MUSLIM LAW SHORT NOTES: important Questions & Answers
Updated: Aug 3, 2022
Q.1. Write a detailed note on "Advent of Islam” and development of Islamic Law
Ans. | Islam - its basis Islam is the last revealed religion.“Islam” is an Arabic word meaning “submission”. It denotes completesubmission to the One AlmightyGod. Muhammad Identified him self as a simple human being sent by God as a Prophet to the people.
The Quran is the Divine Book which is God’s own word as revealedto Muhammad through the Angel of Revealation. It dictates the Law, initiates into the Unseen, purifies the soul and guides social progress.It can be said to be a complete code of conduct for all time.
The Quran, as we have it now, is a record of what the Prophet said while in the state of ecstaticseizure. The recordingof the Prophet’s words in the beggining was haphazard. Verseswere written on palm leaves,stones, the shoulder-blades of animals-in short,any material which'was available. There is no doubt that at the death of Muhammad, a good deal of the Quran was already written down, though not all of it, for while the Prophetwas alive, new Suras or chapters were constantly being added. There is also no doubt that a’great deal of the Quran had been learned by heart.
THE DEVELOPMENT OF ISLAMIC LAW (1) The first period in the development of the Islamic Law is of ten years the one between 1 A. Hejira and 10A.H. This is the most importantperiod so far as.thefirst two sources of law, viz.,the Quran and ‘hadith’ are concerned. The Prophet had conquered Mecca,and in the last few years of his life, he took upon himselfthe task of legislation. Most of the verses of the Quran revealed during this perioddeal with legal aspects. So also do some of the Prophet’s most important judicialdecisions and traditions. The precept of the Prophetacquired binding force because Muslimsbelieved that the actionsand the saying of the Prophet were inspired or commanded by God.
(2) The second period is the period of thirty years from 10A.H. to 40A.H. when the rightly-guided Caliphs, viz., Abu Bakr, Umar, Usman and Ali were the Caliphs. During this period, there was a close adherence to ancient practice under the guise of adherence to the ‘sunnah’-the precept of the Prophet. During this period, the collection and the editingof the Quran also took place. The authorised text of the Quran-which remainswithout change or corruption to this day-wasfirst published duringthe reign of Usman, the third Caliph.
(3) The third periodis a long one which ranges from 40A.H. to the third century after Hejira and is very important. It was duringthis period that the work of collection of the ‘traditions’ of the Prophettook place. During the earlier part of this period, there appear the four schools of Sunni law, which are named after their four founders. The Hanafi School, named after Imam Abu Hanifa, placed reliance on the principles of ‘qiyas’ or analogical deduction. Imam Abu Hanifa employed ‘qiyas’because the doctrineof haduth had not developedfully at that time. There was alsono recognised collections of the ‘hadith’.
The Maliki School named after Imam Malik does not differ much from the Hanifi School.Imam Malik, however,placed greater reliance on systematic reasoning. The Shaafi School was named afterImam Shaafi who preferred the doctrine of ,‘ijma’ or consen sus of the learned.
The Hanbali School,founded by Imam Ahmed bin Hanbal, advocatedthe principle of adhering to the hadith literally.
(4) The fourth period in the development of Islamic law extends from the third century afterHejira to the present day. After the four recognised schools had been founded,later scholars applied themselves to the methods laid down by the founders and developed each system in a particular manner. However, no individual jurist was ever afterwardsrecognised as having the same rank as the founder himself.
After the abolition of the Caliphate, a new situation arose and there was no one to execute the behests of theShariat.
During the last period, the doctrine of ‘taqlid’-following by imitation-and ‘ijtihad’-the power of inde pendent interpretation of law developed and came into prominence.
The Shia School of thought - must not lose sightof the Shia School. In our consideration of the development of Islamic Law. we
The term ‘Shia’ by itself means factionand is a contraction of the word ‘ Sh ia-t-i - Al i ’ or the ’factionof Ali’. The Shias deny and disputethe principle of election by the people in the matter of the Caliphate and hold that the Prophet had appointed Ali as his successor. The Shias are divided into a large number of schools, the two most important of which are the Ismailis and the Ithna Ashari. In India, the Ismailis consistof two main groups, viz., the Khojasand the Bohras.The Khojas are the followersof the Aga Khan and the Bohras are mainly the followers of Syedna or Dai. The majority of Shias belong to the Ithna AshariSchool. The word Shia is, in India,applied in generalto the Ithna Ashari School of Shias.
The Imarhat - According to the Sunni doctrine, the leader of the Muslims,at any given moment, is the Caliph.He is more or less a temporalruler than a religious chief;in religious matters,he has merely to follow the shariat.The concept of the Imam according to the Shiasis totally different. It is here that the fundamental difference between the Shia and the Sunni theologycomes in. Accordingto the Shias, the Imam is the final interpreter of the laws. He is the leader,not by election, but by divine right, as he is .the successor of the Prophet-adescendant of Ali. The Shias hold that no hadithis valid unless it is related by an Imam descended from the Prophet.They accept the authority of the Quran,but say that only the Imam can say what the correctinterpretation of the law is. According to the Shias, the Imam is the law-giver himself,but as he is hidden, the ‘mujtahid’- corresponding to the Sunni Kazis-arehis agents, the interpreters of the law. ‘Ijtihad’-the power of independent interpretation of the law-therefore has an altogether different significance in the Shia Law. The Shia Mujtahidcan give decisionson his own responsibility. The doctrine of qiyas(analogical deduction) and ijma(consensus of opinion) as understood by the Sunnisis not accepted by the Shia' Schoolof thought. Therefore, law, according to the Shia School, consistsof rules of conduct based on authoritative interpretation of the Quran and the Sunnahand the decisions of the Imams through the mujtahids.
Development of Muhammadan Law in India : The Mughal emperors being Hanafis, the Hanafi law was administered till the establishment of British Rule.
The British appliedMuhammadan Law as a branch of personallaw to those who belongedto the Muslim religion in accordance with the principle of their own school or sub-school. In all suits regard ing inheritance, succession, marriage and caste and other usages or institutions, the laws of.the.Quran in accordance with the opinionof the maulvis were invariably adhered to in the case of Mus lims. With the changing social conditions, the need for a change in some of these laws becameapparent. On the other hand, certain portionsof the law were abolished, such as the banning of slavery and forfeiture of rights on apostacy. Similarly, certain portions of the customary law were alteredto make the original rules of the Islamic Law applicable. The Wakf Act, 1913, was enacted on these lines.Today, the law of Marriage, Divorce, Dower, Legitimacy, Guardianship, Wakfs, Wills and Gifts and Inheritance among Muslims is uniform all over India. The ShariatAct of 1937 abrogated custom and restoredto Muslims their own personal law in almost all cases. We thus see that theMuhammadan Law as applied in India is the shariatmodified by the principle of English commonlaw and equity.
Q.2. Explain briefly the various sources of Mohammedan Law
Ans. Primary or Principal Sources (1)The Quran : (which is the ‘divine communication and revelation to the prophet of Islam) is the first source of Muslim Law. It is the Paramount and universal authority of Mohammedan Law. It is composed of such express revelations as were made in the very words of God to Mohammed when J^e was gifted with of the office of Prophet and Messenger of God. As precept and usages of Mohammed were inspired by God, they have the force of law. 18 years after the death of ProphetMohammed, Quran took its present textual form in which it is divided in 30 chaptersand is composed of Ayats. The Quran is not in the form of any definite code. A very small portion of its has'a reference to law laying down the broad general principles, concerning with marriage, dower, divorce inheritance etc. but in all matters with which it deals it is the primary and final authority.
(2) Traditions (Ahadis & Sunnat): After the death of prophet Mohammed, the Moham medan society was faced with many problemsto which the Quran was silent and it was also not possible to refer to Prophet. But during his life time, the prophetpronounced his verdicts, he did certainthings and also allowed indirectly the doing of certain other things as permitted by Islam. Consequently ‘what was said or done or upheldin silence by the Prophet*becomes a primarysource of Mohammedan law coming next in importance to Quran. Quran is the express revelation while these traditions are implied revelations in the precepts, actions and sayingof the Prophet. They were not writtendown during the life time of Prophetbut were preserved by traditions and handed down by authorized agents. Sunnat generally means what the Prophet did while Ahadismeans what he said. (3)Ijma (Consensus) : Ijma meahsthe consensus (unanimity) of opinion of the companions and followersof the Prophet. Sir Abdul Rahim has defined it as ‘the agreement of the juristsamong the followersof Mohammed in a Particular age on a particular question* 1 2 3. After the death of Prophetand with expansion of the Islamic influence,a large numberof fresh facts,new problems arosewhich could not be decidedby reference only to Quran and Ahadis.The jurists then took the recourse throughthe Principles of Ijma, that is the consensus of opinion- amongthe companions of Prophet. The reason behind it was that the persons associated with the prophetas his companion must have known by instinct, the Policy of the Islamiclaw and whether a particular rule or decisionwas in harmony with Islamicprinciples. Ijma is the best guide of law and is universally accepted as an authority next after Quranand Ahadis. So it is the third (in time and importance) source of law.
(4) Qiyas (Analogical deductions, similar inferences) : In Muslim jurisprudence Qiyas means an extension of law (from the originaltext), by meansof common sense.According to Jung it is the processof deduction, applyingthe law of the text to the cases which (though not covered by the language of the text), are covered by. the reasons of the text.
Secondary Sources
(5) Custom Acustom is a tradition, (Passingfrom one generation to another) that originally governedhuman conduct and has obtainedthe force of law in a particular locality or com munity. It is a natural sourceof law. The Muslim juristsdo not expressly describe it as a source of law but those customsand usages which were not touched upon or abrogated by the Prophet,remained good and validIfke Polygamy, Oral Wills, Dower, Divorce etc.
(6) Judicial Precedents : Interpretation of the Mohammedan Law by the Privy Council
and the Judges of the Supreme Court and High Courts, continue in modern times to supplement and modify the Islamic Law. As such they are continuing source of Mohammedan law.
(7) Legislation : Acts of Indian Legislature such as Mussalman Waqf validating Act 1913, Shariat Act 1937, the Dissolution of Muslim Marriage Act 1939, the Indian Contract Act 1872 and Guardians and Wards Act 1890 etc. have considerably affected,-altered, enlarged or modified the old Muslim law.
(8) Justice, Equity and Good Conscience : Where there is no specific rule to guide the court, or there is conflict of opinion the Court shouldfollow that opinionwhich is more in accordance with justice, equity and good conscience (Aziz Bano V. Mohammed 1925).Where the law of Qiyas etc. is not suitable to the present day needs of the society or where it was such that its rigid application would result in hardship to the public, rules of equity could be applied.
[ istihasan ] -Where’ the law analogically deduced (obtained from similarity) is inadaptable to the present needs of. the society,- or where it was such that its rigid application would result in hardship to the public,rules of equity could be applied. Abu Hanifa, (the great jurist)called this "istihasan” (literally translated as “Juristic Preference”)’
Q.3. Who is a Muslim? - Who is Muslim by birth ? What are the effects of conversion to Islam on his martial and inheritance rights ?
APPLICATION OF MUHAMMADAN LAW Who is Muslim ? Like Hindu law, Muhammadan law is a personal.law. Unlike territorial laws, it does not apply to all the persons in a given district. It applies only to those persons who answer a givendescription - Muslims -whether they are so by birthor by conversion. To be a Muslim is to. profess Islam ; i.e., to acknowledge that there is no God but The God (i.e.,4here is only one God) and Muhammad is. HisProphet; “La ilaha ill lil lah Muhammad ur Rasul Allah”.
Profession of the faithof Islam (i.e., beliefin the unity of God) and the’ mission of Muhammad (as a prophet or messenger of God) are necessary and sufficient for establishing that a person is a Muhammadan by birth or by conversion. It is not necessary that he shouldobserve any particular rites or ceremonies. A person, born a Muslim remains a Muslim until he renounces the religion by an unequivocal renunciation of Islam. The mere adoptionof some Hinduforms of worshipdoes not amount to a renunciation of religion. In thecase of an illegitimate son of a Hindu by a Muslim woman and brought up as a Hindu, he may well be regarded as a Hindu, though his mother was a Muslim. Muhammadan law applies to : (a) Muslims by birth, and (b) Muslimsby religion, i.e.,persons who have become convertsto Islam.
EFFECT OF CONVERSION TO ISLAM On conversion to Islam, the convert is deemed to have completely renounced his former religion and status. On conversion to Islam, converts, (no matter what their previous religion may have been) must be taken, (at that moment) to have renounced their former, religion and personal law, and to have substituted for it the Muslim religion and so much of the personal law as necessarily flows from that religion : Advocate - General of Bombay v. Jimbabai I.L.R. (1917) 41 Bom. 181.
