An Act to consolidate and clarify the provisions of Muslim law relating to suits

for dissolution of marriage by women married under Muslim law and to remove doubts as to the
effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

WHEREAS it is expedient to consolidate and clarify the provisions of Muslim law relating to
suits for dissolution of marriage by women married under Muslim law and to remove doubts as
to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie;

It is hereby enacted as follows:-

Short title and extent

1. (1) This Act may be called the Dissolution of Muslim Marriages Act, 1939.

(2) It extends to the whole of 1[ Bangladesh].

Grounds for decree for dissolution of marriage

2. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of
her marriage on any one or more of the following grounds, namely:-
(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period
of two years;

2[ (iia) that the husband has taken an additional wife in contravention of the provisions of the
Muslim Family Laws Ordinance, 1961;]

(iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from leprosy
or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained
the age of 3[ eighteen years], repudiated the marriage before attaining the age of 4[ nineteen
years]:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,-

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Qoran;

(ix) on any other ground which is recognised as valid for the dissolution of marriage under
Muslim law:

Provided that-
(a) no decree shall be passed on ground (iii) until the sentence has become final;

(b) a decree passed on ground (i) shall not take effect for a period of six months from the
date of such decree, and if the husband appears either in person or through an authorised agent
within that period and satisfies the Court that he is prepared to perform his conjugal duties, the
Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the Court within a period of one year from the
date of such order that he has ceased to be impotent, and if the husband so satisfies the Court
within such period, no decree shall be passed on the said ground.

Notice to be served on heirs of the husband when the husband’s whereabouts are not
known

3. In a suit to which clause (i) of section 2 applies-

(a) the names and address of the persons who would have been the heirs of the husband
under Muslim law if he had died on the date of the filing of the plaint shall be stated in the
plaint,
(b) notice of the suit shall be served on such persons, and

(c) such person shall have the right to be heard in the suit:

Provided that paternal uncle and brother of the husband, if any, shall be cited as party even if he
or they are not heirs.

Effect of conversion to another faith

4. The renunciation of Islam by a married Muslim woman or her conversion to a faith other than
Islam shall not by itself operate to dissolve her marriage: Provided that after such
renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of
her marriage on any of the grounds mentioned in section 2:

Provided further that the provisions of this section shall not apply to a woman converted to
Islam from some other faith who re-embraces her former faith.

Rights to dower not to be affected

5. Nothing contained in this Act shall affect any right which a married woman may have under
Muslim law to her dower or any part thereof on the dissolution of her marriage.

SECTION HEADING

1. Short title, extent, application and commencement.

2. Definitions.

3. Ordinance to override other laws, etc.

4. Succession.

5. Registration of marriages.

6. Polygamy.

7. Talaq.

8. Dissolution of marriage otherwise than by talaq.

9. Maintenance.

10. Dower.
 11. Power to make rules.

12. [Omitted]

13. [Omitted]

[1]THE MUSLIM FAMILY LAWS ORDINANCE 1961

(VIII of 1961)

[2nd March 1961]

An Ordinance to give effect to certain recommendations of the Commission on Marriage and

Family Laws

WHEREAS it is expedient to give effect to certain recommendations of the Commission on

Marriage and Family Laws;

NOW, THEREFORE, in pursuance of the Proclamation of the seventh day of October, 1958, and in
exercise of all powers enabling him in that behalf, the President is pleased to make and
promulgate the following Ordinance:
1. Short title, extent, application and commencement.– (1) This Ordinance may be called the
Muslim Family Laws Ordinance, 1961.

(2) It extends to the whole of [2][the Punjab], and applies to all Muslim citizens of Pakistan,
wherever they may be.

[3][(3) It shall come into force at once.]

[4][2. Definitions.- In this Ordinance:

(a) “Arbitration Council” means a body consisting of the Chairman and representative of each
of the parties to a matter under the Ordinance; and, in case any party fails to nominate a
representative within the prescribed time, the body formed without such representative shall be
the Arbitration Council;

(b) “Chairman” means the Chairman of a Union Council, Union Administration or Municipal
Committee or any officer authorized by the Government to discharge the functions of the
Chairman under the Ordinance and where the Chairman is a non-Muslim or he himself wishes to
make an application to the Arbitration Council, or is, owing to illness or any other reason, unable
to discharge the functions of the Chairman, the Arbitration Council shall select one of its Muslim
members as Chairman;

(c) “Government” means Government of the Punjab;

(d) “prescribed” means prescribed by rules made under this Ordinance; and

(e) “Union Council” means a Union Council, Municipal Committee, Cantonment Board, a Union
Administration or, in case of absence of any of these local governments in a local area, any other
comparable body constituted under any law relating to the local governments or local
authorities.]
3. Ordinance to override other laws, etc.– (1) The provisions of this Ordinance shall have effect
notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take
place only in accordance with those provisions.

(2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act,
1940[5], the Code of Civil Procedure, 1908[6], and any other law regulating the procedure of
courts shall not apply to any Arbitration Council.

4. Succession.– In the event of the death of any son or daughter of the propositus before the
opening of succession, the children of such son or daughter, if any, living at the time the
succession opens, shall per stirpes receive a share equivalent to the share which such son or
daughter, as the case may be, would have received if alive.

5. Registration of marriages.– (1) Every marriage solemnized under Muslim Law shall be
registered in accordance with the provisions of this Ordinance.

[7][(2) For the purpose of registration of marriages under this Ordinance, the Union Council
shall grant licenses to one or more persons, to be called Nikah Registrars.]

(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration
under this Ordinance, be reported to him by the person who has solemnized such marriage.

(4) Whoever contravenes the provisions of sub-section (3) shall be punishable with simple
imprisonment for a term which may extend to three months, or with fine which may extend to
one thousand rupees, or with both.

(5) The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be
preserved by Union Councils, the manner in which marriages shall be registered and copies of
nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as
may be prescribed.
(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union
Council the record preserved under sub-section (5), or obtain a copy of any entry therein.

6. Polygamy.– (1) No man, during the subsistence of an existing marriage, shall, except with the
previous permission in writing of the Arbitration Council, contract another marriage, nor shall
any such marriage contracted without such permission be registered under this Ordinance.

(2) An application for permission under sub-section (1) shall be submitted to the Chairman in the
prescribed manner, together with the prescribed fee, and shall state reasons for the proposed
marriage, and whether the consent of existing wife or wives has been obtained thereto.

[8][(2A) The Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the
columns of the nikahnama form with specific answers of the bride or the bridegroom.]

(3) On receipt of the application under sub-section (2), the Chairman shall ask the applicant and
his existing wife or wives each to nominate a representative, and the Arbitration Council so
constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to
such conditions, if any, as may be deemed fit, the permission applied for.

[9][(4) If a person contravenes the provision of:

(i) subsection (2A), he shall be punished to simple imprisonment for a term which may extend
to one month and fine of twenty five thousand rupees; and

(ii) subsection (3), he shall be punished to simple imprisonment for a term which may extend
to three months and fine of one hundred thousand rupees.]

(5) Any man who contracts another marriage without the permission of the Arbitration Council
shall,
(a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the
existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land
revenue; and

[10][(b) on conviction upon complaint be punishable with the simple imprisonment which may
extend to one year and with fine of five hundred thousand rupees.]

7. Talaq.– (1) Any man who wishes to divorce his wife shall, as soon as may be after the
pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his
having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple
imprisonment for a term which may extend to one year, or with fine which may extend to five
thousand rupees, or with both.

(3) Save as provided in sub-section (5), a talaq, unless revoked earlier, expressly or otherwise,
shall not be effective until the expiration of ninety days from the day on which notice under sub-
section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall
constitute an Arbitration Council for the purpose of bringing about a reconciliation between the
parties, and the Arbitration Council shall take all steps necessary to bring about such
reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effect until the
period mentioned in sub-section [11][(3)] or the pregnancy, whichever be later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this
section from remarrying the same husband, without an intervening marriage with a third
person, unless such termination is for the third time so effective.
8. Dissolution of marriage otherwise than by talaq.– Where the right to divorce has been duly
delegated to the wife and she wishes to exercise that right, or where any of the parties to a
marriage wishes to dissolves the marriage otherwise than by talaq, the provisions of section 7
shall, mutatis mutandis and so far as applicable, apply.

9. Maintenance.– (1) If any husband fails to maintain his wife adequately, or where there are
more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may,
in addition to seeking any other legal remedy available, apply to the Chairman who shall
constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue
a certificate specifying the amount which shall be paid as maintenance by the husband.

[12][(1A) If a father fails to maintain his child, the mother or grandmother of the child may, in
addition to seeking any other legal remedy, apply to the Chairman who shall constitute an
Arbitration Council and the Arbitration Council may issue a certificate specifying the amount
which shall be paid by the father as maintenance of the child.]

(2) A husband or wife may, in the prescribed manner, within the prescribed period, and on
payment of the prescribed fee, prefer an application for revision of the certificate, [13][to the
Collector] concerned and his decision shall be final and shall not be called in question in any
Court.

(3) Any amount payable under sub-section (1) or (2), if not paid in due time, shall be recoverable
as arrears of land revenue [14][:]

[15][Provided that the Commissioner of a Division may, on an application made in this behalf
and for reasons to be recorded, transfer an application for revision of the certificate from a
Collector to any other Collector, or to a Director, Local Government, or to an Additional
Commissioner in his Division.]

10. Dower.– Where no details about the mode of payment of dower are specified in the
nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be
payable on demand.
11. Power to make rules.- (1) The [16][[17][Federal Government] in respect of the Cantonment
areas and the Provincial Government in respect of other areas] may make rules to carry into
effect the purposes of this Ordinance.

(2) In making rules under this section, [18][such Government] may provide that a breach of
any of the rules shall be punishable with simple imprisonment which may extend to one month,
or with fine which may extend to two hundred rupees, or with both.

(3) Rules made under this section shall be published in the official Gazette, and shall
thereupon have effect as if enacted in this Ordinance.

[19][12. * * * * *]

[20][13. * * * * *]

SECTIONS

1. Short title and extent.

2. Application of the Muslim Personal Law.

2-A. Succession prior to Act IX of 1948.

3. Termination of limited estate under Customary Law.

4. Further operation of certain wills shall cease on the death of legatee-in-enjoyment.

 5. Devolution of property on the termination of life estate and certain wills.

6. Sections 3,4 and 5 only to be retrospective.

7. Repeal and savings.

[1]THE WEST PAKISTAN MUSLIM PERSONAL LAW (SHARIAT) ACT, 1962

(W.P. Act V of 1962)

[31 December 1962]

An Act to consolidate and amend the provisions for the application of Muslim Personal Law
(Shariat) in the Province of West Pakistan

Preamble.— WHEREAS it is expedient to consolidate and amend the provisions for the
application of Muslim Personal Law (Shariat) in the Province of West Pakistan;

It is hereby enacted as follows:-

1. Short title and extent.— (1) This Act may be called the West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962.

(2) It extends to the whole of [2][Pakistan].

2. Application of the Muslim Personal Law.— Notwithstanding any custom or usage, in all
questions regarding succession (whether testate or intestate), special property of females,
betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy,
family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and
trust properties, the rule of decision, subject to the provisions of any enactment for the time
being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.

[3][2-A. Succession prior to Act IX of 1948.—Notwithstanding anything to the contrary

contained in section 2 or any other law for the time being in force, or any custom or usage or
decree, judgment or order of any Court, where before the commencement of the Punajb Muslim
Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land
under custom from the person who at the time of such acquisition was a Muslim:-

(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such
land, as if such land had devolved on him under the Muslim Personal Law (Shariat);

(b) any decree, judgment or order of any Court affirming the right of any reversioner under
custom or usage, to call in question such an alienation or directing delivery or possession of
agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is
contrary to the Muslim Personal Law (Shariat) Act;

(c) all suits or other proceedings of such a nature pending in any Court and all execution
proceedings seeking possession of land under such decree shall abate forthwith:

Provided that nothing herein contained shall be applicable to transactions past and closed
where possession of such land has already been delivered under such decrees.]

[4][3. Termination of limited estate under Customary Law.— The limited estates in respect of
immovable property held by Muslim females under the Customary Law are hereby terminated:

Provided that nothing herein contained shall apply to any such estate saved by any
enactment, repealed by this Act, and the estates so excepted shall continue to be governed by
that enactment, notwithstanding its repeal by this Act.]
4. Further operation of certain wills shall cease on the death of legatee-in-enjoyment.— Where
a will providing for more than one legatee succeeding to the testator’s property one after the
other is operative at the commencement of this Act, its further operation shall cease upon the
death of the legatee-in-enjoyment.

5. Devolution of property on the termination of life estate and certain wills.— The life estate
terminated under section 3 or the property in respect of which the further operation of a will
has ceased under section 4 shall devolve upon such persons as would have been entitled to
succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the
testator as though he had died intestate; and if any such heir has died in the meantime, his share
shall devolve in accordance with Shariat on such persons as would have succeeded him, if he
had died immediately after the termination of the life estate or the death of the said legatee:

Provided that the share to which a Muslim female holding limited estate under Customary
Law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the
last full owner shall devolve on her.

6. Sections 3, 4 and 5 only to be retrospective.— Save as expressly provided by the provisions of

sections 3,4 and 5, this Act shall have no retrospective operation.

