FAMILY LAW II

Mohammedan Law
Indian Succession Act, 1925
Family Courts Act, 1984
and
Uniform Civil Code

G. M. Wagh

2020
 SYLLABUS

OBJECTIVES
The knowledge of family laws is important for lawyers. This course is designed to endow the
students with knowledge of both the codified and uncodified portions of Mohammedan Law. The
course concerns itself with the sources, schools, institutions, succession, maintenance, menace
of dowry, etc. In addition the students have to familiarize themselves with the provisions of the
Indian Succession Act.

COURSE CONTENTS
UNIT I

Development of Islamic Law: Advent of Islam & Development of Muslim Law, Schools of
Islamic Law – The Shariat Act, 1937 – Sources of Islamic Law.

Who is a Mohammedan: Conversion and its Consequences on Family: Marriage, Guardianship,

Succession; Child and Family.

Concept of Marriage: Definition, Object, Nature, Essential Requirements of a Muslim Marriage –

Classification of Marriages; Legal Effects of Valid, Void and Irregular Marriage – Muta Marriage.

Customary Practices and State Regulation: Polygamy; Child Marriage; Option of Puberty;

Dower: Kinds of Dower – Dower when Confirmed – Widow’s Right of Retention.

UNIT II

Parentage: Legitimacy, and Acknowledgement of Paternity – Custody, Maintenance and

Education – Guardianship and Parental Rights.

Matrimonial Remedies: Under Islamic Law and Divorce Act, 1869 – Modes of Talaq – Effects of
Talaq – Iddat – Nullity of Marriage – Bar to Matrimonial Relief

Alimony and Maintenance: Alimony and Maintenance as an Independent Remedy – A Review

under Mohammedan Law and Divorce Act, 1869 – Provisions under the Criminal Procedure
Code, 1973 – Maintenance of Divorced Muslim Women under the Muslim Women (Protection of
Rights on Divorce) Act, 1986.

UNIT III

Will: Meaning – Limitations on a Mohammedan in Making a Will – Difference between Will and
Gift – Will made in Death Bed or During Illness.

Gifts (Hiba): Essentials of Valid Gift – Kinds of Hiba – Revocation of Gifts.

Wakf: Essentials of Valid Wakf – Mutawalli: Appointment, Powers and Duties of Mutawalli.

Pre-emption: Law relating Pre-emption – Nature of Right of Pre-emption – Who can Pre-empt –
Formalities – When the Right of Pre-emption is lost .
UNIT IV

Muslim Law of Inheritance: Under Shia and Sunni Schools

Distribution of Property under Indian Succession Act of 1925: Of Christians, Parsis

Domicile: Kinds of Domicile – Modes of Acquisition of Domicile

Citations and Legal Representatives: Succession Certificate, Probate and Letters of

administration, Powers and Duties of Executor,

UNIT V

Wills: Privileged and Unprivileged Wills – Construction of Wills in Brief – Void Bequests,
Void Wills – Kinds of Legacies: Specific and Demonstrative Legacy – Ademption of
Legacies

Protection of Property of the Deceased: Appointment of Curator – Powers and Duties.

Family Courts Act, 1984: Its Constitution, Powers, and Functions.

Uniform Civil Code: Article 44 of Indian Constitution – Need for Uniform Civil Code.

PRESCRIBED BOOKS
1. Mulla, D. F. Principles of Mohammedan Law, (New Delhi: Lexis Nexis, 1906).

2. Diwan, Paras. Law of Intestate and Testamentary Succession, 4th Edition, (New Delhi:
Universal Law Publishing Co. Ltd, 2013)

REFERENCE BOOKS
1. Mitra, B. B. Indian Succession Act, 1925. 15th Edition, (New Delhi: Jain Book Agency,
2013).

2. Fyzee, A. A. Outlines of Mohammedan Law, (Oxford University Press, 1974).

3. Basu, N. D. Law of Succession, 5th Edition, (Calcutta: Eastern Law House, 1974).

4. Diwan, Paras. Family Law: Law of Marriage and Divorce in India, (New Delhi: Universal
Law Publishing Co. Ltd, 2011).

5. Bhattachargee, A. M. Muslim Law and the Constitution (Calcutta: Eastern Law House,
1994).

6. Mohamood, Tahir. The Muslim Law of India (Law Book Company, 1980).

7. Divorce Act, 1869 – Bare Act.

 CONTENTS

PART I – MAHOMEDAN LAW

Part A – Family Law

1. INTRODUCTION.................................................................................................1
Advent of Islam and Islamic Law.............................................................................................1
What is Islam?........................................................................................................................2
Islam After the Demise of the Prophet.................................................................................3
Indian Position....................................................................................................................3
Origin of Mahomedan Law.......................................................................................................4
Development of Mahommedan Law.........................................................................................4
1. Period of Qur’anic Precepts (1-10 AH or 622-632 AD)......................................................5
2. Period of Orthodox Khilafat (10 AH – 40 AH or 632 AD – 661 AD)....................................5
3. Period of Theoretical Study and Collection (40 – 300 AH).................................................6
4. Period of Evolution of Ijtihad and Taqlid..........................................................................6
5. Modern Period (From 1924 AD Onwards)........................................................................7

Mahommedan Law in India.............................................................................................7

Rules Expressly Made Applicable........................................................................................7
Rules Not Expressly Made Applicable..................................................................................8
Shariat Act, 1937................................................................................................................8
Application of Mahommedan Law to Non Muslims.................................................................10
Interpretation of Mahommedan Law......................................................................................11
Aga Mohammad Jaffer Khan vs. Koolsum Beebee......................................................11

Who is a Muslim?..........................................................................................................11
Muslim by Birth................................................................................................................12
Bhaiya Sher Bahadur vs. Bhiya Ganga Baksh...........................................................12
Muslim by Conversion.......................................................................................................12
Skinner vs. Orde........................................................................................................12
Effect of Conversion to Islam on Marital Rights.............................................................13
In the Matter of Ram Kumari..................................................................................13
Khambatta vs. Khambatta.....................................................................................13
Farooq Leivers vs. Adelaide Brdget Mary...............................................................14
Effect of Conversion from Islam on Marital Rights.........................................................14
Effect of Conversion to Islam on Right of Inheritance.....................................................14
Chandrasekharappa vs. Government of Mysore.....................................................14
Effect of Conversion from Islam on Right of Inheritance................................................15
Effect of Conversion from Islam on Guardianship..........................................................15
Muchoo vs. Arzoon.................................................................................................15
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SCHOOLS OF MAHOMEDAN LAW............................................................................16

Sunni Schools......................................................................................................16
Hanafi School........................................................................................................17
Maliki School.........................................................................................................18
Shafei School.........................................................................................................19
Hanbali School......................................................................................................20
Shia Schools........................................................................................................20
Ithna-Asharia (The Twelvers)................................................................................20
Ismailya.................................................................................................................21
Zaidya....................................................................................................................21
Choice of a School.......................................................................................................21

SOURCES OF MAHOMEDAN LAW.............................................................................22

A. Traditional Sources of Mahommedan Law...........................................................23
I. Primary Sources of Mahommedan Law.............................................................23
1. The Qur’an........................................................................................................23
2. Sunna (Traditions)............................................................................................23
1. Sunnat-ul-Qaul (Words Spoken).......................................................................24
2. Sunnat-ul-Fail (Conduct)..................................................................................24
3. Sunnat-ul-Tuqrir (Tacit)....................................................................................24
3. Ijma’a (Consensus)............................................................................................25
Requirements of a Valid Ijma’a............................................................................25
1. Consensus (Unanimity)...............................................................................25
2. Opinion of Jurists.......................................................................................26
3. Jurists of a Particular Period......................................................................26
4. Jurists must be Muslims............................................................................26
5. Consensus on a Religious Matter................................................................26
4. Qiyas (Analogical Deduction)............................................................................26
Requirements of a Valid Qiyas............................................................................27
II. Secondary Sources of Mahommedan Law........................................................27
1. Equity and Absolute Good...................................................................................27
(a) Istehsan (Juristic Preference).........................................................................28
(b) Al-Masalih Al-Mursalah or Istislah (Public Good).............................................28
(c) Istedlal (Inference)..........................................................................................28
(d) Istishab (Permanency)....................................................................................29
2. Ijtihab (Interpretation).........................................................................................29
3. Taqlid (Imitation).................................................................................................30
B. Modern Sources of Mahomedan Law....................................................................31
1. Legislation..............................................................................................................31
2. Precedents..............................................................................................................31
3. Urf (Customs)..........................................................................................................31
 Contents 3

2. MARRIAGE (NIKAH).................................................................................33
Definition of Nikah (Marriage)......................................................................................33
Concept of Marriage in Islam......................................................................................33
Nature of Muslim Marriage.........................................................................................34
Object of Marriage.......................................................................................................35
Essential Requirements of a Muslim Marriage.............................................................35
1. Parties Competent to Marry................................................................................35
Guardianship in Marriage (Jabr).........................................................................36
Marriage Contracted by Unauthorised Person (Aqd Fazuli)..............................36
Ayub Hassan vs. Mst. Akktari.....................................................................37
Abdul Kasim vs. Mst. Jamila Khatton (1940)...............................................37
Abdul Ahad vs. Shah Begum (1997)............................................................37
Option of Puberty (Khyar-ul-Bulugh)...................................................................37
Fatima Bibi vs. Mian Eusoof Sulaiman Ahmed.............................................37
Procedure for Repudiation..............................................................................38
No Legal Disabilities to Marriage (Asbab-ut-Tahrim).............................................39
1. Absolute Disability......................................................................................39
(a) Consanguinity (Qurabat) (Relation by Blood)..........................................39
(b) Affinity (Mushaarat) (Relation by Marriage).............................................40
(c) Fosterage (Riza) (Relation by Milk)..........................................................40
2. Relative Disability.......................................................................................40
(a) Unlawful Conjunction............................................................................41
(b) Polygamy or Marrying a Fifth Wife..........................................................41
(c) Absence of Proper Witnesses..................................................................41
(d) Difference of Religion.............................................................................42
(e) Marriage During Iddat............................................................................42
3. Prohibitive Disability...................................................................................42
(a) Polyandry...............................................................................................42
(b) Muslim Woman Marrying a Zinni (Non-Muslim)......................................43
4. Directory Disability.....................................................................................43
(a) Marrying a Woman Enceinte...................................................................43
(b) Remarriage Between Divorced Couple....................................................43
(c) Marriage During Ihram (Pilgrimage)........................................................43
(d) Marriage with a Sick Man (Marriage during Marz-ul-Maut)......................44
2. Proposal and Acceptance (Jab-o-Qubool)..............................................................44
Presence and Hearing of the Parties....................................................................44
One Meeting.......................................................................................................44
Reciprocity..........................................................................................................45
Witnesses...........................................................................................................45
3. Lawful Object......................................................................................................45
4 Contents

4. Lawful Consideration..........................................................................................45
5. Free Consent......................................................................................................45
Sayad Mohiuddin vs. Khatijabi........................................................................46
6. Formalities..........................................................................................................46
Registration of Marriage......................................................................................46
Presumption of Marriage.............................................................................................47
Valid Retirement (Khilawat-us-Sahiha) – Presumption of Consummation............48
Classification of Marriages..........................................................................................48
Valid (Sahih) Marriage.............................................................................................49
Legal Effects of Sahih (Valid) Marriage.................................................................49
(a) Mutual Rights and Duties..........................................................................50
(b) Rights of Wife and Duties of Husband........................................................50
(c) Rights of Husband and Duties of Wife........................................................50
Conjugal Domicil.........................................................................................51
Void (Batil) Marriage...............................................................................................51
Legal Effects of Batil (Void) Marriage...................................................................51
Distinction between Valid and Void Marriages................................................52
Irregular (Fasid) Marriage.......................................................................................52
Legal Effects of Fasid (Irregular) Marriage...........................................................53
Effect Before Consummation.......................................................................53
Effect After Consummation.........................................................................53
Distinction between Valid and Irregular Marriages......................................54
Distinction between Void and Irregular Marriages.......................................54
Shurut (Conditions) of Marriage..................................................................................54
Mohd. Yasin vs. Mumtaz Begum............................................................................55
Enforcement of Valid Conditions.............................................................................56
Remedies of Husband Against Disobedient Wife..................................................56
1. Divorce.......................................................................................................56
2. Refusal to Maintain.....................................................................................56
3. Suit for the Restitution of Conjugal Rights..................................................56
Remedies of Wife Against Her Husband...............................................................56
1. Suit for maintenance..................................................................................56
2. Refusal to live with him if there is imminent danger to her person .............56
3. All civil or criminal remedies.......................................................................56
Suit for Jactitation of Marriage....................................................................................56
Mir Azmat Ali vs. Mahmud-ul-nissa........................................................................56
Suit for Breach of Promise to Marry............................................................................57
Suit for Enticing Away Wife.........................................................................................57
Muhammad Ibrahim vs. Gulam Ahmed..................................................................57
 Contents 5

Muta Marriage.........................................................................................................58
Essentials of Muta Marriage....................................................................................58
1. The period of cohabitation should be fixed at the time of marriage..................58
2. Amount of mahr should be specified...............................................................58
3. There must be proper contract by declaration and acceptance........................58
4. Marriage may be with any Muslim, Kitabia or fire worshipper woman............59
Incidents of Muta Marriage......................................................................................59
Nikah and Muta Distinguished................................................................................60

3. DOWER (MAHR).......................................................................................61
Object of Mahr............................................................................................................61
Nature of Mahr............................................................................................................61
Abdul Kadir vs. Salima..........................................................................................62
Mahr-i-Musamma (Specified Dower).............................................................................63
Shah Bano vs. Iftekar Mohammad.........................................................................64
Muajjal Mahr (Prompt Dower)..................................................................................65
Muwajjal Mahr (Deferred Dower).............................................................................65
Mahr-i-Misl (Customary Dower or Proper Dower).........................................................66
Wife’s Rights and Remedies on Non-payment of Dower................................................66
1. Wife’s Right of Refusal to Cohabit.......................................................................66
Abdul Kadir vs. Salima....................................................................................67
Rabia Khatoon vs. Mukhtar Ahmed..................................................................67
2. Wife’s Right to Dower as a Debt..........................................................................67
Syed Sabir Hussain vs. Farzand Hussain........................................................68
Anjum Hassan Siddiqui vs. Salma Bi...............................................................68
3. Widow’s Right to Retain the Husband’s Property.................................................69
Maina Bibi vs. Chaudhri Vakil Ahmad.............................................................70

Kharcha-i-Pandan and Mewakhori......................................................................71

Khwaja Mohammad Khan vs. Nawab Hussain Begum...........................................71
Altaf Bi vs. Brij Narain...........................................................................................71
Amount of Dower and Condition of Payment...............................................................72

4. PARENTAGE AND LEGITIMACY...............................................................73

Presumption of Legitimacy..........................................................................................73
Conclusive Evidence of Parentage...............................................................................73
Differences between the Two Laws..........................................................................74
Ashraf Ali vs. Ashad Ali (1871)..........................................................................74
Musammat Kaniza vs. Hasan............................................................................75
Abdul Rahemankutty vs. Aisha Beevi.................................................................75
6 Contents

Legitimacy and Legitimation........................................................................................75

Habibur Rahman Chowdhary vs. Altaf Ali Chowdhary.............................................75

Acknowledgement of Paternity (Ikrar-e-Nasab)....................................................75

Muhammad Azmat vs. Lalli Begum..........................................................................76
Mohammad Yusuf vs. Mahaboobunnissa Begum......................................................76
Conditions of Valid Acknowledgement.........................................................................77
1. Intention to Confer Legitimacy............................................................................77
2. Uncertainty of Child’s Legitimacy........................................................................77
3. Difference of Ages...............................................................................................78
4. Competency of the Acknowledger:.......................................................................78
5. Confirmation by Child if the Child is Adult..........................................................78
Legal Effects of Acknowledgement...............................................................................78
Adoption and Acknowledgement.................................................................................79
Ayubshah vs. Babalaal ..........................................................................................79
Acknowledgement and Adoption Distinguished.......................................................79

5. GUARDIANSHIP (WILAAYAH) AND CUSTODY (HIZANAT)...........................80

Age of Majority....................................................................................................80
Guardianship (Tutelage)..............................................................................................82
Guardianship in Marriage (Wilaayah-e-Jabr)....................................................83
Kaloo vs. Gureeboollah........................................................................................84
Effect of Apostasy on Guardianship for Marriage.................................................84
Gul Muhammad vs. Mussammat Wazir..........................................................84
Guardianship of the Person.............................................................................85
Natural Guardian to the Person..........................................................................86
Testamentary Guardian to the Person.................................................................86
Certificated (Appointed) Guardian.......................................................................87
Khatija Begum vs. Ghulam Dastgir..................................................................88
Guardianship and Custody (Hizanat)..............................................................89
The Custody of Children (Hizanat)..................................................................89
Hafizur Rahaman.......................................................................................89
Father’s Right to Custody of Child..............................................................91
Hussain Kudichikar vs. Shahina Abdulsattar Kudichikar.....................92
Custody of Minor Married Woman..............................................................92
Custody of Illegitimate Children and Foundlings.........................................92
Gohar Begaum vs. Suggi Begum..........................................................92
Termination of Hizanat – Disqualifications..................................................93
1. General Disqualifications....................................................................93
2. Disqualifications Affecting Females.....................................................93
 Contents 7

3. Disqualifications Affecting Males.........................................................93

4. Disqualifications Affecting Parents......................................................94
In Re Ghulam Mahomed......................................................................94
Haliman Khatoon vs. Ahmadi Begum...................................................95
Amar Ilahi vs. Begum Rashida Akhtar.................................................95
5. Disqualifications Affecting Husband...................................................95
Nature of Hizanat.......................................................................................95
Imambandi vs. Mutsaddi.........................................................................95
Aninnunnissa vs. Mukhtar Ahmad and Others.........................................96
Farzanbhai vs. S. K. Ayub Dadamiya......................................................96
Guardianship to the Property of a Minor.........................................................96
De Jure and De Facto Guardians.........................................................................96
Natural Guardians to the Property......................................................................97
Testamentary Guardians to the Property.............................................................97
Certificated (Appointed) Guardian.......................................................................98
Gulam Husani Kutubuddin Maner vs. Abdul Rashid Abdul Rajak Maner.........98
Powers of De Jure Guardians in Respect of Movable Property of the Minor........100
Subsequent Ratification by Erstwhile Minor..............................................100
Powers of De Jure Guardians in Respect of Immovable Property of the Minor....100
P. Narasimbhai vs. Bai Bhabu.....................................................................101
De Facto Guardian (Fazooli, Intermeddler)................................................102
Moyna Bibi vs. Banku Behari Biswas....................................................102
Alienation of Minor’s Property by De Facto Guardian.............................103
Imambandi vs. Mutsaddi...................................................................103
Ruqia Begum vs. Iqbal Ali Khan.........................................................104
Duties of Guardian...................................................................................................104
1. Duty to Support the Ward.................................................................................104
2. Duty to Defend the Ward..................................................................................104
3. Duty to make Arrangements in the Marriage of his Ward..................................105
4. Duty to Institute or Defend Suits By or Against Ward.......................................105
5. Duty of Father to Take Charge of His Children..................................................105
6. Duty to Take Proper Care of the Ward’s Property...............................................105
7. Duty Not to Use Ward’s Property.......................................................................105
8. Duty to Maintain Proper Accounts....................................................................105
Rights of Guardian....................................................................................................106
1. Right to Control the Acts of the Minor...............................................................106
2. Right to Use Force to Defend the Ward..............................................................106
3. Right to Institute or Defend Suits by or Against Ward.......................................106
4. Right to Exercise the Right of Pre-emption........................................................106
Cessation of the Authority of the Guardian...............................................................106
Removal of Guardian................................................................................................107
8 Contents

6. MAINTENANCE (NAFQAH)......................................................................108
Wife’s Right to Maintenance......................................................................................109
Scale of Maintenance............................................................................................109
Right of a Wife Deserting Husband on His Second Marriage..................................112
Past Maintenance.................................................................................................113
Duration of Wife’s Right to Maintenance...............................................................113
Sec. 125, Criminal Procedure Code, 1973.............................................................114
Zohra Khatoon vs. Mohd. Ibrahim....................................................................114
Mohammad Ahmed Khan vs. Shah Bano Begum..............................................115
Muslim Women (Protection of Rights on Divorce) Act, 1986...................................115
Children’s Right to Maintenance...............................................................................119
Son’s Right to Maintenance...................................................................................120
Daughter’s Right to Maintenance..........................................................................121
Maintenance from the Property of the Child..........................................................121
Agreements with Wife............................................................................................122
Maintenance of Children after Dissolution of Marriage..........................................122
Maintenance of Illegitimate Children.....................................................................122
Other Descendants’ Right to Maintenance.................................................................123
Parents’ Right to Maintenance...................................................................................123
Mother’s Right to Maintenance..............................................................................123
Other Ascendants’ Right to Maintenance...................................................................124
Collaterals’ Right to Maintenance..............................................................................124
Apportionment of Liability to Maintain......................................................................124
Effect of Apostasy on Right of Maintenance...............................................................125

7. MATRIMONIAL REMEDIES UNDER ISLAMIC LAW..................................126

Restitution of Conjugal Rights..........................................................................126
1. Invalidity of Marriage........................................................................................127
Mst. Bakh Bibi vs. Qaim Din.........................................................................127
2. Grounds During the Validity of Marriage...........................................................127
(a) Legal Cruelty................................................................................................127
(i) False Charge of Adultery (Lian)..................................................................128
(ii) Institution of False Cases.........................................................................128
Shahina Parveen vs. M. Shakeel............................................................128
(iii) Grievous Chastisement...........................................................................128
(b) Agreement to Divorce...................................................................................129
(c) Non-payment of Prompt Dower.....................................................................129
(d) Ex-communication of Husband....................................................................129
(e) Apostasy of Husband....................................................................................129
(f) Ante Nuptial or Post Nuptial Agreements........................................................129
 Contents 9

(g) Ila and Zihar.................................................................................................130

(h) Exercise of Khyar ul Bulugh by Wife.............................................................130
(i) Impotency of Husband..................................................................................130

Divorce (Talaq)......................................................................................................131

Talaq................................................................................................................134
Capacity to Pronounce Talaq.................................................................................134
Wife’s Minority..................................................................................................135
Talaq under Intoxication.......................................................................................136
Intention to Dissolve Marriage...............................................................................136
Talaq Under Compulsion or Fraud........................................................................136
Optional, Conditional and Contingent Talaqs (Talaq-e-Taliq)..................................137
Bachoo vs. Bismillah.......................................................................................138
Agreement in Restraint of Talaq............................................................................138
Form of Talaq........................................................................................................138
Oral Talaq.........................................................................................................138
Talaq in Writing (Talaqnama)............................................................................139
Chunnoo Khan vs. State..............................................................................139
Presence of the Wife..............................................................................................140
Witnesses.............................................................................................................140
Kinds of Talaq.......................................................................................................142
Talaq-ul-Sunnat.................................................................................................142
Talaq Ahsan..................................................................................................142
Talaq Hasan.................................................................................................143
Talaq-ul-Biddat (Triple Talaq)............................................................................143
Rashid Ahmad vs. Anisa Khatoon................................................................144
Fazlur Rahman vs. Aisha ............................................................................144
Constitutional Validity of Triple Talaq...................................................................145
Shayara Bano vs. Union of India and Others................................................145
The Muslim Women (Protection of Rights on Marriage) Act, 2019......................146
Change in School or Sub-School...........................................................................147
Legal Effects of Talaq............................................................................................148
Talaq-ul-Mariz (Repudiation by the Sick)...............................................................149
Marz-ul-Maut (Death-bed Illness).......................................................................149
Sunni Law....................................................................................................150
Shia Law.......................................................................................................150
Sunni and Shia Laws of Talaq Compared..............................................................151
Delegation (Tafweez) of Power to Divorce...................................................................151
Mohd. Khan vs. Mst. Shahmali..............................................................................152
Manjila Bibi vs. Noor Hossain................................................................................152
10 Contents

Khula (Release).......................................................................................................153
Mst. Balaquis Ikram vs. Najmal Ikram...................................................................153
Essentials of Khula...............................................................................................154
Consideration in Khula.........................................................................................155
Stipulation to Pay Property of Others................................................................155
Subject of Consideration for Khula....................................................................156
Who May Arrange Khula and Pay Consideration?..............................................157
Legality of Consideration...................................................................................159
Khula Under Threat or Compulsion.......................................................................159
Conditional Khula.................................................................................................160
Khula During Marz-ul-Maut...................................................................................160
Dispute as to Khula..............................................................................................160
Reclaim of the Consideration by Woman...............................................................161
Mubarat.............................................................................................................161
Distinction Between Khula and Mubarat...............................................................162
Legal Effect of Khula and Mubarat.........................................................................162
Dissolution of Marriage by Decree of a Court.............................................................162
Zihar (Injurious Assimilation or Unlawful Comparison).....................................163
Ingredients of Zihar...............................................................................................164
Legal Effects of Zihar.............................................................................................164
Ila (Vow of Abstinence or Vow of Continence)....................................................165
Ingredients of Ila...................................................................................................166
Cancellation of Ila.................................................................................................167
Lian or Laan (Imprecation, False Charge of Adultery).......................................167
Zafar Husain vs. Ummat-ur- Rahman.....................................................................167
Ingredients of Lian................................................................................................167
Retraction of Charge of Lian..................................................................................168
Cancellation of Marriage by Fask..............................................................................169
K. C. Moyin vs. Nafeesa........................................................................................169
Janaki Amma vs. Padmanabhan...........................................................................170
Cancellation of Marriage at the Instance of Husband............................................170
Talaq-ul-Innin........................................................................................................170
Impotence Versus Hanc....................................................................................170
Delay in Exercise of the Right...........................................................................171
Procedure.........................................................................................................171
Dissolution of Muslim Marriages Act, 1939.......................................................172
Grounds of Divorce...............................................................................................172
1. Absence of Husband [S. 2(i) r/w Proviso (b)]..................................................173
Notice to the Heirs of the Husband [S. 3].......................................................173
2. Failure to Maintain [S. 2(ii)]...........................................................................173
Yusuf vs. Sowramma................................................................................173
 Contents 11

3. Imprisonment of Husband [S. 2(iii) r/w Proviso (a)].......................................174

4. Failure to Perform Marital Obligations [S. 2(iv)].............................................174
5. Husband’s Impotency [S. 2(v) r/w Proviso (c)]................................................174
6. Insanity, Leprosy and Venereal Disease [S. 2(vi)]...........................................175
7. Repudiation of Marriage by Wife [S. 2(vii)].....................................................175
8. Cruelty by Husband [S. 2(viii)].......................................................................175
9. Grounds Recognised by Mahomedan Law [S. 2(ix)]........................................176
Noor Jahan Bibi vs. Kazim Ali....................................................................176
Effect of Apostasy on Marriage [S. 4].....................................................................176
Right to Dower......................................................................................................177
Legal Consequences of Divorce..........................................................................177
1. Parties May Contract Another Marriage.............................................................177
2. Deferred Dower becomes Payable Immediately..................................................178
3. Mutual Rights of Inheritance Cease...................................................................178
4. Cohabitation Becomes Unlawful........................................................................178
5. Wife is Entitled to Maintenance During Iddat....................................................178
6. No Remarriage Between the Divorced Couple....................................................178
Nikah Halala.....................................................................................................178
Iddat (Period of Probation)................................................................................179
Period of Iddat......................................................................................................179
Rights and Duties of the Parties During Iddat.......................................................180

Part B – Property Law

9. Pre-emption (Shufa)..............................................................................181
History of Right of Pre-emption.................................................................................181
Definition of Pre-emption..................................................................................182
Bishan Singh vs. Khazan Singh...........................................................................182
Object of the Law of Pre-emption...............................................................................183
Justification for Pre-emption.....................................................................................183
Nature of the Right of Pre-emption....................................................................183
A Preferential Right...............................................................................................183
A Right of Substitution..........................................................................................183
A Right Running with the Land.............................................................................184
A Weak Right........................................................................................................184
A Right of the Owner of a Property........................................................................184
Constitutional Validity of Pre-emption.......................................................................185
Situation Before the 44th Amendment..................................................................185
Bhimrao vs. Patilbua.......................................................................................185
Bhau Ram vs. Baij Nath..................................................................................185
After the 44th Amendment....................................................................................186
12 Contents