Thus, an Indian Christian domiciled in India can, after his conversion to Islam, legally contract a. second marriage with a Muslim woman while his former marriage with a Christian woman is still subsisting: John Jiban Chandra Datta v. Abinash,I.L.R. (1932) 2 Cal. 12. But if the first marriage were contracted in England under English form, duringits subsistence, the second marriage would be regarded as a nullity : King v. Superintendent, Registrar of Marriages, Hammersmith, (1917) 1 K.B. 634 But the conversion of Hindu wife to islam does not ipso facto dissolve her marriage with her husband, and she will be guilty of bigamy if She so marries again : Mst. Nandi v. The Crown,(1920)I.L.R. 1 Lah. 440 In Khambatta v. Khambatta, (1934.)36 Bom. L.R, 1021, I.L.R.(1935) Bom. 278, a Muslim married a Christian woman in the Christian form. The wife became a convert to Islam and the husband divorced her by talak. In these circumstances, the Court held that the divorce was valid.
Problem - Yusuf, a Muslimmarries Rita, a Christian woman,in Scotland according to lex loci (i.e. the law of Scotland). They return to India where Rita embraces Islam. Can Yusuf divorce Rita by Talak? Ans - Y.can divorceR by talak, R havingembraced Islam : Khambatta v. Khambatta, I.L..R.(1935) 59 Bom. 278.
Succession to estateof a convert to Islam : The succession to property of a convertto
the Muslim religionwould be governedby Muslim law and not by the Indian Succession Act. The property,therefore, of a Hindu convertto Islam will devolve according to Muslim law. But the conver sion must be bona fideand not merely a colourable one with a view to elude the personal law to whicha person is subject.
A Christian man, married to a Christian wife, was co-habiting with another native Christian woman. Desirous of marrying and in order to escape the punishment for bigamy, both, the man and the native Christian woman, declared themselves Muslims and went through a form of marriage according to Muslim law. Itwas held that the marriage was notvalid. (Skinner v. Orde, 14M.I.A. 309).
Effect of apostasy on the right to inherit: According to the strict Muhammadan Law, difference of religion is a bar to inheritance. But by the application of the Freedomof Religion Act 1850, a convert from Islam does not lose his right of inheritance. That Act does away with the provisions of Muhammadan Law by which apostates were excluded from inheritance.
According to Muslim law, a Hindu cannotsucceed to the estate of a Muslim.Therefore, if a Hindu, with a Hindu wife and his children, embraces Islam, and marries a Muslim wife, his property will pass.onhis death to his Muslimwife and not to his Hindu wife and children: Chedabaram v. Ma Nyien,I.L.R. (1928) 6 Ran. 243.
1. MULTIPLE CHOICE QUESTIONS
Q.1. Islam is anword,
(a) Urdu,
(b) Latin,
(c) Arabic,
(d) Farsi.
Q.2. The meaning of the word Islam is.
(a) Protest
(b) Praying
(c) Submission
(d) Religipn. .
Q.3. The term ‘shia’by itself means
(a) Religion
(b) Faction
(c) God
(d) Good
Q.4. The Khojas are the followersof
(a) Aga Khan
(b) Dai
(c) Caliph
(d) None.
Q.5. The Bohras are mainly the followers of ..
(a) Aga Khan
(b) Caliph
(c) Syedna
(d) All
Q.6.Quran is revelation to Prophet of Islam and is the communication,
(a) Statutory.
(b) Customary,
(c) Divine,
(d) Ordinary.
Q.7. Quran isauthority of Muhammadan Law.
(a) Ordinary
(b) No
(c) Little
(d) Paramount and Universal.
Q.8.Quran is dividedinto chapters,
(a)10
(b)20
(c)30
(d)40
Q.9. Sunnat generelly means what the Prophet.
(a) Said
(b) Preached
(c) Advised
(d) Did ..
Q.10.Ahadi means what the Prophet.
(a) Said,
(b) Did.
(c) Heard,
(d) Thought.
Q11. Ijma meansofopinion of the companions and followers of Prophet,
(a) Expressing.
(b) Consensus,
(c) Discussion,
(d) Difference.
Q.12. In Muslim Jurisprudence, Qiyas means.
(a) Analogical Deduction,
(b) Similar Inference,
(c) An extension of law from theoriginal text by means of common sense.
(d) All the above.
Q.13. Istihasan literally means.
(a) Equality
(b) Religious
(c) Legal
(d) Juristic Preference.
Q.14. To .be a Muslimis to.
(a) Profess Islam,
(b) To acknowledge that thereis one God.
(c) Believe that Muhammadis his Prophet,
(d) All theabove.
Q.15. Succession to the propertyof a Hindu converted to Islam will be governedby_.
(a) Hindu Law.
(b) Muslim Law.
(c) Indian Succession Act.
(d).Any of the above.
Q.16. if a Hindu, with a Hindu wife and Hindu children, embraces Islam and marries a Muslim wife,his property will pass on his death to.
(a) His Hinduwife and Hinduchildren,
(b) Both his wives equally,
(c) Both his wives and children,
(d) His Muslim wife only.
Q.4,Discuss in brief the various schools of Muslim Law.
Ans. Sunni and Shia - There are two schools of Muhammadan law, viz., the Sunni and the Shia. This division did not spring originally out of differences of legal or religious doctrine; rather it was caused by a dispute which '.in its origin) was wholly political.
Muhammad, the Prophet, died in 632 without leaving any male issue, and on his death a quarrel arouses as to the succession to the Imamate, (i.e. the title of the spritiual and temporal headship of Islam,) aftrer him. One group, the Sunnis, advocated the principle of election in choosing the Imam.' Thus, the divergence between the two groups of sects was chiefly political and dynastic. Doctrinal and legal differences began to grow only in course of time.
The Sunnis base their doctrine on the entirety of the traditions and regard the concordant deci sions of the successive Imams and of the general body of jurists as supplementing the Koranic rules and as equal in authority to them. The Shias, on the other hand, reject not only the decisions of the jurists, but also all traditions not handed down by ali or his immediate descendants - those who had seen the Prophet and held familiar intercourse with him.
Sects or Schools
1. Sunni
(1) Hanafi (FounderAbu Hanifa
(2) Maliki (Founder Ibn Malik)
(3) Shafei (Founder Shafi)
(4) Hanbali (Founder Ibn Hanbal)
2. Shia
(1) IthnaAsharis (Imamia)
(2) Ismailayas (Khojas & Bohras)
(3) Zaidyas (not in India)
Hanafi School - The founder of this school was Abu Hanifa. This school of Sunni Law came into being sufficiently early. The majority of the Sunnis in India are followers of this school. Two very authoritative texts of this school are the Fatava Alamgiri and the Hidaya.
The primary authorities for the doctrine of Hanafi Schools are the writings or opinions of
(a) Abu Hanifi
(b) Abu Yusuf
(c) Imam Mohammed (d. 802 A.D.)
This School was founded by Abu Hanifa who is sometimes referred to by his admirers as the Imam Aazam, the teacher ‘par excellence’; or the great teacher, He established his School of Law in his native city of 'Kufa’, which Was already an independent centre of learning. Abu Hanifa’s Schools soon attained a prominence which it still retains, under the nanje of Hanafi School.
The characteristic feature of this School was that it placed little reliance on the mass of oral traditions (Ahandis), but developed a subtle method of reasoning and analogy (qiyas) and clearly defined the principle of Ijmma’. Abu Hanifa was known as the upholder of private judgment. He relied more on analogical deductions and consciences of jurists and not only excluded many traditions, but introduced a doctrine of jurists equity called ‘Istihsan’, to mitigate the vigour of traditional law. His system of law known as ‘Hanafi Law’ and it attained prominence as it was enforced by his disciple, Abu Hanifa, who was the Chief Quazi of Baghda. The two disciples of Abu Hanifa.also acquired a reputation and authority nearly that of Imam Abu Hanifa himself. Abu Yusuf relied more on tradition than Abu Hanifa and cited tradition to justify conclusions arrived at by analogical deduction. This School prevails in Northern India, Arabia, Syria, Turkey and Egypt.
The majority of the muslims are Sunnis of Hanafi School and hence it is presumed that the parties to a suit are Hanafi unless proved otherwise.
Every adult Muhammadan may choose any school he or she likes, and may renounce one school in favour of another (Hayat-un-Nissa v. Muhammad, 17 I.A. 73). Moreover, a Sunni woman contracting marriage with a Shia does not thereby become subject to the Shia law. [Nasrat v. Hamidan, I.L.R. (1882) 4 All. 20].
The position regarding applicability of different schools of Muhammadan law may be summed up as follows : (a) When the parties to a suit are Muslims of the same school, the law of that school will apply, (b) If they do not belong to the same school, the law of the defendant will apply.
Q.5.State the provisions of Shariat Act 1937 pointingout the main changes broughtabout by the Act in the application of Muslim Law.
Ans. The place of the differentold laws (authorizing and regulating the application of Muslim Law to Muslimsin the different states of India) is now takenby the Muslim personal Law (Shariat) application Act 1937. The Act is applicable to the followingsubject matters -
(1) Marriage
(2) Divorce
(3) Dower
(4) Maintenance
(5) Guardianship
(6) Gift
(7) Waqf etc.
CHANGES EFFECTED BY THE SHARIAT ACT
(1) The shariat Application Act 1937, providesa statutory recognition to the rule of Islam,that its law applies to all who profess the religion of Islam. It makes Mohammaden law appiicabie expressly to all the Muslims. Afterthe passing of the Act courts cannotrefuse to apply Mohammaden law on anypoint on the ground that it is opposed to justice, equity and good conscience.
(1) Secondly, the Act*abrogates the customs and usages which are contraryto the rules of Mohammaden Law, so far as regardsthe subjects of this Act. As regardsthese matters, the courtscannot recognise any custom or usage which is against the rules of Mohammaden law.
(2) Muslim communities such as Khojas,Cutchi Memons, BohiasHalai Memons and the like who have descended (came down) from the originalHindu ancestry (lineage) were, (prior to the passingof this Act) governed by Hindu Law so far as inheritance and succession were concerned. But now, they are not governed by Hindu law so far as they are affected by this Act, which makes the Muslim personal law applicable to all these converts to Islam. Some provisions of this Act are coercive,i.e. they shall apply whetherthe parties show their willingness or not and someprovisions are only persuasive, i.e. they may apply if the partiesshow their willingness. Now, all Muslims(including converts to Islam) shall be governedby the Muslim personal law notwithstanding any custom or usageto the contrary in all questions (Except questions relating to agricultural land).
| Fiqh -| Fiqhis the name given to the whole science of jurisprudence because it implies the exercise of intelligence in deciding a point of law in the absence or ignorance of tradition on the point. Fiqh literally means ‘intelligence’. Fyzee defines it as the “knowledge of one’s rights and obligations derived from the Koran or Sunnah deduced therefrom or about which the learned have agreed. The llm- ul-Faraiz, i.e., the science of law of inheritance.
Difference between Shariat and Fiqh - (1) Shariat is a widercircle, embracing in its orbit all humanactions, while Fiqh isthe narrower one dealing with legal acts alone.
(2)Shariat reminds us of revelation and that knowledge which no one could have possessed except for the Koran or Hadis. In Fiqh, the power of reasoning is the chief factor.
(3)God and Prophet laid down the path of Shariat while the whole structure of Fiqh is erected by human agency.
(4)In Shariat the grades of approval or disapproval are various. Whereas in Fiqh, an action only is legal or illegal, permissible or not permissible.
Q.6. What are the essential of a valid Marriage accordingto Mohammaden Law ? A marriage under Muslim law isa civil contract, not a sacrament”. Discuss.
Ans. Definition of marriage(Nikah) : TheArabic word “Nikah”literally means the union of the sexes and in lawthis term means' marriage’. In Bailee’s Digest marriagehas been defined to be “a contract for the purpose of legalising sexual inter-course and procreation of children”.
In “Headaya” it is defined as - “Marriage is a legal process by which the sexual intercourse and procreation and legitimation of children between man and woman is perfectly lawful and valid.” Ashabah says : “Marriage is a contractunderlying a permanent relationship based on mutual consenton the part of the man and woman”. Accordingto S.C.Sircar - “Marriage amongMohammedans is not sacrement but purely a civil contract”.
There are certain essential or formal requirements which must be observed in marriage underevery law. Marriageunder Muslim law also requirescertain rules to be strictlyobserved. The non compliance of which may make a marriage either void or voidable (irregular). The essential of valid marriageunder Muslim law are as follows :
(1) Proposal and acceptance (Ijab wa Kabul): “Marriage under Muslim law rests on the same footing as any other contract’. (Amir Ali) just as ina contract a proposal is made by one party and its acceptance is made by another party, in the same way in Muslim marriage, there must be a proposal for marriage by one party and the acceptance of the proposalby the other party. The following points must be noticed in this respect :
(a) Presence : The words conveying proposaland acceptance must be utteredin each other’spresence or in presence of their agents who are called “Vakils”.
(b) Clear terms : The proposal and acceptance must be made in clear terms. They should not be doubtful or ambiguous and must denote a permanent and immediate relation.
(c) Specified forms not necessary : Proof, that the wifegave her consentto the marriage and the husbandagreed to the dower constitute sufficient proposals and acceptance (Basheeran V. Mohd. Husain).
(d) One meeting : The proposal and acceptance must be made at one meeting, so if proposalis made at one sittingand acceptance is made at another, the marriage would not be valid. Marriage by correspondence is not valid.