7. Repeal and savings.— (1) The following enactments are hereby repealed—

(a) The Punajb Limitation (Custom) Act, 1920[5];

(b) The Punjab Custom (Power to Contest) Act, 1920[6];

(c) The Muslim Personal Law (Shariat) Application Act, 1937[7], in its application to West
Pakistan;

(d) The North-West Frontier Province Muslim Personal Law (Shariat) Application Act,
1935[8];

(e) The Punjab Muslim Personal Law (Shariat) Application Act, 1948[9];

(f) The Muslim Personal Law (Shariat) Application (Sind Amendment) Act, 1950[10];

(g) The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951[11];

(h) The Khairpur State Muslim Female Inheritance (Removal of Customs) Act, 1952[12].

(2) [13][* * * * * * * * * * * *]

INTRODUCTION

In the pre-Islam Arabia, the laws were favourable towards males and discriminatory against the
women. Polygamy had to be accounted for in a very few blood relationships like in marriage with
one’s real mother or sister. Marriages were of different kinds and divorce was simple and easy
for the man. With absolute rights vested in men and no checks led to men denying the women
their basic rights.

Islam brought with it a due status for women and regarded them as dignified members of the
society. ‘Nikah’ literally means ‘to tie up together’ and referred to the Islamic marriage. It is a
matrimonial contract as well as an institution that gives the women a particular and high status
in the society. Nikah was to ensure stability in a married life as it bound both the partners
together for an indefinite period and also required the woman to be honoured with the mahr.

Islam allows limited polygamy, i.e. four wives at a time. This was allowed as during the numerous
wars during the Prophet’s time in Arabia, many Muslim men lost their lives. Thus, the women
outnumbered the men. The war-widows and orphans became destitute as they had no standing
in the society and lead miserable lives. In order to prevent injustice, Quran allows limited
polygamy through the following Ayat: “marry of the women, who seem good to you, two or
three or four, if you fear that you cannot do justice to so many, then one.”

Justice refers to equal love and affection as well as boarding and lodging. The Quran has another
Ayat that “you will not be able to deal equally between your wives however much you wish to do
so”. Thus, it can be safely inferred that though Islam permits four wives at a time it is actually in
favour of monogamy. The Motazila Muslims follow monogamy strictly. But Muslims all over the
globe follow the traditions of the Prophet and practise polygamy.

As per the statistics, Indian Muslims seem to prefer monogamy. Though they are allowed to have
four wives as per the law, the Muslim government servants require the government’s permission
before contracting the second marriage. Muslim countries like Turkey and Tunisia have laws for
monogamy. Pakistan has discouraged polygamy by implementing laws that makes it difficult to
marry two or more times.

DEFINITION

Hedaya says that “Marriage implies a particular contract used for the purpose of legalising
children.

Justice Mahmood has defined the Muslim marriage as “a purely civil contract”.

NATURE AND CONCEPT OF MARRIAGE

The object of a Muslim marriage is to legalise children and to a large extent to regulate and
validate the sexual relations. Apart from being a civil contract, it is also a social and religious
institution.

LEGAL ASPECT

Legally speaking a Muslim marriage is a contract for it has a few elements of a contract. The
parties have to be competent and offer, acceptance and free consent form an important part.
Within a limit, the parties can decide the terms of the marriage and in case of breach; there are
provisions for the rights and obligations of the parties. It can be safely said that marriage is very
similar to a contract.

SOCIAL ASPECT

Marriage is a social institution and a social method to give an equal status to women. The dower,
which is essential for a Muslim marriage, provides a security net for the woman in case of need.
Limited polygamy helps raise the woman’s standing and dignity in the society. By placing
prohibitions on the marriage, the relationships of families can be regulated and the ill effects of
in breeding are avoided.

RELIGIOUS ASPECT

Marriage is the tradition of the prophet as well as present in the words of Quran. Thus, a person
who marries gets religious benefits and the abstainer would have committed a sin. In ANIS
BEGAM v MOHD. ISTAFA (1933)55 All, 743, it has been held to be a religious sacrament.

ESSENTIAL OF A VALID MARRIAGE

A marriage is a valid marriage or Sahih only if it is recognised by the courts to be lawful.

I) COMPETENCE OF THE PARTIES

a) Age of Puberty

For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty
and not 18 years of age. Though Hedaya says the minimum age of puberty for a boy is 12 years
and for a girl it is 9 years; it has been fixed at 15 years of age by the Privy Council in the year
1916. Thus, a boy or a girl of 15 years of age will be presumed to have attained the age of
puberty unless the contrary is proved.

Minor’s Marriage

Under Muslim law, a person under 15 years of age is presumed to be a minor and has no
capacity to give consent for marriage. Unless and until the guardian’s consent is not obtained the
marriage will be void. Guardians for marriage are different from guardians appointed by the
court. The order of the priority is as follows:

i) Father;

ii) Paternal Grandfather, how ever high;

iii) Brother or other male members of the father’s family;

iv) Mother; and

v) Maternal uncle, aunt or other maternal relatives.

A remoter guardian for marriage can not get the minor married off with out actually following
the prescribed order and such a marriage will be void.

Shia Law says that only the father or the paternal grand-father how ever high can be the
guardians for marriage.

The Child Marriage Restraint Act, 1929 provides that a child marriage exists and will be valid but
the guardians and others who conduct it can be punished. A child marriage can be prevented by
an injunction.
Option of Puberty (Khyar-ul-Bulugh)

Under Muslim marriage, a minor on attaining the age of puberty can exercise the option of
puberty wherein the minor can approve or disapprove the marriage contracted by the guardian
who is not the father or the grand father. If he disapproves, the marriage will dissolve with
immediate effect. If the minor says nothing, it will be presumed that he has approved the
marriage. As per the Shia law, a minor has to approve his marriage upon attaining the age of
puberty.

If the father or the grandfather has contracted marriage fraudulently or negligently, the minor
can repudiate the marriage on attaining the age of puberty. A wife can exercise the right even if
the marriage was contracted by her father or her grandfather. There can be no unreasonable
delay in the exercise of the option of puberty. The husband will lose his right to the option of
puberty if the marriage has been consummated. The wife will also lose her right unless the
consummation has taken place when the wife was still a minor and against her consent.

b) Soundness of Mind

Lunatics can get married during the lucid intervals for they can understand the consequences.
Idiots on the other hand can not do so. Idiocy refers to an abnormal state of the mind wherein
the person can not understand the consequences of their actions.

Marriage of insane persons

A person can contract a lawful marriage through a guardian. On recovering reason the said
person can repudiate the marriage.

c) Religion of the parties

The parties can marry any Muslim irrespective of sects or sub sects.
Inter-Religion Marriage

Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect or even a Kitabia girl. A
Kitabia female is one who belongs to a community that originated in a book revealed by the
heavens. Thus, the Jews and the Christians can be wed to a Sunni male. A marriage with a non-
Muslim or non-Kitabia female, the marriage is merely irregular. Under Shia law, a marriage with a
non-Muslim or a Kitabia woman is not permitted. However, a Muta marriage may be contracted
with a Kitabia or Parsi female.

Marriage of a Muslim Female with a non-Muslim male

A Muslim female has no right to contract a marriage with a non-Muslim even if he is a Kitabia or
Parsi. Such a marriage will be void.

The Special Marriage Act, 1954 allows any man or woman to get married to each other whether
a Muslim or a non-Muslim. The succession will be governed under the Indian Succession Act,
1925.

II) FREE CONSENT OF THE PARTIES

If the parties are sane and adults, they can give consent on their own and the marriage will be a
valid one. If the parties or one of them is either a minor or insane, the consent has to be
obtained by the guardian. The consent will be deemed free when it is made at will and given
voluntarily and not under any coercion or fraud.

Coercion is when the party is made to consent under the threat of harm to self or a loved one.
All sects and schools render a marriage under coercion to be void. The Hanafi School is the only
exception. It is believed in the school that three things can not be undone ever even if
committed as a joke. The three things are marriage, divorce and taking back.
Fraud refers to a dishonest concealment of facts or presentation of false facts or statements to
obtain consent. The moment the party whose consent was obtained by fraud comes to know of
such fraud, he or she may accept the marriage as a legal one or altogether reject it.

Mistake of Fact is when the parties agree but not on the same thing. Consent refers to the
meeting of the minds on the same issue. Where the identity of the bride to be, for example, is
mistaken, the marriage will be void.

III) FORMALITIES IN THE MARRIAGE

Under Muslim law, religious ceremonies are not essential for validating a marriage. The only
essential formalities are that of offer and acceptance.

Offer and Acceptance

Offer or Ijab signifies the willingness of a party to contract marriage with another. The offer
comes in form of a declaration from the boy or his guardian. This offer has to be accepted by the
girl or her guardian. This is referred to as acceptance or Qubool. Though no specific form exists,
the words must show the unequivocal intention of the parties orthe guardians to marry the
parties. It may be oral or written. When written down, it is referred to ass the Kabinnamah.

It is essential that the offer and acceptance occur at the same sitting. Thus, simultaneous actions
must become a joint whole. For example, the groom to be has to send the offer through another.
The bride must accept it in presence of others and then the marriage will be a valid one.

Reciprocity is another important aspect. The acceptance has to be for the proposal word to
word, as it is and without any variations.

Conditional or Contingent Marriage is void even if the event that they are made dependent upon
does in fact occur.
Presence of Witnesses is not essential under the Shia law. Under the Sunni law, the offer and
acceptance needs to two competent witnesses. A Muslim male who is of sound mind and has
attained the age of puberty is a competent single witness. Two sane Muslim females who have
reached the age of puberty can also be treated as competent witnesses. Thus, two Muslim
women along with a competent Muslim male witness will be regarded as competent witnesses
for the marriage. Four females will not be regarded as competent witness. The term ‘witnesses’
does not refer to any one specifically asked or invited for this purpose only.

Registration under Muslim law is not essential for the validity of the marriage. But certain
enactments provide for registration in the matters of marriage as well as divorces. The acts do so
because then there exists a proof of the marriage. But even then the registration is optional only
and not mandatory. It has also been held in a few cases that if the community custom requires
registration, even if it is in a different format, the marriage has to be registered then. Under the
Indian Christian Marriages Act, 1872, the registration of marriage will be essential if the marriage
is between a Muslim and a Christian.

IV) ABSENCE OF PROHIBITION

Prohibition refers to the impediments or restrictions placed on a person with respect to another
person or an action. The Muslim law provides that the marriage should not be a marriage
against Islam or have any other impediments to it. Absence of prohibition refers to the freedom
to marry a person for they do not stand in a particular relationship to each other. For example, a
father cannot marry his own daughter.

Absolute Prohibitions

They are mandatory and have to be followed or else the marriage will be void. If a person is
within the prohibited relationship of the other party, the marriage cannot take place.

Whether a person is within the prohibited relationship or not can be decided on the following
basis:

a) Consanguinity is relationship by Blood.A Muslim cannot marry one’s own descendant,

however high or descendents of one’ father or mother no matter how low. Similarly brothers
and sisters of one’s ascendants howsoever high can not be married to. However, there is no
prohibition in the marriage of cousin brothers or sisters.

b) Affinity refers to relation by marriage. A Muslim can not marry the ascendant or descendant
of one’s spouse or the spouse of one’s ascendant or descendant.

c) Fosterage refers to the relationship of nurture and feeding. A child is breast fed during its
infancy. If the person providing the feeds is someone other than the biological mother, the infant
or child will still stand in a prohibited relationship with her.

Relative Prohibitions

Where the compliance is not mandatory but non-compliance will be frowned upon. Any
marriage in violation will be only irregular and not void. As per Shia law, the marriage will be
either perfectly valid or void and not irregular.

a) Unlawful Conjunctions

A Muslim can not have two wives at the same time if the wives are related to each other in a
way that would have made their marriage void if they had been of opposite sex. As per the Sunni
law, a marriage against this condition is irregular. The Shia law will treat violation as a void
marriage. The only exception will be if the marriage is with the wife’s consent.

b) Marriage with the fifth wife

If a Muslim man has more than five wives, it is merely irregular with respect to the fifth wife. If
he divorces a wife or a wife dies, the irregularity will be removed with respect to the fifth wife.

c) Marriage with a non-Muslim has been discussed early on in the chapter.

d) Marriage without witnesses is irregular as per Sunni law.

e) Marriage during Iddat is irregular as per the Sunni law and void as per the Shia law.

Iddat refers to the period that a woman undergoes after divorce or the death of her husband. It
literally means counting. This period is essential to ascertain whether the wife/widow is
pregnant or not. During this time, the woman leads a simple and chaste life. The circumstances
where she has to observe Iddat and how are as follows.

1) Dissolution of Marriage by divorce

If the marriage was a valid one and consummated, the duration of Iddat is three monthly
courses. The marriage could have been dissolved through Talaq, Ila, Zihar or under the
Dissolution of Muslim Marriage Act, 1939. If the woman is pregnant, the period of Iddat extends
till the delivery or abortion of the foetus. If the marriage has not been consummated, the
woman is not required to observe Iddat.

2) Divorce of marriage by the death of the husband

If the marriage was a valid one, the period of Iddat extends up to 4 months and 10 days
irrespective of the fact whether the marriage was consummated or not. If the woman was
pregnant at the time, the period of Iddat is on till the delivery or the abortion or the earlier
specified period, which ever is longer.

3) Death if husband during divorce Iddat

If the husband dies during the divorce Iddat, the wife has to start a fresh Iddat of 4 months and
10 days from the date of death of the husband.

4) Commencement of Iddat

The period of Iddat starts from the date of divorce or death and not from the date of the wife
receiving a notice of the same. Thus, if the wife gets the notice of such an even after the
specified period of Iddat has expired, she does not have to observe Iddat.

Under Shia law, Iddat need not be observed if the wife is past the childbearing age or if she has
not even attained puberty.

