MOHAMMEDAN LAW NOTES

UNIT I

Muslim law as personal law Personal law is that branch of civil law which
regulates the personal matters of the individual e.g. Marriage, divorce,
guardianship, inheritance etc they are all called personal matters of individuals, as
they relate to the affairs of an individual & is affected by the family in which the
individual is born. Personal law is also called family law.
Prophet Mohammed (PBUH)
Birth – 571 AD at Mecca
Father – Abdullah
Mother-Amina
Grandfather – Abdul Mutalib
Uncle – Abu Talib
From childhood prophet was serious child, & began to think about what he saw
around him .At the age of 13 he joined his uncle at his business. Being a keen
observer he noticed many customs & practices in Arab society. At 25 yrs he got
married to Kathija for looking after the business, prophet lived with her till she
died from her he had two sons & four daughters. But only his fourth daughter
Fatima survived him. From other wives he had no children. After her death prophet
married another women Ayesha, a daughter of his friend & his disciple Abu Baker.
Prophet began to think seriously about the evils in the society & became anxious to
find a remedy for removing them; he often visited alone a cave in mountain (Hira)
where he thought the concept of God, religion& the reforms in the society. It was
believed in the holy month of Ramadan in 609A.D, when prophet was meditating
in the cave, the voice from the angle (Gabriel)sent to him by God(Allah) whispered
in his ears, “Read in the name of Allah, the creator of all things, who made man
from the clot of blood. Read for thy Lord is most generous, he who teaches the use
pen , teaches man what he does not know.”This was the first message to Prophet,
followed by a series of divine communication or messages of god were revealed to
him on different occasions till his death. Quran is the collection of such divine
messages revealed to prophet from time to time.
Through his preaching Prophet laid down new principles of life & abolished the
existing evil customs in the society. First to believe was his wife Kathija later the
rest of the people. But majority of the people opposed his preaching's & made
things difficult for him, he left Mecca & went to Medina in 622A.D, this journey is
considered as ‘holy mission’ (Hejarat), at Medina he was welcomed with open
hands by the people & majority of them became his followers.
Prophet not only united the people through his new faith but also organized them
as a strong political group to face strong opposition, many wars were fought & the
personality of Prophet Mohammed dominated the minds of Arabs to such an extent
that within a very short period he succeeded in spreading the new religion(Islam)
among majority of the people. At the time of his death in 632A.D Prophet was the
religious, social & administrative head of a big Islamic commonwealth.

DEVELOPMENT OF ISLAMIC LAW CAN BE STUDIED UNDER THESE

FOLLOWING PERIODS

1. First period(622-632AD)
2. Second period(632-661AD)
3. Third period(661-900AD)
4. Fourth period(900-1924)
5. Fifth period(1924AD to present)

First period(622-632A.D),the Legislative period: Began with Hijarat 622AD ends

with death of prophet in 632AD, from the first revelation of Message of god in
609AD, followed by the rest, most revelations were in Mecca & most people
opposed him, his first task was to make them believe them the existence of one
god. The revelations contained religious & spiritual messages & they did not
contain positive law(Fiqh) .622AD when prophet went to Medina with the revealed
messages of god, it was easily believed by the revelations at Medina, prophet laid
down the principles to regulate the conduct of people(positive law) there had been
revelations solving the problems of the society this continued till his death. The
sayings & doings of prophet without divine inspiration were also followed by the
people as his traditions(sunnah).Laws which were not available in direct words of
God were formulated through traditions of the prophet. The last ten years of the
life of prophet before his death were very important from the point of view of
legislation of Muslim law.Important rules of law were laid down during this period
either through the words of Quran or through the prophets traditions. This period
was considered as legislative period where laws were enacted by the divine source

Second period (632-661), also period of four caliphs (Khulfai-i-Rasheeden):

prophet(PBUH) had been an absolute authority on law & religion.He was
considered as spiritual head as well as an administrative head of Muslim state.He
was spiritual as well as the administrative head of Muslim state.After his death the
question arose as to who would be the successor of Prophet(PBUH) .Majority
agreed for election for his successor.Accordingly Abu Baker was elected as the
first caliph & headed the community of Muslims, he was a very popular during the
times of Prophet & as a leader thought the community.He died in 634A.D after
him Osman was the chief for 10yrs he was assassinated in 644A.D, after him
Osman became the third caliph through elections. He lead the community for 12yrs
he was also assassinated by opponents in 656 A.D. After him Ali husband of
Fatima daughter of Prophet was elected as the fourth caliph . Ali too was killed in
661 A.D . These were known as the ‘rightly guided caliphs, These four caliphs
were called as Khulfai-i-Radhidin cause they had the privilege of being very close
companions of the prophet .After the death of prophet the divine communication
was in a scattered form & some were only in the minds of the people.One of the
important feature of this period is that the divine messages were collected written
& given a proper final shape. This collection is called as Quran.
First collection of Quran was done by Zaid, during the rule of Abu Baker. This
collection was found incorrect & contradictory in some places.
Osman the third caliph asked Zaid once again to revise the holy book & correct it.
The earlier version was destroyed by him. The only authentic version of Quran
available to us is Osmans compilation.
Another important feature of this period was the ‘traditions of prophet’, were
strictly followed.
In Second stage of development of Muslim law the only sources of law was Quran
& traditions of prophet.
The administration of justice, it was during the time of Omar the second caliph
appointed the first ‘Qazi’to decide the disputes of secular in nature, it was
he(omar) who declared that law is supreme & is above the executive authority.

Third Period(661-900A.D): The fourth & the rightly guided caliphs had two sons.
After Ali death his first son(Hasan) was made the caliph. As he being a saint did
not want to involve in administration, he resigned from the post in favor of Muavia
of Ummaiyad family, & from him began the Ummaiyad dynasty .
Two notable events of this period,The seat of caliphate was shifted from Medina to
Damascus. The elective office for caliphate, was made hereditary.
Muavias son ‘Yezid’ became the next head of Muslim empire.Hasan was poisoned
meanwhile, his brother who opposed & revolted against Yezid, but he too was
killed mercilessly at Karbala .Caliphate became a regular kinship.In 750A.D the
Umayad dynasty was captured by the Abbasids who were decedents of Prophets
Uncle Abbas. They made they capital at Baghdad & proclaimed religious or
spiritual headship of Muslim empire.In absence of states lawful authorities the
scholars began expound the laws themselves, & began to claim his interpretation of
law to be correct.The academic differences among the scholars lead to the
formation of different schools of Sunni sect.
Sunnis were further divided into four sub-sects
Hanafi
Shafie
Maliki
Hanbali. Each of these were been named after the scholar who expounded the law
according to their own interpretation & reasoning.
Shias were also divided into three sub-sects
Itna –Ashara
Ismailia
Ziadia
First the traditions of prophet(PBUH) which were numerous & also scattered were
collected & examined. Only authoritative traditions were accepted to be law. The
only authoritative collections were accepted to be law were collection of ‘Bukhari,
Muslim & Malik-Ibn-Anas.Secondly, where law was not available in the text of
Quran or traditions of the prophet, theoretical exposition was undertaken by the
jurists . Due to the expansion of the religion it became more complex.Quran & the
traditions could not solve many problems of the society. In such situations
theoretical formulation of law on the basis of the texts were only alternative.One
method was to obtain a law through the consensus opinion of the jurists(ijma)
Another method was to deduce the law directly from the text Quran or traditions
by establishing the similarity b/w the situations enumerated in the text. This is
called analogical deductions called as the (Qiyas)& it was the most scientific
method of legislation.
Superb juristic approach in finding of law to the society.New concepts in the
juristic science such as equity, reasoning, public welfare, etc. were also introduced
during this period.

Fourth period(900-1924AD) : In this period the Islamic legal history begins with
the establishment of the four Sunni school & extended upto 1924 A.D, the
Abbasids ruled for five centuries & were overthrown by the Mongols in 1258 A.D,
for sometime the sunnies were left without a caliph. In 1261 A.D Abdul Kasim
Ahmed was made the caliph with his capital as Cairo.
They were in power for more than two centuries. Important feature of this period
was that the caliphs were not given power.In the beginning of the 16th century, the
Ottoman ruler Selim-I was invited to head the community(1571A.D), by the
passing of the caliphate in the hands of Ottomans , Constantinople became the
‘Dar-ul-kalifath’. With the abolishing of Sultanate of Turkey by Mustafa Kamal
Ataturk in 1922, the caliphate was also abolished forever in 1924, by the National
Assembly of Ankara.
This period was not significant at all as further expounding of laws was stopped.
Cause after the death of the founders of four Sunni schools , no scholar of they
learning was available who could propound new theories of law .
As there were no jurists competent for individual interpretation the, laws could not
be formulated through istihad (opinions of jurist) as a result the laws which were
already laid down, by those four jurists was simply followed by the society. In this
manner, there developed Taqlid (imitation or followings), under this doctrine the
opinions of great jurists were followed by the scholars Without adding anything
new to it. But the scholars of the period have written exhaustive commentaries on
the laws already laid down by the jurists of respective schools, they being low in
ranking could not give independent judgments on the point of law. The opinions
of those scholars are termed as fatwas, these cannot be treated as Muslim law, yet
they explanation cannot be ignored.
The important fatwas were Fatwai-Almagiri & Fatwa Quadi Khan.

Fifth period(1924 A.D to present days): From here begins the modern period of
Islamic law, this still continues.
After 1924, they was no caliphs as a religious head to administer & execute the
traditional law, without any competent authority to execute it, the Islamic religion
became the moral code of conduct whereas Muslim law with the sanction of the
states was viewed juridical.
As Muslim law being influenced by the science of law, many modern Islamic
countries put efforts to codify their laws in such a manner that the inherent
character of Shariat is being preserved, the law is formulated in accordance with
requirements of the present society .
Another important point is that all aspects of human conduct (civil & criminal)
were regulated by the traditional Islamic law, but, subject after subject was
gradually excluded from the preview of traditional law in the several parts of the
Muslim world. As a result the scope of Islamic law was narrowed down.
Before the advent of British in India the Moghals applied Muslim rule as law of the
land in all matters whether family or others.This system was changed by the
Britishers, by enacting several laws which was made applicable to Muslims & the
non-Muslims in the non personal matters .The modern period began with the
establishment of the British courts. The feature of these courts is that they did not
apply Muslim law in each & every affair of the Muslim matters, after
independence the same setup has been adopted & followed. The enactment of
Shariat Act 1937, all matters of Muslim except agriculture land can be decided
according to Muslim law. Just after two years of passing of shariat Act the
Dissolution of Muslim marriage act 1939 was passed, which brought revolutionary
changes in the law of divorce. The Muslim Women(protection of Rights on
Divorce) Act 1986, after this there has been no other law enacted, in relating to the
rules of Muslim law. The present Muslim law of India includes the traditional law,
the legislative enactments, & the judicial precedents.

CONVERSION

A Muslim is a person whose religion is Islam .Islam, means submission to the will
of God.Islam is a religion where it is believed that God(Allah) is one & only one &
Prophet Mohammed(PBUH) is the messenger of God.The court looks into the
belief, i.e. in the oness of God as a requirement for a person to be called as a
Muslim.According to the court a person may be a Muslim either by birth or by
conversion.

Different modes of Conversion,

Two types, 1. Declaration in public, 2.through ceremonies ( reciting kalmia &

giving him a Muslim name).

They is no objective test for testing a persons sincerity in a faith. Conversion to

legalize an act under the Muslim law such conversions are not deemed to be
lawful.
In Skinner V/S Orde(1871, 14, MIA 309), the Christian widow living with a
Christian man who had already a wife living . cohabitation with a person other than
his wife is illegal .To legalise their cohabitation both of them converted to Islam &
became Muslims as under te Muslim law a male can have four wives at a time . it
was held by the privy council that the conversion was illegal & not bonafide
because it was to commit fraud upon people .
In Sarala Mudagal V/S Union of India (1995, 3,SCC, 635), hindu husband
converted to Islam & thereafter converted to Islam & thereafter contracted
marriage with a muslim girl without divorcing the hindu wife . The SC held that
the conversion was ,malafide . declared the second marriage as void. In Lily
Thomas V/S Union of India(AIR [2000], SC 1650), the SC confirming its earlier
view in Sarala Mudagals case, held that conversion to Islam only for the purpose of
legalizing the second marriage as void.
Islam does not differentiate b/w a born Muslim & a converted Muslim, religion is a
matter of faith. Person who mockingly adopts a religion just for enjoying the
benefits under the mohammaden law is not legal conversion. There is no problem
if a Child is born out of marriage performed according to Muslim law.
They are considered to be legitimate. It is said a child born is presumed to belong
to the religion of father. If a Hindu lady converts to Islam her previous marriage
with Hindu husband is not dissolved. Before legally dissolving the marriage if she
marries a Muslim after converting to Islam she commits an offence if bigamy u/sec
494 IPC. Applicability of law, Muslim law is applied to a non-muslim in certain
cases, the policy of the courts is that where the parties to the case are of different
religion the law of defendant applies.
A women renouncing Islam to Hinduism is not a Muslim, But for divorce on any
grounds mentioned u/sec2 of the Indian Divorce Act. Laws relating to right of pre-
emption(right to choose neighborhood) is applicable to non Muslims , in some
parts of India .
Yet separate law for pre-emption is applied to both Muslims & Hindus in certain
places in India Muslim Marriage Act 1939 even after converting to other religion
may obtain decree.

SOURCES OF ISLAMIC LAW

A source of law refers to the original material(s) where the contents of law are
found. It is essential so as to have the law, its explanation and its right
interpretation.

SOURCES OF MUSLIM LAW

The sources that the Prophet Mohammad directed will be the primary sources.
These are to be followed in their respective order of priority. They are also called
formal sources. The whole of Muslim personal law is based on these these sources
explain or modify the primary sources, they deal with the needs of the Islamic
society in the modern era these are also called extraneous sources. Some of the
personal rules may find places in the sources, e.g., customs.

Basically there are two sources of Muslim law .

1. Primary
2. Secondary

THE PRIMARY SOURCES

1) QURAN
The term “Quran” has its roots in the Arabic word ‘Qurra’ and refers to ‘the
reading’ or ‘what ought to be read’. The first revelation (Wahi) came to the
Prophet in 609 A.D. They continued for about 23 years. These revelations were the
messages of God made by Angel Gabriel. These revelations were given out then to
the people through the preaching of the Prophet.
These delivered messages were remembered and some were reduced to writings on
animal skin, palm leaves, etc. After the Prophet’s death, theses were collected,
assembled and then systematically presented under the authority of the third
Caliph, Osman. The first version is said to have been in the custody of the
Prophet’s wife and Osman’ daughter, Umme Hafsa. There were other versions,
too, but either they were not accepted or they were suppressed.
SALIENT FEATURES OF QURAN
1) Divine Origin: The religious book has a divine origin. It is believed that these
were the words of God himself and the Prophet mere uttered these words. Thus, it
is unchangeable and its authority is beyond reproach. The Quran is the Al-furqan,
the one that shows the truth from falsehood and the right from the wrong.
2) First Source: It is the first and fundamental source of Muslim law and Islamic
principles. It is ultimate source of laws.
3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There are 6237
ayats in 114 chapters, each called ‘Sura’. The holy book is arranged topic wise
with respective titles. The first chapter praises the almighty God. Other chapters
include, surat-un-nisa (chapter relating to women), surat-ul-noor (rules relating to
home-life) and surat-ul-talaq (the rules relating to divorce).
4) Mixture of religion, law and morality: It is believed that the verses relating to
law were revealed at Medina while the ones relating to religion and mortality were
revealed at Mecca. In some places in the book, all three can’t be separated at all.
Thus, the whole of Quran cannot be source of a law, instead we refer to the 200
odd law-making ayats scattered all over the book as the basic source of Muslim
Law.
5) Different forms of legal rules: It has many categories, the ones that remove
social evils like child infanticide, gambling etc, and the ones that create specifics
so as to solve daily life legal problems as well as providing for the basis of juristic
interpretations or inferences.
6) Unchangeable: The Quran can be in no way altered or changed, thus, even the
courts of law have no authority to change the apparent meaning of the verses as it
does not have an earthly origin.
7) Incompleteness: In the 200 odd verses of law in the Quran, only 80 or so deal
with the personal law. Hence, we say that it is not a complete code of Muslim
personal law; it only lays down the basic principles.
Further, on many an issue, the Quran is silent.
With the spread of Islam, the necessity arose to explain and supplement the Quran
so as to deal with the new problems of a growing Islamic society.
2) SUNNA OR AHADIS: TRADITIONS OF THE PROPHET
In the pre-Islam Arabia, Sunna meant an ancient and continuous usage that has
been established in the society. Sunna literally means the “ trodden path”. Sunna or
Ahadis means the traditions of the Prophet. It means that whatever the Prophet said
or did without the reference to God is his tradition. The Prophets acts and words
are believed to have been inspired by God and thus are treated as internal
revelations. Thus, tradition is another source of law in the language of the Prophet.
So wherever the Quran is silent, the Sunna /Ahadis were referred to.
WHAT CONSTITUTED SUNNA OR AHADIS?
Everything the Prophet did or said as well as his silence was taken to be a rule
under authority except when he used to give the revelations of God.
i) Sunnat-ul-Qaul: refers the words spoken by the Prophet.
ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet.
iii) Sunnat-ul-Taqrir: by his silence, the Prophet gave an implied approval to pre-
islamic customs, practices and questions.
Sunna must be differentiated from Hadith. While the latter is a story or occurrence
of an incident, sunna refers to the law that was derived of such conduct of the
Prophet.

NARRATORS OF THE TRADITIONS

The traditions noticed by competent and qualified person were treated as
authoritative if they were found to be reliable. The competence was judged by the
mental understanding, power of retention, righteous conduct of a person and on the
basis of whether he was a Muslim or not.
i) Companions of the Prophet: The Muslims who lived with the Prophet during his
lifetime and were close to him are called the Companions. Their testimonies are
the most reliable ones.
ii) Successors of the Companions: The Muslims who came in contact with the
Companions of the Prophet are called the Successors. They stand second in
reliability.
iii) Successors of successors: The Muslims who were in constant companionship of
the Successors come last in the line.
The further a narrator from the Prophet, the lesser authority is given to his
narration.
KINDS OF TRADITION
i) Ahadis-i-Mutwatir are the universally accepted traditions. There is no doubt as to
their certainty and have been narrated by many people. All sects of Islam follow
them.
ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the
companions of the Prophet and have found mass acceptance. It is the source of law
for a majority and not all.
iii) Ahadis-i-Ahad are the isolated traditions that have not been followed regularly
or by many. Generally, the acceptance and practice is a localised one.
Traditions were passed on from generation to generation and soon became the
practice. They were not written or systematically arranged initially. Muvatta is
regarded the first systematic collection even though a few efforts were made
before. The number of traditions is staggering, for example, Masnad has about
80,000 traditions collected and written in it.

DRAWBACKS
Some of the traditions have a doubtful origin and some are even contradictory to
each other. There are no uniform or certain rules on certain issues. Mixture of law
and religious or moral principles makes the extraction of the actual law a rather
tedious task. Traditions derive authority from the writers, with the death of
successors and others; this means could no longer be practised. In addition, the
Shias followed only those traditions that came from the Prophet’s family.
The importance and role of traditions is immense but another source of law was
needed to deal with the expanding Islamic Society.
3) IJMA: UNANIMOUS DECISIONS OF THE JURISTS
Ijma means the opinion of the learned. When persons knowledgeable in law would
agree upon a point, such consensual opinion was referred to as Ijma. Thus, Ijma is
the unanimous decision of jurists for a particular question with reference to that
age or communal legislation. It is through the tradition of the Prophet that Ijma
derives its validity and authority as a source of law. The Prophet is believed to
have said that, ‘God will not allow his people to agree on an error’. The Hanafi
doctrine of law changing along with times found support in the Maliki view that
new facts require new decisions.

FORMATION OF IJMA
Whenever law needed a new principle, the jurists used to give a consensual
opinion so as to enable a solution. To be a jurist or Mujtahid, it was essential that a
person was a Muslim with adequate knowledge of law and was competent to form
logical deducements. Ijtihad refers to the process of creating law through
consensus on the basis of ‘exercise of one’s reasoning so as to create a new rule of
law’. The Ijma had to be justified with references to the principles given in the
Quran or the tradition as well as public policy, interest of the community and
equity. The Mujtahtids are the recognised interpreters of law.
KINDS OF IJMA
i) Ijma of the Companions: the consensual opinion of the Companions is believed
to be most authoritative and accurate. It cannot be overruled or modified by
subsequent Ijmas.
ii) Ijma of the Jurists: the opinion of learned scholars was believed to be the next
best Ijma after the Ijma of the Companions.
iii) Ijma of the People: At times, the mass acceptance of a principle as law was also
accepted. Nevertheless, it is of little consequence with respect to core issues and
principles of the Islam.
As can be seen, the authority of Ijma depends upon the capabilities of the people
participating in its formation.

IMPORTANCE
A major concept of the fiqh or actual Muslim law came through Ijma. It explained
the Quran and traditions in terms of actual applicability as well as laid down new
principles of law so as to help the society to cope up with growth and progress. It
was through Ijma that the real opportunities for interpretation of the hereto rigid
Quran and Traditions came up. It is even referred to as the ‘living tradition’ at
times.