(2) Consent: [Marriage should be performed with the free consent of the contracting parties if they are major, it should be withoutcoercion or undueinfluence or fraud. If it lacksfree consent, it must be ratified afterwards. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardianconsented to it. The consentmay be express or implied.Smiling or laughteror remaining silentmay be taken as indirectconsent. .When the consent has not been obtained the marriage is invalid and even consummation (against the will of the woman) will not validate the marriage. The consent should not depend upon any contingency or future event.
(3) Witnesses : ] Under'Sunni law, the proposaland acceptance shouldbe made in the presenceof two males or one male and two female witnesses who are sane,adult and Muslims.Absence of the witnesses does not render marriage void but voidable. Under Shia Law, witnesses are not necessary at the time of marriage. They arerequired at the time of thedissolution of marriage.
(4) Competent parties:Every Muslim (whether major or minor) is capable of becominghusband or wife.Those persons who are majorand of sound mind arecompetent to marry on their own consent while those who are minors or lunatics can be contracted in marriage by their respectiveguardians. Minority means physical immaturity. Under Hanafi law the pubertyin male or female is presumed to have been attained on the completion of the fifteenth year. Under Shia law, the age of puberty in females begins with menstruation. Guardianship in marriageof minor or lunatic belongssuccessively to (1) Father (2) Father’s father how highsoever (3) Brother and the paternal relations (4)Mother (5) Maternal uncle or aunt (6) The Government. (05D, 07A)
Shia Law : The only guardians recognised by the Shia law are the father and parenal grandfather how highsoever; a marriage broughtabout by a person other than fatheror a grandfather is whollyineffective until it is ratifiedby the minor on attainingmajority. This guardianship in marriage is called Jabar.
| (5) No impediment to marriage (No Prohibition) : By impediment (or legal disability) it is meant that the parties must not be within prohibited degrees or so related to each other as to makethe marriage unlawful or in other words to create an unlawful conjunction.. These impedi ment or prohibition are of following two types:
(a) Absolute impediment (which makes the marriage void) :
(1) Consanguinity (bloodrelationship) : A man cannotmarry his mother,daughter or sister.
(2) Affinity (relationby marriage) : A man cannot marryhis wife’s motheror daughter etc.
(3) Fosterage-Foster relationsare those who have been fed at the breast of one woman : This is as much a prohibition to marriage as consanguinity.
(b) Relative Impediment (Which make the Marriage Voidable/irregular/invalid)
(1) Marrying 5th wife - This impediment can be removed by divorcing one of the first four wives
(2) Absence of proper witnesses
(3) Marrying a woman undergoing Iddat.
(4) Unlawfulconjunction - Marryingwife’s sister etc. This can be regularised by divorcing one of those two sisters.
(5) Difference of religion. A muslim woman cannot contracta valid marriage with a non-muslim. But it can subsequently becomevalid if the non-muslim becomes a cohvert to Islam.
Distinction between void and Voidable (invalid) Marriage
(1) If the impediment is absolute and permanent, the marriage is void, if it is relative and tempo rary,the marriage is invalid.
(2)In void marriage, impediments can never be removed,in other words, a void marriage is void ab initio and can never become valid,whereas an invalidmarriage (whose prohibitions are relative) can become valid if these defects are removed.
(3)Void marriage does not createany civil rightsand duties betweenthe parties to marriage but in invalidmarriage some legal consequences (rightand duties) are created providedthe marriage has been consummated.
(4)Sexual intercourse in void marriageis unlawful (Zina) and the children are illegitimate, whileunder invalid marriage the sexual intercourse.is lawful and the children are legitimate.
Q.7.Explain the nature& object of Muslim Marriage.
Objects of marriage : | A glossary on Tarmizi sets out five objects of marriage' :
(1) the restraint of sexual passion,
(2) the orderingof domestic life,
(3) the increase of the family,
(4) the discipline of the soul in the care and responsibility for wife and children, and
(5) the upbringing of virtuous children.
Hedaya speaksof the ends of marriageas
(i) cohabitation,
(ii) society,and
(iii) equal friendship.
A modern Indian Muslim writer has summed up the objects of marriage under two heads :
(i) referring tochildren, and
(ii) love and affection between the married couple. The Prophet said “Men marry women for their piety,(religiousness) or theirproperty, or their beauty, but you shouldmarry for piety.” (Tarmizi).
[ Nature of marriage| - Fyzeeconsidered the three aspects of marriage in Islamic law, which are necessary to understand the instituion of marriage as a whole, namely:
Social - Inits social aspects,Islamic Law gives a high status to woman after marriage.
Restrictions are placed, by the IslamicLaw upto the unlimited polygamyof pre-lslamic times.
Religious - Koranic Injunctions recognise in Islam,marriage as the basis of the society.Though it is a contract,but it is also a sacred covenant.Temporary marriages are forbidden. Marriageas an institution leads to the uplift of man and is a meansfor the continuance of human race.
Legal - Juristically speaking,marriage is a civil contract, like contract, it has three character istics :
(i) There can be no marriage without consent,
(ii) Provision is made for the dissolution of marriage contract,either by the will of parties or by the operation of law.
(iii) The terms of marriagecontract are within legal limits capable of being altered to suit individual cases.
That is why, Ameer Ali says that marriage under Mohammedan Law, is essentially a civil con tract. Its validity depends on proposal on one side and acceptance on the other.
Q.8. Explain the meaning of Sahih, Batil and Fasid Marriage
Kinds of Marriagesaccording to Validity- On the basis of its validity a marriage
maybeof three kinds, namely: (1) Void (Batil);(2) Irregular or Invalid (Fasid);or (3) Valid (Sahih). (1) Void (Batil) Marriage- • A marriage contracted by parties suffering from absolute incapacity, i.e. prohibited on the groundsof consanguinity, affinityand fosterage is void. They are of no legal effect. A Muslim woman can have such a marriage declaredvoid at any time. The maxim that a valid marriage is to bepresumed from continuous cohabitation is recognised by Islam. The following marriages are void : (a) Marriage with a woman prohibited by reason of: (i) Consanguinity, e:g., mother, daughteror sister, etc. (ii) Affinity,e.g., Wife’s mother,wife’s daughter, father’swife or son’swife, etc. .(iii)Fosterage. (b) Marriage with a woman who is anotherman’s wife. (c) Marriage broughtabout by forceor fraud. (d) In case of a person who marriestwo sisters or five women by one contract. When it is impossible to know whichmarriage was contracted first, all the marriages would be nullified. In case the priorty of one is known, the prior marriage would be valid and the otherwould be void. * (e) A marriagecontracted by a diseased man who dies before consummation of the marriageof that very illness.
(2) I rregular or Invalid(fasid) marriage - A marriage contracted by parties sufferingfrom relative, prohibitory or directoryincapacity is invalidboth according to ‘Baillie’S Digest’and 'Ameer Ali’. But Wilson does not endorse this view on the authority of Azizunnisa’s case.In this case it was held that the generelrule that all marriages contracted against relative prohibition are merely invalidnot void, is incorrect. Howeverthe consensus of opinion is in favourof the former view and as such there are better reasonsto accept it. A marriageis merely invalid, when some such conditions laid down by Muslim Law have not been followed, i.e:, marriage contracted by parties suffering from relative prohibitory or directory incapacity. - Grounds : Some groundswhich make the marriage invalid(Fasid) are as under :- (1) Marriages contracted without witnesses. (2) Marriage by a man having four wives with a fifth.(3) Marriage with a woman divorced or a widow before the expiry of ‘Iddat’. (4) Marriage With a new scriptural woman. (5) Marriageby an unauthorized person. (6) Marriage contraryto the rules of unlawfulconjunctions.
According to Shia Law marriagemay only be either
(1) Valid, or (2) Void.There is nothinglike invalid marriage under Shia Law.
(3) Valid (Sahih) marriage - A marriagewhich is neithervoid nor invalidis valid. A marriage to be valid must satisfy the following requirements: 1.There must have been a proposal by one party and its acceptance by the other. 2.The consent of parties is free.
10
3. Proposal and acceptance must have taken place at one meeting and before the required numberof witnesses. They must be major andof sound mind.
4. The partiesmust have capacityto contract marriagei.e., they shouldbe, (a) of sound mind, (b) major, (c) capable to give free consent. If they are minor or lunatic, it should be done through their guardians.
5. There should be no impediment to marriage, on the ground of consanguinity, affinity, fosterage and polyandry.
Jactitation of Marriage : Jactitation means a false pretence of being married to another. According to Muhammadan law, a suit will lie between Muslimsfor jactitation of a marriage. When a womanfalsely pretends to be a wife of a man, the man has a right to silence her through a suit in a
civil court.
As the Allahabad High Court observedonce, ‘There can be no doubt that unless a man is entitled, (by means of the CivilCourts) to put to silencea woman who falsely claimsto be his heir, may be harassed by false claims after his death.”
Q.9 . State the legal effects of valid,void and irregular marriage.
Ans. Following are the three points of difference between a void (batil) and an invalid (fasid) marriage-
(1) As to definitions : A batil marriage is altogether illegal and does not create any civil rights and obligations between the parties, e.g., there is neither dower, nor iddat nor legitimacy of the children. Thus, a marriage with a woman, prohibited on the ground of consanguinity, affinity, or foster age, is void, the prohibition against such a marriage being unconditional and absolute. Similarly, a marriage with a woman who is the lawful wife of another is void.
An irregular (fasid) marriage, on the other hand is good in its foundation, but unlawful in its attributes, because of the lack of some formality or the existence of some impediment. The lack of formality may subsequently be made up, or the impediment may subsequently be removed. It is not unlawful in itself. Thus, in a marriage-
(i)without witnesses,-the irregularity arises from accidental circumstances, and may be removed by a subsequent acknowledgement, (express or implied), before sufficient witnesses.
(ii)without the guardian’s consent,-the objection may be removed if the guardian subse quently ratifies it.
(iil) with a fifth wife,-the impediment may be removed by the husband divorcing one of his earlier four wives.
. .
(iv)with a woman undergoing iddat,-the impediment ceases on the expiration of the period of iddat.
(v)with an idolater or fire-worshipper,-the impediment may be removed if the woman is con verted to Islam. '
(vi)with a woman so related to the wife that if one of them had been a male, they could not have lawfully inter-married,-this impediment may be removed by the man divorcing the wife who constitutes the obstacle. Thus, a man who has already married one sister, marries another, he divorces the first, and thus regularises the second marriage.
All these are instances of invalid of irregular (fasid) marriages.
(2)As to their legal effect : The effect of a batil marriage is that it creates no civil rights or obligations between the parties, but after consummation, the wife becomes entitled to customary dower only.
A fasid manage has no legal effect before consummation. Even after consummation, the husband and wife have no mutual rights of inheritance between themselves, but the issues of such a marriage are legitimate. If consummation has taken place, the wife is (i) entitled to dower, proper or specified, whichever is less and is (ii) bound to observe iddat.
(3)As to issues of the marriage : The issues of a void (batil) marriage are illegitimate; those of a fasid marriage are legitimate.
LEGAL INCIDENTS(EFFECTS) OF A VALID MUSLIM MARRIAGE :
A valid Muslim marriage confers upon the wife the right of -
(i) Dower,
(ii) Maintenance;
(iii) Suitable matrimonial residence,
(iv) Equal affection and impartiality if she has a co-wife, and
(v) Right to the society, and up-bringing of her infant children, even in case of a divorce.
It imposes upon the wife the obligation-
(i) to be faithful and obedient to her husband,
(ii) to admit him to sexual intercourse, due regard being had to health and decency,
(iii) to suckle her ownchildren, if the husband cannot afford a wet nurse, and
(iv) to observe iddat.
It creates between the parties prohibited degrees of relationship and reciprocal right's of inheritance. It also confers upon both the parties the right to marital confidence. But the husband acquires no right over his wife’s property.
Q .10. write a short note on iddat
ANS - Iddat is a period of chastity which a Muslim woman is bound to observe after the dissolution of her marriage (by the death of her husband or by divorce). This is a period of continence imposed on the woman on the termination of marriage in the interest of certainty of paternity. The abstinence is imposed on her to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. This is a period by the completion of which a new marriage becomes lawful. Ameer Ali says that “Iddat is an interval which a Muslim woman is bound to observe between the end (by death or divorce) of one matrimonial relationship and the beginning of another”. It is thus a period of waiting.
Period of Iddat : | Iddat of death lasts for (a) 4 months and 10 days or (b) in the event of the woman being pregnant at that time, 4 months and 10 days or untill delivery, whichever period is longer. The iddat of death commences from the date of death. If the information of death does not reach the wife until after the expiration of the period of iddat, she is not bound to observe iddat. Iddat of divorce lasts for three menstrual periods.
wifes rights of during iddat
(1) She is entitled to lodging in the husband’s house during iddat.
(2) She is also entitled to maintenance during the iddat of divorce. To take an
illustration if Xhas four wives, A, B, C and D and he divorces A after consummation of the marriage with her. A is not permitted to marry another husband during the period of her iddat. So also X cannot marry a new wife during iddat of A.
2 .MULTIPLE CHOICE QUESTIONS
Q.1. There aremain schools of Muslim Law.
(a) Two.
(b) Three,
(c) Four,
(d) Five.