Valid Retirement refers to when a couple spends time together in private and there is no moral,
social or legal restriction in their intercourse. As per Sunni law, a valid retirement raises the
presumption of consummation of the marriage. Thus, Iddat will have to be observed even if
there was no actual consummation but a valid retirement has been proved. Shia law does not
recognise the concept of valid retirement.

Husband is prohibited from remarrying during iddat if and only if he already has four wives.
Thus, he can not marry another woman till the iddat period is over. In case, such a marriage does
take place, it will be merely irregular and not void.

Miscellaneous Prohibitions

a) Marriage during pilgrimage is void as per Shia law only.

b) Rule of Equality refers to the society’s prohibition on marriage wherein the husband and wife
must be of the same standing and equal therefore. The marriage in violation of this rule can be
invalidated by the Qazi. The Shia law does not recognise this rule.
c) Re-marriage between the divorced couple is allowed provided a procedure if followed. The
divorced wife has to marry another man fulfilling all the requisites of a valid marriage. The
marriage has to be consummated. Then the present husband has to divorce her voluntarily and
the wife has to observe Iddat. Then she may marry her first or former husband. If the procedure
is not followed, the marriage will be merely irregular.

d) Polyandry is not permitted and the second marriage will be void under Shia and Sunni law.

KINDS OF MARRIAGE

Valid Marriage or the Sahih Marriage

Under all schools of Muslim law, the basic requirements have to be fulfilled, i.e. the parties are
competent, the consent of the parties is free consent and the offer and acceptance has been
duly made.

Legal Effect of a Valid Marriage

i) The co habitation of the parties becomes lawful and not immoral;

ii) The children born to a lawfully wedded couple are legitimate and can inherit
accordingly;

iii) For the couple itself, mutual rights of inheritance arise;

iv) The wife can claim dower and has a right to maintenance and simultaneously the
obligation to observe Iddat is bestowed upon her;
v) Prohibited relations are created due to the marriage;

vi) The legal identity or status of a Muslim woman does not blend in with her husband’s
identity after marriage; and

vii) The parties have rights to regulate the movements of each other but they can not
refrain each other from maintaining a relationship with their respective families or visits to then.

Void Marriage or the Batil Marriage

It is an illegal union that exists not in law. Thus, a marriage in violation of absolute prohibitions
or polyandry is a void marriage. Shia law provides a few additional grounds like marriage during
a pilgrimage or marriage with a non-Muslim or a woman observing Iddat.

Legal Effects of a Void Marriage

No mutual rights or obligations are created for the parties in this union. The children born to
such a couple are deemed illegitimate and the wife has no rights to dower or maintenance. The
parties can actually marry any one they wish for this marriage does not exist in law or in fact.

Irregular Marriage or Fasid Marriage

An incomplete marriage where the deviation from procedure or a flaw can be removed, it is
called an irregular marriage. For example, the marriage with the fifth wife or with a woman
observing Iddat will be treated as an irregular marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful and the children are legitimate and can inherit the properties of their
parents. Mutual rights of inheritance do not arise. After consummation only, can the wife claim
dower. The wife does not have to observe Iddat if the marriage is not consummated.

Temporary marriage or Muta Marriage

It is a unique form of marriage recognised only under the Ithna Asharia School. It is a union for a
particular time only with consideration as a pre-requisite. The roots can be

traced back to the early Arabia, where men had to travel long and far. To confer legitimacy on
the offspring produced during the travels, the Prophet allowed this Muta or enjoyment marriage
for some time. Later, he prohibited it absolutely.

It is essential that the parties must be competent to contract marriage because the guardians
cannot contract for a Muta marriage. The Muslim male can contract Muta marriage with a
Muslim,

Kitabia or Parsi woman but the Muslim woman can contract the same only with Muslim men.
Any number of Muta wives can be contracted with.

The formalities of free consent, offer and acceptance as well as absence of prohibition have to
be followed. The dower must be specified at the time of marriage otherwise the marriage will be
deemed void. The duration of the Muta marriage must be specified or else it will be deemed as a
permanent marriage.

Legal Effects of Temporary Marriage

The cohabitation between parties becomes lawful and consequently even the children are
legitimate children. There will be no mutual rights of inheritance between the husband and wife.
The husband has to pay the whole dower amount if he leaves without finishing the duration of
the marriage. If the wife were to leave before the expiry of the specified time, the husband can
deduct a proportionate amount from her dower.

Maintenance is not available to the wife as a right. There is no divorce in Muta marriages. It ends
on the prescribed time or departure of one of the parties. Iddat has to be observed for two
months if the marriage has been consummated, else it is not needed. If the marriage dissolved
due to death, 4 months and 10 days is the iddat period.

Marriage Agreements are allowed under Muslim law. Even subsequent to the marriage, a couple
can enter into an agreement for regulation of their relationship. If the guardians have made such
agreements when the parties are not competent to do so, the agreement will be binding on
them. Any agreement working against Islam is void. For example a marriage agreement wherein
the wife is not allowed to claim her dower or the couple can stay separately without any
reasonable cause would be illegal.

Marriage agreements are binding on the parties as long as they are legal. For example an
agreement wherein the husband cannot contract another marriage during the subsistence of the
first is a valid agreement. Similarly, an agreement stating that the husband shall not stop the wife
from receiving her relatives at his house at any time is also valid.

Breach of a Marriage Agreement if the agreement was a valid one gives rise to rights of refusal
for restitution, dower related rights and in extreme scenarios, dissolution of the marriage.

RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights refers to giving back the right to one party to stay with the spouse.
As a couple is entitled to stay together and enjoy each other’s company, if one spouse stays away
without reason, the other can file a suit to move back with the aggrieved party. The courts have
to look into the circumstances of each case and then decide. A wife can claim defences against
her husband’s claim as given below:

a) He falsely accused her of adultery;

b) Her prompt dower was not paid on demand;

c) The husband has been expelled from the caste;

d) Cruelty, physical or emotional, by the husband; and

e) Husband converted from Islam to another religion or used objectionable words against the
Prophet, etc.

The Dissolution of Muslim Marriages Act, 1939 has widened the defences even more.

DOWER (PART 1 OF 2)

INTRODUCTION

Initially, a marriage in Arabia was similar to a contract for purchasing a girl from her guardian.
The property or cash received by the guardian as compensation for the girl was called Mahr.
Otherwise, the husband paid the money/ gave the property to the wife directly.

After the advent of Islam, the Prophet retained this payment; but the payment was to be made
to the wife and not to her guardian. He also clarified that the payment was not the price,
consideration or a mere gift for marrying him; it was a mark of respect. It was to acknowledge
her dignity and her high status as awarded by the Muslim law.

DEFINITION

It is that money/property which a Muslim wife is entitled to from her husband on marriage as a
token or symbol of respect for her.

Though some define it as a sum of money or other property promised by the husband to be paid
or delivered to the wife in consideration for marriage, it is submitted that Dower is not a
consideration. Hedaya says that it is merely a token of respect for its object, the woman.

Though Dower fulfils the requirement of being the consideration as the Muslim marriage is
considered to be a contract, it is merely an obligation that law has fixed upon the husband. Non-
specification of Dower at the time of marriage does not render it illegal but consideration forms
an essential part of a contract and would render it void. It is only under the Ithna Asharia School,
that the woman can give away this right before itself as it presumes that the parties are adults
and mature enough to understand the consequences.

Muslim jurists claim Dower to be a way through which a husband can admit and acknowledge
his wife’s dignity and honour. The practical reasons, however, are two. Firstly, the wife has the
Dower money/property for her exclusive use. Thus, she will not be helpless if the marriage is
terminated. Secondly, it serves as a check on the husband’s unrestricted right of pronouncing
talaq because generally the amount of Dower is fixed at exorbitant heights.

CLASSIFICATION

The basis of classification is whether the parties or operation of law has fixed the Dower and
whether it is payable upon dissolution only or the wife can demand it at any time.

It can be studied in the following manner:

a)Unspecified Dower (Mahr-i-Misl)

b) Specified Dower (Mahr-i-Musamma)

Unspecified Dower or Prompt Dower.

If the amount of Dower is not specified at the time of marriage, it is called Prompt Dower. Then
the wife is entitled to get a proper Dower that is fixed by the courts based on definite and
specific principles. The non-specification should be due to mala fide intentions or negligence.
Even if there were a contract that the wife would not claim any Dower, the wife would still be
entitled to proper Dower.

The amount of proper Dower varies as per the application of the following principles:

a) Qualifications of the wife, personal and otherwise;

b) Social position of the wife’s father; and

c) Custom in the wife’s family with respect to Dower.

Hedaya is of the view that age, beauty, fortune and understanding as well as virtue of the wife
are also of significance. Basic principle here is that there should be a comparison between
equals.

Shias call it Mahr-I-Mithl or the dower of the like or the equal. It is also called the Customary
Dower.

Shia Law sets the upper limit of Dower as 500 dirhams. A dirham is said to be a 2.9 odd grams
silver coin. This was the amount of Dower in the marriage of Fatima, the Prophet’s daughter.
Thus it is also called Mahr-i-Sunnat, as per the traditions of the prophet.

Specified Dower

Usually the Dower is fixed before or at the time of the marriage. The sum or property fixed is
called the Mahr-i-Musamma. It can be settled orally or through a written agreement called the
Mahr Nama or may be incorporated in the nikah nama itself.

Where the parties have attained puberty and are sane, they can fix their own Dower. For minors
or insane parties, their guardians will fix the Dower for them. This amount will be binding on the
boy/husband and not on the guardian. But if the guardian becomes a surety and guarantees
payment, he will be personally liable to pay on the husband’s default.

Shia law makes the guardian liable to pay the Dower if the minor husband has no means of his
own.

WRITTEN BY K

AUGUST 29, 2016

DOWER (PART 2 OF 2)

WHAT MAY BE DOWER

Any object of value, any movable or immovable property, can be settled as Dower. Future
property is an exception to this rule. Un-Islamic property (wine) cannot be Dower either. Only
lawful Dower can be paid, else the wife will be held entitled to a proper Dower. Profits, rents,
benefits of life insurance can be considered as Dower.

Personal services are not the subject matter as per the Sunni law but Shia law recognises
personal services or the promise to perform personal services by the husband for a specified
period may be regarded as Dower.

AMOUNT OF DOWER

There exists no maximum limit for specified Dower. As per Sunni law, there is a minimum of
specified Dower of 10 dirhams. Shia law recognises no minimum limit. But it must be noted that
the figure of 10 dirhams stands for a reasonable amount in the spirit.

Oudh Laws Act 1876, provided for only the Dower as per the husband’s capacity where the
amount fixed for Dower is too high for his means and capacity.
After marriage, both the parties may lawfully enhance the amount of Dower through a contract.
The husband cannot, however, reduce the amount of Dower subsequent to the marriage. The
wife, only, can remit or reduce her claim.

Specified Dower is usually part deferred and part prompt. The wife can demand prompt part at
any time, irrespective of the fact whether consummation has taken place or not. If there is delay,
the wife will be entitled to interest on the amount for the period of delay. The wife can even
refuse consummation till the prompt Dower is not paid. Please keep in mind that the
promptness is not with regard to the demand but in the payment after the Dower is paid.

Deferred Dower is payable on the dissolution of marriage or upon the happening of a certain
event, if so agreed between the parties. Thus, the wife can demand deferred Dower only after
termination of her marriage. In case of her death, her legal heirs can claim it. The husband has
the choice of paying the deferred Dower even before dissolution or happening of a specified
event.

Where it is not specified whether the Dower is prompt or deferred, the Sunni law states that
what part is prompt and what part is deferred will be decided as per the local custom, amount of
Dower and the status of the parties. The Shia law treats the whole Dower as prompt Dower in
absence of specifications. The courts in India and abroad, generally, treat the ambiguity as
rendering the Dower as prompt Dower.

WHAT AMOUNT OF DOWER IS PAYABLE

As soon as the marriage takes place, the wife is entitled to the Dower. But the amount differs in
different situations.

Valid Marriage: Where the marriage has not been consummated, the wife is entitled to only half
of the specified Dower. If the Dower has not been specified, the wife gets only a nominal
amount. If the marriage dissolved due to either party exercising the option of puberty, the wife
gets no Dower.

If the marriage has been consummated, the wife will get the full amount of the specified Dower
and the proper Dower in cases of unspecified Dower.
Irregular Marriage: If the marriage has not been consummated the wife will not be entitled to
any Dower, whatsoever.

If the marriage was consummated, the wife will be entitled to proper Dower or the specified
Dower, whichever is less in the cases of specified Dower. If the Dower was not specified, the
proper Dower will be paid to her.

REMISSION

Upon marriage, the wife is vested with the right to Dower. She may or may not enforce it. She,
out of love and affection, may even relinquish or remit her right to Dower. This is called
remission of Dower. She can remit part or whole of her Dower. After a lawful remission, the
husband does not have to pay the remitted Dower to his wife. Any agreement before marriage
not to exercise her right of Dower is void. Dower is essential for a Muslim marriage. After
marriage it is the wife’s property and she can deal with it, as she wants to.

CONDITIONS FOR A VALID REMISSION

The wife has to be an adult and sane at the time of remission. While a few High Courts take the
definition of major from the Indian Majority Act, 1875, others have taken it to be the age of
puberty, i.e. 15 years of age.

The remission must have been made with free consent and not under any abnormal
circumstances, coercion or undue influence, etc.

Remission has to be in writing as it deals with the relinquishment of a right to property.

The husband can only increase the dower amount. It is called Hiba-I-Mahr.

NATURE OF RIGHT TO DOWER

Once the right to Dower is vested, it is never lost.

