter. This consensus is considered a valid basis for action, as the Prophet of Islam proclaimed, "My community will not collectively err."

A notable example of the principle of Ijma' occurred immediately following the Prophet's death when there was uncertainty about who should assume the role of political leader. The election of Abu Bakr as the caliph, through the votes of the people, marked the initial manifestation of Ijma'. Today, within the Muslim community, various schools of law exist. For these schools, the doctrine of consensus serves as a unifying factor.

However, the emergence of different schools of law has also posed challenges to the concept of Ijma'. Over time, it became increasingly difficult to reach a consensus on a particular issue by consulting all Islamic legal experts. There was no overarching organization representing all jurists. Consequently, Ijma' started to be determined by examining historical precedents. Unlike the Quran, the authority of Ijma' in the context of legal innovation is quite limited, which is why it ranks lower than the Holy Quran in terms of legal significance.

Qiyas (Analogy)

When a legal ruling is required for a situation that hasn't been explicitly addressed in other sources, judges may employ analogy, reasoning, and precedent to establish new case law. This often occurs when a general principle can be applied to novel circumstances.

Qiyas serves primarily as an interpretative tool and is not a means to alter existing laws. It can only be employed to discover a legal principle consistent with the Quran and Sunnah (the traditions of Prophet Muhammad) for a new factual scenario. Ijtihad, which signifies "individual reasoning," plays a crucial role in this process. It involves both a deep understanding of Islamic law's rules and the exercise of individual judgment. In fact, Qiyas would be impossible if jurists were not permitted to apply their own reasoning.

For instance, consider the prohibition of alcohol. Drinking wine is regarded as one of the religious offenses according to the Quran. However, as other alcoholic beverages unknown during early Islam emerged, jurists extended the prohibition of wine to include these drinks through analogical deduction from the Quranic ruling.

Nevertheless, this source of law has its limitations. Firstly, it is subordinate to the Quran because its authority derives from it. Human reasoning is expected to align with the Divine Will as expressed in the Quran, rather than acting independently. Secondly, the concept of Ijtihad has been a subject of contention in Islamic history.

Once the Islamic law schools were firmly established, it was widely accepted that the privilege of Ijtihad was reserved for eminent scholars of Islamic law, such as the founders of these schools. Consequently, by the 10th century, it was widely believed that the fundamental principles of Islamic law had been firmly established, and the "gates of Ijtihad" had been closed. Thus, it is evident that Qiyas/Ijtihad is subordinate to the Quran because the Quran continues to serve as an ever-illuminating source of Islamic law, while Qiyas/Ijtihad has waned in significance over time.

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Customary Source:

During its early stages, Islamic jurisprudence drew significant inspiration from existing customary practices. This included the practices of the Caliphs, rulings handed down by judges, and traditions followed by the people. However, even during this period, the Quran served as a guiding influence.

For example, Caliph Abu Bakr mandated alms payment based on Quranic guidance, judges (Qazis) sought direction from Quranic verses to administer justice, and it was through Verse 3 of Surah Al-Nisa that the customary practice of unrestricted polygamy was limited to a maximum of four wives. Consequently, the Quran's supremacy as a primary source of Islamic law was firmly established during this era.

Modern Sources:

In addition to the aforementioned primary Sources of Law, contemporary legal principles occasionally complement Islamic law. The following summarizes these supplementary sources:

  • Isti Hasan - Juristic preference - Equity
  • Isti Salah - Public interest
  • Ijtehad - Exercising one's own reasoning to deduce rule of law (Shariat)
  • Taqlid - Law of Precedents
  • Fatwa's - Decisions of Muslim Judges.

Isti Hasan - Juristic preference - Equity

Imam Abu Hanifa adopted the principle of Isti Hasan for the relief from absolute dependence on analogical reasoning. Isti Hasan literally means liberal construction or juristic preference or what we call today as law of equity. This term was used to express liberty of laying down such rule as may be necessary and the special circumstances may require. The objection taken against it is that it left an almost uncontrolled discretion in the exposition of the law.

Isti Salah- Public interest
Imam Malik, who will be presently mentioned as the founder of a school of Sunni law, also felt the necessity of surer test for the development of law on right lines than the use of analogy. He approved the introduction of Isti Salah (public interest) in preference to Isti Hasan. He laid down that ordinarily, analogy was used to expand law but if it appears that a rule indicated by analogy is opposed to general utility then Isti Salah (principles of public interest) should be resorted to.

Under this system, rule of law pointed out by analogy could not be set aside either: (i) on the opinion of the individual expert of the law of (ii) with reference merely to the circumstances of particular case: it could be disregarded only if it would be harmful to the public in general.

Ijtehad - Exercising one's own reasoning to deduce rule of law (Shariat)
When Quran and Hadis did not disclose the precise line to follow, Ijtehad came to be born. Ijtehad means independent judgement or considered opinions of individuals or exercising one's own reasoning to deduce a rule of Shariat. As a method of reasoning in law, Ijtehad of prophet tersely has gained almost equal footing with the first four founders of the law.

In deducing Ijtehad, Quran and Hadis cannot be over looked but exigency of time and public interest were also to be borne in mind. Where a legal principle is silent, Ijtehad can be used with advantage.

But Ijtehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids (great scholars) based not on his holding any office in the State but is derived purely from the learning and reputation of the individuals. The qualifications of the Mujtahids consists of a complete knowledge of Quran i.e., he should know the sacred text by heart and should be able to say when and where each verse was revealed and he should also have a perfect knowledge of all the traditions (Sunna-Hadis) and all the branches of the science of law.

He should, besides, be a man of austere piety. In short, the qualifications required are such that as far as the Sunni Law is concerned, after the death of Ibne Hanbal (856 after Christ) there have been no recognised Mujtahids. With the end of Mujtahids, the doors of Ijtehad no longer remained open. This is known as the closure of the golden gate of Ijtehad- Bab-al ijtehad.

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Taqlid - Law of Precedents

After Ijtehad or rather on the closure of the Gates of Ijtehad, a parallel doctrine of Taqlid (Law of precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions of another person without knowledge o the Authority or the authority for such opinion, a Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of Shariat, being ignorant, he was asked to follow the opinions of those who knew better. Those who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence, the vicious circle of Taqlid (imitation - Law of Precedents).

Fatwas - Decisions of Muslim Judges

As already aforesaid, the Law sent down by Allah by direct revelations is recorded in Quran and what is sent down by him is recorded in Sunna/Sunnat of Prophet of Islam. Even the King has no authority to make law and therefore, the Muslim Kings called upon the Muslim scholars to guide them in the matter of Law. The opinions tendered by Muslim Jurists to King were accepted by King of enforce the Law in the territory of his kingdom. Therefore, the opinions of Muslim Jurists were always held in high regard.

With the advent of time, even the ordinary Muslims would turn to such jurist and ask for his opinion. Such opinion of Muslim Jurist is referred to as Fatwas. In India, during the Seventeenth Century A.D. when Mughal Emperor Aurangazeb came in power, he appointed Shaykh Nizam Burhanpuri and four others to prepare a compilation of Fatwas. Accordingly, they sent questionnaire various juris-consults and Muftis. Their Replies are the collection of Fatwas, popularly known as Fatwa-e-Alamigir. However, Fatwas are not source of law.

Schools of Jurisprudence

  • Madhhab    
  • Hanafi    
  • Maliki  
  • Shafii    
  • Hanbali  
  • Ẓāhirī

Madhhab

Madhhab is an Islamic term that refers to a school of thought or religious jurisprudence within Sunni Islam. Several of the Sahaba had a unique school of jurisprudence, but these schools were gradually consolidated or discarded so that there are currently four recognized schools.

The differences between these schools of thought manifest in some practical and philosophical differences. Sunnis generally do not identify themselves with a particular school of thought, simply calling themselves "Sunnis", but the populations in certain regions will often - whether intentionally or unintentionally - follow the views of one school while respecting others.

Hanafi

The Hanafi school was founded by Abu Hanifa an-Nu‘man.   It   is   followed   by   Muslims   in the Levant, Central Asia, Afghanistan, Pakistan,India, Bangladesh, Western Lower Egypt, Iraq, Turkey, the Balkans and by most of Russia's Muslim community. There are movements within this school such as Barelvis, Deobandis, and the Tablighi Jamaat, which are all concentrated in South Asia and in most parts of India.

Maliki

Maliki school was founded by Malik ibn Anas. It is followed by Muslims in North Africa, West Africa, the United Arab Emirates,Kuwait, in parts of Saudi Arabia and in Upper Egypt. The Murabitun World Movement follows this school as well. In the past, it was also followed in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily.

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Shafii

The Shafii school was foundednby Muhammad ibn Idris ash-Shafiʿi. It is followed by Muslims in Eastern Lowe rEgypt, Somalia, Jordan,Palestine, SaudiArabia, Indonesia, Thailand, Singapore, Philippi nes, Yemen, Kurdistan, Kerala (Mappilas) and is officially followed by the governments of Brunei and Malaysia.

Hanbali

The Hanbali school was founded by Ahmad ibn Hanbal. It is followed by Muslims in Qatar, most of Saudi Arabia and minority communities in Syria and Iraq. The majority of theSalafist movement claims to follow this school.

Lāhirī

The Lāhirī school was founded   by Dawud   al-Zahiri.   It   is   followed   by   minority   communities in Morocco and Pakistan. In the past, it was also followed by the majority of Muslims inMesopotamia, Portugal, the Balearic Islands, North Africa and parts of Spain.

Schools of Theology in Islamic Aqidah

The term "Aqidah" in Islam refers to one's creed or belief system. It encompasses any religious belief system or creed, but in the context of Muslim history and theology, it holds a specific and significant technical meaning, representing the convictions that Muslims hold. Aqidah is often translated as "theology." These theological traditions cut across sectarian divisions within Islam. For instance, a person who adheres to the Mu'tazili theological tradition may belong to various schools of jurisprudence, such as Jafari, Zaidi, or even Hanafi.

Textualist Approach:

  • Athari    
  • Kalām    
  • Ash'ari  
  • Maturidi  
  • Murji'ah  
  • Mu'tazili

Athari

The Athari school derives its name from the Arabic word Athar, meaning "narrations". The Athari creed is to avoid delving into extensive theological speculation. They use the Qur'an, the Sunnah, and sayings of the Sahaba - seeing this as the middle path where the attributes of Allah are accepted without questioning 'how' they are. Ahmad bin Hanbal is regarded as the leader of the Athari school of creed. Athari is generally synonymous with Salafi. The central aspect of Athari theology is its definition of Tawhid, meaning literally unification or asserting the oneness of Allah.

Kalām

Kalām is the Islamic philosophy of seeking theological principles through dialectic. In Arabic, the word literally means "speech/words". A scholar of kalām is referred to as amutakallim (Muslim theologian; plural mutakallimūn). There     are many schools of Kalam, the main ones being the Ash'ari and Maturidi schools in Sunni Islam.

Ash'ari

Ash'ari is a school of early Islamic philosophy founded in the 10th century by Abu al-Hasan al-Ash'ari. It was instrumental in drastically changing the direction of Islam and laid the groundwork to "shut the door of ijtihad" centuries later in the Ottoman Empire.[citation needed] The Asharite view was that comprehension of the unique nature and characteristics of God were beyond human capability.

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Maturidi

A Maturidi is one who follows Abu Mansur Al Maturidi's theology, which is a close variant of the Ash'ari school. Points which differ are the nature of belief and the place of human reason. The Maturidis state that belief (iman) does not increase nor decrease but remains static; it is piety (taqwa) which increases and decreases. The Ash'aris say that belief does in fact increase and decrease. The Maturidis say that the unaided human mind is able to find out that some of the more major sins such as alcohol or murder are evil without the help of revelation. The Ash'aris say that the unaided human mind is unable to know if something is good or evil, lawful or unlawful, without divine revelation.