Q.2. Schools of Muslim Law are also known as.
(a) Madarasa.
(b) Pathshala.
(c) Sects.
(d) All the above.
Q.3. Majority of Muslims belong to.
(a) Shia School,
(b) Sunni School,
(c) No school,
(d) Dayabhaga School.
Q.4. Majority of Sunnis belongto -.
(a) Maliki School,
(b) Shafie School,
(c) Hanafischool
(d) Hanbali school
Q.5. Khojas and Bohras belong to.
(a) Sunni School,
(b) Shia School,
(c) No School,
(d) Both Schools.
Q.6. Fatava-a-Alamgiri and Hidaya are two very authoritative texts of_.
(a) Maliki School.
(b) Hanbali School,
(c) Shafei School,
(d) Hanafi School.*
Q.7. After the passing of Shariat Act 1937.
(a) A Muslim can choosethe law applicableto him.
(b) The court can refuse to apply the Muslim Law to a Muslim on the ground that it is opposed to justice, equityand good conscience,
(c) It is compulsory to apply MuslimLaw to a Muslim,
(d) Converts to Muslim can choose.
Q.8. Fiqh literally means.
(a) Choice,
(b) Religion,
(c) Right,
(d) Intelligence.
Q.9. The Arabic word Nikah literally means.
(a) Sexual Intercourse,
(b) Spouse.
(c)Marriage,
(d) Union of the sexes.
Q.10. In Bailie’s Digest, marriagehas been definedto be a.
(a) Religious Ceremony.
(b) Social Ceremony,
(c) A Contract,
(d) Moral Duty.
Q.11. Under Sunni Law, for performing marriage,the proposal and acceptance shouldbe made in the presenceof_.
(a) One male and one female witnesses,
(b) Two female witnesses.
(c)Four female witnesses,
(d) One male and two female witnesses.
Q.12. In Sunnis, the guardianship in marriage of a minor belongs successively to. J
(a) Father, Mother,Father’s Father, Brother,
(b) Mother, Father,Brother, Father’s Father.
(c) Father, Father’s Father,Brother, Mother,
(d) Father, Mother,Brother, Father’s Father.
Q.13. Guardianship in marriage is called.
(a) Ijab.
(b) Kabul,
(c) Jabar.
(d) Iddat.
Q.14. Sahih means a marriagewhich is.
(a) Void,
(b) Valid,
(c) Irregular,
(d) Incomplete.
Q.15. is a period of chestity which a Muslim woman is bound to observe after the dissolution of her marriage,
(a) Fasid.
(b) Batil.
(c) Iddat.
(d) Jabar.
Q.11. What is meant by the repudiation of marriage? OR Write a note on "option of puberty" or Khyar- ul-Bulugh.
Ans. In certain circumstances a minor contracted in marriage (by the guardianfor marriage) has the right of repudiating the marriage contracton attaining puberty.This’right of the minor is known as the optionof puberty. The marriage is valid untilrepudiation. But if the minorhad been marriedby the father or grand-father, the marriage is valid and binding on the minorand generally minor cannot annul it on the attainment of puberty except in very special circumstances as under (1) When the father or grand father has acted negligently or wickedly, or (2) When the marriage is to the open disadvantage of the minor.
Time of option (1) By the female: In the case she is aware of the marriage she must exercisethis right to the optionimmediately on attaining puberty, Any unreasonable delay would depriveher of her right of option (2) Male has the optionuntil he has confirmed the contract of marriage by express declaration or payment of dower or cohabitation.
| Its effect I The marriageceases to be a marriage,if an option or repudiation is made and consequently it is treatedas having never taken place. But in the meantime the parties remain husband and wifein the sense that ifeither or them dies the otherwill inherit to him or her.
Q.12. What is the Presumption of marriage ?
Ans. | Presumption of marriage 7| In the absence of a directproof, a marriagewill be pre sumed in the followingcases:
(a) When there is a prolonged and continuous cohabitation between the partiesa husband and wife,
(b) When a man acknowledges -
(i) the paternity of a child born to the woman,provided all conditions of a valid acknowledgment are fulfilled; or,
(ii) the woman as his wife, (
c) A marriage withoutdirect proof may also be inferred from circumstances. Mere cohabitation will not be sufficient for such a presumption. Rather,
(i) the cohabitation must be as husband and wife; and
(ii) the man must have treated the woman as his wife, and recognised her as such, with the intention and knowledge of giving her the status of his wife.
Q.13.What is Muta Marriage ? What are its legal incidents ?
Ans. Mutamarriage is a kind of “temporary marriage” or "marriage for pleasure" recognised in the Shia School of Muslim law. The term “Muta" means'enjoyment' or 'use'.Muta marriage is a marriagefor temporary (but a fixed) period specifying dower. It is not recognised in Sunni law be cause under Sunni Law marriagespecifically declared for a limitedperiod is void. The specified period may be a month or a year or even a day.
Legal Incidents of Muta Marriage: |
(1) No mutual rights of inheritance between parties are created.
(2)The children born out of such marriage are legitimate and have right to inheritance from both the parents
(3)Themarriageisdissolved‘ipsofacto’(automatically)ontheexpiryoffixedperiodorearlierbymutualconsent
(4)DivorceisnotrecognisedinaMuta'Marriage.TheHusbandmay (if he likes) make a gift of the unexpired period to the wife which is called Hiba-i-Muddat
(5)Ifthemarriageisconsumated,.thewifeisentitledtogetfulldower.Ifthemarriageisnotconsummatedsheis entitled to half dower.
(6) The wife is not entitled to maintenance under Mohd. Law.
(7) There is'nominimumtimeorduration ofMutaMarriage.
(8)Thereisnolimittothenumberof Mutawives.
(9)TheHusband is notbound to provide residence to the Muta wives.
(10).The Muta wife is required toobserve Iddat in case of death of her husband for a period of four months and ten days. In case ofpregnancy this period is to be extended till delivery.
(11) A Muta wife does not forfeit her dower on thegroundofinfidelity solong as it doesnot prevent her from being at herhusband’s' use’
Q.14. Write a short note on Kazi.
Kazi :Orginally, the Kazi was a judgeand a very high judicialofficer in the State. With
the comingof the British rule, the Kazis lost their judicialstatus and becameonly religious priests.In modern times, the main function of the Kazi is to officiate at marriages and supervise talaks.
Ancient times : TheKazi was the technical designation of a Judge appointed by the State.The Kazi exercisedno voice in fixing the doctrine of religion; he gave ordersabout the affairsof the world. Kazis were often invited to officiateat marriages or to supervise talaks, and they kept recordsof these transactions: The administration of wakf propertywas in exercise of a power speciallycon ferred on the chief Kazi.
Modern times: For some time .immediately after the introduction of the Britishrule in India, Kazis were appointed as legal advisersto Indian Courts.A Kazi’s placeis now taken by the Civil Courts,and a Kazi now means a religious officer, and not a Judge.The office of Kazi isnot hereditary.
Q.15. What is dower (Mehr) ? What are specialfeatures of a dower debt ?
Ans. “Dower is a sum of money (or other property) which the wife is entitled to receive from the Husband in consideration of marriage” Mulla. According to Saxena “ Dower is a sum of money or any property promised (may be implied) by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person (body) after the marriage contract, but generally said to be consideration for marriage”.
Kinds of Dower
Dower may be classified according to the method of deciding of its amount and according to the time when it is payable.
(1) (a) Specified dower : When the amount of dower is fixed (either before or at the time of marriageor even after marriage) such fixed amount is called specified dower.
(b) Proper dower (Mahr-i-misl): If the amount of dower is not fixed, the wife is entitled to proper dower.In determining properdower regard is to be had to the amountof dower settledupon the other female members of her father’s family.
(2)(a) Prompt dower(Muwajjal) : It is the amount of dower payablebefore the wife can be called upon to enter into conjugal domicile.
(b) Deferred dower(Muwajjal) : It is the amount of dower which is payableon the dissolution of the contract of marriage by the death of either of the parties or by divorce.
| Can dower be remitted ? |An adultwife has everyright to deal with her dower in any way she likesand as such she may remit that dower (or any part thereof) in favour of the husbandor his heir. Such a remission is valid, though made withoutconsideration. But the remission must have been made with her free consent. A remission made by the wife when she is in a great mental distress (due to her husband’s death) is not made with her free consent and is not binding on her. A girl, who is a minor and has not attained puberty,cannot remit her dower but if she has attainedpuberty, she is competent to remit her dower thoughshe may not have attainedthe age of 18 years within the meaning of the IndianMajority Act. A stipulation in a contractof dower that the wife should not be competent to remit her dower without the consent of her relations is valid.
Right & Remedies of wife on non-payment of Dower
(1) Refusal to cohabit : If the marriage has not been consummated, she has a right to refuse to cohabit with him, so long as the prompt dower is not paid. If the marriage has been consummated she cannot refuse to cohabit (provided the consummation took place when she was not a minor or an insane.)
(2) Legal nature of Dower : “The dower is a debt but an unsecured debt” and the wife is entitled (alongwith the other creditors) to have it satisfied on the death of the husband out of his estate but the heirsare not personally liable.
(3)Retention of property (or widow’s lien) : An.unpaid dower may be analysed as under : (1) If a widow (2) has lawfullyand without force or fraud (3) obtainedthe actual possession of her deceasedhusband’s property in lieu of her dower (4) she is entitledto retain the property in her possession (5) as againstother heirs and as againstother creditors of her husband(6) until her dower is paid, and (7) if she has not obtained possession (8) she can not exclude other heirs from possession, I.e. they are entitled to joint possession.
Kharch-i-pandan : Literally, it means betel-box expenses. It is a personal allowance to the wife customary among Muslim familes of rank, especially in Nbrth India, fixed either before or after marriageand varying according to themeans and position of theparties. The husband has hardly any control over the wife’s application of the allowance either in her adorment or in the consumption of the article from which it derives its name (paan) : Khawja Muhammad v. Husani Begam, 371.A. 152.
Q.16. What are different formsof divorce recognised by the Mohd.Law ? In what way or manner marriage under Mohd. Law can be dissolved ?
Ans. Following are the different forms of divorcerecognised by the Mohammedan Law - (1) Talaq (2) Khula
(3) Mubarat
(4) Illa
(5) Zihar
(6) Lian and
(7) Judicialdivorce. Talaq According to Muhammedan Law, any husband(who is of sound mind and has attained puberty)may divorce his wife wheneverhe desires, withoutassigning any reason,at his mere whim or caprice. He may do so by mere wordswithout any taleqnama (deed of divorce),and no particular form of words is necessary. It is not necessary that the divorceshould be pronounced in the presenceof the wife, or even addressed to her. Where a husband went to the Kazi and pro nounced the divorce in the absence of the wife, and had the talaknama prepared and duly executed it was held that this was a valid divorce and that it took effectfrom the date of the document, even though not communicated to the wife.
Shia Law: A talaq under Shia law must be pronounced orally in the presence of two male Muslim witnesses. A talaq communicated in writing is not valid (unless the husband is physically incapableof pronouncing its orally). In order to pronounce a valid talaqShia Muslim must be (1) Adult (2) Sane (3) Free will and (4) having knowledgeof the nature of the act (knowingwhat he is doing).
SunniLaw : Inorder to pronounce a valid talaqa Sunni Muslim must be only
(1) Adult and
(2) Sane. His free will or knowledgeof the.act is not necessary. Hence in Sunnilaw a Talaq pronounced under compulsion or in jest or in a State of voluntaryintoxication is valid (All such talaqsare invalid in Shia law) intention is immaterial in Sunni Divorce.Therefore if the words of divorce are express and clear, the talaq is valid even if it is given without any such intentionor knowledge or in a State of intoxication. A talaq given by a husband under compulsion of his fatherwas held valid,although he himselfdid not ‘intend to divorcehis wife thereby’- Rashid Ahmad.Vs.Anisa Khatoon (1932).Talaq may even be pronounced so as to take effecton the happening of a future event.An adult guardian of an insane husbandmay pronounce a talaqon behalf of the husband if his so doing is for the benefit of the husband.
Q.17. What are different modes of‘Talaq’ and when does each of them become irrevocable
Ans. Mainly there are the following two modes (forms)of Talaq :
(1) Talaq-ul-Sunnat : | It is a talaq which is effected in accordancewith the traditions of prophet hence it is customery talaq and sub divided into
( A) Talaq Ahsan : In Arabic Ahsan Means Best or ‘very proper. It signifies that the talaq pronounced in Ahsan form is the best kind of Talaq. It is a single pronouncement of Talaq (when the woman is in a State of purity)followed by abstinence from sexual intercourse for the period of Iddat. When the marriage has not been consummated Talaq in Ahsanform may be pronounced even if the wife is not in a State of purity(i.e. is in M.C.). This type of talaq becomesirrevocable (bain) on the completion of period of Iddat after the pronouncement.
(B) TalaqHasan : - In Arabic Hasan means good or proper. In Hasan form there are three pronouncements of talaq, once duringeach of the 3 successive period of purity (intervals between M.Cs). This intervalis called ‘Tuhr’ and abstinence from sexual intercourse until the thirdpronounce ment. The Hasan mode of talaq becomes irrevocable on the third pronouncement.