Under the Muslim law, the right to Dower is not lost even if the wife renounces Islam, commits
adultery or in the worst case, murders her husband. Under the law of the land, seeking divorce
under the Dissolution of Muslim Marriage Act, 1939 will not affect the wife’s right to Dower in
any way.

Unpaid Dower is an unsecured debt.

Unsecured debt is one where no security has been provided for repayment. It is a simple debt
and an actionable claim. The wife can claim her unpaid Dower from her husband like a creditor
but her claim will not have superiority over secured debts. Her debts will have priority over the
other heirs’ debts.

ENFORECEMENT OF THE RIGHT TO DOWER

Refusal of conjugal rights

A Muslim wife can refuse to cohabit with her husband if her prompt Dower is not paid as was
held in NASRA BEGAM v. RIZWAN ALI, AIR (1980) All. 118. The guardian of a minor or insane wife
can exercise this right against the husband. If the consummation has already taken place, the
husband can effectively file a suit for restitution of conjugal rights. However, the courts can at
their discretion make such restitution dependent on the payment of the Dower too as was held
in ANIS BEGAM v. MUHAMMAD ISTAFA WALI KHAN (1933) All. 743.

1. Introduction:

Maintenance is called nafaq, and it ‘comprehends food, raiment and lodging, through in
common parlance, it is limited to the first. Under Islamic law, husband is duty bound to maintain
his wife. The woman in Islam is exempted from any financial earning liability. She is entitled for
maintenance under Islamic Law.

2. Primary Duty of Maintenance:

It is the primary duty of husband to maintain her wife. And even if she is residing in house of her
father and her husband does not require her to his own house and cohabit with her there.

Case Law

Abdul Satar vs. Anwar Begum 1992 ALD 506

It was held that wife is entitled to receive maintenance allowance from husband, if she had not
refused to live with him without any sufficient reasons.

3. Remedies for Wife:

i. Wife may file suit in the family court for maintenance.

ii. Wife can also file application in the office of chairman of union council.

4. When wife is not entitled for maintenance:

In the following cases the wife is not entitled for maintenance:

i. If she becomes disobedient.

ii. If she is incapable to perform matrimonial intercourse.

iii. If she refuses to live with her husband unjustifiably.

iv. If she becomes widow.

v. If she becomes able to maintain herself.

vi. In case of irregular or void marriage.

vii. Where she has been taken away forcibly by another person.

viii. In case the fault is on her own part.

ix. If she has been imprisoned.

x. Apostasy.

5. Obligations arising on Marriage:

(i) Wife’s right

• The wife is entitled to maintenance from her husband although she may have the means
to maintain herself, and although her husband may be without means.

• The husband’s duty to maintain commences when the wife attains puberty and not
before; provided always that she is obedient and allows him free access all lawful times. In
addition to the legal obligation to maintain, there may be stipulations in the marriage contract
which may render the husband liable to make a special allowance to the wife. Such allowances
are called kharch-I pandan, guzara, mewa khori, etc.

• An agreement for future sepration, however, and for the payment of maintenance in
such an event is void and against public policy.

• A Muslim wife has a just ground for refusal to live with her husband and she can claim
separate maintenance against him where he has taken a second wife or keeps a mistress.

(ii) Right to sue:

If a husband refuses to pay maintenance, the wife is entitled to sue for it. Her right may be based
on the substantive law or she sue under the Code of Criminal Procedure, 1980, Section 448 in
which case the Court cannot order the husband to pay more than a sum of Rs. 500 per month.
But the wife is not entitled to past maintenance, except under Shi’ite and Shafe’I law, or where
there is a distinct agreement. In fixing the sum by way of maintenance, the Hedaya and Fatawa
‘Alamgiri lay down the rule that the judge in exercising his discretion should consider the rank
and the circumstances of both the spouses, a rule which appears to be eminently fair and just.

(iii) Duration of right:

The wife’s right to maintenance ceases on the death of her husband. The widow is therefore not
entitled to maintenance during the ‘idda of death. It is otherwise in the case of divorce, where
she is entitled to maintenance during ‘idda.

(iv) Failure to Maintain, Desertion:

• Under the Dissolution of Muslim Marriages Act, 1939, Section 2(ii), a wife is entitled to
dissolution if the husband has failed or neglected to provide maintenance for a period of two
years.

• In Hanafi Law neither inability, nor refusal, nor neglect to maintain were sufficient
grounds, but the schools of Imam Malik and Imam Shafe’I considered these as proper grounds
for granting dissolution.

(v) Children and Descendants

• A father is bound to maintain his sons until they attain puberty and his daughters until
they are married. He is also responsible for and unkeep of his widowed or divorced daughter. An
adult son need not be maintained unless he is infirm.

• If the father is poor, the mother is bound to maintain the children. And, failing her, it is
the duty of the paternal grandfather. Thus, grandchildren and other lineal descendants also
possess rights of maintenance.

(vi) Daughter-In-Law

A father-in-Law is under nor obligation to maintain his widowed daughter-in-law.

(vii) Illegitimate Child

A father is not bound to maintain an illegitimate child; but in the Hanafi school the mother is
bound to support her natural son or daughter.

6. Obligations Arising out of Blood Relationship:

(i) Ascendants:
A person in easy circumstances is bound to maintain his indigent parents, and also his
grandparents, paternal as well as maternal.

(ii) Other relations:

The general principle is laid down in the Fatawa ‘Alamgiri:

“Every relative within the prohibited degrees is entitled to maintenance, provided that, if a male,
he is either a child and poor, or, if adult, that he is infirm or blind and poor and if a female, that
she is poor whether a child or adult.”

Poor or not, a man is bound to maintain his wife and children; but distant relatives are only to be
maintained if they are poor and he himself is ‘in easy circumstances’.

View of D. F. Mulla:

According to D. F. Mulla in his book ‘Principles of Muhammadan Law’:

“If the father is poor and infirm, and the mother also is poor, the obligation to maintain the
children lies on the grandfather, provided he is in easy circumstances.”

“Persons who are not themselves poor are bound to maintain their poor relations within the
prohibited degrees in proportion to the share which they would inherit from them on their
death.”

7. Liability of husband after divorce:

After the divorce the wife is entitled to maintenance doing the period of Iddat.

8. Case where wife is not informed about divorce:

If the divorce is not communicated to her, she is entitled for maintenance until she is informed of
the divorce.

9. Arrears of Maintenance:

The arrears of maintenance are recoverable as the arrears of land revenue.

10. Decree of maintenance up to one thousand is not appeal able:

Decree of the court of maintenance up to one thousand rupees is non appeal able.

11. Conclusion:

Where the paternity of a child, i.e., its legitimate descent from its father, cannot be proved by
establishing a marriage between its parents at the time of its conception or birth, such marriage
and legitimate descent may be established by “acknowledgement”.
An acknowledgement of paternity need not be express. Such an acknowledgement may be
presumed from the fact that one person has habitually and openly treated another as his
legitimate child. As observed by the Privy Council, “It has been decided in several cases that
there need not be proof of an express acknowledgement, but that an acknowledgement of
children by a Muhammadan as his sons may be inferred from his having openly treated them as
such.” (Muhammad Azmat v. Lalli Begum 1881 9 I.A. 8)

Paternity of a child is established if the child is born during continuance of a valid marriage or
within 280 days of its dissolution, the mother remaining unmarried.

Maternity of a child is established in the woman who gives birth to the child; it is immaterial
whether the child is an offspring of a valid or irregular marriage, or even of a fornication or
adultery.

Principle of the Doctrine of Legitimacy by Acknowledgement:

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a child
and the marriage of its mother. Since a marriage among Muslims may be constituted without
any ceremony, the existence of a marriage in a particular case may be an open question. If no
direct proof of such marriage is available, indirect proof may be relied upon. Acknowledgment of
legitimacy of a child is one of the kinds of indirect proof.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child, the
paternity of that child is established in him. But the doctrine applies only to cases where the fact
of an alleged marriage is an uncertainty.

It cannot be availed of to legitimise a child who is known to be illegitimate. The doctrine of

legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and
establishment of legitimacy by the force of such acknowledgement.

Conditions of a Valid Acknowledgement of Legitimacy:

Muhammadan law prescribes a special mode of establishing the legitimacy of a child. When a
man either expressly acknowledges, or treats in a manner tantamount to acknowledgement of,
another as his lawful child, the paternity of that child will be established in the man, provided
that the following seven conditions are fulfilled:

1. The acknowledger must possess the legal capacity for entering into a valid contract.

2. The acknowledgement must not be merely of sonship, but of legitimate sonship.

3. The ages of the acknowledger and the acknowledged must be such as to admit of the relation
of parentage, i.e., the acknowledger must be at least twelve-and-a-half years older than the
person acknowledged.

4. The person to be acknowledged must not be the offspring of intercourse which would be
punishable under Muhammadan law, e.g., adultery, incest or fornication.

5. The parentage of the person to be acknowledged must not be unknown, i.e., the child to be
acknowledged must be known to be the child of some other person.

6. The acknowledged person must believe himself (or herself) to be the acknowledger’s child,
and the child must verify (or at least must not repudiate) the acknowledgement.

7. The acknowledger should be one who could have lawfully been the husband of the mother of
the child, when it was begotten. Thus, where there is direct proof that there was no marriage
between the man and the mother of the child, or that if there was such a marriage between
them, it would have been void, and then the presumption of legitimacy cannot be raised by
acknowledgement, however strong such presumption may be. (Rashid Ahmed v. AnisaKhatun,
(1932) 34 Bom L.R. 475 PC. 59 I.A. 21)

In Rashid Ahmed’s case, A, a Muslim, divorced his wife B, by three pronouncements of talak, but
afterwards, continued to cohabit with her, and to treat her as his wife for fifteen years. During
this period, five children were born to them, all of whom he treated as his legitimate children.

However, the Privy Council held that the children were illegitimate. In this case of divorce by
three pronouncements, before A and В could remarry, В should have been married to another
man in the interval and divorced by that man.

As there was no proof of such marriage with another man and a divorce by him, a presumption
of remarriage between A and В could not be raised, and hence, the children were held to be
illegitimate, and could not inherit from their father.

The observations of the Allahabad High Court on acknowledgement of paternity in Muhammad

Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that case, the Court
observed:

“The Muhammadan law of acknowledgement of parentage, with its legitimating effect, has no
reference whatsoever to cases in which the illegitimacy of the child is proved and established,
either by reason of a lawful union between the parents of the child being impossible (as in the
case of an incestuous intercourse or an adulterous connection), or by reason of a marriage,
necessary to render the child legitimate, being disproved.

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

The wife can maintain an action in a court of law for the recovery of the unpaid Dower if the
marriage has been consummated. If the husband dies, the widow can then proceed against the
legal heirs. Note that they will not be personally liable but they will be liable for payment to the
extent of properties inherited from the deceased.

Widow’s right of retention

A widow has a right to retain the properties of her deceased husband if her Dower is unpaid.
This is also called the right of retention in lieu of unpaid Dower and it is available to both a
widow and a divorced woman. The legal heirs can take over the property unless and until they
pay in proportion of their share in the property for the unpaid Dower. This right is exercised
against the creditors of the deceased too. Please refer to Maina Bibi v Chaudhri Vakil Ahmad
91924) 52 IA , 145 for more clarity.

Possession of the husband’s property. The possession should have been obtained in lieu of
unpaid Dower and not for some other purpose. The possession should have been attained
during the lifetime of the husband or with the consent of the legal heirs after the death of the
husband. The husband should have given implied or express consent to the possession.

Only possessory right. She does not get a title or ownership of the property possessed. The
possession remains with her only till the payment of her unpaid Dower. It is only for effective
realisation of her dues.

Payment of Dower from income of the property. A widow who takes the benefits of a property
will be deemed to have accepted it as contribution towards her unpaid Dower. She is under an
obligation to maintain an accurate account of the properties possessed by her, the profits as well
as the losses.

Property is non-transferable. She cannot gift or transfer the properties possessed in lieu of
unpaid Dower, as the widow is not the owner. The transferee will get no good title.

Once possession is lost, it is lost forever. If the widow gives up or parts with the possession, she
will not get it back. The legal heirs will get the properties as per their respective shares.

Transferability of the right of retention. The right of retention cannot be transferred to anyone.

Habitability of the right of retention. The right to retain can be inherited by the legal heirs of the
wife provided she had retained the property in lieu of unpaid Dower and did during retention.

The widow can file a suit provided she is willing to give up possession of the property.

LIMITATION

The limitation period for maintaining an action for realising the dower may be filled by the wife
or her legal heirs after her death. If the Dower is prompt and the marriage is still subsisting, the
suit must be filled within 3 years of the Dower being demanded. If the marriage has dissolved,
the limitation period of 3 years starts from the date of dissolution.

Note: The time starts from the time the wife/widow receives notice of the divorce or news of the
death of her husband respectively.

Power of the Court to make order as to guardianship

7. (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be
made-

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,

the Court may make an order accordingly 7[ :

Provided that no person, other than a citizen of Bangladesh, shall be appointed or declared to be
a guardian of a minor who is a citizen of Bangladesh.]
(2) An order under this section shall imply the removal of any guardian who has not been
appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared
by the Court, an order under this section appointing or declaring another person to be guardian
in his stead shall not be made until the powers of the guardian appointed or declared as
aforesaid have ceased under the provisions of this Act.

Persons entitled to apply for order

8. An order shall not be made under the last foregoing section except on the application of-

(a) the person desirous of being, or claiming to be, the guardian of the minor, or

(b) any relative or friend of the minor, or

(c) the Collector of the district or other local area within which the minor ordinarily resides or in
which he has property, or

(d) the Collector having authority with respect to the class to which the minor belongs.