Murji'ah

Murji'ah (Arabic:  ) is an early Islamic school whose followers are known in English as "Muالمرجئةrjites"  or "Murji'ites" (المرجئون). During the early centuries of Islam, Muslim thought encountered a multitude of influences from various ethnic and philosophical groups that it absorbed. Murji'ah emerged as a theological school that was opposed to the Kharijiteson questions related to early controversies regarding sin and definitions of what is a true Muslim.
They advocated the idea of "delayed judgement".

Only God can judge who is a true Muslim and who is not, and no one else can judge another as an infidel (kafir). Therefore, all Muslims should consider all other Muslims as true and faithful believers, and look to Allah to judge everyone during the last judgment. This theology promoted tolerance ofUmayyads and converts to Islam who appeared half- hearted in their obedience. The Murjite opinion would eventually dominate that of the Kharijites.

The Murjites exited the way of the Sunnis when they declared that no Muslim would enter the hellfire, no matter what his sins. This contradicts the traditional Sunni belief that some Muslims will enter the hellfire temporarily. Therefore the Murjites are classified as Ahlul Bid'ah or "People of Innovation" by Sunnis, particularly Salafis.

Mu'tazili

Mu'tazili theology originated in the 8th century in al-Basrah when Wasil ibn Ata left the teaching lessons of Hasan al-Basri after a theological dispute. He and his followers expanded on the logic and rationalism of Greek philosophy, seeking to combine them with Islamic doctrines and show that the two were inherently compatible.

The Mu'tazili debated philosophical questions such as whether the Qur'an was created or eternal, whether evil was created by God, the issue of predestination versus free will, whether God's attributes in the Qur'an were to be interpreted allegorically or literally, and whether sinning believers would have eternal punishment in hell.

Marriage

Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding.

Requirement of the valid marriage

  • Offer & Acceptance
  • Presence of Witnesses
  • Capacity of the Parties
  • Free consent
  • No legal dissability
  • Offer & Acceptance

In Muslim law, for a marriage to be valid, both the proposal and acceptance must occur during the same meeting. It is imperative that both the proposal and acceptance are expressed in a single gathering; if the proposal is made at one meeting and the acceptance at another, it does not constitute a valid Muslim marriage. Additionally, there is no requirement for a written document or a religious ceremony.

In Sunni law, the proposal and acceptance should take place in the presence of two adult male Muslims who are of sound mind and have reached puberty. Alternatively, it can be witnessed by one male and two adult female Muslims who are sane. The absence of witnesses does not render the marriage void but may make it voidable.

Under Shia law, witnesses are not obligatory at the time of marriage, and the proposal and acceptance need not be in writing. If they are documented, the written record is referred to as a 'Nikah nama' or 'Kabin-nama.'

The proposal can be made by one of the parties or on their behalf, and the acceptance can be made by female witnesses who are sane and adults, and they must be Muslim.

In the Hanafi, Shafi, and Hanbali schools, two adult male witnesses or one male and two females are required. However, in Maliki and Ithna Ashari's law, the presence of witnesses is recommended but not mandatory, as long as there is sufficient public acknowledgment of the marriage in Maliki law.

Every mentally sound Muslim who has reached puberty is eligible to enter into a marriage contract. Puberty, in this context, signifies the age at which an individual becomes an adult, capable of engaging in sexual intercourse and procreating children. It is generally presumed that an individual has reached puberty upon turning 15 years old. Therefore, both boys and girls who have reached puberty can legally enter into a marriage contract under Muslim law, provided they fulfill all other requirements stipulated by the law.

However, in accordance with the Child Marriage Restraint Act of 1929, a marriage involving a male below the age of 21 and a female below the age of 18 is classified as child marriage and is strictly prohibited. The Act specifies that, for a marriage to be valid, the minimum age for a male should be 21, and for a female, it should be 18.

Parties who contravene the provisions of the Child Marriage Restraint Act may face legal consequences. Nevertheless, it is important to note that the marriage between two Muslims who have reached puberty remains valid even if they have violated the age requirements set forth by the Child Marriage Restraint Act.

In Muslim law, the uncoerced consent of both parties is an absolute prerequisite for a valid marriage. Without free consent, a Muslim marriage is considered void. According to Muslim Law, if a mentally sound and pubescent individual is married without their consent, the marriage is void.

Similarly, if a girl who has reached puberty and is of sound mind is married without her consent, the marriage is void unless later ratified. If consent to the marriage is obtained through force or deception, the marriage is considered invalid unless it is subsequently ratified. If a marriage is consummated against a woman's will, it is also void, and the defrauded party has the right to repudiate the marriage.

Lunatics and minors who have not reached puberty may have their marriages validly contracted by their respective guardians. A minor lacks the capacity to provide valid consent, and the right to contract a minor in marriage belongs successively to the following individuals:

  1. Father
  2. Paternal Grandfather (however high in status)
  3. Brothers and other male relatives on the father's side
  4. Mother
  5. Maternal uncle or aunt and other maternal relatives

Under Shia law, only the father and paternal grandfather are recognized as guardians for contracting the marriage of a minor. If a minor, whether male or female, is contracted in marriage by a more distant guardian while a closer guardian is present and available, and the closer guardian does not consent to the marriage, the marriage is void. However, if the parties ratify the marriage after reaching puberty, it becomes valid. In cases where the closer guardian is absent at a distance that prevents them from taking action, a marriage contracted by the more distant guardian is also lawful.

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Absolute Prohibition

Under Muslim law, there are absolute prohibitions on certain degrees of relationship within which marriage is not permitted. These prohibitions include:

1. Prohibited Degrees of Consanguinity (Blood Relationship): Consanguinity refers to blood relationship, and it prohibits a man from marrying certain females, including:

  • His mother or grandmother (regardless of their status)
  • His daughter or granddaughter (regardless of their status)
  • His sister, whether she is a full-blood sister, half-blood sister, or uterine sister
  • His niece or great-niece (regardless of their status)
  • His aunt (whether paternal or maternal) or great-aunt (regardless of their status)

A marriage with a woman who falls within the prohibited degrees of consanguinity is considered absolutely void, and children born from such a marriage are illegitimate.

2. Prohibited Degrees of Affinity (Relationship by Marriage): Certain female relatives are prohibited from marriage due to their close relationship to a man through marriage. A man is prohibited from marrying:

  • His wife's mother or grandmother (regardless of their status)
  • His wife's daughter or granddaughter (regardless of their status)
  • His father's wife or paternal grandfather's wife (regardless of their status)
  • The wife of his own son, son's son, or daughter's son (regardless of their status)

A marriage with a woman who falls within the prohibited degrees of affinity is void.

3. Prohibition Due to Fosterage (Milk Relationship): Fosterage, also known as the milk relationship, arises when a child is breastfed or suckled by a woman other than its biological mother. In such cases, that woman becomes the foster mother of the child. There are prohibitions on marriage related to fosterage. Shia jurists consider fosterage to have the same limits of relationship prohibitive to marriage as consanguinity. Therefore, a man may not marry:

  1. His foster mother or foster grandmother (regardless of their status)
  2. His foster sister (the daughter of the foster mother)

However, Sunnis do not follow the same restrictions regarding fosterage in marriage.

Polyandry (Marriage to Multiple Husbands): Polyandry refers to a woman marrying more than one husband simultaneously. Under Muslim law, polyandry is strictly prohibited. A married woman cannot marry a second husband while her first marriage is still valid, and her first husband is alive. If a woman violates this prohibition and enters into a second marriage, the second marriage is void, and she may be punished for bigamy under Section 494 of the Indian Penal Code.

Relative Prohibitions: Under Muslim law, there are certain relative prohibitions that render a marriage irregular rather than void. These prohibitions include:

a. Unlawful Conjunction: A man is prohibited from simultaneously marrying two wives who are related to each other by consanguinity, affinity, or fosterage. This means that if two women could not lawfully intermarry due to their relationship, a man cannot marry both of them simultaneously while the first wife is still alive. However, he can marry the second wife after the death or divorce of the first wife. This situation is known as unlawful conjunction. Under Sunni law, it results in an irregular marriage, while under Shia law, it is considered void.

b. Marrying a Fifth Wife (Polygamy): Muslim law permits polygamy, allowing a Muslim man to have up to four wives at the same time. If a man marries a fifth wife while having four other wives, the fifth marriage is irregular. However, it can be made valid after the death or divorce of any one of the four existing wives. Under Shia law, marriage with a fifth wife is void.

c. Absence of Proper Witnesses: A marriage contract must have proper and competent witnesses present during the ceremony. Under Sunni law, at least two male witnesses or one male and two female witnesses must be present to testify that the contract was properly entered into. If a marriage occurs without witnesses, it is considered irregular. Under Shia law, the presence of witnesses is not necessary, but the marriage becomes invalid without them.

d. Differences in Religion (Marriage with Non-Muslims): Marriage with non-Muslims is treated differently under Sunni and Shia law. Under Sunni law, a Muslim man can marry a Muslim female or a Kitabia (a person who believes in a revealed religion possessing a Divine Book, such as Christianity and Judaism). However, he cannot marry an idolatress or a fire-worshiper. A marriage with an idolatress or a fire-worshiper is irregular but not void. A Muslim woman cannot marry a non-Muslim man, and such a marriage is considered irregular or void depending on the interpretation of Islamic jurists.

Under Shia law, both spouses must be Muslims, and any marriage with a non-Muslim is void. In India, a Muslim marrying under or registering their marriage under The Special Marriage Act, 1954, cannot marry a second spouse during the lifetime of the first marriage.

ccording to Sunni schools of thought, the marriage guardian should typically be agnates, who are close male relatives of the person getting married. If there are no agnates available, then the responsibility of guardianship will fall upon the closest relatives. If there are no eligible relatives, then the Head of the State may become the guardian.

In the Ithna Ashari school of thought, having a guardian is crucial for the validity of marriages involving minors or individuals with legal capacity issues, whether they are minors or adults.

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Guardianship in marriage

⦁    Guardianship “With” the right of compulsion, which is exercised over a person of no or limited legal capacity wherein the guardian may conclude a marriage contract which is valid and takes effect without the consent or acceptance of the ward;
⦁    Guardianship “Without” the right of compulsion, which is exercised when the woman possess the full legal capacity but delegates the conclusion of her marriage to a guardian.

Islamic law also requires the parties to a marriage contract to have the capacity to enter into the contract. According to Hanafi and Ithna Ashari's any sane adult, whether male or female, has the capacity to conclude his or her own contract of marriage. According to traditional Islamic law, majority is attained at the onset of physical puberty. There is an irrefutable presumption of law that no female below the age of nine and no male below the age of 12 has attained majority and an equally irrefutable presumption that by the age of 15, majority has been reached by both sexes.

The right of a female to contract her own marriage is, however, not absolute according to Hanafi doctrine. Her guardian may seek dissolution of the marriage if she marries a man who is not her equal according to the law. Equality is determined with regard to piety, lineage, wealth and occupation. However, the right of the guardian to dissolve the marriage lapses if the woman becomes pregnant.

In Maliki, Shafi and Hanbali law a virgin woman may never conclude her own marriage contract. In Maliki law the hierarchy of marriage guardians follows strictly the order of succession. Accordingly, the son of the woman ranks before her father. In Hanbali law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnatic kinsman. The woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship.

There are three types of marriages in Sunni school:

Sahih - Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance.
Batil Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or obligations exist between the parties.

  • Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:
  • Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male.
  • Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.
  • The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.
  • Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.

Fasid - Thirdly, there is a “Fasid” (irregular) marriage, which is middle way out. This is also no marriage, but can be regularized in certain conditions.

  • Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:
  • There is an absence of witnesses.
  • A woman who is already married.
  • A woman who is still observing the idda period.
  • A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.
  • A man may not marry at the same time two sisters or a mother and her daughter.
  • A man who already has four wives may not validly marry a fifth.
  • A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyahA Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.
  • According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.
  • According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.