DEFECTS
The Ijma lead to various reading and versions or interpretation of the Quran,
Sunna, custom etc. As a result, different sub-sects were formed. The choice of
unanimous opinion or majority opinion is another bone of contention. The Ijma of
the jurists and the people could be overruled at any time; thus, they were not able
to contribute substantially to certainty in law. With the spread of Islam and lack of
a well- established communication network, obtaining consensus of all the jurists
was a major problem. Again the stock of learned and accepted scholars ran short of
the requirement and by 10th century, the Ijma had to be abandoned.

4) QIYAS: ANALOGICAL DEDUCTION

Qiyas refers to ‘measurement’ in the Arabic language. It also refers to comparing a
thing in relation to a standard or ‘to establish an analogy’. Some have described it
as the analogical deduction from the reason of a text to a case not actually covered
by its language. In simple words, it is a method of comparing a problem in present
times to a similar problem for which the solution is provided in the texts.
It is a weak Ijtihad, one’s own exertions to find a solution through reason. But it is
more important and powerful than a mere rai or opinion of a jurist.
First, a similar problem with a solution is found and the reasoning behind it was
taken so as to establish a common cause. Then solution to the present problem is
directly deduced from the texts in form of a law derived. Here, the spirit or the
implied meaning of the text is taken into consideration.
Unanimous consensus between those deducting was not essential. The only
requirements are that the person deducing is a Mujtahid and he deduces the law
from a text of Quran, Traditions or Ijma.

QIYAS AND ISIHSAN

Istihsan means juristic equity, thus, it is a conclusion of law based on the jurist’s
sense of justice or equity rather than any text. It is recognised only under Hanafi
Law.

QIYAS AND ISTIDLAL

Istidlal refers to inferring one thing from another. Here only an inference is drawn
and analogy is not established. This rule of interpretation is accepted only in
Maliki and Shafei schools.
NOTE: There exist differences in all schools and sects regarding the Primary
sources. For example the Shia Sect doesn’t recognise the Qiyas as a source of law
but recognising
traditions of the Prophet’s family only along with the conduct of the Imams.
Fatwas are not a source of law but they have contributed a fair bit in the
improvement and expansion of law

THE SECONDARY SOURCES

1) URF OR TAAMUL: CUSTOM

Before Islam, customary law governed Arabia. Then the Prophet abolished most of
them, as they were un-Islamic and bad. Some customs, however, were continued
due to the Prophet’s silent approval. Some were even included in his traditions.
Otherwise, some customs survived due to their incorporation in the Ijma.
IMPORTANCE
It is not a formal source, yet, in the absence of rule of law in the texts of the
primary sources, the customary practices are regarded as law. The British Courts in
India held that a custom would prevail over a written text provided that the custom
was ancient and invariable.

PRESENT POSITION
The Shariat act, 1937 has abolished most of the customs. Section 2 lists ten matters
including inheritance, marriage, divorce, wakf and, maintenance wherein customs
and usages cannot be applied anymore. Customs are still applicable to Muslims
with regard to agricultural lands, charities and religious endowments. Even in
matters of wills, adoption
and legacies, the customary law will apply unless a Muslim expressly states that
the Shariat should regulate them.
Additionally, the Shariat Act is not applicable to the state of Jammu and Kashmir.
Thus, the rules of Muslim law there are subjected to customs and usages.

2) JUDICIAL DECISIONS
The Privy Council decided many a case related to Muslim law. These cases
continue to have a binding force on all the High courts and the lower courts of
India and a persuasive value in the Supreme Court of India. This box of precedents
will lose its binding force only if the Supreme Court overrules a particular
decision. Elsewhere, an opinion seems to be forming that judges are now making
the law the way the early Muslim jurists did.
Judgments of a superior Court are an authority for the lower courts. Plus the
judgments of the higher court become the law of the land and thus are binding on
all the lower courts. This is called the principle of Precedents. Law of pre-emption,
validity of gifts to minor wife, additional grounds of dissolution of marriage and
even interest on unpaid dower are few of the fields where courts have stepped in
with new interpretations or discretion on the basis of justice, equity and good
conscience to develop the law further.
Many a times, legislations have overruled or negated the rules; they are still a
source of law.

3) LEGISLATIONS
God is the Supreme legislator as per Islam. Thus, sometimes, legislative
modifications are also treated as encroachment. Still, there are a few acts that
modify or lay down principles of Muslim law and serve as a source of law for the
courts with respect to the content covered by them.
a) The Mussalman Waqf Validating Act, 1913 – It merely re-established the
validity of family-wakfs.
b) The Child Marriage Restraint Act- It makes the marriage of a boy under 21
years of age and a girl under 18 years a ‘child marriage’ and punishable without
affecting the validity of it.
c) The Muslim Personal Law (Shariat) Application Act, 1937 – It reiterated the
Muslim Stand that custom couldn’t be an independent source of Muslim law all the
time
d) Dissolution of Muslim Marriage Act, 1939 – It provided rights to judicial
divorce under the grounds mentioned in it to women who traditionally had no
independent right to seek divorce.
e) Muslim Women (protection of Rights on Divorce) Act, 1986 – The issues of
maintenance after divorce, maintenance during idddat are dealt with
comprehensively.
f) Punjab and Haryana’s Muslim in Muslim Shrine’s Act, 1942.
There are other Acts too which deal with Muslim personal Law. Some lay down
the procedure rather than altering substantive rules of Muslim personal Law. Acts
like the following replaced or restricted the application of those personal law
principles with reference to the Act’s objectives and aims:
a) The Caste Disabilities Removal Act, 1850 changed the laws of the pre-existing
rights of converts;
b) The Indian Evidence Act, 1872 changes the traditional outlook on legitimacy via
Section 112;
c) The Indian Majority Act, 1875 differed on its definition of majority; and
d) The Dowries Prohibition Act, 1961
Similarly, alternate legislation available to all religions have made its impact felt
on the Muslim personal law. For example, a couple that marries under the Special
Marriage Act, 1954 will be regulated by, the inheritance and intestate succession of
the spouse or heirs will also be governed under the Indian Succession Act, 1925. It
does not matter whether the persons getting married under this law are from the
same religion or sect or not.

MARRIAGE

Before advent of Islam concept of marriage, Customary law, in favor of men.

Object of marriage was to only for cohabitation& procreation of children.
Prevalence of limitless polygamy. No restriction of arraying a girl except real
mother & sister. Different forms of marriage were recognized .No proper
matrimonial status given to women. After advent of Islam Nikah, means tie up
together for indefinite period. Social status given to women. Definite form of
marriage was practiced. Defined independent status was given to married women
.Prophet declared that in a marriage the husband has to pay something to the wife
but not as a practice but as a mark of respect towards her. Islam prohibits limitless
polygamy & no Muslim is allowed to marry more than five wives at a time.
POLYGAMOUS NATURE OF MUSLIM MARRIAGES

Husband is allowed to marry four wives at a time, it is legally permissible. Islam

entertains limited polygamy .Quran very clearly lays down conditions in for
this,‘Marry of the women who seems good to you, 2or3or4 if you fear that you
cannot do justice To many than to one’ (Quran Sura IV Ayat 3)‘You will not be
able to deal equally b/w your wives however much you wish to do so’ (Quran Sura
IV Ayat 129)

DEFINATION OF MARRIAGE:

Under the Muslim law marriage is a civil contract for legalization of relationship &
for legitimization of the children. According to Hedaya, Marriage (Nikah) implies
a particular contract used for the purpose of legalization children. Justice
Mahmood had defined marriage as a pure civil contract & not a sacrament.
The object of the Muslim marriage is, to provide legal validity relationship of
husband & wife, to legalize the children, without a valid contract of marriage the
cohabitation b/w the man & women is unlawful (Zina).

Legal aspects of Marriage:

Muslim marriages are termed as contract, because the elements constituted are
similar to contract. Contractual in nature on the basis of the following facts,Like
contract, parties to the contract must be competent. Marriage is not complete
without offer, acceptance, & consideration.

Social aspects:

Nikah is a well established social institution Which gives to a women a separate &
dignified status in the society, Muslim marriage is not simply a contract but also a
social institution. Social institution on the following basis;
Dower must be given or promised to be given by husband during his lifetime.
They must be limited polygamy. Prohibition in the marriages b/w certain close
relatives. Certain circumstances in which the Muslim law disapproves the contract
of marriage. E.g. A Shia Muslim is not allowed to marry in duration of Hajj
journey. Marriage promotes the development of healthy society free from evils.

Religious aspect:

According to Quran, it directs every Muslim to marry a suitable woman. It is a

religious duty of every Muslim to contract a marriage according to the rules of
Islam. Marriage is also the traditions of prophet (PBUH) . In Islam it is believed
that marriage is Sunnat Muwakkidah which means if a person does it, he gets
religious benefits if he abstains from it he is commits sin.
Marrying a suitable girl is not only social activity but also a religious duty of each
Muslim.
In Anis Fatima V/S Mohd Istafa (1933, All 55) C.J Suleiman has pointed out that
apart from being a contract, Muslim marriage is also a religious sacrament .The
essence of Muslim marriage is socio-religious, it creates rights & obligations of
husband & wife confers a defined social status on them. Also deemed to be
religious duty.

ESSENTIALSOF MUSLIM MARRIAGE

Marriage is valid (sahih) if it is recognized by the courts as lawful.

Following conditions must be fulfilled in a valid marriage.
Parties to the marriage must be competent.
Consent of the parties or of the guardian must be free consent.
The required formalities are duly completed &
There must not be any prohibition or impediment in contracting the marriage.

I. Capacity to marry:
Every Muslim of sound mind, who has attained puberty, may enter into a contract
of marriage. Puberty means the age at which a person comes to a marriageable age.
A person is presumed to have attained the age of puberty on the completion of 15
years. So the boy and girl who has attained puberty can validly contract a marriage
.A marriage under Muslim law is perfectly valid if the parties have attained
puberty and satisfied all other conditions specified by the law.
Thus if two Muslims marry before attaining the age prescribed under the child
marriage restraint Act they are liable to be punished. However the marriage
between two Muslims who have attained puberty is valid though they have
violated the provisions of Child Marriage Restraint Act.

2. Free consent:
Free consent of the parties is absolutely necessary for a valid marriage.
If there is no free consent a Muslim marriage is void. Under the Muslim Law, a
marriage of a Mohammedan who is of sound mind and has attained puberty is
void; if it is brought about without his consent. The marriage of a girl who has
attained puberty and is of sound mind would be void if her consent is not obtained.
When the consent to the marriage has been obtained by force or fraud, the marriage
will be invalid, unless it is ratified. When a marriage was consummated against the
will of the women, the marriage is void. The person who has been defrauded can
repudiate the marriage. Lunatics and minors who have not attained puberty may be
validly contracted by their respective guardians.
When the consent to the marriage has been obtained by force or fraud, the marriage
will be invalid, unless it is ratified. When a marriage was consummated against the
will of the women, the marriage is void. The person who has been defrauded can
repudiate the marriage. Lunatics and minors who has not attained puberty may be
validly contracted by their respective guardians. A minor is incompetent to give
valid consent. The right to contract a minor in marriage belongs to the following
persons:
i)Father
ii)Paternal Grand Father (How high so ever)
iii)Brother and other male relations on the fathers side
iv)Mother
v) The maternal uncle or aunt and other maternal relations.
Under the Shia law only the father and the paternal grandfather are recognized as
guardian for contracting marriage of a minor.
If a minor, whether male or female, be contracted in marriage by a remoter
guardian, while a nearer guardian is present and available and such nearer guardian
does not give consent to the marriage, the marriage is void.
But if the parties ratify it after attaining puberty, it will be valid . However if the
nearer guardian is absent at such a distance relative can also give consent on behalf
.The marriage contracted by the remoter is also lawful.

THE CHILD MARRIAGE RESTRAINT ACT 1929

This act is applicable to every person including Muslims. Sec 2 of this Act
provides for Minimum age for marriage i.e. 18yrs & 21yrs for girl & boy. Marriage
conducted below the prescribed age by the guardians is deemed to be a penal
offence. The amendment of 1978, includes provision for strict implementation of
the act. According to Sec 7, it is a cognizable offence & the police can investigate
it in the same manner as it does for offences under CrPC . No arrest can be done
without the order of the Magistrate. U/sec 12, a child marriage may be prevented
by means of an injunction from the court before such marriage takes place.
Violation of such an injunction is also punishable.

OPTION OF PUBERTY ( Khair-ul-Bulugh)

In Muslim law a minor attaining puberty has a right to approve or disapprove the
marriage contracted by the guardians. This is called as Option of Puberty.
If a person after attaining the age of puberty chooses to repudiate the marriage he
could do so the marriage is dissolved with immediate effect.
On the other hand if the parties on attaining the age of majority approve the
marriage it is considered from the date of its inception.
This right is not compulsory the parties may or may not exercise their right.
According to Shia law a minor after he attains the age of majority must approve his
marriage otherwise it is not a marriage in the eyes of law.

Rules relating to Option of Puberty;

The Husband cannot exercise if the marriage was contracted by father or

grandfather.
Exception to this is that if the father or grandfather contracts the marriage
fraudulently the husband then has the right to repudiate the marriage.
1. The option of puberty can be exercised by the wife even if her marriage was
contracted by her father or grandfather, before 1939 she could not do so.
Dissolution of Muslim Marriage Act 1939 has modified the law, in regards to
option of Puberty by wife u/sec2 (Vii) of this Act, provides that Muslim wife has
to take order of the court if the marriage was contracted by her father or guardians
where she is below the age of 15yrs, but today she can repudiate the marriage even
if it was contracted by her father or guardian.
1. The option must be exercised by the wife immediately after the attainment
of puberty. If there is unreasonable delay in the exercise of the option she
will be losing her right.
But under sec 2 (Vii) of DMMAct 1939 a Muslim wife has the right to exercise
this option till she attains the age of 18 yrs . If she fails to exercise then it may be
considered as unreasonable delay & her right may be lost .

2. In case of husband, the option of puberty continues till the he approves the
marriage either expressly or impliedly .
3. Payment of dower to the wife or cohabitation with her is regarded as implied
approval of marriage by husband.
4. When consummation takes place the husband & wife looses the right of option
as it is regarded as implied consent provided it is not before the age of her puberty
or against her consent.
5. The marriage does not dissolve merely by the exercise of option of puberty .

Confirmation of the court on Soundness of mind: at the time of marriage both the
parties must be of soundness of mind. Persons of unsoundness of mind have no
capacity to enter into marriage because their own consent for marriage is no
consent in the eyes of law. Unsoundness is of two type’s idiocy & lunacy, Idiocy
refers to an abnormal state of mind in which a person is completely incapable of
entering into terms of contract lawfully & such a person cannot enter into a
contract of marriage & termed to be void.
Lunacy is a decease which may be cured, marriage during the lucid period or
interval is held to be valid .Marriages of Lunatic & an Idiot are void except in lucid
intervals. But a person of unsoundness of mind may be contracted in lawful
marriage by the marriage guardian.
Same rules of Option of puberty are applied as in the case of minors marriage. An
insane person has the right to repudiate the marriage if the marriage is contracted
by a guardian other than father & grandfather. Inter sect marriages are valid
Inter religion, Muslim male, marriage by Muslim boy with a non Muslim is
irregular & not void.
Shia male does not have a right to marry a katibaya or a non Muslim female.
Female, whether she belongs to Sunni or Shia school she does not have a right to
marry a katibaya or a non Muslim male.

Inter Religious Marriage:

In regards to this the Sunnie law & the Shia law are different.

Sunnie law: under this school the Boy is entitled to marry a Muslim girl of any
sect & also is entitled to marry any Kitabia girl. A girl is kitabia if she belongs to
community the origin of which is believed from the heavenly revealed kitab. Under
this schools law the Christians & the Jews are regarded as Kitabia community
people. Hence the sunnie male is entitled to marry these communities (kitabia) of
girls & the marriage is regarded to be as perfectly valid.
If a Sunnie male marries a female who is neither a Muslim nor a kitabia, the
marriage is not void but it is merely irregular. Marriage with a fire worshipper
(Parsi) or a Hindu girl becomes valid only when the irregularity is removed i.e.
when the girl converts to Islam or katibia. Hence it can be said that sunnie male
marriage with a non Muslim & non kitabia is not void but is just irregular.

Shia Law: A Shia male has no right to contract marriage with a non-Muslim & a
katibia girl. The marriage of a Shia man with a Hindu , Jew. Christian or a Parsi
girl is void.
But a Shia male is entitled to enter into a Muta marriage with a kitabia or a Parsi
female it is considered as valid.

II. Free consent.

Compulsion, consent for marriage is obtained by force, under threats, or coercion
or any other compulsion, it is not free & it cannot be said that such a person has
intention .under all schools of Muslim law except Hanafi if the consent of the
parties or of the guardians has been obtained under compulsion the marriage is
termed to be void.
Under the Shia law such marriages contracted by force, compulsion & mistake of
fact, are void in all sub sects.

III Formalities in marriage.

1. Offer & acceptance;

Offer signifies the willingness of the person to contract a marriage with the other.
Generally the offer is a declaration & is made from the side of the boy or his
guardian.

Acceptance; is made by the girl or her guardian. No specific words are prescribed
for an offer an acceptance.

Oral or written: the acceptance may be either oral or in writing ie to say the offer or
the acceptance may be through words of mouth or may be reduced to writing.
When it is put down in writing it is called as Kabinnamha which acts as an
important document of marriage.

In the valid marriage the offer & acceptance should be in one sitting. It means the
proposal for the marriage & its subsequent acceptance are at one palce of meeting.

2. Presence of witness.
Witnesses are essential, a male who has attained the age of majority can be a
witness.
Two male witnesses or one male & two adult female witnesses are essential to a
Muslim marriage are essential. According to Sunni law
According to shia law the presence of witnesses is not essential.
-Conditional of contingent (promise to marry in future)
Registration of Muslim marriage;
Registration of Muslim marriages is not necessary. But in some places of India like
Assam, Bengal, Bihar,Orrissa,Punjab registration of marriages as well as divorce is
essential.
In certain places in India it is a customary practice & law to register the marriage .
In Jainoon V/S Amanullah Khan(AIR 2000, Mad 381)
Madras HC stated that though under the Muslim law registration of marriage is not
compulsory it cannot also be said that it is prohibited.
Hence Suit filed for recovery of violation of customary right & causing mental
agony would be maintainable .
Court held that secretary of jamath (congregation of people for non political
purpose) & ordered him to pay Rs 5000 to compensate the plaintiff.

IV. Absence of prohibition ;

In Muslim marriage there must not exist any prohibition. Prohibitions are nothing
but restrictions upon the right of a person to marry.
Marriages must not be against the interest of the society, law prohibits the marriage
b/w certain persons or being contracted under certain circumstances.
Two types of prohibitions,
Absolute
Relative

1. Absolute
a. Consanguinity
b. Absolute
c. Affinity
Fosterage

2. Relative prohibitation
Unlawful conjunction
Marriage with 5th wife
marriage with non-Muslim.
Marriage without witness.
Marriage during Iddat.

ABSOLUTE PROHIBITION

This is mandatory in nature, marriages conducted in violation of absolute

prohibition is null & void under all the schools of mohammaden law.
consanguinity(relation by blood):
Under consanguinity or blood relationship, a Muslim cannot marry with any of his
or her following relations;
Ones own ascendants or descendant, how highsoever
Descendents of father or mother how lowsoever ( own brothers &sisters & they
children).
 Brothers or sisters of ones ascendants how highsoever (brother& sister of parents).
2. Affinity(relation by marriage);
This means nearness, this relation is created by marriage. On this basis one cannot
marry with following relations.
a. Ascendants or decedents of ones wife(son/daughter & grand children).
b. Wife or husband of ones own ascendants or descendants( father/mother & grand
parents).
3. Fosterage(by milk);
Where the child below the age of 2yrs, has been fed(milk) by any other women
other than its own mother that women becomes the foster mother of that child,
marriage with such women by the child is invalid though there is no blood
relationship b/w them.eg. A male cannot marry foster mother, her daughter ,sister
etc..
Marriage in violation against these rules is void ab initio. In Sunni law marriages
with certain foster relations are valid eg. Sisters foster mother, foster sisters
mother, foster brothers sister .

RELATIVE PROHIBITION
1.Unlawful conjunction : A Muslim is prohibited from having two wives at a time
who are related to each other (consanguinity, fosterage, affinity). Muslim cannot
marry his aunts(phuphu or Khala)or niece of his wife . He can marry his wifes
sister afterhis wifes death or divorce. This is Sunni law . According to the shia law,
marriage with the aunt is not unlawful conjunction. But cannot marry his wifes
niece without the consent of his wife.
2. Marriage with the fifth wife:
Polygamy limited for four wives . Marriage with fifth wife is irregular, after the
death or divorce of any of the four wives this irregularity is removed & the
marriage is regular.
3. Marriage with non-Muslim: Sunni male cal lawfully contract marriage with the
Kitabia women.
Marriage with a non Katabia is irregular & not void.
Shia, Marriage with non-Muslim is void.
4.Marriage without witnesses: Sunni law prohibits a marriage without witnesses or
with incompetent witnesses, is irregular.
Shia : under shia law, the presence of witness is not necessary . A marriage
contract without witness is held valid .
5. Marriage during Iddat: Iddat is one which the married women has to undergo
after divorce or death of the husband.
Marriage with a women undergoing Iddat is merely irregular, but according to Shia
law the marriage is void.
DIFFERENT KINDS OF MARRIAGE

Different kinds of marriage according to Sunnis & shia school

Sunni;
Valid(sahih)
Void(Batil)
Irregular(Fasid)
Shia ;
valid(sahih)
2. Void(Batil)
3. Temporary(Muta)
Kinds of Sunni marriages,
Valid marriages: Under all schools of Muslim law a valid marriage is that which
has been constituted with the essential conditions prescribed under the law.
Marriage is valid only if it is constituted according to prescribed essential
conditions.
Competency of parties.
Consent of the parties or guardians is free.
Offer & acceptance has been made by the parties is free.
There is no prohibition for marriage b/w the parties.
Void Marriage : such marriages are no marriage at all. They exists neither in fact
nor in law.
Following are void marriages .
Marriage in violation of absolute prohibition.
Marriage with a lawful married women.
Shia law: under shia law following marriages are deemed to be void .
Marriages against the prohibition of unlawful conjunction.
Marriage with fifth wife .
Marriage during pilgrimage.
Marriage with any non-Muslim
Marriage with a women undergoing Iddat.