Power to make interlocutory order for production of minor and interim protection of
person and property

12. (1) The Court may direct that the person, if any, having the custody of the minor shall
produce him or cause him to be produced at such place and time and before such person as it
appoints, and may make such order for the temporary custody and protection of the person or
property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in public, the direction
under sub-section (1) for her production shall require her to be produced in accordance with the
customs and manners of the country.

(3) Nothing in this section shall authorise-

(a) the Court to place a female minor in the temporary custody of a person claiming to be
her guardian on the ground of his being her husband, unless she is already in his custody with
the consent of her parents, if any, or

(b) any person to whom the temporary custody and protection of the property of a minor is
entrusted to dispossess otherwise than by due course of law any person in possession of any of
the property.

Title of guardian to custody of ward

25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it
is of opinion that it will be for the welfare of the ward to return to the custody of his guardian,
may make an order for his return, and for the purpose of enforcing the order may cause the
ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a
Magistrate of the first class by section 100 of the 12[ Code of Criminal Procedure, 1898].

(3) The residence of a ward against the will of his guardian with a person who is not his guardian
does not of itself terminate the guardianship.

1. Talaq:

Talaq is the repudiation of marriage by the husband. In law, it signifies the absolute power which
the husband possesses to divorce his wife at all times. ‘Talaq’ may ever be pronounced without
any reasonable cause. Any husband of sound mind who has attained puberty may by himself or
by an agent pronounce ‘talaq’ wherever he desires it without assigning any cause. At the time of
pronouncement, the presence of the wife is not essential. No special formalities are necessary
under the Hanafil law. But the Ithana Ashari Law provides a strict regulation for ‘talaq’. Talaq
continues in the Muslim society in spite of its moral lacuna. There are different types of ‘Talaq’.

(a) Talaqu’s-Sunna:

Talaqu’s-Sunna is the approved form of dissolution as per the dictates of the Prophet. It has
further been subdivided into (i) Talaq ahsan and (ii) Talaq hasan.

ADVERTISEMENTS:

(i) Talaq ahsan:

It is the most approved form of dissolution of marriage, It consists of a single pronouncement of

the word ‘talaq’ in the period of tuhr. ‘Turhr’ refers to the period of purity. In this period the
woman is free from her menstrual courses. The prouncement during the period of ‘tuhr’ is
followed by abstinence from sexual intercourse during ‘Iddat’. A pronouncement made in this
form of ‘talaq’ is revocable till the completion of the period of ‘Iddat’. But once the period of
‘Iddat’ is over, it becomes irrevocable. Therefore during the period of ‘Iddat’ the wife is a
‘woman in probation’ (Muatteeda), she is not considered as divorced (Muttalaqata).

(ii) Talaq Hasan:

ADVERTISEMENTS:
It is a less approved form of dissolution of Muslim marriage though talaq from the husband has
to make three successive pronouncements during three consecutive ‘tuhrs’ or periods of purity
of the wife. It is essential that these pronouncements should be made during abstinence from
sexual intercourse in each ‘tuhr’. On the third pronouncement talaq is finalized and dissolution
of marriage occurs in an irrevocable manner.

(b) Talaqu ‘Bida’:

These are the disapproved forms of divorce among the Muslims.

It is of two types:

(1) Triple declaration, and

(2) single irrevocable declaration.

(i) Triple declaration:

In this form three pronouncements are made in a single ‘tuhr’ either in one sentence or in three
sentences (either the husband will pronounce: ‘I divorce you’ or “I divorce you”, “I divorce you,”
“I divorce you”, with the pronouncement divorce becomes irrevocable (attalaqul-ba’ in). This
form of talaq is considered illegal according to the Ithna Ashari and Fatimid laws. But it is
considered lawful according to the Hanafi law.

(ii) Single Declaration:

ADVERTISEMENTS:
It is a disapproval form of talaq. It comprises of a single irrevocable pronouncement made either
during the period of ‘tuhr’ or even otherwise. This may be given in writing. Such a form of talaq
comes into effect immediately with the dissolution of marital tie (at talaqul-bagin). However, the
Ithna Ashari and the Fatimid schools do not recognize this form of talaq.

2. The Ilia:

In this form, the parties abstain from sexual intercourse following a vow. This continues for four
months. After completion of four months, divorce is effected between the parties.

3. Khula:

Khula occurs at the instance of the wife. She desires to be released from the marriage tie and
gives her consent for dissolution of marriage. The husband considers it. Khula requires that both
the wife and the husband should have attained puberty and should be of sound mind at the time
of agreement. Furthermore, the wife must pay compensation to the husband to validate the
agreement.

4. Zihar:

According to this procedure the husband compares his wife with a female within the prohibited
degree of relationship and abstains from sexual relationship with his wife after pronouncing the
presence of two just witnesses that his wife is like his mother or any female of the prohibited
degree. Legally the wife may pray to the court to direct the husband either to perform penance
or to make a declaration of talaq. If the husband declines to do so, the court may allow a divorce.

5. Mubaraat:

Mubaraat is a divorce by mutual consent. ‘Mubaraat’ is different from the ‘khula’ in the sense
that the process of divorce begins only with the wife’s consent in khula, in ‘mubaraat’ both the
parties desire a divorce.
6. Lian:

This is divorce on the ground of adultery. The term ‘lian’ also refers to adultery of the wife. The
husband charges the wife with adultery. Adultery is looked down upon by the Muslim society.
Therefore the wife may request her husband to withdraw his statement. In case of refusal by the
husband, the wife may proceed in the court of law where the husband is required to
substantiate his allegation. If the husband fails to prove the allegation and the charge is proved
baseless and false, the wife reserves the right to dissolve the marriage legally.

7. Talaqi-Tafweez:

According to this provision of divorce, the wife is entitled to pronounce the talaq by virtue of the
power delegated to her by her husband. She may also pronounce divorce without seeking legal
assistance.

8. Faskh:

‘Faskh’ an Arabic word, means, cancellation. It is the legal way of cancellation of marriage on the
ground of cruelty, ill-treatment, desertion, non-compliance of marital agreement etc. The wife
makes the complaint and prays for dissolution of marriage.

Gift

"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and
without consideration, by one person, called the donor, to another, called the donee, and
accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the
donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

It is required to be a voluntary transfer of property to another made gratuitously and without

consideration.

The conception of the term "gift" as used In the Transfer of Property Act is somewhat different
from the use in Mohammedan law.

In the Mohammedan law:

"a gift is a transfer of property or right by one person to another in accordance with the
provisions given in the Mohammedan law and includes:

a) A hiba, an immediate and unconditional transfer of the ownership of some property or of

some right, without any consideration or with some return (ewaz); and

b) An areat, the grant of some limited interest in respect of the use or usufruct of some property
or right.

c) sadaqah: Where a gift of any property or right is made without consideration with the object
of acquiring religious merit.

The terms "hiba" and "gift" are often indiscriminately used but the term "hiba" is only one of the
kinds of transactions which are covered by the general term "gift".

A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must
be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is called a
contract) but the principle may be applicable even to gift.

In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are
two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates
that a gift is a transfer of certain existing movable or immovable property made voluntary and
without consideration by one person called the donor, to another, called a donee and accepted
by or on behalf of the donee.

Essential Elements of a Gift:

The essential elements of a gift are:

(a) The absence of consideration;

(b) the donor;

(c) The donee;

(d) The subject-matter;

(e) the transfer; and the acceptance.

The concept of gift is diametrically opposed to any presence of consideration or compensation.

Acceptance:In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No
particular mode of acceptance is required and the circumstances throw light on that aspect. A
transaction of gift in order to be complete must be accepted by the donee during the lifetime of
the donor. Factum of acceptance can be established by different circumstances such as donee
taking a property or being in possession of deed of gift alone. If a document of gift after its
execution or registration in favour of donee is handed over to him by the donor whom he
accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that
possession is given raises a presumption of acceptance.

Conception Of Property:

English Law: In order to appreciate the questions of conditions in gifts (and also in bequests) it is
necessary to first note the different conceptions of property in English and Mohammedan laws.
The English law as to rights in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. Rights in land described as "estate in land" do not always
imply only absolute ownership but also rights which fall short of it and are limited to the life of
the grantee or otherwise limited in respect of time and duration or use property in all these
various forms are described as "estate". Ownership of land is thus split up into estates
distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration
(e.g., estates in fee simple, in tail, for life or in remainder.'

Mohammedan Law: In general, Muslim law draws no distinction between real and personal
property, and there is no authoritative work on Muslim law, which affirms that Muslim law
recognises the splitting up of ownership of land into estates. What Muslim law does recognize
and insist upon, is the distinction between the corpus of the property itself (ayn) and the
usufruct in the property (manqft). Over the corpus of property the law recognises only absolute
dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to
impose a condition inconsistent with such absolute dominion the condition is rejected as
repugnant; but interests limited in point of time can be created in the usufruct of the property
and the dominion over the corpus takes effect subject to any such limited interests. Limited
interests in respect of property are not identical with the incidents of estates under the English
law. Under the Mohammedan law they are only usufructuary interest (and not rights of
ownership of any kind).

Thus, in English law a person having interest in immoveable property for limited periods of time
is said to be the "owner" of the property during those periods. The usufruct is also a part of the
corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has
full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use
or enjoyment of property is granted to a person for life or other limited period such person
cannot be said to be an "owner" during that period. The English law thus recognises ownership
of the land limited in duration while Muslim law admits only ownership unlimited in duration but
recognises interests of limited duration in the use of property.

There is no difference between the several schools of Muslim law in their fundamental
conception of property and ownership. A limited interest takes effect out of the usufruct under
any of the schools.

The Donor:

Doner's Qualification:

The donor is the person who gives. Any person who is sui juris can make a gift of his property. A
minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would
therefore be void. Trustees cannot make a gift out of trust property unless authorized by the
terms of the contract.

In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and
not by Mohammedan law.

The age of majority as regards matters other than marriage, dower, divorce and adoption, is now
regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall
be deemed to have attained majority when he shall have completed the age of eighteen years.
In the case, however if a minor of whose person or property a guardian has been appointed, or
of whose property the superintendence has been assumed by a Court of Wards, the Act provides
that the age of majority shall be deemed to have been attained on the minor completing the age
of twenty-one years.

Soundness of mind and majority are the only qualifications required for making a gift. A gift to
be valid must be made by a person with his free consent and not under compulsion. The donor
must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the
gift if the donor was able to apprehend the transaction.
Unrestricted Donor's powers in Mohammedan law:

A man may lawfully make a gift of his property to another during his lifetime, or he may give it
away to some one after his death by will. The first is called a disposition inter vivos and the
second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but
while a disposition inter vivos is unfettered as to quantum and testamentary disposition is
limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of
his property during his lifetime, but only one-third of it can be bequeathed by will. A gift may be
made to a stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the
consent should not have been obtained by fraud, misrepresentation or undue influence. An
insolvent donor is not competent to make a gift.

The Donee:

The donee is the person who accepts the gift, by or on behalf of a person who is not competent
to contract. On behalf of a minor, a natural guardian can accept a gift containing a condition that
the person nominated in the gift deed shall act as a manager of the gifted property. Such
acceptance would amount to recognition by the natural guardian of the nominated person as
the manager or the agent of minor for the purpose of such property.A minor therefore may be a
donee; but if the gift is onerous, the obligation cannot be enforced against him while he is a
minor. But when he attains majority he must either accept the burden or return the gift.

The words 'accepted by or on behalf of the donee show that the donee may be a person unable
to express acceptance. A gift can be made to a child and could be accepted on its behalf.

The donee must be an ascertainable person and be a donee under this section; nor can a gift be
made to an unregistered society.

Gift to two or more persons:

A gift to two or more persons may be a gift to them as joint tenants or as tenants in common.
The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a
Hindu gift the donees are presumed to take as tenants in common It is necessary in
Mohammedan law that the donee should accept a hiba and possession must be delivered in the
case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a
person who was not in existence is invalid. It is necessary that the donee should accept a hiba
and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer
of ownership a hiba in favour of a person who was not in existence is invalid.

Gifts of Usufruct(Ariat) to unborn persons:

A hiba stands on a different footing from a gift of a limited interest in usufruct a gift of future
usufruct to unborn persons is valid provided that the donee is in being at the time when interest
opens out for heirs.

Child in the womb:

A hiba in favour of a child in the womb is valid if the child is born within six months from the
date of the hiba because in that case it is presumed that the child actually existed as a distinct
entity in the womb of his mother.

Juristic persons:

Agift to juristic persons or any other institution is valid. So a gift to corporate units, e.g. a tauazhi
(consisting of a mother and of all her children and not descendants in the female line governed
by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole body.

It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and
that a valid gift can be made in favour of a mosque.

Gifts to Non-Muslims:

A gift may be made to a non-Muslim but in such a case the property will, after the completion of
the gift, be subject to the personal law of the donee and not that of donor.

Subject Of Gift:

The subject matter of the gift must be certain existing movable or immovable property. It may be
land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future
property. A gift of a right of management is valid; but a gift of future revenue of a village is
invalid. These cases were decided under Hindu and Mohammedan law respectively but they
illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a
gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does
not involve a transfer of property but is merely a renunciation of a right of action. It is quite clear
that an actionable claim such as a policy of insurance may be the subject of a gift. It is submitted
that in a deed of gift the meaning of the word 'money' should not be restricted by any hard and
fast rule but should be interpreted having regard to the context properly construed in the light of
all the relevant facts. Therefore in order to constitute a valid gift, there must be an existing
property. In Mohammedan law any property or right which has some legal value may be the
subject of a gift.