The Effects of Impediments to Marriage

The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove such as if the woman is married to another man. Where any other impediment exists, the marriage is not void but irregular. If the marriage is irregular certain effects flow from it:

  • The parties may not be found guilty of zina.
  • Any children born out of the union will be held to be legitimate.
  • When the parties separate, and separate they must, the woman must observe an idda period.

A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have acted in good faith, i.e. they were unaware of the existence of the impediment. This is the only instance where Islamic law recognises ignorance of the law as a defence.

Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties:

  • Mutual Rights – Legitimacy of children, inheritance, sexual intercourse.
  • Rights of the Wife (Maintenance).
  • Rights of the Husband (Polygamy).

Muta marriage:

The Shia Law recognizes two kinds of marriage, namely (1) permanent, and (2) muta (literally means enjoyment or use) or temporary. The fundamental difference between the two is that in former the term is not specified while in the later it is. Sunnis do not recognize such marriage. ‘Muta Marriage is an ancient Arabian custom.

A shia male may contract a muta marriage with kitabia woman (professing Muslim, Christian or Jewish religion) or even with a woman who is fire-worshipper but not with a woman following any other religion. But a shia woman may not contract a muta marriage with a non-Muslim.

A Shia male can contract any number of muta marriages. All the requisite formalities of marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is essential to the validity of muta marriage that:-

  • the period of cohabitation should be fixed ( a day, a month, year , years) and that
  • some dower should be specified otherwise marriage will be void. If the period is not specified , though dower is specified, it should be considered as a permanent union, even if the parties call it a muta.

That main incidents of muta marriage are:

  • No mutual rights of inheritance created between the spouses, but children considered legitimate and capable of inheriting from both parents. Thus, a muta marriage is different from prostitution and it is not a marriage for pleasure or a marriage of convenience.
  • Wife is not entitled to maintenance (unless specified). However, she is entitled to maintenance as a wife under the Cr. P.C
  • If marriage is not consummated, the wife is entitled to only half of the dower. If consummated, then full dower.
  • On the expiry of the term of marriage, if the marriage has been consummated, the wife is required to undergo iddat to three courses.
  • Husband has the right to refuse procreation i.e. izl.
  • Marriage come to end ipso facto on the expiry the term, unless extended. Husband and wife do not have a right of divorce, but he can terminate the union earlier by making a “gift of the term”(hiba-i-muddat). In that case, the wife is entitled to full dower. The wife has a right to leave the husband before the expiry of the term of the muta marriage; if she does so, the husband has a right to deduct the proportionate part of the dower for the unexpired period.
  • If there is evidence of the term for which the muta marriage was fixed and cohabitation continues after that term, muta marriage stands extended for the whole period of cohabitation. And, the children conceived during the extended period shall be legitimate.

Dower:

Dower, in the context of marriage, is a monetary sum or property that the husband is obligated to give to the wife as a result of their marriage. This requirement is derived from Surah Al-Nisa, Verse 4 of the Quran, which states: "And give the women (on marriage) their dower as a free gift."

Both Sunni and Shia interpretations agree that the dower can consist of any item or asset that has monetary value, is beneficial, and is considered ritually clean. Therefore, the dower can include assets such as land, buildings, livestock, crops, and personal property. It is essential that the dower's description be reasonably specific.

Vague descriptions, such as "an animal" or "a house," are not considered valid unless the details are adequately specified, although they do not invalidate the marriage contract itself.

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Dower and the Bride

Dower is a distinctive aspect of Muslim marriage, and it should not be confused with a bride-price, as often misunderstood in the West. While a bride price was indeed customary in pre-Islamic times, the concept of dower represents a significant reform introduced by the Quran. According to Hanafi Jurist Al Kamal, dower serves to emphasize the dignity and prestige of the marriage; it is not a consideration akin to a price that would be set as a prior condition.

It's important to note that dower is not a prerequisite for marriage. Surah Baqara, Verse 236 of the Quran states: "It is no sin for you if ye divorce a woman while yet ye have not touched them nor appointed unto them a portion (dower)." This means that there is no sin if no dower is paid, and the woman is divorced before consummation. Since divorce can only occur after a valid marriage contract, this illustrates that dower is not a precondition for marriage.

Furthermore, dower differs from a bride price because a bride price was paid to the bride's father, whereas dower is an inherent and non-transferable right of the wife. It is inalienable, meaning that it is presumed even if not explicitly stated in the contract.

If the husband includes a condition in the marriage contract stating that no dower will be paid, this condition shall be void, but the rest of the contract remains valid. It is also imprescriptible, meaning that the wife does not lose her entitlement to it over time through non-fulfillment.

Classical jurists did not set an upper limit for the dower. However, there is no consensus on the minimum dower. The Shafis, Hanbalis, and Shias contend that there is no minimum limit. In contrast, the Malikis established a minimum dower of a quarter dinar of gold or three dirhams of silver, drawing an analogy with the Sharia limit for punishable theft.

A dirham weighs approximately 2.97 grams. Hanafi doctrine maintains a minimal dower of 10 dirhams, citing the authority of a tradition attributed to the Prophet, although its authenticity is disputed by other schools. The Shia school suggests that the minimum limit should be based on what was given to Bibi Ayesha.

Types of Dower

Dower in Muslim marriages can take various forms, and its terms can be specified by the parties involved. Here are different types and aspects of dower:

  1. Specified Dower: Parties to a marriage can stipulate a specific amount as the dower in the marriage contract. This specified dower may be adjusted, either increased or decreased, through mutual agreement. For such an adjustment to be binding on the husband, certain conditions must be met:
  • It must be clearly determined, with no ambiguity; a vague statement like "I have added to your dower" without further specifics is not valid.
  • The adjustment must occur while the husband and wife are living together, without any divorce or separation.
  • The acceptance of the adjustment must happen during the same sitting where it was offered.

Similarly, a wife with full legal capacity can discharge her husband, after the marriage contract, of all or part of the specified dower. This discharge is valid if the husband accepts it or remains silent but becomes void if rejected. However, if the waiver is made under duress or due to the husband's deathbed conditions, it is not valid. Unlike increasing the dower, the guardian of a minor wife cannot reduce her specified dower.

If no dower is specified in the contract or if it expressly states that no dower will be paid, the wife is still entitled to receive a proper dower. Sunni and Shia schools agree that the proper dower should be determined by considering the amounts given as dower to comparable members of the wife's family, such as sisters or cousins, taking into account the wife's personal attributes like her virginity, age, education, and beauty.

  1. Prompt and Deferred Dower: The parties can agree on when the dower will be paid. If it is payable immediately upon the marriage contract's conclusion, it is referred to as prompt dower. Dower becomes deferred if it is payable at a later time, but it will become payable immediately in case of death or divorce. If the marriage contract is silent on this matter, it is presumed to be prompt.

  2. Entitlement to Dower:

  • Full Dower: According to Sunni consensus, the entire dower becomes due to the wife upon either of two events: consummation of the marriage or the death of either spouse before consummation. If the wife dies, her heirs can claim it from the husband. However, if the wife kills her husband before consummation, she loses her entitlement to any dower, except according to Hanafi school.
  • Half Dower and Mutat: Half of the stipulated dower becomes due if divorce occurs before consummation due to an act of the husband, except for options like puberty or recovery from insanity. Mutat is granted when no dower is specified in the contract.
  • No Dower: No dower, specified or proper, is due if the husband dissolves the marriage before consummation through the exercise of his option of puberty, recovery from insanity, or other lawful means. If the wife dissolves the marriage before consummation by any lawful means or takes khula, she is not entitled to dower.
  1. Legal Disputes over Dower: Various legal disputes may arise regarding the payment of dower. One common dispute concerns the amount of dower specified in the contract. While large dower sums are sometimes publicly announced, private agreements for lesser amounts may exist. Courts may enforce the privately agreed amount.

Another dispute revolves around the refusal of conjugal relations due to non-payment of dower. In Pakistan and Bangladesh, if the mode of payment is unspecified, the dower is presumed to be prompt and payable on demand. Some legal interpretations permit a Muslim wife to refuse consummation if prompt dower has not been paid.

Remission of dower by the wife is another potential dispute. For remission to be valid, it must be given freely and without coercion. Any waiver made under duress is considered void.

Finally, unpaid dower is treated as an unpaid debt, and the wife can sue to enforce payment. In case of unpaid dower, the widow has the right to retain possession of the deceased husband's property until the dower debt is paid to her.

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Addressing the Issue of Refusal Over Unpaid Dower:

The issue of a Muslim wife refusing conjugal relations due to non-payment of dower, even after consummation, has been a matter of legal contention. In the case of "Abdul Kadir v. Salima," where a Muslim wife refused conjugal relations after consummation due to unpaid dower, the court ruled that the wife had forfeited her right to refusal once consummation had occurred. This decision was based on the perspectives of Hanafi Disciples rather than Abu Hanifa's views.

A similar situation arose in the recent Indian case of "Rabia Khatoon v. Muhammad Ahmad." Although the court acknowledged that, under classical Hanafi law, a wife may refuse to live with her husband due to non-payment of dower even after consummation, they upheld their traditional stance due to policy and societal considerations. Consequently, the court granted the husband's claim for restitution of conjugal relations and ordered the payment of the outstanding dower.

However, the legal landscape in Pakistan underwent a change with the case of "Rahim Jan v. Muhammad." In this case, the High Court had to determine whether, according to Hanafi law, a wife retains the right to refuse living with her husband after consummation when her prompt dower remains unpaid. It was established that the comments made in "Abdul Kadir's case" were obiter, and the court firmly held that even after consummation, the wife retains the right to refuse fulfilling marital obligations until the prompt dower is paid.

Another dispute concerning dower pertains to its remission by the wife. For such remission to be valid, it must be made freely and without coercion. In the case of "Shah Banu Begum v. Iftikhar Muhammad," the wife had remitted the dower to prevent her husband from taking another lover. However, the court declared the waiver void and ineffective.

Lastly, there is the matter of unpaid dower, which represents an outstanding debt. In such cases, the wife has the right to sue for the enforcement of payment. The widow, in particular, has the right to retain possession of her deceased husband's property until the dower debt is settled, as exemplified in the case of "Maina Bibi v. Chaudhri Vakil." In this instance, the wife defended her possession of certain property, claiming unpaid dower as her rightful entitlement, and the court ruled in her favor.

Iddat:

In Islam, the concept of "iddah" or "iddat" refers to the obligatory waiting period that a woman must observe following the death of her spouse or after a divorce. During this period, she is not allowed to marry another man. The primary purpose of iddah is to establish the paternity of any potential offspring conceived after the termination of a marriage, ensuring that the male parent is known. The duration of iddah varies depending on specific circumstances.

For a woman who has been divorced by her husband, the iddah period typically spans three menstrual cycles, unless she is pregnant. In the case of pregnancy, the iddah lasts until she gives birth. If the marriage was not consummated, there is no iddah requirement. However, if a woman does not menstruate, Islamic scholars suggest that she should observe a full iddah period of one year, with nine months accounted for pregnancy and three months for iddah itself.

In the event of a woman's husband passing away, the iddah period is four lunar months and ten days, regardless of whether the marriage was consummated. The calculation of this period is based on the woman's menstrual cycle.

Islamic scholars view this directive as a balance between mourning the husband's death and safeguarding the widow from potential criticism that may arise if she were to remarry too quickly after her husband's demise. Additionally, this waiting period serves to ascertain whether a woman is pregnant, as four and a half months align with approximately half the duration of a normal pregnancy.

Furthermore, husbands are encouraged to make a will in favor of their wives, ensuring one year's residence and maintenance, unless the wives decide to leave the house or take similar steps on their own accord.

Regarding the concept of divorce under Muslim law, it is considered an exception to the continuity of marriage. While Islam emphasizes the preservation of the marital bond, divorce is permitted when the marital relationship becomes untenable. The basis for divorce in Islamic law is the inability of the spouses to maintain a harmonious and affectionate union, rather than any specific fault or guilt attributed to either party. Divorce can be initiated by either the husband or the wife and can be enacted through various methods, which will be discussed further.