(2) Talaq-ul-Biddat : Means a talaq which,though.valid, is sinful.It is also of two kinds
(A) Three pronouncement of Talaq made during a single Tuhr. These pronouncement may be made either in one sentence (‘I divorce you thrice’)or in separate sentences .(‘Talaq, Talaq,Talaq’)
(B) A single pronouncement of talaq, even during wife’s menstruation, showinga clear intention that the divorceshall immediately become irrevocable (‘I divorce you irrevocably') is valid.
WhenTalaq becomes irrevocable? Shias do not recognise Talaq-ul-Biddat. Talaq-ul-Biddat becomes bain (complete and irrevocable) immediately on its pronouncement. Talaq in writing be comes irrevocable immediately on the executionof the document (unless a contrary intentionis expressed). Until a talaq becomes irrevocable,the husband has the option to revoke it. He may revoke it either expressly or impliedly as for example by resuming sexual intercourse.
Talaq-e-Tafweez’ ( Delegated divorce): The doctrineof “Tafweez” or delegation of power is an importanttopic of the Muslim Law of Divorce.A husband may, either himself,repudiate his wife or he may delegate this pdwer.of repudiating her to a third party, or even to his wife. Such a delegation of power is called Tafweez’. An arrangement made either beforeor after the marriage where it providedthat the wife would be at libertyto divorce herselffrom her husband under certain specified conditions, is valid :-provided first, that the option is not absoluteand unconditional and secondly, that the conditions are reasonable and not opposed to publicpolicy. An agreement by which the husband authorisedthe wife to divorce herself from him in the event of his marryinga second wife without her consent is Valid.
3. MULTIPLE CHOICE QUESTIONS
Q.1.Repudiation of marriageis also known as.
(a) Presumption of marriage. (b)Jactitation of marriage,
(c) Option of puberty,
(d) None. Q.2. A false pretence of being married to another is known as.
(a) Presumption of marriage,
(b) Khyar-ul-bulugh.
(c) Option of puberty,
(d) Jactitation of marriage.
Q.3. The term Muta literally means.
(a) Permanent marriage..
(b) Nikah.
(c) Enjoymentor Use.
(d) Divorce. .
Q.4. Muta Marriage is a marriagefor temporary.
(a) but unlimited period,
(b) but fixed period,
(c) period without fixing dower,
(d) period without consent.
Q.5. In Muta the husbandmay, if he likes, make a gift of the unexpired periodto the wife which is called.
(a) Hiba.
(b) Hiba-bil-ivaz.
(c) Hiba-ba-sharat-ul-ivaz.
(d) Hiba-i-muddat.
Q.6. . in Muta the number of wives is limited to.
(a) three,
(b) four,
(c) five,
(d) no limit.
Q.7. Dower is also knownas.
(a) Lien,
(b) Mehr,
(c) Zihar.
(d) Lian.
Q.8. Dower is a for marriage,
(a) Contract,
(b) Promise,
(c) Ceremony,
(d) Consideration.
Q.9. In Muslim Law, kharch-i-paandan is.
(a) betelbox expenses,
(b) consideration of marriage,
(c) fees of Kazi.
(d) personal allowance or pocket money to wife.
Q.10. Talaq can be given at any time withoutgiving any reasonby.
(a) wife,
(b) husband,
(c) both,
(d) any of them.
Q.11. In Sunni Law, a Talaq pronounced under compulsion or in jest is.
(a) Valid,
(b) Void,
(c) Voidable,
(d) Sin.
Q.12. In Shia Law, a Talaq must bepronounced
(a) in writing,
(b) orally in the presence of wife only,
(c) orally in the presence of two.male witnesses,
(d) in writingand in the presence of Kazi.
Q.13. In Talaq Ahsan, the Arabic word ‘Ahsan’ means..
(a) obligation,
(b) understanding.
(c) consent,
(d) best
Q.14. Talaq Ahsan is a pronouncement of Talaq.
(a) single,
(b) twice,
(c) thrice,
(d) bad.
Q.15. Talaq-e-Tafweez is also known as
(a) khula.
(b) mubarat
(c) delegated divorce.
(d) zihar.
Q.18. Write short note on :- Khula ,Mubrat ,lla,Zihar ,Lian
Ans Khula a: short note(oornre: d(1e2mSp)tion) literally means ‘to lay down’. In law it means laying down (surrendering by a husband of his right and authorityover his wife. A divorce by Khula is a divorce with the consent and at the instance of the wife,in which she gives (or agrees to give) a consideration tothe husband for her release from the marriagetie. It signifies an agreement enteredinto for thepurpose of dissolving matrimonial connection in lieu of compensation paid by the wife to her hus band. out of her own property.Khula in fact is thus a right to divorcepurchased.by the wife from her husband. A khula divorceis effected by an offer from the wife to compensate the husband if he releasesher from his marital rights,and acceptance by the husbandof the offer. Once the offer is accepted, it operates as a singleirrevocable divorce and its operation is not postponed until execu tion of Khulanama.
Mubrat: | Mubarat is also a dissolution o.f marriage by mutual consent..In Khula, the aversion (hatred) is on the side of the wife, and shedesires separation, in mubarat, the aversion is mutual, and both the sidesdesire separation. Jn Mubarat the wife is bound to observe iddat and the husband is bound to maintain her and his children by her during her iddat.It may be either Talaq,Khula or mubarat,it is the husband who can effect the divorce. Husband's consent is essential in all.
Ila : | (Vow of continence) Wherea husband (who is sane and adult)swears by God that he will not have sexual intercourse with his wife for a period of 4 months or more (or for an unspecified period) he is said to make Ila. Where a husband havingmade Ila abstainsfrom intercourse with his wife for 4 months the marriageis dissolved with the same legal results,as if there has been anirrevocable divorce pronounced by the husband.
Zihar: | Injurious Assimilation (comparison) : If the husband (who is sane and adult)com pares his wife to his motheror sister (“Youare like my mother”) the wife has a right to refuseherself to him until he has performedpenance. In defaultof his becoming pure by penance, the wife has right to dpply for a judicialdivorce. Penance may be .feeding60 poor personsor fasting himselffor two months etc.
Lian : | (Imprecation) : Where a husband chargeshis wife of adultery and the charge is false,the wife is entitled to sue for and obtain a judicial divorce.
Q.19. Write a short note on Muslim Women’s right to seek Divorce.What are the statutory groundsavailable to a muslim woman to seek divorce from her husband ?
Ans. In Muslim Law, Judicial Divorce is also known as Fiskh or Faskh. A muslim marriage may be dissolved by the Courtsin India underthe provisions of Section 2 of the Dissolution of Muslim Mar riage Act 1939, the grounds are :
(1) Absence of husband : If the whereabout of her husbandare not knownfor .a period of 4 years, the wife can file a suit for divorce but if the husband appearswithin a period of six months afterthe passing of such decree and satisfiesthe court that he is prepared to perform his conjugal duties,the court must set aside the said order.
(2) Failure to maintain :If the husband has neglected or hasfailed to provideher maintenance for a period of 2 years. The. husband cannot defend the suit only on the ground that he was unable to maintain her due to his poverty,failing health, unemployment, imprisonment or any other grounds,such as personal properties of his wife, unless her conduct has been such as to disentitle her to maintenance under Muslim Law.
(3) Imprisonment of the husband : If the husband has been sentenced to imprisonment for a period of 7 years or more. But no decree can be passed on this groundunless the sentencehas become final.
(4)Failure to performmarital duties : If the husband has failed to perform (withoutreasonable cause) his marital duties for a period of 3 years.
(5) Impotency of husband: If the husband was impotent at the time of the marriage and continues to beso.
(6) Insanity of husband: If the husband has been insanefor a period of 2 years or is sufferingfrom leprosy or virulent venereal disease.
(7)Repudiation of marriage by wife : If she (having been given in marriage by her father or other guardian before attainingthe age of 15 years) repudiates the marriage before attaining the age of 18 years,provided the marriage is not consummated..
(8)Cruelty of husband : That is to say the husband
(1) habitually assaultsor makes her life miserableby cruelty of conduct (thoughnot amounting to physical ill-treatment) or
(ii) associates with bad woman and leads an infamous life or
(iii) attempts to force her to lead an immoral life or
(iv) disposes her property or prevents her from exercising her legal rights over it. He can dispose it of for her benefitand with her consent
(v) obstructs her in the observance of her religion,or
(vi) if he has more wives than one, does not treat her equitably in accordance with the law in Koran.
(9)Grounds of dissolution recognised by Mohammadan Law : On any other ground which is recognised as valid for the dissolution of marriages under Muslim law (This clausecovers the divorceby Ila, Zihar, Khula, Mubarat and Tawfeez).
Q.20. What are legal effects of divorce? State rights and obligations of parties on divorce.
Ans. Legal effects of divorce - (1) Right to contractanother marriage : If the marriage was not consummated, the wife isnot bound to observe Iddat and she may marryagain immediately. If the marriageis consumated, then the wife is bound to observeiddat of divorce,which is threemenstrual periods. If she is not subjectto menstruation, the corresponding periodis three lunar months. If the wife is pregnantat the date of divorce, the period of iddatis until delivery, or three months whichever is longer.
(2) Maintenance: During the period of iddat, the husbandis bound to maintain wife.If the divorce is not communicated, the wife is entitled to maintenance even after the expiryof that period,until she is informed of the divorce.
(3) Dower: (i) If the marriage was consummated, the wife is entitled to the whole of theunpaid dower, whetherprompt or deferred,(ii) If the marriage is not consummated, she is entitledto half of the specifieddower. Prompt dower becomes payableimmediately and deferreddower also becomes due.
(4) Mutual rights of inheritance : When the divorce becomes irrevocable, mutual rights of inheritance between husbandand wife cease to exist.There is one exception to this, viz., in case of a divorce given during death-illness (Marz-ul-Maut), in whichcase, the wife’sright to inheritcontin ues, till the period of iddat is over.
(5) Remarriage with divorcedwife: After iddat, the parties can remarry each other, except when divorce is given by a triple pronouncement of talak. In that case, before they can remarry,the wife must be married to another peron in the interval and divorced by him.
Rights and obligations of parties on divorce (1) Until the divorce becomes irrevocable- (a) the husband can revoke it; and (b) either party is entitled to inherit from the other.
Immediately the divorcebecomes irrevocable - the wife may marry another.husband, (a) immediately, if the marriagewas not consummated, (b) after the completion of iddat, if the marriage was consummated.
(2) If the husband had four wives including the divorced wife at the date of the divorce, he can marry another wife, immediately, if his marriagewith the divorcedwife was not consummated, of after the completion of iddat of the divorced wife, if the marriage was consummated.
(3) The wife is entitledto maintenance duringthe iddat or until she is informedof the divorce.
(4)Sexual intercourse with the divorcedwife is unlawful, and the issues of such an inter courseare illegitimate; their paternity cannot be acknowledged.
(5) Mutual rights of inheritance cease after the expiry of the iddat.Until the expiryof the iddat, the wife's right to inherit continues only if (i) the divorce was pronounced during the husband’s death-illness, and (ii) she was not repudiated at her own request.
(6)The wife becomes entitledto the immediate payment-(i) of the whole of the unpaid dower, if the marriage was consummated; (ii) of half of the specified dower [or threearticles of dress where it is not specified], if the marriage was notconsummated.
(7)The divorced couple may remarryeither during the iddat or afterits completion; provided that a re-marriage with a thrice repudiated wife is irregular, (not valid), unless, (i) the divorcedwife married anotherman after the divorce; and (ii) the latter had died or divorced her after the actual consummation of marriage. (See the' 1982 film'Nikah’ starringSalma Agha, Raj Babbar and Deepak Parashar, Produced and directed by B. R. Chopra.)
Q.21. What is acknowledgement of paternity ? Acknowledgement of legitimacy ?
Ans. Acknowledgement of legitimacy means accepting a childas one’s own legitimate. Thus where there is no direct proof of legitimacy, indirect proof (by way of acknowledgement) of legitimacy by father in favour of a son may suffice. This acknowledgement is not of sonship only but of legitimate sonship,that means the mother of the child should have been his lawful wife at the time of concep tion.
Thus under certaincondition, if a Mohammadan acknowledges a child to be his legitimate child, the paternityof child is established to him. But the doctrineapplies only to the cases where the alleged marriageis an uncertainty, It is hot appliedto legitimate a known illegitimate child. When a man (expressly or impliedly) acknowledges another as his lawful child, the paternityof child will be established in the man, but subject to the following conditions :
(1) The acknowledgement must not be only of sonship but of legitimate sonship
(2) The age of the parties must be such that it is possible that they may be father and son. According to Bailli the acknowledger must be at least 12 years, older than the person acknowledged.
(3) The child so acknowledged must not be known to be child of another.
(4) The child(if adult) must confirm, or consent in the acknowledgement
(5) The man and the mother of the childmust and could have been lawfully joined in marriageat the time when the child was be-gotten. It is essential to show that a lawfulmarriage is possiblebetween the acknowledger and the child’smother and the child is not thefruit of an adulterous intercourse. Similarly if it is definitely proved that no marriage took place betweenthe parties, the child will be illegitimate, and this doctrineof the legitimacy cannot apply.