Hiba Of Corporeal And Incorporeal Property:

it is not necessary that a hiba must be of some corporeal or tangible property, it may be made
not only of corporeal property but also of incorporeal property. Thus, a hiba may be made of
actionable claims or chooses-in-action, e.g. debts,negotiable instruments or Government
promissory notes.

Gift of a debt:

the gift of a debt to the debtor is lawful both by analogy (qiyas) and liberal interpretation
(istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by
cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category.
If the creditor releases the principal debtor from debt, both the debtor and surety are released.
The release of a debt may also be made in favour of the heirs of the debtor if he dies.

Equity of Redemption can be subject of a valid gift:

where the property gifted is subject to a usurfructory mortgage, what is gifted is merely the
equity of redemption and not physical possession of the property itself.

Voluntarily :
In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the exercise
of the unfettered free will, and not its technical meaning of 'without consideration'. When a gift
is made, it must satisfactorily appear that the donor knew what he was doing and understood
the contents of the instrument and its effect, and also that undue influence or pressure was not
exercised upon clear intention to make an out-and-out gift, but the intention has failed for want
of transfer or any other cause, the courts will not convert what was meant to be an out-and-out
gift into a trust, and the donor will not be deemed a trustee of the property for the intended
donee. The gift will fail. Also where the husband deposited certain ornaments with a bank for
safe custody in the joint names of himself and his wife, with direction to be delivered to be
either or survivor, it did not amount to a gift, as the husband retained dominion over the
property. Where a person keeps money to fixed deposit in the name of his niece, brought up and
given in marriage by him, there is an inference of gift in favour of the niece.

Where the motive behind the deed of gift was unequivocal to give the transferee a title which
would act as a safeguard against any claim for pre-emption, the transaction for that reason
cannot be called a sale. Similarly where a person settles an annuity upon his alleged wife, the
settlement cannot be construed to be a contract for consideration of love and affection, but is a
gift pure and simple.

Donative intention (motive) and consideration:

A gift is a transfer. But it does not contain any element of consideration. Complete absence of
monetary consideration is the main, hallmark, which distinguishes a gift from a grant or any
other transactions for valuable or adequate consideration. Where there is any equivalent of
benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love,
affection, spiritual benefit and many other factors may enter in the intention of the donor to
make a gift but these financial considerations cannot be called or held to be legal considerations
as understood by law. Legal consideration is one recognised or permitted by law as valid and
lawful. The term is also sometimes used as equivalent to a 'good' or 'sufficient' consideration.
Love and affection is a sufficient consideration when a gift is contemplated, but it is not
considered as a 'valuable' consideration when such is required.

Onus of proof:

Where a very old man, with weak eyesight, sues for cancellation of the deed of gift executed by
him in favour of his son alleging that it was not his voluntarily act. The circumstance also
indicated that the donee was in a position to dominate the will of the donor. Under such
circumstance the onus shifts on to the donee to prove that the gift was made voluntarily.

In another case of the Orissa High court, Gift deed is alleged to have been taken from a
pardanashin lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in
spite of the fact that she is unable to establish her case of practising fraud, the onus still remains
upon the donee to establish conclusively that the document was executed after it was read over
and explained to her and after she understood the contents thereof.

Delivery of possession:

Delivery of possession of the gifted property in English law, is not absolute requirement, for the
completeness or the validity of the gift as found in Muslim Law of Gifts.

Even where the donee resides with the donor in the property although no physical departure by
the donor or formal entry by the donee, is necessary, the gift has to be completed by the donor
indicating a clear intention of his part to transfer possession and to divest himself of all control
over the subject of the gift.' Among the conditions required for the validity of a gift under
Mohammedan law the most essential is that of delivery of possession, actual or constructive,
with the permission of the donor, without which a gift cannot be valid. It should, however, is
noted that while the delivery of possession is an essential condition for the validity of the gift, it
is not necessary that in every case there should be a physical delivery of possession. Possession
the delivery of which would complete a gift may be either actual or constructive. All that is
necessary is that the donor should divest himself completely of all ownership and dominion over
the subject of the gift. The relinquishment of control is thus necessary to complete the gift. The
real test of the delivery of possession is to see whether the donor or donee reaps the benefit; if
the former possession is not transferred and if the latter, it is transferred, and the gift is
complete if the donee is permitted directly or indirectly to receive the benefit. Constructive
possession of the subject of the gift is therefore sufficient.

A gift of immovable property can only be made by a registered instrument. A deed cannot be
dispensed with even for a property of small value, as in the case of a sale. And as a further
precaution, attestation by two witnesses is required. This provision excludes every other mode
of transfer and even if the intended donee is put in possession, a gift of immovable property is
invalid without a registered instrument.
Essentials Of Gift Under Mohammedan Law:

Under Mohammedan law, to be a valid gift, three essentials are required to exist:

(a) declaration of gift by the donor

(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and

(c) delivery of possession of the subject of gift.

Courts have consistently held that when there is no compliance of any of the above three
essential conditions the gift renders itself as invalid. It is one of the essential requirements of a
gift that it should be made by the donor 'without consideration'. The word 'consideration' has
not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural
love and affection. If not, and if the transfer involved consideration, the transaction would
amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec.
118. The essence of a gift inter vivos must be without 'consideration' of the nature defined in
sec. 2(d) of the Contract Act.

Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift
either of movable or immovable property.

In another case the Patna High Court held that under the Mohammedan Law for validity of the
deed of gift four elements are necessary

¢ declaration of gift by the donor

¢ relinquishment by donor of-ownership-and dominion

¢ acceptance of the gift by donee, and

¢ delivery of possession of the property by donor.

Under the Mohammadan Law it is essential as regards gift that the donor should divest himself
completely of all the ownership and dominion over the subject of the gift. It is essential to the
validity of the gift that there should be delivery of such possession as the subject of the gift is
susceptible of. According to Muslim law it is not necessary that there should be deed of gift in
order to make it a valid gift, but of course, if there is a deed it should be registered.
When Gift May Be Suspended Or Revoked:

Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the
following are those conditions-

(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on
the happening of a specified event;

(2) such event must be one which does not depend upon the donor's will;

(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and

(4) the condition should not be illegal, or immoral and should not be repugnant to the estate
created under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed
totally prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which
was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot
be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a
competent court of law.

A Mohammedan on the other hand can revoke a gift even after delivery of possession except in
the following cases:

(1) When the gift is made by a husband to his wife or by a wife to her husband;

(2) when the donee is related to the donor within the prohibited degrees;

(3) when the gift is Sadaka (i.e. made to a charity or for any religious

purpose).

(4) when the donee is dead;

(5) when the thing given has passed out of the donee's possession

by sale, gift or otherwise;

(6) when the thing given is lost or destroyed;

(7) when the thing given has increased in value, whatever be the cause of the increase;

(8) when the thing given is so changed that it cannot be identified, as when wheat is converted
into flour by grinding; and

(9) when the donor has received something in exchange for the gift

Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has
not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

Onerous Gift:

'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The
principle behind this is that he who accepts the benefit of a transaction must also accept the
burden of the same. This section, being an embodiment of a rule of equity, applies equally to
Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is
sufficient; there need not be any separate and express acceptance of the onerous condition also
at the same time. The acceptance of the gift will carry with it the acceptance of the onerous
condition also, even though at the time of the gift the donee was not aware of such condition,
specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly
maintenance to a certain person for life). A donee not competent to contract and accepting
property burdened by any obligation is not bound by his acceptance. But if, after becoming
competent to contract and being aware of the obligation, he retains the property given, he
becomes so bound.

Universal Donee:

The essential condition to constitute a universal donee is that the gift must consist of the donor's
whole property. If any portion of the donor's property, no matter whether it is moveable or
immovable, is excluded from the operation of the gift or the endowment, the donee is not a
universal donee. This concept is embodied in section 128 of the Transfer of property Act. Where
a Mahomedan made a gift of the whole of his estate to his son and directed him to pay his
debts, the son was a universal donee and he was liable to pay all debts of the donor. There is no
rule of Mahomedan law which conflicts with the provisions of this section.

Conclusion:

The conception of the term gift and subject matter of gift has been an age old and traditional
issue which has developed into a distinct facet in property law. Different aspects related to gift in
property act and its distinction with the Mohammedan law and its implications has been the
major subject matter of this article. In considering the law of gifts, it is to be remembered that
the English word 'gift' is generic and must not be confused with the technical term of Islamic law,
hiba. The concept of hiba and the term "gift as used in the transfer of property act, are different.
As we have seen in the project that Under Mohammedan law, to be a valid gift, three essentials
are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or
implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift. The
English law as to rights in property is classified by a division on the basis of immoveable and
moveable (real and personal) property. The essential elements of a gift are (a) The absence of
consideration; (b) the donor; (c) the donee ;(d) the subject-matter; (e) the transfer; and the
acceptance Thus this striking difference between the two laws relating to gift forms the base of
this project in understanding its underlying implications.

Waqf

1. Introduction

Waqf is an important social institution of Islam. It is a permanent dedication by a Muslim of

some specific property for religious and pious purpose. Every Muslim of sound mind may
dedicate his property by way of waqf. It may be made verbally or in writing. The real purpose of
making a waqf is to acquire merit in the eyes of the Lord; all other purposes are subsidiary.

2. Meaning

Literal meaning is “tying up or detention”.

3. Definition

Waqf Act 1954

According to Sec 3 (i) waqf means the permanent dedication by a person professing Islam of any
moveable and immovable property for any purpose recognized by the Muslim Law as pious,
religious or charitable.”

Imam Abu Hanifa

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the
devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.
Thomas Patrick Hughes

Waqf means literally “Standing, stopping, halting”. A term which in the language of the law,
signifies the appropriation or dedication of property to charitable uses and the service of God.

Qadi Abu Yusuf and Imam Muhammad

Waqf is the tying up of the substance of a thing under the rule of the property of Almighty God,
so that the proprietary right of the waqf becomes extinguished and is transferred to Almighty
God for any purpose by which its profits may be applied to the benefit of His creatures.

The Shara’I ul-Islam (Shiite Law)

A contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct
free.

4. Classification of Waqf

a. According to Ameer Ali, waqf may be divided into three classes.

i For the affluent and the indigent alike.

ii For the affluent and thereafter for the indigent alike.

iii For the indigent alone.

b. As regards relationship
i The waqif (but only in Hanafi Law)

ii The family or decedents of the waqif (Waqf’ Ala’l-awlad)

iii Unrelated persons

The law on the subject of waqf is in favour of descendents may be divided conveniently two
parts: the law before, and the law after the Waqf Act 1913.

The Law before the Waqf Act 1913

Case Law

Abul Fata Mahmod Ishak v/s Russomoy Dhur Chowdhry

The result of this decision was that if the gifts to charity were substantial, not illusory, the waqfs
were held valid; but where the waqfs were founded for the aggrandizement of a family, or where
the gifts to charity were illusory or merely nominal, the waqfs were held to be void.

The Law after the Waqf Act 1913

This act purported to restore the law of the shari’at in India and to overrule the law as laid down
by the Privy Council.

c. A non Muslim

A non-Muslim is entitled to take the benefit of a waqf, provided that he is not an alien enemy.

5. Kinds of Waqf

Following are the kinds of waqf.

i Private Waqf : It is waqf which is made for private individual.

ii Public Waqf : It is dedicated to the public at large. It is made purely for some religious or pious
purpose.

iii Quasi Waqf : It is partly public and private.

6. Subject of a valid Waqf

A immoveable or moveable, dividable or undividable property having certainty of which the

waqf is the owner may be the subject matter of the waqf. The subject of the waqf must be
clearly defined.

7. Subjects not for a valid Waqf

i Rights of usufructuary mortgage.

ii A dower debt, which may or may not be paid.

iii A simple money decree

iv A waqf will not be upheld which is in fraud of the rights of certain heirs.

8. Valid Objects of Waqf

Following are the valid objects of waqf.

i Mosques and for imam to conduct worship therein.

ii The distribution of alms to the poor.

iii Grant of takia

iv Observance of the anniversaries of the waqif and members of his family members of his
family, involving as it does the feeding of the poor.

v Prayer ground

vi Dargahs

vii Hospitals and dispensaries

viii Construction of the free boarding houses.

ix Eidgahs

x Reading of Holy Quran in public

xi For making and keeping Tazias

xii Celebrating the birth of the Hazrat Ali Murtaza (RAA)

9. Form of Waqf

i Verbal

ii Oral

10. Parties to a Waqf

i Waqif

A person who makes waqf is called Waqif.

ii Mutawalli

A person who is appointed to look after the waqf is called Mutawalli. He acts like a manager of
the waqf property.

Case Law

Jahana vs. Chief Administrator Auqaf Punjab 1992 CLC 2054

It was held that the definition of Mutawalli includes a person who for the time being manages
Waqf property.

11. Qualification of Waqif

i A Muslim

ii Who have Sound mind

iii Who have attained Majority

Disqualification

i Minor

ii Unsound Mind

Extent of Waqif’s Power

A person under Islamic Law may declare the whole of his property a waqf.

13. Qualification of Mutawalli

A person can be a Mutawalli who:

i may be a Muslim or Non-Muslim.

ii has sound mind.

iii should be of the age of majority.