Modes of divorce under Muslim Law:

There are various modes of divorce under Muslim law, categorized into two primary types: extra-judicial divorce and judicial divorce.

  1. Extra-judicial divorce can be further subdivided into three types:
  • By Husband: A husband can divorce his wife through methods like "talaaq," "ila," and "zihar." Talaaq involves the husband pronouncing his intention to divorce the wife, and it is the most common method. Ila and zihar are similar to talaaq in substance but differ in form.

  • By Wife: A wife generally cannot initiate divorce unilaterally. However, she can do so if the husband delegates this right to her or under a mutual agreement. Under an agreement, a wife may use methods like "khula" or "mubarat" to divorce her husband.

  • By Mutual Agreement: Divorce can also occur by mutual agreement between the husband and wife. Khula and mubarat are two such methods where both parties consent to the divorce. Khula typically involves the wife offering something in return for the divorce, while mubarat is a mutual agreement to dissolve the marriage.

  1. Judicial Divorce: The Dissolution of Muslim Marriages Act 1939 provides grounds for a Muslim wife to seek divorce through a court order. Before this act, a Muslim wife had limited rights to seek divorce, primarily based on grounds like false charges of adultery, insanity, or impotency of the husband.

In terms of the most common method, "talaaq," it refers to the dissolution of marriage by the husband using appropriate words and following the procedure laid down by the law. It signifies the husband's freedom from the marital bond. The Quran supports the husband's authority to pronounce unilateral divorce. All the schools of thought among Sunnis and Shias recognize the concept of talaaq, albeit with some differences in details.

In the Muslim world, talaaq has been widespread, and even Imams practiced it. The husband's absolute power to divorce his wife unilaterally, without providing a reason, has been acknowledged in modern India. The husband can pronounce talaaq at his discretion, even in jest or while under the influence of intoxication, without needing to involve the court and in the absence of the wife.

The method or circumstances of pronouncing talaaq, such as how and when it is done, are less critical. Sunnis recognize various forms of talaaq, including express, implied, contingent, constructive, and delegated, while Shias primarily acknowledge express and delegated forms of talaaq.

Conditions of Valid Talaaq

1. Capacity and Rules for Pronouncing Talaaq:

In Islamic law, specifically related to the practice of divorce (known as "talaaq"), several rules dictate who has the capacity to pronounce it and under what circumstances it is valid:

  • Capacity: Any Muslim husband of sound mind, who has reached the age of puberty, is competent to pronounce talaaq. It is essential for the husband to be mentally sound and of the appropriate age. A husband who is a minor or of unsound mind cannot pronounce talaaq, and if they do, it is considered void. However, if a husband is lunatic but pronounces talaaq during a "lucid interval," it is considered valid.

  • Guardian's Role: The guardian of a minor husband cannot pronounce talaaq on their behalf. If an insane husband has no guardian, a Qazi (Islamic judge) or a judge may dissolve the marriage in the interest of the husband.

2. Free Consent in Pronouncing Talaaq:

  • Except Under Hanafi Law: The consent of the husband in pronouncing talaaq must be freely given. However, under Hanafi law, a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is considered valid and dissolves the marriage.

  • Involuntary Intoxication: Even under Hanafi law, talaaq pronounced under forced or involuntary intoxication is void.

  • Shia Law: Under Shia law (and many other schools of Sunni thought), a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is also void and ineffective.

3. Formalities for Pronouncing Talaaq:

  • Sunni Law: In Sunni Islam, talaaq can be pronounced orally or in writing. It can be a simple utterance by the husband or a written declaration known as a "Talaaqnama." No specific formula or particular words are required for a valid talaaq; any expression clearly indicating the husband's desire to end the marriage is sufficient. Witnesses are not necessary for the pronouncement to be valid.

  • Shia Law: Under Shia law, talaaq must be pronounced orally, except when the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq is considered void. Shia law requires that talaaq must be pronounced in the presence of two witnesses.

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4. Express Words in Talaaq:

  • Express Talaaq (by husband): Clear and unequivocal words, such as "I have divorced thee," are considered express talaaq. Express talaaq falls into two categories:

    a. Talaaq-e-sunnat: This includes two forms: i) Talaaq-e-ahsan and ii) Talaaq-e-hasan. The former consists of a single pronouncement of divorce made during the period of tuhr (purity) or at any time when the wife is free from menstruation, followed by abstinence from sexual intercourse during the iddat period. The latter involves pronouncing talaaq three times during three successive tuhrs. It becomes final and irrevocable after the third pronouncement.

    b. Talaaq-i-Biddat: This form of talaaq, known as "triple talaq," is considered heretical and condemned by many schools of thought due to its irrevocability.

  • Ila: Besides talaaq, a Muslim husband can repudiate his marriage using Ila. In Ila, the husband takes an oath not to have sexual intercourse with his wife, followed by a period of four months. After this period, the marriage dissolves irrevocably unless the husband resumes cohabitation or says, "I have retained thee."

  • Zihar: In Zihar, the husband compares his wife to a woman within his prohibited relationship (e.g., mother or sister). After this comparison, the husband must refrain from cohabiting with his wife for four months. Upon the expiry of this period, the wife has certain rights, including seeking judicial divorce.

5. Divorce by Mutual Agreement:

  • There are two forms of divorce by mutual consent: Khula and Mubarat. Both involve the wife parting with her dower or other property in exchange for divorce.

    a. Khula: Khula signifies an agreement between spouses to dissolve their marriage, with the wife paying compensation to the husband out of her property. It can be initiated by either spouse.

    b. Mubarat: In Mubarat, both spouses mutually desire divorce and initiate the process. It signifies their willingness to end the marriage.

6. Divorce by Wife:

  • The wife can seek divorce in three categories: Talaaq-i-tafweez, Lian, and under the Dissolution of Muslim Marriages Act 1939.

    a. Talaaq-i-tafweez: A Muslim husband can delegate his power of pronouncing divorce to his wife or another person, either temporarily or permanently. This form of delegated divorce is commonly stipulated in prenuptial agreements.

    b. Lian: If the husband falsely accuses his wife of adultery, she can seek divorce under Lian. However, it applies when the husband makes a voluntary and aggressive false charge.

    c. Dissolution of Muslim Marriages Act 1939: This law allows a woman to obtain a divorce on various grounds, including the husband's whereabouts being unknown for four years, failure to provide maintenance for two years, imprisonment for seven years or more, and cruelty among others.

7. Guardianship and Custody:

  • The source of law for guardianship and custody in Islamic law is rooted in Quranic verses and hadiths. Natural guardians, including the father and sometimes the grandfather, are responsible for the person and property of minors. Testamentary guardians can be appointed by the father, grandfather, or court. If these avenues fail, the court can appoint a guardian under the Guardians and Wards Act 1890. The Act considers the child's welfare, age, sex, and personal law when appointing a guardian.

Maintenance:

Maintenance in Islam: Maintenance, in the context of Islamic law, consists of providing accommodation, food, and clothing for the wife. It is considered the lawful right of the wife in a valid marriage, regardless of her financial means or religion. The authority for this entitlement is derived from the Quran, the Prophet's tradition (Hadith), and consensus among Islamic scholars.

1. Assessment of Maintenance:

  • The Holy Quran and Sunna do not specify the scale of maintenance, leaving it to juristic opinions.
  • In Hanafi, Maliki, and Hanbali law, maintenance is calculated as the mean between the husband's resources and the wife's previous living standard.
  • Shafis and Shia law calculate maintenance based solely on the means of the husband.
  • The husband is obligated to provide a safe and separate house for the wife, excluding other family members, except for infant children from his previous marriage. Shia law differs on this point.
  • The right to maintenance belongs to the wife even if she is wealthy while her husband is poor.

2. Entitlement & Loss of Maintenance:

  • Maintenance is due to the wife during a valid marriage, provided certain conditions are met.
  • Conditions include a valid marriage, availability (tamkeen) of the wife for her husband, and obedience of the wife.
  • Disobedience, defined as leaving the matrimonial home without lawful excuse, can lead to the loss of maintenance.
  • Maintenance is also lost if the wife travels unaccompanied by her husband, but lawful reasons can exempt her from this rule.
  • The wife's maintenance can be suspended, but not extinguished, if she disobeys her husband for lawful reasons.
  • Maintenance is generally not due to a wife in jail, even if innocent, unless consummation occurred.

3. Termination of Wife’s Maintenance:

  • Maintenance terminates upon the death or divorce of the wife.
  • In the case of divorce, maintenance during the iddat (waiting) period is generally allowed, with some differences among Islamic schools.
  • Some schools permit full maintenance for non-pregnant divorced women only if they are irrevocably divorced and actually pregnant.
  • Maintenance is not due after the iddat period, as divorced women are expected to return to their families or remarry.
  • However, a husband can voluntarily provide maintenance for his ex-wife beyond the iddat period.

4. Mutat (Gift or Maintenance):

  • Mutat is payable in deserving cases as a goodwill gesture, not as a general entitlement.
  • Different Muslim states have incorporated Mutat payments into their laws, but the amount varies.
  • Mutat can be provided as compensation for arbitrary talaq (divorce without lawful justification).
  • In India, legal reforms have also focused on the right to maintenance for divorced Muslim women.
  • The "Shah Bano" case affirmed that divorced Muslim wives have the right to maintenance even after the iddat period.
  • The Muslim Woman (Protection of Rights on Divorce) Act 1986 was enacted to provide further remedies for divorced Muslim wives in India.
  • The Act allows divorced Muslim wives to seek maintenance if their ex-husbands fail to provide for their future.

5. Maintenance Laws in Different Countries:

  • In Pakistan and Bangladesh, maintenance laws for divorced women vary.
  • Pakistani law does not typically require ex-husbands to provide maintenance beyond the iddat period.
  • In contrast, Bangladesh follows a similar approach to India, emphasizing a husband's obligation to provide maintenance for his divorced wife beyond the iddat period.

Wasiyat

The term "Will" in Anglo-Mohammedan culture corresponds to "Wasiyat." Primarily, Wasiyat refers to a will but encompasses additional connotations, such as a moral guidance, a specific bequest, or the authority vested in the executor. In a broader context, a will represents a written document that outlines an individual's wishes regarding the utilization or distribution of their assets after their demise. As per Section 2(h) of the Indian Succession Act 1925, a Will constitutes the legally recognized declaration of a testator's intentions concerning the disposition of their property, to be executed following their death.

For Muslims, Wasiyat holds a sacred status since it is regulated by the Quran. It provides the testator with a mechanism to modify the traditional inheritance framework to a certain extent, acknowledging the worth of those family members who might be excluded from the usual inheritance, or recognizing the contributions of individuals who assisted them during their lifetime or in their final moments. Prophet Mohammad, however, emphasized that this authority is not boundless and should not be exercised to the detriment of the legitimate heirs.

Competence of the Testator (Who Can Create a Will) Any adult Muslim, whether male or female, of sound mind, is eligible to create a will. The age of adulthood, in the context of wills, is determined by the Indian Majority Act. A will made by a minor is considered invalid but can be ratified after the minor reaches adulthood. A person of unsound mind lacks the competence to create a valid will, and any will made by such an individual is void. If a person initially creates a will while of sound mind but later becomes of unsound mind, the will becomes invalid.

In the case of Abdul Manan Khan vs. Mirtuza Khan (AIR 1991), the Patna High Court ruled that any mentally sound adult Muslim, who is not a minor, can create a legally valid will to distribute their property. In terms of formality, the law does not prescribe any specific format for creating a valid will. The key requirement is an unambiguous expression of the testator's wishes.

Regarding the will of a person who has committed suicide, under Sunni Law, such a will is considered valid. However, under Shia Law, a will made by a person who has taken any action toward committing suicide is invalid. If the will was made before any such action, it is deemed valid.