Legal effects of void marriage;

1.Marriages are termed to be void-ab-initio .
2.No conjugal rights or obligations b/w the parties.
3. Mo mutual rights of inheritance to either's property.
4. The cohabitation is unlawful & children born are illegitimate.
5. The wife is neither entitled for dower nor maintenance.
6. The parties are free to contract lawful marriage with other party.
Irregular marriage: These are recognized only under Sunni law. They are
incompetent marriage if the irregularity is removed it is termed to be regular &
valid.Marriage contracted in violation of any of the relative prohibition is
considered as irregular marriage. As they could be removed afterwards as they are
temporary in nature.
Following marriages are termed to be as irregular.
1. Marriages against the rule of unlawful conjunction.
2.Marriage with the fifth wife.
3. Marriage without two competent witnesses.
4. Marriage with a non-Muslim &
5. Marriage with a women undergoing Iddat.

Legal effects of irregular marriage;

Cohabitation is lawful.
Children are legitimate.
Husband & wife no rights or inheritance to property.
Wife not entitled to dower.
5. Where consummation takes place wife entitled to specific or proper dower
which ever is less.
6. If the marriage is not consummated the wife is not entitled to Iddat.
7. On consummation the wife is to observe the period of Iddat only for 3 months
on divorce or death of the husband.
8. Unionism is not perfect but unholy .
9. Dissolution of marriage takes place through Kazi,court or by parties themselves.
Shia law; Irregular marriages are not recognized.
Temporary Marriages (Muta);
This is only recognized by the Itna Ashara sub sect.
Muta, means ‘enjoyment’ in Arabic . Literally muta means marriage for pleasure.

Essentials of Muta marriage;

Parties must have attained the age of puberty, soundness of mind, guardians cannot
contract muta for minor.
Muta with a minor is void.
The shia may contract muta with any muslim,Katabia or a fir worshipping women.
4. Shia women cannot contract a muta with any non-Muslim male.
5. There is no restriction for contracting muta .
6. Consent must be free of both parties.
7. Essentials of marriage are required to be present here.
8. Muta may be contracted without witnesses lawfully.
9. There must not exist any prohibitory relationship b/w the parties.
10. Period of muta must be Cleary specified i.e for a day, week, month or years.
In Shazada Qanum V/S Fakhr Jahan(AIR 1953 Hyd 6)
The court observed that there is no difference b/w muta contracted for life & Muta
in which
In which the period is not specified . It was held that muta for unspecified period &
it must be treated to be as permanent marriage.
11. Dower must be specified at that time of the contract.
Legal effects of Muta marriage;
Cohabitation b/w the parties is lawful.
Children are legitimate & have succession rights.
3. Muta husband & right has no right of succession .
4. Wife is entitled to get full dower even if the husband does not cohabits with her
for complete period & leaves the wife before the time specified.
5. Muta wife cannot claim maintenance under shia law but can claim under Crpc.
6. Iddat of muta wife, where consummation has not taken place the wife need not
observe Iddat.
If muta terminated after consummation then wife has to undergo only 2 months of
Iddat.
Marriage dissolves due to the death of the husband, wife has to maintain 4 months
10 days as Iddat. When the wife is pregnant iddat Exceeds till delivery.
7. There is no divorce in a muta marriage. Marriage in this form dissolves;
By death of the husband
On completion of the period.
Husband leaves the wife before the period.
If the wife leaves the husband before the period she is entitled for deducted dower.
8. If period of muta is not known & cohabitation continues after the expiry of the
period till husband’s death it is termed to be muta for life. Children born are legal
& can inherit property.
Husband & wife cannot inherit property.

GUARDIANSHIP

Minority is a privilege/disability which every human being undergoes at one point

of time. Minors are those persons who have not attained certain age as fixed by
their personal laws or as by the statutory laws.
In order to protect the interest of a minor, any adult person is appointed or
designated as a care taker of that minor up to a certain age. These care takers of
minor are called as ‘GUARDIANS’.Both is personal law as well as general law,
guardians are appointed to take care of minors and his interest.
Muslim law recognizes 4 kinds of guardians:
natural or legal guardian or dejure guardian.
testamentary guardian
guardian appointed by the Court or statutory guardian.
defacto guardian.
Natural guardian is a person who has a legal right to control and supervise the
activities of a child.
Father is recognized as the first natural guardian of his child under all schools of
Muslim law.
In absence of father, others who can act as legal guardian is as follows;

Sunni law:
Father
Executor of father
Paternal grand father
Executor of Paternal grand father.

Shia law
Father
Paternal grand father

Imambandi v/s. Mutsaddi, (1918) 45 Cal 887, in this case it was held, The father
has the right to control the education, religion of minor children, their upbringing
and their movement. So long as the father is alive, he is the sole and supreme
guardian of his minor children.
Gohar Begum v Suggi, (1960) 1 SCR 597
In this case it was held, that In Muslim law the mother is not a natural guardian
even for her minor illegitimate children, but she is entitled to their custody.
Testamentary guardian is a person who is appointed as guardian of a minor under a
will .

SUNNI LAW:

Father in his absence, through his will can appoint paternal grandfather as a
testamentary guardian.
Testamentary guardian should be major and competent enough to act as guardian.
Competency
Age of Majority
Soundness of mind &
Must not be disqualified by law.
Testamentary guardian is called as “wali” or “amin” i.e., a trustee as per Muslim
law.

GUARDIANS APPOINTED BY THE COURT.

Also called as statutory guardian.

In the absence of natural guardian and testamentary guardian, the court has powers
to appoint a guardian in order to protect that minor’s interest.
Such guardians are called as Statutory Guardians.
These guardians are appointed as per the provisions of Guardians and Wards Act,
1890.
Statutory guardians are appointed for fulfilling two duties,
to take care of minor or
to take care of minor’s property or both.
District judge has power to appoint guardian. If there is conflict between
provisions of Muslim law and Wards Act, then Wards Act will prevail over the
Muslim law. District court appoints guardian on an application made by a persons

The following can be appointed as guardians.

Any person desirous of being or claiming to be the guardian of the minor or Any
relative or friend of the minor or the collector of the district where the minor
resides. On an application made, if the court thinks fit in the interest of the minor
may appoint any one of the applicant as guardian.The court may appoint guardian
for minor or for his property or both.
As per Section 17 (2) of the Guardians and Wards Act, 1890, courts shall consider
certain points in appointing guardian for a minor such as;
personal qualifications of a person: age, sex, religion, character, capacity to
maintain. his relation with the minor, the last wish of the deceased parents, if any
opinion of the minor (if minor has the capacity of rational reasoning)
Personal law to which minor belongs.
After considering all these points, court appoints a person as the uardian.

DEFACTO GUARDIAN

A person who assumes or takes custody of a child on his own is called as the
defacto guardian.
This person is neither a legal guardian nor a testamentary guardian.
This person takes responsibility under the circumstances prevailing at that moment
when the minor child has no one to take care of.
A de-facto guardian is a person who takes continuous interest in the welfare of the
minor’s person or in the management and administration of his property without
any authority of law.

Power of natural & testamentary Guardian,

Both guardians have the same powers . Contracting the minor Childs marriage.
Receiving of any presents & keeping for the minor. Sale of property (movable &
immovable) Movable rt to sale is vide Immovable is in exceptional cases,
Sale is valid only in certain cases .
1. when the property fetches double value.
2. Sale is advantageous .
3. Caring out the payment of legacies which cannot be paid without the sale.
4. Where there are debts of the testator .
5. Where there is immediate danger of the property of being lost or destroyed.
6. When the property is in the hands of the usurper & cannot be recovered.
7. For maintenance of the minor.
8. Power to grant lease.
9. Power to carry on business.
10. Where there are debts of the testator .
11. Where there is immediate danger of the property of being lost or destroyed.
12. When the property is in the hands of the usurper & cannot be recovered.
13. For maintenance of the minor.
14. Power to grant lease.
15. Power to carry on business.

Sec 29, powers limited in alienation of minor’sproperty.No rights to sell, mortgage,

gift exchange or other transfers. Right to Lease, mortgage, the property, for period
of 5yrs only subjected to renewal for every one year. In cases of emergencies it
can be done only wt the permission of court. Sec 33, restrictions on the power of
the guardian from time to time ,& at the time of appointments.

SHARIAT ACT 1937

Notwithstanding any custom or usage to the contrary, in all questions (save

questions relating to agricultural land) regarding intestate succession, special
property of females, including personal property inherited or obtained under
contract or gift or any other provision of Personal Law, marriage, dissolution of
marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,
guardianship, gifts, trusts and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of
decision in cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat).

Explanation of Section 2:
Section 2 of the Shariat Act provides that in a case where both the parties are
Muslims the rule for decision shall be Muslim Law, if the case involves any of the
following matters:
(1) Intestate succession (i.e. inheritance),
(2) Special property of the females,
(3) Marriage (including all incidents of marriage),
(4) Dissolution of marriage (including all kinds of divorce),
(5) Maintenance,
(6) Dower,
(7) Guardianship,
(8) Gift,
(9) Trust and trust properties, and
(10) Wakf.

a. It is therefore, clear that in respect of the above-mentioned matters, if both the

parties to a case are Muslims, the courts shall apply only the Muslim personal law
and nothing else. A custom or usage contrary to Muslim law cannot be applied
now.
It is significant to note that the words, “rule for decision shall be Muslim law” in
Section 2 of the Act, are mandatory, meaning thereby that the courts are not only
empowered but also bound to administer only Muslim personal law in the
situations mentioned therein.

b. In the cases involving adoption, wills and legacies, the courts have no authority
to apply Muslim law under Section 2 of the Act, because these subjects are not
included in the said section. But Section 3 of the Shariat Act provides that courts
may apply the rules of Muslim law in cases of adoption, will and legacies provided
a Muslim expressly declares that he wants to be governed by Muslim law also in
respect of these matters in addition to the aforesaid ten matters. On this point the
relevant provisions of

Section 3 of the Shariat Act, are given below:

3. Power to make a declaration.
(1) Any person who satisfies the prescribed authority—
(a) that he is a Muslim; and
(b) that he is competent to contract within the meaning of section 11 of the Indian
Contract Act, 1872 (9 of 1872); and
(c) that he is a resident of 4 the territories to which this Act extends, may by
declaration in the prescribed form and filed before the prescribed authority declare
that he desires to obtain the benefit of 5 the provisions of this section, and
thereafter the provisions of section 2 shall apply to the declarant and all his minor
children and their descendants as if in addition to the matters enumerated therein
adoption, wills and legacies were also specified.

2) Where the prescribed authority refuses to accept a declaration under sub- section
(1), the person desiring to make the same may appeal to such officer as the State
Government may, by general or special order, appoint in this behalf, and such
office may, if he is satisfied that the appellant is entitled to make the declaration,
order the prescribed authority to accept the same.

Explanation of Section 3:
(1) Any person who satisfies the prescribed authority:
(a) That he is a Muslim, and
(b) That he is competent to contract within the meaning of Section 11 of the Indian
Contract Act, 1872, and;
(c) That he is a resident of a territory to which this Act extends.

may by declaration in the prescribed form and filed before the prescribed authority
declare that he desires to obtain the benefit of the provisions of this section, and
thereafter the provisions of Section 2 shall apply to the declarant and all his minor
children and their descendants as if in addition to the matters enumerated therein,
adoption, wills and legacies were also specified.”

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

This desire must be expressed through a declaration to that effect. Procedure for
such a declaration has been laid down in Section 3(2) and Section 4 of this Act. It
may be noted that the effect of such a declaration is that not only the declarant but
also his children and all the descendants shall be governed by Muslim law in these
three additional subjects.
On the other hand, if there is no such declaration by a Muslim, the courts are not
bound to apply Muslim personal law on these matters and they may freely apply
customs and usages or the local enactments, if any.

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

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

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

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

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

But two points must be noted regarding the repeal of these provisions:

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

(2) The provisions which have been repealed were such provisions which
authorised the courts to apply customs or usages to the Muslims. At present,
therefore, all customs and usages, contrary to Muslim personal law, have been
abolished and cannot be applied on matters enumerated in the Shariat Act.
SEC 4 RULE MAKING POWER

(1) The State Government may make rules to carry into effect the purposes of this
Act.
(2) In particular and without prejudice to the generality of the foregoing powers,
such rules may provide for all or any of the following matters, namely:—
(a) for prescribing the authority before whom and the form in which declarations
under this Act shall be made;
(b) for prescribing the fees to be paid for the filing of declarations and for the
attendance at private residences of any person in the discharge of his duties under
this Act; and for prescribing the times at

which such fees shall be payable and the manner in which they shall be levied.
(3) Rules made under the provisions of this section shall be published, in the
Official Gazette and shall thereupon have effect as if enacted in this Act.
6 (4) Every rule made by the State Government under this Act shall be laid, as
soon as it is made, before the State Legislature.
5. Dissolution of marriage by Court in certain circumstances.—Rep. by the
Dissolution of Muslim Marriages Act, 1939 (8 of 1939), sec. 6 (17-3-1939).

DOWER

Before Advent of Islam ,Purchasing girl from guardian.Sale of girl by

guardian was prevalent Price of girl was given to the guardian.The money or
property given by husband to the guardian was compensation or price of the girl &
was called Mahr( Ball marriage).
Beena marriage, the husband directly approached the girl gave her some money &
started to stay with herAnother kind of marriage, the wife did not accompany the
husband. The money or property give by the husband to the wife was the gift for
marriage & was called ‘sadaq’, the wife was called sadeeqa (girl friend) .
Common feature of Beena & sadaq the husband has to pay something for marriage.
Mahr is the amount or property which the husband had to pay to the wife as a mark
of respect towards to her.
Definition of Mahr,
Abdur Rahim; Mahr or dower that sum of money which a Muslim women is
entitled to get from her husband on marriage as a token of respect towards herself
also called as ‘mahr’. dower or mahr is one of the essential religious requirement
of a muslim marriage.without dower, muslim marriage can’t be
performed.concept of dower was introduced by prophet during origin of islam.
Dower orMahr is a sum of money or other property which the wife is entitled to
receive from husband in con sideration of the marriage Mahr or Dower is that
financial gain which the wife is entitled to receive from her husband by virtue of
the marriage contract itself. Dower money is a debt payable to a wife and she is
within her legal right to even press for its payment.
The word “consideration” is not used in the sense in which the word, is used in the
Contract Act.
Under Islamic law dower is an obligation imposed upon the husband as a mark of
respect to the wife.
It is that money or property which a husband must pay to the wife to acknowledge
her dignity as his wife.
The dower is the fundamental feature of Dower may be specified or unspecified
but in either case, the law confers a mandatory right of Mahr or Dower on wife.
The Mahr (Dower) belongs to wife and she can deal with it in the manner she likes
it and neither her husband nor husband's relations nor even her relations can dictate
her in matter of using the Mahr money or property.
The Mahr fixed by Prophet of Islam for his favorite daughter Fatima(wife of Ali)
was 500 Dirham's. A dirham (derived from the Greek) is the name of Silver coin of
2.97 grams in weight. It wouldn’t be correct to give too much of importance upon
the monetary value of the Mahr amount. It is said that in the case of an extremely
poor man, the Prophet requested him to teach the Quran to his wife.

Object of dower is two-fold.

1. It provides financial support to the wife, in case of termination of marriage
by the husband.
2. It is a type of check on husband’s right in pronouncing talaq.

FIXATION OF DOWER

Criteria's for fixing amount as dower of Mahr are as follows:

1. personal qualifications of the wife
2. social position of the girl’s father
3. custom or tradition which prevails in the wife’s paternal family in respect of
the amount of dower.

KINDS OF DOWER,

Specified dower (mahr-i-musamma)

a) prompt dower
b) deferred dower
Unspecified dower or proper dower customary dower (mahr-i-misl)
the amount is already specified and fixed. It is usually fixed at the time of marriage
or it is also fixed after the marriage. Where the amount has been specified, the
husband will be compelled to pay the whole of it, howsoever excessive it may
be.Fixation of Dower may be orally or in writing (Mahr- Nama).

PROMPT DOWER
It is a kind of specified dower.Dower which the wife can demand any time during
her marriage is called prompt dower.As soon as prompt dower is demanded by the
wife, it is the duty of the husband to pay it immediately.Wife may refuse
consummation of marriage, until the dower demanded by her is paid by the
husband.

DEFERED DOWER

Deferred means delayed.Dower which is payable on the dissolution of the marriage

or on happening of a specified event agreed is called as deferred dower. In case of
death of wife, the legal heirs can claim the deferred dower.

UNSPECIFIED DOWER
Unspecified during marriage.
Proper amount of dower is fixed by the court in case if the parties have not
specified it negligently or intentionally.
In Hamida Bibi V/S Zubaida Bibi(1916, 43, IA 294) ,
Mahr is essential & Integral part of the marriage.What is unspecified at the time of
marriage, the law declares that it must be adjudged on definite principles.
In Marina Jatoi V/S Nuruddin jatoi (1967, SC PLD 580)
Marriage b/w a Muslim & Christian wife in Pakistan, through reg marriage.SC of
Pakistan held that, though it is valid marriage & competent Talaq . Wife is
enatitled to get proper dower if it was not specified at the time of
marriage.Obligation of the husband to pay d.ower No proper amount which may be
regarded as proper dower, it could vary.
Following are to be taken into consideration at the time of fixing dower.
1.Quqlificqtion
2.Social position of wife's father
3. Customs or traditions prevalent.
In Shias, proper dower does not exceeds 500 dirham's (dower of Fatima daughter
of Prophet(PBUH).

VARIATIONS IN FIXING DOWER

Depending upon the status of marriage, the amount of dower keeps varying.
Valid marriage:
(if marriage is consummated)– full dower amount wife is entitled to get.
(if marriage is not consummated) – half of the specified amount.
(if marriage gets dissolved on option of puberty, before consummation) – no dower
is given.
Irregular marriage:
1. (if marriage is not consummated) – no dower.
2. (if marriage is consummated) –specified amount of dower.

REMISSION OF DOWER

Right to dower is the personal right of a wife.wife has a liberty to claim or not
claim her dower from her husband.Wife also has a right to relinquish or remit her
right to dower in favour of her husband. Remittance can be for full amount or for a
part of the amount.

RIGHT TO DOWER WHEN LOST

The right to dower of wife is lost in case of certain events:

If the wife renounces Islam or
If she commits suicide or
If she commits adultery or
If she commits murder of her husband.

ENFORCEMENT OF RIGHT OF DOWER

Right to dower is an inherent right of the wife. She can enforce this right through
various means like;
Refusal of conjugal rights (no consummation and dower is prompt)
Claim it as debt (consummation)
Widow’s right of retention (when husband dies without paying dower).

LIMITATION OF SUIT FOR DOWER

Marriage subsists – claim could be made within 3 years from the date on which
dower was demanded.
Marriage dissolves on divorce or on death of the husband – claim could be made
within 3 years from the date of death or dissolution.
If wife dies before claiming dower – claim can be filed by her legal heirs as per
limitation Act, 1963.
Therefore, dower is a personal right, exclusive right and inherent right of every
Muslim wife. And it is the fundamental of every Muslim marriage.

WIDOWS RIGHT OF RETENTION OF PROPERTY

After the death of the husband most effective method of enforcement is the ‘right
of retention’.
A widow whose dower is unpaid could retain the property of the husband till the
dower is paid .
The right of retention in lieu of unpaid dower & it is available to the widow,
whether there is any agreement b/w the party or not.

Characteristics;
Possession of husband’s property.
Only possessory right.
Payment of dower from the income of the property.
Property non-transferable.
Once procession is lost property is lost forever.
Heratibly the right of retention.

UNIT II

PARENTAGE & LEGITIMACY

Parentage and legitimacy are two important factors which are co-related to a child
born out of wedlock. These factors help in establishing an identity with regard to
that child.
Parentage is the legal relation between a child and his/her parents.

Parents

Father& mother Parentage involves certain rights and obligations in respect of

maintenance, guardianship and inheritance.

METERNITY
It is the legal relation between a child and his or her mother. Maternity is a matter
of fact which is established in a woman the moment she gives birth to that child.
No better evidence is required than this fact truth .Giving birth to a child is
important proof to establish that the woman is the mother of that child. After
establishing maternity, the child enjoys certain benefits under SUNNI law,
Like, inherit property of the mother whether child is from lawful marriage or
unlawful one (valid/ void).
Shia law: recognizes maternity of a child only if marriage is legal and he/she is
born out of legal wedlock.
Hence child born out of unlawful relationship can’t inherit property of mother.