(6) The acknowledger must be competent to make a contract, that is, he should be an adult and sane.
(7) The acknowledgement must be with definite intentionof conferring the status of legitimacy. Merecasual acknowledgement (not intended to confer the status of legitimacy) will not be legal acknowledgement
(8) The acknowledgement must be definiteand the child must be acknowledged to be the child of his body. If a man says that he has broughtup a boy, it is not an acknowledgement of sonship, rather the reverseof it. (Abdul Rahim Vs. Abdul Hafeez,29 Nag. 313). (9) An acknowledgement once made cannot be revoked.
Q.22. Define Guardian & State various kinds of Guardianship.
Ans. The term ‘guardian’ is defined in the Guardians and Wards Act as “a person havingthe care of the person of a minor, or his property, or of both his person and his property”.
Who is a minor ? | A minor is one who has not attained the age of majority. Pubertyand majority are (in the Mohammedan Law) one and the same.Puberty is presumedto have been at tained on the completion of the fifteenthyear. But now, the Muslimsare governed by the IndianMajority Act, 1875, except in matters relatingto marriage, divorceand dower. The existing positionregarding the age of majority in such cases is given as below:
15 years is the age of majorityfor the purposes of marriage, dower and divorce.He or she is freeto do anything in the sphere of marriage, dower and divorce.
18 years is the age of majority in general. As regards other matters of guardianship of person and property, a Muslim will be governedby the Majority Act which prescribes 18 years as the age of majority.Thus in cases,of Wills, Waqfs,etc., Minority will terminate on the completion of 18 years.21 years is the age of majority if the minor is under the court of wards or a guardian of him has been appointed by the court.
Appointment of Guardian - When the court is satisfied that it is for the welfare of a minorthat an order should be made for appointing a guardian of his person or property or both as declaring a person to be such guardianthe court may make an order accordingly. In appointing or declaring the guardian of a minorthe court shall take into consideration the welfare of thechild.
In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposedguardian and his nearness of kin to the minor, the wishes if any, of a deceased parent, and anyexisting or previous relationsof the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the court may consider that preference.
KINDS OF GUARDIANSHIP (1) Guardianship in marriage (Jabr) This is already discussed in the chapter on marriage but we shall repeat what is stated there.
A Muslim childof either sex who has not attained the ageof puberty is incompetent to contract a marriage. A marriage contracted by a minor is a nullity. But a minor(i.e., any one who has not attainedthe age of puberty) can be validitycontracted in marriageby his or her guardians. The order of guardianship for the purpose of marriage is as follows
(1)Father,
(ii) paternal grandfather how high soever,
(iii) brother and other paternal relatives in the same order as for inheritance,
(iv) mother,
(v) other maternalrelations within the prohibited degrees,and failingall these,
(vi) the Government. j
(2) Guardianshipof the person of a minor (hizanat) (a)Mother and her relations : The guardianship of the person,or the right to the custody of a male child, until he.completes his age of seven years and of a femalechild until she attains her puberty, belongs(in the first place) to the mother/The mother’s right to custody continues even after she is divorced.Enamul Haque v. Babi Taimunnissa, (1967) A.P. 344. The mother is entitledto the custody of her female child until she has attained puberty. Failing her, it goes to the following femalerelatives in the following order: Mother’s mother,how high soever,father’s mother, how high soever, full sister, uterinesister; consanguine sister;full sister’s daughter, uterine sister’s daughter; consan guine sister’s daughter; etc.
(b)Father and his relations : In default of the above mentioned female relations, the right to custody devotes upon
(i) the father,
(ii) father’s father
(iii) full brother,
(iv) consanguine brother,
(v) full brother’s son,
(vi) consanguine brother’s son,
(vii) full brother of the father,
(viii) consanguine brother of the father,
(ix) son of the father’s full brother,
(x) son of father’sconsanguine brother. ’ . the father is entitled to the custody of his
(a) son .over seven years of age, and
(b) an unmarried girl who has attained puberty.
(c) Husband : The husband is entitled to the custodyof the wife who has attained puberty.If she has not atttained puberty, her mother is entitled to her custody.
DISQUALIFICATIONS (a) General disqualifications : A minor is incompetent to act as a guardian of any minor other than his own wife or child. If either parent is a non-Muslim, the other is entitled to the custody of thechild, whatever his age and in the Shia Law no person is entitled to the custody of Shia child who is not a Muslim.
(b)Disqualifications affecting females : The mother or any other.female entitled to the custody of the minor loses that right in the following cases :. (1) If she is immoral, i.e. -
(i) has committed adultery,
(ii) has become a prostitute,.
(iii) committed some criminal offence by gross and open immorality,
(iv) is a professional singer or mourner.
(2) If she marries a person not related.to the child within the prohibited degrees, e.g., a stranger. But the right reviveson the dissolution of the marriage by death or divorce..The reason behind this is that if she marries a stranger, the child may not be treated kindly.
(3) If she goes and resides at such a distance from her father’s place or residence during the subsistence of the marriage that he cannot frequently visit her and the child.
(4)If she neglects or is incapable of taking propercare of the child. (c) Disqualifications affecting males : It is a general principle of Mohammedan Law that no male is entitled to the custody of a female minor who is not related to him within the prohibited degrees.
(d)Disqualifications affecting parents : In Muslim Law like that of the English arid the Roman Law the distinction has been recognised between the guardianship of person and property of a minor.The Muslim Law goes furtherand distinguishes betweenthe two kinds of guardianship of the personof a minor, viz., (1) for custodyand education, (2) for contracting marriage. In respectof the former, it is not liberalto the weaker sex, as it gives the custodyof the infant children (boys up to seven and girls up the age of puberty)to the mother as againstthe father. The father is the naturalguardian of a minor, and the courthas no power under the Guardians and Wards Act to appointa guardian of the person of a minor whose father is living and is not in the opinion of the court unfit to be guardian of the minor.
The following are the groundswhere a court will interferewith the father’sguardianship of his children :
(1) If he is unfit in character and conduct.
(2) If he is unfit as regards educational circum stances.
(3) If he waives his right.
(4) If he enters into an agreementto the contrary.
(5) If he is out of the jurisdiction of the court or intends to go abroad.
Mother not disqualified by divorce : The mother does not lose her right to the custodyof the children by divorce by the father of the children.
(e)Disqualifications affecting the husband : Under the Muslim Law, the husbandis not entitled to the custody of his minor wife unless she attains puberty or such age as to form the consummation of marriage.
(3)Guardianship of minor’sproperty : The guardians of the property of a minor under Muslim law may be classified into
(1) Legal guardians
(2) Certified guardians, that is, guardians appointed by the Court, and
(3) De facto guardians.
(a)Legal guardian : The legal guardians of the propertyof a Muslim minor are,
(1) The father,
(2) the executor (was)appointed by the father,
(3) the father’sfather, and
(4) the executorappointed by the father’s father.
Alienation by Legal guardian:
(1) A legal guardianmay alienate the movable propertyof the minor only in case of urgent necessity.
(2) He may alienate the minor’s immovable property :
(i) Where double its value is obtained;or
(ii) where the minor has no other property, and its sale is absolutely necessary for hi’s maintenance; or
(iii) where the debts of the deceased owner cannot otherwisebe liquidate, or
(iv) where there are legacies to be paid and there are not other meansof paying them; or
(v) where the produce of the propertyis not sufficient to defray the expensesof' keeping it; or
(vi) where the property is in danger of being destroyed.
(b)Guardian appointed by Court (Certified Guardian) : The Court may, appoint a guardian of the person or property of Muslim minor, if it is for the minor’s welfare that such a guardian should be appointed.
Points for Courf s consideration - ' In making such appointment, the Courts shallbe guided by what appears, (in the circumstances) to be for the welfare of the minor. For this purpose, the Court. shall have regard to the age, sex and religion of the minor, (character and capacity of the proposed guardian,his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the purposed guardian with the minor or his property. If the minor is old enough to form ah intelligent preference, the Court may consider that preference.
De facto guardian - A person is said to be a de facto guardian when he is neither (a) de jure guardian, i.e., guardian under the personal law of the minor, nor (b) a guardianappointed by the Court; and yet he voluntarily places himself in charge of the minor’sperson and property.Thus, under Muhammadan law, all relations(except the fatherand the paternal grandfather,) and any strangercan be de facto guardian. (08A)
His powers : He may alienate the moveable property of the minor in case of necessity, but he cannot alienate his immoveable property. An alienation of a minor’s immoveable property, without the authority of the Court, by a de facto guardian, is absolutely void. It cannot, therefore, be ratified by the minor on attaining majority, nor can a personal decree be passed against him for a refund of consideration.
4.MULTIPLE CHOICEQUESTIONS
Q.1. Khula means.
(a) redemption,
(b) to lay down,
(c) surrendering by a husbandof his right,
(d) all orany of the above.
Q.2. A divorce by Khula is a divorce.
(a) with the consent of wife only,
(b) without the consentof wife,
(c) without the consent of husband,
(d) with the consent of both.
Q.3. Khula in fact is a right to divorcepurchased by.
(a) husband,
(b) wife,
(c) anybody,
(d) none.
Q.4. Mubrat is a dissolution of marriage by.
(a) the consent of wife only,
(b) the consent of husband only,
(c) mutual consent,
(d) compulsion of court.
Q.5. Ila is aof continence,
(a) casual desire,
(b) vow.
(c) attempt,
(d) duty.
Q.6. Zihar means.
(a) injurious assimilation,
(b) injurious comparison,
(c) sinful comparison,
(d) all.
Q.7. In case of zihar if the husband does not perform,penance, the wife can.
(a) give talaq.
(b) not do anything,
(c) applyfor judicial divorce,
(d) marry ahybody else.
Q.8. In case of divorcebythe husband charges wife of adultery and the charge is false.
(a) Mubarat.
(b) Lian,
(c) Khula.
(d) Ila.
Q.9. Judicial divorceis also known as.
(a) Fiqh.
(b) Fiskh.
(c) Jabar.
(d) Nafqah.
Q.10. Acknowledgement of paternity means accepting a child as one’s own legitimate. It is done by-
(a) father,
(b) mother,
(c) child,
(d) anybody.
Q.11. In Muslim Law 15 years is the age ofmajority for the purpose of.
(a) marriage.
(b) dower,
(c) divorce,
(d) all the above.
Q.12. years is the age of majority for a Muslim in case of guardianship of person or property,
(a) 15 years,
(b) 18 years,
(c) 21 years,
(d) 25 years.
Q.13. Guardianship of the personof a minor is also known as_.
(a) Hifazat.
(b) Hirasat.
(c)Hizanat.
(d) Himakat.
Q.14. If the wife has not attained the age of puberty, who is entitledto her custody? .
(a) her husband,
(b) her father,
(c) her mother,
(d) nobody.
Q.15. In case of propertya guardian appointed by the court is also known as .(a) De facto guardian,
(b) legal guardian,
(c) Certified guardian,
(d) all the above.
Q.23. Write a note on Maintenance of relatives and maintenance of wife/ by the husband.
Ans. (1) Infant children and unmarried daughters : The fatheris bound to maintain his sons until they attain the age of pubertyand his daughters until they are married.If the father is poor, and infirm or weak, the liability to maintain the children falls upon the mother. If the mother is not in easy circumstances, it falls upon the father’s father, if he is in easy circumstances.
(2) Adult children : Adult childrenare not entitled to maintenance, unless they are infirm or weak. Illegitimate children have no right to maintenance under the Muhammadan law.
(3)Parents : Children in easy circumstances are bound to maintain their poor parents. (4)Grand-parents: If the grandparents are poor, they are to be maintained by their grandchildren.
’ \ (5) Wife: The husband is bound to maintainhis wife, unless she is too youngfor sexual intercourse, or unless she refuses herselfto him without just causeor is disobedient. Even after divorce the wife is entitled to maintenance during Iddat.A wife has an absolute right to maintenance. Her right remains unprejudiced even if she has property or income of her own. The husband is bound to maintain, if she fulfills the following conditions -
(1) She has attained puberty, i.e. an age at which she can render to the husband his conjugal rights
(2) She places (and offers to place)herself in his power so as to allow free access to herself at all lawful times and obeys all his lawful commands.
Order for maintenance : If the husband neglects or refuses to maintain his wife (without any lawful cause) the wife may sue him for maintenance, she is not entitled to a decree for past mainte nance (unless the claim is based on specific agreement. She may also take shelter of section 125, Cr. P.C. in which the Court may allow a monthly'allowance for her maintenance not exceeding Rs. 500/-.
Maintenance during Iddat :
(1) if the husband had divorced her after the Consummation of marriage she is entitled to maintenance during the period of iddat.
(2) if she is divorced without the consummation of marriage she is entitledto maintenance until she is informed of the divorce.
(3) A widow is not entitled to maintenance during the period of iddat consequent upon her husband’s death. If the husband is minor (incapable to consummate) and the wife is adult,she is entitled tomaintenance. If the minor husband has no source of income,the father of. the minor is liable for maintenance, and he has a right to recovery from his son.