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Who can make a will?

Competency of the Legatee (Recipient of the Bequest) Any person with the legal capacity to own property can be named as a legatee in a will. Hence, factors like gender, age, religion, or creed do not pose any restrictions. However, a person cannot be made the beneficial owner of the bequest against their will; the legatee must provide express or implied consent to accept the legacy for the transfer to be completed.

An institution can also be named as a legatee, and even a non-Muslim can be a legatee as long as they are not an enemy of Islam and harbor no hostility toward Islam. Under Sunni law, a person who has murdered the testator cannot be a legatee, while under Shia law, if the murder was accidental, the murderer may still be named as a legatee.

In the case of unborn persons, Sunni Law considers a child born within 6 months of the will's creation as existing and eligible as a legatee, while Shia Law extends this period to 10 months, which represents the maximum gestation period.

Bequests for charitable purposes are considered valid. Validity of the Subject of the Will For a property to be bequeathed in a will, it must meet the following criteria:

  • Capability of being transferred.
  • Existence at the time of the testator's death, even if it did not exist at the time of making the will. Therefore, a bequest cannot be made for something that is to be produced or performed in the future.
  • Ownership by the testator.

A bequest that is contingent upon an uncertain event happening is termed a contingent bequest and is void. However, a bequest with a condition that diminishes its completeness remains valid and takes effect as if the condition did not exist. For instance, if a grant is made to X for their lifetime, with a stipulation that it should go to Y after X's death, X receives the grant entirely, and Y gets nothing. Thus, a bequest for a life estate is not valid, whether under Shia or Sunni Law.

Extent of Power of the Will The testamentary power of a Muslim is subject to two limitations:

  • Limitations related to individuals - As established by the Allahabad High Court in Ghulam Mohammad vs. Ghulam Hussain (1932), a bequest in favor of a legal heir is not valid unless the consent of other heirs is obtained after the testator's death. The determination of whether a person qualifies as an heir or not is made at the time of the testator's death. Under Shia law, a testator can bequeath to a legal heir as long as it does not exceed one-third of their property, and no consent from other heirs is necessary. In Hussaini Begam vs. Mohammad Mehdi (1927), it was ruled that if all the property was bequeathed to one heir and others received nothing, the entire bequest would be void.
  • Limitations related to the amount - The general principle is that a Muslim cannot bequeath more than one-third of their property after deducting funeral expenses and debts. However, under Hanafi law, it may be valid if heirs consent after the testator's death. In Shia law, such consent can be obtained either before or after the testator's death. An exception exists for a testator with no legal heirs, as they can bequeath any amount. The government cannot act as an heir for a person with no legal heirs.

Gift under Muslim Law

As Islamic law treats the law of Gift as an integral part of the law of contracts, it necessitates the presence of certain elements, including an offer (izab), acceptance (qabul), and transfer (qabza). In the case of Smt. Hussenabi vs. Husensab Hasan, as reported in AIR 1989 Kar, a grandfather extended an offer of a gift to his grandchildren. Furthermore, he accepted the offer on behalf of the minor grandchildren.

However, there was no explicit or implicit acceptance by one of the adult grandsons. The Karnataka High Court ruled that since all three elements of a valid gift were not fulfilled concerning the adult grandson, the gift was deemed invalid. Nevertheless, it remained valid with respect to the minor grandchildren.

In summary, the following are the essential requirements for a valid gift in accordance with Muslim law:

  1. A clear and unambiguous declaration by the donor, expressing the intent to make a gift.
  2. Acceptance by the donee, without which the gift is considered void. In the case of a minor, the legal guardian may accept on their behalf.
  3. The transfer of possession by the donor, accompanied by the taking of possession by the donee. In Islamic law, possession refers to the control and enjoyment of the property's benefits. The key criterion for establishing possession is to determine whether the donor or the donee is the one benefiting from the property. If the donor continues to enjoy the property's benefits, the transfer of possession has not occurred, rendering the gift invalid.

Conditions for Gift

  • Parties
  • Subject of Gift
  • Extent of Donors right to gift

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Conditions for Donor - (Who can give)

The conditions required for a valid gift are as follows:

  1. Parties: A valid gift transaction involves two parties - the donor and the donee:

  • Both must have reached the age of majority as per the Indian Majority Act, 1875.
  • They must be of sound mind and possess an understanding of the transaction.
  • The transaction must be free from fraudulent or coercive advice and undue influence.
  • The donor must have legal ownership of the property to be transferred as a gift.
  • A married woman can make a valid gift, and the same legal rules and consequences apply to her. In the case of a pardanashin woman, her gift is valid, but in case of a dispute, the burden of proof that the transaction was not conducted under coercion or undue influence falls on the donee.
  • A gift by a person in insolvent circumstances is valid if it is made in good faith and is not intended to defraud creditors.
  1. Conditions for Donee: The recipient of the gift (donee) must meet certain criteria:

  • Any person capable of holding property, including juristic persons, can be a donee. A Muslim can also make a lawful gift to a non-Muslim.
  • The donee must be in existence at the time of receiving the gift. If the donee is a minor or a lunatic, the possession of the gift must be given to their legal guardian; otherwise, the gift is void.
  • A gift to an unborn person is invalid. However, a gift of future usufructs to an unborn person is valid as long as the donee exists when the interest opens up for heirs.
  1. Conditions for the Subject of the Gift: The subject of the gift must meet specific criteria:

  • It must be capable of being transferred.
  • It must exist at the time of making the gift; gifts of future items are void.
  • The donor must have ownership of the gift.
  • In Muslim law, a distinction is made between the corpus (Ayn) and the usufructs (Manafi) of a property. Corpus represents absolute ownership rights that are heritable and unlimited in duration, while usufructs represent the right to use and enjoy the property, which is limited and not heritable. The gift of the corpus is called Hiba, while the gift of only the usufructs is called Ariya.
  1. Subject of Gift: The subject of the gift must be:

  • Something over which dominion or property rights can be exercised.
  • Something that can be reduced to possession.
  • Something that exists either as a specific entity or as an enforceable right.
  • Something that falls within the definition of "mal" (property).
  • In the case of Rahim Bux vs. Mohd. Hasen (1883), it was ruled that the gift of services is not valid because it does not exist at the time of making the gift. Gifts of indivisible property can be made to multiple recipients.

Extent of Donor's Right to Gift: Generally, a donor's right to gift is unrestricted. However, there is one exception:

  • A person on their deathbed (Marz ul maut) cannot gift more than one-third of their property, and they cannot gift it to any of their heirs.

Types of Gifts: There are several variations of Hiba, including Hiba Bil Iwaz, Hiba ba Shart ul Iwaz, Sadaqah, and Ariat.

  • Hiba Bil Iwaz: This type of gift involves a mutual exchange of gifts between two parties, one from the donor to the donee and one from the donee back to the donor. It is akin to a sale, requires registration, and does not necessitate delivery of possession.
  • Hiba ba Shart ul Iwaz: This gift is made with a stipulation for return, with the consideration paid after the gift. Delivery of possession is essential, and the transaction becomes final upon delivery. It can be revoked until the consideration is paid, after which it becomes irrevocable.
  • Ariat: An ariat involves granting limited rights related to the use or usufructs of property or a right.
  • Sadaqah: Sadaqah refers to voluntary charity in Islam. It encompasses acts of giving driven by compassion, religious duty, or generosity. Sadaqah should be given sincerely for the pleasure of Allah, from lawful sources, and without seeking praise or recognition from others. Concealing the act of giving is encouraged, and sadaqah should not be delayed.

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Exceptions to the Delivery of Possession:

There are situations in which the delivery of possession by the donor to the donee is not required. These exceptions include:

  1. Gift by a father to his minor or lunatic son: In the case of Mohd Hesabuddin vs. Mohd. Hesaruddin (AIR 1984), the donor, who was the father, gifted land to his son who was taking care of him and his mother, while other sons were neglecting their responsibilities. Even though there was no physical delivery of the land, the gift was considered valid.
  2. When the donor and the donee reside in the same house to be gifted: In such cases, the departure of the donor from the house is not necessary for the gift to be valid.
  3. Gift between husband and wife: If the donor had a genuine and bona fide intention to make the gift, the delivery of possession is not required in the case of gifts between spouses.
  4. Gift from one co-sharer to another: A bona fide intention to gift is necessary, and physical delivery of possession is not mandatory.
  5. Part delivery: If there is evidence that some of the properties in a gift were delivered, the delivery of the rest can be inferred.
  6. Zamindari villages: Delivery is not necessary if the gift includes parcels of land in zamindari (landlord's domain) where physical possession is impossible. Such gifts can be completed through the mutation of names and transfer of rents and incomes.
  7. Subject matter in the occupation of a tenant: If a tenant is occupying the property, the gift can be accomplished by changing ownership records and requesting the tenant to acknowledge the donee.
  8. Incorporeal rights: The gift can be completed by transferring control according to the nature of the gift. For instance, a gift of a government promissory note can be achieved through endorsement and delivery to the donee.
  9. Where the donee is already in possession: If the donee is already in possession of the property, physical delivery is not required. However, if the property is in the adverse possession of the donee, the gift is not valid unless the donor recovers the possession and delivers it to the donee or does everything in their power to let the donee take possession.

Void Gifts:

Certain gifts are considered void under Muslim law:

  1. Gift to an unborn person: A gift to an unborn person is void. However, a gift of a life interest in favor of an unborn person is valid if the person comes into existence when the interest becomes available.

  2. Gifts of future property: Gifts of things that will come into existence in the future are void. For example, a gift of a crop that will be produced in the future is invalid.

  3. Contingent gifts: A gift that takes effect after the occurrence of a contingency is void. For instance, a gift from A to B that is dependent on A not having a male heir is void.

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Gift with a Condition:

A gift must be unconditional. If a gift is made with a condition that hinders its completeness, the gift itself is valid, but the condition becomes void. For example, if A gifts B his house on the condition that B will not sell it or will sell it only to C, the condition is void, and B takes full ownership of the house.

Mushaa (Hiba bil Mushaa):

Mushaa refers to an undivided share in a property. The gift of an undivided share in an indivisible property is valid under all schools of thought. However, there is no consensus among different schools regarding the gift of an undivided share in a divisible property. In Shafai and Ithna Asharia laws, it is valid if the donor relinquishes control over the property in favor of the donee. In Hanafi law, such a gift is invalid unless it is separated and physically delivered to the donee.

Revocation of a Gift:

Under Muslim law, voluntary transactions, including gifts, are generally revocable, though considered abominable under Hanafi law. In Shia law, a gift can be revoked by mere declaration, while in Sunni law, it can be revoked only through court intervention or with the consent of the donee.

The following gifts, however, are absolutely irrevocable:

  1. When the donor is deceased.
  2. When the donee is deceased.
  3. When the donee is related to the donor within prohibited degrees of consanguinity (except in Shia law, where gifts to blood relatives are irrevocable).
  4. When the donor and the donee are in a marital relationship (except in Shia law, where a gift between spouses is revocable).
  5. When the subject of the gift has been transferred by the donee through a sale or gift.
  6. When the subject of the gift is lost, destroyed, or changed beyond recognition.
  7. When the subject of the gift has increased in value, and the increment is inseparable.
  8. When the gift is a sadqa (charitable donation).
  9. When anything has been accepted in return for the gift.

Wakf:

The term "Wakf" has its literal meaning as "detention," "stoppage," or "tying up," as observed in the case of M. Kazim vs. A. Asghar Ali (AIR 1932). Technically, it refers to the dedication of specific property for a pious purpose or the act of setting aside property for religious or charitable purposes.

According to Muslim jurists like Abu Hanifa, Wakf involves the retention of a particular asset owned by the waqif (the donor or appropriator) and the allocation of its profits or usufructs to charitable causes, the impoverished, or other virtuous objectives, similar to endowments or commodity loans.