Application of Pre-emption................................................................................187
Source of the Right...............................................................................................187
Subject-matter of Pre-emption..............................................................................187
Transactions to Which Pre-emption is Applicable..................................................188
Pre-emption in the Case of a Sale to a Shafi......................................................188
Enatullah vs. Kowsher Ali...........................................................................188
Amir Hasan vs. Rahim Bakhsh....................................................................188
Saligram vs. Raghubardayal.......................................................................189
Pre-emption in Case of Transfer in Lieu of Mahr ...............................................189
Persons to Whom Law of Pre-emption is Applicable...............................................190
Conflict of Laws....................................................................................................191
Difference of Religions.......................................................................................191
Gobind Dayal’s Case.....................................................................................191
Principle of Reciprocity.................................................................................193
Difference of Schools.........................................................................................193
Pasha Begum vs. Syed Shabber Hasan.......................................................194
Formalities (The Three Demands)......................................................................194
1. The First Demand – Talab-i-Mowasibat or Talab-i-Muwathaba.......................195
Jarfan Khan vs. Jabbar Meah...................................................................195
2. The Second Demand – Talab-i-Ishtesh-had or Talab-i-Taqrir..........................195
Combination of Demands..............................................................................196
The Third Demand – Talab-i-Tamlik or Talab-i-Khusumat..................................196
Right of Pre-emption When Lost............................................................................197
1. Acquiescence or Waiver.................................................................................197
2. Death............................................................................................................198
3. Release.........................................................................................................198
4. Transfer........................................................................................................198
Extinction of Right is One Capacity Only.......................................................198
Legal Effects of Pre-emption..............................................................................199
Devices for Evading Pre-emption...............................................................................199

10. WAKF.................................................................................................200
Basic Terms..............................................................................................................200
Definition..........................................................................................................201
The Shiaite View...............................................................................................202
The Mussalman Wakf Validating Act, 1913.......................................................202
The Wakf Act, 1954...........................................................................................202
Legal Incidents of a Wakf..........................................................................................203
1. Religious Character...................................................................................203
2. Perpetuity (Permanent Dedication)............................................................203
 Contents 13

3. Absoluteness............................................................................................204
4. Irrevocability.............................................................................................204
North Svlhet Local Board vs. Gaznafar Ali...........................................204
4. Inalienability.............................................................................................205
5. Use for Mankind.......................................................................................205
Creation of a Wakf............................................................................................205
Contingent or Conditional Wakf........................................................................206
Wakf by User....................................................................................................206
Mazhar Husain vs. Adiya Saran................................................................206
Qualifications of the Wakif....................................................................................206
Consignment to a Mutwalli....................................................................................207
Subject of Wakf.....................................................................................................207
Object of the Wakf................................................................................................209
Certainty...........................................................................................................209
Uncertainty or Impracticability.....................................................................210
Doctrine of Cy Pres...................................................................................210
Object of the Wakf Being Partly Valid and Partly Invalid...............................211
Kinds of Wakf....................................................................................................211
1. Wakfs in Favour of the Rich and the Poor Alike.................................................211
2. Wakfs in Favour of the Rich and Then for the Poor...........................................212
3. Wakfs in Favour of the Poor Alone....................................................................212
Private Wakf.........................................................................................................212
Abdul Fata Mohd Isitak vs. Rassomoy Dhur Chowdhury 212
Public Wakf..........................................................................................................213
Wali Mohd. (Deceased) by his L.R.s vs. Smt. Rahmat Bee and Others 213
Public and Quasi Public Wakf...............................................................................213
Differences Between Wakf and Trust.................................................................213
The Mutawalli...................................................................................................214
Appointment of Mutawalli............................................................................214
1. By Wakif.......................................................................................................214
2. By the Wasi (Executor) of the Wakif..............................................................214
3. By Kazi (Court).............................................................................................214
4. By Congregation...........................................................................................214
5. By Earlier Mutawalli.....................................................................................215
6. By State Wakf Board.....................................................................................215
7. By State Government....................................................................................215
Qualifications of Mutawalli...........................................................................215
Power and Duties of Mutawalli......................................................................216
Removal of Mutawalli...................................................................................217
14 Contents

11. GIFT (HIBA).........................................................................................218

Gifts Under Mahomedan Law....................................................................................218
Hiba..................................................................................................................219
Essential Requirements of a Valid Hiba.........................................................219
1. Competent Parties.........................................................................................219
Mst. Hussaina Bai vs. Mst Zohra Bai.......................................................220
Gift to Unborn Persons.................................................................................220
2. Mouhoob (The Subject of the Gift)..................................................................221
Gift of Life Interest in a Property...................................................................221
3. Extent of Donor’s Power................................................................................222
4. Formalities....................................................................................................222
1. Declaration by the Donor (Ijab).................................................................222
2. Acceptance by the Donee (Qubool).............................................................223
3. Delivery of Possession (Kabza) by the Donor to the Donee.........................223
Mohammad Hesabuddin vs. Mohammad Hesaruddin..............................225
Registration......................................................................................................225
Void Gifts......................................................................................................227
1. Gift to Unborn Person...................................................................................227
2. Gift of Future Property..................................................................................228
3. Contingent Gift.............................................................................................228
4. Gift with Condition Attached.........................................................................228
Conditional Gift............................................................................................228
Gift with a Condition Attached......................................................................229
5. Gift of Mushaa (Hiba-bil-Mushaa)..................................................................229
Mushaa Capable of Division..........................................................................229
Mushaa Incapable of Division.......................................................................230
Revocation of Gift.........................................................................................230
1. Revocation Before Delivery of Possession.......................................................230
2. Revocation After Delivery of Possession.........................................................230
Gifts for Consideration (Ewaz)...........................................................................233
Hiba-bil-Ewaz (Gift for Consideration)...........................................................233
Muhammad Faiz Ahmad Khan vs. Gulam Ahmad Khan.................................233
Requisites of a Valid Hiba-bil-Ewaz...................................................................234
1. Actual payment of consideration...............................................................235
2. Bona fide intention on the part of the donor..............................................235
Bai-Mokasa (Gift In Lieu of Dower)....................................................................235
Gulam Abbas vs. Razaia.............................................................................235
Hiba-ba-Shart-ui-Ewaz (Gift with a stipulation for Consideration)..................235
Sarifuddin Case..........................................................................................235
 Contents 15

Hiba-bil-Ewaz and Hiba-ba-Shart-ul-Ewaz Compared............................................236

Similarities and Differences..............................................................................236
Comparison of Hiba, Hiba-bil-Ewaz and Hiba-ba-Shart-ul-Ewaz ...........................237
Sadaqa..............................................................................................................237
Sadaqa and Hiba Compared.................................................................................237
Similarities.......................................................................................................237
Differences........................................................................................................238
Sadaqa and Wakf.................................................................................................238
Ariya........................................................................................................................238
Essentials of Ariya................................................................................................239
Differences Between Hiba and Ariya......................................................................239
Gift During Marz-ul-Maut...................................................................................240
Marz-ul-Maut.........................................................................................................240
Gift During Marz-ul-Maut......................................................................................241
Recovery of Donor from Illness..............................................................................241
Donatio Mortis Causa (Sec. 191, Indian Succession Act, 1925).................................242
Gift During Marz-ul-Maut and Donatio Mortis Causa Distinguished........................242

12. WILL (WASIYAT) (TESTAMENTARY SUCCESSION)................................243

Important Feature of a Will.......................................................................................244
Requisites of a Valid Will...................................................................................244
1. Competent Testator...........................................................................................244
Suicide by the Testator.....................................................................................244
Restrictions on the Testamentary Capacity of a Muslim....................................245
The Bequeathable Third................................................................................245
Bequest to an Heir Presumptive....................................................................246
2. Competent Legatee............................................................................................247
Bequest to Institution.......................................................................................247
Bequest to Zimmee (Non-Muslim)......................................................................247
Homicide (Bequest to Person Committing Testator’s Homicide)..........................247
Bequest to an Unborn Person...........................................................................247
3. Transferable Subject-matter..............................................................................248
Bequest of Life Interest in a Property.............................................................248
Some Special Types of Bequests................................................................................249
Alternative Bequests.............................................................................................249
Contingent Bequests.............................................................................................249
Conditional Bequest..............................................................................................249
Abatement of Legacies...............................................................................................250
Lapse of Legacy.........................................................................................................251
Ademption of Legacy.................................................................................................251
16 Contents

Revocation of Wills............................................................................................251
Express Revocation...............................................................................................251
Implied Revocation................................................................................................252
Effect of Subsequent Will......................................................................................252
Will and Gift Distinguished.......................................................................................253
Sunni and Shia Laws of Will Distinguished...............................................................253

13. ADMINISTRATION OF ESTATE OF THE DECEASED.............................254

Administration of Estate under Mahomedan Law......................................................254
Vesting of Inheritance: Rule in Jafri Begam’s Case................................................255
Administration of the Estate in India.........................................................................256
Vesting of Estate...................................................................................................257
Administrator and Letter of Administration.......................................................257
Executor and Probate.......................................................................................258
Succession Certificate.......................................................................................258

14. INHERITANCE (INTESTATE SUCCESSION)...........................................259

PART II – INDIAN SUCCESSION ACT, ETC.

1. SUCCESSION TO PROPERTY.................................................................263
Legal Representatives................................................................................................264
Domicile............................................................................................................265
Classification of Domicile......................................................................................265
Domicile by Birth..............................................................................................265
Domicile by Choice...........................................................................................266
Special Mode of Acquiring Domicile in India..................................................268
Domicile by Operation of Law................................................................................268
Minor’s Domicile...............................................................................................268
Married Woman’s Domicile...............................................................................269
Lunatic’s Domicile............................................................................................269
Law Regulating Succession [Sec. 5]...........................................................................270
Bartlett vs. Bartleti............................................................................................271

2. INTESTATE SUCCESSION......................................................................272
Intestacy...................................................................................................................272
Distribution of Property of Deceased Christian..................................................273
General Principles.................................................................................................273
Distribution of Property among Lineal Descendants..............................................274
Distribution of Property among Kindred................................................................277
 Contents 17

Distribution of Property of Deceased Parsi........................................................279

General Principles.................................................................................................279
Distribution of Property........................................................................................279

3. WILLS...................................................................................................282
‘Will’..................................................................................................................282
Codicil...............................................................................................................282
Purpose of a Will.......................................................................................................283
Essential Characteristics of a Will.....................................................................283
1. Legal Declaration..............................................................................................283
2. In Respect of Property.......................................................................................284
Brijraj vs. Sheodan......................................................................................284
Bheema Deo vs. Behari Das........................................................................284
Ramchandra vs. Ramabai...........................................................................284
Disposal of Property After Testator’s Death...........................................................284
Form of Will......................................................................................................285
Language of Will.......................................................................................................286
Registration and Stamp Duty................................................................................286
Different Kinds of Wills.....................................................................................286
1. Privileged Will...............................................................................................287
2. Unprivileged Will...........................................................................................287
3. Oral or Nuncupative Will...............................................................................287
4. Holograph Will..............................................................................................287
5. Inofficious Will..............................................................................................287
6. Mutual Will...................................................................................................288
7. Joint Will......................................................................................................288
8. Contingent Will and Conditional Will.............................................................288
Persons Capable of Making Wills........................................................................288
Sound Disposing Mind..........................................................................................289
Minority................................................................................................................289
Fraud, Coercion or Undue Influence.....................................................................289
Explanation I – Married Woman............................................................................289
Explanation II – Deaf, Dumb and Blind.................................................................290
Explanation III – Lunatics and Insane Persons......................................................290
Delirium and Insanity.......................................................................................290
Lucid Interval...................................................................................................290
Explanation IV – Intoxication, Illness, Infirmity etc...............................................291
Types of Wills....................................................................................................291
Privileged Wills..................................................................................................291
Mode of Making a Privileged Will...........................................................................292
Unprivileged Wills..............................................................................................293
18 Contents

Execution of the Will by Testator...........................................................................294

Nirmal Chunder vs. Saratmoni.........................................................................294
Place of Signature.................................................................................................295
Attestation............................................................................................................295
Personal Acknowledgement...............................................................................296
Void Bequests....................................................................................................297
1. Transfer to a Non-Existent Person.....................................................................297
2. Bequest to Unborn Person................................................................................298
Sopher vs. Administrator-General of Bengal.................................................298
Girish Dutt vs. Datadin................................................................................298
3. Bequest Creating Perpetuity..............................................................................299
4. Transfer to a Class Some of whom may come under Above Rules......................299
5. Transfer to Take Effect on Failure of Prior Transfer...........................................300
Girish Dutt vs. Datadin................................................................................300
6. Bequest with Direction for Accumulation..........................................................300
7. Bequest to Religious or Charitable Uses............................................................301
Void Wills..........................................................................................................301
1. Wills Void due to Fraud, Coercion or Undue Influence......................................301
Ammi Razu vs. Seshamma..........................................................................301
2. Wills Void due to Uncertainty............................................................................302
3. Wills Void due to Impossibility of Condition......................................................302
4. Wills Void due to Illegal or Immoral Condition...................................................302

4. LEGACIES.............................................................................................303
Kinds of Legacies......................................................................................................303
Specific and Demonstrative Legacies.........................................................................304
Specific and Demonstrative Legacies Distinguished...............................................305
Rajam Kant vs. Keki....................................................................................305
Ademption of Legacies...............................................................................................305

5. RULES OF CONSTRUCTION OF WILLS...................................................307

Presumption that Words are Given Their Ordinary Meaning..................................307
meaning to be Collected from the Entire Instrument.............................................307
No part of a Will to be Rejected as Destitute of Meaning........................................308
‘Last Word Rule’ in Case of Inconsistent Clauses...................................................308
Re Potter’s Will Trust.....................................................................................308
Re Alexander’s Will Trusts.............................................................................308
‘Armchair Rule’.....................................................................................................309
Boyes vs. Cook.............................................................................................309
A Will Speaks from the Testator’s Death................................................................309
Treatment of Ambiguity.........................................................................................310
 Contents 19

6. ADMINISTRATION OF ESTATE OF A DECEASED....................................311

Executor............................................................................................................311
Probate..............................................................................................................311
Administrator....................................................................................................312
Letters of Administration..................................................................................312
Powers of Executors and administrators...................................................................313
1. Powers in Respect of Causes of Action and Debts..............................................313
2. Powers in Respect of Demands and Rights of Action..........................................313
3. Power to Dispose of Property.............................................................................314
4. General Powers of Administration.....................................................................315
Other Aspects of Powers of Executors and Administrators.................................315
Duties of Executors and administrators.............................................................316
1. In respect of Deceased’s Funeral.......................................................................316
2. In Respect of Inventory and Account.................................................................316
3. In Respect of Payment of Expenses and Debts...................................................317
Expenses to be Paid before all Debts.................................................................317
4.In Respect of Payment of Legacies......................................................................317
Succession Certificate...............................................................................................318
Procedure for Obtaining Succession Certificate.....................................................318

7. PROTECTION OF PROPERTY OF THE DECEASED.............................................320

Appointment of Curator............................................................................................320
Powers and Duties of Curator...................................................................................321
Position of Curator....................................................................................................321

8. FAMILY COURTS ACT, 1984..............................................................................325

Salient Features of the Act........................................................................................325
‘Family Court’...........................................................................................................326
Constitution..............................................................................................................326
Jurisdiction..............................................................................................................327

9. UNIFORM CIVIL CODE.......................................................................................329

Merits of Uniform Civil Code.....................................................................................329
Constitutional Aspect................................................................................................330
Judicial Approach.................................................................................................331
Mohammad Ahmed Khan vs. Shah Bano Begum..............................331
Mary Roy vs. State of Kerala.............................................................331
Sarla Mudgal vs. Union of India........................................................332
John Vallamattom & Anr. vs. Union of India.....................................332
 PART I
MOHAMMEDAN LAW
 1. INTRODUCTION
In India, Mahomedan Law i.e., the Islamic Law is the personal law applicable to
Mahomedans, i.e., Muslims in India.

“Muslim Law in India means that portion of Islamic Civil Law which is applied to
Muslims as personal law.” – Fyzee

Mahommedan Law consists of

1. Injunctions of Qur’an;

2. Traditions introduced by the practice of the Prophet (Hadis and Sunna);

3. The common opinions of the jurists (Ijma’a)

4. The analogical deductions from the three (Qiyas)

It is further supplemented by

1. Juristic preference (Istihsan)

2. Public policy (Istilah)

3. Precedents (Taqlid)

4. Independent interpretation (Ijtihad)

India being a secular State, Mahommedan Law in India is also governed by

1. the Constitution of India,

2. the statutes enacted by competent Legislatures, (Parliament and State Legislatures)

3. precedents laid down by competent Courts (SC, HC, PC)

ADVENT OF ISLAM AND ISLAMIC LAW

In Arabian Peninsula, several different races existed. They were basically tribal
communities. These communities were not governed by any law. They were governed by
customs, which were barbaric and inhuman. “Might was right”. Disputes were usually
settled by fight. Sometimes disputes were referred to the Chief of the tribe and were
settled by him. Gambling was rampant. Usury was very common.

Women had no respect. Often girl children were buried alive. People were superstitious
and idol worshippers. This period was called by Arabs themselves ‘Ayyam-e-jahiliya’ (Age
of darkness).
2 1. Introduction

In 571 A.D. The Prophet was born. After the age of 25 years, the Prophet spent
most of his time in solitude engaging himself in prayer and meditation, in a cave
called Hira.

At the age of 40 years, he received the first message (wahi) from the God and
became the Prophet. Since then, he devoted himself to resurrect the ancient and
the only true religion professed by Adam, Noah, Abraham, Moses, Jesus and other
great prophets of the past.

This was vehemently protested by the people in Mecca and he was tortured. But
he did not give up. When there was threat to his life itself, he had to leave Mecca
and go to Medina. This flight of the Prophet is called ‘Hijrat’ and is said to be the
beginning of the Islamic Era. This point so very important in the History of Islam
that a new calender came into existence.

This point signifies the end of humiliation, persecution and failure and beginning
of success. Till then the Prophet was only a preacher, now he became a ruler.

WHAT IS ISLAM?

In the religious sense ‘Islam’ means ‘submission to the will of the God’. In the
secular sense it means ‘establishment of peace’. It is a neutral term which does
not express any association with any particular person, people or country.

Its immediate object is to create a sense of obedience and submission to Allah. Its
ultimate object is to make people walk in the right path.

The term ‘Islam’ is coined from the root word ‘asalam’, which means tranquiled at
rest. In this sense, Islam means peace, greeting, safety and salvation.

Prophet Mohammed (PBUH) considered religion as based on natural law wherein

there is no confusion or ambiguity. In Islam, all humans are brothers, with one
God as creator or master who treats them as equals.

According to Qur’an, Islam has its existence from the inception of the world and
will be there till the day of Resurrection.

When people forget the principles of Islam, the God in His infinite mercy sends to
them Reformer, Rasul, or a messenger to remind them of Islam, and put them on
the right path. Not only Mahomed, but also Adam, Noah, Abraham, Ismael, Moses
and Jesus were such Rasuls.
 What is Islam? 3

ISLAM AFTER THE DEMISE OF THE PROPHET

The Prophet had no sons at his demise from this world. Many rivals came forward
to claim the Calipahte. These competitors divided people into rival and discordant
factions. This division was political and not religious.

The first three Caliphs – Abu Bakr (632 AD), Umar (634 AD) and Usman (644 AD)
were his disciples and early companions. Usman was assassinated by Ali, the son-
in-law of the Prophet having married to his daughter Fathima. Ali was
assassinated and his place was taken by his son Hasan. Hasan gave up Caliphate
to Muauvia, an invader from Damascus, but still he was assassinated. Ali’s
supporters persuaded Hasan’s brother Husain to fight against Muavia’s son Yazid
and check his atrocities. But Husain was killed at Karbala.

According to Shias, one of the widows of the Prophet, Ayesha was responsible for
all these unfortunate events. According to them, Ali was the rightful heir to the
Caliphate. Ayesha caused her father Abu Bakr to be elected and caused the
assassination of Hasan and supported Muavia. Therefore, according to Shias, the
first three Caliphas were usurpers.

According to Sunnis, they were not usurpers but were the persons beloved to the
Prophet. Death of Husain at Karbala brought about a permanent division between
Sunnis and Shias.

In spite of all this, Sunnat and Hadis were preserved by oral tradition through
authorised persons.

INDIAN POSITION
Islam in India was introduced by the Muslim invaders. During British rule, in
1772 famous Regulation 11 was made. This regulation, enacted,

“In all suits regarding inheritance, succession, marriage and caste and other
religious institutions, the laws of the Qur’an with respect to Mohammedans,
and those of the Shatras in respect of Hindus, shall invariably be adhered to.”

Islamic criminal law as modified from time to time by the Company’s regulations
was applied to Muslims, till it was replaced by the Indian Penal Code in 1862.

Islamic law of Evidence was replaced by the Indian Evidence Act, 1872.

Islamic law in respect of Contracts, Civil Procedure and Criminal Procedure were
also replaced by the relevant legislation, i.e., Indian Contract Act, 1872, Civil
Procedure Code, 1908 and Criminal Procedure Code.
4 1. Introduction

Islamic Law of Torts was replaced by the rules of British Common Law.

Even some aspects of the Muslim Personal Law such as divorce, wakf,
maintenance, etc. were modified by relevant legislation, but without conflicting
with the principles of the Islamic law.

According to Fyzee,

“Mahomedan law as received in India is the Shariat, modified by the

principles of the English common law and equity, in the varying social and
cultural conditions of India.”

The Shariat Act, 1937 abrogated the local customs and restored to Muslims their
own personal law.

ORIGIN OF MAHOMEDAN LAW

Mahommedan Law has its origin in Arabia where the Prophet promulgated Islam.
It is of divine origin in the sense that it is a communication (Khitab) from God in
respect of human acts – saying what is right and what is wrong.

The entire system of Mahommedan Law is built upon two foundations:

1. the Holy Qur’an; and

2. Traditions (Sunna and Ahadis).

Pre-Islamic customs are almost entirely abrogated by this law.

DEVELOPMENT OF MAHOMMEDAN LAW

The process of development of Mahommedan Law may be divided into five periods:

1. The Period of Qur’anic Precepts;

2. The Period of Orthodox Khilafat;

3. The Period of Theoretical Study and Collection;

4. The Period of Evolution of Ijtihad and Taqlid;

5. The Modern Period (From 1924 AD Onwards)

 Development of Mahommedan Law 5

1. PERIOD OF QUR’ANIC PRECEPTS (1-10 AH OR 622-632 AD)

The Hijra (flight) from Mecca is the beginning of Muslim era. The Prophet and his
followers defeated the Mecca in the battle of Badar (2 AH or 623 AD). The Prophet
who was only a preacher became the ruler.

Most of the legal verses of the Qur’an were revealed during this period. The
Madinah Surahs differ from the Meccan Surah. The Meccan Surah gives guidance
individual soul, i.e., they are basically religious in nature, while Madinah Surahs
give guidance to the society and political community, and thus, deal with law.
During this period most of the judicial decisions and traditions of the Prophet
came into existence.

Muslims believe that wahi (inspiration) is of two kinds:

1. Zahir (express); and

2. Batin (implied)

Qur’an is zahir wahi, because it is written in the very words of the almighty.
Ahadis are batin wahi. It consists of the actions, sayings, teachings and judicial
decisions of the Prophet. Ahadis are also inspired, but the inspiration was
indirect.

2. PERIOD OF ORTHODOX KHILAFAT (10 AH – 40 AH OR 632 AD – 661 AD)

Prophet did not leave behind him any son. Hence, after the demise of the Prophet,
there was cut throat competition for succession to the Prophet. Abu Bakr, Umar
and Usman became Caliphs successively. Ali was elected as the fourth Caliph.

According to Shias, Ali is the first Caliph because he was the rightful successor to
the Prophet and the earlier three persons were mere usurpers.

The first four Caliphs (Khulafai Rashidin or the Just Caliphs) administered in
much the same way as the Prophet did. They were guided by a Council of the
Ashab (companions) of the Prophet who were conversant with the ideas of the
Prophet.

This period is also called the period of Sunna, because during this period the
conduct and sayings of the Prophet were closely adhered to. During the period of
the third Caliph Usman a collection of the whole of the Qur’an was made and put
in writing by Zaid. This period came to an end with the assassination of Ali, the
fourth Caliph.
6 1. Introduction

3. PERIOD OF THEORETICAL STUDY AND COLLECTION (40 – 300 AH)

During this period in the rule of Ummayyads, the use of traditions was fully made
as a source of law. People believed that Ibn Kheldum (Commandments and
Prohibition of God) are the maxims originating from the books of God and the
doings and sayings of the Prophet, and whole heartedly followed them.

There was also proliferation of fake tradition, and it became necessary to

document real tradition to differentiate it from the fake ones.

Bukhari’s collection is accepted as authoritative Ahadis. In 99-101 AH Abu-Ibn-

Shurab-Az-Zuhari made the first known collection of traditions. Abdul Malik Ibn
Juraiji made another collection at about the same time.

These collections are called Masnads because they are arranged by the names of
the Prophet’s companions relating to them and not by the subjects.

Malik Ibn Anas made a collection entitled Muwatta, which is called Musannaf,
because it is arranged by subjects. Muwatta is regarded the first great corpus of
Mahommedan Law.

In 127 AH, Marwan, the Ummayyad Caliph was defeated and dethroned and
Abdul Abbas-As-Saffah took over as the first Abbasid Caliph of Bagdad. Islamic
scholars from all corners of the Muslim world gathered in the Court of Abbsids
and studied Islamic jurisprudence. During this period four schools of Sunni Law,
Hanafi, Maliki, Shafie and Hanbali came into existence.

4. PERIOD OF EVOLUTION OF IJTIHAD AND TAQLID

After the four great Imams, Abu Hanifa, Malik Ibn Anas, Mohammad Ash-Shafi
and Ibn Hanbal, the learned jurists of Islamic Law continued the interpretation.
During this period, two parallel doctrines namely, Ijtihad and Taqlid came into
existence.

Ijtihad (independent interpretation) means working hard i.e., studying intensely to

arrive at sound opinion or judgement, and persons doing so were called
Mujtahids.

Taqlid (precedent) means blindly following the opinion of another, because a lay
person is not expected to understand the rules of Shariat.

The growth and development of law came to a standstill as no jurist was ever
recognised as the same rank as the founder himself.
 Development of Mahommedan Law 7

5. MODERN PERIOD (FROM 1924 AD ONWARDS)

In 1924 AD the Caliphate was abolished, and therefore, after 1924 AD there is no
Caliph, who, in his capacity of religious head can execute and enforce Shariat.
Shariat has been, thus reduced to a mere moral and religious code of conduct. It
has lost its juristic sanction.

In modern Islamic States such as Tunisia, Turkey, Egypt, etc., laws have been
codified in such a manner that the needs of the society are fulfilled, at the same
time without offending Shariat.

MAHOMMEDAN LAW IN INDIA

In India only some of the aspects of Islamic Law are applied to Muslims. The
application of the rules of Mahommedan Law to Muslims is derived from and
regulated partly by the statutes of the Imperial Parliament read with art. 225 of
the Constitution of India, but mostly by the Indian statutes.

In India the rules of Mahommedan Law fall under three categories:

1. those which are expressly directed by legislatures to be applicable to Muslims,

e.g., succession and inheritance.

2. those which are applied to Muslims on the grounds of justice, equity and good
conscience, e.g., pre-emption.

3. those which are not applied to Muslims, e.g., criminal law.

RULES EXPRESSLY MADE APPLICABLE

The rules of Mahommedan Law which are expressly made applicable to the
Muslims in India must be applied by the Courts, even if in the opinion of the Court
they are not in line with justice, equity and good conscience. But they may be
altered by the legislations.

For example, under the Mahommedan Law, a non-Muslim cannot inherit the
property of a Muslim. Thus where a Muslim has two children, one of whom gets
converted to some other religion, that child continues to be the child of the
Muslim, but on his death that child cannot inherit the property of the father. This
rule has been abolished by the Freedom of Religion Act, 1850.
8 1. Introduction

RULES NOT EXPRESSLY MADE APPLICABLE

No rule of Mahommedan Law which is not expressly made applicable to Muslims
in India cannot be applied if they are excluded expressly or by implication by any
statute. Also, they may not be applied if they are, in the opinion of the Court,
opposed to justice, equity and good conscience.

For example, rules of pre-emption put restriction upon the freedom of the owner of
an immovable property to sell the same to any person at his desire. He has to offer
it, in the first instance, to the neighbour. Therefore, Courts in Tamil Nadu have
found them as they are not in conformity with justice, equity and good conscience,
and have refused to apply them.