PETERNITY

It is the legal relationship between a child and his/her father.Paternity of a child

can’t be established by fact, it is a legal presumption.Legal presumption means it
has to be proved that, child was conceived during the lawful union between that
man (father) and the woman (mother). That woman gave birth to that child. Then
paternity can be established . Child should have been conceived under existence of
a marriage (valid or irregular but not void).After establishing paternity of a child, it
is proved that child is legitimate.

ACKNOWLEDGEMENT OF PETERNITY ( IKRAR-E-NISAB)

If the paternity of child is in question, uncertain because of failure to establish
valid marriage at the time of conception or birth; then the man(husband) can
declare / acknowledge / accept that he is the father of that child.
If husband certifies his relationship with the wife as legal and valid and child is
conceived or born during legal marriage, then paternity is established.
Hence acknowledgement of paternity is done by the husband (father).
Doctrine of acknowledgement of paternity is limited ,illegitimate child cannot be
made legitimate by mere declaration.
Muhammad Allahadad v/s Muhammad Ismail (1880)10 ALL. 289 (FB)
Facts: Moti begum was married to Ghulam Ghaus.But the exact date of their
marriage with reference to their first child (Muhammad Allahadad…. Petitioner )
was not certain. Lateron Moti begum gave birth to four children including
Muhammad Ismail (respondent) and others.
After death of Ghulam Ghaus, the petitioner claimed his share through inheritance
(eldest son).
The respondent and other children argued that the petitioner was born before
marriage of Moti begum with Ghulam Ghaus. Therefore paternity with regard to
the petitioner is in question.
Respondent contended that , the petitioner was a step-son of his father and had no
right to inherit.
Held: full bench of Allahabad High Court held that there was no proof that
petitioner was a child born out of Zina.
Though no proof of marriage between Ghulam Ghaus was their but the fact that
both (Ghulam Ghaus and moti begum) lived as husband and wife for a very long
period and the fact that Ghulam Ghaus used to address petitioner as his son in
public and consider moti begum as his legally wedded wife… is enough to
establish valid marriage between Ghulam Ghaus and moti begum.
Further paternity of petitioner is established as son of Ghulam Ghaus .Therefore,
petitioner was considered to be the legitimate son of Ghulam Ghaus and he had
legal right to inherit property of Ghulam Ghaus (father). Paternity was established
on implied (conduct) acknowledgement.
Two ways of acknowledging:
a. By express declaration.
b. By implied action ( establishment of & confirmation of marriage by the
statement by the husband) .
CONDITIONS FOR VALID ACKNOWLEDGEMENT
1. The child acknowledged must not be born out of illegal intercourse (zina).
Relationship between a man and woman at that time must be legal / valid.
2. Paternity should be uncertain before acknowledgement.
3. Difference in age should be their between the child and the acknowledger.
4. Acknowledgement is not only acceptance as his son or daughter…
acknowledgement of that fact that the child is his legitimate son or daughter for all
purposes (maintenance, guardianship and inheritance) should be done.
5. Casual love and affection is not enough to confer legitimacy.
6. Acknowledged child has an option to repudiate the acknowledgement on
attaining the age of discretion or understanding.
 In case child cancels acknowledgement, then it can’t be considered as valid
acknowledgement.
Once acknowledgement of paternity is done by the father, it can’t be cancelled or
taken back.

LEGAL EFFECTS OF ACKNOWLEDGEMENT

The moment acknowledgement of paternity is done, a child enjoys certain rights;

1) Child becomes legal , legitimate child of the acknowledger.
2) Child is entitled to inherit properties of acknowledger, mother and other
relations.
3) Acknowledgement establishes a lawful marriage between the child’s mother
and acknowledger.
4) Even child’s mother (wife) can inherit property of her husband
(acknowledger).
Therefore, paternity establishes two important facts:
Marriage between a man (husband) and woman (wife) is legal and the relationship
is justified as valid. The child born out of this relationship is also
legitimate.whatever benefits/ rights legitimate people enjoy, same liberties will be
given to these people also (Woman and the child).

DIFFERENCE B/W ACKNOWLEDGEMENT & ADOPTION

These are very similar.

In adoption they is a gift of the child to the adoptive parents.
Acknowledgement is not possible if the parent of the child is known.
Adoption has no reference to the natural descent from the adopted child from the
adoptive father. Acknowledgement proceeds upon the theory of actual decent.

INDIAN DIVORCE ACT 1869

Sec 10 for dissolution of marriage,

Any marriage solemnized whether before or after the commencement of Indian
Divorce Act,
a. The husband or wife may on a petition present to district court dissolve the
marriage.
1. Committed adultery
2. Has ceased to be Christian by conversion to any other religion.
3. Incurable due to unsoundness of mind.
4. Suffering from incurable deceases.
 5. Suffering from leprosy.
6. Has not been heard of being alive for a period of 7yrs.
7. Has refused to consummate the marriage.
8. Has failed to comply with the restitution of conjugal rights.
9. Has deserted the petitioner for a period of 2 yrs.
10. Has treated the petitioner with cruelty as to cause a reasonable
apprehension.
b. Wife may also present a petition for dissolution of marriage on the
ground that the husband has since the solemnization of the marriage been
guilty of rape, sodomy.
Sec 10A dissolution of marriage by mutual consent, application may be filed
before the D C by both the parties together, on the ground that the parties were
staying separately for two years.
If the court is satisfied no the evidences that the petitioners case has not been
proved or is not satisfied that the adultery has been committed the court shall
dismiss the petetion u/sec 13 of the act.
u/sec 14 of the act the court looking into the evidences pass decree for dissolution
of the marriage.
u/sec 18 petition for nullity of marriage may be filed .Sec 19 grounds for nullity,
1. Respondent was an impotent at the time of the marriage.
2. The parties are within the prohibited decree of consanguinity or affinity.
3. Either party was lunatic at the time of marriage.
4. That the former husband or the wife was present at the time of marriage.
5. Petition for restitution of conjugal rights can be filed u/sec 32 of the act
before the D C by either the husband or the wife.

DIWORCE

Marriage or "Nikah" in Islamic law is a contract pure and simple. Nikah as per
Islam, is considered to be a religious duty (sunnat).
Though marriage in Islam is considered to be a contract, it is not so easily
dissolved.the parties to the contract(husband and wife) have to carry forward the
marriage with full love and dedication.
However, in unavoidable circumstances, where the union of husband and wife is
detrimental to each other’s life and property, then dissolution concept is present in
the holy Quran.

Dissolution of the marriage is breaking of the marital tie or bond between the
husband and the wife. dissolution of marriage is a type of exceptional rights given
to both husband and wife in different situations. The moment a nikah gets
dissolved, the relationship of husband and wife comes to an end.

There are two ways in which a Muslim marriage can be dissolved. They are as
follows;
1) By the act of god (vis-major)
2) By the act of the parties.
Act of god
Marriage gets dissolved by the god and not by the parties.when the husband or the
wife dies.
Death of either spouse ends the nikah immediately.
Act of parties
Marriage gets dissolved by the act of the parties.When the husband pronounces
talaq, ila or zihar
Or when wife exercises her khula option.Here the marriage doesn’t dissolve
immediately. Certain formalities have to be completed to end the marriage.

Dissolution of marriage

By act of god or death of husband or wife by act of parties extra-judicial divorce.

1. by husband
talaq
ila
zihar
2. by wife (delegated)
khula
mubarat.
3. judicial divorce (by wife)
4. by mutual agreement

HUSBANDS RIGHT TO DISSOLVE MARRIAGE

Dissolution of marriage can be by the husband. The moment husband exercises his
right of DIVORCE, he brings to an end his marital relationship with his wife.
Husband can use 3 ways of dissolution-
TALAQ or
ILA or
ZIHAR.

TALAQ :

Talaq is an Arabic word and its literal meaning is ‘to release’. Talaq means
repudiation of marriage by he husband. Muslim husband has an unrestricted right
to divorce his wife by pronouncing talaq.
Husband has been given the absolute authority to terminate the marriage by
uttering the words Talaq.
This absolute authority cannot be misused by the husband.
1. Capacity of the husband pronouncing talaq - which also covers capacity of
the wife.
2. Free consent – husband has to voluntarily give talaq.
3. Formalities – talaq may be in oral or writing (talaqnama).
4. No witnesses required (Sunni law). Shia law 2 male witness is necessary.
5. Shia law stresses on the use of the word talaq.
6. Presence of wife is not mandatory for pronouncing talaq. No notice is
required to be given to the wife with regard to talaq.
Based on the mode of pronouncement and effect,
There are two kinds of talaq:
1. talaq-ul-sunnat or revocable talaq
2. talaq-ul-bidaat or irrevocable talaq.
TALAQ –UL-SUNNA (revocable talaq)
1. Talaq ahasan
2. Talaq hasan
TALAQ –UL-BIDDA
TALAQ –UL-SUNNA (revocable talaq OR TALAQ –UL- RAJE)
Based on prophet’s tradition.. (Sunna).This is the most approved form of talaq.
Talaq was the most objected by the Prophet.If at all marriage has to come to an
end, Prophet suggested dissolution by this method.In this type, talaq does not
become final at once. This type is recognized by both Sunnis and Shias.
TWO TYPES OF TALAQ –UL-SUNNA
a) Talaq ahsan (most proper)
b) Talaq hasan (proper).
TALAQ AHASN
Most proper form of repudiationTalaq can be revoked before completion of iddat
period.Talaq word is pronounced only once during the time of wife’s purity
(tuhr).Iddat for three months –revocation of talaq can be done within this three
months duration.
TALAQ HASAN
Approved form. Here also chance of revocation of talaq is present before
completion of third utterance . Husband has to pronounce the word talaq in
three sittings-
✓ one in the first month of ‘tuhr’.
✓ second pronouncement in the second month of ‘tuhr’.
✓ third pronouncement in the third month of ‘tuhr’.

Final third pronouncement, talaq becomes final and binding.

In Gulam Mohyuddin V/S Khaizer( AIR 1929 Lah 6)

Husband wrote talaknamma in which it was said that he has pronounced talaq on
15th of Sep & 3rd Talaq would be completed on the 15th Nov. He had
communicated to his wife on the 15th of Sep. The Lahore HC held that this was
Talaq Hasan . Court further stated that the Talaqnamma was merely a record of 1 st
pronouncement & Talaq was revocable. The court also stated that for effective &
final Talaq the three pronouncement must actually be made in three ‘Tuhrs’. Only
mention of third declaration was not sufficient.

TALAQ-UL-BIDDAT OR BAIN :

It is the most disapproved form of Talaq .Peculiar feature of this Talaq is that it
comes into effect as soon as it is pronounced & there is no chances of re-
conciliation b/w the parties.Prophet never approved this. This was again introduced
by the Omayad Kings
Sunni Muslims still practice this .Shia school of law, irrevocable Talaq was
not recognized.
In Mariam V/S Shamsi Alam(AIR 1979 ALL 257)
Wife left to parents house, as health was neglected by her husband .When husband
came to take her back she refused to go ,In anger the husband uttered Talaq three
times in one breath. Later realizing his mistake he revoked the Talaq during Iddat
period .HC of ALL, held that, though talaq was uttered thrice it was pronounced in
one breath it is to be interpreted as one single pronouncement & it could be
considered as Talaq Ahsan. Marriage hence is not dissolved.
In Rehmatullah V/S State of UP ( 1994 ALL (1) 530)
HC of Allahabad has observed that an irrevocable Talaq is unlawful because this
kind of Talaq is against the dictates of the holy Quran & against the provisions of
the Indian Constitution ( fundamental Rts) .
DIVORCE BY WIFE:

Divorce by wife is possible only in cases of ;

1. Where the husband delegates to the wife the right of talaq (Talaq-e-Tafweez)
2. Where she is a party to divorce by mutual consent(Kula & Mubarath)
3. Where she wants to dissolve the marriage under the Dissolution of Muslim
Marriage Act 1939.
TALAQ –E-TAFWEEZ :
Divorce by such other person acting as husbands agent is Talaq-e-Tafweez . or
delegated Talaq.
Talaq pronounced by other person is effective as if it were made by the husband
himself & the marriage dissolves.
Husband may delegate his right of divorce to his own wife & authorize her to
pronounce Talaq.
In Magila Bibi V/S Noor Hassain (AIR 1992 Cal 92)
Calcutta HC decision, here the wife was given authority to utter talaq when ever
she wants on a written & signed agreement by both. On finding husband was not a
medico as stated to her before marriage wife uttered Talaq, It was valid Talaq since
delegation of authority was done by husband .No compulsion to utter Talaq in
Talaq-e-Tafweez.
DIFFERENCE B/W TALAQ-E-TAFWEEZ & CONDITIONAL TALAQ.
Conditional Talaq is a Talaq by husband based on the happening of future event .
Talaq-e- Tafweez is a Talaq by the wife provided she is authorized to do so.
Mere happening of the event is sufficient the husband need not pronounce Talaq.
TALAQ Tafweez mere happening of the event is not sufficient to dissolve the
marriage . The marriage dissolves only if wife exercises her right after happening
of the event.
conditional or contingent talaq is not recognized by the shias but only by the
Sunnies .Thalq –e-Tafweez is recognized under the bothe schools of law.
Apart from the different kinds of thlaq there are 2 more kinds of talaqs:
Ila AND Zihar

ILA : Ila according to the sunnie law & Shia Law

SUNNIE LAW
Here the conduct of the husband is of such that he intends to dissolve the
marriage.Here the husband does not cohabits with the wife and followed for a
period of 4 yrs continuously.After this duration the marriage dissolves
automaticlly.

SHIA LAW
According to this school of law ,under one of its sub-sect i.e. Itna Ashara .Ila does
not operate as divorce on the wife till she gets the decree of court .Wife can appear
the court by a suit for restitution of conjugal rights after expiry of 4th month against
husband and can seek divorce.If she does not obtain decree of court marriage does
not dissolve.

ZIHAR: Zihar according to the Sunnie & the Shia law

SUNNIE SCHOOL OF LAW

This is a constructive divorce .Here the husband compares his wife with a women
,of the prohibited relationship e.g. Mother and siUpon this objection the husband
would stay away from cohabitation with wife till expiry of 4 months .Upon the
expiry of 4th month ‘Zihar’ is complete.
The wife has 2 rights after expiry of 4 months i.e.
1 ‘ly she may go to the court for judicial divorce. 2nd ‘ly she may go to the court
st

for ascertaining an order of restution of conjugal rights. When the husband wants
to revoke zihar , he can do so by resuming cohabitation within the said period . In
such circumstances the wife cannot seek judicial divorce .Cohabitation is a sin here
under such circumstances wife can ask the husband to perform penance(penalty)
i.e.By feeding 60 poor. Observance of fast for 2 months .Release of a slave.
SHIA LAW
According to shia law the declaration of zihar must be before 2 witnesses .
The practise of Illa & Zihar are outdated today.

DIVORCE BY MUTUAL CONSENT

1. Khula
2. Mubarath
KHULA : It is a divorce by the common consent but the wife has to make payment
of some consideration to husband because she takes the initiative for dissolving the
marriage.
ESSENTIALS OF KULA;
1 Competency of parties.
Soundness of mind of parties.
Age of majority (puberty) 15yrs,
 Minor or insane husband or wife cannot lawfully effect Kula nor the
guardians.
2 Free consent.
Offer & acceptance of Khula must be made with free consent of parties.
Kula in Hanifis under compulsion & in the state of intoxication is also valid.
Shia law & all other sub sects, Kula without free consent is only void.
3. Formalities .
Offer from the side of wife to husband to release her from the marriage.
Offer to should be accepted by the husband.
Till the husband accepts it is not complete & the wife can revoke the Kula
before his acceptance .Once accepted the Kula cannot be revoked. Offer &
acceptance may be oral or in writing & must be made in one sitting at one
place.
Under Sunni law the presence of witnesses is not essential , but in Shias the
Kula must be made in front of two competent witnesses.

4. Competency .
For the release of herself wife has to pay consideration, any some of money
or property may be settled as consideration which cannot be increased.
Generally the wife relinquishes claim of her Dower for her release in Kula.
In case of nonpayment of sum to the husband by wife, the husband can file a
suit for recovery of that amount as consideration .

LEGAL EFFECTS OF KULA:

Same as that of divorce the wife is entitled to maintain Iddath period, she
is also entitled to be maintained by her husband after compleating kula or
mubarath.
Marriage dissolves & the parties become strangers to one another.
Cohabitation b/w the parties is said to be unlawful.
If dower is not given to the wife then dower is to be given to the wife.

MUBARATH: divorce by mutual consent of husband & wife both the

parties are equally desirous to dissolve the marriage, the offer may come
from the side of either husband or the wife.

Essentials of Mubarath:
1. Willingness of both the parties to get rid of each other
2. It has the same essence as that of sec 24 of Special Marriage Act 1925 &
sec 13-B of the Hindu marriage Act 1955 (as per the amendment in
1976).
 3. As in Kula the parties must be competent also the same is applicable in
mubarath, consent of the parties must be free in case of mubarath.

IDDAT

Iddat means ‘counting’, which means counting the possible days of

conception to ascertain whether a women is pregnant or not.
During this period the Muslim widow or divorced wife is to live a pure &
simple life.
Object of iddat is to ascertain the paternity of possible conception by former
husband.
Marriage with a women who is observing Iddat is irregular under Sunni law
. Under Shia law the marriage contracted with women observing Iddat is
void .
Different periods of iddat,
1. Dissolution of marriage by divorce.
2. Dissolution of Marriage by death of husband.
3. Death of husband during divorce –Iddat.
4.Commencmentof Iddat.
1. Dissolution of marriage by divorce:
a. When valid marriage has taken place, the duration of Iddat is three
monthly courses, divorce may take place by any mode.
b. If marriage has not got consummated the wife need not observe Iddat.
c. If the wife is pregnant during divorce then duration of Iddat will extend
till the Childs birth or abortion.
2. Dissolution of Marriage by death of husband:
a. Where a valid marriage dissolves by the death of the husband duration of
Iddat is 4 months & 10days. If she is pregnant at the time of husbands death,
till she delivers child or abortion, which ever is longer.
b. After the death of the husband, Iddat for 4mths 10days must be observed
even if marriage is not consummated .

3.Death of husband during divorce –Iddat:

if the divorced women is observing Iddat of 3 months & her former dies
before completion of 3mths she has to start a fresh Iddat of 4months &
10days from the date of her husbands death.
 Where husband has divorced his wife & has died before the completion of
Iddat the divorced wife who is already observing divorce-Iddat is required to
undergo fresh Iddat.
Of 4mths & 10days from the date of husbands death.

4. Commencement of Iddat: The period of Iddat begins from the date of divorce or
death of the husband & not from the date from which the wife gets the information.
If she gets information after specified time she need not observe iddat (after
completion of 3mths) .

SHIA LAW:
1. Generally accepted tradition among the shias is that Iddat need not be
observed by a women who has passed the age of child bearing or has not
attained puberty or if her menstruation is irregular or absent.

2. Under Shia law marriage with the women observing Iddat is void.
Husband prohibited from remarrying during Iddat:
Husband need not wait he is free to remarry immediately after divorce. In
exceptional cases the husband is also prohibited from marrying during the
wife's Iddat The husband cannot marry in case one of his four wives is
observing Iddat , here he has to wait till she completes the period of Iddat.

Remarriage b/w divorced couples :

After dissolution of marriage both the parties are free to marry any body .
There is restriction in re-marrying the same person . If they have to remarry
the same people whom they divorced there is a very strict rule to be
fulfilled.After the divorce the wife has to observe Iddat .After completion of
Iddat she has have a valid marriage with another person, thereafter that other
person has to divorce her voluntarily . After this divorce the wife should
observe Iddat again after Iddat she is entitled to re-marry her former husband
. However if this condition is not fulfilled the re-marriage of the divorced
couple is merely irregular it is not void.

INDIAN DIVORCE ACT

Sec 10 for dissolution of marriage,

 Any marriage solemnized whether before or after the commencement of
Indian Divorce Act,
a. The husband or wife may on a petition present to district court dissolve
the marriage.
1. Committed adultery
2. Has ceased to be Christian by conversion to any other religion.
3. Incurable due to unsoundness of mind.
4. Suffering from incurable deceases.
5. Suffering from leprosy.
6. Has not been heard of being alive for a period of 7yrs.
7. Has refused to consummate the marriage.
8. Has failed to comply with the restitution of conjugal rights.
9. Has deserted the petitioner for a period of 2 yrs.
10. Has treated the petitioner with cruelty as to cause a reasonable
apprehension.
11. Wife may also present a petition for dissolution of marriage on the
ground that the husband has since the solemnization of the marriage been
guilty of rape, sodomy.

Sec 10A dissolution of marriage by mutual consent, application may be filed

before the D C by both the parties together, on the ground that the parties were
staying separately for two years.
If the court is satisfied no the evidences that the petitioners case has not been
proved or is not satisfied that the adultery has been committed the court shall
dismiss the petetion u/sec 13 of the act.
u/sec 14 of the act the court looking into the evidences pass decree for dissolution
of the marriage.u/sec 18 petition for nullity of marriage may be filed .Sec 19
grounds for nullity,
1. Respondent was an impotent at the time of the marriage.
2. The parties are within the prohibited decree of consanguinity or affinity.
3. Either party was lunatic at the time of marriage.
4. That the former husband or the wife was present at the time of marriage. Petition
for restitution of conjugal rights can be filed u/sec 32 of the act before the D C by
either the husband or the wife.