The Wakf Act of 1954 provides the following definition for Wakf: "Wakf means the permanent dedication by a person professing the Islamic faith of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable."

Essential Elements for a Valid Wakf:

  1. Permanent Dedication of Property: To create a valid Wakf, there must be a clear and unambiguous dedication of specific property for religious, charitable, or pious purposes. This dedication must be permanent, and there is no prescribed form for it. It can be in written or oral form, but the intention to dedicate the property must be evident. According to Abu Yusuf, a mere declaration of dedication is sufficient for the completion of Wakf, and neither the delivery of possession nor the appointment of a Mutawalli (administrator) is necessary.
  2. Permanent Dedication: The dedication of property for Wakf must be permanent. Temporary dedications, such as for a specific period or until the death of someone, are invalid.
  3. Ownership of the Property: The subject of the Wakf must be owned by the dedicator (waqif). One cannot dedicate someone else's property.
  4. By a Muslim: Only a Muslim can create a Wakf. The individual must also have reached the age of majority as per the Indian Majority Act and should be of sound mind.
  5. Purpose Recognized by Muslim Law: The purpose or object of the Wakf must be recognized as religious, pious, or charitable according to Muslim Law. Specific naming of a purpose is not necessary; a declaration that the property may be used for any charitable purposes permitted by Shariah is sufficient.

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Valid Objects for Wakf:

Some objects recognized as valid for Wakf in several cases include mosques and provisions for Imams to conduct worship, celebrating the birth of Ali Murtaza, repairs of Imambaras, maintenance of Khanqahs, providing for the burning of lamps in mosques, payments to fakirs, grants to idgahs, support for colleges and professors, and the construction of bridges and caravan sarais.

Shia Law Requirements:

In addition to the above requirements, Shia law imposes further conditions for a valid Wakf, including the necessity of delivering possession to the first person in whose favor the Wakf has been created, an absolute and unconditional dedication, and complete removal of any benefits or interests by the dedicator.

Methods of Creating Wakf:

Muslim law does not specify a particular method for creating a Wakf. It can be created through various means:

  1. By an act of a living person (inter vivos): A person declares the dedication of their property for Wakf during their lifetime. This can also be done while the person is on their deathbed (marz ul maut), but in such cases, they cannot dedicate more than 1/3 of their property for Wakf.
  2. By will: A person includes a Wakf dedication in their will to take effect after their death. Previously, it was believed that Shia individuals could not create Wakf by will, but this notion has been approved.
  3. By Usage: When property has been used for religious or charitable purposes for an extended period, it is deemed to belong to Wakf. No formal declaration is necessary.

Types of Wakf:

  • Public Wakf: Dedicated for general religious and charitable purposes.
  • Private Wakf: Created for the creator's family and descendants (technically known as Wakf alal aulad). After the Wakf Validating Act of 1913, private Wakfs can be created, but certain limitations apply. Both public and private Wakfs are created in perpetuity, and the properties become inalienable.

Wakf ala aulaad:

Is it possible to establish a Wakf for one's own family?

Yes, it is indeed possible to create a Wakf for one's family. According to all schools of Muslim jurisprudence, dedicating a Wakf to one's children and subsequently to the poor is considered a valid Wakf. This is because, within Islamic law, the concept of charity encompasses a broad range of provisions, including those made for one's immediate family and descendants. Providing for one's family or descendants to prevent them from falling into poverty is regarded as an act of charity.

Wakf alal-aulad, or a Wakf for one's family, is distinctive in that its income and revenue are intended exclusively for the support of the wakif's (the person establishing the Wakf) family members. Like other Wakfs, Wakf alal-aulad is governed by Islamic law, and there is no differentiation in terms of sanctity or the legal consequences that follow their establishment. In the eyes of the law, Wakf alal-aulad is considered Divine property, and when the rights of the wakif cease to exist, it becomes the property of God, with the benefits accruing to His creatures. Similar to public Wakfs, a Wakf-alal-aulad cannot under any circumstances fail, and when the line of descendants becomes extinct, the entire corpus is dedicated to charitable purposes.

The tradition of private Wakf can be traced back to the Prophet himself, who established a charitable endowment for the support of his daughter and her descendants, placing it on par with dedications to mosques.

In summary, it is clear that one can create a Wakf for their own family, but it is crucial that the ultimate purpose of the Wakf aligns with what Islam recognizes as pious, religious, or charitable.

Quasi public Wakf

At times, a third category of Wakf is also recognized, known as a Quasi-public Wakf. In a Quasi-public Wakf, the primary purpose is partly to provide benefits to specific individuals or a class of individuals, which may include the settler's family, and partly to the public. Therefore, these Wakfs have elements of both public and private Wakfs.

A Wakf that relies on the occurrence of a specific event is referred to as a contingent Wakf and is considered invalid. For instance, if an individual creates a Wakf stating that their property should be dedicated to God only if they die childless, such a Wakf would be invalid. Similarly, under Shia law, a Wakf dependent on certain contingencies is also invalid.

In the case of Khaliluddin vs. Shri Ram in 1934, a Muslim executed a deed to create a Wakf, which included a provision that no action under the wakfnama would be enforceable until a specified debt was paid by him. It was determined that this provision did not impose any condition on the creation of the Wakf, and thus, it was considered valid.

However, if a condition is imposed that, in the event of mismanagement of the dedicated property, it should be divided among the wakf's heirs, or if the wakif reserves the right to revoke the Wakf in the future, such a Wakf would be considered invalid. On the other hand, conditions related to debt payments, improvements, repairs, or the appointment of a Mutawalli (administrator) would not invalidate the Wakf. In the case of a conditional Wakf, it is up to the wakif to remove the illegal condition and make the Wakf valid, or else it would remain invalid.

Completion of wakf

The establishment of a Wakf is considered complete when the first Mutawalli (administrator) is appointed for the Wakf. The Mutawalli can either be a third party or the Wakif (donor) themselves. If a third party is appointed as the Mutawalli, a simple declaration of the appointment and endowment by the Wakif is sufficient. However, if the Wakif appoints themselves as the first Mutawalli, the only requirement is that the transaction should be made in good faith.

There is no need for the physical possession or the transfer of property from the Wakif's name as the owner to their name as the Mutawalli. In both cases, though, a mere intention to set aside the property for the Wakf is not enough; a declaration to that effect is also required.

In the case of Garib Das vs. M A Hamid AIR 1970, it was determined that when the founder of the Wakf is also the first Mutawalli, there is no necessity for the property to be transferred from the donor's name as the owner to their name as the Mutawalli.

Under Shia law, when the first Mutawalli is a third party, the delivery of possession to the Mutawalli is required for completion. Even when the owner themselves is the first Mutawalli, the character of ownership must be changed from owner to Mutawalli in the public register.

Legal Consequences (Legal Incidents) of Wakf Once a Wakf is established and complete, the following legal consequences occur:

  1. Dedication to God: The property becomes vested in God, meaning that nobody can claim ownership of it. Even in the case of Wakf alal aulad, the property is dedicated to God, and only the usufructs are used by the descendants.
  2. Irrevocable: In India, once a Wakf is declared and complete, it cannot be revoked. The Wakif cannot reclaim the property in their name or anyone else's name.
  3. Permanent or Perpetual: Perpetuity is an essential element of Wakf. Once the property is given to Wakf, it remains dedicated to Wakf forever. It cannot have a specified time duration. For example, the Wakf of a house built on land leased for a fixed term was deemed invalid in the case of Mst Peeran vs. Hafiz Mohammad, as held by the Allahabad HC.
  4. Inalienable: Since Wakf property belongs to God, no human being can transfer it for themselves or any other person. It cannot be sold or given away to anybody.
  5. Pious or Charitable Use: The usufructs of the Wakf property can only be used for pious and charitable purposes. In the case of a private Wakf, it can also be used for the benefit of descendants.
  6. Extinction of the Rights of Wakif: The Wakif loses all rights to the property, even the usufructs. They cannot claim any benefits from the property.
  7. Power of Court Inspection: The courts have the authority to inspect the functioning and management of Wakf property. Misuse of the property or its usufructs is considered a criminal offense as per the Wakf Act of 1995.

Revocation of Wakf In India, once a valid Wakf is established, it cannot be revoked because no one has the power to divest God of His ownership of the property. It cannot be given back to the Wakif, nor can it be sold to someone else without the court's permission.

A Wakf created inter vivos (during one's lifetime) is irrevocable. If the Wakif includes a condition of revocability, the Wakf is considered invalid. However, if the Wakf has not yet come into existence, it can be canceled. For example, a testamentary Wakf can be canceled by the owner themselves before their death by creating a new will. Additionally, a Wakf created on one's deathbed is valid only for up to 1/3 of the Wakif's property. Beyond that, it is invalid, and the property goes to the heirs instead.

Mutawalli 

A Mutawalli serves as the manager of a Wakf, with neither ownership nor trustee status over the property. Their role is that of a superintendent, responsible for ensuring that the usufructs of the property are being used for the intended valid purposes set forth by the Wakif (donor).

Their authority is limited, primarily concerning the control over the usufructs. In the case of Ahmad Arif vs. Wealth Tax Commissioner AIR 1971, the Supreme Court held that a Mutawalli has no authority to sell, mortgage, or lease Wakf property without prior court permission, unless explicitly granted such power in the Wakfnama (deed of endowment).

Criteria for Mutawalli Selection

A person eligible to serve as a Mutawalli must be of legal age, mentally sound, and capable of carrying out the functions of the Wakf as specified by the Wakif. Regardless of their religious background, both males and females can be appointed as Mutawallis unless the duties of the Wakf involve religious activities. In the case of Shahar Bano vs. Aga Mohammad 1907, the Privy Council held that there is no legal restriction on a woman becoming a Mutawalli if the duties of the Wakf do not encompass religious activities.

Generally, it is the Wakif who appoints a Mutawalli. The Wakif may even appoint themselves as the Mutawalli. If a Wakf is created without naming a Mutawalli, it is considered valid in India, and the Wakif becomes the first Mutawalli under Sunni law. However, according to Shia law, while the Wakf remains valid, it must be administered by the beneficiaries. The Wakif also has the authority to establish rules for the appointment of a Mutawalli. The following is the order in which the power to nominate the Mutawalli is transferred if the previous nominee fails:

  1. Founder
  2. Executor of the founder
  3. Mutawalli on their deathbed
  4. The court, following certain guidelines:
  • The court should not disregard the directions of the settler (Wakif), but it must prioritize public interest.
  • Preference should be given to a family member of the Wakif over a complete stranger.

Powers of a Mutawalli

As the manager of the Wakf, a Mutawalli has control over the usufructs of the property and possesses the following rights:

  1. Utilization of Usufructs: The Mutawalli can use the usufructs in the best interest of the Wakf's purpose. They can take reasonable actions in good faith to ensure that the intended beneficiaries benefit from the Wakf. However, unlike a trustee, the Mutawalli does not own the property and cannot sell it. The Wakif may grant specific rights to the Mutawalli by explicitly stating them in the Wakfnama.
  2. Selling or Borrowing: The Mutawalli can acquire the right to sell or borrow money by obtaining permission from the court, provided there are appropriate grounds or urgent necessity.
  3. Legal Actions: The Mutawalli is authorized to file a lawsuit to protect the interests of the Wakf.
  4. Leasing Property: For agricultural purposes, the Mutawalli can lease the property for less than three years, and for non-agricultural purposes, for less than one year. Extending the term requires court permission.
  5. Remuneration: The Mutawalli is entitled to remuneration as specified by the Wakif. If the remuneration is deemed too small, the Mutawalli can apply to the court for an increase.

Doctrine of Mushaa in the Present Society

In contemporary Indian society, the Mushaa doctrine neither holds legal necessity nor practical significance. Originally, the Mushaa doctrine was formulated to simplify the process of gifting small undivided properties. In the past, joint property divisions did not require the technical formalities demanded today.