SHARIAT ACT, 1937

Shariat Act, 1937 came into operation on 7th October 1937. It makes
Mahommedan Law applicable in a number of important matters to the cases in
which parties are Muslims.

Sec. 2 of the Act provides,

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

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

Sec. 3(1) of the Act provides,

“Any person who satisfies the prescribed authority,

(a) that he is a Muslim, and

(b) that he is competent to contract within the meaning of s. 11 of the Indian

Contract Act, 1872, and

(c) that he is a resident of India,

May, by declaration in the prescribed form and filed before the prescribed authority
declares that he desires to obtain the benefits of this section, and thereafter the
provisions of s. 2 shall apply to the declarant and all his minor children and their
descendants as if in addition to the matters enumerated therein adoptions, wills
and legacies are also specified.”
 Mahommedan Law in India 9

Application of sec. 2 depends upon the religion of the parties. Application of sec. 3
depends upon the desire of the declarant.

Shariat Act, 1937 applies to

1. Intestate Succession
2. Special Property of Females
3. Marriage
4. Divorce
5. Maintenance
6. Dower
7. Guardianship
8. Gifts
9. Trust and Trust Properties
10. Wakf

Shariat Act, 1937 does not apply to

1. Questions Relating to Agricultural Land

Gifts and family settlements in respect of agricultural lands continue to be

governed by the existing customs.

2. Questions Relating to Following Types of Wakfs

(a) Charities and Charitable Institutions; and

(b) Charitable and Religious Institutions

3. Matters Not Covered by the Act

For example, pre-emption is governed by customary law.

4. Matters in Existence Before the Commencement of the Act

The Act is prospective in effect – not retrospective.

5. Matters Other Than Customs

The Act only affects customs – statutory law is repealed only sub modo.

In Burhan Mirda vs Mt. Khodeja Bibi, Calcutta High Court held that a suit for
dissolution of marriage must be instituted in the lowest Court, as per the
provisions of the CPC.
10 1. Introduction

Sec. 5 of the Shariat Act, 1937 abrogated this decision and provided that,

“The District Judge may, on a petition made by a Muslim married woman, dissolve
a marriage on any ground recognised by Muslim Personal Law (Shariat)”.

Sec. 6 of the Dissolution of Muslim Marriages Act, 1939 overrides sec. 5 of the
Shariat Act, 1937 and restores the ruling of the Calcutta High Court.

Sec. 7 of the Shariat Act, 1937 repeals certain laws listed in that section sub modo
(i.e., in so far as their provisions are inconsistent with the provisions of the Shariat
Act, 1937).

Mahomedan Law is applicable not only to Mahomedans by birth, but also to

Mahomedans by conversion. A convert not only changes his religion, but also the
personal law applicable to him.

This principle is strictly applicable to individual conversions. But where the

conversion is a community conversion, the converts may retain some of the
customs of the earlier religion to which they were accustomed.

APPLICATION OF MAHOMMEDAN LAW TO NON MUSLIMS

Where both the parties to a case of Muslims, there is no doubt that Mahommedan
Law is applicable to that case. But where one party is a Muslim and the other is a
non Muslim, the question is which law is applicable to the case.

The same question arises where though both parties are Muslims, they belong to
different sects or sub-sects.

The judicial policy in such cases is that the law applicable to the defendant is to
be applied to that case. This results in application of Mahommedan Law to non-
Muslims.

As this is only a matter of policy, therefore, in some cases Courts have refused to
apply Mahommedan Law to the cases where both the parties are not Muslims, i.e.,
where only one party is a Muslim and the other party is a non-Muslim.

But there are cases where Mahommedan Law must be applied to a case where a
party to that case is a Muslim.

For example, a woman converts to Hinduism, and thus ceases to be a Muslim.

Conversion of the woman to Hinduism, ipso facto, does not dissolve her Muslim
 Application of Mahommedan Law to Non Muslims 11

marriage. If she wants to marry again, she has to obtain divorce from her Muslim
husband. In such a divorce petition, the Petitioner wife is a Hindu, and the
Respondent husband is a Muslim.

Therefore, the question is, to that case whether Hindu Marriage Act is applicable
or Mahommedan Law is applicable. Sec. 4 of the Dissolution of Muslim Marriage
Act, 1939 provides that the wife may claim divorce on any ground provided under
sec. 2 of the Act. In such cases application of the law is not a discretion of Court.

INTERPRETATION OF MAHOMMEDAN LAW

Where a question of interpretation of Qur’an or Hadis arises, it is the duty of the

Court to see how the text under consideration has been interpreted by Muslim
jurists of recognised merit and authority.

Aga Mohammad Jaffer Khan vs. Koolsum Beebee

The Privy Council observed that where a passage of Qur’an has been interpreted in a
particular manner both in Hedaya (a work on Sunni Law) and Imamia (a work on
Shia Law), it is not open to the Court to interpret it in any other way.

WHO IS A MUSLIM?

Legal requirements for a person to be called Muslim are quite different from the
religious requirements.

There are only two requirements under law for a person to be called Muslim.

1. Faith in the unity of God; and

2. Faith in the Prophetic character of Mahommed.

No special rites or ceremonies need be observed.

It is even not necessary to be an orthodox believer in that religion.

A Muslim may be

1. a Muslim by Birth; or

2. a Muslim by Conversion.
12 1. Introduction

MUSLIM BY BIRTH

Where both the parents of a person are Muslims, the person is Muslim without
doubt. Where only one of the parents of the person is a Muslim, presumption is
that the person is a Muslim.

But the presumption is a rebuttable presumption. Where the facts and

circumstances of the case i.e., general conduct of the parties and surrounding
circumstances indicate otherwise, the presumption may be rebutted.

Bhaiya Sher Bahadur vs. Bhiya Ganga Baksh

Where the illegitimate son of a Hindu from a Muslim woman was brought up as a
Hindu, was married to a Hindu girl in the Hindu form of marriage, it was held that
the child is a Hindu, though its mother was a Muslim.

A person born as Muslim continues to be a Muslim until he renounces Islam.

Mere adoption of some Hindu form of worship is not sufficient to say that there is
such renunciation.

MUSLIM BY CONVERSION

A non-Muslim who has attained the age of majority and is of sound mind may
embrace Islam in any one of the following two modes:

1. He may simply declare that he believes in the unity of God and the prophetic
character of Mahomed.

2. He may go to a mosque, to Aalim (a person well versed in Islamic theology),

recite Kalma (Lailah-Ill-Allah Muhammad ur Rasoolullah) before Imam and
receive a Muslim name from the Imam.

The convert must formally profess to be a Mahommedan. Most important legal

requirement is that the conversion is bona fide.

Skinner vs. Orde

Helen Skinner, a widow of George Skinner cohabited with a married man John
Thomas. John Thomas wanted to marry Helen Skinner, but divorcing his Christian
wife was difficult, as there were no grounds for the same. Therefore, John and Helen
got converted to Islam.

High Court held that the conversion was of a doubtful validity, as it was not certain
that it was bona fide. Privi Council agreed with the decision of the High Court.
 Who is a Muslim? 13

Effect of Conversion to Islam on Marital Rights

The conversion of a Hindu wife to Islam does not, ipso facto, dissolve her earlier
Hindu marriage. Therefore, she cannot contract another marriage without getting
the earlier Hindu marriage dissolved.

In the Matter of Ram Kumari

Ram Kumari who was a married woman converted herself to Islam, and believing
that her Hindu marriage was dissolved by her conversion to Islam, married another
man.

It was held that she was liable for bigamy under sec. 494 of the Indian Penal Code,
1862.

The effect of conversion of the spouses to Islam depends upon the law of the
Country.

1. In an Islamic country, i.e., where Islamic Law is the law of the land, the
converted spouse must offer Islam to the other spouse. If that other spouse
refuses, the marriage may be dissolved.

2. If the country is a non-Islamic country, i.e., where Islamic Law is not the law of
the land, the marriage is automatically dissolved after a period of six months
from the conversion of one of the spouses to Islam.

However, India is an exception to this rule. In India, the marriage is to be

dissolved by the decree of a competent Court on the grounds available in law.
Refusal of the other spouse to embrace Islam is not a ground for divorce.

Where, both parties embrace Islam the question of automatic dissolution of

marriage does not arise. The marriage, like any other ordinary marriage, must be
dissolved by on any of the grounds available under the law and as per the
provisions of Mahommedan Law.

The same is the position where after the conversion both parties are
Mahommedans.

Khambatta vs. Khambatta

A Mahommedan married a Christian woman in Christian form. Thereafter, the wife

embraced Islam. The husband divorced the wife by talaq.

It was held that the divorce was valid, as the parties were governed by Mahommedan
Law.
14 1. Introduction

Farooq Leivers vs. Adelaide Brdget Mary

Christian husband embraced Islam, and pronounced talaq to divorce his Christian
wife.

It was held that talaq was invalid because Mahomedan Law was not applicable to the
case as both parties were not Mahommedans.

Death of the spouse is another mode of dissolution of marriage.

Under Mahommedan Law, a woman may not marry another man during the
subsistence of her earlier marriage. But, a Mahommedan man may marry up to
four wives at a time.

Therefore, a non-Muslim man, after conversion to Islam, may marry again even
though his earlier marriage is not dissolved.

Effect of Conversion from Islam on Marital Rights

Conversion of a Muslim husband from Islam to any other religion ipso facto
dissolves their Muslim marriage. Conversion of a Muslim wife from Islam to any
other religion does not ipso facto dissolve her Muslim marriage.

But, where a woman who had embraced Islam from some other faith re-embraces
her earlier faith, her Muslim marriage, if any, stands dissolved ipso facto. So also,
where both the parties renounce Islam and embrace some other religion, the
marriage is not dissolved.

Effect of Conversion to Islam on Right of Inheritance

In the absence of a contract to the contrary succession to the estate of a deceased

Mahommedan who had converted to Islam from some other religion is governed by
the rules of Mahommedan Law.

According to Mahommedan Law, a Hindu cannot succeed to the estate of a

Mahommedan.

Chandrasekharappa vs. Government of Mysore

A Hindu, having wife and children embraced Islam and again married to a Muslim
wife and had children from her. It was held that after his death, only his Muslim wife
and children inherit his estate to the exclusion of his Hindu wife and children.
 Who is a Muslim? 15

Effect of Conversion from Islam on Right of Inheritance

The same principle is applicable to a Mahommedan who converts from Islam to

some other religion. Thus, a Mahommedan who converts from Islam to Hiduism is
not entitled to succeed to the estate of his Mahommedan relation. But this rule is
now abrogated by the Freedom of Religion Act, 1850.

Effect of Conversion from Islam on Guardianship

According to Mahommedan Law, a person who has renounced Islam has no power
to contract a minor’s marriage.

Muchoo vs. Arzoon

It was held that a Hindu father is not deprived of his right to the custody of his
children and to direct their education by reason of his conversion to Christainity.
 SCHOOLS OF MAHOMEDAN LAW
The Muslim Law is based on the teachings of the Qur’an and Prophet Mohammad.
During the lifetime of Prophet Mohammad, there were no schools of Muslim Law and the
Principles of Muslim Law were uniform at that time. In all the circumstances where the
explicit command is provided, it was faithfully followed.

After the death of the Prophet Mohammed, the question of succession to prophet arose.
There were two conflicting views among Arabs. One group supported election method,
while the other group supported the principle of inheritance. According to the first view
(i.e., election method), the successor to Prophet Mohammed should be elected by the
Muslim Community. The other view (i.e., the principle of inheritance) the legal heir of the
Prophet Mohammed should succeed.

The members of the first group, who supported the election method came to be known
as ‘Sunnis’. The other group, who supported the principle of inheritance came to be
known as ‘Shias’.

Further, there have been many areas which are not covered by these sources and as a
result, the great scholars had themselves devised their interpretation of what should be
done in such a situation.

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

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

SUNNI SCHOOLS

The Sunnis base their doctrine on the entirety of the traditions. They regard the
concordant decisions of the successive Imams and the general body of jurists as
supplementing the Koranic rules and as equal in authority to them. The four main
Sunni Schools are:

1. Hanafi School 3. Shafei School

2. Maliki School 4. Hanbali School

 Sunni Schools 17

HANAFI SCHOOL
Hanafi School is the first and the most popular schools in Muslim law. In India,
majority of Muslims are Sunnis, and out of them the majority follow the Hanafi
School. Therefore, Indian Courts apply Hanafi Law to Muslim unless the contrary
is pleaded and proved.

Initially, this school was known as the Kufa School which was based on the name
of the city of Kufa in Iraq. Later, this school was renamed as Hanafi School based
on the name of its founder Abu Hanifa.

The Prophet did not allow his words and traditions to be reduced in writing. The
Hanafi School relied on the customs and decisions of the Muslim community.

In the year 132 AH, Abu Hanifa appointed a committee of 40 members which took
22 years and codified the precedents which were prevalent among the Muslim
community during that time. The code is called Kutub Abu Hanifa.

Hedaya is the most important and authoritative book which was created over a
period of 13 years by Ali bin Abu Bakr al Marghinani. This book provides laws on
various aspects except for the law of inheritance. Al Sirajiyya written by the
Sheikh Sirajddin is considered to be the authoritative book of the Hanafi Law of
Inheritance.

Imam Abu Hanifa based his doctrines on Qur’an and Ahadis. He held that Qur’an
is eternal and is the word of God. Therefore, he professed that Qur’an is the first
and primary source of law as well as morality.

After, Qur’an tradition occupy primacy. But as traditions are narrated by different
persons in varying manner, and also because fake traditions were rampant in
those days, Hanifa was very strict in relying upon accepting the tradition as source
of law.

According to Ibn Khaldun, Hanifa narrated only seventeen traditions and preferred
Qiyas (analogical deductions). Prior to Hanifa Qiyas was not taken seriously by the
jurists. It was Hanifa who elevated Qiyas to the level of source of Islamic Law. But
that does not mean he neglected Hadis.

Main features of this School are,

1. Less reliance on tradition unless their authority is beyond doubt.

2. Greater reliance on Qiyas;

18 Schools of Mahomedan Law

3. A little extension of the scope of Ijma’a. (Abu Hanifa advocated the validity of
Ijma’a in every age, though in theory it was strictly confined to companions of
prophet.

4. Recognizing the authority of Local custom and usages as guiding the

application of law.

5. Evolving the doctrine of Istihsan (modification of theory of law in its application

to actual facts).

MALIKI SCHOOL
This school gets its name from Malik-ibn-Anas, who was the Mufti of Madina.
During his period Kufa was considered as the capital of Muslim Khaleefa where
Imam Abu Haneefa and his disciples flourished with Hanafi Schools.

Imam Malik discovered about 8000 traditions of Prophet but complied only about
2000 of them, in the form of a book entitled Muwatta. In this book traditions are
codified subjectwise. Muwatta is considered as the first and most authoritative
book of Ahadis. This book is the first written compilation of the Hadis and is
considered as the authority by Muslims all over the World.

The Hanafi School gave importance to Ijma’a of the people and lsthihsan (juristic
preference) while the Maliki School was giving importance to Sunna and Ahadis.
Maliki law is based on Sunna. They accept Ijma’a only in rare cases and they will
accept Ijma’a of the scholars of Madeena alone.

In India, there are no followers of this school but the Dissolution of Muslim
Marriage Act, 1939 has adopted some of the laws and provision of this School as
they give more rights to the women than any other school.

Main features of this School are,

1. Liberal acceptance of traditions, which in the opinion of Imam Malik, were

authentic, even if tradition carried authority of only one narrator.

2. Acceptance of practices, usages customs of the people of Madina and of the

saying of companions of prophet.

3. Recourse to Qiyas (Analogy), only in the absence of explicit text.

4 Recognition of Principle of public welfare (Al-masalih al-mursalah) as basis of

deduction.

5. Adding to the four main sources of Muslim Law, one more source viz., Istidial,
i.e., principle of logical deduction.
 Sunni Schools 19

SHAFEI SCHOOL

This school was founded by Muhammad bin Idris Shafei. He was a disciple of
Imam Malik at Madeena and later he went to Kufa and worked with the disciples
of Imam Abu Haneefa. Imam Shafei conceived the idea of harmonizing the two
schools Hanafi and Maliki in a friendly manner.

He is considered as the greatest jurist of Islam. He is the creator of the classical

theory of Islamic Jurisprudence. Shafei established Ijma’a as an important source
of Muslim law and gave validity to the custom of the people of Islam following more
to the method of Hanafi school. Quiyas or analogy is the contribution of Imam
Shafei to Muslim law. An authoritative book of Islamic jurisprudence, Al-Risala is
written by Imam Shafei.

He discussed the science of Islamic law and interpretation such as

1. Ijma’a (Consensus),

2. Qiyas (Analogy),

3. Ijthihad (Personal Reasoning)

4. Isthihsan (Juristic preference) and

5. Ikhthilaf (Disagreement)

in a separate chapter in this book.

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

Main features of this School are,

1. Acceptance of four sources of law; the Qur’an, the Sunna; the Ijma’a and the
Qiyas.

2. Acceptance of Istidial as fifth source of law;

3. Non-Acceptance of Ishithsan of Hanafi School and al-Malih al-mursalah of

Maliki School.

There are followers of Shafei School in Egypt, Southern Arabia, South East Asia,
Indonesia, Malaysia, and Malabar (Kerala).
20 Schools of Mahomedan Law

HANBALI SCHOOL

This school was founded by Ahmad bin Hanbal. He was a disciple of Imam Shafei
and strong supporter of Ahadis. He opposed the method of Ijthihad (personal
reasoning) explained by Imam Shafei. Instead, he formed a theory of tracing root
(usool) of Sunnah or Hadis to get the answer. He collected about 80,000 Ahadis
and codified them in his book Musnath.

SHIA SCHOOLS

The Shia reject not only the jurists but also all the traditions not handed down by
Ali or its immediate descendants. Shia sect is a minority in the Muslim world.
They have political power only in Iran though they are not a majority in that State
also. In India, they are a microscopic minority.

The three main Shia Schools are:

1. Ithna-Asharia School

2. Ismailya School

3. Zaidya School

ITHNA ASHARIA (THE TWELVERS)

They follow the Ithna Ashari law. The dominant Shia legal school is sometimes
termed the Ja’fari Fiqh, after the lmam Jaafar Sadiq, the Sixth Infallible Imam of
the world of Shiism.

The Ja’fari [Ha’fari] fiqh of the Imami Shias is in most cases indistinguishable from
one or more of the four Sunni madhahib, except that mutah or temporary marriage
is considered lawful by the fiqh Ja’fari, whereas it is prohibited in all the Sunni
schools.

The important text is Shara’ya-ul-Islam. Their major belief is that last of these
Imams has disappeared to be returning as Mehdi (Messiah).

Followers of this school are found in Iraq and Iran. Majority of Shias in India
follow this school.

They are considered political quietists.

 Shia Schools 21

THE ISMAILYA
In India, they consist of two groups, viz,

1. the Eastern Ismailyas or the Khojas, and

2. the Western Ismailyas or the Bohoras.

The Eastern Ismailyas represent the followers of the present Aga Khan, who is
believed to be 49th Imam in the line of the Prophet.

The Western Ismailyas are popularly called Bohoras and may be divided into
Daudis and Sulaymanis and various other small groups. The word Bohra merely
means merchant and does not signify any particular school of Muslim law.

Ismailyas are more open to the importance and role of women and less literal or
strict and more tolerant in their view and practice of Islam in my experience.

Originally this school prevailed in Egypt where it found favour with the Fatimid
Kings. Therefore, sometimes this School is called “Fatimid School”.

It has small number of followers in several countries, such as central Asia, East
Africa South Arabia, Iran Syria and Pakistan.

ZAIDYA
The beliefs of this school are closer to the orthodox Hanafi Sunni school and often
rejected by Twelver Shia school. They recognize the principle of election as the
basis of the succession and consider the Imam is nothing more than a right guide.

They are not found in India but found in South Arabia. This sect is the most
prominent in Yemen. The followers of this school are known for their political
activism.

CHOICE OF A SCHOOL
Every adult Muhammadan may choose any school he or she likes and may
renounce one school in favour of another.

In Haya-un-Nissa vs. Muhammad, the court held that in the case of

contemporary law, that any person can change his sect and adopt another sect.

In Nasrat vs. Hamidan, the court held that a Sunni (wife) contracting a marriage
with Shia (husband) does not thereby become subject to the Shia law.
 SOURCES OF MAHOMEDAN LAW
“Source” means origin or originating cause.

With reference to law, it implies those sources from which law has derived its authority.

Sources of Mahomedan Law may be classified as

1. Traditional Sources

(a) Primary Sources

(b) Secondary Sources

2. Modern Sources

Primary Sources of Mahommedan Law are:

1. Qur’an;

2. Sunna (Tradition);

3. Ijma’a (Consensus); and

4. Qiyas (Analogical Reasoning)

Secondary Sources of Mahommedan Law are:

1. Equity and absolute good

(a) Istehsan (Juristic Preference)

(b) Al-Masalih Al-Mursalah (Public Good)

(c) Istedlal (Inference)

(d) Istishab (Permanency)

2. Ijtihab (Interpretation); and

3. Taqlid (Imitation)
 A. TRADITIONAL SOURCES OF MAHOMMEDAN LAW

I. PRIMARY SOURCES OF MAHOMMEDAN LAW

Classical Muslim jurisprudence rested upon four pillars, the “roots of the law”.

1. THE QUR’AN
The Qur’an is the first and foremost source of the Mahommedan law. It is a collection of
revelations by God to Muhammad over a period of twenty-eight years, beginning in about
A. D. 612.

These revelations were written down on scraps of paper, bone, pottery, etc., before
eventually being collected and preserved as a single entity by Zaid during the period of
the third Caliph Usman.

The Qur’an is divided in to 114 Chapters, called ‘Suras’, each having a separate
designation. The Qur’an contains about 6000 verses called ‘Ayats’.

Oddly enough, there are very few verses in the Qur’an of a purely legal nature. Maccan
Suras relate to Theology while Madina Suras relate to Law. The verses dealing with law
does not exceed 200 and were revealed at Madina. Out of these 80 verses relate to family
law and the rest deal with State and polity. The basis of Muslim Law relating to
marriage, dower, divorce. Guardianship, inheritance, etc. is provided in the Qur’an.

In interpreting the Qur’an, one principle has to be observed. Some verses are abrogating
(Nasik) and some abrogated (Munsuk). The latter verses are deemed to be repealed by
earlier ones.

Since the Qur’an is of divine origin, it is postulated that Mahomedan Law cannot be
changed or modified by any human agency. Thus, Muslims maintain that the
Legislatures cannot reform their law. Some go to the extent that if there is a conflict
between principles of Qur’an and the Constitution, Qur’an has to prevail over the
Constitution. This view is not accepted even in many modern Islamic Countries.

2. SUNNA (TRADITIONS)
‘Sunna’ literally means a path, a procedure and a way of action. There are two types of
revelations i.e.,

1. Zahir (express) and

2. Batin (implied).
24 A. Traditional Sources of Mahommedan Law

Express or manifest revelations are the very words of Allah and came to the
Prophet through the angel Gabriel. Such revelations became part of the Qur’an.

On the other hand, the implied revelations are those which were the ‘Prophet’s
words’. They did not come through Gabriel, but Allah inspired the ideas in his
sayings. Such implied revelations formed part of Sunna.

In pre-Islamic times word ‘Sunna’ stood for ancient and continuous usage of the
community. In Muslim law, the term has come to mean the practice of Prophet,
which comprises of his sayings, deeds and tacit approvals.

The word ‘Sunna’ is often confused with ‘Hadis’. Hadis is the narration of a
particular occurrence or instance, while Sunna is the rule deduced from the
instance or occurrence.

Traditions, therefore, differ from Qur’an in the sense that Qur’an consists of the
very words of God whereas a Sunna are in the language of Prophet.

Sunna or traditions consists of:

1. Sunnat-ul-Qaul (Words Spoken)

2. Sunnat-ul-Fail (Conduct)

3. Sunnat-ul-Tuqrir (Tacit)

1. Sunnat-ul-Qaul (Words Spoken)

When somebody had a doubt about the Mahommedan Law or its interpretation, he
would approach the Prophet for his advice and guidance. The advice and guidance
given by the Prophet were remembered and applied in similar future cases. This is
called Sunnat-ul-Qaul.

2. Sunnat-ul-Fail (Conduct)

When the Prophet himself was encountered by some problem, he would find a
solution to the same in line with Qur’an. This was observed by his companions
and applied to similar future cases. This is called Sunnat-ul-Fail.

3. Sunnat-ul-Tuqrir (Tacit)

When somebody applied his own solution to a problem, in the presence of the
Prophet, and if the Prophet did not object to it, it meant that the Prophet approved
that solution as correct one. This is called Sunnat-ul-Taqrir.
 I. Primary Sources of Mahommedan Law 25

3. IJMA’A (CONSENSUS)

With the demise of the prophet, the original law-making process ended. Therefore
the questions, which could not be solved either by the principles of the Qur’an or
the Sunna, were decided by the Jurists with the introduction of the institution of
Ijma’a.

Ijma’a means agreement of the Muslim Jurists of a particular age on a particular

question of law. In other words, it is the consensus of Jurist’s opinion. Those
persons who had knowledge of law were called Mujtahids (Jurists).

When Qur’an and traditions could not supply any rule of law for a fresh problem,
the jurists unanimously gave their common opinion or a unanimous decision and
it was termed as Ijma’a.

Not each and every Muslim was competent to participate in the formation of
Ijma’a, but only Mujtahids could take part in it.

There are three kinds of Ijma:

1. Ijma Al-Aimmah (A Consensus by Religious Authorities)

(a) Ijma’a of Companions: The concurrent opinion of the companions of

Prophet was considered most authoritative and could not be overruled or
modified.

(b) Ijma’a of the Jurists: This was the unanimous decision of the jurists (other
than companion).

2. Ijma’a Al-Ummah (Ijma’a of the People or Masses): It is the opinion of the

majority of the Muslims which was accepted as law.

But this kind of Ijma’a has little value.

Requirements of a Valid Ijma’a

1. Consensus (Unanimity)
The consensus may be reached through three stages:

(a) Expression of their views by the people.

(b) Discussions and debates on those views.

(c) Differences are removed and unanimous opinion formed.

26 A. Traditional Sources of Mahommedan Law

2. Opinion Of Jurists

There are two types of matters in this regard:

(a) Ordinary matters of religion not requiring expertise

(b) Matters requiring expertise in religion or law or both

In respect of the former, consensus may be of jurists or common people, while

in case of the latter consensus may be of jurists only.

3. Jurists Of A Particular Period

During the life time of the Prophet ijma’a had no place. Ijma’a of one age may be
superseded by ijma’a of a subsequent age. An ijma’a of an age may be
superseded a subsequent ijma’a of the same age. But ijma’a of the companions
of the Prophet cannot be superseded.

4. Jurists Must Be Muslims

5. Consensus On A Religious Matter
The matter may be a matter of fact or a matter of law.

Once a valid Ijma’a is constituted, it is regarded equal to Qur’anic verse i.e., it is

equally binding on people. Its principles cover a vast subject. Ijma’a is authentic
and the right interpretation of the Quran and the Sunna. Without Ijma’a, rules of
Mahomedan Law would have been diffused and incomplete.

4. QIYAS (ANALOGICAL DEDUCTION)

The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ In
Arabic Qiyas means ‘measurement, accord, and equality.’ In other words, it means
measuring or comparing a thing to a certain standard, or to ‘establish an analogy.’

If the matters which have not been covered by Qur’an, Sunna or Ijma’a, the law
may be deducted from what has been already laid down by these three authorities
by the process of analogy (Qiyas).

The Qiyas is a process of deduction, which helps in discovering law and not to
establish a new law.

Its main function is to extend the law of the text, to cases which do not fall within
the purview of the text.
 I. Primary Sources of Mahommedan Law 27

Requirements of a Valid Qiyas

To be valid, Qiyas, must fulfil the following conditions:

1. The process of the Qiyas can be applied only to those texts which are capable of
being extended.

The texts should not be confined to a particular state of facts or rules having a
specific reference.

2. The analogy deduced should not be inconsistent with the dictates of the Qur’an
and authority of Sunna.

3. The Qiyas should be applied to discover a point of law and not to determine the
meanings of the words used in the text.

4. It must not bring a change in the law embodied.

If there is a conflict between two deductions, a jurist is free to accept any one of
the deductions from a text. Hence one analogy cannot abrogate the other.

Compared with other sources, Qiyas is of much lesser significance. The reason is
that on the analogical deductions, resting as they do, upon the application of
human reasons, which is always liable to error.