14. Appointment of Mutawalli

A Mutawalli can be appointed by:

i The waqif himself.

ii The executor

15. Who can be appointed Mutawalli

Following can be appointed as Mutawalli:

i The Waqif himself

ii His children

iii His descendents

iv A female

v Non-Muslim

vi Sunni in Shia Waqf and Shia in Sunni Waqf

16. Rights of Mutawalli

i If there is no provision in waqfnama about for succession of the office of Mutawalli, he has right
to appoint his successor on his death bed.

ii He has right to appoint his successor if waqf deed authorize him to do so.

iii He can appoint his successor if Waqif and Executor are both dead.

iv He had right to manage the waqf property.

v He has right of remuneration.

vi He has right to do any thing that is reasonable for administration and betterment of the waqf.
17. Duties of Mutawalli

i It is the duty of Mutawalli to take care waqf property.

ii He is duty bound not to sell or mortgage waqf property without the permission of the court.

iii He is duty bound not to grant a lease of waqf property not exceeding three years in case of
agricultural property and one year in case of non-agricultural land.

iv He is duty bound not to increase allowance of officers and servants.

v He is duty bound not to transfer the office of another.

18. Nature of office of Mutawalli

The office of Mutawalli is not hereditary under Islamic Law. Hereditary right is not recognized.

Case Law

Abdul Hamid v/s Govt. of West Pakistan 1985 CLC 58

It was held in this case that as founder of waqf has the power to appoint first Mutawalli and to
lay down the scheme for the succession to the office of Mutawalli.

19. Removal of Mutawalli

A Mutawalli can be removed by the court if he/she:

i Becomes unfit for the job.

ii Does not perform the religious services.

iii Becomes insolvent.

iv Commits misconduct.

v Commits breach of trust.

20. Essentials for a valid Waqf

i Permanent

The dedication must be permanent. A waqf which is made for a limited period is not valid. The
Waqf Act 1913 Sec 2 (i) and (ii), in waqf, the dedication must be permanent.

ii Irrevocable

Once a valid waqf is made, it can not be revoked.

iii Unconditional

If there is a condtion for making a waqf, it will be invalid. Waqf shoud be unconditional. If a
condition is interested in a deed of waqf, that the waqf reserves to him the power of revoking
the waqf, the waqf is void ab initio.

iv Inalienable

Waqf should be inalienable. Because perpetuity is ensured by the doctrine that waqf property
belongs to God and cannot be alienated by human beings for their own purposes.

v Certainty

Waqf property should be certain. If the objects are uncertain the waqf will be void. The property
must be in the ownership of the waqif; it must be in his possession.

For example, A bequeaths certain land to B, who purports to dedicate it in A’s lifetime. Later A
dies, the waqf is not valid.
Case Law

Abdul Hamid v/s Fateh Muahmmad, PLD 1958 (W.P), Lahore 824

The Lahore High Court has decided in a well-considered and exhaustive judgment that a fund
collected for a religious foundation, but not yet used for the purchase of property for the
purpose of the endowment, is to be regarded as a duly constituted waqf.

vi Registration

A waqfnama by which immoveable property of the value of Rs. 100/- or above requires to be
registered under the registration act.

21. Completion of a Waqf

Abu Yusuf

A dedication by way of waqf is complete by the mere declaration. Neither delivery of possession,
nor appointment of mutawalli is essential.

Imam Muhammad & Ithna Ashari Law

A waqf is not complete unless there is a declaration coupled with appointment of mutawalli and
delivery of possession.

22. Primary rules relating to Waqf

Following are the primary rules relating to waqf.

i The subject of the waqf should be dedicated perpetuity.

ii All human rights should be diversted there from.

iii It should be made non heritable and inalienable.

23. Contingent Waqf

There should be no element of contingency in waqf. It is essential to the validity of a waqf that
the appropriation should not be made to depend on contingency.

24. When Waqf can not be valid

i Neither a minor nor a guardian on behalf of the minor can make a waqf.

ii A waqf can not be made for an illegal object, for example to dealy or defeat creditors.

25. Revocation of Waqf

i In case of testamentary Waqf

A testamentary waqf that is made by will, may be revoked by the waqf at any time before his
death.

ii In case of Non-Testamentary Waqf

Where at the time of creating a non-testamentary waqf, the waqif reserves to himself the power
of revoking the waqf, the waqf will be invalid.

26. Waqf during Marzul Maut

A waqf made by will or during Marzul Maut can not operate upon more than one third of the net
assets without the consent of heirs.

27. Conclusion
The creation of the waqf represents dedication of some property, according to Muslim legal
principles meant it in the way of God.

A wassiyat or will under Muslim law is a divine institution, since its exercise is regulated by
Koran. Will is the translation of Latin word “voluntas”, which was a term used in the text of the
Roman law to express the intention of a testator. Under Muslim law, every Muslim has the
testamentary power of disposing of his property. But his testamentary power is limited to the
disposal of only one-third of his property.

A wassiyat offers to the testator the means of correcting to a certain extent the law of
succession, and of enabling some of those relatives who are excluded from inheritance to obtain
a share in his goods, and/or recognizing the services rendered to him by a stranger, or the
devotion to him in his last moments.” This seems to be the reason why the word “wassaya” or
“wassiyat” has two meanings; it means a will and it also signifies a moral exhortation. The word
wassiyat also means a specific legacy or the capacity of the executor.

Capacity to make a Wassiyat or Will,

Every Muslim, who is of sound mind and of the age of majority, has the capacity to make a will.
Under the Shia law, a will made by a person, who has taken poison, or, has wounded himself
with a view to committing suicide, is invalid. But a will made by a person, who subsequently
commits suicide is valid.

A will made by a person under coercion, undue influence, or fraud is invalid. Similarly, the court
will scrutinize the will of a pardanaseen lady very carefully before admitting it.

Formalities of a Wassiyat or Will

Muslim law requires no specific formalities for the execution of a will. A will may be oral or in
writing. When the will is in writing, no specific form is laid down. It may not even be signed by
the testator or attested by the witnesses. [Ramjilal vs. Ahmed, 1952 MB 56] However, it is
necessary that the intention of the testator should be clear and unequivocal. In Mazhar vs.
Bodha, 21 All 91 a letter was written by a Muslim shortly before his death, containing directions
for the disposition of his property, was accepted to constitute a valid will.
When a will is oral, no form of declaration is necessary. Obviously, the burden of establishing an
oral will is very heavy, and an oral will must be proved with utmost precision and with every
circumstance of time and place. [Venkat vs. Namdeo, (1931) 58 IA 362]

Subject-Matter of Wassiyat or Will

Any type of property, immovable or movable, corporeal or incorporeal, which is capable of being
transferred, may form the subject-matter of a bequest. Under Muslim law, it is possible that a
testator may give to one person and the usufruct to another.

Construction of Wassiyat or Will

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

Revocation of Wassiyat or Will

Under Muslim law, a testator may revoke his will or any part of it anytime, either expressly or by
implication.

Express revocation

If a testator makes a bequest of some property to a person, and by the subsequent will, he
bequests the same property to another person, the first bequest is revoked. A will may be
expressly revoked by tearing it off, or by burning it.

Implied revocation

Any act inconsistent with the bequest will go to revoke the will. For instance, bequest of a plot of
land is revoked when the testator builds a house on it; or bequest of a house is revoked when
the testator sells or makes a gift of it to another.

This article gives an overview of the Islamic laws of inheritance with the aim of increasing the
awareness of the Muslim community living in the west regarding this important aspect of Islamic
law. The scope of this article is confined to traditional Sunni Islamic law.

When a Muslim dies there are four duties which need to be performed. These are:

payment of funeral expenses

payment of his/ her debts

execution his/ her will

distribution of remaining estate amongst the heirs according to Sharia

It is assumed that the preliminary issues have been resolved and we shall confine ourselves
principally to discussing the fourth and last duty. The task is to firstly, determine which of the
relatives of the deceased are entitled to inherit and secondly, to determine the quantum share
entitlement of each of the heirs concerned.

Needless to say Muslims must follow all the commandments of Allah (SWT) as Allah the
Almighty says, "It is not for a believer, man or woman, when Allah and His Messenger have
decreed a matter that they should have any opinion in their decision. And whoever disobeys
Allah and His Messenger, has indeed strayed into a plain error." [Quran 33:36]

The particular importance of the Islamic laws of inheritance is obvious from the verses
immediately following those verses giving specific details on inheritance shares, "These are limits
(set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys Allah and
His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to abide
therein, and that will be the great success.

And whosoever disobeys Allah and His Messenger, and transgresses His limits, He will cast him
into the Fire, to abide therein; and he shall have a disgraceful torment." [Quran 4:13-14]

The laws of inheritance take on an even greater prominence in Islam because of the restriction
placed by Sharia on the testamentary power of the testator as we shall see later in this article.

The divine justness and equitability of the Islamic laws of inheritance have been correctly
appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of
King's College, London, the author of many works on the subject of the Muslim law of
inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises
beyond question the most refined and elaborate system of rules for the devolution of property
that is known to the civilised world.1"

To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of
inheritance that operated within the Arabian peninsula prior to the revelation of the Quranic
injunctions on inheritance. Although we do not have the exact details of the system that
operated prior to the Quranic revelations we do know that the system of inheritance was
confined to the male agnate relatives ("asaba") of the deceased. In this old customary system
only the male agnates (asaba) were entitled to inherit. Amongst the male agnates there were
rules of priority, which determined which of the surviving male agnates were entitled to inherit.
It is likely that the rules of priority that operate amongst the asaba in Sharia are a carry-over of
the old customary agnatic system. In Islamic law the son takes priority over the father who in
turn takes priority over the brothers who in turn take priority over the paternal uncles.

As we shall see the Quran does not expressly state the share of the male agnate relatives as
such, although it does enact that the share of the male is twice that of a female. The Sunni
jurists take the view that the intention of the Quranic injunctions was not to completely replace
the old customary agnatic system entirely but merely to modify it with the objective of
improving the position of female relatives. The Sunni Islamic law of inheritance is therefore, an
amalgamation of the Quranic law superimposed upon the old customary law to form a complete
and cohesive system. The rights of the asaba were recognised by the Prophet Muhammad
(SAWS) himself. Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS) said,
"Give the Faraid (the shares of the inheritance that are prescribed in the Quran) to those who
are entitled to receive it. Then whatever remains, should be given to the closest male relative of
the deceased." (Sahih al-Bukhari)
The Shia jurists on the contrary took the view that since the old agnatic customary system had
not been endorsed by the Quran it must be rejected and completely replaced by the new
Quranic law.

By specifying clear cut entitlement and specific shares of female relatives, Islam not only
elevated the position of women but simultaneously safeguarded their social and economic
interests as long ago as 1400 years. The Quran contains only three verses [4:11, 4:12 and 4:176]
which give specific details of inheritance shares. Using the information in these verses together
with the traditions of the Prophet Muhammad (SAWS) as well as methods of juristic reasoning,
the Muslims jurists have expounded the laws of inheritance in such meticulous detail that large
volumes of work have been written on this subject.

"Allah commands you regarding your children. For the male a share equivalent to that of two
females. " [Quran 4:11]

This first principle which the Quran lays down refers to males and females of equal degree and
class. This means that a son inherits a share equivalent to that of two daughters, a full (germane)
brother inherits twice as much as a full sister, a son’s son inherits twice as much as a son’s
daughter and so on. This principle is however, not universally applicable as we shall see later in
verse 4:12, the descendants of the mother notably the uterine brother and uterine sister inherit
equally as do their descendants.

"If (there are) women (daughters) more than two, then for them two thirds of the inheritance;
and if there is only one then it is half." [Quran 4:11]

Women in this context refers to daughters. The Quran gives the daughter a specific share. In
legal terminology the daughter is referred to as a Quranic heir or sharer (ashab al-faraid). The
Quran mentions nine such obligatory sharers as we shall see later. Muslims jurists have added a
further three by the juristic method of qiyas (analogy). So in Islamic jurisprudence there are a
total of twelve relations who inherit as sharers.

If there are any sons the share of the daughter(s) is no longer fixed because the share of the
daughter is determined by the principle that a son inherits twice as much as a daughter. In the
absence of any daughters this rule is applicable to agnatic granddaughters (son's daughters). The
agnatic granddaughter has been made a Quranic heir (sharer) by Muslim jurists by analogy.

If there is only a single daughter or agantic granddaughter her share is a fixed one-half, if there
are two or more daughters or agnatic granddaughters then their share is two-thirds. Two or
more daughters will totally exclude any granddaughters. If there is one daughter and agnatic
granddaughters, the daughter inherits one-half share and the agnatic granddaughters inherit the
remaining one-sixth, making a total of two-thirds. If there are agnatic grandsons amongst the
heirs then the principle that the male inherits a portion equivalent to that of two females
applies.

"And for his parents for each of them there is one-sixth of the inheritance if he has a child, but if
he does not have a child and the parents are the heirs then for the mother one-third." [Quran
4:11]

The Arabic word "walad" has been variously translated as child, son, children and offspring by
translators. However, there is universal agreement amongst the Sunni Muslim jurists that
"walad" here refers to any child or agnatic grandchild (grandchild through son).

If there is a child or agnatic grandchild amongst the heirs then each of the parents inherits one-
sixth. In the absence of a child or agnatic grandchild the mother inherits one-third, the share of
the father is not mentioned under these circumstances. The father in fact inherits as a residuary
(a residuary heir gets whatever remains of the inheritance after the Quranic sharers have been
allocated their shares, residuary heirs are generally male agnates) under these circumstances.

To these two Quranic heirs, the mother and the father, the maternal grandmother and paternal
grandfather have been added by analogy. The maternal grandmother substitutes the mother in
the latter's absence.