However, applying the Mushaa doctrine in the present day may lead to inconvenience and complications instead of avoiding confusion. In today's commercially advanced society, this doctrine could restrict an individual's rights to deal with their properties. Gifts are not transactions driven by commerce; they are voluntary and altruistic transfers.

Therefore, gifts should be subject to as few restrictions as possible. Furthermore, in cases where a constructive delivery of possession is sufficient to validate the gift, actual division is unnecessary; symbolic possession by the donee of the gifted share in the property suffices.

In the case of Masoom Sab v. Madan Sab, the Andhra Pradesh High Court ruled that a gift of Mushaa is not invalid if the donor performs a constructive delivery of possession. Therefore, there is no legal obstacle if the Mushaa doctrine is not applied to a gift of an undivided property.

Courts have generally favored methods to circumvent the Mushaa rule. Even the Privy Council, in Sheikh Muhammad Mumtaz v. Zubaida Jan, observed that the doctrine of Mushaa is not adaptable to a progressive society and should be confined within strict limits. Therefore, it can be argued that the Hanafi doctrine of Mushaa is neither legally necessary nor practically meaningful for contemporary society.

Shia Law: Shia law does not recognize the doctrine of Mushaa. Under Shia law, a gift of a share of divisible joint property is valid even without partition.

Doctrine of Pre-Emption:

Nature of Pre-Emption: Pre-emption is akin to an easement and is attached to land under Muslim law. It comes into play when adjacent property is sold. It grants the pre-emptor, by virtue of a legal incident related to the sale itself, the right to step into the shoes of the buyer concerning the rights and obligations arising from the sale. It is worth noting that the right of pre-emption is not recognized in Madras, primarily due to its perceived restriction on property transfer, which is seen as contrary to justice, equity, and good conscience (Ibrahim v. Muni Mir Uddin, (1870) 6 M.H.C. 26).

Objective of Pre-Emption: The pre-emption rule aims to prevent the inconveniences that might arise within families and communities when unfamiliar individuals become co-owners or close neighbors through property transactions.

Pre-Emption by Contract: Pre-emption rights can also be established through a contract. When interpreting such a contract, the court will honor the parties' expressed intentions. In the absence of a contrary agreement, it is presumed that a pre-emption contract will follow Hanafi law, with all required formalities. In cases where pre-emption rights are based on a contract, a Muslim co-sharer can exercise these rights even against a Hindu purchaser (Sitaram v. Jiaul Hasan, (1921) 48 I.A. 475).

The doctrine of pre-emption applies to all Muslims and, in certain circumstances, to Hindus as well:

  • By legislation in regions like Punjab and Oudh, where general territorial enactments exist.
  • By custom in Bihar and some parts of Gujarat.
  • Through a contractual agreement between the parties.

In the Mofussil of Bombay, under regulation IV of 1827, the law of pre-emption can apply based on principles of justice, equity, and good conscience or due to custom. However, it has been ruled that pre-emption is contrary to justice, equity, and good conscience (Mahomed Beg Amni Beg. & Anr. v. Narayan Meghaji Patil & Ors., (1916) I.L.R. 40 Bom. 358). Therefore, it can only be applied based on custom.

Who Can Claim Pre-Emption? According to Muhammadan law, the right of pre-emption belongs to the following individuals:

  • A Shafii-i-sharik, i.e., a co-sharer or partner in the property sold.
  • A Shafii-i-khalit, i.e., a partner in the amenities and appendages of the property (such as rights to water and roads). These individuals have a connection to the property sold through dominant or servient heritages or shared rights.
  • A Shafi-i-jar, i.e., an owner of neighboring immovable property. However, this right of pre-emption for reasons of vicinage is not applicable to large estates such as villages and zamindaris but is limited to houses, gardens, and small parcels of land.

Shia Law

Under Shia law, the right of pre-emption is limited to co-sharers, and specifically, only when the number of co-sharers does not exceed two.

When both the vendor and the pre-emptor follow the same school of thought, either Sunni or Shia, the pre-emption laws of that particular school apply, with the law followed by the vendee being irrelevant. According to the Allahabad High Court, if one of them adheres to Shia law, then Shia law governs the pre-emption. Conversely, as per the Calcutta High Court, if the vendor and the pre-emptor do not share the same school of Muslim law, the pre-emption rights are determined by the law of the pre-emptor.

In summary, if the vendor is Sunni and the pre-emptor is Shia, the Allahabad High Court suggests that Shia law should be applied. If the vendor is Shia and the pre-emptor is Sunni, the Allahabad High Court maintains that the matter should still be decided according to Shia law. However, the Calcutta High Court's stance in such cases is to apply Sunni law. In all cases, the personal law of the purchaser is inconsequential.

Hence, it would not be entirely accurate to assert that the prevailing law of pre-emption in India is solely the pure Sunni law of pre-emption.

Constitutional Validity of Pre- Emption

The High Courts of Rajasthan, Madhya Bharat, and Hyderabad have ruled that the right of pre-emption based on vicinage (as mentioned in point 3) became void after January 26, 1950, as it imposed an unreasonable restriction on the fundamental right guaranteed under Article 19(1)(f) of the Constitution. However, pre-emption rights between co-sharers (as mentioned in point 1) and owners of dominant and servient heritages (as mentioned in point 2) are preserved by Article 19(5) of the Constitution.

In contrast, the Bombay, Allahabad, and Patna High Courts have taken a different stance, upholding the constitutional validity of pre-emption for all three classes of individuals mentioned above. Nevertheless, the Supreme Court has now endorsed the Rajasthan High Court's perspective.

The Supreme Court has emphasized that the right of pre-emption is an inherent aspect of property and is attached to the land itself (Audh Singh v. Gajadhar Jaipuria, AIR 1954 S. C., 417). In this case, the Supreme Court ruled that when the right of pre-emption is based on custom, it becomes the lex loci or the law of the place, and this right applies to properties situated in that location.

The Allahabad High Court has further noted that when there exists a right of pre-emption without specifying how it is to be enforced or exercised, or without providing complete details of that custom, it is presumed that the right of pre-emption aligns with the rights allowed by Muhammadan Law. This perspective has been established in several cases and has been followed in subsequent judgments.

Additionally, a Division Bench of the Bombay High Court has observed that the law of pre-emption remains valid even after the enactment of the Constitution and has not been rendered void by Article 13 in conjunction with Article 19(1)(f) of the Constitution of India (Bhimrao Eknath v. P. Ramkrishan, AIR 1960 Bom. 552).

For a pre-emption claim to be deemed valid, a specific formula is not required as long as the claim is asserted unequivocally. However, Sunni law imposes strict formalities that must be followed. A person cannot exercise the right of pre-emption unless he, his representative, or someone authorized on his behalf has completed the following three demands:

  1. Talab-i-mowasibat: This refers to the immediate demand (or demand of jumping), which becomes effective only when it is followed by a formal claim known as "talab-i-ishhad" (detailed below). Talab-i-mowasibat involves an announcement by the pre-emptor of his intention to make a claim. This announcement must be made promptly upon receiving information about the sale, but it should occur after the sale is finalized, not before.

  2. Talab-i-ishhad: This is a demand made with the invocation of witnesses. The talab-i-mowasibat (demand of jumping) remains ineffective unless it is succeeded by a formal claim, known as talab-i-ishhad (demand with invocation of witnesses). In this step, the pre-emptor must:

Confirm his intention to assert his pre-emption right, explicitly referring to having made the "demand of jumping." Make a formal demand:

  • Either in the presence of the buyer or seller, or on the premises being sold.
  • In the presence of at least two witnesses, specifically called to bear witness to this demand. Any unreasonable delay in making this second demand will jeopardize the pre-emptor's right.

The demand process in Muhammadan law before filing a pre-emption suit is highly technical. The talab-i-mowasibat is the first demand, followed by the talab-i-ishhad as the second demand. Both of these demands are prerequisites for exercising the right of pre-emption.

The talab-i-mowasibat (first demand) should be made promptly once the sale becomes known to the claimant. Any undue or unnecessary delay will be considered as an election not to pre-empt (Shaikh Mohammad Rafiq v. Khalilur Rahman and anr. (1972) 11 S.C. W.R. 102).

It is not obligatory for the pre-emptor to tender the price at the time of making the talab-i-ishhad. The third and final formality is the initiation of a pre-emption lawsuit.

When it is impossible to prove the legitimate descent of a child from its father through the existence of a marriage between the parents at the time of conception or birth, such a legitimate descent and marital relationship can be established through an "acknowledgment."

This acknowledgment of paternity doesn't have to be explicitly stated; it can be inferred from the consistent and open treatment of one person as the legitimate child of another. As the Privy Council has noted, "It has been determined in several cases that there is no requirement for proof of a direct acknowledgment, but rather an acknowledgment of children by a Muhammadan as his sons can be deduced from his consistent and public treatment of them as such." (Muhammad Azmat v. Lalli Begum 1881 9 I.A. 8)

The paternity of a child is considered established if the child is born while a valid marriage is in effect or within 280 days following the dissolution of the marriage, provided that the mother remains unmarried during this period.

Maternity of a child is ascertained by the woman who gives birth to the child. It doesn't matter whether the child is born from a valid or irregular marriage, or even as a result of fornication or adultery.

Principle of the Doctrine of Legitimacy by Acknowledgement

The acknowledgment of legitimacy and marriage within Muhammadan law serves as a distinct method to establish the legitimacy of a child and the marriage of the child's mother. In the context of Muslim marriages, which may be contracted without formal ceremonies, the existence of a valid marriage in a specific case may remain uncertain. In situations where direct evidence of such a marriage is lacking, indirect evidence such as the acknowledgment of a child's legitimacy becomes relevant.

This doctrine of acknowledgment comes into play when there is uncertainty about the existence of a marriage, but it cannot be used to legitimize a child who is known to be illegitimate. It relies on the presumption of legitimacy and establishes it through acknowledgment.

Under Muhammadan law, certain conditions must be met for the acknowledgment of paternity to establish the paternity of a child. These conditions include:

  1. The acknowledger must have the legal capacity to enter into a valid contract.
  2. The acknowledgment should not merely pertain to sonship but must explicitly acknowledge legitimate sonship.
  3. The age of the acknowledger and the acknowledged person should allow for a parent-child relationship, with the acknowledger being at least twelve-and-a-half years older than the person acknowledged.
  4. The person to be acknowledged must not be the result of intercourse that would be punishable under Muhammadan law, such as adultery, incest, or fornication.
  5. The parentage of the person to be acknowledged must not be unknown, meaning the child should be known to be the offspring of another person.
  6. The acknowledged person must believe themselves to be the acknowledger's child, and the child should either verify or not repudiate the acknowledgment.
  7. The acknowledger should have the legal capacity to be the husband of the child's mother at the time of conception.

It's important to note that if there is direct evidence showing no marriage between the man and the mother of the child or that any such marriage would be void, the presumption of legitimacy through acknowledgment cannot be raised, even if there is a strong presumption. (Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)

In the case of Rashid Ahmed, A divorced his wife B through three pronouncements of talak but continued to cohabit with her, treating her as his wife for fifteen years. During this period, five children were born to them, all of whom he treated as his legitimate children.

However, the Privy Council ruled that the children were illegitimate. For a valid remarriage between A and B after the divorce, B should have been married to another man in the interim and then divorced by that man. As there was no evidence of such a marriage and divorce by another man, the presumption of remarriage between A and B could not be established, leading to the children being declared illegitimate and ineligible to inherit from their father.

The acknowledgment of paternity in Muhammadan law relates specifically to cases where there is uncertainty regarding the legitimacy of a child and operates on the assumption of a lawful union between the parents of the acknowledged child.

Heritable property refers to property available for inheritance by legal heirs. After the death of a Muslim, his assets are used to cover funeral expenses, debts, and legacies, if any. What remains after these obligations are settled is termed heritable property.