II. SECONDARY SOURCES OF MAHOMMEDAN LAW

1. EQUITY AND ABSOLUTE GOOD

Ameer Ali, in the Preface to the third edition his book ‘Mohammedan Law’ has
lucidly laid down the significance of justice, equity and good conscience as under:

“When the great expounders of Musalman Law have enunciated divergent doctrines
or expressed different opinions, the Judge administering Musalman Law is to adopt
the one most conformable to equity and requirements of the times.”

Sobhi Rajib Mahamassani in his Falsafat al-Tashri’ fi al-Islam (The Philosophy of

Jurisprudence in Islam) groups under this head “those sources which have their
origin in equity and absolute good.”
28 A. Traditional Sources of Mahommedan Law

(a) Istehsan (Juristic Preference)

Literally it means preferring or considering a thing to be good. Imam Abu Hanifa

took the liberty of laying down the which in his opinion required by the special
circumstances of a case, rather than law which analogy indicated.

Istehsan is a doctrine by which a jurist is enabled to get over a deduction of

analogy (Qiyas) either because it is opposed to text or consensus of opinion or is
such that his better Judgement does not approve of it.

This was objected to by other jurists on two grounds:

1. It gave wide discretion to create new law; and

2. It refers to matters external to Islam, especially to Qur’an.

(b) Al-Masalih Al-Mursalah or Istislah (Public Good)

Imam Malik who did not find Istehsan acceptable, tried to find an alternative to it
in Istislah which literally means ‘seeking peace’ i.e., harmony which is similar to
the rule of harmonious interpretation applied by Courts today in interpretation of
statutes. Thus, Istislah is similar to amendment of the existing law.

According to Imam Malik, ordinarily, analogy should be the means by which law
should be made to expand. But where the law so deduced is opposed to general
utility, i.e., it is not suitable in the present circumstances, then Istislah or
amendment should be resorted to.

(c) Istedlal (Inference)

Thus, Imam Malik invented the doctrine of Istislah (public good), a process similar
to Istehsan (juristic preference) and followed it by a distinct method of juristic
interpretation, known as Istedlal.

Literally, the word Istedlal means the inferring one thing from another thing. It is
similar to presumptions under the modern Law of Evidence.

This source of law is mainly recognised by the Malikis and the Shafeis, while
Hanafis regard it as only a special mode of interpretation.

The development of law by Istislah and Istdelal represents the period of juristic
equity in Mahommedan Law.
 II. Secondary Sources of Mahommedan Law 29

(d) Istishab (Permanency)

Literally, Istishab mean permanency. Technically, it is used to denote the things

whose existence or non-existence had been proved in the past be presumed to
have remained as such for lack of establishing any change.

This principle was particularly emphasised by most followers of as Shafei, Ahmed

Ibn Hanbal and adherents of Immamiysh Shias.

Illustration

A man has disappeared and whose whereabouts are not known. The Shafeis would
treat such a man as living for all purposes of law until his death is proved. Therefore,

1. his estate will not be distributed among his heirs;

2. he will be allotted his share in the estate of a person, form whom he is entitled to
inherit and who happen to die during his disappearance;

3. his wife cannot remarry.

2. IJTIHAB (INTERPRETATION)

Ijtihab literally means the ‘extension of effort and the exhaustion of all powers’.
But technically, it means the expending of effort in seeking, and arriving at rules
from various sources of in seeking, and arriving at rules from various sources of
law.

Ijtihad serves as a medium in deducing rules from the sources of Mahommedan

Law. After Prophet’s demise the companions of prophet took recourse to the right
of Ijtihad when need arose, under the shield of legislation approved and sanctioned
by the prophet and the Qur’an.

However, towards the end of the abbasidi period Suuni jurists declared that the
Ijihad was closed. The reasons were:

1. A belief that the exposition of principles by four Sunni schools was sufficient to
meet future requirements;

2. Evolution of sectarian groups gave rise to prejudices and unwarranted hatred

among the Muslims belonging to different schools;

3. Moral degradation of Muslims. Many intelligent people became concerned with

rulers of time and began to give futwas and practice Ijtihad for their pleasure;

4. Absence of qualified persons competent to make Ijtihad.

30 A. Traditional Sources of Mahommedan Law

With the dawn of 19th century, Imams like Shyakh Muhammad Abu advocated the
unification of all schools, and return to source and true spirit of Sharia.

The purpose of Ijtihad is not to replace divine law by secular law, but to
understand supreme law. It aims to make Islamic law dynamic, in conformity with
fundamental guidance of Sharia.

Ijtihad has been applied more extensively by the Imamiyah Shias, than by the
followers of the Sunni schools. To Shias, the door of interpretation has always
been open, and continues to be so.

3. TAQLID (IMITATION)

‘Taqlid’ means to follow the opinions of others without scrutinizing of

understanding them. Ijtihad was closed towards the end of Abbasid regime.

The right of Ijtihad was replaced by duty of ‘Taqlid’ and since the every jurist was
“Muqallid” (Imitator) bound to follow and accept the doctrine already established
by his predecessor.

Similarly, as a lay person is not capable of interpreting laws, he has to follow the
interpretations given by the jurists.

In most cases the doctrine of Taqlid continues to rule the hearts of the Muslims of
the world.
 B. MODERN SOURCES OF MAHOMEDAN LAW

1. LEGISLATION

In India, during British period there have been many legislative modifications of Muslim
Law. Shariat Act, 1937 was passed with a view to make Muslim Law applicable to all
Muslims, in those matters where they governed by some other law or usage. Similarly,
Wakf Validating Act, 1913 was passed to validate wakf-alal-awlad. The Freedom of
Religion Act, 1856 recognized the right of inheritance of a Muslim who has become
apostate.

2. PRECEDENTS

Precedent means a previous instance or case which is, or may be taken as an example or
rule or subsequent cases, or by which some similar act or circumstances may be
supported or justified. The doctrine has never been a part of Muslim Law.

The opinions of the jurists called futwa, have great persuasive force, yet the Kazi was not
bound to follow the futwa. If he thought it fit, he could ignore it and pronounce his own
independent judgement.

But the common law doctrine of precedent became a part of Muslim Law during British
period. Under this modern theory, judicial decisions of the Privy Council (now the
Supreme Court) and High Courts attain a position of authority in respect of all branches
of law and Muslim Law is no exception.

The civil Courts at various levels rely upon the decisions of the Higher Courts for the
ascertainment of the provisions of Muslim Law judicial precedent is thus and important
source of Muslim Law in India.

3. URF (CUSTOMS)

‘Urf’, which literally means ‘to know’, refers to the customs and practices of a given
society. Urf is the Islamic equivalent of “common law”.

Although this was not formally included in Islamic law, the Sharia recognizes customs
that prevailed at the time of Muhammad but were not abrogated by the Qur’an or the
tradition. Practices later innovated are also justified, since Islamic tradition says what
the people, in general, consider good is also considered as such by God.
32 B. Modern Sources of Mahomedan Law

According to some sources, urf holds as much authority as Ijma’a (consensus),

and more than Qiyas (analogical deduction).

Urf was first recognized by Abu Yusuf, an early leader of the Hanafi school.
However, it was considered part of the Sunna, and not as an independent formal
source.

Later Al-al-Sarakhsi opposed it, holding that custom cannot prevail over a written
text. According to Sunnis, if urf is in absolute opposition to Islamic texts, custom
is disregarded. However, if it is in opposition to qiyas custom is given preference.

According to Sunni jurisprudence, in the application of urf, custom that is

accepted into law should be commonly prevalent in the region, not merely in an
isolated locality.

Jurists also tend to, with caution, give precedence to custom over doctoral
opinions of highly esteemed scholars.

Shias do not consider custom as a source of jurisprudence.

 2. MARRIAGE (NIKAH)
Before Islam, in Arabia, women did not have personality. They were properties, and were
treated like animals. Islam gave a respectable position to women in society. They were
treated equal to men.

In Islam, a woman, after marriage

1. does not lose her individuality. Her personality is separate from that of her husband.
No one has power over her personality

2. can enter into contract with her husband also.

3. can sue her husband for arrears of dower amount.

4. can hold and dispose off property on her own.

DEFINITION OF NIKAH (MARRIAGE)

The Arabic word Nikah literally means union of sexes. In law Nikah means marriage.

Marriage is an institution ordained for the protection of society, and in order that human
beings may guard themselves from foulness and unchastity.

Baillie defines Nikah as

“a contract for the purpose of legalising sexual intercourse, and procreation of children”.

In Hedaya Nikah is defined as under:

“Nikah, in its primitive sense means carnal conjunction. Some have said that it signifies
conjunction generally. In the language of law it implies a particular contract used for the
purpose of legalising generation.”

According to Ashabah, “Marriage is a contract underlying a permanent relationship

based on mutual consent on the part of a man and women.”

According to the Prophet, “Marriage is my Sunna and those who do not follow this way of
life are not my followers and there is no monkery in Islam”.

CONCEPT OF MARRIAGE IN ISLAM

Under the Mahomedan law, marriage is essentially a civil contract. Its validity depends
on proposal on one side and acceptance on the other. It does not require any formal
34 2. Marriage (Nikah)

deed nor is the presence of witnesses necessary for its legality. In fact a marriage
contract rests on the same footing as other contracts, and is similar in effect to an
ordinary partnership. The parties retain their personal rights, against each other
as well as against strangers, and have power to dissolve the marriage tie, should
circumstances render this desirable.

“Marriage, like other contracts,” to use the words of Baillie, “is constituted by ijab
wa kabul or declaration and acceptance but it confers no right on either party over
the property of the other. The legal capacity of the wife is not sunk in that of the
husband; she retains the same powers of using and disposing of her property, of
entering into all contracts regarding it, of suing and being sued without his
consent, as if she were still unmarried. She can even sue her husband himself,
without the intervention of a trustee or next friend, and is in no respect under his
legal guardianship”.

In the language of the law, as well as in common parlance, the formal conclusion
of the contract is called aqd conveying the same meaning as the term obligation in
the Roman law. In fact, the aqd is the completion of the contract which
commences with the proposal or demand in marriage and ends with the consent.

NATURE OF MUSLIM MARRIAGE

“Muslim marriage, apart from being a contract is also a religious

sacrament.”

- Shah Muhammad Sulaiman

“Marriage among Mohammedan is not a sacrament, but purely a civil

contract.”

- Mahmood, J.

“Marriage is a religious ceremony.”

Privy Council in Shohrat Singh vs. Jafri Bagum

“Although a religious duty, marriage is emphatically not a sacrament. There are no

sacraments in Islam, nor is it coverture.”
- Fitzgerald

The marriage as partaking both of the nature of ibadat and muamalat.

- Abdur Rahim
 Object of Marriage 35

OBJECT OF MARRIAGE

A glossary on Tarmizi sets out 5 objects of marriage:

1. The restraint of sexual passion,

2. The ordering of domestic life,

3. The increase of family relations,

4. Keeping discipline of the family and responsibility of wife and children.

5. The upbringing of virtuous children.

The Prophet Said, “Men marry women for their piety, or their property, or their
beauty, but you should marry for piety”.

ESSENTIAL REQUIREMENTS OF A MUSLIM MARRIAGE

As marriage under the Mahommedan Law is a contract, the requirements of a

marriage are same as those of a contract.

1. Competent Parties

(a) Baligh (Adult);

(b) Akil (of Sound Mind); and

(c) Not Prohibited by any Legal Disability

2. Proposal and Acceptance

3. Lawful Object

4. Lawful Consideration

5. Free Consent

6. Formalities

1. PARTIES COMPETENT TO MARRY

Every Mahomedan of sound mind (akil), who has attained puberty, may enter into
the contract of marriage.

Puberty is presumed, in the absence of evidence, on completion of the age of

fifteen years. According to Hedaya, “the earliest age of puberty with respect to a
boy is twelve years, and with respect to a girl is nine years.
36 2. Marriage (Nikah)

Indian Majority Act, 1875 does not apply to matters relating to marriage, dower
and divorce.

The Prohibition of Child Marriage Act, 2006 is applicable to Muslims also, and
hence the age of bride must be above 18 years and that of the bride groom must
be above 21 years. A child marriage is voidable at the option of the party who was
below the permitted age at the time of marriage.

Guardianship in Marriage (Jabr)

Persons of unsound mind (majnoon) and persons who have not attained puberty
may be validly contracted in marriage by their respective walis (guardians).

The following persons have successive rights to consent:

1. father;

2. paternal grandfather, how high soever;

3. brother or other male relations on the paternal side in the order of inheritance
mentioned in the Table of Residuaries;

4. mother;

5. maternal uncle, maternal aunt and other maternal relations within the
prohibited degrees; and

6. State (Court or Kazi)

It is worth noting that Court cannot appoint a guardian for the marriage. It is the
substantive law which decides who may be the guardian for the marriage of a
minor. However, the Court may itself act as guardian.

Marriage Contracted By Unauthorised Person (Aqd Fazuli)

Where a marriage of a minor or person of unsound mind is contracted by a person
who is not authority to be the guardian of that minor or person of unsound mind,
it is called aqd fazuli, and the marriage is not valid.

Where a nearer guardian is present and available, only he has the power to
contract the marriage of the minor.

If a remoter guardian contracts the marriage in such a case, it is invalid, except

where,

1. He had taken the prior consent of the nearer guardian who had the authority; or

2. The minor, after attaining puberty, ratifies the marriage.

 Essential Requirements of a Muslim Marriage 37

Ayub Hassan vs. Mst. Akktari

A marriage was contracted by a remoter guardian when there is a nearer guardian

was present and available. Further such nearer guardian did not give consent to the
marriage, nor did he subsequently ratify it. Allahabad High Court held that such a
marriage is void, and consummation does not validate it.

Abdul Kasim vs. Mst. Jamila Khatton (1940)

Calcutta High Court held that the marriage of a minor without the consent of
guardian is invalid unless ratified by the minor on attaining majority. The same
principle is applicable to aqd fazuli.

Abdul Ahad vs. Shah Begum (1997)

Jammu & Kashmir High Court held that a marriage of a minor girl even if contracted
by a wali invalid ab initio.

Option of Puberty (Khyar-ul-Bulugh)

Where the marriage is contracted by a wali (guardian), the minor has a right of
ratifying or repudiating the marriage on attaining majority.

Earlier, a minor whose marriage was contracted by father or father’s father did not
have the option of puberty.

Fatima Bibi vs. Mian Eusoof Sulaiman Ahmed

Rangoon High Court held that where a minor girl [is] given in marriage by her father,
… the marriage would be valid and binding upon her.

The only exception would arise where the father has acted fraudulently or negligently
as it would if she were married to a lunatic or the contract was to her manifest
disadvantage.

Thus, father or father’s father could impose a marriage on a minor, especially a

girl, without the consent of the minor, as the minor has no legal capacity to
consent. The minor had no power to repudiate that marriage when he or she
attained puberty. Therefore the guardianship was described as jabr.

But now this disability is removed by the Dissolution of Muslim Marriage Act,
1939. Sec. 2(vii) of the Act provides that a wife is entitled to the dissolution of her
marriage if she proves the following three facts:

1. the marriage has not been consummated;

2. the marriage took place before she attained the age of 15 years; and

3. she has repudiated the marriage before attaining the age of 18 years.
38 2. Marriage (Nikah)

According to Fatwa-i-Alamgiri if a woman on attaining puberty enquires her

husband’s name or amount of dower, or salutes witnesses, option of puberty
ceases. The option of puberty is also lost on consummation of marriage.

Procedure For Repudiation

The option of puberty must be exercised through a substantive suit. Calcutta High
Court has held that wife cannot exercise option of puberty in a suit by her
husband for restitution of conjugal rights, or in any other proceedings. In other
words, option of puberty cannot be defence. But, Madhya Pradesh High Court has
held otherwise.

Lahore High Court has held that where the wife has repudiated the marriage,
decree of a Court is not necessary, but Madhya Pradesh High Court has held
otherwise.

According to Sir Mulla, wife should exercise the option of puberty within a
reasonable time on attaining majority. If she was not aware of the option, then she
should exercise the option within a reasonable time after she got the knowledge of
the option.

But the Dissolution of Muslim Marriage Act, 1939 gives her power till she attains
the age of 18 years. Thus Dissolution of Muslim Marriage Act, 1939 also sets a
period of limitation of three years.

But husband’s right continues indefinitely till he repudiates the marriage. But, he
loses the right by ratifying or consummating the marriage or by paying the dower
amount.

A man’s or women’s life may be divided into three stages:

1. Saghir is the first stage

The age of the boy or girl is below seven years. The marriage is void ab initio and
in no circumstances it can be recognised.

2. Sariri is the second stage

The age of the boy or girl is above seven years but below 15 years. In this stage
a minor can be married by his or her guardian they cannot marry on his or her
own free consent.

3. Bulugh is the third stage

The age of the boy or girl is above 15 years. He or she may enter into contract
for marriage on his or her own free consent.
 Essential Requirements of a Muslim Marriage 39

No Legal Disabilities to Marriage (Asbab-ut-Tahrim).

Legal disability or legal incapacity means the existence of certain circumstances

under which marriage is not permitted.

There are, in this regard, four kinds of disabilities:

1. Absolute;

2. Relative;

3. Prohibitive; and

4. Directory.

Absolute disability prohibits a marriage and renders it void (batil); relative

disability does not impose absolute prohibition and a marriage contracted is
merely invalid or irregular (fasid).

1. Absolute Disability
A marriage contracted under any of the absolute disabilities is null and void under
all the schools of Muslim Law. The following are the absolute disabilities:

1. Consanguinity (Qurabat) (Relation by Blood)

2. Affinity (Mushaarat) (Relation by Marriage)

3. Fosterage (Riza) (Relation by Milk)

(a) Consanguinity (Qurabat) (Relation By Blood)

The following are related to a person by blood.

1. Mother, Grand Mother, how high soever

2. Daughter, Grand Daughter hls

3. Sister (Consanguine (Full/Half) / Uterine)

4. Niece, Great Niece, how low soever

5. Aunt or Great Aunt (Paternal and Maternal) how high soever

40 2. Marriage (Nikah)

(b) Affinity (Mushaarat) (Relation By Marriage)

Affinity means nearness. A person cannot marry the following persons:

1. Wife’s Mother, Wife’s Grand Mother, how high soever

2. Wife’s Daughter, Wife’s Grand Daughter, how low soever

A man may marry the descendant of his wife if his own marriage with his wife
has not been consummated.

3. Father’s Wife, Father’s Father’s Wife, how high soever

4. Son’s, Son’s Son’s or Daughter’s Son’s Wife, how low soever

(c) Fosterage (Riza) (Relation By Milk)

When a child under the age of two years has suckled the milk of any woman (other
than its own mother), the woman becomes the foster-mother of the child. Although
there is no blood relation between them, man is prohibited to marry his foster-
mother or foster mother’s daughter.

Exceptions: Under Sunni law

1. Sister’s Foster Mother

2. Foster Sister’s Mother

3. Foster Son’s Sister

4. Foster Brother’s Sister.

In Shia Law fosterage and consanguinity are considered on the same footing and
the marriage is void, not irregular.

2. Relative Disability
Relative disabilities are those prohibitions the compliance of which is not
mandatory. The violation of any prohibition makes the marriage irregular, but not
void, and it may be validated. The following are relative disabilities:

1. Unlawful Conjunction;

2. Polygamy (Marrying a Fifth Wife);

3. Absence of Proper Witnesses;

4. Difference of Religion; and

5. Marriage During Iddat.

 Essential Requirements of a Muslim Marriage 41

(a) Unlawful Conjunction

A man may not have at the same time two wives who are so related to each other
by consanguinity, affinity or fosterage, that if either of them had been a male, they
could not have lawfully inter-married.

Illustration

A, a man, is married to B. A wants to marry C. In fact B and C are both women.

Assume that B is a man, and wants to marry C.

If in fact, B and C are sisters or mother and daughter, under our assumption that B
is a man, they will be brother and sister, or father and daughter. Therefore, they may
not marry each other.

Therefore, A cannot marry C during the subsistence of his marriage with B.

Under Sunni Law unlawful conjunction makes the marriage irregular. The man
may divorce his wife and marry his wife’s mother, sister or daughter. Under Shia
Law such marriage is void.

(b) Polygamy Or Marrying A Fifth Wife

A Muslim man may marry up to four women at a time. He may marry a fifth
woman after dissolution of his marriage to any of his four wives. If a Muslim
marries a fifth wife during the subsistence of the earlier four marriages, he is liable
for bigamy under sec. 494 or sec. 495 of the Indian Penal Code, 1862, as the case
may be.

Under Sunni Law, his fifth marriage is irregular, but not void. He may regularise it
by divorcing any of his earlier wives. Under Shia Law the marriage is void.

(c) Absence Of Proper Witnesses

Under Sunni Law, a marriage has to be contracted in the presence of witnesses.

The witnesses must be two men or one man and two women. If this requirement is
not satisfied, the marriage is irregular.

Thus, a marriage is irregular if

1. there are no witnesses;

2. only one man is the witness;

3. only two women are the witnesses; or

4. only one man and one women are witnesses.

42 2. Marriage (Nikah)

Under Shia Law, witnesses are not necessary for contracting a marriage, but
witnesses are necessary for dissolving a marriage. Therefore, under Shia Law, a
marriage contracted without witnesses is perfectly valid.

(d) Difference Of Religion

Under Mahomedan Law,

1. Marriage of a Muslim man of any sect to a Muslim woman of any sect is valid.

2. Marriage of a Sunni man to a kitabia woman is valid.

3. Marriage of a Sunni man to a woman who is neither Muslim nor kitabia is

irregular.

4. Marriage of a Shia man to a zinnia (non-Muslim woman), whether kitabia or not,

is void.

5. Marriage of a Sunni woman to a zinni (Non-Muslim man) is irregular.

6. Marriage of a Shia woman to a zinni (Non-Muslim man) is void.

A Muslim, whether male or female, may lawfully marry a zinni (non-Muslim) under
the Special Marriage Act, 1954.

(e) Marriage During Iddat

Iddat is a period of probation which a Muslim woman is bound to observe after the
dissolution of her marriage by the death of her husband or by divorce, before she
can lawfully marry again. Iddat is in the interest of the certainty whether she is
pregnant by the first husband.

3. Prohibitive Disability
The following are the two prohibitive disabilities:

1. Polyandry

2. Muslim Woman Marrying a Zinni (Non-Muslim)

(a) Polyandry

A Muslim woman is not permitted to contract second marriage during the

continuance of the first marriage. Such a marriage is void, and children born out
of such marriage are illegitimate. Such a marriage is also an offence under
sec. 494, IPC.
 Essential Requirements of a Muslim Marriage 43

(b) Muslim Woman Marrying A Zinni (Non-Muslim)

A Muslim woman cannot marry a non-Muslim. Such a marriage is

1. irregular under Sunni Law;

2. void under Shia Law;

3. valid under the Special Marriage Act, 1954.

4. Directory Disability
There are four directory disabilities:

1. Marrying a Woman Enceinte (Pregnant Woman);

2. Remarriage Between Divorced Couple;

3. Marriage During Pilgrimage; and

4. Marriage with a Sick Man.

(a) Marrying A Woman Enceinte

It is unlawful to marry a woman who is already pregnant by her former husband.

(b) Remarriage Between Divorced Couple

Where a Mahomedan divorces his wife by triple talaq, later he cannot remarry her
without nikah halala. The wife has to marry another man, such other marriage
has to be consummated, and after that her later husband must divorce her. Only
then her earlier husband can remarry her.

(c) Marriage During Ihram (Pilgrimage)

Marriage between muhrim and muhrima in the state of ihram is valid under the
Hanafi Law following Fatwa-i-Alamgiri.

According to Maliki, Shafei and Hanbali schools marriage in the sacred territory
on a pilgrimage to Mecca is irregular.

Under Shia Law such a marriage is void.

44 2. Marriage (Nikah)

(d) Marriage With A Sick Man (Marriage During Marz-ul-Maut)

Marriage to a person suffering from terminal illness is not valid. But if the person
recovers from that illness and the marriage is consummated, it becomes valid.

2. PROPOSAL AND ACCEPTANCE (JAB-O-QUBOOL)

Being a contract proposal (ijab) and acceptance (qubool) are essential for valid
marriage. According to the Mahomedan Law, it is absolutely necessary that
proposal and acceptance should be made by the parties to the marriage or
somebody (Vakil) on their behalf.

In Mst. Zainaba vs. Abdul Rahman, it has been held that the proposal and
acceptance may be oral or in writing, and that there is no particular form in which
they should be made. Where they are in writing such as kabin-naama, it is an
important piece of evidence.

There should be clear statement that the marriage is contracted. There should not
be any ambiguity, mere intention or mere promise to marry at a future time.

It should be necessary that the words must show an intention to establish

conjugal relation from the moment of acceptance. If the intention is to establish
conjugal relation in future, there is no marriage.

Betrothal ceremony has no consequence. Under Hanafi Law intention is

immaterial, even proposal and acceptance made as a joke constitutes a valid
marriage.

Presence and Hearing of the Parties

The proposal and acceptance must be made in the presence of each other or in the
presence of their vakils (agents). Where the parties are present, they must be able
to hear the proposal and acceptance. According to Wilson, this is because the
parties should be able to understand the nature of contract which they are
entering into.

One Meeting

The transaction must be in one meeting. A proposal in one meeting and

acceptance in another meeting do not constitute a valid marriage.
 Essential Requirements of a Muslim Marriage 45

Reciprocity

There must be reciprocity between the proposal and acceptance. The acceptance
must be unconditional.

Illustration

Where A offers to marry B for a mahr of Rs. 20,000 and B accepts the proposal to
marry for a mahr of Rs. 40,000 there is no valid marriage.

Witnesses

Under the Sunni Law, marriage must be contracted in the presence and hearing of
witnesses. The witnesses must be two male adult persons of sound mind or one
male and two female adult persons of sound mind.

Under Shia Law witnesses are not necessary for marriage, but are necessary for
dissolution of marriage.

3. LAWFUL OBJECT

Object of marriage is to regularise sexual intercourse and procreation of children.

Therefore, object of marriage is always lawful.

4. LAWFUL CONSIDERATION

Mahr (dower) proposed to be paid by the prospective husband to his prospective

wife is the consideration for marriage.

Mahr may be prompt or deferred or a combination of both. Prompt dower (muajjal

mahr) is paid at the time of marriage, while deferred dower (muwajjal mahr) is paid
at a future time on demand by wife.

Dower is the form of money or property, and therefore, it is also always lawful.

5. FREE CONSENT

Marriage a Mahomedan who is of sound mind and has attained puberty is void if it
is brought about without his consent.
46 2. Marriage (Nikah)

Where the boy or girl has not attained puberty, the marriage is not valid unless
the legal guardian (wali) has consented to it.

Where the boy or girl has attained puberty, consent of the father or guardian is no
substitute for his or her consent.

Sayad Mohiuddin vs. Khatijabi

The marriage of a girl who had attained puberty was contracted by her father against
her consent. Bombay High Court held that the marriage was invalid.

The consent may be express or implied – smiling or even remaining silent may be
taken as consent. But, the consent on the part of each party must be free and
informed consent.

The Mahomedan lawyers add freedom (hurriyet) as one of the conditions to the
capacity for marriage. Consent given under fear, undue influence or fraud is not
free and hence the marriage is invalid.

What amounts to coercion or compulsion depends upon the circumstances of each

case.

But under the Hanafi Law, consent under compulsion or consent without
intention to marry, is valid.

6. FORMALITIES

Mahomedan Law does not require rite or ceremony to be performed during

marriage. Though there are several rites and ceremonies are performed in a
Mahomedan marriage, they are more of a religious nature than legal requirement.

Mohammad Ali says the contract of marriage is sanctified by a sermon (khutbah)

before the parties announce their acceptance. He says that this khutbah at
marriage helps the publicity of marriage, it sanctifies the marriage, and it informs
the parties of their responsibilities.

Registration of Marriage

Mahomedan Law does not require registration of marriages. If there is any

customary requirement to that effect, the same is accepted by the Shariat Act,
1937.
 Essential Requirements of a Muslim Marriage 47

If the marriage is under the Special Marriage Act, 1954, registration of marriage is
compulsory.

In the opinion of the National Commission on Women, registration of marriage is

beneficial to a woman to claim the status of wife. Registration of marriage is a
strong evidence of marriage.