"… but if he has brothers (or sisters) then for the mother one-sixth" [Quran 4:11]

The consensus of opinion is that the word "akhwatun" used in the Quranic text means two or
more brothers or sisters of any kind. So that any combination of full, consanguine or uterine
brothers and sisters, if two or more will mean that the mother inherits a one-sixth share.
"And for you there is one-half of what your wives leave behind if there is no child, but if they
leave a child then for you there is one-fourth of what they leave behind; … " [Quran 4:12]

Again according to Islamic law the word "walad" here is interpreted as child or agnatic
grandchild. The husband, another Quranic heir, inherits one-half in the absence of a child or
agnatic grandchild and one-quarter in the presence of a child or agnatic grandchild.

"And for them one-fourth of what you leave behind if you did not have a child, but if you have a
child then for them one-eighth of what you leave behind; …" [Quran 4:12]

This statement gives us the ruling on the share of the wife (widow). The share of the wife is one-
quarter in the absence of a child or agnatic grandchild and one-eighth in the presence of a child
or agnatic grandchild. Two or more wives share equally in this prescribed share.

Before continuing with the translation of verse 4:12 let us consider a situation where a woman
dies leaving behind a husband and both parents as the only heirs.

The husband inherits one-half of the estate, there is no argument on this point. However, if we
give the mother a one-third share then the father is left with only one-sixth. Should the male
(father) not get twice the share of the female (mother) of equal degree and class?

This problem arose during the caliphate of Umar ibn Khattab (RA). After consultation with the
learned companions the majority opinion was that the father should get twice the share of the
mother, that is to say, the principle that the male inherits the share of two females is upheld. The
father therefore, inherits one-third and the mother one-sixth

In light of this ruling the sentence of verse 4:11 on this matter which reads, "...but if he does not
have a child and the parents are the heirs then for the mother one-third." is interpreted to
mean, "...but if he does not have a child and the parents are the (only) heirs then for the mother
one-third."
"And if a kalala man or woman (one who has neither ascendants nor descendants) is inherited
from, and he (or she) has a (uterine) brother or (uterine) sister then for each of them (there is)
one-sixth. But if they (uterine brothers and sisters) are more than that then they are sharers in
one-third (equally)." [Quran 4:12]

The interpretation of the second half of verse 4:12 has been a source of controversy, one reason
being the meaning of the word "kalala". This word "kalala" occurs only in two places in the
Quran [4:12 and 4:176] and on both occasions regarding inheritance. "Kalala" may mean "one
who leaves neither parent nor child" or "all those except the parent and child". It is generally
taken to mean the former.

It is universally agreed that the siblings referred to in this verse are uterine siblings (those with
the same mother but different fathers).

The uterine siblings only inherit in the absence of any descendants or ascendants. However,
uterine siblings are not excluded by the mother. If there is only one uterine sibling he or she
inherits a one-sixth share. If there are two or more uterine siblings they together inherit a one-
third share equally.

The heirs mentioned in the Quran (mother, father, husband, widow, daughter, uterine brother,
full sister, uterine sister, consanguine sister) together with the three heirs added by juristic
method of analogy (paternal grandfather, maternal grandmother and agnatic granddaughter)
form a group of heirs called Quranic heirs or sharers (ashab al-furud). These heirs when entitled
to inherit are given their fixed shares and the remaining estate is inherited by the residuaries
(asaba).

Under Islamic law some of the Quranic heirs, namely the father, paternal grandfather, daughter,
agnatic granddaughter, full sister, consanguine sister and the mother, can also inherit as
residuaries under certain circumstances.

Certain heirs referred to as primary heirs are always entitled to a share of the inheritance, they
are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son
and the daughter. All remaining heirs can be totally excluded by the presence of other heirs.
There are several rules of exclusion which determine the exclusion of some heirs by the
presence of others. It not possible to discuss all these rules in an article of this nature but in brief
:

a person (e.g. brother) who is related to the deceased through another (i.e. father) is excluded
by the presence of the latter,

an individual nearer in degree (proximity) to the deceased excludes the one who is remoter
within the same class of heirs (son excludes all grandsons),

full blood excludes half-blood through father (so a full brother will exclude a consanguine
brother but not a uterine brother)

The majority view is that the full and consanguine brother is not excluded by the paternal
grandfather. However, the Hanafi fiqh allows the paternal grandfather to totally exclude the
agnatic siblings.

Heirs may also be prevented from inheriting by disqualification. The only two practical situations
which are causes of disqualification are difference of religion and homicide.

The Prophet (SAWS) said, "A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be
the heir of a Muslim." (Sahih al-Bukhari)

Generally speaking, and this is also the majority view, a Muslim cannot inherit from a non-
Muslim. Although the Hanafi fiqh does allow a Muslim to inherit from an apostate.

Allah's Messenger (SAWS) said, "One who kills a man cannot inherit from him." (Tirmidhi and Ibn
Majah)
All the jurists agree that intentional or unjustifiable killing according to Sharia is a bar to
inheritance because if such people are allowed to kill and then benefit from the estate of the
victim, it will encourage incidents of homicide.

It should be noted that only relatives with a legitimate blood relationship to the deceased are
entitled to inherit from the deceased under Islamic law. Thus, illegitimate children according to
Islamic law and adopted children have no part in inheritance. Incidentally legal adoption as
practised in the west is forbidden in Islam.

Under certain circumstances after allocation of the estate amongst all the heirs with fixed shares
there is a residue left over but there are no residuaries. This residue called al-radd is returned to
those sharers who are entitled to it, in proportion to their original shares. Conversely a situation
may arise when the total sum of the assigned shares of the heirs with fixed shares is greater than
unity. In this situation all the shares are abated proportionately by the doctrine of al-awl which
involves decreasing the fractional shares to a common denominator, and increasing the
denominator in order to make it equal to the sum of the numerators.

The amalgamation of the old customary agnatic law and the Quranic law has led to a number of
problems which Muslim jurists have solved with great ingenuity. I shall mention one such case
which occurred during the caliphate of Umar ibn Khattab (RA). A woman died leaving behind a
husband, mother, two uterine brothers and two full brothers.

Umar ibn al-Khattab (RA) by systematically applying the rules gave the Quranic heirs their shares,
husband (1/2), mother (1/6) and the two uterine brothers (1/3). The two full brothers acting as
residuaries received nothing because there is no residue. The two full brothers, who would have
been the sole heirs under the old customary agantic system, argued that even if their father was
a donkey or a stone cast into the sea and they had no paternal relationship, they still had the
same and equal relationship with the deceased as the uterine brothers through the same
mother. Umar ibn al-Khattab (RA) reconsidered his ruling and allowed the full brothers to inherit
equally with the uterine brothers in the share of 1/3.

The reader will have noticed that uterine (or cognate) relatives have not figured in the discussion
thus far. This group of potential heirs contains all those relatives who are neither Quranic sharers
nor male agnates and constitute the largest group within the context of inheritance. They are
referred to as dhawu al-arham (or distant kindred). The majority view is that they are entitled to
inherit when there are no residuaries and no sharers entitled to al-radd. Only the traditional
Maliki fiqh does not allow the distant kindred to inherit, any residue is given to the bait al-mal
(public treasury). The rules of inheritance amongst the distant kindred are relatively complex
and hence not mentioned here.

The Islamic laws of inheritance that have been discussed here can be legitimately
accommodated and practically implemented within many existing western legislation systems by
way of a valid will. In fact for those Muslims living in the west a will becomes an essential
necessity to prevent intestate succession law of the land being applied to their estate after they
die.

The will should comply with the law of the land so that it can be executed after a person’s death
without any unnecessary legal problems. Needless to say nothing in the will should be contrary
to Sharia.

Sharia has placed two restrictions on the testator. Firstly, to whom he can bequeath his estate
and secondly, the amount that he can bequeath. The majority view is that a bequest in excess of
one-third of the net estate is invalid unless consented to by the legal heirs as is a bequest in
favour of a legal heir.

I hope that this article will benefit all those Muslims wishing to conduct their lives according to
the divine will of Allah (SWT).

1. Rumsey, A. Moohummudan Law of Inheritance. (1880) Preface iii

Guardianship under Muslim law

The term ‘guardian’ is defined in the Guardians and Wards Act as a person having the care of the
person of a minor or of his property, or of both his person and his property.

Kinds of guardianship under Muslim law:

Muslim law makes a distinction between guardian of the person, guardian of the property and
guardian for purposes of marriage in case of minors.

(1) Guardianship in marriage (jabar)- the following persons can act as guardians in the
marriage of a minor, in the order of enumeration:-

(i) Father

(ii) Father’s father

(iii) Full brother and other male relations on the father’s side

(iv) Mother

(v) Maternal relations within prohibited degrees

(vi) Qazi or the court

Shia law recognizes only the father and failing him the father’s father howsoever high as
guardian in the marriage of a minor.

The rule of Muslim law is that when a remote guardian allowed marriage, when the nearer one
is present, the validity of the marriage is dependent upon the latter’s ratification and consent. A
marriage by a remoter guardian when the nearer guardian is present and has given his consent is
not only irregular but void.

(2) Guardianship of person of the minor for custody (hizanat)

(i) Mother- under hanafi school, mother is quardian of her minor till he attains age of 7
years and of her daughter till she reaches puberty. Under shia school, mother is guardian of her
son till he attains the age of 2 years and of her daughter till she attains the age of 7 years.

An illegitimate child is left in the charge of mother till the age of 7 years but legally belongs to
neither of his parents.

In the absence of mother, under hanafi school, custody belongs to:

(a) Mother’s mother

(b) Father’s mother

(c) Full sister

(d) Uterine sister

(e) Consanguine sister

(f) Full sister’s daughter

(g) Uterine sister’s daughter

(h) Consanguine sister’s daughter

(i) Maternal aunt

(j) Paternal aunt

However, the right of hizanat of the mother and other female relations is lost if she leads an
immoral life or, neglects to take proper care of the child or, marries a person not related to the
child within prohibited degrees or, if during the subsistence of marriage, she goes and resides at
a distance from the father’s place.

In Rahima Khatoon v Saburjanessa[1], the court held that the mother loses the guardianship of
the minor daughter if she remarries with a person not related to the child within prohibited
degrees. In this case, the court granted the certificate of guardianship to the child’s paternal
grandmother.

In default of mother and other female relations, hizanat belongs to:

(a) Father

(b) Nearest paternal grandfather

(c) Full brother

(d) Consanguine brother

(e) Full brother’s son

(f) Consanguine brother’s son

(g) Full brother of the father

(h) Consanguine brother of the father

(i) Son of father’s full brother

(j) Son of father’s consanguine brother

(ii) Father- father is the defacto guardian of son over the age of 7 years under Hanafi
school and 2 years under Shia school and unmarried daughter over the age of 7 under Shia
school and who has attained puberty under hanafi school.

The court will interfere with the father’s guardianship of his children only if he is unfit in
character and conduct or is unfit as regards external circumstances or waives his right or enters
into an agreement to the contrary or is out of jurisdiction of the court or intends to go abroad.

Illegitimate child- the mother of an illegitimate daughter is entitled to its custody.

Termination of hizanat

(a) General disqualifications- minor and non muslim

(b) Disqualifications affecting females- immoral, has married a stranger, resides at large distance
from father, neglects the child.

(c) Disqualifications affecting males- no male entitled custody of female child who is not within
prohibited degree.

(d) Disqualifications affecting parents- The court will interfere with the father’s guardianship of
his children only if he is unfit in character and conduct or is unfit as regards external
circumstances or waives his right or enters into an agreement to the contrary or is out of
jurisdiction of the court or intends to go abroad.

The mother does not lose her right to the custody of the children by divorce by the father of the
children.

(e) Disqualifications affecting husband- if the wife has not attained puberty, mother has greater
right over her.[2]

(3) Guardianship of property

(a) Dejure guardianship- legal or natural guardian order of persons entitled to guardianship of
the property of a minor:-

(i) Father

(ii) Executor appointed by father’s will

(iii) Father’s father

(iv) Executor appointed by the will of father’s father

(b) Certified guardianship- guardian appointed by the court- in absence of legal guardians, the
duty of appointing a guardian falls on the court.
(c) De facto guardianship- a person who is neither a legal guardian nor a guardian appointed by
court but has voluntarily placed himself in charge of the person and property of a minor is
known as de facto guardian. He is a mere custodian of the person and property of the minor and
has no right over them.

Removal of guardian

A guardian can be removed in the interest of the minor. The court may remove a guardian
appointed or declared by court or a guardian appointed by will or other testament if:

(1) He abuses trust

(2) Fails to perform his duties

(3) Incapacity to perform duties

(4) Ill-treatment or neglect of ward

(5) Continuous disregard of provisions of Guardianship and Wards Act or of any order of the
court

(6) Conviction of an offence showing moral turpitude

(7) Having interest adverse to his duties as a guardian

(8) Ceases to reside within limits of the court

(9) Goes insolvent (guardian of property)

(10)Cease to be under the law to which the minor is subject

Cessation of authority of guardianship

(A) Guardian of person

(1) Death, removal or discharge

(2) By the court of wards assuming superintendence of the person of the minor

(3) Ward ceases to be minor

(4) In case of female, her marriage

(5) In case of minor whose father was unfit for guardianship, with father ceasing to be so.

(B) Guardian of property

(a) Death, removal or discharge

(b) By the court of wards assuming superintendence of the property of the minor

(c) Ward ceases to be minor

Difference between shia and sunni law

(1) Under shia law, only father and true grandfather are guardian for marriage while under
sunni law, a number of other relations are also guardians.

(2) Under shia law, marriage by any other guardian is ineffective unless ratified while under
sunni law it maybe repudiated upon attaining majority.

(3) Under shia law, mother is guardian of son upto age of 2 years and of daughter upto age of 7
years while under sunni law, she is guardian of son upto the age of 7 years and of daughter till
she attains puberty.