MAINTAINANCE
Maintenance means providing of basic necessities & essential requirements for
living. After the advent of Islam prophet (PBUH) declared that the birth of the
child imposes an obligation on the father to maintain his children so long as they
are unable to maintain themselves. Maintenance of age old & infirm parents is also
made obligatory in Islam.

As regards to duty to maintain two significant principles of maintenance in Islam

are to be taken into consideration.

1. Only those persons other than wife are to be maintained by others who are
bound to depend on others either of infirmity or due to no means to support
themselves. a person is entitled to be maintained only in extreme situations
where there is no alternative except begging & depending on alms .
2. Secondly the obligation to maintain & to bear the burden of boarding &
lodging. Etc of others this has reasonable restrictions in Islam the Islamic
principle is that a person should not be allowed to suffer any monetary loss
in maintaining loss in maintaining others.

The Muslim Law of maintenance which is enforceable in india is is based on

the muslim personal law laid down by the courts & the law incorporated in the
enactments .like , the Indian Mejority Act 1875, CrPc 1973, Muslim Womens
Act 1986.

People entitled to be maintained under the Muslim Law are based on two
aspects ie on marriage , & blood relationship .

The wife after marriage has an absolute right over her husband for maintenance,
whether she is necessitous or not.

People entitled to be maintained under the muslim law are :

1. Wife
2. Young children
3. Necessitous parents
4. Other necessitous relations.
 MAINTAINANCE OF WIFE

Under the Muslim law the right of maintenance of wife is absolute. It is the
legal obligation of every husband to maintain his wife & this right arises out
of her status. Muslim wives maintenance is preferred over all other persons.
The maintenance of Muslim wife is regulated by the Muslim law as well as
the statutory provision of Crpc.

Condition of wifes right to maintenance,

It is implied in the contract of marriage that every husband is obligated to
maintain his wife thought his life.

The wife is subjected to certain conditions for maintenance .

1. Wife is entitled to be maintained only in case of a valid marriage.

Muta marriage is also a valid marriage acc to Shias , but a muta wife cannot claim
maintainance under the personal law but can claim maintainance only under the
CrPc.

2. The husband is entitled to maintain his wife only if she has attained
puberty else no.
3. Muslim wife is obligated to be maintained only if she is faithful &
obliging, sec 124 (4) of CrPc provides if the wife is living under
adultery she is not entitled for maintainance.
4. If wifes conduct is justifiable in the eyes of law the husband is bound
to maintain her even if he is not able to exercise his marital rights over
his wife.

Maintainance of wife under CrPc 1973;

The claim of the wife for maintainance under this act is an independent statutory
right & is not effected by her personal law .

A Muslim wife whose husband has married second wife is entitled to live
separately & claim maintenance under CrPc.

In Begum Subanu alias Saiara Banu V/S A.M Abdul Gaffur (AIR 1987 SC 1103)
The SC held that irrespective of Muslim husband’s right to contract a second
marriage, his first wife would be able to claim maintenance. In this case the
husband married for the second time aggrieved by this the first wife left the house
& lived separately & claimed maintenance u/sec 125 Crpc. The court observed that
the explanation has to be construed from the point of view of the injury to
matrimonial rights of the wife & not with respect the husbands right to marry
again.

The interrelationship b/w personal law & Crpc, it submitted that the legal remedy
available to a wife under sec125 Crpc, it only provide, for the time being, a quick
& immediate relief to the needy & aggrieved wife without going into the question
of her entitlement under her personal law. The civil court need to be guided by the
provisions of Crpc.

Enforcement of wifes right of maintenance;

A Muslim wife whose husband neglects her without any justification is entitled to
file a suit for maintenance in the civil court under the personal law she is also
entitled to enforce her right under CrpC.

MAINTAINANCE OF DIVORCED WOMEN

This can be studied under three headings,

1. Muslim personal law.

2. Sec 125 Crpc
3. Muslim women protection of rights on divorce act 1986.

MUSLIM PERSONAL LAW

The holy Quran provides for the maintenance of divorced women, the divorced
wife is entitled for maintenance from her husband during the period of iddat , the
husband if pronounce talaq in absence of wife she is entitled for maintenance from
the date on which she came to know about her divorce.

In Mohammed Ali V/S faridunnissa Begum (AIR 1970 AP 298)

In this case the marriage was contracted in 1950, & son was born to the couple.
But thereafter the husband neglected the wife & refused to maintain her. The wife
was informed by written notice that she had been divorced by her husband on the
night of the marriage. The 1st notice was served on 12.5.1960. The husbands plea
was that he divorced his wife on the first day of marriage & that e was no
obligation to maintain her.

It was held that when the Talaq was pronounced through notice the wife is entitled
to observe iddat from the date on which the notice is served on her. The wife was
not entitled to maintain iddat under Muslim law a divorced wife cannot claim for
past maintenance unless the claim is for the arrears of maintenance under any
specific agreement.

Muslim law does not prescribe any maximum or minimum amount to be given
during Idaat of the divorce of the wife. The court can fix maintenance taking into
consideration the socio-eco status of the wife. The maintainance of the divorced
wife is now governed by the Muslim Women (Protection of Rights on Divorce).

MAINTAINANCE OF DIVORCED MUSLIM WOMEN UNDER CRIMINAL

PROCEDURE CODE.

Under the sec 125 of Crpc all divorced women this also includes Muslim divorced
women & those Muslim women who have taken decree for dissolution of
marriage. The husbands liability to maintain his divorced wife terminates after the
iddat period even if she remains unmarried according to the personal law. But
under the Crpc the divorced wife is entitled to be maintained under following
circumstances,

1. Where the divorced women has remarried.

2. Where such women has received the whole sum due to her on divorce under
any customary or personal law. &
3. Where the women after the divorce from her husband has voluntary
surrendered her right to maintenance.
Under sec 127(3)(b) Crpc , a divorced Muslim wife is not entitled for
maintenance if she has obtained her dower & maintenance during her Iddat.
In Bai Tahera V/ Ali Hussain (AIR (1979) SC 362) , in this case the SC held that
the divorced wife is entitled to maintenance even if she has already received the
whole amount due to her under the personal law .

The brief facts of the case are, Ali Hussain & Bai Tahera married in the year 1956
& son was born to them. In the year 1962 Ali Hussain divorced Bai Tahera &
transferred a flat in her name as in liue of dower & maintenance during Iddat . Bai
Tahera remained unmarried later she found herself in financial difficulty & filed a
suit for maintenance u/sec 125 Crpc . The magistrate ordered monthly maintenance
allowances. this was been opposed by the husband on the grounds that she has
already received maintenance during Iddath as wholesome due to her under
personal law in the form of house , & that she was not allowed to get any
maintenance allowance under Crpc . The Bombay HC decided in favour of the
husband. Bai Tahera then made an appeal before the SC, the SC restored the
judgement of the magistrate & revised the Judgement of the HC of Bombay.

In Mohammed Ahmed Khan V/S Shah Banu Begum (AIR 1985 SC 945)

In this case the SC reiterated its stand & held that a divorced Muslim wife so long
as she is not married she is a wife under sec 125 Crpc & is entitled to maintenance
from her former husband quoting ayath no 241 & 242 of the holy Quran & further
the SC observed that sec 125 is not unislamic .

MAINTAINANCE UNDER MUSLIM WOMEN ACT 1986

This statute is the outcome of the Shah Banus Case . This act is applicable to every
Muslim married women under the personal law & has been divorced under the
personal law .

The provisions of this act are ;

1. Maintenance during Iddat period , the divorced women is entitled for

maintenance of a reasonable amount during the period of Iddat , also she is
entitled to claim maintenance for her minor child born out of their valid
marriage from her divorced husband till the child attains the age of 2.
2. Maintainance after the period of Iddat ; the divorced women who is
unmarried is entitled for maintenance provided she is unable to maintain
herself from her relatives who would inherit her property upon her death . In
 absence of such relatives or where they have no sufficient means then
ultimately the state wakf board is entitled to maintain such divorced women.
Sec 4(1) of this act provides that where the Magistrate is satisfied that the
divorced women has not remarried & is not able to maintain herself after the
period of Iddat he may make the order directing such of her relatives who
are enable to inherit the property of the women , to pay reasonable amount to
her.
Where the children are capable then the magistrate may pass order directing
the children to pay the maintenance.
U/sec 4(2) the magistrate may order the wakf board to pay maintenance in
absence of relatives & children to the divorced women.
3. Dower & other exclusive properties of wife : the wife is entitled to get her
unpaid dower & she is also entitled to all her properties which are given
before & after the marriage.

MAINTAINANCE OF WODOW
The wifes right to claim for maintenance ceases immediately soon after the
death of the husband, she is also not entitled even during the period of Iddat .
in Aga Mohammed Jaffer V/S Koolsoom Bibi, the Privy Council observed
that under the personal law a widow is not entitled to get maintainance out
of the property of her deceased husband even during the period of Iddat.

MAINTAINANCE OF CHILDREN
Father is the legal guardian of the child, hence it is the father who is entitled
for maintainance of his children, male or female. Father is obligated to
maintain his son till he attains puberty . u/Crpc , the son is entitled to claim
mintainance till 18yrs of age . but father is not obligated t maintain his adult
son unless he is infirm or is disabled & is unable to maintain himself .
Daughter is enttled to be maintained by the father till she gets married . but
an unmarried daughter who does not live with her father is not entitled to be
maintained by her father & she has no right to claim maintainance unless the
circumstances justify her separate living . the father is entitled to maintain
his divorced daughter if she is unable to maintain herself . The liability of
the father to maintain his children is not effected by the fact the child is in
 custody of the father or the mother or any other person because the father is
the legal guardian of his children .
However if the father is unable to maintain the children then the mother is
liable to maintain them. Where the mother too is unable to maintain them
then the burden is over the Grand Father for maintaining the children .

UNIT III

Essentialities of wills or wasiyath.

competency.
Free consent.
Formalities.
Property must be bequeathable property.
Legator must pocess testamentary rights.
COMPETENCY;
Age of majority.
Soundness of mind.
Suicide.

FORMALITIES;
No proper formalities.
Manifestation of intention of the testator .
Oral or in writing, if it contains the essential elements of will it is sufficient for it to
operate as will.
Name not necessary, also it is not necessary that it should be registered.
Any document where it is clearly mentioned that the creator of the document
provides manner of devolution of property after his death it is sufficient.
ORAL WILL,
Clear indication of the testator, proper proof must be provided to the court to
prove
Regarding testamentary effect of the testator & must be convinced beyond
reasonable doubt.
Under Muslim law it is not necessary for a will to be orally spoken ,will could be
made by mere gestures & signs is considered as valid provided it clearly indicates
the intention of the testator.
IT MUST BE BEQEATHABLE PROPERTY;
Any property, movable immovable, corporal or incorporeal properties could be
subject matter of will. Testator may bequest the property subject to two conditions;
1. The property is owned by the testator at the time of his death.
2. The property must be in procession of the testator at the time of his death.
3. The will of usufruct is valid in Islam here the beneficiary will not have any
right over the corpus.
4. In Muslim law the legatee has only right over the usufruct of the property . It
is also known as will of life-interest.

TESTEMENTARY RIGHT;
Bequeathable one-third ,
1. Quantity(1/3) of the property bequeathed.
2. To whom the property is given.
One third of his total assets.
PROPERTY TO WHOM IT IS GIVEN,
1. Bequest to a stranger.
2. Bequest to the legal heir.
a. STRANGERS
1/3 of the property could be given , if more than this consent of the heirs has
to be taken for exceeding the fraction .
If no heirs are there of the testator any amount of property can be given to
the stranger.
If no will is written where a person has died intestate to his property & no
heirs are living
The govt can take over the property by way of escheat.
If wife only surviving the heirs, testator is entitled to bequest 5/6 to the
stranger.
A Muslim testator is a woman she can give only 1/3 of her property by way
of will to the strangers.

2. LEGAL HEIRS;
When legatee is one of the heirs of the testator the consent of remaining
legal heirs is necessary irrespective of the quantum of the property .Bequest
to the heirs is always subjected to approval of other heirs.
Reasons; legatee will be double benefited.
In Ranee Khajooroonissa V/S Mst Rowshan Jehan( 1876 31 IA 291)
Sunni Muslim, Raja Deedar Husain executed a will in favor of his eldest son
Inayat Husain & authorized him to spend some a portion of that property by
way of pilgrimage or charity, as he may think proper .
 Will further authorized Inayath Husain to retain the remaining property for
his exclusive use. It was observed by the Privy Council that though this will
has attempted to give his properties to one of his legal heirs to the total
exclusion of other heirs. It could not be proved before their Lordship that
any of the remaining heirs had ever given their consent. PC held that as there
was no consent of other heirs of the testator, the will in favor of Inayat
Husain ,Was void.

ABATEMENT OF LEGACIES
When a will is made to the stranger in excess of 1/3 the consent of testator is
necessary.
If there is only one legatee who has to get more than 1/3 & if the testators heirs do
not give their consent then &, the legatee would get only 1/3 of the property even
though .
Where there are several legatees & the sum total of the properties bequeathed to
each of them exceeds the legal sum then the share of each legatee is determined by
the rule of rule of Sunnie law & Shia law.
SUNNIE LAW;
Rateable Distribution; u/Sunnie law the legacy abates reteably means
proportionately i.e. Property given to each legatee is reduced in proportion of the
share allotted to him in such a manner that the aggregate of the property given does
not exceed equitable 1/3.Deduction is not made form one or two legatee but from
share of each legatee .Eg. X, a Sunni Muslim makes a will of half of his properties
to Y who is non heir. The heirs of X Refuses to give their consent , Y would get
only 1/3rd . Preferential Distribution, u/shia law; the principle of reteable
distribution is not recognized u/shia law. According to this school if the sum total
of the shares given to different legatees exceeds 1/3 & the testators heirs refuses to
confirm then their legacies takes effect in order of preference. The share of each
legatee is not reduced & remains intact. The legatee mentioned first in the will get
the share as mentioned in the will. After giving his share the remaining goes to the
second legatee, if still it remains it goes to the Third legatee & so on . As soon as
1/3 is exhausted the distribution stops & the next legatee does not get anything, this
is called as the Shia rule of preferential distribution. Exceptional rule, if two
legatees are given 1/3 each in the will as per preferential rule of Shias the shares
would be given from the last not first.
CONDITIONAL & CONTIGENT WILLS

CONDITIONALWILLS,
Will made subject to some conditions are called conditional wills.
Where testator makes any will & provides that the legatees interest would depend
upon the fulfillment of certain condition then will becomes enforceable as if no
condition was attached to it. The condition so attached to it need no be fulfilled.
Eg. Condition of sale of property made in the will by the testator to the legatee,
here the will becomes valid & is enforceable the legatee gets unconditional interest
in the property. He is not bound by the condition.
Bequest for life;
According to Sunni law, where a Sunni testator makes a will in which he gives life
interest to a legatee gets absolute interest in respect of the property bequested to
him.
Under Shia law, the will as such & also the condition in it both are valid.
CONTINGENT WILLS;
Vesting of interest in a legatee depends upon some uncertain future event, the will
is void & does not operate. The legatee will not get any property even if the
contingency occurs.
Alternative wills are valid.
REVOCATION OF WILLS
Will can be revoked during the life time of the testator . Testator has the right to
repudiate the ill.
Revocation may be of whole or part of the will.

TWO TYPES OF REVOCATION :

Expressed & Implied revocation .

Expressed revocation ;
By making a statement of rescinding(cancellation).
Either oral or in writing.
Testator may revoke a will expressly making statement to that effect before the
court of law. Such statement revokes the will even if it has not been destroyed.
Implied revocation;
Testator may not revoke the will expressly but his intention is to rescind the will it
is inferred from the conduct. When testator does something in respect of the
property bequested by him which is violative of his own rights as the owner of the
property, testers conduct is nothing but for revocation of will.

DEATH BED GIFT ( Donatio Mortis Causa)

Gift made by the Muslim during ‘death illness’(marz-ul-mouth) is regarded as

wills.
This is in form of a gift but its legal effect is that of gift.When a person makes a
gift in death bed he intends to distribute his properties acc to his own scheme
giving up the whole hope of his life.
Muslim in death bed can make a gift of any quantum of property such transaction
is will.

ESSENTIALS
1. It is a complete gift.
2. Death-illness
3. The illness must have caused death.
4. There must be proximDecree of subjective apprehension of death in the mind
of the sick person.
5. Inability to attain ordinary condition.

GIFT (HIBA)

During life time of a Mohammaden he can make a gift of the whole of the
property or for part of the property.
Hiba means “an unconditional transfer of ownership in an existing property made
immediately and without any consideration.”

FEATURES OF GIFT
 Gift is a transfer of property by the act of parties and not law .
 Gift is transfer of ownership of property .
 There cannot be a gift of limited or partial interest of a property , and should
not be subjected to any condition .
 In a gift the transferee intends to transfer the property immediately to the
transferee.
 Gift is transfer of property without any consideration
REQUISITES OF GIFT
Parties to the gift.
Must be of free consent and of fraudulent influence.
Gift to the unborn child is void .

ESSENTIAL CONDITIONS OF A VALID HIBA ARE:

Declaration
Declaration is the intention of the transfer -or of his intention to make a gift .
Such a person making a deceleration is called the donor .
The person in whose favour the gift is made is a donee.
Hiba may be made orally or in writing .
It may be drawn in favour of movable or immovable property.

Sec 123 of T P Act is not applicable to gifts made by Muslims.

Case in context to declaration .
Ilahi Shamshuddin v/s Jaitunbi Maqbul
The SC has stated that the declaration as well as acceptance of gift may be
oral whatever may be the nature of property gifted.
A gift made in writing is called Hibanama .
This gift need not be on the stamp paper, also it need not be attested or
registered. Declaration must be in clear words. Free Consent.
Bonafide intention. Competency of the donor. Right to make declaration.
The donor has a right to gift only to those properties of which he is the
owner.

ACCEPTANCE OF GIFT.

The gift must be accepted by the donee .

The donee is a person in whose favour the gift is made.
The acceptance signifies the intention of the transferee to take the property
and become its owner. The donee may be any person , such a person must be
a living person.A donee may be a person of any age and sex or religion .A
child in his mothers womb and is alive within 6mts from the date on which
the gift is made .Gift made in favour of a juristic person is also considered
valid.Gift to a minor is also valid.

Gift made to two or more donees:

Donee may be an individual or a class of persons.
When the donee is a group of person all the persons must accept the gift
separately.
 DELEVERY OF POCESSION
Delivery of procession is an act by which the donor puts the donee in
procession of the property.
Gift is complete only after delivery of the procession.
The gift takes effect not from the date from which declaration was made but
the date on which the pocession of the property is made.

TYPES OF DELIVERY

Actual delivery.
Property physically handed to the donee is actual delivery . It applies to
movable and immovable properties.

Constructive delivery.
Symbolic transfer of property e.g. intangible property , certain rights of
Zamindaries .
GIFT OF DOWER
Gift of dower to husband is valid , in legal terms .
2 rules signify as to the gift of dower.
A wife may make a gift to her husband either conditionally or
unconditionally.
A gift of dower to her dead husband , this operates as extinguishing of her
right to claim mahr .

GIFT OF MUSHA
Musha means confusion this word has been derived from an Arabic word ‘
Shuyua’ .
Under Muslim law Musha signifies an undivided share in the property share in
the undivided joint property .

DIFFERENT TYPES OF MUSHA

Musha in a property incapable of division .

Musha in a property capable of division.

MUSHA IN PROPERTY OF UNDIVIDED SHARE.

Gift in favour of an undivided share in a property which is incapable of division is

valid .
MUSHA IN A PROPERTY CAPABLE OF DIVISION OF PROPERTY .
 Gift in favour of divisible share in the property is not valid .
Exception to this gift of musha is
Gift of Musha to co-sharers : If there are entitled to inherit jointly and
simultaneously under such circumstances gift of musha is possible.
E.g. A Muslim dies leaving behind mother and 3 children.
In this e.g. the mother can make a gift of her complete property to her 3 children
or to any one of them . It is valid.
GIFT OF SHARE IN ZAMINDARI.
A gift of Zamindari is possible and valid even without actual pocession .
GIFT OF SHARE OF THE CO. Is valid
VOID GIFTS
Void gifts are those which are not valid in the eyes of law. They are :
1. Gifts made to an Unborn child .
2. Gift to take effect in future.
3. Contingent Gift .
4. Conditional Gift .
5. Gifts of divisible musha .