PRESUMPTION OF MARRIAGE

Whether two persons are married to each other is a question of fact. Marriage may
be proved using direct evidence:

1. through Nikahnama (Marriage Deed)

2. through the evidence of witnesses who attended the marriage

Where direct evidence is not available, the fact may be proven using
circumstantial evidence. Marriage may be inferred from the circumstances which
lead to the presumption of marriage. The following circumstances lead to a
presumption of marriage between the parties:

1. There must be a prolonged continuous cohabitation as husband and wife.

2. The parties must not be within prohibitory degrees of relationship.

3. The woman must not be a prostitute or concubine (Gazanfar Ali vs. Kaniz
Fatima)

4. Woman must be treated as wife with all intention and knowledge of giving her
the status of a wife.

5. Recognition of the relation of husband and wife, by friends, neighbours and

relatives.

6. Acknowledgement by the husband of the wife, provided the relation of husband

and wife is not impossible between them.

7. Acknowledgement by the man of the children resulting from such union with
woman as legitimate (Hussain vs. Rajamma).

After lapse of long period after marriage, all the formalities required should be
presumed to have been complied with.
48 2. Marriage (Nikah)

Presumption of marriage is not applicable where,

1. Conduct of parties is not such that they are husband and wife.

2. Woman was a prostitute before she was brought to a man’s house.

3. The woman is known to be the wife of another person.

Valid Retirement (Khilawat-us-Sahiha) – Presumption of Consummation

When husband and wife are alone together consummation marriage is presumed,
except where there is some legal, physical or moral impediment to marital
intercourse.

Among Sunnis, it has same legal effect as actual consummation for the purpose of

1. dower;

2. establishment of paternity;

3. observance of iddat;

4. bar of marriage with wife’s sister; and

5. polygamy.

But it is not sufficient in respect of the following two matters where actual
consummation is compulsory.

1. Marriage to wife’s daughter; and

2. Nikah halala to overcome remarriage between divorcees.

CLASSIFICATION OF MARRIAGES

Under Sunni Law marriages may be

1. Sahih (Valid);

2. Fasid (Irregular); or

3. Batil (void).

Marriages which fulfil all the legal requirements of a valid marriage are valid.
Marriages between parties suffering from absolute disability are void. Marriages
 Classification of Marriages 49

between parties suffering from relative, prohibitory or directory disabilities are

irregular, except remarriage with wife divorced by triple talaq, without nikah
halala, which is void.

Under Shia law marriages may be valid or void. Shia Law does not recognise any
marriage as irregular. All marriages which are irregular according to Sunni Law
are void according to Shia Law. The only exception is absence of proper witnesses
to the marriage. As witnesses are not necessary under Shia Law, such marriage
which is irregular under Sunni Law is valid under Shia Law.

VALID (SAHIH) MARRIAGE

A marriage which fulfils all the legal requirements is valid. A valid marriage has to
fulfil the following requirements:

1. Competent Parties

Baligh (Major), Akil (of Sound Mind), Not Prohibited by any Legal Disability

2. Proposal and Acceptance

3. Lawful Object

4. Lawful Consideration

5. Free Consent

6. Formalities

Legal Effects of Sahih (Valid) Marriage

A valid marriage

1. Legalises sexual intercourse between parties;

2. Gives legitimacy to children; and

3. Creates several rights and duties between parties.

These rights and duties may be classified as under:

(a) Mutual Rights and Duties;

(b) Rights of Wife and Duties of Husband; and

(c) Rights of Husband and Duties of Wife.

50 2. Marriage (Nikah)

(a) Mutual Rights And Duties

1. Husband and wife get a right of mutual inheritance;

2. Prohibited degrees of relationship are created.

They cannot marry within such degree.

3. Lawful conditions of marriage become binding between the parties.

(b) Rights Of Wife And Duties Of Husband

Wife becomes legally entitled

1. To claim maintenance from her husband.

2. To claim her dower.

Dower is a necessary consequence of marriage. Even if there is no express

stipulation for dower agreement to pay dower will be deemed as per custom.

Right to refuse cohabitation if prompt dower is not paid.

3. To right to the society of her husband.

4. To right to an exclusive apartment.

She may exclude all persons except her husband.

5. To visit and be visited by her blood relations within the prohibited degrees at
least once a year.

6. To equal treatment, if there are more than one wife.

7. To right to refuse to live with husband if he keeps an idol worshipping

concubine in the same house.

Notwithstanding such refusal, she may claim maintenance from husband.

(c) Rights Of Husband And Duties Of Wife

Wife is bound

1. To allow her husband conjugal union with her.

Due regard must be had to her own health, decency and place.

2. To observe strict conjugal fidelity.

3. To obey his legal commands.

4. To reside in his house and to observe purdah if necessary.

5. To observe iddat on dissolution of marriage by divorce or death of her husband.

 Classification of Marriages 51

Conjugal Domicil

The Mahomedan law lays down distinctly

1. that a wife is bound to live with her husband, and to follow him wherever he
desires to go; and

2. that on her refusing to do so without sufficient or valid reason the courts of

justice, on a suit for restitution of conjugal rights by the husband, would order
her to live with her husband.

VOID (BATIL) MARRIAGE

Under Sunni Law, the following marriages are void.

1. Marriage in violation of absolute incapacity.

2. Marriage with the wife of another person, whose marriage is still subsisting.

3. Remarriage with one’s own divorced wife, when there is a legal bar.

Under Shia Law, the following marriages are void.

1. Marriage in violation of absolute incapacity.

2. Marriage with the wife of another person, whose marriage is still subsisting.

3. Remarriage with one’s own divorced wife, when there is a legal bar.

4. Marriage prohibited by unlawful conjunction.

5. Fifth marriage during the subsistence of the earlier four marriages.

6. Marriage with a woman enciente.

7. Marriage during pilgrimage.

8. Marriage with a sick man.

9. Marriage with a woman undergoing iddat.

10. Marriage with a zimmi (non-Muslim)

Legal Effects of Batil (Void) Marriage

Void marriage is of no legal effect either before or after consummation. No rights or

obligations are created between the parties.
52 2. Marriage (Nikah)

The following are the incidents of a void marriage.

1. There is no right of maintenance.

2. Parties cannot inherit from the other.

3. Woman is entitled to dower if the marriage is consummated.

4. The offspring of a void marriage are illegitimate.

5. The parties can separate from each other at any time without divorce.

6. The woman is not required to observe iddat if the man dies or the parties
separate.

7. The parties may contract another marriage lawfully.

Distinction Between Valid And Void Marriages

1 Valid marriage is absolutely lawful while void marriage is absolutely unlawful.

2. Valid marriage has all the legal consequences of a lawful marriage, while a void
marriage does not have any consequences at all.

IRREGULAR (FASID) MARRIAGE

A marriage suffering from some legal infirmity which may be ignored or cured is
irregular. A marriage becomes irregular for the following reasons:

1. Unlawful Conjunction;

2. Polygamy (Marrying a Fifth Wife);

3. Absence of proper witnesses;

4. Marriage between

Muslim man and a woman who is neither Muslim nor Kitabia;

Muslim woman and zimmi (non-Muslim man)

5. Marriage during iddat.

6. Marriage during pilgrimage; and

7. Marriage with a sick man.

Irregular marriages are recognised as such only under the Sunni Law. There are
no irregular marriages under Shia Law. All marriages treated as irregular under
 Classification of Marriages 53

Sunni Law are treated as void under Shia Law, except marriage contracted
without proper witnesses, which are valid under Shia Law.

An irregular marriage is invalid until the irregularity is cured. Once the

irregularity is cured that marriage becomes valid. Thus, all the incidents of valid
marriage follow.

Legal Effects of Fasid (Irregular) Marriage

Effects of an irregular marriage depend upon its consummation. Thus effects of an

irregular marriage may be classified as

1. Effects before consummation of marriage; and

2. Effects after consummation of marriage.

Effect Before Consummation

If an irregular marriage is not consummated, it remains void, and its effects are
same as those of void marriage.

1. The woman is not entitled to dower.

2. Parties do not have mutual right of inheritance.

3. Parties may separate without divorce.

4. Woman is not required to observe iddat.

Effect After Consummation

If the marriage is consummated, there arise some rights and duties between the
parties, though all the rights and duties of valid marriage may not be there. The
following are such rights and duties:

1. The wife is not entitled to maintenance during iddat.

2. The wife is entitled to get specified dower or proper dower, which ever is less.

3. The offspring is legitimate.

4. The parties may separate by a single declaration on either side.

5. Wife has to observe iddat.

But the duration of iddat both on divorce or death is three menstrual cycles.
54 2. Marriage (Nikah)

But there is no mutual right of inheritance between the parties even though the
marriage is consummated. However, in Mohammad Shafi vs. Rounak Ali, the
Chief Court of Oudh had held that mutual right of inheritance is created by
consummation of irregular marriage. It is submitted, that decision is not correct.

Distinction Between Valid And Irregular Marriages

1. An irregular marriage may be dissolved by a single declaration on either side,

which is not possible in case of a valid marriage.

2. Parties to a valid marriage get mutual rights of inheritance, whereas in an

irregular marriage, even though the marriage is consummated, the parties do
not get mutual rights of inheritance.

Distinction Between Void And Irregular Marriages

1. A void marriage results from absolute disability, while an irregular marriage is a

result of relative disability.

2. A void marriage suffers from permanent disability and can never be made valid,
whereas an irregular marriage suffers from temporary disability and can become
valid on removal or cessation of that disability.

3. A void marriage does not create any rights and duties between the parties, while
irregular marriage creates only some of the rights and duties between the
parties if the marriage is consummated.

4. Physical relation in a void marriage is unlawful (zina) and children born out of
such relationship are illegitimate, while in an irregular marriage physical
relation is not unlawful and children are legitimate.

SHARAT (CONDITIONS) OF MARRIAGE

A contract between parties may be conditional as well as unconditional.
Conditions attached to a contract must be lawful and reasonable. Further, they
must not be immoral or against public policy.

Same principles are applicable to Mahomedan marriages, as a Mahomedan

marriage is a contract. If either party to the marriage commits breach of any pre-
marital conditions (sharat), Courts have the power to enforce the same through
their orders.

If the conditions are invalid, only the conditions will be invalid but the marriage
will be valid.
 Sharat (Conditions) of Marriage 55

Some examples of lawful conditions are as under:

1. The husband shall not remove the wife from the conjugal domicile without her
consent.

2. The parties shall stay at a particular place of residence.

3. An amount may be fixed as maintenance.

4. Husband shall maintain the children from wife’s earlier husband.

5. Husband shall not prevent wife from visiting or receiving the visits of her
relations.

6. Non consummation of marriage up to certain period.

7. Right of wife to desert husband’s place on ill-treatment.

8. Husband shall not marry another woman.

9. Fixation of dower and the time of its payment.

Mohd. Yasin vs. Mumtaz Begum

The following conditions to which parties agreed were held to be valid.

1. the husband would earn his livelihood and maintain his wife.

2. the parties would move to live in a house approved by wife’s parents.

3. on failure to keep up the conditions wife may divorce him.

The following are the examples of illegal conditions:

1. Wife shall have liberty to live permanently with her parents or to leave her
matrimonial home without any reason.

2. Husband shall live in wife’s house.

3. Agreement to separate in future without any reason.

4. Condition against the husband’s freedom to divorce.

5. Condition fixing the duration of a Sunni marriage to a specified time.

6. Condition that wife cannot be prevented by husband from visiting immoral

places.

7. Condition preventing wife from visiting or receiving the visits of her relations.

8. Condition that wife has to forgo the right to maintenance.

9. Condition that wife has to forgo dower.

10. Condition that parties have to forgo mutual inheritance.

56 2. Marriage (Nikah)

ENFORCEMENT OF VALID CONDITIONS

Remedies of Husband Against Disobedient Wife

1. Divorce
Disobedience of wife is good ground for husband to divorce the wife.

2. Refusal To Maintain
Similarly, it is also a good ground for the husband to refuse to maintain his
disobedient wife’

3. Suit For The Restitution Of Conjugal Rights

If the wife has refused to reside with her husband, husband may bring an
action for restitution of conjugal rights.

Remedies of Wife Against Her Husband

1. Suit For Maintenance

Claim for maintenance under s. 125, Cr.P.C., 1973

2. Refusal To Live With Him If There Is An Imminent Danger To Her Person

3. All Civil Or Criminal Remedies
Action may be brought for any acts of

(a) hurt, use of criminal force, wrongful restraint, wrongful confinement etc.,
under the Indian Penal Code, 1862; and

(b) assault and battery, false imprisonment etc. under the law of torts.

SUIT FOR JACTITATION OF MARRIAGE

Mir Azmat Ali vs. Mahmud-ul-nissa

Allahabad High Court has held that a suit lies between Mahomedans in India for
jactitation of a marriage. Jactitation is a false claim of being married to another.

In the same case, the Court observed that there can be no doubt that unless a man
has legal remedy against a false claim by a woman that she is his wife, the man and
others may suffer considerable hardship and his heirs may be harassed by false
claim after his death.
 Suit for Breach of Promise to Marry 57

SUIT FOR BREACH OF PROMISE TO MARRY

A promise to marry, by its very nature, cannot be specifically enforced. But under
English Law, Courts award damages to the aggrieved party for the breach.

Under Mahomedan Law, a promise to marry can neither be specifically

enforceable, nor can the aggrieved party is entitled to damages. However, the party
committing the breach is liable to return the presents of money, ornaments,
clothes and other things.

SUIT FOR ENTICING AWAY WIFE

Muhammad Ibrahim vs. Gulam Ahmed

It was held that a suit for enticing away wife lies against a person who persuades or
entices the wife to live apart from him. Such person is liable to pay damages to the
husband.
 MUTA MARRIAGE
‘Muta’ literally means ‘enjoyment’ or ‘use’. According to Heffening, in its legal context
muta marriage means ‘marriage for pleasure’.

Muta marriage is a kind of temporary marriage, i.e., contracted for a specified period of
time. The time may be specified in terms of days, months, years, etc.

It is recognised in Shia School of Law, but is not recognised by Sunni School of Law.
According to Sunnis marriage is a permanent relationship between husband and wife.
Any contract of marriage where time is stipulated is void. Therefore, a muta marriage is
void under Sunni Law.

ESSENTIALS OF MUTA MARRIAGE

1. The period of cohabitation should be fixed at the time of marriage.

If the parties cohabit with each other on account of muta marriage and there is evidence
as to the term for which the marriage is contracted, it is presumed that the entire period
of cohabitation was the term of marriage and the children born out of such cohabitation
are legitimate.

The period may be extended. Therefore, where the parties continue to cohabit even
after the expiry of the contracted term of marriage, it is presumed that they have
extended the term of marriage (Shaharat Singh vs. Jafri Bibi) and the children born
out of such cohabitation are legitimate.

2. Amount of mahr should be specified.

If only term is fixed but not the mahr, the marriage is void.

If mahr is fixed but not the term, the marriage becomes nikah, not muta (Shahzada
Qanum vs. Fakhir Jahan).

3. There must be proper contract by declaration and acceptance.

Parties must be of age of puberty and sound mind. Consent must be free.

Prohibited degrees of relationship are not applicable. Maximum number of marriages is

also not applicable.
 Muta Marriage 59

4. Marriage may be with any Muslim, Kitabia or fire worshipper woman

A Shia man may contract muta marriage with any Muslim, Kitabia or fire
worshipper woman, but not with an idolatress. Therefore, muta marriage with a
Hindu woman is void.

A Shia woman may contract muta marriage only with a Muslim man, but not with
any zinni (non-Muslim man).

INCIDENTS OF MUTA MARRIAGE

1. No mutual rights of inheritance created between the spouses without express
agreement to that effect.

2. Children are legitimate and entitled to inherit from both the parents.

3. Wife is not entitled to maintenance in the absence of an express agreement to

that effect.

This is because, Shar-i-at-Islam does not consider a muta wife as a wife.

However, she entitled to maintenance under s 125, CrPC.

4. Mahr must be specified while the contracting muta marriage, otherwise the
marriage is void.

In Nikah, mahr is implied and the amount is fixed by custom.

5. If the marriage is consummated, the wife is entitled to full mahr, otherwise she
is entitled only to half mahr.

6. If wife leaves the husband before expiry, the husband has a right to deduct the
proportionate part of the dower for the unexpired period.

7. Husband is not bound to provide a residence to muta wife.

8. There is no limit on the number of wives.

9. Marriage comes to an end ipso facto on the expiry of the term or by mutual
consent or by death of the either party.

But the parties are free to extend the period.

10. Muta marriage cannot be dissolved by divorce, except Zihar.

However, husband may make a gift of the unexpired term called hiba-e-
muddat.

11. Nikah wife has to observe iddat on dissolution of marriage, muta wife has to
observe iddat only if the marriage is consummated.
60 Muta Marriage

NIKAH AND MUTA DISTINGUISHED

1. Nikah is a permanent marriage, muta is temporary.

2. Nikah is dissolved by death of parties or by divorce, muta is not dissolved by

divorce (except Lian), muta is ipso facto terminated by efflux of time.

3. Nikah is recognised by Sunnis and Shias both, muta is recognised only by

Shias, not by Sunnis.

4. Nikah marriage creates both legal rights and duties and contractual rights and
duties, muta creates only contractual rights.

5. In nikah spouses have mutual right of inheritance, in muta they do not have any
such rights.

6. In nikah, if mahr is not specified, it is implied and the amount is fixed as per
custom, in muta if mahr is not specified, the marriage becomes void.

7. Under the Hanafi Law, for nikah minimum amount of mahr is fixed, in muta
there is no such minimum.

8. In nikah wife is entitled to the entire amount of mahr whether the marriage is
consummated or not, in muta, the wife is entitled to entire amount of mahr only
if the marriage is consummated, otherwise she is entitled to half the amount of
mahr.

9. Nikah wife is entitled to maintenance and residence, but muta wife is entitled to
neither of them.
 3. DOWER (MAHR)
According to Mulla, mahr or dower is a sum of money or other property which the wife is
entitled to receive from the husband in consideration of the marriage.

Mahr or dower is a sum, which is payable by the husband to the wife on marriage, either

1. by agreement between the parties; or

2. by operation of law.

Dower may be fixed in the form of money or gold and silver.

Ameer Ali defines dower as a consideration which belongs absolutely to the wife.

Here, the expression ‘consideration’ is not used in the sense in which it is used in law of
contract. In Mahomedan Law, mahr is an obligation imposed by law on husband as a
mark of respect to the wife.

As observed by Mahmood, J., dower is normally compared to price in contract of sale,

but if so, post-nuptial agreement to pay dower would become void for want of
consideration (Abdul Kadir vs. Salima).

Mahr is a necessary requirement for a valid marriage, whether nikah or muta. However,
if marriage is registered under the Special Marriage Act, 1954, dower is not necessary.

OBJECT OF MAHR
Object of Mahr is three-fold:

1. To impose an obligation on the husband to give something as a mark of respect of the

wife.

2. To place a check on the capricious use of divorce on the part of husband; and

3. To provide a wife help or subsistence after the dissolution of her marriage, so that she
may not become helpless after the death of the husband or termination of marriage by
divorce.

There may also be a condition that the husband has to pay a huge dower in case of
subsequent marriage by husband.

NATURE OF MAHR

Mahr was introduced by Prophet as a mark of respect for woman. It is similar to a

marriage gift under the Roman Law. However, marriage gift is voluntary, while mahr is
62 3. Dower (Mahr)

made obligatory in every marriage. Thus, mahr is an essential incident and

fundamental feature of marriage – wife is entitled to dower even if dower is not
fixed.

According to some authors, mahr is a consideration paid by husband to wife, and

in consideration of mahr, wife offers herself to the husband.

According to some other authors contract for marriage is similar to a contract of

sale. Wife is considered to be the property and the dower her price.

Abdul Kadir vs. Salima

Mahmood, J. observed, “If dower is unpaid the wife shall have a right to resist her
husband and it is analogous to the right of lien of a vendor upon the sold goods …
and her surrender to husband resembles the delivery of the goods to the vendee…”

If there is no stipulation for mahr, muta marriage becomes void for want of mahr.
But in case of nikah, if there is no stipulation for mahr, mahr is fixed by custom.
Such mahr fixed by custom is called mahr-i-misl (proper dower or customary
dower).

Even where there is an agreement between the husband and wife that the wife
shall not claim any mahr, still wife is entitled to claim mahr-i-misl.

Where mahr is stipulated, it is called mahr-i-musamma (specified dower).

Further, mahr-i-musamma (specified dower) is split into two parts – muajjal mahr
(prompt dower) and muwajjal mahr (deferred dower).
 Nature of Mahr 63

Where it is not settled at the time of marriage what part of the dower should be
prompt dower and what part should be deferred dower, according to Shia law, the
whole dower is deemed to be prompt dower.

According to Sunni law, a part of the dower is treated as prompt dower and a part
of it is treated as deferred dower, as per custom, and in the absence of custom,
depending upon the status of the parties and the amount of dower.

But in Sheikh Muhammad vs. Ayesha Bebie, Madras High Court has held that
the entire amount should be treated as prompt dower irrespective of the sect.

To the question whether where Sunni law is applicable the Court has the power to
declare entire dower as prompt dower, Bombay High Court has answered in the
affirmative in Husseinkhan vs. Gulab Khatoon.

Normally prompt dower is to be paid immediately on marriage, or on demand by

the wife before consummation of marriage or after consummation of marriage.

Deferred dower has to be paid on dissolution of marriage, but may also be paid at
the demand of the wife.

In Mahadev Lal vs. Bibi Maniran it is held that dower which is not paid
immediately on marriage is described as deferred dower, but if it is postponed till
it is demanded by the wife, it is prompt dower.

In Manihar Bibi vs. Rakha Singh it is held that deferred dower does not become
prompt dower merely because the wife demands it.

MAHR-I-MUSAMMA (SPECIFIED DOWER)

The sum of money or any property which is fixed at the time of the marriage, is
called the specified dower.

It may be fixed by the parties either

1. before the marriage or

2. at the time of marriage or

3. even after the completion of the marriage.

A dower may be settled either

1. orally or

2. through a written agreement called Mahr Nama.

64 3. Dower (Mahr)

If a minor or lunatic is contracted in marriage by a guardian, such guardian may

fix the amount of dower and it is binding on the minor or lunatic. The minor, on
attaining the age of puberty, cannot take plea that he was not a party to it.

Dower may be fixed even after the marriage of such minor or lunatic, provided that
at the time of settlement, the boy is still minor or lunatic.

Any kind of property, movable or immovable, tangible or intangible, and of any

value may be settled, but that money or property should be in existence.

Husband may settle any amount he likes by way of dower upon his wife. The
amount may be his entire estate, leaving thereby nothing to his other legal heirs.
The amount may even be beyond his means.

But, the minimum amount of dower is ten Dirhams which approximately Rs.
198.50 under the Sunni law. Those Muslims who are not in position to pay even
10 Dirhams, the prophet has directed them to teach Qur’an to the wife in lieu of
dower.

There is no minimum amount of dower under Shia law.

Now no maximum limit, minimum is so less that it has lost its practical
significance.

Husband may, at any time after marriage increase dower.

Similarly, wife may at any time, remit the dower wholly or partly, which is called
hiba-i-mahr. A Muslim girl who has attained the age of puberty may remit dower
even though she may not have attained the age of majority under the Indian
Majority Act, 1875. But the remission must be with free consent on her part.

Shah Bano vs. Iftekar Mohammad

Husband was increasingly showing indifference towards wife. Wife thought that the
only possible way to retain his affection was to give up her claim for dower. She
executed a document foregoing her claim to dower.

Karachi High Court held that the remission was not out of free will on the part of the
wife, and it may be against justice and equity to hold that that document is binding
on her.
 Mahr-i-Musamma (Specified Dower) 65

MUAJJAL MAHR (PROMPT DOWER)

Prompt dower is payable immediately after marriage on demand. It may be
realised at any time before or after the marriage.

Before consummation of marriage, wife is entitled to refuse the consummation of

marriage until the prompt dower is paid. Husband gets a right to sue for
restitution of conjugal rights only after payment of prompt dower, unless the
marriage is consummated.

Wife loses the right to refuse cohabitation after consummation of marriage. Prompt
dower does not become deferred after consummation of marriage. Wife has right to
sue husband for prompt dower even after consummation of marriage.

Even after consummation of marriage, the Court may decree the suit by husband
for restitution of conjugal rights, subject to payment of prompt dower by husband
to wife.

MUWAJJAL MAHR (DEFERRED DOWER)

It is to be paid on dissolution of marriage either

1. by death or divorce; or

2. upon the happening of a specified event, if so agreed.

Wife cannot claim it before the termination of marriage.

However, if there is any agreement between husband and wife that the deferred
dower shall be paid at a time earlier than the dissolution of marriage, such
agreement is valid and binding.

Further, even where there is no such agreement, husband may treat it as prompt
dower and pay or transfer some property to wife in lieu of dower.

The widow may voluntarily relinquish her dower at the time of her husband’s
funeral by the recital of a sigheh (formula).

Wife’s interest in deferred dower is a vested interest and not a contingent one.
Therefore, it is not defeated or otherwise affected by any event including the death
of the wife herself. On death of wife, her legal heirs are entitled to claim the
deferred dower.

Period of limitation is three years from the date of dissolution of marriage.

66 3. Dower (Mahr)

MAHR-I-MISL (CUSTOMARY DOWER OR PROPER DOWER)

If the amount of dower is not fixed by the parties at the time of contracting the
marriage, the wife is entitled to proper dower, fixed by the courts of law.

There is no definite amount but following principles of law are taken into
consideration:

1. The personal qualifications of the wife i.e., her age, beauty, fortune,
understanding and virtue.

2. The social position of wife’s father.

3. Dower given to her female paternal relations.

4. Economic conditions of her husband.

5. Circumstances of times.

Under Sunni law there is no limit to the maximum amount of proper dower.

Shia law the amount should not exceed 500 Dirhams (Rs. 9925), which was fixed
by prophet in the marriage of his daughter Fatima, because, if more amount of
dower is fixed for any woman, it will imply that she is better than Fatima.

WIFE’S RIGHTS AND REMEDIES ON NON-PAYMENT OF DOWER

Mahomedan Law confers upon a wife or widow some rights to compel payment of
her dower.

The following are those rights:

1. Wife’s right of refusal to cohabit;

2. Wife’s right to recover dower as a debt; and

3. Widow’s right to retain the husband’s property.

1. WIFE’S RIGHT OF REFUSAL TO COHABIT

If the marriage has not been consummated, the wife has a right to refuse to give
her company to the husband till the prompt dower is paid (Nasra Begum vs.
Rizwan Ali).
 Wife’s Rights and Remedies on Non-payment of Dower 67

If the wife is minor or of unsound mind, her guardian also has right not to send
her to her husband’s house till payment of prompt dower and during such period
if she is living apart the husband is bound to maintain her.

If the minor wife is already in the custody of her husband, such guardian can take
her back. Husband is bound to maintain the wife, although she is living apart
from him.

Wife cannot refuse to cohabit if the deferred dower is not paid, inasmuch as
deferred dower is payable at the dissolution of marriage.

Abdul Kadir vs. Salima

It is held that the effect of non-payment of dower is that wife may refuse to cohabit
or refuse to live with the husband.

If the husband sues for restitution of conjugal rights before the marriage is
consummated, the suit has to be dismissed.

The same opinion was expressed in Nasra Begum vs. Rizwan Ali.

Rabia Khatoon vs. Mukhtar Ahmed

It is held that if the suit for restitution of conjugal rights is brought by the husband
after the consummation of marriage, the suit cannot be dismissed.

In such case, the proper course would be to pass a decree for restitution of conjugal
rights conditioned upon payment of prompt dower by husband to wife.

Unless and until the husband pays prompt dower to his wife, the decree cannot be
executed.

Where dower is deferred and is payable at a future date, or on some contingency,

and there is no contract to the contrary, there are two conflicting views in respect
of wife’s right to refuse to cohabit.

According to Abu Yusuf she has such right. According to Imam Malik, she does
not have such right. Decision of Mahmood, J. in Abdul Kadir vs. Salima shows
that the second opinion is followed in India. Therefore, in India, wife cannot refuse
to cohabit for non-payment of deferred dower.

2. WIFE’S RIGHT TO DOWER AS A DEBT

Unpaid dower is an actionable claim and she may realise it in the same manner as
a creditor recovers his loan. Wife may recover her unpaid dower by maintaining an
action in a Court of law against her husband, or against his LRs if he is deceased.
68 3. Dower (Mahr)

But the husband’s legal heirs are not personally liable, their liability is to extent to
which they get the property of the deceased.

For example, if the unpaid dower is Rs. 6000 and a legal heir’s share in the
property is 1/6 then he is liable to pay only Rs. 1000 to the widow.