Maintenance under agreement : A wife is entitled to recover maintenance from her husband on the base of an agreementmade between the parties or their guardiansprovided that such an agreement is not opposed to any law or to public policy or the policy of Mohammedan law.
Q.24. Whatis a Gift ? Who is competent to give ? What are essential ingredients of complete gift ?
hiba (or gift) is a transfer of property made immediately, and without any exchange, by one person to anotherand accepted by or on behalf of the latter. It is thus the confer ring (giving) of property without consideration. Who can make a gift : Every Muslimwho is of sound mind and is not a minor may dispose of his propertyby gift. A Muslim(whether a male or female) may dispose of the whole of his property and his power of disposition by gift is not restricted. Its Incidents : It is a transfer of definite property,made immediately and without any exchange. It is essentialto its validity that the thing giftedshould be in existence at the date of gift,the donee shouldbe in existence, and shouldaccept the declaration of the gift by the donor, and the donorshould divest himselfcompletely of all ownership and dominion over the subjectof the gift and deliver possession of the property. Conditions (essentials) of valid gift (11S 11W) (1) Donor must be competent : The donor must be a major'and of soundmind. (2) Declaration of gift : ’ There should be the manifestation of wish to give on the part of the owner. This manifestation or disclosing wish to make a gift may be either express or implied. But the intention must be bonafide. (3) Acceptance by donee : There shouldbe an acceptance of the gift, (expressor implied) by or on behalf of the donee. The acceptance may begiven at any time after the declaration of gift. (4) Delivery of possession : The donorshould deliver possession of the propertyto the donee. Such deliverymay be actual or constructive. Delivery of possession is most important and no gifts are valid and completewithout transfer of the possession. The real test of deliveryof posses sion is who (whether the donor or the donee)enjoys the benefitof the property ? If the donor enjoys the benefit, the possession is not transferred. Delivery of possession is not necessary (because delivery will bepresumed) if the gift is given by father to minor childor by husband to wife. (A) Writing is not necessary for the validityof gift. An oral gift is as valid as a written one. (B) Registration not necessary : A deed of the gift (under Mohammedan Law) does not require registration, even though the subject matter be immovable property. (C) Effect of the Transfer of Property Act : As Mohammedan Law is not affected by the Transferof Property Act, a Mohammedan may make a valid gift without a registered instrument provided he gives delivery of possession. In other wordsin T.P.Act registration is essential (not delivery) while under Mohammedan Law delivery (not registration) is essential. v Illustration: A executes a deed of gift of his house in favour of B. The deed is duly registered but possession is not delivered to B. The gift is incomplete and therefore void. I Revocationof gift -1 Before deliveryof possession - The law is very clear on this point.Before the deliveryof possession, the gift is not complete,hence the donor has unrestricted right to revoke it. After delivery of possession. Even after the delivery of possession the donor has a right to revokethe gift only with the difference that in this case he will have to obtain a formal decree of the court. The courtwill grant a decree except in the following cases.Thus the following gifts are absolutely irrevo cable : (i) When the donor is dead,(ii) When the donee is dead, (iii)When donee is related to the donor in prohibited degrees of consanguinity, e.g., brother and sister, etc. (iv) when the donor and the donee stand in marital relationship, i.e. as husband and wife, (v) When the subject matter has been transferred by the donee, by sale, gift or otherwise, (vi) When the subject-matter has been lost, destroyedor so changed as to lose its identity, (vii) When the subject-matter has increased in value and the increment is inseparable, (viii) When the gift is Sadaqah. (ix) When anythinghas been accepted in return.. In case of gift by father to child, the donor has the right to revoke the gift but revocation must be express. Revocation cannotbe made by implication of subsequent dealing of property by donor.
22
VARIOUS KINDS OF GIFTS
(2) Hiba-bil-iwaz (Gift for consideration) : ‘Hiba’ is a transferof property withoutconsid eration. But Hiba-bil-iwaz is different from this. A hiba-bil-iwaz literally means a gift for a consider ation. It is of two kinds - True hiba-bil-iwaz of older juristsconsisted of two independent unstipulated acts, namely hiba or gift and iwaz or return gift (not stipulated at the time of gift).Thus, if A makes (withouthaving stipulated for a return)a gift of his book to B, and B in consideration of the book (without having promised it) subsequently makes gift of a pen to A, saying that it is the iwaz (or return) for the gift of the book,and delivers the pen to A, the transaction is a true hiba-bil-iwaz and neither A nor B can revoke it.
But in the hiba-bil-iwaz in India, there is only one act, the iwaz or exchange being involved in the contract of the gift as its direct consideration. Thus, if A says to B “I have given this book to you in consideration of your payingme a rupee, it is a hiba-bil-iwaz in India. Thus it is in realitya sale or exchange while the true hiba-biiiwaz is not a sale or exchange.
(3) Mushaa (10S, 10W, 11$, 12S) : An undividedshare in property(whether moveable or immovable) is called mushaa.A valid gift may be made of a mushaain property which, is not capable of division, but a gift of a part of a thing which is capable of division is not valid (i.e. it is irregular)till the said part is divided off and separatedfrom the propertyof the donor. Thus A who owns a flat makes a gift to B of the flat and of the right to use the staircaseused by him jointly with the ownerof an adjoining flat. Is the gift of the right to use the staircase valid? Ans - Yes, the gift of the right to use the staircase, (though it is a gift of mushaa)is valid becausea staircase is not capableof division - Kasim Hussain.Vs. Sharif-un-Nissa. (1883).
(4) Areeat : “The grant of a license, (resumable at the grantor’s option)to take and
enjoy the usufructof a thing is called Areeat.” (Mulla).It is to transfer the right to enjoy the use or profits .withoutany return. According to D Mukhtar,'to make a person the owner of the substance of a thing without consideration is a Hiba, while to make him the owner of the profits onlywithout consideration is anareeat.
Essentials of Areeat :
(1) It can be revoked.
(2) Ownershipof propertyis not transferred.
(3) It must be for a definite period.
(4) It does not devolve upon the heir of the donee onhis death.
Sadaqah and Hiba compared.
(1) Like Hiba, Sadaqah is not validunless the deliveryof posses sion is made.
(2) Like Hiba, it is not valid if it Consists of an undivided share in propertycapable of division.
(3) There is a desire to get religious merit in Sadaqah;no such motive in a gift exceptaffection.
(4) Sadaqah is not revocable if one completedby delivery; gift is revocablein certain cases.
(5) Expressacceptance is not necessary which is necessary in a gift.
(6) UnlikeHiba it is valid even though made to two or more persons jointly, provided the donees are poor persons.
(5) Contingent gifts : If a gift is made contingent upon the happening or not happening of a futureuncertain event, it iscalled contingeut gift. Such a gift is void in.Muhammadan law.
(6) Sadaquah : Where the object of the donor is to acquire merit in the eyes ofthe
God and a reward in the next world, the gift is called Sadaquah.I t is a gift with a religious motive. Like hiba, it is not valid unless accompanied by delivery of possession. Unlike hiba, it cannot be revoked, the reason being that the object of such a gift is acquisition of religious merit, and that has alreadybeen acquired.
Sadaquah distinguished from hiba : Sadaquah is a transfer of property or rights in all respects like a hiba except that-
(1) In the case of hiba, the object is to manifest affection towards the donee, or win his regard or esteem. In the case of sadaquah, the object is to acquiremerit in the sight of the Lord and a recom pense in the next world.
(2) Unlike hiba, a sadaquah, once completed by delivery of possession cannot be revokedwhether made to a rich or poor man.
(3) Unlike hiba, sadaquah need not be expressly accepted.
Like hiba, it is not valid unlessaccompanied by deliveryof possession; nor it is valid if it consistsof an undivided share (mushaa) in property capable of division. It is not invalid if made to two or more persons all of whom are poor.
(7) Hiba-ba-shart-ul-iwaz : Where a gift is made with a stipulation (shart) for a return, it
is called hiba-ba-shart-ul-iwaz. As in the case of hiba, in the case of hiba-ba-shart-ul-iwaz also, delivery of possession is necessary and the gift is revocable, until the iwaz is paid. Onpayment of iwaz (consideration) by the donee, the gift becomes irrevocable. The transaction, when completed by paymentof iwaz, partakes of the character of a sale.
Q.25. What is Marz-ul-Maut ?
What is Marz-ul-Maut ?
Ans. A Marz-ul-maut is one which, (it is highly probable) will end fatally.It is an illness which includes apprehension of death (in the near future) in the person concerned and which actually resultsin his- death. Where the malady is of long continuance and there is no apprehension of immediate death the malady is not a marz-ul-maut. To constitute a marz-ul-maut, there must be (1) Proximate danger of death, so that there is possibility of apprehension of death. (2) Some degree of subjective (inner) apprehension (fear) of death in the mind of the sick person and (3) Some external(visible) act, indicating inability to attend to ordinary avocations.
Death Bed Gift : | The donor’s power to dispose of his property by a gift during marz- ul-maut is limited. A death bed gift (a) when made to a non-heir, can not take effect beyon done third (1/3) of his estate (after payment of funeral expenses and debts) unless his heirs give their consent to the excess taking effect.If they do not consent, the gift takes effect only in respect of a third of the donor’s estate (b) when made to an heir,it is completely invalid unlessthe other heirs consent thereto.
Death-bed-acknowledgement of debt : | Ifthe liability to pay a debt is acknowledged duringillness, it is called a death bed acknowledgement of debt. Such an acknowledgement (1) in favour of an heir is not bindingupon the estate (2) In favour of non-heir is conclusive againstthe heirs and legatees. Howeverthe person whose debt is acknowledged during death illnesswill be paid after the person whose debt has been acknowledged when the deceased was in good health or the person whose debt is proved by other evidence. The death-bed- acknowledges will have an inferior claim than the other two.
Q.26. What is meant by the right of preemption. Who are entitledto demand pre-emption and what conditions need to be fulfilled for exercising the right ?
What is meant by the right of preemption. Who are entitledto demand pre-emption and what conditions need to be fulfilled for exercising the right ?
Ans. Definition : Theright of pre-emption (shuffa) is a right to acquire by compulsory purchase, (in certain cases) immovable propertyin preference to all otherpersons. It is the rightof a third person, (calledthe preempter) to step in, when a contract is made for the sale of immovable property, and claim to take the place of the buyer, i.e. to take the property at the same price and on the same conditions as the buyer and seller have agreed upon.
Shuffa : Literally means adding. In Law pre-emption is defined by Justice Mehmood in “Govind Dayal V. Enayatullah" as pre-emption is a right which the owner of a certain immovable property possesses as such, for the quiet enjoyment of that propertyto obtain in substitution for the buyer,proprietary possession of certain other immovable propertynot his own on the same terms on whichsuch latter immovable property is sold to another person.
Example : Daudand Ibrahim are two sons of Ahmadand as such are jointowners of the landed property.If Daud sells his propertyto Rahim, then Ibrahim can claim pre-emption that he must be put into the position of Rahim and must get that property on the same price and terms and conditions on which the sale was agreed upon with Rahim. Daud also has the same right of pre emptionif Ibrahim sells his property to Rahim.
Is.it a right of re-purchase ? Answering this question MehamoodJ. observed that it is not a right of repurchase but a right of substitution. It is in effect as if in the sale deed the purchaser’s name were rubbed out and the pre-emptor’s name inserted in its place.When does right of pre-emption arise ? The right of pre-emption arises only out of a valid, completeand bonafide sale, and not in case of any other transfer(like Gift, waqf, lease etc.) The right can only be exercised in regard to immov able property. Hence it would not apply to a sale of crops or trees intended to be removed.
The right of pre-emption is not a personal right, but it runs with the land and can be enforced by or againstthe owner of the land for the time being.Hence in the abovesaid examplethe right of pre emptionis connected with the propertyof which Ibrahimis owner at present. SupposeIbrahim dies and his son B becomesowner of his property, then A can exercise the right of pre-emption if B sellshis property to anybody. In the same way B can exercisethe right of pre-emption if A sells his propertyto anybody.
Generally the law of pre-emption applies when all the three parties are Muslim. But if the seller and pre-empter are Muslim and the buyer is a non-muslim, the law of pre-emption will apply accordingto Allahabad High'Court, but according to Bombay and Calcutta High Courts all the three parties mustbe Muslim. The law of pre-emption is applied to Hindus also -
(i) by legislation as in Punjaband Oudh, where there are general territorial enactments or
(ii) by custom asin Bihar and certain part ofGujarat, or
(iii) when there is a contract betweenthe parties that the law of Pre-emption should apply to them.
Who can claim it :According to the Mohammadan Law, the rightof pre-emption
can be claimed in order of preference by (1) A shafi-i-sharik, i.e. co-sharer or partner in the propertysold (2) A shafi-i-khalit, i.e. a partner in the amenities and appendaces of the property(such as the right to water and to roads or a commonaccess). (3) A shafi-i-jar (an owner of neighbouring immovableproperty).
Constitutional validity of pre-emption It has been held by the High Courts of Rajasthan, MadhyaBharat and Hyderabad that pre-emption on the groundof vicinage is void after26th January, 1950, as it imposes unreasonable restrictions on the fundamental right guaranteed under Article 19(1 )(f) of the Constitution. However, pre-emption as between co-sharers and owners of dominant and servientheritages is saved by Article 19(5) of the Constituion.