DIFFERENT KINDS OF GIFTS

Hiba- bil- iwaz & Hiba-ba-shartul-iwaz are the two types of hibas according to
muslim law,

Hiba- bil- iwaz:

This is a very peculiar type of gift under the concept of personal law .
Hiba means gift and Iwaz means consideration or returns .
Hiba-bil- iwaz is a gift with consideration .
Under the TPAct such kind of Gift is not recognised but under Muslim law such
kind of gift is recognised .
In this type of Gift the donee gives some thing in exchange of a gift .Therefore
such gifts are called as such .
E.g. ‘A’ makes a gift of his house to ‘B’ ; ‘B; in turn makes a gift of a Wagon to
‘A’ , saying that the Wagon was being given in return to gift made by ‘A’ .here the
gift of the house made by ‘A’ to ‘B’ is called Hiba-Bil Iwaz.
Here the gift of Wagon from ‘B’ to ‘A’ is a Gift in exchange of the gift, in lieu of
‘A’ .
Legally such transaction are termed as sale or exchange .
Generally Hiba-Bil-Iwaz is a Gift in its inception ,
But it becomes a sale or exchange afterwards when the donee takes the pocession
of Iwaz .
 ESSANTIALS OR REQUIREMENTS .
Valid and complete gift by the donee.
All 3 essentials conditions must be present i.e. Declaration , Acceptance and
Delivery and pocession .
If donee pays consideration the gift is Hiba-Bil-Iwaz .
LEGAL EFFECTS OF HIBABIL-EWAZ
Hiba-Bil-Iwaz is either sale or exchange depending on the property given by the
donee .
As it is declared as sale or exchange it is irrevocable .
Delivery of pocession , which is one of the essential element of Hiba is not
necessary for the validity of this type of Hiba .
Doctrine of Musha i.e. share in the undivided property under sunnie law is not
applicable to Hiba-Bil-Iwaz .
Right of pre -emption is exercisable by the pre-emptor in Hiba-Bil-Iwaz

Hiba-ba-shartul-iwaz:

In this type of gift the donee does not pay the consideration voluntarily , it is
payed by the donee because it is a condition precedent for thegift .
Therefor the subsequent gift by the donee to the donor is the condition precedent
for the first gift in favour of the donee .
LEGAL EFFECTS OF HIBA-BA-SHARIATUL-EWAZ.
The whole transaction is a set of two independent gifts.
It is revocable in the beginning but once the donee makes a gift of his property in
furtherance of fulfilment of a condition the transaction becomes irrevocable .
Right of pre-emption is exercisable here .
Doctrine of Musha is exercisable here .
This type of gift is not common and is not in practice .
DIFFERENCE BETWEEN HIBA-BA- SHARIATUL-IWAZ & HIBABIL –
IWAZ
In Hiba-bil-iwaz the consideration is paid voluntarily , but in Hiba-ba-shariatul-
iwaz the payment of consideration is a condition precedent .
In Hiba-bil-iwaz the consideration is at the will of the donee , but in Hiba-ba-
shariatul-iwaz the value and the kind of consideration is paid on the direction of
the donor .
Hiba-bil –iwaz is not a Hiba in its real sense but treated as a sale or a exchange ,
where as Hiba-ba-shariatul-iwaz is treated as a Hiba .
Doctrine of Musha is not applicable to Hiba –bil- iwaz, but in Hiba-ba-shariatul-
iwaz the Doctrine of Musha is applicable .
In Hiba-bil-iwaz the consideration is at the will of the donee , but in Hiba-ba-
shariatul-iwaz the value and the kind of consideration is paid on the direction of
the donor .
Hiba-bil –iwaz is not a Hiba in its real sense but treated as a sale or a exchange ,
where as Hiba-ba-shariatul-iwaz is treated as a Hiba .
Doctrine of Musha is not applicable to Hiba –bil- iwaz, but in Hiba-ba-shariatul-
iwaz the Doctrine of Musha is applicable .

WAQF

Meaning of waqf is dedication, dedication of property or income may always be

available for religious or charitable purposes.
Sec 2(1)of Musalman Waqf Validating Act 1913 defines Waqf as, the permanent
dedication by a person professing Musalman faith, of any property , for any
purpose recognised by the Musalman Law as religious ,pious or charitable .
According to the jurists, Waqf is permanent dedication for a specific thing in the
implied ownership of God, where the appropriators right is extinguished & it
becomes the property of God for the advantage of his creatures.
CHARACTERISTICS FEATURES OF WAQF
1. Perpetuity
2. Non-transferability
3. Irrevocability
4. Absoluteness
5. Religious or charitable use of the usufruct.
ESSANTIAL FOR VALID WAQF
1. There must be permanent dedication.
2. The founder of the waqf must be a competent person.
3. Subject must be a transferable property.
4. Object of waqf must be religious, pious, or charitable one.
MODES OF CREATION OF WAQF
A wakf may be created by any of the following methods.
1. Dedicating the property immediately.
2. By dedicating the property by will.
3. By immemorial ways.
DEDICATING THE PROPERTY.
Where a Wakf is creates any Wakf either orally or in writing and intends
that it is constituted during his life the Wakf is inter-vivos .
Where a Wakf is inter –Vivos , the ownership of property is divested from
the dedicator and is vested in God immobility after its constitution .
 Wakf comes into effect immediately after its constitution.
Such Wakfs comes into effect immediately.
TESTIMENTARY WAKF
When a Wakf created by Will is called as Testamentary Wakf .
The Testamentary Wakf comes into effect only after the death of the testator.
The significant feature of this is that the rule of bequathable 1/3 applicable to
such Wakfs .
Therefore where dedication is made through a will not more than 1/3rd of the
total property may be given for Wakf without consent of the legal heirs.
If the Wakf exceeds beyond 1/3rd of the dedicators then consent of the legal
heirs is required.
Registration is not necessary.
But if the property exceeds Rs 100 then registration becomes necessary.
BY IMMEMORIAL WAYS.
wakf is made for immemorial purpose and the beneficiaries can be any one
ie poor or rich but ultimately the beneficiary of the Wakf property must be
poor.
BENEFITS OF WAKF
Under the Hanafi law , a dedicator can reserve the income of Wakf for
following reasons .
1. The whole or part of income of Wakf may be given to Wakf for his
maintenance till he is alive.
2. That the Wakif would have the right of residence in the dedicated property
during his life
3. That the income of the Wakf would be reserved exclusively for the benefit
of some specific person .
4. Income of the Wakf property can be used for the payment of debts incurred
by the Wakif

MUTAWALLI
Mutawalli is the manager of the Wakf property He supervises or takes over the
management of Wakf .
He also distributes the benefit of the property according to the direction laid
down in the Wakf .
A Mutawalli has no beneficial interest in the property .
The office of Mutawalli is similar to that of a trust .
Who can be appointed as mutawalli ?
UNDER THE SUNNIE AND THE SHIA LAW
SUNNIE LAW .
1. He can be appointed by the founder himself.
 2. Executor of the founder .
3. By a Mutawalli in his dead bed .
4. By the Court .
5. By congregation (assembly of religious people).

SHIA LAW .
1. The founder himself .
2. Executor.
3. Mutawalli himself .
4. Appointment by aggregation .
5. Appointment by court .
6. Person of the age of mejority .
7. Sound mind .
8. Any male or a female or a non – muslim.

MINOR :
A minor cannot be appointed to the office of mutawalli , but when the office
of a mutawalli is hereditary only then a minor can be appointed as mutawalli
the minor can be appointed under 2 circumstances .Where the founder has
laid down the line of succession in Wakf deed .When succession is allowed
by local customs .
FEMAILES AND NON- MUSLIM , can be appointed ,but when any religious
function are performed females and non – Muslims cannot act as mutawalli .
REMMUNERATION
The founder is entitled to provide either fixed sum or certain sum
periodically to be paid to the mutawalli .
The court also has powers to fix remuneration to the mutawalli on his
request.
Through an application.
The Court may fix any amount but such amount may not exceed 1/10 of the
income of the Wakf property .
In the year 1993 S.C held in ,
All India Imam Organisation v/s Union of India
[ AIR 1993 SC 2086]
The SC held that the Imam who looked after the religious activities and
offers prayers is entitled to reasonable emoluments even in the absence of
statutory provisions .
FUNCTIONS & DUTIES OF THE MUTAWALLI
FUNCTIONS OR DUTIES :
Mutawallis primary duty is to preserve the property like his own
 But to manage it and spend it like the servant of god .
His functions are same as that of the trustee under the Indian Trust Act 1882
.
He is to administer the property strictly according to the objectives and
directions laid down by the founder .
POWERS OF THE MUTAWALLI:
He has no power to transfer his office to any other person .
He cannot appoint any co-mutawalli to assist him .
But if the founder has given power for transferring his office he can lawfully
transfer his assignment to another person.
Similarly the mutawalli can also appoint a co-mutawalli through the powers
drawn by him from the founder.
Where the mutawalli has already nominated and appointed such officials and
servants, than the mutawalli has no powers to make any change in the
appointment.
The mutawalli has no powers to make any changes in the salaries and
allowances the official who have already appointed by the founder.
In respect of the Wakf property the mutawalli has only the possessory right .

PRE-EMPTION

Pre-emption or ‘shufa’ means the owner of an immovable property is entitled to re

purchase an adjacent property which has been sold to someone else.
Exercising this right the owner of an immovable property can compel the
purchaser of his adjacent property to sell it to him at the same prise which it was
purchased by the said purchaser Person claiming such right is called the pre-
emptor or shufa.
For e.g. :
A and B are owners of the property respectively and are neighbours and B
sells the property to C who may be stranger to A , under this right ‘A’ who is the
pre-emptor can legally re purchase that house from C at same price at which B sold
it to C In this way the right of pre-emption would enable A to avoid C from being
his permanent neighbour.

ORIGIN OF PRE-EMPTION
This may be tracked back to the traditions of prophet.
According to prophet (pbuh): Prophet (PBUH) has stated, “A neighbour has a right
superior to that of a stranger, in the lands adjacent to his own”
“The neighbour of a house has a superior right to that house and the neighbour of
lands has superior right to those lands, and if he be absent, the seller must wait till
he returns.”On the authority of such traditions of the prophet (PBUH),the law of
pre-emption was further developed by muslim law.
Meaning of pre-emption according to various jurists,
Acc to Hedaya, the main principal of ‘shufa’ is the conjunction of the property and
its purpose is to prevent vexation or in convenience arising from the disagreeable
neighbours.
Acc to Mulla , it is the right of ‘ shufa’ ,or it is the right which the owner an
immovable property posses to acquire by purchase of another .

ESSENTIALS OF PRE-EMPTION

Pre-emption is a right which is available to the owner of the immovable property.

Under this right the owner of immovable property can claim his substitution in
place the buyer of an immovable property which is adjacent to the property of the
clamant (pre-emptor) .
The clamant of this right is entitled to re-purchase that adjacent property at the
same price and on the same conditions on which it was purchased by the buyer.
The right of the pre-emption is in form of special privilege which is available for
quite enjoyment of the immovable property.
This being a proprietary right ,it can be enforced against the purchaser irrespective
of his religion cast or creed.
It may be said that right of pre-emtion is a ‘right in rem’ .
The nature of pre-emption is subjected to some judicial controversy .
Recently this controversy has been resolved by the SC in the year 1991,
In Bhoop v\s Matadin Bharadwaj (AIR SC 1991, 373).
SC in this case held that The a right of pre-emption is purely a personal right.

UNIT IV

INHERATENCE & SUCESSION

SUNNIE LAW OF INHERATENCE
CLASSIFICATION OF HEIRS
The legal heirs of Sunnie Muslims are divided into 2 categories .
Principal classes and subsidiary classes These are further divided.
According to the Sunnie law the sharers are divided into 4 Classes.
 CLASS I HEIRS :
These are the Quaranic heirs .
The legal heirs of the deceased .
The legal heirs of this class will get preference over the other class of heirs .
I.e. First the Quranic sharers will take the share .
The sharers of Class I heir are categorised into 2 they are:
Relation by affinity.
Relation by blood .
Relation by Affinity (by marriage ):
Husband ;
o Husband gets ½ of the share if there is no Child or
o A child of a son how low so ever .
o The husband gets 1/4th of the share if ,
o A child .
o Or Child of son is living .
Widow ;
o Widow gets 1/4th of the share if there is no Child or A Child of a son .
o A widow gets 1/8th if she is with ,
o A child and A Child of son .
o If the deceased has left more than one widow all the widows will get equal
out of 1/4th share or 1/8th share as the case may be .
Relation by blood .
Father :
o Father without ;
o A child or
o A Childs son.
o is treated as the residuary , and is entitled to get the residuary , and is entitled
to get share after dividing the property b/w the Quaranic hirers .
o Father with the Child or
o A Child of Son will get 1/6th of the share .
True Grand Father :
o He inherits only in case of absence of father .
o If the deceased leaves back True Grand Father , then in presence of father
the true grand father will not take a share .
o The share of true grand father in absence of father his gets 1/6th of the share
.
Mother :
o Share of mother is 1/3rd in absence of , a Child or
o A child of a son .
o Two full sisters .
 o Two full brothers .
o One brother plus one sister whether full or consanguine or uterine .
o Mother gets 1/6th of the property if all or any one of the relatives are present
.
o If mother is staying with father and a widow then the mother gets 1/3 rd of the
share after deducting the share of the widow .
True grand mother :
The true grand mother inherits only when she is not excluded by the
presence of the relations .
If not excluded the share of the true grand mother is 1/6thwhether she is one
or more than one .
If more than one then they inherit 1/6th jointly .
A maternal grand mother is excluded from inheriting in presence of ;
A mother or
A nearer maternal or paternal grand mother .
A paternal grand mother is excluded from inheriting in presence of
Mother
Father
A nearer true grand mother whether maternal or paternal .
Daughter :
The share of one daughter is ½ .
If two or more daughters are existing the share is 2/3rd to be divided equally
among them
If daughter is living with the son she is treated as a residuary .
Sons daughter :
The sons daughter inherits only in absence of ,
two or more daughters or
Sons or
Sons son
Two or more sons daughters .
sons daughter is excluded from inheriting in presence of the above mentioned
relatives .
In absence of above relatives the sons daughter gets ½ the share if she is
alone and 2/3rd if they are more than one existing .
If the sons daughter is together with one daughter than , the share of sons
daughter is 1/6th whether such sons daughter is single or more .
Sons daughter with sons son is treated as an agnatic heir i.e. she inherits as a
residuary .
Full sister ( she is a person born to the same parents i.e. they share the same
biological parents ) .
 Share of one full sister is ½ .
Share of two or more sisters is 2/3rd to be divided equally among them .
If the full sister is together with the full brother she becomes an agnatic heir
i.e. she takes the residuary .
She is excluded from inheriting in the presence of ;
Child or
Child of a son .
Father .
Fathers father .
Consanguine Sister :
The share of the consanguine sister is ½
The share of 2 or more consanguine sisters is 2/3rd to be equally divided
among them .
With one full sister the share of consanguine sister is 1/6th whether single or
more .
The consanguine sister is excluded from inheritance in presence of
➢ A child or
➢ Child of his son .
➢ Father .
➢ Fathers Father .
➢ 2 full sisters .
➢ One full brother .
With consanguine brothers the consanguine sisters become agnatic heirs and
they inherit as a residuary.
Uterine Brother ( born to the same mother but different fathers ) .
o The share of one uterine brother is 1/6th
o If there are two or more uterine brothers , the share is 1/3rd to be equally
divided among them .
Uterine brothers are excluded from inheriting in presence of ;
✓ A child or
✓ A child of a son
✓ Father or
✓ Fathers father .
Uterine sister :
o The share and the condition under which a uterine sister inherits the property
is same as that of uterine brother .
o She is entitled to share of 1/6th if she is alone
o She is entitled to 1/3rd of the share if they are more than one uterine sisters .
o They are also excluded from the share in presence of ‘
o A child or
o Child of a son or
o Father or
o Fathers father .

CLASS II HEIRS

Residuary contribute to Class II heirs of Sunnie deceased .

When the Sunnie deceased has no heirs then all the property is inherited by
the resudiries.
The Class II heirs of Sunnie are divided into four :
Descendents :
Son ,
when they are no daughters Son takes the entire residue .
When the Son is together with a daughter then the Son takes double the
share daughter takes one the share .
Son’s , Son :
Nearer son excludes the remoter son .
2 or more son’s son inherit the property equally .
Son’s daughter together with son’s son become residuary , but the son’s son
will get double the share of son’s daughter .
Ascendants :
Father ;
As a residuary , the father gets the entire residuary .
True grand father , takes the residuary , but the nearer grand father excludes
the remoter .
Collaterals (descendents from the same stock but by different line )
Descendents of Father:
Full Brother .
If there is no full sister , the full brother inherits the entire residue .
If there is also full sister , full brother will inherit the with her , and his share
is double the share of the sister.
Consanguine Brother (people who are biologically and genetically related it
means from the same blood eg Grand father and grand son these are related
by common origin and by marriage ):
A consanguine Brother inherits together with consanguine sister .
The share of the consanguine brother is double the share of the consanguine
sister .
Consanguine Sister :
In absence of Consanguine brother consanguine sister is considered as
residuary .
CLASS III

Distant Kindred :
The classification of distant kindred are classified into 4 classes .
CLASS I HEIRS :
Descendents ;
In this Class the order of priority is ,
▪ Daughters child .
▪ Sons daughters Child .
▪ Daughters grand Child .
▪ Son's Son’s daughter and remote heir .
The distant Kindred are to inherit only in absence of relation .
They are 2 rules ;
1) Where an intermediate ansister of the Claimants are of similar sex , the
property is divided among them equally . Subject to general rules . But if the
claimant are of different sex then the property will be divided as according
to general rule of ; 1:2 principle .
2) Where the immediate ancestor of the clamant is of a different sex the
property is distributed according to rule 1 as mentioned .
When one clamant is calming through one line and the other clamant is
claiming through other line than following method is applied .
Beginning from the descendent , it has to stop at the first line of decent in
which the sex of intermediate ancestor is different .
If there are 3 or more distant Kindred claiming through different lines of
decent , the rule is to stop at the stage where the sexes of the intermediate
ancestors differ to assign the share to the Male and Female ancestor in ratio
of 1:2.
The collective shares of all the male ancestors will be divided among their
decedents .
The share of ancestors of this line are as follows :
CLASS II HEIRS ;
In absence of class i heirs the property devolves to class ii of the distant
kindred which consists of the ascendants of the de ceased .
The property is distributed among the kindred of this group in the order of
succession .
1) Mothers father .
2) Fathers Mothers father and Mothers , Mother Father in the ration 2:1 under
the general principles .
3) Mothers Fathers Father and Mothers ,Mothers Father in the ratio 2:1 .
 The property is to be divided according to 3 rules ;
RULE I:
1) Heir who are nearer in decree excludes the remoter heir .
2) Among the claimants of the deceased , though shares are preferred over those
who are connected through distant kindred .
3) Where the clamant belong to the paternal as well as material side and ; 2/3 is
assigned to the paternal side and 1/3 to the maternal side .
Thereafter share assigned to the paternal side is 2/3rd this is divided among the
ancestors of the Father and the share assigned to maternal 1/3rd is divided among
the ancestors of the Mother .
CLASS III HEIRS .
The decedents of brothers and sisters who are neither sharers nor residuary as
included in class III heirs of distant Kindred in devolution of estate among the
heirs of this class .
3 rules are applicable , they are :
RULE I;
The nearer in decree excludes the remoter .
RULE II;
Where the clamant of the same decree of relationship ,the children of the
residuaries are preferred to the children of the kindred .
RULE III ;
Among the claimants of the same decree of relationship the decedents of full
brother excludes the decedents of consanguine brothers and sisters.

CLASS IV:

This categories of distant kindred consists of Uncles and aunts and decedents of
Uncle .
SHIA LAW OF INHERITANCE
Classification :
Under a Shia Law , a person may become the legal heir of the deceased either
because of his relationship through Marriage or because of relationship through
blood .
The Shia heirs are classified into 2 categories they are :
1) Heirs may be by marriage or
2) By consanguine .
Heirs by marriage are Husband and Wife .
Heirs by consanguine are divided into 3 categories they are .
1. Class I heir .
2. Class II heir .
 3. Class III heir .