If the wife is deceased without receiving dower, her legal heirs are entitled to
recover dower from the husband.

Syed Sabir Hussain vs. Farzand Hussain

A Shia Muslim gave a surety that his minor son will pay the dower amount to his
daughter in law.

After his death, his property was made liable and each heir was made responsible to
portion of daughter in law’s claim proportionate to their shares in that property of
the deceased.

As prompt dower is payable on demand, period of limitation commences from the

date of demand and refusal. The period of limitation for the suit to recover prompt
dower is three years from the date of demand, under art. 113 of Schdule I to the
Limitation Act, 1963.

If during the continuance of marriage, the wife does not make any demand, the
limitation begins to run only from the date of the dissolution of marriage by death
or divorce.

Period of limitation in case of deferred dower commences from the date of

dissolution of marriage, unless there was an agreement that it should be paid on
an earlier date, in which case the limitation commences from that date. The period
of limitation for the suit to recover deferred dower is three years from the date of
death or divorce, under art. 114 of Schedule I to the Limitation Act, 1963.

If there is any delay in the payment, the wife is entitled to get a simple interest on
that amount. Presumption of payment of dower does not arise merely because
there is a lapse of long time since marriage.

Anjum Hassan Siddiqui vs. Salma Bi

Allahabad High Court has held that an application by the divorced wife for sum of
dower lies before JMFC (Judicial Magistrate First Class) under sec. 3 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986.

Family Court has no jurisdiction in the matter as sec. 2(b) of the Family Courts Act,
1984 does not specifically confer that jurisdiction on the Family Court.
 Wife’s Rights and Remedies on Non-payment of Dower 69

3. WIDOW’S RIGHT TO RETAIN THE HUSBAND’S PROPERTY

A Mahomedan widow has a right to retain her husband’s property till her dower
debt is paid. This right arises only after the death of the husband. This right is
similar to the right of an unsecured creditor.

It is a right to ‘retain’ the possession of the property and not a right to ‘obtain’
possession. ‘Right to retain possession’ means right to continue in possession of
property which she already has.

Therefore, it may be exercised only if she has the actual possession of the
property. Hence, wife must have actual possession of property at time of
dissolution of marriage.

Further, the possession must have been obtained lawfully, without use of force or
fraud. If she lawfully obtains possession of the whole or part of his estate, she is
entitled to retain that possession as against others heirs and as against other
creditors of her husband.

This right is for a special purpose, for speedy recovery of her unpaid dower. It
gives her only possessory right. It does not give her any title to the property.
Therefore, she cannot alienate the property in any manner.

It does not create a charge over the property in her favour, unless there is an
agreement to that effect.

Thus, the widow is not a secured creditor, though in Mohammad Tasbuddin vs.
Yasin Begum it has been held that the claim of widow to dower was in the nature
of a secured debt, it was in the light of the peculiar facts of that case.

Court has discretion and power to create a charge in her favour through its
decree. But normally Courts do not do so, as it will give the widow priority over
existing creditors of the husband. Thus, if the property was mortgaged by the
husband, mortgagee may attach the property.

So also, if a creditor has obtained a decree against the husband and the property
is sold in execution of the decree during the lifetime of the husband, the auction
purchaser has a right to take possession of property and wife cannot exercise her
right to retain possession of the property, against such auction purchaser.
70 3. Dower (Mahr)

Maina Bibi vs. Chaudhri Vakil Ahmad

Muinuddin and Maina Bibi were lawfully married. Muinuddin died in 1890. Maina
Bibi retained certain immovable properties of her deceased husband in lieu of her
unpaid dower.

No payment of her dower was made by the legal heirs of the husband including Vakil
Ahmad and she continued in her possession.

In 1902 suit was filed against her by heirs for the possession of the property. She
claimed she had got a gift of the property from her husband in lieu of dower. In 1903
court directed the heirs to pay dower and get the possession.

In 1907, Maina Bibi made a gift of those properties to others and also gave
possession to the donees.

In 1915 Vakil Ahmad and others heirs filed a suit for getting possession over the
properties on the ground that the gift was void because during retention widow had
no right to transfer the properties.

The Privy Council made some significant observations in respect of this right:

1. A widow who is in possession of her husband’s estate in lieu of unpaid dower is

not owner of the properties.

2. The only right is to continue to hold the possession till the dower is not paid by
the heirs.

3. Any kind of transfer of the retained property, whether it is sale, gift or exchange
etc. is void and cannot take effect.

4. It is only a possessory lien and not a title.

5. Widow in Possession Liable to Account:

A widow who is in possession of her husband’s estate is liable and bound to give
account to the other heirs of her husband for the rents and profits received by her
out of the estate.

On the other hand she is legally entitled to charge interest on the dower due to
her and to set it off against the net profits.

6. Transferability of the Right of Retention:

It is an exclusive right, available to a widow only because her dower remains

unpaid.

Supreme Court has held that the right of retention is heritable but not
transferable.

7. Even if she retains husbands property she can sue heirs for dower.
 Kharcha-i-Pandan and Mewakhori 71

KHARCHA-I-PANDAN AND MEWAKHORI

It is the duty of the husband to maintain his wife and children. The wife is also
under a duty to be obedient to her husband and allow him free access at all
reasonable times.

In addition to these obligations, the spouses may enter into an agreement that the
husband will pay a special allowance to his wife. Such allowance may be in the
form of kharchi-i-pandan or guzara or mewakhori.

Kharchi-i-Pandan (betel nut box expenses) is the personal allowance to the wife
customary among the Muslim families of rank, especially in upper strata. It is also
called allowance for mewakhori (for eating fruits).

It is similar to pin money under the English law. But there is a significant
difference between the two. Pin money is to be spent by the wife during coverture,
under the advice and at the instance of the husband. Karchi-i-Pandan is payable to
wife as long as she lives with her husband and is to be spent by her without any
control of the husband.

Khwaja Mohammad Khan vs. Nawab Hussain Begum

The marriage was contracted during the minority of the spouses. It was agreed
between their parents that bridegroom’s father will pay a sum of Rs. 500 to his
daughter in law in perpetuity. The payment was termed as Kharchi-i-Pandan, and no
further conditions were stipulated.

The wife went to her husband’s house and lived there for some years. After that there
was some difference of opinion between the spouses and the wife left husband’s
house. She instituted a suit for recovery of Kharchi-i-Pandan.

Contention on the part of the defendants was that she did not have privity of
contract to claim the amount. Hence, consequently she did not have locus standi to
institute the suit and the suit was not maintainable.

It was held that the suit was maintainable and she was entitled to recover the entire
amount of Kharchi-i-Pandan.

Altaf Bi vs. Brij Narain

It was held that Kharchi-i-Pandan is a personal allowance and hence is not

transferable.
72 3. Dower (Mahr)

AMOUNT OF DOWER AND CONDITION OF PAYMENT

1. Where amount of dower is fixed (Specified Dower)

If (a) marriage is consummated; or

(b) either party has died,

whole dower is payable to the wife or her heirs.

2. where amount of dower is not fixed (Proper Dower)

If (a) marriage is consummated; or

(b) either party has died,

dower is payable to wife or her heirs as per custom.

3. Where marriage is irregular

If (a) marriage is consummated; and

(b) either party has died

specified dower or proper dower whichever is less is payable to the wife or her
heirs

4. Where wife is divorced without consummation

(a) half of specified dower; or

(b) a present of three articles of dress or their value is payable to the wife.

5. If wife divorces no dower is payable to her.

 4. PARENTAGE AND LEGITIMACY
‘Parentage’ is the legal relation between a child and the parents, i.e., mother and father.

‘Maternity’ is the relation between mother and child, irrespective of the legality of
relationship between the parents of the child.

‘Paternity’ depends upon the lawful marriage between parents of the child.

The marriage may be valid (sahih) or irregular (fasid), but not void (batil).

Marriage may be established by direct evidence. In the absence of direct evidence,

certain facts give rise to the presumption of marriage.

When paternity of a child is established, legitimacy of the child is also established.

PRESUMPTION OF LEGITIMACY

Rules of Mahomedan law relating to presumption of legitimacy of a child are as under:

1. A child born within less than six months after the marriage is illegitimate.

In India, the premature birth of child does not per se lead to the inference that the
child is illegitimate.

2. A child born after six months of marriage is legitimate, unless the putative father
disclaims the child by lian.

3. A child born after the dissolution of marriage between its parents is presumed to be
legitimate if that child is born

(a) according to Hanafi Law, within 2 years;

(b) according to Maliki and Shefie Law, within 4 years; and

(c) according to Shia Law within 10 months after dissolution.

CONCLUSIVE EVIDENCE OF PARENTAGE

The fact that the child was born during the valid marriage between its parents, or within
280 days immediately after its dissolution, the mother remaining unmarried, shall be
conclusive proof that the child is the legitimate child of those parents, unless it can be
shown that the parties to the marriage had no access to each other when the child could
have been begotten (S. 112 of the Indian Evidence Act, 1872).
74 4. Parentage and Legitimacy

DIFFERENCES BETWEEN THE TWO LAWS

1. Under Mahomedan Law, child born within six months after the marriage is
illegitimate.

Under the Indian Evidence Act, 1872, child born even one day after the
marriage is legitimate, subject to proof that parents had non-access to each
other.

2. Under both laws, child born after six months from the date of marriage and
within 280 days from the dissolution of marriage is legitimate, subject to lian,
under Mahomedan Law and proof of non-access under the Indian Evidence Act,
1872.

3. A child born after 280 days and within 2 years from the date of dissolution of
marriage is legitimate under Hanafi Law.

The same case is governed by sec. 114 of Indian Evidence Act, 1872 which
provides that “the Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course of natural
events.
Ashraf Ali vs. Ashad Ali (1871)

In this case, the child was born 19 months after the date of divorce. It was contended
that the child is presumed to be legitimate according to Mahomedan Law by which
the parties were governed, and therefore applicable to the case.

Calcutta High Court declined to follow this rule of Mahomedan Law on the ground
that to hold such child as legitimate would be contrary to the course of nature and
impossible.

In view of the differences between the Mahomedan Law and Indian Evidence Act,
1872 with regard to the presumption of legitimacy of a child, the question is which
law is applicable to Mahomedans?

In other words whether the rules of Mahomedan Law override the provision of sec.
112 of Indian Evidence Act, 1872 or other way.

The question arose before the Allahabad High Court for the first time in
Muhammad Allahdad vs. Muhammad Ismail, but it was left open by the Court.

But in Sibt Muhammad vs. Muhammad, and other cases Allahabad High Court
has held that sec. 112 overrides the rules of Mahomedan Law.

Lahore High Court has taken the same view in Mt. Rahim Bibi vs. Chirag Din.
 Conclusive Evidence of Parentage 75

Musammat Kaniza vs. Hasan

A child was born out of an irregular marriage between a man and his wife’s sister.

The Chief Court of Oudh has held that even if sec. 112 is applicable to the
Mahomedans, it cannot be applicable to irregular marriages, because such a
marriage cannot be said to be valid within the meaning of sec. 112. According to the
Court, ‘valid’ means ‘flawless’.

Abdul Rahemankutty vs. Aisha Beevi

A married woman was driven out by husband within a few days after the marriage
on the ground of her concealed pregnancy. A child was born to her within four
months after her being driven out.

Kerala High Court held that presumption cannot be raised under sec. 112 as the
marriage was not valid.

LEGITIMACY AND LEGITIMATION

Legitimacy is the fact of a child being legitimate under the law. It is the status of
the child resulting from certain facts about the relationship between its parents.

Legitimisation is the process of conferring legitimacy upon a child which is not

legitimate. Legitimation is unknown to Mahomedan Law. A child which is known
to be illegitimate cannot be made legitimate.

But a child whose legitimacy is doubtful may be acknowledged to be legitimate.

Habibur Rahman Chowdhary vs. Altaf Ali Chowdhary

Their Lordships observed, “Legitimacy is a status which results from certain existing
facts. Legitimation is the process which creates a status which did not exist before.
In the proper sense there is no legitimation in Mahomedan Law. Examples of
legitimation, properly so called, may be found in other systems, e.g., adoption in
Hindu Law.”

ACKNOWLEDGEMENT OF PATERNITY (IKRAR-E-NASAB)

Where the paternity of a child cannot be established by proving marriage between

its parents at the time of conception or birth of the child, Mahomedan Law
recognises ‘acknowldgemet’ (ikrar) as a method by which the paternity of child is
fixed.

Acknowledgement of a fact means accepting that fact is true. It is admission of a

fact as true.
76 4. Parentage and Legitimacy

Sec. 17 of the Indian Evidence Act, 1872 defines ‘acknowledgement’ as “a

statement, oral or documentary, which suggests any inference as to any fact …”.

“Acknowledgement of paternity is a declaration by a man ascertaining the

paternity where, although the marriage exists, the child’s paternity is doubtful
because no direct proof of marriage.”

It is a method by which such marriage and legitimate descent may be established

by for inheritance. Acknowledgement may be of son or a daughter.

Under the Sunni Law only father has the power of acknowledgement. No other
relation, including mother, has the power of acknowledgement. Acknowledgement
by any person other than father is invalid unless it is confirmed by father’s own
declaration.

Shia Law is the same where the father of the child is alive. But where the father of
the child is deceased, mother of the child may acknowledge that the child is a
legitimate child born out of a lawful wedlock between herself and her deceased
husband. If there is no other evidence and the legitimacy of the child rests only
upon the uncorroborated acknowledgement of mother, it will affect only her share
in the inheritance of her deceased husband.

Further, acknowledgement may be express or implied. Thus, acknowledgement

may be presumed from the fact that a person has habitually and openly treated
another as his child, i.e., as a legitimate child.

Muhammad Azmat vs. Lalli Begum

Their Lordships of the Privy Council held, “It has been decided in several cases that
there need not be proof of express acknowledgement, but that an acknowledgement
of children by a Mahomedan as his sons may be inferred from his having openly
treated them as such.”

Mohammad Yusuf vs. Mahaboobunnissa Begum

The question before the Court was whether a boy was a natural child or was a
‘parvarda’ (i.e., brought up by the family). The following observations were made by
the Court:

“Where there is a valid acknowledgement of legitimacy in favour of a claimant,

then marriage will be held to have been proved and his legitimacy established
unless the marriage between the parents is in dispute. Until the claimant
establishes his acknowledgement the onus is on him to prove marriage. But once
he establishes his acknowledgement, the onus shifts on those who deny
marriage to negative it.”
 Conditions of Valid Acknowledgement 77

CONDITIONS OF VALID ACKNOWLEDGEMENT

In order to render an acknowledgement valid and effective the following conditions

must be fulfilled:

1. Intention to Confer Legitimacy;

2. Uncertainty of Child’s Legitimacy;

3. Proper Difference between Ages;

4. Competency of the Acknowledger;

5. Confirmation by Child if the Child is Adult.

1. INTENTION TO CONFER LEGITIMACY

The acknowledgement must not only be merely of sonship, but must be made in
such a way that it shows that the acknowledger meant to accept the other not only
as his son, but as his legitimate son (Habibur Rahman vs. Amir Ali).

The acknowledgement must be with a clear intention of conferring status of

legitimacy. Mere casual acknowledgement, not intended to confer the status of
legitimacy, will not be a legal acknowledgement.

2. UNCERTAINTY OF CHILD’S LEGITIMACY

Doctrine of acknowledgement relates only to cases where either the fact of

marriage between the parents itself or the exact time of its occurrence is not
proved.

(a) The child must not be born out of zina, i.e., adultery, incest, or fornication, or
born out of a void marriage.

In other words, the child must not be known as the illegitimate child of the
acknowledger.

(b) The child must of unknown descent, i.e., it must not be known as the child of
another.

(c) Lawful marriage between the acknowledger and the mother of the child must
be possible.

(d) Marriage between the acknowledger and the mother of the child must not have
been disproved.
78 4. Parentage and Legitimacy

3. DIFFERENCE OF AGES

The age of the parties must be such that they may be father and son. According to
Bailee, the acknowledger must be at least twelve and half years older than the
person acknowledged.

4. COMPETENCY OF THE ACKNOWLEDGER:

The acknowledger must possess the legal capacity for entering into a valid
contract, that is, he should be major and of sound mind.

5. CONFIRMATION BY CHILD IF THE CHILD IS ADULT

The acknowledged child must believe itself to be the acknowledger’s child and the
child must verify the acknowledgement if the child is adult. The acknowledgement,
in any case, must not be repudiated by the child.

The child is entitled to repudiate the acknowledgement if it has attained the age
and can understand the transaction. If the child does not verify an impediment is
created and the child’s descent is not established by mere acknowledgement, but
requires proof.

But if the child is too young to understand what the relationship implies, or to give
an account of itself, its assent is not a condition precedent for validity of the
acknowledgement.

LEGAL EFFECTS OF ACKNOWLEDGEMENT

1. By acknowledgement, the child becomes the legitimate issue and its paternity is
established.

2. On being legitimate issue, the child is entitled to inherit the properties of the
acknowledger, its mother as well as of other relatives.

3. Acknowledgement also establishes a lawful marriage between the child’s mother

and the acknowledger. The child’s mother gets the status of the wife of the
acknowledger and she is also entitled to inherit the properties of her husband
(acknowledger).

4. Acknowledgement of legitimacy once made can neither be revoked by the

acknowledger nor can it be questioned by his legal heirs.
 Adoption and Acknowledgement 79

ADOPTION AND ACKNOWLEDGEMENT

Mahomedan Law does not recognise adoption as a mode of filiation. In Mohd.

Allahdad Khan vs. Mohd. Ismail, Mahmood, J. observed “there is nothing in the
Mohameddan Law similar to adoption as recognized in Roman and Hindu system.”

If a child is adopted by Mahomedans, such adoptive child (mutabanna) will not

have right in the estate of its adoptive parents. However, where custom is given
the overriding effect over the principles of Mahomedan Law, such as in Punjab,
Oudh and some other places, a special family, tribal or local custom, if proven, will
prevail over the Mahomedan Law. For example, the Oudh Estates Act, 1869
permits a Mahomedan Talukdar to adopt a son to him.

The retention of Hindu usages of inheritance and succession by Hindu converts to

Islam does not per se carry with it the Hindu custom of adoption. The burden of
proving that the custom of adoption has also been retained lies on those who
assert it.
Ayubshah vs. Babalaal

It is held that although a Mahomedan may be entitled under a law prevailing in a

Native State to adopt a son, such as son cannot succeed to the property of his
adoptive father in India in the absence of evidence establishing a custom to that
effect in India.

The above mentioned principles are to be read subject to the provisions of the
Shariat Act, 1937. Sec 3(1) of the Madras Shariat (Amendment) Act, 1949 provides
with reference to adoption custom or usage to the contrary when shall abrogated.

ACKNOWLEDGEMENT AND ADOPTION DISTINGUISHED

1. In acknowledgement the child must not be the known to be the son of another,
while in adoption the child is known to be the son of another person.

2. In acknowledgement, there is no change in parentage, while in adoption, the

natural child of one person will become the adoptive child of another.

3. In acknowledgement there is no severance of the child from its original family,

whereas in adoption the child is severed from its natural family.

4. In acknowledgement, the acknowledger is the natural father of the child,

whereas in adoption, the adoptive father cannot be the natural father.

5. The object of adoption is religious and spiritual, but the object of

acknowledgement is temporal.
 5. GUARDIANSHIP AND CUSTODY
The Guardians and Wards Act, 1890 defines ‘Guardian’ as “a person having the care

1. of the person of a minor; or

2. of his property; or

3. of both his person and his property”.

Under Order XXXII of the Civil Procedure Code, 1908 a guardian is appointed to
represent a minor in a case by or against the minor. Such guardian is called a guardian
ad litem.

Under Mahomedan Law, marriage of a minor or of a person of unsound mind may be

contracted by his or her guardian.

AGE OF MAJORITY

The Islamic system recognises two distinct ages of majority.

1. One which has reference to emancipation of the person of the minor from the patria
potestas (power of father); and

2. the other to the assumption by them of the management and direction of their
property.

In other words, roughly one applicable to the family law and the other applicable to the
property law. They are respectively called the age of puberty (sunn-i-bulugh) and age of
discretion (sunn-i-rushd).

Among Hanafis and Shias, puberty is presumed on completion of the age of fifteen years,
while among Malikis on the completion of the eighteenth year.

Generally, Hanafis and Shias consider rushd and bulughyet to go together, and
therefore, the personal emancipation of minors which occurs on their attaining puberty,
carries with it the emancipation of their property from the hands of their guardians.

This distinction of two ages of majority is left undisturbed under the Indian Majority Act,
1875.
 Age of Majority 81

THE INDIAN MAJORITY ACT, 1875

(Act No. 9 of 1875)

[2nd March, 1875]

An Act to amend the law respecting the age of majority.

Preamble

WHEREAS, in the case of persons domiciled in India it is expedient to specify the age of
Majority;

It is hereby enacted as follows:

1. Short title, Local extent, commencement and operation – This Act may be called
the Majority Act, 1875. It extends to the whole of India except the State of Jammu and
Kashmir; and it shall come into force and have effect only on the expiration of three
months from the passing thereof.

2. Saving – “Nothing herein contained shall affect –

(a) the capacity of any person to act in the following matters (namely), marriage, dower,
divorce and adoption;

(b) the religion or religious rites and usages of any class of citizens of India; or

(c) the capacity of any person who before this Act comes into force has attained majority
under the law applicable to him”.
Old Law Present Law
3. Age of majority of persons domiciled in [Substituted by
India – Subject as aforesaid, every minor of
Act 33 of 1999, s. 4 (w. e. f. 16. 12. 1999)]
whose person or property, or both, a guardian,
other than a guardian for a suit within the
meaning of Chapter XXXI of the Code of Civil 3. Age of majority of persons
Procedure, 1908 (5 of 1908), has been or shall domiciled in India – (1) Every person
be appointed or declared by any Court of domiciled in India shall attain the age of
Justice before the minor has attained the age of
majority on his completing the age of
eighteen years, and every minor of whose
property the superintendence has been or shall eighteen years and not before.
be assumed by any Court of Wards before the
minor has attained that age shall, (2) In computing the age of any person,
notwithstanding anything contained in the the day on which he was born is to be
Indian Succession Act, 1925 (39 of 1925) or in
included as a whole day and he shall be
any other enactment, be deemed to have
attained his majority when he shall have deemed to have attained majority at the
completed his age of twenty-one years and not beginning of the eighteenth anniversary
before. of that day.
Subject as aforesaid, every other person
domiciled in India shall be deemed to have
attained his majority when he shall have
completed his age of eighteen years and not
before.
82 5. Guardianship and Custody

4. Age of majority how computed – In Illustrations

computing the age of any person, the day on
which he was born is to be included as a whole
day, and he shall be deemed to have attained (a) Z is born in India on the first day of
majority, if he falls within the first paragraph of January 1850, and has an Indian
section 3, at the beginning of the twenty-first domicile. A guardian of his person is
anniversary of that day, and if he falls within appointed by a Court of Justice. Z
the second paragraph of section 3, at the
attains majority at the first moment of
beginning of the eighteenth anniversary of that
day. the first day of January 1871 (1868).
Illustrations
(a) Z is born in India on the first day of January
1850, and has an Indian domicile. A guardian of (b) Z is born in India on the twenty-
his person is appointed by a Court of Justice. Z ninth day of February 1852, and has an
attains majority at the first moment of the first Indian domicile. A guardian of his
day of January 1871. property is appointed by a Court of
Justice. Z attains majority at the first
(b) Z is born in India on the twenty-ninth day of
February 1852, and has an Indian domicile. A moment of the twenty-eighth day of
guardian of his property is appointed by a Court February 1873 (1870).
of Justice. Z attains majority at the first
moment of the twenty-eighth day of February
1873. (c) Z is born on the first day of January
1850. He acquires a domicile in India.
(c) Z is born on the first day of January 1850. No guardian is appointed of his person
He acquires a domicile in India. No guardian is or property of any Court of Justice, nor
appointed of his person or property of any Court
is he under the jurisdiction of any Court
of Justice, nor is he under the jurisdiction of
any Court of Wards. Z attains majority at the of Wards. Z attains majority at the first
first moment of the day of January 1868. moment of the day of January 1868.

In Prabhudayal Sesma vs. State of Rajasthan, it was held that in calculating a

person’s age, the day of one’s birth counts as a complete day and a person attains
a specific age on a day next before the anniversary of his birthday.

GUARDIANSHIP (TUTELAGE)
‘Guardianship’ also called ‘tutelage’ is the relationship between guardian and his
ward. It comprehends,

1. The direction or the care of the person of the minor.

This happens when the custody (hizanat) and guardianship are vested in one
and the same person.

2. A simple supervisory direction over the person of the minor.

Here, the guardian has no control over the person of the minor.

This happens when the custody (hizanat) of the person of the minor is with
some person other than the guardian.

3. The administration and care of the property of the minor.

 Guardianship (Tutelage) 83

There are three types of guardianships under Mahomedan Law:

1. Guardianship in Marriage (Jabr);

2. Guardianship to the Person of the Minor; and

3. Guardianship to the Property of the Minor.

A guardian may be:

1. Natural Guardian;

2. Testamentary Guardian; or

3. Certificated (Appointed) Guardian.

GUARDIANSHIP IN MARRIAGE (WILAAYAH-E-JABR)

A Mahomedan either sex who has not attained the age of puberty and a
Mahomedan of unsound mind cannot contract a marriage according to all
Schools. Such marriage is void and it is a nullity.

But a minor can be validly contracted in marriage by his or her guardian. This is
the most distinguishing feature of the Islamic jurisprudence because it empowers
father or father’s father to impose status of marriage on his child.

The consent of the child is not necessary as the child has no capacity to give
consent. Under the original Mahomedan Law, a marriage contracted by them
could not be repudiated by the minor using option of puberty. Therefore, it is
called jabr (imposition).

In Shia Law, only the father and failing him the father’s father how high so ever
may contract marriage by jabr.

In Sunni Law the following persons are successively the guardians for marriage:

1. father;

2. father’s father, hhs;

3. brother or other male relations on the paternal side in the order of inheritance
mentioned in the Table of Residuaries;

4. mother;

5. maternal relations, as maternal uncle or aunt and other maternal relations

within the prohibited degrees; and

6. State (Kazi or Court).

84 5. Guardianship and Custody

A marriage contracted by any other person is wholly ineffective, unless it is ratified

by the minor on attaining majority. Even, a marriage contracted by a remoter
guardian when a nearer guardian is present and available is invalid unless ratified
by the minor on attaining majority. For example, when the father’s brother is
present he is the preferential wali (guardian), and neither the mother nor the
mother’s relations have any right.

But if the proposed marriage be improper, the mother or the maternal relations
can move the Kazi or Judge for an injunction to restrain the wali from entering
into the contract.

Kaloo vs. Gureeboollah

Where a father was undergoing a long term of imprisonment, it was held that the
mother and grandmother were entitled to give the daughter in marriage.

It is worth noting that it is the substantive law which decides who may be the
guardian for the marriage of a minor. Court cannot appoint a guardian for the
marriage. However, the Court may itself act as guardian.

So also, testamentary guardians for marriage are not recognised. Father cannot
appoint a guardian for the marriage of his child through his will.

Under both Sunni and Shia Laws, a minor, on attaining majority, gets an absolute
right to repudiate the marriage contracted by his guardian. This option is called
option of puberty (khyar-ul-bulugh).

Effect of Apostasy on Guardianship for Marriage

Traditional Mohammedan law an apostate from Islam cannot be a guardian in

marriage. Caste Disabilities Removal Act, 1850, has removed this disqualification,
according to which “no law or usage can inflict on any person who renounces his
religion, any forfeiture of rights or property”. Therefore, now even a person
converted from Islam may become guardian for the marriage of the minor Muslim
child if he had that right but for his conversion.

Gul Muhammad vs. Mussammat Wazir

Father was the only parent of a boy aged 8 years, and a girl aged 4 years. He
converted from Islam to Christianity. Mother’s mother of the child claimed
guardianship on the ground that the father is disqualified because of his conversion
to Christianity.

It was held that the power to contract a minor’s marriage is a right within the
meaning of the Act, and it is not forfeited by his conversion from Islam.
 Guardianship (Tutelage) 85

GUARDIANSHIP OF THE PERSON

Guardianship is the relationship between a guardian and his ward. Guardian to

the person is a person who has the responsibility of the well being of a minor or of
a person of unsound mind. Such minor person or person of unsound mind is
called the ward.