The Bombay, Allahabadand Patna High Courts have however, taken a different view and upheldthe constituional validityof pre-emption by all the three classesof persons mentioned above. How ever, the Supreme Court has now approved the view of the other High Courts (mentioned in the above paragraph).
Q.27. What is a Wakf ? What are the essentials of a validWakf ? How Wakfsare created ?
Ans. Definition : Wakf literally means dedication (or detention). Legallyit means dedication in perpetuity of some specificproperty for a pious purpose(or a succession of piouspurposes). Perpetuity is the essenceof wakf. The ownership of the Wakif is extinguished, and the wakf is irrevocable. According to Section 2 (1) of the Mussalman wakf validating Act 1913, “Wakf means the permanent dedication (by a person professing the Mussalman faith) of any property for any purpose recognised by the Mussalman law as religious, pious or charitable.
How created: A Wakf may be testamentary (by will) or intervivos (duringlife time). Testamentary wakf (whichmay be made either verballyor in writing) comes into effect afterdeath of the Wakif.
Objects : However, on the basis of the decidedcases and the text of eminent Moham medan Jurists,certain objects which had been declared to be valid objects of Waqf are (a) Mosques and provisions for Imams to conduct worship,
(b) Celebrating the birth of Ali Murtaza. (c) Repairs of Imambaras. (d) Maintenance of Khankahs. (e) Burning lamps in mosques,(f) Reading the Koran in public places and also at privatehouses, (g) Maintenance to poor relations and dependants, (h) Payment of money to Fakirs, (i) Grant to an Idgah.(j) To colleges and provisions of professors to teach in colleges, (i) Bridges and Caravan Sarais.(I) Distribution of alms to poor persons,and assis tance to the poor to enable them to perform pilgrimage to Mecca, (m) Keeping Tazias in the month of Moharram,and provisions for camels and Duldul for religious processions during Moharram. (n) Celebrating the death anniversary of the settlor and of the members of thefamily, (o) Performance ofceremonies known as Kadam Sharif,(p) The construction of a Cobat or free boardinghouse for pilgrimsat Mecca, (q) Performing the annual Fateha of the members of his family, (r) ADurgah or Shrineof a Pir which has long been held in veneration by the public.
The essential conditions of a valid Wakf
(1)Perpetuity : The dedication must be permanent. For the perpetuity of a Waqf, the following conditions must be fulfilled-
(A) The object of Wakf shouldbe permanent. The object shouldnot be liable to extinction.
(B) The periodforwhich the Wakf is createdshould not be limited. Thus a Wakf for 20 years is invalid.
(C) The subjectmatter (property) of the Wakf should also be reasonably of permanent character.
(2)Extinction of ownership: The Wakif’sownership in the property must be extinguished. The Wakf is not valid if the Wakif retainsany portion of the propertyfor himself. Two things are necessary for the extinction of ownership namely(A) Declaration of dedication shouldbe made. It may be either oral or written(B) Only intentionof dedication is not enough.It must be backed by delivery of property to the Mutwalli. If he himself is Mutwalli the delivery is not necessary.
(3)Subject of Waqf: The subject (or property)dedicated by way of Waqf must belongto the Waqif at the time of dedication. The test of ownership is whether that person has a power of disposition over the property.
(4) Object of Waqf: The object of Waqf must be religious pious or charitable in the eyes of Mohammedan Law. A Waqf maybecreated in favourof settler’s family.
(5) Certainty of object : The objectof Waqf must be indicated with reasonable certainty. It is not necessary that theobject should be named. Ambiguity of object makes the Waqf void.
(6)Immediate (without contingency) : The Waqf should take effect immediately. It should not depend upon the happeningof any contingency. Its creationshould not be postponed to a future date.,
(7) Waqif to be sane, adult and Mussalman :
Shia-law:There are four essentials (I) It must be perpetual(ii) absolute and unconditional
(i) possession must be given, and (iv) the waqif must not eat of the Waqf i.e. the Waqif should not retain .any interest even in the usufruct (i.e. temporary use) of land: He cannot provide for the pay ment of personal debt.
5. MULTIPLE CHOICE QUESTIONS
Q.1. The husband is bound to maintainhis wife unless.
(a) she is having her own income,
(b) her father is rich and can maintain her.
(c) she is not having sufficient income to maintain her.
(d)she is too young for sexual intercourse.
Q.2. If the husband is minor (incapable to consummate) and the wife is adultand the husbandis having no incomethen who is liable to maintain her? .
(a) wife herself,
(b) father of the wife,
(c) father of thehusband,
(d) Government.
Q.3.In Muslim Law, a gift is known as.
(a) Hiba.
(b) Hiba-bil-iwaz.
(c) Musha.
(d) Sadaquah.
Q.4. What is the qualification for a donor?.
(a) rich,
(b) generous,
(c) major and sound mind,
(d) none.
Q.5. In Muslim Law ' is most important and no gift is valid and completewithout it.
(a) writing,
(b) registration,
(c) love and affection,
(d) delivery of possession.
Q.6. Hiba-bil-iwaz literallymeans a gift ..
(a) with love and affection,
(b) without consideration,
(c) without declaration,
(d) for a consideration.
Q.7. A valid gift made of a propertywhich is not capable of division is called.
(a) Sadaquah.
(a)Mushaa.
(c) Areeat.
(d) Hiba.
Q.8. According to Mulla “the grant of a license” (resumable at the grantor's option) to take and enjoythe usufruct of a thingis called.
(a) Areeat.
(b) Musha.
(c) Hiba.
(d) Sadaquah.
Q.9. Contingent gift is made contingent upon the happening or not happeningof a .
(a) future certain event,
(b) future uncertain event,
(c) past event,
(d) any event.
Q.10. Sadaquah is a gift made with the object of .
(a) acquiringmerit in the eyes of God.
(b) a reward in the next world,
(c) a religious motive,
(d) all the above.
6. MULTIPLE CHOICE QUESTIONS
Q.1. A Marz-ul-maut is one which, it is highly probable, .
(a) will end with recovery,
(b) no apprehension of death in near future,
(c) the malady is of a long continuance,
(d) will end fatallyin near future. '
Q.2. The donor’s power to dispose of his propertyby a gift during Marz-ul-maut is. (a) unlimited,
(b) limited to one third of his estate when made to an heir,
(c) limited to one third of his estate when made to a non-heir.
(d) no power at all.
Q.3. In Muslim Law the right of pre-emption is also knownas..
(a) Muta.
(b) Hiba. (a)Mehr,
(d) Shuffa. Q.4. The right of pre-emption is a right to acquire by compulsory purchase (in certaincases) property in preference to all other persons,
(a) immovable,
(b) movable,
(c) any. (b) intellectual. Q.5. Shuffa literally means_.
(a) purchasing,
(b) taxing,
(c) doing,
(d) adding. Q.6. The right of pre-emption ■ .
(a) is a personal right,
(b) can be enforced against close relatives only,
(c) is connected with movable property,
(d) runs with land and can be enforced againstanybody who is the ownerof that land.
Q.7. The right of pre-emption can be claimedby.
(a) shafi-i-sharik.
(b) Shafi-i-khalit. (c)shafi-i-jar.
(d) all the above. Q.8. Wakf literally means.
(a) purchasing,
(b) selling;
(c) dedication or detention.
(d) adding. Q.9. When a wakf is created the ownership of the wakifis.
(a) extinguished. (b) exchanged,
(c) interrupted,
(d) increased. Q.10. In Muslim Law a wakf may be created for any pious purposelike.
(a) Gorakshan. (b) free Vaishnodevi Yatra.
(c) construction of Ram Mandir.
(d) none.
Q.11. Which is the essential of a valid wakf ?.
(a) The object of the wakf shouldbe permanent,
(b) the period for which the wakf is created should not be limited,
(c) the subject matter (property) of the waqf should also be reasonable of a permanent character,
(d) all the above.
Q.12. The waqf should take effect.
(a) immediately,
(b) in future,
(c) upon the happening of a contingency,
(d) on the death of the waqif.
Q.28. Explain the different kinds of Wakfs.
Ans. Kinds of Waqf : Under Mohammedan Law Waqf is classified into two categories as follows :-
(i) A Public Waqf - is one for public,religious or charitable purposes.
(ii)A PrivateWaqf - is one for the settlor’sown family and descendants. It is really a Waqf in favour of unborn descendants and is technically called, ‘Waqf-alal-aulad’. Truly speaking it is a family settlement by way of Waqf.If was considered at one time that "to constitute a valid waqf there must be a dedication of property solely to the worship of God or to religious or to charitable purposes". In other words, a private waqf was in no case valid. But this extremeview is now no longertenable, and a private waqf may now be made subject to certain limitations. These limitations were very strictunder the law as it stood before the Waqf Act of 1913. They have been considerably relaxed by the Waqf Act.
Public and Quasl-Public Waqfs- There are some endowments in which'the affluentand indigent are equally benefitedand they are :
(1) Mosques and prayer grounds.
(2) Imambaras.
(3) Rauzah and Dargahs.
(4) Caravan Sarais:
(5) Khanqahs.
(6) Schools and Colleges.
(7) Hospitals and dispensaries.
(8) Hostels and houses.
(9) Cementeries, etc.
Revocation of Waqf :- If a valid Waqf has once been created it is in the power of nobody to divestGod of His ownership of the property.On the creation of the Waqf the property at once passes toGod and neither it can bereverted latter nor can God be divested of the property and the Waqif or his successors-in-interest restore to it by any subsequent breaches of the terms of the Waqf or abuse by the Mutawalli of his office.(Anjuman Islamiav. LatafatAli, I.L.R. 1950 All 100).
Q29. Waqf-ul-aulador Family Settlement OR “Wakf-alal-awlad”? How it is affected by Mussalman Wakf Vali
Ans.Waqf-ul-aulador Family Settlement :Under the pure Muhammadan law a waqf
exclusively for the benefitof the settlor’s family is valid. Such Wakf is also knownas Wafk-ul-aulad. Butthe law as settledby the decided cases is that Wakf exclusively for the benefit of. the settler’s family, children, kindred or posterity, is invalid but if on the expiry of the family, the residue is to go to the poor i.e. if there is an ultimate gift to charity,such a Wakf is valid. Let us see “Waqf-alal-auilad” in detail with case laws. It was considered at one time that “to constitute a valid waqf there must be a dedication of property solely to the worship of God or to religious or to charitable purposes”. In other words, a private waqfwas in no case valid. But this extreme view is now no longertenable, and a private waqfmay now be made subjectto certain limitations. These limitations were very strictunder the law as it stood before the Waqf Act of 1913. They have been considerably relaxed by the Waqf Act.
Private waqfs or (waqf-alal-aulad) -is a method whereby a Muslim can make provi sions for the maintenance and support of his family and descendants. So it must by its very nature be some kind of transferof property by the person making the waqf. Further the transfer being without consideration can only amount to gift. Therefore ‘waqf-alal-aulad’ which have become valid after Act VI of 1913 must be held to be gifts of property to God Almightyfor certain purposes and are clearly transfers within the meaning of that term in Sec. 2 of the Quodh Estate Act, 1869 (ThakurMohd. Ismail v. Thakur Sabir Ali, A.I.R. 1962 S.C. 1722). In Sec. 2 of the Act, it was provided that even though the share is used for the descendants of the waqif, the waqf will still be religious and chari table.
Law before Waqf Validating Act (1913) - In two earlier cases [(1872) Bom. 7 and Mohd. Hamidullah v. Lotful Haq, (1881) 6 Cal. 744), private waqf, i.e., waqf-alal-aulad, was held to be void. This view was subsequently rejected [Mohd. Ahsanullah v.Amarchand Kundy, (1889)17 I. A 28.] and private waqfs came to be recognized. But such waqfs were held to be valid only when there was a substantial dedication of property to charitable use at some period of time or other.
The Privy Councillaid down that if the primary objectof waqf is to make arrangement for the family and the gift to charity is illusory whetherfrom the small amount or fromits uncertainty and remoteness, the waqf is invalid and benefit of children and descendants from generation to genera tion,and on total extinction of the family,for the benefit of widowsand orphans. It was held that the gift to charity being illusory the waqf was void.
In Abdul Fate Mohammad’s case, [Abdul Fate Mohammad v. Rasamaya, (1894)22 Ca. 619 (and now over ruled).]the income of the waqf property was to be applied in the first instance for the benefitof the settlor’s descendants from generation to generation, and the trust in favour of charitywas not to come into operation until after the extinction of the whole line of the settlor’sdescendants. Their Lordships of the Privy Council held thatthe gift to charity was illusory, and that the sole object of the settlor was to create a family settlement in perpetuity and that the provision for the settlor’sfamily was, therefore, invalid.
Law under the Waqf Validating Act (1913)- The above-noted decision of the Privy Coun cil createddissatisfaction among the Musalmans of India, who made strongrepresentation to the effect that the law as laid down was a departurefrom the Muslim Law. Accordingly, the Waqf Validating Act of 1913 was passed,under which a Mohammedan can create a waqf for the benefit of his descendants, provided that the ultimate gift is reserved for charity.