CLASS I HEIR :
o These includes ;
o Parents .
o Children and other lineal decedents how low so ever .
CLASS II HEIRS:
o Grand parents how high so ever .
o Brother and Sisters .
o Decedents , how low so ever .
CLASS III HEIRS :
• The paternal side relatives .
• Maternal Uncles , and aunts of the deceased and her parents , grand parents
how high so ever , and also they decedents how low so ever .
Respective shares of the Shias are further classified into 2 categories they
are :
Sharers .
Residuaries .
no Kindred .
The sharers are of 9 they are :
1) Husband .
2) Widow .
3) Father .
4) Mother .
5) Daughter .
6) Full sister .
7) Consanguine sister .
8) Uterine Sister .
9) Uterine Brother .
HUSBAND :
Without children or lineal descendent the husbands share is ½ .
With children or lineal descendents his share is ¼ .
WIDOW :
Without children or lineal descendants , the widows share is 1/4th .
With children or lineal decedents the widows share is 1/8th .
A child less widow gets her 1/4th share only out of immovable properties of
the deceased husband .
FATHER :
Without the children or the lineal decedents , the father inherits as a
residuary .
 With children the fathers share is 1/6th .
MOTHER :
In absence of,
A child or a lineal decedents or,
Two or more full or consanguine brothers .
One of such brother and 2 of such sister or ,
Four such sisters with father and share of mother share is 1/6th .
DAUGHTER :
Share of a single daughter is ½ .
Share of 2 or more daughters is 2/3rd to be inherited collectively .
In presence of son daughter becomes residuary .
FULL SISTER :
The share of a single sister is ½ and that of 2or more full sister is 2/3 rd .
The full sister gets the above share only in absence of ;
Parents .
Fathers father and full sister , the full sister inherits as a residuary .
In presence of ;
Full brother .
Fathers Father and full sister the full sister inherits as a residuary .
CONSANGUINE SISTER :
The share of a single consanguine sister is ½ and that of two or more
consanguine sisters is 2/3rd .
The above share is inherited by the consanguine sister in absence of ;
Parent.
Lineal desendent.
Full brother .
Full sister.
Consanguine brother .
Fathers father .
In presence of consanguine brother and fathers father , the consanguine
sister inherits as a residuary .
UTRENE BROTHER :
The share of one Uterine brother is 1/6th and that of 2or more uterine
brothers is 1/3rd .
The above share is inherited by the Uterine brother in the absence of ,
children , or lineal decendents nd parents.
UTERINE SISTER :
Same as uterine brother .
DISTRIBUTION OF PROPERTY
 According to the class I heirs of inheritance , it includes husband or wife
and parents , children ,grand ,children and also remote lineal decedents of
the deceased .
When inheritance opens , the heirs of this class are entitled are to inherit
first of all .
Certain procedures are adapted at the time of distribution of property among
the heirs of this class .
All the shares are allotted to the husband or the widow as the case may be .
Next the sharers are allotted to those heirs who inherit only as sharers .
There after , the residue if any is divided among the reliquaries .
CLASS II HEIRS :
This class of heirs includes , Grand Parents how high so ever , Brother and
Sisters , Descendents how low so ever , of Brothers and Sisters .
In absence of the I Class heirs the property is distributed among the heirs of
II Class .
CLASS III HEIRS :
In absence of class I, and class II , heirs the property is divided among the
class III heirs , the Class III heirs are the residuary heirs

DOCTRINE OF INCREASE OR AUI

According to this doctrine, after the allotment of the respective shares to the
sharers if the sum exceeds the unity ,the doctrine of Aul or increase is
applied .
SUNNIE LAW: Ex If the aggregate of shares is 13/12 , In this example the
numerator denotes the total number of shares and denominator denotes the
pieces of heritable property.
In this example 13 represents the number of shares and 12, denotes the
pieces of heritable property.
In this ex the number of sharers exceed the number of property , or the
fragments of the property is lesser than the number of sharers .
In the distribution of shares among legal heirs, two things must be taken into
consideration.
1. The sum total must come out to be unity and ,
2. The respective shares of the sharers cannot be changed because they are
specified in Quran .
The aggregate unity without changing the respective share, the fragments of
property is increased by adopting the following methods :
Keeping the numerator intact , the denominator is increased in such a
manner that the denominator became equal to the numerator , instead of
altering the respective shares which are of are of divine origin , the pieces of
heritable property is enhanced .
By this process the aggregate of the shares is made uniform .
This signifies that the property exhausts without affecting the shares i.e.
shares not reduced .
ACCORDING TO THE SHIA LAW
According to this school of law the principle of the doctrine is as same as
that of sunnies , but the share of property from whom the property is
reduced to make uniformity in shares is , 1) daughter or 2) full sister .
DOCTRINE OF RAAD OR RETURN OR RAAD
When the sum total is less than unity, the doctrine of Raad is applied .
When the total number of sharers are less than the fragments of the property
then this doctrine is applied .
SUNNIE LAW :
Ex if the total number of sharers is 5/12 , in this case the sharers are only
5 where as the fragments of property heritable is 12 .
In this case the after allotting the respective shares there is still fragments of
property remaining , when there is no residuary or other heirs to take the left
over property , in such cases the left over fragments of the property reverts
back to the sharers along with they respective shares and is added to they
respective shares according to the doctrine .
According to the Sunnie Law the residue is added to the shares of respective
sharers according to the following rules , they are :
The residue is added to the shares of each heir in the proportion of they own
share .
The husband and the wife are removed from participating in doctrine of
return .
If among the legal heirs there are husband or the widow then the husband or
the widow will not take the property by return but the residue will return to
all the heirs .
If the husband or the wife is alone without other heirs than the husband or
the wife will take the whole of the property the government will not take the
property by way of escheat.
SHIA LAW
Shia law according to this school besides the husband and the widow , the
mother , and uterine brother and sister also do not participate in return .
The method adopted here is ,
First of all the respective Quranic sharers should be allotted with they shares
If there is husband and widow along with the heirs they share is given and
rest of the property is calculated .
 Then the remaining property is distributed to the leftover sharers according
to they quantum of shares in they proportion.

INDIAN SUCESSION ACT 1925:

DOMICILE

LAW RELATING TO DOMICILE

Domicile, is not defined in the Act. Domicile means the place where he has his
“true fixed permanent home and establishment to which he intends to return”.
ESSENTIALS OF DOMICIL:
They are 2 in nature they are, 1) Factum of residence. 2) Intention of making it a
home of the party.
A person acquires a new domicile in 2 ways ie 1) Factum of residence in that
country, and
2) Animus Menendi , intention to return back to his residence , for making it a
home .
Halsbury defines domicile as “that country that the person has or is deemed to
have ,his permanent house .
In Craignish v/s Craignish
In this case domicile was defined and, his lordship “ That place is properly the
domicile of a person in which his habitation is fixed without any present intention
of removing there from”.
Therefore domicile means the country is taken to be a mans permanent home for
the purpose of determining his civil status(social status) .
It is therefore different from the political status of a person.
In federal countries normally, domicile is of a particular state, and not of a country
as a whole.
Therefore a person would be domiciled in Texas and not in U.S.A, in Ontario and
not in Canada , in Victoria and not in Australia .
An interesting question arouse for judicial interpretation, whether in India ,
domicile can be only of a country as a whole or whether they can be domicile of a
particular state in India .
In Joshi v/s State of Madhya Bharath .
The SC observed that apart from Indian domicile , they can also be domicile of the
state .
Similar view had been expressed by the Bombay HC in the same year , in
Radhabhai v/s The Sate of Bombay .
Later in the year ie 1957 , In The State v/s Narayandas Mangilal Dayme ,
The Bombay HC itself gave a judgement to the effect that they can be no domicile
in the state of India ; the court observed that “it is a total misapprehension of the
position of law in India to talk of a person being domiciled in a province or a State
.
KINDS OF DOMICILES
1. By birth or by origin.
2. By choice and
3. By operation of Law .

DOMICILE BY BIRTH OR ORIGIN:

Domicile of origin is a legal tie which binds a person at the movement of his birth
to a given system of law, it is a settled principal that nobody can be without a
domicile .
The law attributes to every person as soon as he is born.
The domicile that he acquires at the time of his birth is the domicile that he known
by.
The domicile of the child depends on whether the child is born legitimate,
illegitimate or posthumous this is delth under sec 7-9 of this Act. Sec 7, legitimate
child, sec 8, illegitimate.
Sec 9, continuation of domicile of origin till new domicile is acquired. It continues
till the manifestation lies of abandoning his former domicile taking another as his
sole domicile.
DOMICILE BY CHOICE sec10
Domicile by choice is the domicile which a person of full age and sound mind
acquires by full mind and voluntary choice .
A person acquires domicile by choice when he resides in a country not of his
domicile of origin, with an intention permanently or indefinitely.
Two factors are necessary to acquire new domicile , they are ;
Actual residence (factum)
and intention to stay there permanently there (animus menendi).

A new domicile can be acquired in 2 ways,

By fixed habitation sec 10 and
by special modes sec 13 of the Act.
1) By fixed habitation sec 10 : A man acquires a new domicile by taking his
fixed habitation in a country which is not of his domicile of origin .
It is to be considered that the person who relies on a change of domicile to
prove that he has an intention of, abandoning his existing domicile, adopting the
new domiciled of choice.
Ex , 1) an English man , having his domicile of origin in England , came to India
for winding up his business and with the intention of returning to England as soon
as that purpose is accomplished .
His residence in India lasted for more than ten years , in this case of Englishman ,
the fact of his stay in India for a period of 10 yrs makes no difference ,because he
has got the intention of returning back to England he therefore does not acquire
domicile in India .
2)‘A’ whose domicile is in East Pakistan , is compelled by political event to take
refuge in Calcutta , and resides in Calcutta for many years , in the hope of such
political changes as may enable him to return with safety back to his home town .
In this eg ‘A’ does not by mere such residence in India acquire domicile in India.
2) By special mode (sec 11-13 ): Any person may acquire a domicile in India by
making and depositing in the appropriate office in India , a deceleration in writing
under his hand of his desire to acquire such domicile .
For this a person must be resident in India for one year immediately preceding the
time of his making such declaration u/sec 11 .
No person acquires domicile when he is on a duty appointed by the government of
the country to
Be ambassador council or other representative in another country , he does not
acquire a domicile in the later country , by reason only of residing there in
pursuance of his appointment , nor does any other person acquire such domicile by
reason only of residing with that person as part of his family, or as a servant u/sec
12.
Sec13 continuance of new domicile. Till abandment of new domicile by choice.
3) Domicile by operation of Law (sec14-18): This is also known as , domicile of
dependence .
Domicile by operation of law or domicile of dependence means the domicile of
dependent persons eg Minors domicile is determined by the domicile of its parents.
In case of legitimate children and adopted children they domicile is that of its
parents domicile.
Married women's domicile is dealt u/sec 15and 16 ; a married women acquires the
domicile of her husband as long as she is married to him .
Generally a married women is deemed incapable of having a domicile of her own .
THERE ARE TWO EXCEPTIONS TO THE RULE , in two cases ,1) when they
are separated by the Sentence of a competent court .
2) If the husband is undergoing a sentence declared by any court of law of the land.
Sec17 minors acquiring new domicile.
lunatic persons domicile is dealt under sec 18 of the act .
A lunatic persons domicile is determined by the domicile of its parents .
LAW RELATING TO SUCESSION OF PROPERTY OF AN INDIVIDUAL
TAKING INTO CONSIDERATION DOMICIL sec5;
This is not applicable to Hindus, Muslims, Buddhist ,Sick or a Jain .
In India the law for this is based on well –established principal of English law,
under which the movables of the deceases individual are regulated by English law .
Under which the movable property is regulated by the lex domicilli (law of the
domicile) and the immovable property is regulated by the lex situs (law of the
place where the property is situated .
A Kerala HC decision makes this principle very clear ,
Sankaran Govindan v/s Lakshmi Bharathi ;
[ AIR 1964 Ker ,244] The facts of this case are as follows , Dr Krishna lived in
England from 1920-1950 in which year he died intestate in England . During his
life time he built a sizable medical practice at Sheffield , where he bought a house
.The court came to the conclusion that he had died domiciled in India, the question
arouse Whether the heirs to the Sheffield property was to be reckoned by the
Indian law (lex domicilli ) or the British law ( lex situs ) .The learned judge came
to the conclusion that immovable property is to be governed by lex situs .
Therefore in this case the English law of succession was made applicable .

CONSNGUINITY

When a person dies intestate, his heirs would fall in 2 groups, relatives by blood
and relatives by marriage. All people connected to the deceased by blood would
fall in the first category and his widow would fall in the second category
.Consanguinity is the connection or relation of a person’s descendent from the
same stock or common ancestor, they are also called kindred.
Consanguinity or kindred is defined ,as “vinculum personarum ab eodem stipite
desendentium “, i.e. the connection or relation of persons descendent from the
same stock or common ancestor .
Consanguine are of two types ; 1) lineal consanguinity and 2) Collateral
consanguinity .

1.Lineal consanguinity sec 25 : It is that which subsists between 2 persons , one of

whom is the descendent in the direct line from the other , as between a man and his
father , grand father , and great grand father ,upwards in the direct ascending line
or , between the man and his son , grand son and so downwards in the direct
descending line .
Each generation constitutes a decree , either ascending or descending . A persons
father is related to him in the first decree so likewise is his son , his grand A
persons father is related to him in the first decree so likewise is his son ,his grand
father and grand son in the second decree , his great grand father and great grand
son in the third decree and so on . Lineal consanguine strictly comes within the
definition of vinculum personarum ab eodem stipite decendentium , since the
descendents are from one another and both , of course from the same common
ancestors . father and grand son in the second decree , his great grand father and
great grand son in the third decree and so on . Lineal consanguine strictly comes
within the definition of vinculum personarum ab eodem stipite decendentium ,
since the descendents are from one another and both , of course from the same
common ancestors .

2.Collateral Consanguinity sec26 : Collateral consanguinity is that which subsists

between the two persons who are descendents from the same stock or ancestor , but
neither of whom is descendent from the same stock or ancestor , but nether of
whom is descendent in a direct line from the other. This can be well understood
from the table of consanguity , in Schedule I of the Act .

TABLE OF CONSANGUINITY.
(SCH II)
(TO BE DRAWN FROM BOOK)

INTESTATE SUCESSION OTHER THAN PARSIES

A person is said to have died intestate if he has died without leaving a testamentary
disposition which is capable of taking effect sec 29 . Eg 1)’A’ has left no will . He
has died intestate in respect of whole of the property .
2) ‘A’ has bequeathed his whole of the property for an illegal purpose , here it
is said that ‘A’ dies intestate in respect to the property .
Intestacy are of two types they are ; total and partial intestacy . Sec 30, as to what
type of property a person dies intestate.
Eg 1) ‘X’ makes no will in favour of his property , this will be a case of total
intestacy .
2) If ‘X’ makes a will in favour of his property situated at Delhi, and makes
no will in favour of other property then this is a case of partial intestacy , and
will have deemed to have died Intestate in favour of the rest of the property .

RULES IN THE CASE OF INTESTATE OTHER THAN PARSIS SEC 31-49

Sec 31 to 49 lays down certain rules for distribution of property of intestate other
than parsis . The property of an intestate devolves upon the wife and husband or
his kindred, a widow will not get her husbands property unless she Has entered
into a valid contract before marriage u/ sec-21 & 22 . If not she gets excluded from
the share of he husband estate. If husband survives his wife has the same rights in
respect of his wife's property if she dies intestate to the property. If an person dies
intestate leaving behind
1) Widow and a lineal descendent , Widow takes 1/3rd of the share in the property
and lineal descendent takes 2/3rd of the share .
2) Widow and kindred but no lineal descendent each takes ½ and ½ of the share in
the property .
3) Widow but no lineal descendents If the net value of the property was 5000 and
less than 5000 the widow would take the whole of the property up to the extent of
5000rs .
If no widow then the whole property will be taken by the lineal decedents in
default .in default to his kindred , and in default of both to the government .
( 28/4/14)RULES OF DISTRIBUTION (SEC 36-48)
Rules of distribution among lineal descendents sec 36-48:
If the intestate has left a widow , her share of 1/3rd is to be first deducted . The
balance will dissolve as per the following rules :
a. If the intestate has left a child or a children only the child takes the whole of
the property , if they are more then one children , all of them will get equal
share .
e.g. ’A’ dies , leaving 3 children B,C, and D and no children of any predeceased
children , after the widows share is given to the widow , the balance 2/3rd would be
divided equally between B,C and D .

In case ‘A’s wife had died before him , then B,C and D would divide the property
equally among them .
b) If the intestate leaves back grand child or grand children behind him , the
grand child is alone survivor he will be taking the whole of the share .
If the grandchildren are more than one the grand children will take equal share .
E.g. A , has three children and no more , x, y, and z they all die before A , X leaves
3 children , Y two children and Z, leaves 4 children , later A dies leaving these 9
grand children and no descendent of deceased grand child in this case each of this
grand child will take 1/9th of the share .
The same rule applies if deceased left only great grand children or remoter lineal
descendents Grand child or grand children or grate grand children or great grand
children . The division among them has to be per capita .
If , however the lineal descendent are not in the decree the division has to be per
stripes .
E.g. ‘A’ had 3 children X, Y, Z ;X leaves 4 children , Y dies leaving 1 child , and Z
alone survives father ,’A’ .
In this case 1/3rd is allotted to Z , 1/3rd to the 4 children of X , and the remaining
1/3rd to the only child of Y.
RULES OF DISTRIBUTION AMONG KINDERED
SEC(41-48).
a) If the intestate has left a widow her share has to be first be deducted and the rest
has to be divided .
If the father of the intestate is living along with the widow after deducting the
widows share i.e. ½ the father takes ½ the share .
b) If intestates father is dead , Mother, Brother , and sister of the intestate are alive
the intestates property is to be equally divided among them .
The children of the deceased brother and sister will represent they parents and will
take the share as they parents would take during they life time .
E.g. ‘A’ dies intestate , survived by his mother and two brothers of full blood , E
and F and sister G , who is uterine sister .
The Mother takes 1/4th , each brothers takes 1/4th and the uterine sister takes 1/4th
of the share in the property .
c) Also if the deceased leaves back only lenial descendents the property would
be equally shared b/w all the surviving lenial descendents equally .
d) if mother alone survives then , the mother will take the whole of the property .
f) If they is no father , mother no lineal descendents , only brother and sister are
surviving then the property is equally shared b/w such surviving brother and sister .
g) If nobody in stock of the intestate is surviving the property could be taken by the
government by escheat.

SPECIAL RULES AS TO PARCIES INTESTATE

For the purpose of intestate succession among Parsis :
There is no distinction b/w those who are actually born in the life time and of the
deceased and those who at the date of his death were only conceived in the womb,
also who were subsequently born alive(posthamus) .
A lineal descendent(broter,sister, aunt or uncle) of an intestate who has died in the
life time of intestate without leaving a widow or any lineal descendent Such are
not to be taken into consideration , while determining succession to property of the
intestate .
Where widow of any relative of an intestate has married again in the life time of
the intestate , is deemed not to be in existing at the time of the intestate’s death .
Disqualification would also applies to the widow who re-marries.
SHARES IN CASE OF A PARSI DYING INTESTATE.
When a male Parsi dies intestate leaving ;
1. Widow and children and no parents , here the son and widow will get each
double the share of daughter .
2. Children only and no widow ; the son gets double the share of each daughter
3. Widow and children and father and mother
4. Here the share of the father will be ½ of grand son , mothers share will be ½
the share of grand daughter’s , widow and son will get double the share of
each daughter .
Where a female parsi dies leaving behind;
1. Widower and children , here all will get equal share .
2. Children only , the property is equally divided among the living children ,
whether male or female .
Where a parsi dies leaving behind ;
1.Any lineal descendent and the intestate’s child who has died in his life time .
In this case if the child was a son then the widow and children will take equal share
2. No lineal descendent ,
If the intestate leaves a widow or widower but no widow of a lineal descendent .
In this case the widow or the widower will take ½ the share in the property .
3 . If the intestate leaves no widow or widower , but one widow of a lineal
descendent .
Here the widow or the widower takes 1/3rd and the widow of the other lineal
descendent gets the other 1/3rd of the share .
4 . If the intestate leaves no widow or widower but one widow of a lineal
descendent . She gets 1/3rd of the share in the property .
5. If the intestate leaves no widow or widower , but more than one widow of a
lineal descendent . Here 1/3rd of the property is to be divided equally among all the
widows surviving .
6. Neither lineal descendents nor widow nor widower nor a widow of any lineal
descendent
Here the intestates his or her next of kin(persons closest living relative) will take of
the whole of the property .

UNIT V

TESTIMENTARY SUCESSION ( SEC 57-191)

This chapter comprises of 134 sections , rules which applies in the case where the
testator has left his or her will .
Sec 57 of the act provides that all the provisions of this chapter , set out in schedule
III .
This sec applies to all wills and codicils made by Hindus , Buddhists ,Sikhs or
Janis within the province of Bengal or within the cities of Madras or Bombay .
It applies to such wills and codicils made outside the above territories , provided
that such wills or codicils are in respect of the immovable properties situated
within the territories of the provinces .
It also applies to wills and codicils made by the Hindus , Buddhists ,Sikhs or Janis
after 1st Jan 1927 , also it provides that marriage would not revoke any such wills
or codicils .
Sec 58 states that ,this chapter is not applicable to Muslims .
The Hindus , Buddhists Sikhs and Jains to the extent covered by sec 57 .
This act applies to wills made before 1866.
Sec2(h) of the Act , defines a Will as the legal declaration of the intention of the
testator with respect to his property .

The essential characteristics of a will

The following are the four essential characteristics of a will .
1. Legal declaration .
2. legal declaration should relate to the property of the testator which he wants
to dispose of .
3. The declaration of the testator must be with the intention to take effect after
his death .
4. Revocability of the will ; the essence of the will is that it is revocable by the
testator during his lifetime .
Tests to determine whether a document is a will or not .
They are 2 tests to determine whether a document is a will or not ;
1 . That it was the indentation of the writer to convey the benefits by the
instruments which would be conveyed by it , i.e. the writer had the necessity
of intention or animus testandi .
2.That death was the event that was the event that was to give effect to it .
Form of will , there is no form of will as such .
Language and writing in the will to be simple & best understandable by the
beneficiaries .
According to the Stamp Act & Registration act the Wills need not be registered.

Kinds of wills .
There are two kinds of wills ;
1. Privileged will .
2. Un privileged will .
These two type of wills are dealt u/sec 65-66.

Apart from these two types they are yet 7more types of wills ;
1. Nuptative or oral wills (privilege wills ) they are to be pronounced before
witnesses , soldiers ,airman , sailors etc are only entitled to make such wills .
2. Holographic wills (unprivileged wills ), these are written by the hand of the
testator .
3. In officious will , these wills are made in favour of a stranger , they are
considered to be valid wills .
4. Mutual or reciprocal wills (joint wills ) , in this type of will two persons are said
to make mutual wills when they confer reciprocal benefits upon each other under
they will .
5. Joint wills , it is a will made by two or more testators , on the death of one of
them it operates as a will of such a testator disposing of his own separate property ,
such wills can be made for same property or each ones separate property .
6. Conditional or contingent wills .
7. Duplicate will , is one of which 2 or more copies are made , but if such copy is
signed by the testator , it can operate as an original will .
sec 60 of the act lays down that father of any age could appoint a guardian to his
minor children . In such cases fathers age is immaterial.