Guardians fall in any of the following three categories:

1. Natural Guardians;

2. Testamentary Guardians; and

3. Certificated (Appointed) Guardians.

86 5. Guardianship and Custody

A confusion among many authors of the books on Mahomedan Law, including

highly scholarly authors seems to be that these the are three types of
guardianships in respect of the guardianship to the property of the minor only.
But, the truth is that the types of guardianship are independent of the subject
matter of guardianship. Therefore, the three types of guardianships are also
applicable to the guardianship to the person of a minor.

Natural Guardian to the Person

The first and primary natural guardian of a minor is the father.

Among the Hanafis, when the father is deceased, the guardianship of his minor
children devolves upon his wasi (executor). If father has died without appointing
an executor, but his own father is alive, the tutelage of the minor children is
allowed to the grandfather. When the grandfather also is dead, the guardianship
devolves on his wasi (executor).

Among the Shias, when the grandfather is alive, he is entitled to the guardianship
in preference to the father’s wasi (executor).

Testamentary Guardian to the Person

Father may, thus, entrust the guardianship to the executor appointed by him
under his will.

In Re Isso, it was held that at the time of his death if the father was not entitled to
be the guardian of the minor, he cannot appoint a testamentary guardian. This is
because such appointment is derogates the rights of the guardians who stand in
the list after the father.

Further, in order to be valid, the appointment of an executor or a testamentary

guardian must be made by the father at a time when he is in full possession of his
senses. If, at the time of making the appointment, he was in a state of imbecility,
or had been for a long time unable to conduct his business owing to mental
deficiency, the appointment would be invalid.

Similarly, in order to be valid in law the appointment must be in favour of a

person who is “adult and sane.” If the guardian appointed by the father is a minor
or a lunatic, the appointment is ipso facto void, and all acts committed by the
minor guardian, before his removal by the judge, in exercise of the authority
received from the testator are inoperative in law.
 Guardianship (Tutelage) 87

If the guardian becomes imbecile or insane after the appointment, the tutelage
conferred by the father is voided, and the right of appointing a guardian devolves
on the Kazi.

Whether a minor who is appointed a guardian, and is not removed from his office
by order of the Court, would validly exercise the rights of guardianship on
attaining majority is a question on which there seems to prevail great divergence of
views.

Abu Hanifa replies in the negative. Abu Yusuff and Mohammed and the Western
Imams hold a contrary opinion, and think that if the minor is not removed from
the guardianship before attaining majority the power granted by the testator
revests in him on his becoming sui juris. This opinion is in force among the Indian
Hanafis.

A harbi (alien enemy) can under no circumstance be appointed the guardian of

Moslem children, or even the children of the non-Moslem subjects of a
Mahomedan State.

The position of a zimmi (a non-Moslem), subject to the same sovereign as the

testator, is different. Under the Hanafi Law, if a zimmi is appointed a guardian, he
can validly exercise his authority and the powers given to him by the deceased,
until he is removed by the Court. All acts committed by him in exercise of his
power are lawful, until the appointment is cancelled by the Court.

Certificated (Appointed) Guardian

In default of natural as well as testamentary guardians, the Court may appoint a

guardian to the person of the Minor.

Courts cannot exercise their power under sec. 19(2) of the Guardians and Wards
Act, 1890 to appoint a guardian for a minor as long as the father is alive and in
the opinion of the Court not unfit to be the guardian of the minor. Only where the
father is not living or where the father is unfit to be the guardian of the child,
some other person may become the guardian of the child. Where there is no other
such person, Court may appoint a guardian.

According to the Mahomedan Law, father is the guardian of his minor children.
But it does not say that he is entitled to the guardianship of the child in every
case. If father is unfit, the Court may appoint the mother of the child or any other
person as the guardian of her child.
88 5. Guardianship and Custody

The Court is not bound to appoint father’s father as the guardian of the child,
because during the lifetime of the father, father’s father has no right to be the
guardian of the child. What is the deciding factor in such cases is the welfare of
the child.

Khatija Begum vs. Ghulam Dastgir

It was held that father of child cannot be said to be unfit to be its guardian merely on
the ground that he has remarried. However, it was further observed by the Court
that giving the custody of the child below the specified age to its grandmother, in
absence of the mother, does not offend sec. 19 of the Guardians and Wards Act,
1890.

In this case, the child was brought up all the times by her grand parents. The child
believed them to be its parents, and was unaware that some other person was her
father.

The Court felt that at such tender age, it was not desirable to shift the custody of the
child from grand parents to father.

The Court observed that sec. 19 of the Guardians and Wards Act, 1890 does not
prohibit the Court from dealing with the custody of the minor even where the father
is alive. It only prohibits the Court from appointing a guardian to the minor if the
father is alive. Where the father is alive but is unfit to become the guardian of the
minor, the Court may appoint even the guardian to the person of the minor.

Father, thus, loses his right to be the guardian of his children by cruelty to his wife
and children, or by committing a crime, etc.

Adultery per se is not ground of disqualification. Adultery becomes a ground of

disqualification only if the woman is brought into contact with the child.

The following are the grounds empowering the Court to interfere with the father’s
right of guardianship of his children:

1. unfit character and conduct of the father;

2. his unfitness as regards external circumstances;

3. waiver of right by father;

4. entering into agreement to the contrary;

5. father is out of the jurisdiction of the Court or intends to go abroad.

 Guardianship (Tutelage) 89

Guardianship And Custody (Hizanat)

Guardianship differs from custody in that a guardian has the responsibility to
maintain the ward whether or not such minor is with the guardian or in the
custody of another person.

Normally, father is the guardian of a minor. It is very difficult for a child of very
tender age to survive without mother. Where mother and father of the child are
living together, the child will be with the mother and she will look after the child.
But where they are separated, father will be the guardian of the child while mother
will have the custody of the child till the child attains a specified age. This results
in the separation of guardianship from custody.

Often authors of Mahomedan Law books, including highly scholarly authors seem
to be confused in this regard. This is evident from the title to the chapter on
guardianship of minor in those books. Such chapters carry the title ‘Guardianship
of the Person of Minor (Hizanat)’.

Hizanat is only custody of the minor. Further, the law relating to guardianship is
mixed with law relating to hizanat.

The rules relating to guardianship should be carefully separated from those

applicable to hizanat. Thus, even while mother is having the custody of the child,
father, being guardian, is having the duty to maintain the child, and also to take
decision about the education and other interests of the child, and is liable to
maintain the child.

The Custody Of Children (Hizanat)

Fatawah-i-Alamgiri says, “The mother is of all persons, the best entitled to custody
or her minor children during the connubial relationship as well as after its
dissolution.” This right belongs to her qua mother. Nothing can take it away from
her, except her own misconduct. It makes no difference whether she is a
Moslemah or a non-Moslemah.

Hafizur Rahaman

The Court made the following observations:

“These principles of Mahomedan Law are drawn from practical experience based
on considerations which are conducive to the proper growth of child. It cannot
be disputed that a child of tender age feels more secure in the company of the
mother than that of the father. In this regard no one can compete with mother.
The amount of love and care child receives from the mother cannot be expected
from any other relation including the father.”
90 5. Guardianship and Custody

Among the Hanafis, the mother is entitled to the custody of her daughter until she
attains puberty. Among the Malikis, Shafeis and Hanbalis the custody continues
until she is married.

There is a greater divergence among the different Sunni schools with reference to
the mother’s custody of male children.

The Malikis hold that the right of hizanat in respect of a male child continues until
he attains puberty.

The Shafeis and Hanbalis allow the boy at the age of seven the choice of living with
either of its parents.

The Hanafi jurists, however, hold that the mother’s hizanat of a male child ends
with the completion of his seventh year. Therefore, mother is entitled, in
preference to the father, to the custody of her infant child under seven years of
age.

Among the Shias, the mother is entitled to the custody of her children without
distinction or sex until they are weaned (i.e., they are accustomed to food other
than the mother’s milk). This period is limited to two years. During this period,
under any circumstance, the children cannot be removed from their mothers’ care
without her consent.

After the child has been weaned, its custody, if a male, devolves on the father, and
if a female, on the mother.

The mother’s custody of a daughter continues to her seventh year. After she
attains the age of seven, the father is entitled to her custody in preference to the
mother.

The right of mother continues even if she is divorced by the father of the child
unless she marries a second husband, in which case the custody belongs to the
father.

According to the Hanafis, in the absence of mother, the persons entitled to the
custody of children come in the following order:

1. mother’s mother, hhs;

2. father’s mother, hhs;

3. full sister;

4. uterine sister;

5. consanguine sister;
 Guardianship (Tutelage) 91

6. full sister’s daughter;

7. uterine sister’s daughter;

8. full maternal aunts;

9. uterine maternal aunts;

10. consanguine sister’s daughter;

11. brother’s daughters;

12. paternal aunts.

If there be no female relations and no father, or if none of them is legally qualified

to exercise the right, it passes to

1. grandfather, hhs;

2. full brother;

3. consanguine brother;

4. full brother’s son;

5. to the consanguine brother’s son;

6. to the full paternal uncle, etc.

In all these cases the nearer excludes the more remote. When there are no agnates
qualified to take charge of the child, the right passes to the male uterine relations.

Although the right to the guardianship of the minor passes in the order mentioned
above, in the case of a contest between two persons one preferentially entitled to
the other, the Court has to consider not only the respective qualifications of the
claimants, but also the interests and well-being of the minor.

The provision in the Guardian and Ward’s Act which directs the Court, in
appointing a guardian, to keep in view the welfare of the minor, is in harmony with
the Mahommedan Law.

Father’s Right To Custody Of Child

Father is entitled to

* under the Hanafi Law, the custody of a boy over seven years of age and of an
unmarried girl who has attained puberty, and

* under the Shia Law, the custody of a male child over two years of age and an
unmarried girl of age of seven years and above.
92 5. Guardianship and Custody

In other cases, as long as mother or any of the female relations are present,
available and not disqualified, father is not entitled to the custody of his minor
children.

Relative means of father and mother to look after the children is immaterial.

Hussain Kudichikar vs. Shahina Abdulsattar Kudichikar

The parties were married and had two children. The husband divorced the wife and
married another woman. Father had the custody of the children and mother claimed
the custody from father. Father contended that he was in a better position to take
care of the children.

It was held that that was not a ground to claim or retain custody of the children, and
that the welfare of the children was that they should be in the custody of their
mother.

Custody Of Minor Married Woman

Husband is not entitled to the custody of his wife unless she has attained the age
of puberty or is of such age that marriage may be consummated. Mother is
entitled to the custody of her minor married daughter as against her husband.

If none of the above persons are available, Court may appoint guardian of the
person of the minor.

Custody Of Illegitimate Children And Foundlings

Lord McNaughten observed, “Legally speaking, an illegitimate child belongs to

neither of its parents, and it is in every sense filius nullius. But for the purpose of
nourishment and support, it should, until it has attained the age of seven years,
be left in charge of the mother.”

Therefore, custody of illegitimate children appertains exclusively to the mother and

her relations.

The custody of a foundling belongs and foundlings the person who found it or to
the State.
Gohar Begaum vs. Suggi Begum

A dancer woman had an illegitimate girl from a Hindu named Mr. Trivedi. The girl
Anjum was acknowledged as daughter by Mr. Trivedi. But she was kept in custody of
her mother’s friend. That lady refused to give the custody of the girl back to her
parents.

It was held that though the child was illegitimate, custody will be with the mother
and none else.
 Guardianship (Tutelage) 93

Termination Of Hizanat – Disqualifications

There are five classes of disqualifications which lead to the termination of Hizanat.

1. General Disqualifications;

2. Disqualifications Affecting Females;

3. Disqualifications Affecting Males;

4. Disqualifications Affecting Parents; and

5. Disqualifications Affecting Husband.

1. General Disqualifications

There are two main such disqualifications:

1. A minor cannot be guardian of another minor other than his own minor child or
minor wife. Therefore, a minor is not entitled to the custody of a minor.

2. A non-Muslim is not entitled to the custody of a Muslim. If one parent is a Non-

Muslim, the other parent is entitled to the custody of the child irrespective of its
age.

2. Disqualifications Affecting Females

According to all the Schools, right of Hizanat is lost

1. by the subsequent marriage of the hazina with a person not related to the child
within the prohibited degrees;

2. by her misconduct, i.e.,

(a) leads immoral life, i.e., adultery or prostitution;

(b) commits any offence involving moral turpitude;

(b) neglects to take proper care of the child, etc.;

3. by her changing her domicile so as to prevent the father or tutor from exercising
the necessary supervision over the child; and

4. by her apostasy, except in case of mother.

3. Disqualifications Affecting Males

No male has a right to the custody of a female child unless he is a mahram, i.e.,,
stands to her within the prohibited degrees of relationship.
94 5. Guardianship and Custody

But this rule is not applicable:

1. under the Shia Law; and

2. under the Guardians and Wards Act, 1890.

Under sec. 25 of the Guardians and Wards Act, 1890 is that the Court has to have
in mind the welfare of the child consistent with the law to which the minor is
subject.

4. Disqualifications Affecting Parents

Father’s Disqualification: Father is not entitled to the custody of his children

below the specified age, as long as there is mother, and in the absence of mother
some female relation of the child.

Relative capacity of the father and mother to maintain the child is not a factor to
be considered in granting custody of the child (Hussain Kudichikar vs. Shahina
Abdulsattar Kudichikar).

Mother’s Disqualifications: Mother, being a female, incurs disqualifications on

the same grounds as other females. However, conversion of mother from Islam is
no ground of disqualification.

Mother is also not disqualified just because the father of the child has divorced
her. She is disqualified only if she marries a man who does not stand within
prohibited degrees of relationship with the child. The reason behind this
disqualification is that, if the hazina marries a stranger, such husband of the
hazina may not look after the children kindly. But if the husband of the hazina is
within the prohibited degrees of relationship with the children he may look after
the children well.

Even in such cases the right is revived on dissolution of her marriage with such
person.

Further, where the hazina marries such a man, the guardian of the child will be
entitled to the custody of the child.

In Re Ghulam Mahomed

Karnataka High Court has held that if there is no other person qualified or willing to
be the guardian of the child, it is for the Court to appoint a guardian for the child.
 Guardianship (Tutelage) 95

But it is open to the Court to appoint the mother of the child as hazina even if she
has married a stranger, if the Court finds that it is in the interest and welfare of
the child.
Haliman Khatoon vs. Ahmadi Begum

Mother of the child had married a stranger after being divorced by the father of the
child. On that ground the paternal aunt of the child claimed the custody of the child.

Court found that the paternal aunt was also married to a stranger, and her financial
capacity was no better than that of the mother of the child. Therefore, the Court
found that the mother was to be preferred to the paternal aunt for the custody of the
child.
Amar Ilahi vs. Begum Rashida Akhtar

The divorced mother of a child of tender age married a stranger. Father of the child
gave up all the claims to the custody of the child. The child remained in the custody
of the child and was well looked after by the mother. The child after attaining the age
of discretion reused to go to the father.

Lahore High Court rejected the application for the custody of the child, and allowed
mother to retain the custody of the child. It was observed that the welfare of the
minor was of the prime consideration.

5. Disqualifications Affecting Husband

Husband is not entitled to the custody of his minor wife till she attains the age of
puberty or becomes capable of consummating the marriage. Till the wife attains
the age of puberty i.e., the age of fifteen years, her mother has a preferential right
to her custody than her husband.

According to sec. 15 of the Guardians and Wards Act, 1890, husband is not
entitled to guardianship or custody of child unless the personal law applicable to
the minor provides for such guardianship or custody.

Nature Of Hizanat

Hizanat simply means a physical possession of the child of up to a certain age.

This is because except mother no one else can nurse and handle a child during its
infancy. But her custody of the child is subject to the supervision of the father
who as a legal guardian. Father is under an obligation to provide means for
upbringing of the child.
Imambandi vs. Mutsaddi

It was observed that it is perfectly clear that under the Mahomedan Law, the mother
is entitled only to the custody of the person of her minor child up to a certain age
according to the sex of the child. But she is not the natural guardian of that child.
Father alone, and if he is deceased, his executor (Sunni Law) is the legal guardian.
96 5. Guardianship and Custody

Aninnunnissa vs. Mukhtar Ahmad and Others

A minor aged about 11 years was in the custody of his mother. He intelligently
exercises his preference to continue in the custody of his mother.

It was held that his custody cannot be given to his father, though the father was his
legal guardian under the personal law i.e., Mahomedan Law.

It was further observed that legal guardianship in such cases cannot stand on a
higher footing than the claim of the real mother to retain the custody of the child
who is in her custody since his birth.

Though the father is the legal guardian of the child, it is well settled law under
sec. 25 of the Guardians and Wards Act, 1890 that the Court has to keep in mind
the welfare of the child.

Farzanbhai vs. S. K. Ayub Dadamiya

Son of 7 years of age was in the custody of mother. The child wanted to be with
mother. But the Court awarded his custody to father. It was held that the child did
not have intelligence to make decision. Keeping in mind welfare of child the rules of
Mahomedan Law were applied in this case.

GUARDIANSHIP TO THE PROPERTY OF A MINOR

Guardian to the property of minor is more like a curator (mukkaddam), who has to
see that the property belonging to the minor is not wasted or damaged or reduced
in value during his minority.

As in case of guardianship to the person of a minor, so also in case of

guardianship to the property of a minor, there can be three types of guardians in
law:

1. Natural Guardian;

2. Testamentary Guardian; and

3. Certificated (Appointed) Guardian.

These guardians are de jure guardians, i.e., guardians in law.

De Jure and De Facto Guardians

Only a person who, in law, has the authority to act as guardian may act as such.
No other person who has no such legal authority may act as a guardian.
 Guardianship (Tutelage) 97

However, more often than none, an unauthorised person such as mother or

brother deals with the properties of the minor.

An authorised person is called a ‘de jure guardian’, i.e., a ‘guardian in law’. An

unauthorised person is called a ‘de facto’ guardian, i.e., a guardian in fact. He may
also be called a guardian de son tort, i.e., a guardian of his own wrong.

Natural Guardians to the Property

In this regard also, father the first and primary natural guardian to the property of
a minor, and in his absence, wasi (executor) of his will, his father and wasi
(executor) of his father’s will shall successively be guardians to the property of the
minor. No other person, including mother and brother are the guardians unless he
is appointed by father as wasi (executor) of his will.

Mother is not a natural guardian. When a guardian has been appointed by a court
of justice, or there is a testamentary guardian, the mother has no right to interfere
with the administration of the estate of the minor.

She is at all times, however, entitled to institute a suit in her own name for the
protection of the interests of her children. When, therefore, a guardian is dealing
fraudulently with the property of the minors, or is embezzling or wasting their
estate, she has a right to ask for the assistance of the judge to remove or restrain
him.

Testamentary Guardians to the Property

Qur’an specifically provides for the appointment of testamentary guardians. Father

and father’s father have the authority to appoint testamentary guardians.

Father has the power to make by will such dispositions as he may think best
relative to the guardianship of his minor children and the protection of their
interests. But it is not clear whether father can appoint a testamentary guardian
where father’s father is alive.

In Mst. Atkia Begum vs. Muhammad Ibrahim, the Privy Council has held that
father cannot appoint a testamentary guardian in the presence of father’s father.

Mother is entitled to the custody of the person of her minor children, but she has
no right to the guardianship of their property unless she is appointed by a
competent Court or by the father of the children through his will.
98 5. Guardianship and Custody

A mother, whether Moslemah or non-Moslemah, can be validly appointed executrix

of the father. When so appointed, mother is entitled to exercise the rights and
power which the law vests in testamentary guardians.

A testamentary guardian stands in loco parentis in every matter relating to the

welfare of the minors and the care and preservation of their property.

In certain cases, and especially when the appointment of the wasi (executor) is
general in its nature, the father’s or grandfather’s executor may delegate the trust
to his own executor.

Under the Shia Law the testamentary guardian or the executor must be major,
sane, Muslim and of good character.

Sec. 28 of the Act provides that a testamentary guardian cannot deal with the
immovable property of the ward in contravention of the restrictions on alienation,
if any, stated in the will.

Sec. 30 provides that any alienation in violation of above rules renders the
alienation voidable at the option of the minor or any other person affected by such
alienation.

As a general rule, the powers of the testamentary guardian are subject to the same
limitations, and extend to the same degree as the powers of the testator.

Certificated (Appointed) Guardian

In default of the natural as well as the testamentary guardians, viz., the father and
his executor and the grandfather and his executor, the obligation of appointing a
tutor or Curator, for the preservation and management of the minors’ property,
rests on the Kazi or judge as representative of the government or Sultan.

But no relative other than the father or grandfather has any right to interfere in
any way, with the property of a minor, unless appointed by a competent Court.

Gulam Husani Kutubuddin Maner vs. Abdul Rashid Abdul Rajak Maner

The Supreme Court held that mother of the minor cannot be appointed as his
guardian to accept a gift on his behalf during the lifetime of the minor’s father.

Among the Hanafis, if a person sufficiently qualified to undertake the

guardianship of the minors, or, to use the language of Act XL of 1858, “willing and
fit to be entrusted with the charge” of the minors’ property, can be found among
the male agnates of the deceased father, such person should be appointed by the
Kazi in preference to a stranger.
 Guardianship (Tutelage) 99

While appointing a guardian, the Court must have regard to two things:

1. the welfare of the minor; and

2. the wish of the father of the minor.

Thus, in Salamat Ali vs. Smt. Majjo Begum, the Court preferred to appoint
mother instead of paternal uncle of the minor as his guardian to his property.

The fact that mother is a pardanashin lady is no ground of objection to her

appointment as guardian to the property of her minor child.

When the Kazi has appointed a curator (mukaddam) to take charge of the property
of minors, and it subsequently appears that the father had conferred the
guardianship by his last will and testament to another person, the appointment
made by the Kazi would be withdrawn and the father’s choice upheld.

Among the Malakis and the Shafeis, a zimmi (non-Moslem) may be lawfully
appointed the guardian of the property of minors, though not as the guardian of
their person.

A certificated guardian to the property of a minor cannot alienate the properties of

the minor without a prior sanction of the Court, in the following manner:

1. sale;

2. exchange;

3. gift;

4. mortgage;

5. charge over an immovable property;

6. lease for a period exceeding the shorter of

(a) five years;

(b) one year from the date on which the minor attains age of majority (18 years).

This means that guardian may lease an immovable property of the minor for

1. a period of five years; or

2. a period which expires before one year after the minor attains the age of
majority,

whichever is shorter.

Any alienation in violation of the above rules renders the alienation voidable at the
option of the minor or any other person affected by such alienation.
100 5. Guardianship and Custody

Powers of De Jure Guardians in Respect of the Movable Property of the Minor

A natural guardian as well as a testamentary guardian to the property of a minor

has power to sell are pledge the goods belonging to the minor for the minor’s
imperative necessities such as food, clothing and nursing. A guardian appointed
by the Court has larger powers.

It is important to remember that such guardians must deal with the minor’s
property as carefully as a man of ordinary prudence deals with his own property.

Subsequent Ratification By Erstwhile Minor

Where the minor, on attaining majority (18 years), ratifies the transaction,
expressly or by implication, the transaction becomes binding on him.

A guardian appointed by the Court executed a promissory note on his behalf and
also on behalf of his minor ward. The promissory note was not for necessities or
benefit of minor. After attaining the age of majority (21 years) the minor executed a
mortgage along with his guardian. Out of the mortgage money, a sum was set
apart towards the payment of the promissory note. It was held that the promissory
note was binding upon the minor, as he had ratified it by setting apart money for
its payment.

Powers of De Jure Guardians in Respect of the Immovable Property of the Minor

A guardian to the property of a minor may sell an immovable property of the minor
if the following two conditions are satisfied:

1. The sale is necessary for the maintenance of the minor; and

2. The minor has no other property, i.e., he has no movable property.

In Ahmadullah vs. Hafizuddin Ahmad, Gauhati High Court has held that
‘maintenance’ includes other necessary expenses for mental and physical well-
being of a minor according to the status of the family in the society.

A de jure guardian is authorised to sell the movable properly of his ward for an
adequate consideration and invest the proceeds in a “profitable undertaking” for
the benefit of the minor.

Thus, in the following cases a legal guardian to the property of a minor may deal
with his immovable property:

1. When the minor has no other property, and the sale of it is absolutely necessary
for his maintenance.
 Guardianship (Tutelage) 101

2. When the income accruing from the estate is not sufficient to defray the
expenditure incurred in its management and the payment of the kharaj (land
revenue).

3. He may sell it to a stranger for double its value or where it is to the manifest
advantage of the ward.

Sec. 81 of the Guardian and Wards Act, 1890 uses the words “evident
advantage”.

4. He may also sell it when there are some general provisions in the wasiyat (will)
of the testator, which cannot be carried into effect without the sale of the
property.

5. When the property is required to be sold for the purpose of paying off the debts
of the testator, which cannot be liquidated in any other way.

6. When it is in imminent danger of being destroyed or lost by decay.

7. When it is in the hands of a usurper, and the guardian has reason to fear there
is no chance of restitution.

Sec. 66 of the Guardians and Wards Act, 1890 imposes a duty on guardian to deal
with the property of minor as an ordinary prudent man for realization, protection
and benefit of property. Hence, the power of the legal guardian to deal with
immovable property of his ward is subject to the following limits:

1. Even a de jure guardian such as the father or his executor, cannot sell the
immoveable property of the minor without absolute necessity or unless it is to
the evident advantage of the minor.

2. A guardian may not sell his ward’s immovable property “into his own hands” or
into the hands of any one connected with him, under any circumstance.

3. The guardian has no power to carry on the business of his ward, especially if
the business is one which may involve the minor’s estate in speculation or loss.

4. One co-heir cannot alienate other heir’s property.

P. Narasimbhai vs. Bai Bhabu

A widow was in possession of her two minor children’s property. She had to pay
certain loans of her deceased husband. To pay the loan she sold certain properties
which included the property of her children. The sale was challenged. She contended
that the creditors had obtained a decree against all heirs and the same was,
therefore, binding on her children also.

Gujrat High Court held that a Mahomedan heir’s property cannot be alienated by his
co-heir for any purpose whatsoever.
102 5. Guardianship and Custody

De Facto Guardian (Fazooli, Intermeddler)

A de facto guardian is neither a natural guardian nor a testamentary guardian,

and he is not appointed by any court as the guardian of the minor. He has
voluntarily put himself in the position of a guardian, and assumed the powers and
functions of a guardian. He has only responsibilities in respect of the minor’s
person or properties or both, but has no rights to deal with the minor’s properties.

They are usually nearer relatives of the child and want to look after him and his
properties. They have no status in law and cannot deal with the properties of
minor without the prior permission of Court.

As seen earlier, mother, brother, uncle and other relatives of the minor are de
facto guardians of the minor if they act as such, unless they are appointed by the
father or father’s father of the child or by a competent Court as guardian of the
minor.

Therefore, mother has no right to deal with the properties of her children
(Sitaram vs. Amir Begum).

If she deals with their estate without being specially authorised by a competent
Court or by the father, her acts should be treated as the acts of a fazuli (an
unauthorised person), and the transaction is absolutely void ab initio.

The same principle applies to the acts of other relatives such as a brother, sister or
uncle who have no right to the guardianship of the property of a minor
(Bhuthnath vs. Ahmed Hosein).

Mahomedan Law does not recognise a de facto guardian. Every person, unless a
de jure guardian of a minor’s property, is a fazuli and cannot deal with his
immoveable property without the authorization of the Court.

But the authorities seem to indicate that where a transaction is manifestly to the
advantage of a minor, it may be maintained at the discretion of the Court.
However, this does not refer to a case of alienation for necessity or otherwise. A de
facto guardian has the same power to sell and pledge movable property, as a legal
guardian.
Moyna Bibi vs. Banku Behari Biswas

The Calcutta High Court has held that under the Mahomedan Law the mother is not
the de facto guardian of her minor children. Unless she is specially authorised by the
District Judge, she has no power to bind their estate by mortgage or otherwise. Any
such act by her is entirely void.
 Guardianship (Tutelage) 103

But in Majidan vs. Ram Narain, the Allahabad High Court, on the other hand,
has held a transaction for the minor’s benefit entered into by a mother acting as
their de facto guardian, to be binding against them.

In two later cases the Calcutta High Court also upheld the transactions by a
mother in respect of the minor’s property on the ground that she had purported to
act as de facto guardian for his benefit.

Alienation Of Minor’s Property By De Facto Guardian

The position of a de facto guardian in respect of movable properties is the same as

that of a de jure guardian. He may alienate the minor’s movable properties for the
minor’s necessities or for the minor’s benefit.