In Muslim law, any type of property may be considered heritable property. Unlike English law, Muslim law does not distinguish between corpus and usufruct, movable and immovable, or corporeal and incorporeal property for the purposes of inheritance. Under Muslim law, all properties owned by the deceased at the time of their death can be subject to inheritance.

In Shia law, a childless widow is entitled to her share (1/4) of the inheritance only from the movable property left by her deceased husband.

Joint or Ancestral Property

In contrast to Hindu law, which recognizes the concept of joint family and coparcenary property, such a notion is not present in Islamic law. In the event of a Muslim's passing, their properties are inherited by their heirs in specific shares, with each heir becoming an absolute owner of their allotted portion. Upon the subsequent demise of such an heir, their properties are once again inherited by their own legal heirs, and this cycle continues.

In Islamic law, there is no provision for ancestral or joint-family property. Therefore, the Muslim law of inheritance does not differentiate between self-acquired and ancestral property. All properties, regardless of whether they were acquired by a Muslim during their lifetime or inherited from their ancestors, are considered individual property and may be inherited by their legal heirs.

No Birth-Right

Inheritance in Islamic law only becomes applicable after the death of a Muslim. The principle of "Nemo est haeres viventis" dictates that no individual can be an heir to a living person. Thus, until a person passes away, their heirs have no legal interest in their properties. Unlike Hindu law, Islamic law of inheritance does not acknowledge the concept of a "right by birth" (Janmaswatvavad).

Under Islamic law, an heir does not possess any rights before the death of an ancestor. It is solely the death of a Muslim that triggers the right of inheritance for their legal heirs. In fact, until a person's demise, their relatives are not considered legal heirs; they are merely heirs-apparent and hold a mere "chance of succession" (spes successionis). If an heir-apparent outlives a Muslim, they become the legal heir, and the right of inheritance is conferred upon them. Conversely, if the heir-apparent does not outlive the Muslim, they cannot be considered heirs and have no claim to inherit the property.

The doctrine of representation is a well-known principle recognized by Roman, English, and Hindu laws of inheritance. Under this principle, the son of a predeceased son represents his father for the purposes of inheritance. The doctrine of representation can be illustrated as follows: Let's consider a family with a patriarch P who has two sons, A and B. A has two sons, C and D, while B has a son, E.

During P's lifetime, the family consists of P, A, B, and three grandsons: C, D, and E. If B unfortunately passes away before P, the surviving members of P's family at the time of P's death include A and his three grandsons: C, D, and E. Under the doctrine of representation, E would represent his deceased father, B, and inherit P's properties as if B were alive at the time of P's death.

However, Islamic law does not recognize the doctrine of representation. According to Islamic law, the nearer heir completely excludes the remoter heir from inheritance. In the example provided, E would be entirely excluded from inheriting P's properties under both Shia and Sunni law. Therefore, E cannot argue that he represents his deceased father, B, and should inherit in his place.

Under Islamic law, the closer heir always takes precedence over a more remote heir in the inheritance. In the case of A and E, A would entirely exclude E from inheritance because A is closer (in degree) to P, while E belongs to the second degree of generation. Islamic jurists justify this stance by arguing that an individual does not even have an inchoate right to their ancestor's property until the ancestor has passed away. Therefore, they conclude that there can be no claim through a deceased person in whom no right could have been vested under any circumstance.

Nonetheless, it could be argued that the non-recognition of the principle of representation in Islamic inheritance law may seem unreasonable and harsh. It may appear unjust that a son, whose father has passed away, is unable to inherit his grandfather's properties along with his uncle.

Distribution among heirs of the same class but from different branches can be categorized as per capita or per strip. In a per capita distribution, the estate is divided equally among the heirs based on their number. Each heir receives an equal share of the heritable assets of the deceased. In contrast, per strip distribution allocates shares to heirs from different branches based on the property available within their respective branches, rather than the total number of heirs.

Under Sunni law, the distribution of assets follows the per capita method, where an heir does not represent their branch in any way. To illustrate this, consider a case where M has two sons, A and B. A has three sons, S1, S2, and S3, while B has two sons, S4 and S5. If both A and B pass away before M, leaving only their five grandsons as heirs, Sunni law dictates that the total assets of M would be divided equally among all five heirs, regardless of their branch affiliation. Therefore, each heir would receive a 1/5 share of M's total assets. Notably, Sunni law does not recognize the principle of representation for determining an heir's claim or share.

In contrast, Shia law follows a per strip distribution when several heirs of the same class descend from different branches. In this method, each heir's share depends on the property available within their respective branch. For example, if A and B each constitute a branch with equal shares of M's property and both A and B predecease M, the surviving heirs of A (S1, S2, and S3) would share equally from the 1/2 property allocated to A's branch. Similarly, the heirs of B (S4 and S5) would equally share the 1/2 property allocated to B's branch. The Shia law, to some extent, accepts the principle of representation for calculating an heir's share but only for this limited purpose.

Inheritance rights in Islam are granted equally to males and females, and both genders have equal rights as heirs. However, the general practice is that the share of a male heir is usually double that of a female heir of the same status or degree. This practice is justified by the fact that, under Muslim law, a female heir receives additional property or money as her Mehr (dower) and may also be entitled to maintenance from her husband. In contrast, a male heir does not receive these benefits and is primarily responsible for the maintenance of his children, unlike a female heir who may have this responsibility only in exceptional cases.

A child in the womb of its mother is eligible to inherit if born alive. An embryo is considered a living person, and property vests immediately in the child in the womb. However, if the child in the womb is not born alive, any share previously vested in the child is divested, and it is presumed as if there was no such heir in the womb.

Other Important Points:

  • Muslim law does not recognize the principle of primogeniture, where the eldest son enjoys special privileges. Instead, all sons are treated equally under Islamic law. However, under Shia law, the eldest son has exclusive rights to inherit specific items, such as his father's garments, sword, ring, and a copy of the Quran, provided he is of sound mind and the father has left other properties besides these articles.
  • Step-children do not have the right to inherit the properties of their step-parents, and vice versa. Step-parents and step-children cannot inherit from each other. However, step-brothers and step-sisters, whether uterine or consanguine, have the right to inherit each other's properties. Muslim law provides for mutual inheritance rights between uterine and consanguine brothers and sisters.
  • In cases of simultaneous death of two or more heirs where it cannot be determined who died first, all the heirs are presumed to have died at the same moment under Muslim law. This results in these heirs being excluded from the inheritance, and the inheritance opens without considering them.
  • According to Section 108 of the Indian Evidence Act, 1872, if a person is missing for at least seven years and there is no proof of their being alive, that person is legally presumed to be dead, and the inheritance of their properties opens. This provision has superseded the Hanafi rule, which required a missing person to be presumed dead only after ninety years from the date of their birth.
  • When a deceased Muslim has no legal heirs under Muslim law, their properties escheat to the government, making the state the ultimate heir.
  • If a Muslim contracts their marriage under the Special Marriage Act, 1954, they are no longer considered a Muslim for the purposes of inheritance. In such cases, the properties of the deceased do not follow the Muslim law of inheritance but are governed by the Indian Succession Act, 1925.

Tips to prepare Muslim Law for Judiciary

Muslim Law in Judiciary exams is not asked in-depth. However, you must understand the concepts thoroughly to score better in the examination. Here are quick tips for preparing for Muslim Law:

  • Go through the previous year's papers and make a comprehensive list of all the topics that were asked in the previous years.
  • Once you have done that, make sure that you read this article and download the notes for your preparation.
  • Read from reliable sources, and start making your own notes.
  • Include examples, explanations and essential case laws.
  • This will help you in developing a better understanding of all the subjects.
  • Make sure that your notes are brief; make short notes while covering all the essential topics and details.
  • After making notes, make sure you revise everything 2-3 times at least.
  • Practice PYQs and sample questions to test your knowledge on a regular basis.

Important Questions of Muslim Law For Judiciary

Sample Questions of Muslim Law for Judiciary for prelims:

1. Religion of Islam is essentially
(a) polytheistic
(b) monothestic
(C) paganistic
(d) either (b) or (c) and not (a)

2. Islamic law is formally contained in
(a) Hadith
(b) Quran
(c) ljma and qiyas
(d) all the above

3. A marriage prohibited by reason of difference of religion is:
a. valid
b. void
c. irregular
d. none of the above
Ans. (C)

4. Shariat Act, 1937 came into operation on
(a) 4th April 1937
(b) 7th January, 1937
(c) 7th July, 1937
(d) 7th October, 1937

5. Muslim law applies to
(a) all persons who are Muslims by conversion
(b) all persons who are Muslims by birth
(C) all persons who are Muslims either by birth or by conversion
(d) all persons who are Muslims by birth only and not to Muslims by conversion

6. How many witnesses are necessary for marriage under hanafi school?
a. 1
b. 2
c. 3
d. 4

7. For a valid Muslim marriage
(a) offer and acceptance must be at the same place
(b) offer and acceptance must be at the same time
(c) offer and acceptance must be at the same time and place
(d) offer and acceptance may be at different times and at different places

8. What is the age of puberty for a female in Hanafi law:
a. 11
b. 18
c. 15
d. 16

9. The essentials of a Muslim marriage do no not include:
(a) Valid offer and acceptance by the parties to the marriage
(b) The parties to the marriage must offer and accept the offer at one and same meeting
(c) The presence of at least two Muslim male witnesses (or one male and two female witnesses) of sound mind and of the age of majority
(d) The offer and acceptance of marriage must be carried out by the bride and the bridegroom personally

10. A Muslim girl aged 17 years was given in marriage by her grandfather and her consent was not sought. The marriage is:
(a) Void
(b) Voidable
(c) Valid
(d) Either void or voidable

Important questions of Muslim Law for Judiciary Mains Examination:

  1. Discuss briefly the sources of Mohammedan law.
  2. Explain the origin, evolution and development of muslim law.
  3. Muslim marriage is a civil contract. Critically evaluate the statement.
  4. Define marriage and muta marriage. State the differences between the two.
  5. Enumerate the differences between Sunni and Shia law with respect to marriage, dower and divorce.
  6. What are the effects of conversion by a married mohammedan on his marriage.
  7. Who is a muslim? What are the consequences of colourable conversion. Examine with the help of decided cases.
  8. Explain the various schools and sub-schools of muslim law.
  9. Distinguish between void and irregular marriage and state the effects of valid, void and irregular marriages.
  10. Define Dower. Explain the various kinds of dower.
  11. Explain the essentials of a valid marriage
  12. Define dower. Discuss the wife’s rights and remedies on non-payment of dower.
  13. When does muslim marriage become irregular and what are its effects?
  14. Discuss the essentials and legal consequences of muta marriage.
  15. Explain the different ways in which marriage may be dissolved under Mohammedan Law.
  16. Write an essay on dissolution of marriage by ‘Judicial Process’ under muslim law.
  17. Explain the principles of acknowledgement of paternity.
  18. What are the grounds for judicial separation under Indian Divorce Act, 1869?
  19. Who are entitled to claim maintenance? Under which law a divorced muslim woman is entitled to claim maintenance? Explain.
  20. Who are the legal guardians of a muslim minor for his property? What are their powers and duties?
  21. What are the protections available to muslim divorced wife under the Muslim women (Protection of Rights on Divorce) Act 1986?
  22. What are the grounds on which wife can claim divorce from her husband under the Divorce act, 1869?
  23. What are the grounds for judicial separation under the Divorce Act, 1869?
  24. Who are entitled to be the guardians of the person and property of a minor?
  25. When can a legal guardian sell the immovable property of a minor muslim?
  26. What are the powers of ‘Dejure Guardian’ and ‘Defacto Guradian’ under Mohammedan Law?
  27. Write a note on Shah Bano’s case and its consequences.

Conclusion:

  • To prepare Muslim Law for Judiciary you should make sure that all the important topics of Muslim Law are covered by you and you make notes for yoursef\lf.
  • For revision you should prefer reading your notes majorly.
  • Reach out to your mentors and faculties in case you find difficulty in making a strategy to study for Muslim Law.

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