Under the Indian succession act , all wills are broadly classified into 2 categories ;
1. Unprivileged wills.
2. Privileged wills
the execution of unprivileged and unprivileged wills are dealt u/sec 63-66

Unprivileged wills :
Every testator who is , not being a soldier employed in an expedition nor engaged
in actual warfare ,or an airman so employed or engaged or a mariner at sea , shall
execute his will according to the following rules :
1. The testator shall affix his sign or his marks to a will , or it shall be sign by
some other person in his presence and by his directions .
 2. The signature or the mark of the testator or the signature of the person
signing for him , shall be so placed that it shall appear that it was intended
thereby to give effect to the writing a will.
3. the will must be attested by at least 2 or more witnesses , whom each of
them has seen the testator sign or affix his mark to the will , or has seen
some other person sign the will ,or received from the testator a personal
acknowledgement of his signature or mark , and each of the witness shall
sign in presence of the testator .
PRIVILEDGE WILLS
This sec is not applicable to Hindus , Buddhists etc .
According to sec 65 any soldier , being employed or engaged at the expedition or
engaged at actual warfare , or an airman so employed or engaged .
Or any mariner at sea , may if he has completed the age of 18 dispose of his
property by a will made in the manner provided u/sec 66 such wills are called
privileged wills .
Eg1. if ‘A’, a medical officer attachment to a regiment , is actually employed in an
expedition and can make a privileged will .
2.‘A’ an admiral ,who commands a navel force , but who lives on the shore
, and only occasionally goes on board his ship , he is not considered at sea
and he is not entitled to make a privileged will .
Modes and rules for executing a privileged wills ;
privileged wills may be in writing , or may be made by word of mouth .
The privileged wills are governed by the following rules .
1. The will may be written wholly by the testator , with his own hand ,in such
case it need not be signed or attested .
2 . It may be wholly or partly written by another person , and signed by the
testator , in such case it need not be attested .
3. if an instrument proportion to be a will is written wholly or in part by other
person and is not signed by the testator , it shall be deemed to be his will , if it is
shown that it was written by the testator’s directions ,or recognised it as his will .
4. If it appears on the face of the instrument that the execution of it in the manner
intended by the testator was not completed , the instrument shall not, by any reason
considered invalid .
5. If the soldier airman or mariner has , written instruction of the will but has died
before it could be prepared and executed , such instructions shall be considered to
constitute his will .
6. if the soldier , airman mariner has , in presence of 2 witnesses given verbal
instructions for the preparation of his will and they have been reduced into writing
in his life time but he has died before the instrument could be prepared and
executed , such instructions could be considered to be will , even if they may not
have been reduced to writing , in his presence.
7. the soldier , airman or mariner may make a will by word of mouth by declaring
his intentions before 2 witnesses present at the same time .
8. A will made by mouth shall be null and void at the expiration of 1 month after
the testator , being still alive , and he is ceased from making a privileged will .

REVOCATION OF WILLS
A testator is liable to revoke or alter his will at any time when ever he is competent
to dispose of his property by will U/sec 62 .
UNPRIVILEGED WILL sec 69-70:
• This type of a will can be revoked by the testators marriage .
• By another will and a codicil .
• By some writing declaring an intention to revoke it and executed as a will .
• By burning or tarring or destroying the same by the testator with the
intention of revoking the same .
PRIVILEGED WILL sec 69&72
• This type of will is revoked by the testator’s marriage .
• By executing an unprivileged will or codicil.
• By any act expressing an intention to revoke it
• It with necessary formalities needed for a privileged will .
• By burning ,tearing or otherwise destroying the same by the testator , with
the intention of revoking the same .
There are 2 exceptions to this rule ;
1. When a will is made in the exercise of appointment , the marriage of the
testator does not revoke it .
2. Where 2 or more persons have made a mutual will , the marriage of one of
them does not revoke the will of other .
Lost wills : If a will executed during the lifetime of the testator , and is not
found for a certain period of time after his death the presumption of fact is that
the will was revoked during his life time .

OBLITRATION AND ALTERATIONS IN THE WILL

• where various alteration and interlianations were made by the testator some
time before the
• The execution of the same , the court grants probate with the copy of the will
showing the alterations and interlineations .
• When an attested alterations appear on the face of the will and no
information given and there are no circumstances to show when the
 alterations were made , in such cases the probate could be issued to the copy
of will without those alterations .
• In execution of a privileged will the signature of the testator and the
attesting witnesses may be placed any where ,but in case of alteration the
signatures must be made in places u/sec-63.
• Revocation of a privilege will may be ,by executing an unprivileged will .
REVIVAL OF AN UNPRIVILEDGE WILL sec-73
This is possible to be revived only by 2 ways ,
By re-execution and by executing a codicil showing an intention to revive it .
CONSTRUCTION OF WILLS (SEC 74-101)
This is dealt under 7 concepts ;
1 . General rules .
2. Construction of words .
3 Errors .
4. Ambiguities .
5. Inconsistent clauses .
6. Rules for construing bequests .
7. Cumulative bequests .
1. GENERAL RULES :
The testator has written a will it has to be construed from every part of it ,
according to the construction of the sentence .
The words used it to give effect as to the intention of the testator .
They are certain rules regarding construction of words .
1. It is not necessary to use technical words , the words using intentions are
sufficient .
2. Knowledge which may conduce to the application of words and names .
3. The same words will have the same meaning thought the will .
4. The words describing the property must be deemed to be referred to the
property answering the description at the time of testators death .
5. Words expressing relationship denote legitimate relative of a person .
6. Where a property is bequeathed to any person he is entitled to the whole of the
interest in the property .
ERRORS :
An error in the name or description in the property does not make a legacy void if
the words sufficiently show what it meant .
A mistake in the name of the legatee may be corrected by his description ,and a
mistake in description of a legatee may be corrected by the name .
AMBUGITIES sec 80-81 :ambiguities are of 2 types, they are patent and
latent ambiguities .
INCONSISTENT CLAUSES sec 82 ,84 ,85 &88.
 CUMULATIVE BEQUESTS sec 101 :
where a testator has made 2 bequests to the person and a question arises whether
the testator intends to make a second bequest instead of or in addition to the first .
Then following two rules are laid down in cases were ,
1 . The legatee takes of only one bequest .
If the same specific legacy is given twice to the same person or legatee .
E.g. if same bequest of a thing is made to a beneficiary in a will as well as codicil ,
the beneficiary take only that specific legacy, ie one property .
2. When legatee takes both legatees .
when the testator has made a bequest of two legacies such legatee takes both the
legacies.
e.g. ‘A’ makes a bequest of estate to ‘B’ at place ‘X’ and subsequently of legacy of
cash of 50,000 in this case where legacy are two different things ‘B’ takes both
legacies .
RULES FOR CONSTRUING BEQUEST sec 90-98 .
They are 6 rules .
1. Words describing the property to be bequeathed are deemed to refer to
property answering that description at the testators death .
2. A bequest of the estate includes property which the testator may have power
to appoint by will .
3 .Where the property is bequeathed with a bequest in the alternative then the first
named legatee is to take effect to the legacy .
E.g. legacy , bequthed to ‘A’ or ‘B’ , of place ‘x’. Here ‘A’ will take the legacy
will take the legacy first after his death then the property will go to ‘B’.
4. If a bequest is made to two persons jointly then both the legatees will take the
legacy jointly.
E.g. if ‘A’ and ‘B’ are jointly bequeathed a legacy then both legatees will take the
legacy jointly .
5. If a legacy is given to a specific person then the legacy will take effect to that
specific person .

VOID WILLS (sec 59, 61, 66 & 89)

A will is void if it is made under the circumstances mentioned u/ the provision of
law .
Will by a minor sec 59 .
Will made under fraud or coercion and mistake u/sec 61 .
Oral wills by the word of mouth , if the testator lives for more than one
month after the testator making a will such privileged will be revoked and
become void .
 Uncertain wills , if the wills are not expressive or no definite intention of the
testator , then it may termed to be void will.
VOID BEQUESTS sec -112 -118
Bequest to person by particular description who is not in existence at
testator’s death sec 112 .
E.g. ‘A’ bequests 1000rs to the eldest son of ‘B’ , at the death of the testator
, B has no son. he bequest is void .
Sec 113 Bequest to a person not in existence .
At the time of testator’s death, subject to a prior bequest contained in the
will . The latter bequest shall be void , unless it comprises the whole of the
remaining interest of the testator in the thing bequeathed .
Eg property is bequeathed to A for life and after his death to his eldest son
,At the time of the death of the testator , A has no son . Hence the bequest to
the eldest son is a bequest to a person
Not in existence at the time of the death.It is not a bequest of the whole
interest that remains to the testator . Here the bequest to the eldest son is
void .
Sec 114 : Rule against perpetuity , the rule against perpetuity lays down that
no bequest is valid if vesting of thing bequeathed may be declared beyond
the lifetime of one or more person living at the testators death .
E.g. A bequests property to B for his life after his death to C and later to C’s
son D who first attains the age of 25, he may be a son who is yet to be born
after the death of the testator such son may not attain the age of 25 before
18- 20 yrs , vesting of funds may have been deployed beyond the life time of
A,B, and C therefore the bequest after C’s death is void .
Bequest to religious and charitable users u/sec 118 a person can execute a
will in favour of Religious and Charitable purposes ,he should deposit it not
less than 6 months from its execution in some place provided for the safe
custody of will ,a will made with bequest to charitable purpose should be
executed before 12 months from the testators death.
e.g. A having a nephew makes a bequest by a will not executed and
deposited as required , for relief of poor people , for orphanage , such wills
are deemed to be void .
DIFFERENT KINDS OF LEGACIES
There are two different kinds of legacies;
1. General legacy.
2. Specific legacy (sec 142)&
3. Demonstrative legacies (sec 150) .
GENERAL LEGACY,
It means legacy of whole of the property,
Eg. A, makes a bequest of whole of the property to B, for enjoyment for life time
of B.
SPECIFIC LEGACY
Where a testator bequeaths to any person a specified part of the property, which is
distinguished from all other parts of his property, the legacy is said to be specific.
Eg. A, bequeaths to B, the golden ring presented to me by X.

DEMONSTRATIVE LEGACIES SEC 150 &151.

Where the testator bequeaths a certain sum of money, or certain quantity of any
other commodity & refers to a particular fund or a stock so as to constitute the
same the primarily fund or a stock out of which payment has to be made, then the
legacy is said to be demonstrative.
Difference b/w specific legacy & demonstrative legacy.
When specific property is given to the legatee, the legacy is specific.
When a legacy is directed to be paid out of the specific legacy it is called as
demonstrative legacy.
ADUMPTION OF LEGACIES
Adumption means the failure of a specific bequest or diverse through its subject
not being in existence at the time of the death of the testators death.
The subject matter of the gift is adeemed if at the time of testators death the
subject matter of the of the gift has been destroyed or converted into something
elce.
Eg. Where a testator bequeathed a specific item of property for instance a vacant
site, but during the lifetime of the testator he constructed a building over it, it was
held that the legatee cannot have a claim over the building & the legacy is
adeemed. This was held in S. Gopalrathnam V/S Authorised officer of TNJ (AIR
1971 Mad 400)
SEC 153 demonstrative legacy cannot be adeemed.
SEC 160 &161, non removal of certain specific bequest of goods described as
connected with certain place, by reason of removal.
DIFFERENCE B/W PROBATE & LETTER OF ADMN.
1. A probate can be granted to in case of executer appointed in the will.
Letter of Admn. Is granted only in cases of deceased Intestate .
2. Probates renders valid all intermedeateri acts of the executer . Tending to
damage the property. Letter of Admn do not render any intermedeatery act valid
of the Admn.
3. Probate cannot be granted until after the expiration of seven days from the
death of the testator .
Letter of Admn cannot be granted until the expiration of 14 days from the date
of death of the testator.
 4. The title of the executor begins from the testators death, hence executor can
institute suit before he gets probate.
Letter of administration begins only after the letter of Admn are granted no suit
can be instituted before the grant of letter of Admn. .
PROTECTION OF THE PROPERTY OF THE DECEASED INTESTATE
SEC 195, on inquiry a danger is apprehended of misappropriation or waste of
the property before the summary proceeding can be determined & that the delay
in obtaining security from the party in pocession is likely to expose the party
out of pocession to considerable risk .
The dist judge may appoint one or more curator Whose authority is to continue
to according to the terms of their appointments & in no case beyond
determination of summery proceeding & the confirmation of the delivery of
pocession.
Powers of curator sec 196, 197 &200.
1. He has the power to take pocession of & manage the property & may take
security to Prevent misappropriation of property or waste thereof sec 196.
2. He has the right to recover debts & rents sec 197.
3. He may file & defend suits relating to the property which he is a curator sec
200.
Duties of Curator, sec 191, 202, 203.
1. He has to give security & the court may give him remuneration not exceeding
5% of the Property annually.
2. He has to file monthly accounts in abstract & must on expiry of each period
of 3 months if his administration lasts long, to the dist court.
SUCESSION CERTIFICATE
Succession certificate granted under this act is a document giving authority to a
person who obtains it.
To represent the deceased for the purpose of collecting the debts & securities due
to him or repayable in his name .
It allows the debtors to make payment without any risk .
When Succession certificate is granted u/sec 373,
1. If the judge decides the right belonged to the applicant.
2. If the applicant appears to him to have prima facie best title to it.
When certificate is not granted,
1. With respect to any debt or security to which
The right is to be established either by probate or letter of administration .except in
cases of Christians.
Who can grant it?
1. Can be granted by the Dist Court .
2. Or any court inferior with the powers of the Dist court.
Contents of the certificate sec 372,
1. Time of deceased death.
2. The place where ordinarily resided .
3. Name & residence or his relative.
4. Right in which the petitioner claims.
5. Absence of any impediment either in the grant or in the validity of the
certificate.
6. Debts & securities in respect of which it is applied for.
REVOCATION OF CERTIFICATE SEC 383
Circumstances under which the certificate may be revoked.
1. That the proceeding to obtain was defective in nature.
2. Certificate was obtained fraudulently by making false suggestion.
3. Certificate was obtained by untrue allegation.
4. That the certificate has become useless & inoperative through circumstances.
5. That in an order of the suit if it renders proper that the certificate should be
revoked then it could be revoked.

Family court act

A family court is a court established u/sec3, consisting of 23 sections dealing with

various family issues divided into different chapters. It is constructed to decide
matters and make orders in relation to family law, such as custody of children. In
common-law jurisdictions "family courts" are statutory creations primarily dealing
with equitable matters devolved from a court of inherent jurisdiction, such as a
superior court. The Family courts were first established in the United States in
1910, when they were called domestic relations courts although the idea itself is
much older.

Family courts hear all cases that relate to family and domestic relationships
although each state has a different system utilized to address family law cases,
each state strives to provide families with the best possible outcome in family law
cases. Family courts can also issue decisions regarding divorce cases.

The Family Courts Act 1984 was enacted on 14 September 1984 to provide for the
family courts with a view to promoting conciliation in and secure speedy
settlement of disputes relating to marriage and family affairs.

According to Section 2 (d) of the act, "Family Court" means a family court
established under section 3.
Section 3 describes the establishment of Family Courts in the Metropolitian cities
having the population of 1 million & above in order to achieve the aims &
objectives , sec 3 states a family courts establishment based on the population . &
this cannot be challenged as violative of Art 14 of Indian Constitution. The State
Government after consultation with the High Court specify by notification, the
local limits of the area to which the jurisdiction of family court shall extend & may
at times increase or decrease or alter such limits. shall establish a Family Court for
every area of the state consisting of a city or town and for other areas in the state as
it may deem necessary. Family courts are subordinate to the High Court, which has
power to transfer the case from one family court to the other.

Appointment of judges to family court sec 4:

under sub clause 1 the state govt may with the concurrence of the HC appoint one or more
persons to be the judge of the Family Court .

a.When the FC consists of more than one judge.

1. in case of more judges appointed they may have the same powers conferred by the court
under this act.
2. State govt with the concurrence of the HC may appoint any person as a Principal Judge
, Additional principal judge.
3. Principal judge may make arrangements for allocation of work among other judges .
4. The Additional principal judge may exercise the power of the principal judge when in
the vacancy of principal judge or when the principal judge is unable to discharge his
functions.
b.Persons qualified to be appointed as FC judge
1. if crossed 7yrs of experience as a judicial officer in India or a sa office of the Tribunal .
2. 7yrs has been an advocate of the HC .

Legal Jurisdiction of Family Law Courts:

Sec 7 The matters which are dealt in the Family Court in India are matrimonial
relief which includes nullity of marriage, judicial separation, divorce, restitution of
conjugal rights, declaration as to the validity of marriage and matrimonial status of
the person, property of the spouses or any of them and declaration as to the
legitimacy of any person, guardianship of a person or custody of any minor,
maintenance including the proceeding under the Cr. P.C.
Apart from these, an order of injunction in certain circumstances arising in a
matrimonial relationship, declaring legitimacy of any person, Suits or proceedings
between parties regarding dispute about the property also get covered.
Functions of family courts:

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

The Act stipulates that a party is not entitled to be represented by a lawyer without
the express permission of the Court. However, invariably the court grants this
permission and usually it is a lawyer which represents the parties. The most unique
aspect regarding the proceedings before the Family Court are that they are first
referred to conciliation and only when the conciliation proceedings fail to resolve
the issue successfully, the matter taken up for trial by the Court. The Conciliators
are professionals who are appointed by the Court. Once a final order is passed, the
aggrieved party has an option of filing an appeal before the High Court. Such
appeal is to be heard by a bench consisting of two judges.

Advantages:

a) Family courts are empowered to formulate their own procedures but till then
they have to follow the Civil Procedure Code.

b) Evidence need not be recorded.

c) Family Courts: Objectives and Functioning

d) Judgment can be concise with statement of the case, points for determining
decision and reasons.
 e) Appeal to the High Court can be filed within thirty days from the date of
judgment, order or decree of the Family Court.

f) If the party desires, in camera proceedings can be conducted.

g) No party to a suit or proceeding under the Family Court shall be entitled to

be represented by a legal practitioner but the court may requisition the
services of a legal expert as amicus curiae.

Association of social welfare agencies:

The State Government may, in consultation with the High Court, provide, by rules,
for the association, in such manner and for such purposes and subject to such
conditions as may be specified in the rules, with a Family Court of,-(a) institutions
or organizations engaged in social welfare or the representatives thereof;(b)
persons professionally engaged in promoting the welfare of the family;(c) persons
working the field of social welfare; and(d) any other person whose association with
a Family Court would enable it to exercise its jurisdiction more effectively in
accordance with the purposes of this Act.

Counselors, officers and other employees of Family Courts

(1) The State Government shall, in consultation with the High Court, determine the
number and categories of counselors, officers and other employees required to
assist a Family Court in the discharge of its functions and provide the Family Court
with such counselors, officers and other employees as it may think fit.(2) The
terms and conditions of association of the counselors and the terms and conditions
of service of the officers and other employees, referred to in sub-section (1), shall
be such as may be specified by rules made by the State Government.

Conclusion:

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

THE NEED FOR THE ENACTMENT OF THE UNIFORM CIVIL CODE .

India is a Sovereign Socialist Democratic Republic .The State has no religion , it
favours non and is foe to none .To achieve uniformity of laws it is necessary to
replace the various personal laws with a Uniform Civil Code .
Art 44 of the Indian Constitution of India states that , that the state shall endeavour
to secure for the Citizens a Uniform Civil Code thought the territory of India .
According to the architect of the Indian Constitution , the provision of the Uniform
Civil Code should be included in the funder mental rights chapter and thus should
be made justifiable .The need for a common civil code was recognised and
accepted by the constitutional sub- committee unanimously . However it was not
implemented d at the time because of apprehensions of minorities .
The need for uniformity in the matrimonial laws is essential to achieve a Uniform
Civil Code eg introduction of Monogamy in the Hindus and Polygamy among the
Muslims has created a discrimination of State Policy .Supporting Monogamy and
emphasising the ability of the State to legislate with respect to it .
Such discrimination of the State Policy can be practiced in the other religion , can
be easily be removed if the Uniform Civil Code is made . various jurists and
authors , lay emphasis on having the Uniform Civil Code ,for concepts like
Adoption , to safeguard the socially , economically and legally the children who
are given adoption .Unless such a law applicable to all citizens irrespective of they
religion is enacted , the future of millions of children abandoned and destitute is
bleak .
The conversion laws , people converting from one religion to another is a
contentious issue there is a need for enactment of Uniformity Of Civil Code in this
area . The law commission of India has suggested the repeal of the Native Converts
Marriage Dissolution Act was only applicable to the Hindus converting to
Christianity , this act seems discriminatory . The Commission has recommended
for the enactment of a Uniform Civil Code , to be made applicable to people of all
religions converting to other religions .
Thought the country several liberals and women’s groups have argued that a
Uniform Civil Code would give the women more rights .In India many social evils
exist , taking this in view the committee on the status of women in India ,in its
report in the year 1971 in its report has recommended on this issue for the
enactment of a Uniform Civil Code . For women who constitute almost half the
population of India .A Uniform Civil Code will help in removing various social
evils by bridging the gender inequality . If the uniform civil code is enforced it will
, apart from removing the aforesaid remove the aforesaid social evils also provide
them with equality and justice in courts of law irrespective of they religion in the
matters pertaining to marriage , divorce , maintenance , custody of children
,inheritance rights adoption etc .