But in respect of immovable properties the position of a de facto guardian is quite

different from that of a de jure guardian.

Sec. 27 of the Guardians and Wards Act, 1890 provides that a de facto guardian
cannot

1. alienate the minor’s immovable property without authority of the Court;

2. refer any dispute in respect of the minor’s immovable to arbitration;

3. give consent on behalf of the minor to validate bequest to his co-heirs;

4. enter in contract of partnership or allow a dissolved partnership continue after

minor’s fathers death;

5. bind the minor by executing bonds in lieu of the minor’s father’s debts;

6. make agreement on minor’s behalf for purchasing immovables.

Imambandi vs. Mutsaddi

The suit property belonged to one Ismail Ali Khan a Sunni Muslim. He was survived
by three widows and many children. Enayat-us-Zohra, one of the widows, acting for
herself and her two minor children, sold the suit property to the Plaintiff for
Rs. 10,000.

The Plaintiff instituted the suit

1. for declaration of the title and the status of the sellers; and

2. for a decree for possession of the suit properties.

The Defendants contended that Zohra was not a legally wedded wife of Ismail Ali
Khan and the children were not his legitimate children. Their further contention was
that there was no passing of property by sale as mother could not alienate the
property of her children.
104 5. Guardianship and Custody

The Privy Council held,

1. that Zohra and her children were entitled to shares in the estate of the deceased
Ismail Ali Khan.
2. that under the Mahomedan Law mother was entitled only to the custody of the
child. She may incur responsibilities, but cannot impose obligations on the child.
However, where there is no de jure guardian to the minor, she may do so.
3. If the mother pledges or mortgages the properties of her minor child, it is not
lawful unless, she is
(a) the executrix of the father of the child; or
(b) authorised by the guardian of the child; or
(c) permitted by the Court
In such cases the murtahin (mortgagee) is entitled to the possession and use of
the property without the power of sale.

A transfer of minor’s property by de facto guardian is not only voidable but

absolutely void. Hence, the minor, on attaining majority, cannot ratify the same.

But, the transfer, it appears, is valid as against the rest of the world.

Ruqia Begum vs. Iqbal Ali Khan

Andhra Pradesh High Court held that if the minor challenges the validity of the
alienation made by the de facto guardian, he will succeed. But if it is not challenged
by the minor, it is not open for the third parties to impugn the alienation.

The same view is held by the Supreme Court in Mohammed Amin vs. Vakil
Ahmed.

DUTIES OF GUARDIAN

The following are the duties of a guardian:

1. DUTY TO SUPPORT THE WARD

It is the duty of the guardian to take care of his ward. He has to take full care of
health, education and other matters required by the law applicable to his ward.

2. DUTY TO DEFEND THE WARD

The guardian has to take all steps necessary to defend the minor. He may even
use force if necessary to defend his ward.
 Duties of Guardian 105

3. DUTY TO MAKE ARRANGEMENTS IN THE MARRIAGE OF HIS WARD

It is duty of the guardian to make necessary arrangements during the marriage of

his ward. But it may not be his duty to arrange the marriage of ward.

4. DUTY TO INSTITUTE OR DEFEND SUITS BY OR AGAINST WARD

The Guardian has to institute suits in the name of the ward or defend suits
against the ward. As per O. XXXII, Civil Procedure Code, 1908, where a minor has
a guardian appointed by a competent Court, no other person may represent the
minor in a suit by or against such minor.

5. DUTY OF FATHER TO TAKE CHARGE OF HIS CHILDREN

Mother has right to custody of the children up to a specified age. After the children
attain that age, father, who is the natural guardian becomes entitled to their
custody. It is then his duty to take the custody of the children and take proper
care of the children.

6. DUTY TO TAKE PROPER CARE OF THE WARD’S PROPERTY

It is the duty of the guardian to take proper care of his ward’s property. He should
deal with the ward’s property in the same manner as a man of ordinary prudence
deals with his own property.

7. DUTY NOT TO USE WARD’S PROPERTY

It is the duty of the guardian not to take benefit of his ward’s property. He should
not make profit out of his ward’s property. So also, he should not sell his property
to his ward and make profit out of it.

8. DUTY TO MAINTAIN PROPER ACCOUNTS

A guardian to the property of a minor has to maintain proper account of the

income and expenses in respect of the property of his ward.

The Court which appoints a guardian to the person or property of the minor has
all the powers to regulate the conduct of the guardian in the exercise of his rights
and discharge of his duties.
106 5. Guardianship and Custody

RIGHTS OF GUARDIAN

The following are the rights of the guardians:

1. RIGHT TO CONTROL THE ACTS OF THE MINOR

A guardian has right to control the conduct of his ward. A father may also inflict
correction on his child if he feels that the child is not obeying his reasonable
orders.

2. RIGHT TO USE FORCE TO DEFEND THE WARD

3. RIGHT TO INSTITUTE OR DEFEND SUITS BY OR AGAINST WARD

4. RIGHT TO EXERCISE THE RIGHT OF PRE-EMPTION

The guardian has a right to exercise or refuse to exercise the right of pre-emption
on behalf of his ward.

CESSATION OF THE AUTHORITY OF THE GUARDIAN

GUARDIAN TO THE PERSON

1. by death, removal or discharge of the guardian;

2. court of ward assuming the superintendence of the person of the minor;

3. ward becoming major;

4. in case of a female ward, by her marriage to a husband who is not unfit to be a

guardian; and

5. in case of a guardian who was appointed during the unfitness of his ward’s
father, father ceasing to be unfit to be a guardian.

GUARDIAN TO THE PROPERTY

1. by death, removal or discharge of the guardian;

2. court of ward assuming the superintendence of the property of the minor; and

3. ward becoming major.

 Removal of Guardian 107

REMOVAL OF GUARDIAN

A guardian, whether de jure or de facto, may be removed by a competent Court if it

is necessary in the interest of the minor.

The Court may exercise its power to remove a certificated guardian or a

testamentary guardian on an application by any interested person as well as suo
motu.

The following are the grounds for the removal of a guardian:

1. abuse of trust;

2. continued failure to discharge functions of his trust;

3. ill-treatment of child;

4. neglecting to take proper care of the child;

5. continuous disregard of the provisions of the Guardians and Wards Act,

1890.

6. incapacity to do duties;

7. conviction for an offence involving moral turpitude, which is, in the opinion of
the Court, renders him unfit to be the guardian of his ward;

8. having an interest adverse to the performance of his duties as guardian of his

ward;

9. ceasing to reside in jurisdiction of Court;

10. insolvency of the guardian to the property;

11. the guardianship ceasing or being liable to cease under the law to which the
minor is subject.
 6. MAINTENANCE (NAFQAH)
A person is liable to maintain his

1. wife;

2. children, i.e., minor sons and unmarried daughters;

3. other relatives

(a) ascendants, such as parents, grand parents,

(b) descendants, i.e., grand children,

(c) collaterals, such as brothers, sisters, cousins; and

4. servants.

The general rule regarding maintenance of relations is that a person is entitled to

maintenance on the fulfilment of the following conditions:

1. the claimant is indigent, i.e., has no means of his own maintenance;

2. the claimant is related to the person from whom he is claiming maintenance within
the prohibited degrees of relationship; and

3. the person from whom the claimant is claiming maintenance is in easy circumstances.

Right of wife is absolute, subject to the conditions that

1. she should reside with the husband, and

2. obey his lawful and reasonable commands.

Means, health or liberty of husband is no excuse.

Wife’s right is irrespective of her capacity to maintain herself.

Children’s rights are also absolute except where the father has no means to maintain the
children.

Other’s rights are subject to the condition that

1. the claimant is indigent (has no property of his own); and

2. the person from whom maintenance is “in easy circumstances”.

In case of collaterals, the further condition is that the claimant must be within
prohibited degrees of relationship to the person from whom he is claiming maintenance.
 6. Maintenance (Nafqah) 109

The Arabic equivalent of maintenance, nafqah, literally means “what a person

spends over his family”.

The maintenance (nafqah) of a wife includes everything connected with her

support and comfort, such as food, raiment, lodging, etc., and must be provided in
accordance with the social position occupied.

The wife is not entitled merely to maintenance in the English sense of the word,
but has a right to claim a residence for her own exclusive use, to be provided
consistently with the husband’s means.

The same may be said to be applicable to others aslo.

WIFE’S RIGHT TO MAINTENANCE

Usually the conditions relative to the wife’s maintenance and residence are
reduced to writing. But even when that is not done the husband is legally bound
to maintain his wife and her domestic servants, whether she and her servants
belong to the Moslem faith or not.

SCALE OF MAINTENANCE

In determining the scale of maintenance, under the Hanafi Law, the social status
of both husband and wife should be considered.

According to the Shafei Law status of husband alone should be considered.

According to Shia Law, the maintenance should be determined by considering the

wife’s requirements as to food, clothing, residence, service, etc., and also regard be
had to the custom of her equals among her own people in the same city.

This obligation of the husband comes into operation when the contract itself
comes into operation, and the wife is subjected thereby to the marital control. It
continues in force during the conjugal union, and in certain cases even after it is
dissolved.

It makes no difference in the husband’s liability to maintain the wife whether he

be in health or suffering from illness, whether he be a prisoner of war or
undergoing punishment, “justly or unjustly,” for some crime, whether he be
absent from home on pleasure or business, or gone on a pilgrimage.
110 6. Maintenance (Nafqah)

In fact, as long as the status of marriage subsists, and as long as the wife is
subject to the marital power, she is entitled to maintenance from him.

However, according to the Hanafi and the Shiah Laws, if the wife is a minor, so
that the marriage cannot he consummated, there is no legal obligation on the
husband’s part to maintain her.

If the husband is a minor and the wife an adult, and the incapacity to complete or
consummate the marriage is solely on his part, she is entitled to maintenance.

If the husband has no source of income to maintain the wife, his father or
guardian has the liability to maintain her. They may recover that amount from the
husband later when he becomes capable of earning.

A husband is not entitled to the custody of the person of his minor wife whom he
is not bound to maintain.

The Shafei Law does not make any difference in the obligation of the husband to
maintain his wife, whether she is a minor or not.

When the husband has left the place of the conjugal domicil without making any
arrangement for his wife’s support, the Kazi (Court) is authorised by law to make
an order that her maintenance shall be paid out of any fund or property, which
the husband may have left in deposit or in trust, or invested in any trade or
business.

A wife may contract debts for her support during the husband’s absence, and if
such debts are legitimate, contracted bona fide for her support, the creditors have
a right of recovery against the husband.

When the husband is absent and has left immovable property either in the
possession of his wife or of some other person on her behalf, the wife is not
entitled to sell it for her support. However, she may raise a temporary loan on it.
Husband is bound to discharge such loan provided the mortgage was created bona
fide for her or her children’s support, and did not go beyond the actual necessity
of the case.

Under such circumstances the mortgagee is bound to satisfy himself that the
money advanced is applied legitimately to the support of the family of the absent
husband.
 Wife’s Right to Maintenance 111

But the right of the wife to maintenance is subject to the condition that she is not
refractory or does not refuse to live with her husband without lawful cause, such
as the non-payment of dower. Simple refractoriness, as has been popularly
supposed, does not lead to a forfeiture of her right.

If she lives in the house, but does not obey husband’s wishes, she would not lose
her right to her proper maintenance on that count alone.

If she leaves the house against his will without any valid reason, she would lose
her right, but would recover it on her return to the conjugal domicil.

What is a valid and sufficient reason for the abandonment of the conjugal domicil
is a matter for the discretion of the Kazi (Court).

As a general principle and one which has been adopted and enforced by the Kazis’
Mahkamas in Algeria, ‘a wife who leaves her husband’s house on account of his or
his relations’ continued ill-treatment of her, does not come within the category of
nashizah and continues entitled to her maintenance.

A woman who is imprisoned for some offence, or is undergoing incarceration in the

civil jail for non-payment of a debt, or who goes on a voyage or pilgrimage without
her husband’s consent, has no right to claim any maintenance during her
absence.

Among the Shiahs if she goes on an obligatory pilgrimage even without her
husband’s consent, she is nevertheless entitled to maintenance.

The wife cannot refuse to live with her husband on pretexts like the following:

1. That she wishes to live with her parents.

2. That the domicil chosen by the husband is distant from the home of her father.

3. That she does not wish to remain away from the place of her birth.

4.That the climate of the place where the husband has established his domicil is
likely to be injurious to her health.

5. That she detests her husband.

6. That the husband ill-treats her frequently (unless such ill-treatment is actually
proved, which would justify the Kazi to grant a separation).
112 6. Maintenance (Nafqah)

Wife is not entitled to maintenance if she

1. abandons conjugal domicil without valid cause;

2. refuses her access to husband without valid reasons;

3. is disobedient to his reasonable commands;

4. is imprisoned for

(a) commission of an offence,

(b) execution of a money decree against her;

5. lives in adultery or elopes with somebody;

6. marriage cannot be consummated due to her minority;

7. deserts husband in pursuance of an agreement, on his second marriage; and

8. converts to some other religion.

Where a wife loses her right of maintenance owing to her disobedience to her
husband or for some other cause which does not dissolve the marriage, her right
to maintenance revives under the Hanafi Law, by ceasing to be disobedient or
removal of the cause which disentitled her of her right to maintenance.

RIGHT OF A WIFE DESERTING HUSBAND ON HIS SECOND MARRIAGE

Under the Mahomedan Law, a wife who deserts her husband without a valid
reason is not entitled to maintenance.

Deserting a husband on his second marriage is not such a valid reason as

husband is entitled by law to marry up to four wives simultaneously.

Even where there is an agreement between the husband and wife that wife will live
separate on husband marrying a second wife, she is not entitled per se to
maintenance.

But it is now a settled law that under sec. 125, Cr.P.C., wife may claim
maintenance from her husband if the husband takes a second wife is spite of the
first wife refusing to reside with him in the event of his second marriage.
 Wife’s Right to Maintenance 113

PAST MAINTENANCE

A Mahomedan wife is not entitled to a decree for past maintenance, except

1. Where there is a specific agreement between the wife and her husband, or their
guardians, to that effect, the same is valid and enforceable.

2. Under the Shafei Law.

However, a Mahomedan wife may apply for maintenance under sec. 125, Cr.P.C.
In such case, the wife may claim past maintenance.

Thus a Mahomedan woman may claim past maintenance

1. Under the Shafei Law, and

2. Under sec. 125, Cr.P.C.

DURATION OF WIFE’S RIGHT TO MAINTENANCE

Husband’s liability to maintain his wife continues during the subsistence of

marriage.

The husband’s liability to support the wife continues during the whole period of
iddat (probation), if the separation has been caused by any conduct of his, or has
taken place in exercise of a right possessed by her. If she is pregnant at the time of
separation, her right remains intact until she is confined of the child.

The husband would not, however, be liable to support the wife during the iddat, if
the separation is caused by her misconduct.

The Hedaya seems to imply that a woman is not entitled to maintenance during
the period of iddat she observes on the death of her husband. The reason for this
principle is that right to maintenance is replaced by right to inheritance.

The Qur’an, however, distinctly says, “Such of you as shall die and leave wives
ought to bequeath to them a year’s maintenance.” Therefore, several jurists have
held that a widow has a right to be maintained from the estate of her husband for
a year, independently of any share she may obtain in the property left by him.

This right would appertain to her whether she be a Moslemah or non-Moslemah.

114 6. Maintenance (Nafqah)

In the case of iddat observed by a woman on the death of her husband, the Sunnis
calculate the period from the actual date of his decease. The Shias calculate the
period from the day on which the wife receives the news of the death.

According to the Sunnis the liability of the husband to maintain a pregnant wife
from whom he has separated ceases at her confinement.

The Shiahs, on the other hand, hold that the liability lasts for the same period
after confinement as if the woman was not enciente.

SEC. 125, CRIMINAL PROCEDURE CODE, 1973

Sec. 125, Cr.P.C. is a secular law, which is applicable to persons of all religions.

Under sec. 125 Cr.P.C., husband may take a defence that the wife is capable of
maintaining herself. But that the defence is available before the case is finally
decided. Once the case is decided finally and maintenance is granted, the only
remedy the husband may have is to apply for modification or cancellation of the
order, under sec. 127, Cr.P.C.

Under the Mahomedan Law, a husband is liable to maintain his divorced wife till
the period of iddat only. After the period of iddat, his liablity comes to end.

Sec. 125 defines ‘wife’ to include a divorced wife or a wife who has obtained
divorce from her husband, and has not remarried. Therefore, under sec. 125, a
divorced Mahomedan woman is entitled to maintenance even after the period if
iddat, as long as she remains unmarried.

As far as Mahomedans are concerned, this is now subject to the provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986.

Zohra Khatoon vs. Mohd. Ibrahim

The Supreme Court has held that the expression ‘wife’ under the Explanation (b) to
sec. 125(1) includes a woman who has obtained a decree for dissolution of her
marriage under any of the provisions of the Dissolution of Muslim Marriages Act,
1939.

Under Sec. 127(3) the right to maintenance ceases only where the wife has

1. remarried;

2. received maintenance under customary or personal law; or

3. voluntarily waived right to maintenance after divorce.

 Wife’s Right to Maintenance 115

Mohammad Ahmed Khan vs. Shah Bano Begum

A Muslim woman of 62 years age was divorced by her husband by triple talaq. She
applied for maintenance under sec. 125, Cr.P.C.

A five-judge bench of the Supreme Court held that a Muslim husband having
sufficient means must provide maintenance to his divorced wife who is unable to
maintain herself.

The Court rejected the contention of the husband that sec. 125 is not applicable to
Muslims. It was observed that sec. 125 is a measure of social justice founded on an
individual’s obligation to the society to prevent vagrancy and destitution, and as
such religion has no place in its application.

The Court held that a Mahomedan wife who cannot maintain herself must be
maintained by her earlier husband, till she remarries. It was held that the liability of
the husband to maintain his divorced wife beyond the period of iddat extends only in
case the wife is not able to maintain herself. The Court quoted Ayats from Qur’an in
support of its decision that there is a clear obligation in Qur’an on the former
husband to provide maintenance to his divorced wife.

The contention that payment of deferred dower is in lieu of maintenance was also
rejected. It was held that payment of dower is in consideration of the marriage, and
is not covered by sec. 127(3)(b) of the Cr.P.C.

MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The orthodox Muslims launched protests and agitations against this judgement as
they saw it as interference in their personal law. The Parliament passed the
Muslim Women (Protection of Rights on Divorce) Act, 1986 to abrogate the
judgement of the Supreme Court in Shah Bano.

Under this Act, an attempt is made to give relief to a divorcee Mahomedan woman
who is not able to maintain herself, without offending the principles of
Mahomedan Law. The liability to maintain such a woman is placed successively on
other persons, especially on her legal heirs, and in their absence, on the State.

Sec. 3 of the Act deals with the right of a divorced woman during the period of
iddat.

Sub-sec. (1) provides that a divorced woman shall be entitled to –

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

(b) where she herself maintains the children born to her before or after her
divorce, a reasonable and fair provision and maintenance to be made and paid
116 6. Maintenance (Nafqah)

by her former husband for a period of two years from the respective dates of
birth of such children;

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

(d) all the properties given to her before or at the time of marriage or after her
marriage by

• her relatives or friends; or

• her husband; or

• any relatives or friends of the husband.

Sub-sec. (1) begins with a non-obstante clause, notwithstanding anything

contained in any law for the time-being in force. This gives sec. 3(1) an overriding
effect on any other law which provides to the contrary.

According to the Supreme Court in Shah Bano, the expressions ‘provision’ and
‘maintenance’ mean the same, which is same as ‘mata’ in the Qur’anic Ayat 241.

Further, the expression “made and paid to her within the iddat period” is liberally
interpreted by the High Courts as well as by the Supreme Court. Prima facie it
appears that Sec. 3 restricts the husband’s liability to pay maintenance to the wife
only during the period of iddat.

But it is interpreted that in ‘provision to be made for the maintenance of wife

during iddat’, ‘during iddat’ is applicable to ‘made’ and not ‘provision’. Therefore,
provision should be for maintenance during the period of iddat as well as for the
period after iddat. However, the amount which takes care of wife’s maintenance
during as well as after the period of iddat should be decided ans paid during the
period of iddat.

Where a reasonable and fair provision for maintenance or the amount of mahr due
has not been made or paid or the properties mentioned above have not been
delivered to a divorced woman on her divorce, sub-sec. (2) provides that she or any
one duly authorised by her may, on her behalf, make an application to a
Magistrate for an order for payment of such provision and maintenance, mahr or
the delivery of properties, as the case may be.

Sub-sec. 3 provides for the procedure to be followed by the Magistrate after

receiving an application under sec. 3(2).
 Wife’s Right to Maintenance 117

The Magistrate may, if he is satisfied that,

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

(b) the amount equal to the sum of mahr has not been paid or that the properties
to be given to her have not been delivered to her,

make an order, within one month of the date of the filing of the application.

Proviso to sec. 3(3) states that if the Magistrate finds it impracticable to dispose of
the application within the said period (one month), he may, for reasons to be
recorded by him, dispose of the application after the said period.

The Magistrate may, by such order, direct her former husband

1. to pay such reasonable and fair provision and maintenance to the divorced
woman as the magistrate may determine as fit and proper, having regard to

(a) the needs of the divorced woman,

(b) the standard of life enjoyed by her during her marriage, and

(c) the means of her former husband;

2. to pay such mahr or

3. to deliver such properties to the divorced woman.

Sub-sec. (4) provides for the enforcement of the order made by the Magistrate
under sec. 3(3), if the husband does not voluntarily comply with the order.

Accordingly, if husband or any person against whom order is made under sec.3(3)
fails without sufficient cause to comply with the order, the Magistrate, may, after
hearing the person,

• issue a warrant for levying the amount of maintenance or mahr due in the
manner provided for levying fines under the Cr.P.C., and

• sentence such person to imprisonment for a term which may

• extend to one year, or

• until payment.
118 6. Maintenance (Nafqah)

Sec. 4 of the Act deals with the right of a divorced woman after the period of iddat.
For the application of this section, the Magistrate must be satisfied about the
existence of the following two conditions:

1. that the divorced woman has not re-married; and

2. that she is not able to maintain herself after the iddat period.

Then he may make an order directing such of her relatives as would be entitled to
inherit her property on her death according to Muslim law to pay such reasonable
and fair maintenance to her as he may determine fit and proper.

While passing the order, the Magistrate shall have regard to:

1. the needs of the divorced woman;

2. the standard of life enjoyed by her during her marriage; and

3. the means of such relatives.

Where there are more such relatives than one, the liability of each relative shall be
in proportion to his share in her property.

The Magistrate shall also mention the period for which such relatives shall pay
maintenance to the woman.

If such woman has children, only they will have the liability to pay maintenance to
the woman. If the children are not able to pay maintenance, then her parents will
have the liability to pay maintenance.

If any of the parents is unable to pay his or her share of the maintenance ordered
by the Magistrate on the ground of his or her not having the means to pay the
same, the Magistrate may, on proof of such inability being furnished to him, order
that the share of such relatives in the maintenance ordered by him be paid by
such of the other relatives as may appear to the Magistrate to have the means of
paying the same in such proportions as the Magistrate may think fit to order.

Where a divorced woman is

1. unable to maintain herself; and

2. (a) she has no relatives or

(b) such relatives do not have enough means to pay the maintenance ordered by
the Magistrate,

the Magistrate may, by order, direct the State Wakf Board to pay such
maintenance.
 Wife’s Right to Maintenance 119

If the woman has relatives, but only one or some of them are unable to, to pay
their shares of maintenance, the shares of such of the relatives who are unable to
pay, may be ordered to be paid by the State Wakf Board.

The period for which the State Wak Board has to pay the maintenance may also be
specified in the order.

Thus, the order of priority for payment of maintenance is,

1. Children,

2. Parents,

3. Other relatives who are her legal heirs, and

4. State Wakf Board.

Sec. 5 provides that on the date of first hearing of the application, the divorced
woman and her former husband declare, by affidavit, either jointly or separately,
that they would prefer to be governed by the provisions of Secs. 125 -128 of
Cr.P.C., 1973, the Magistrate shall dispose of such application accordingly.

Explanation to sec. 5 provides that ‘date of first hearing’ means the date fixed for
appearance of the Respondent.

‘Jointly or separately’ has been interpreted by Karnataka High Court as ‘by either
or any of them’.

CHILDREN’S RIGHT TO MAINTENANCE

The Mahomedan civil law imposes on parents the duty of maintaining their
children, and of educating them properly. This obligation rests naturally upon the
father.

Hedaya declares, in unequivocal terms that “the maintenance of minor children

rests on their father, and no person can be his associate or partner in furnishing
it”. This means that no other person, including mother shares this responsibility
with father.

Therefore, even if children are in the custody of their mother, liability of their
maintenance is still on the father.
120 6. Maintenance (Nafqah)

Father has the liability to maintain his

1. minor sons and daughters;

2. unmarried daughter of any age;

3. married daughter if she is poor;

4. adult son, if he is necessitous.

In all cases concerning the maintenance of minor children, consideration is chiefly

to be paid to the interest of the children. So long as the father is able to maintain
them it is incumbent on him to do so. Any debts incurred on their behalf by any
person are recoverable from him.

In case the father wilfully neglects and deserts his children, legitimate or
illegitimate, and refuses to maintain them when he has the means, he is liable to
punishment at the discretion of the Kazi.

Difference of faith or creed between father and child makes no difference in the
obligation of the father to maintain the child.

Under the Hanafi Law, when the father is poor and the mother rich, the liability to
maintain the infant children falls on her, with an eventual right of recovery against
her husband, even though the children may have a rich paternal grandfather.

Under the Shiah Law, if the father be poor the liability rests primarily on the
grandfather, if he have means, and not on the mother, even though she be rich.

If the father and mother are both poor, the grandfather possessed of means, is
liable to maintain his infant grandchildren, with a right to recover all money spent
on them from the father. But if the father be infirm, the grandfather would have no
right of recovery against him for any debt incurred for the maintenance of the
grandchildren.

SON’S RIGHT TO MAINTENANCE

The obligation of maintaining the male children lasts until they arrive at puberty.
After this, a father is not bound to maintain his male children, unless they are
incapacitated from work through some disease or physical infirmity, or are
engaged in study. When an adult son is lame, or paralytic, or is in any way a
cripple, or if he is of unsound mind, the obligation of maintaining him rests on the
father.
 Children’s Right to Maintenance 121

When male children are strong enough to earn their own livelihood, though not
actually adult, the father may set them to work for their own subsistence, or hire
them out for wages.

If the male children are actually able to work, but the employment found for them
is unsuitable or improper for their rank in life, they should be placed on the same
footing as children labouring under some infirmity.

Ability to work must, in such cases, be considered with reference to the social
position of the children, as well as the parents. A father occupying a respectable
position, in which the children have been brought up delicately, must not hire
them out for work which is degrading in its nature or associations.

A father is bound to maintain his son’s wife when such son is young, or poor,
infirm, or engaged in study. But a he is not under any obligation to maintain his
deceased son’s wife.

A father is bound to maintain his daughters until they are married, if they have no
independent means of their own.

DAUGHTER’S RIGHT TO MAINTENANCE

Daughter’s right to claim maintenance is not unrestricted. She cannot refuses the
offer to stay with father and then claim maintenance.

He cannot hire them out for work or send them into service under any
circumstance.

Marriage does not necessarily absolve the father from the obligation of maintaining
his daughter. Should he contract a daughter in marriage to a man, concealing the
fact that she was suffering from a disease which will give the husband legal
grounds for dissolving the marriage, he would be liable for her maintenance in
case of the dissolution of her marriage.

MAINTENANCE FROM THE PROPERTY OF THE CHILD

Children possessed of private property are to be maintained out of it from the time
they are weaned. Until then the father is bound to support and provide suitable
attendance for them.

When a father maintains his children out of their earnings, it is his duty to be
careful of the surplus and to make it over to them when they arrive at majority.
122 6. Maintenance (Nafqah)

If the father cannot or does not discharge this duty, or if he is unfit to the trust
reposed in him, the Kazi (Court) should appoint some trustworthy person to take
care of the earnings of such children until they are of age to receive them.

AGREEMENTS WITH WIFE

A woman may compound with her husband for the maintenance of her minor
children, but if such composition prove prejudicial to their interests it is not
binding on the mother.

In the same way, if a woman on separating from her husband agree to take charge
of the children of the union and support them without requiring any assistance,
and if she discover subsequently that she is unable to do so from poverty, the law
will compel the husband to support his children, in spite of the stipulation entered
into at the time of separation.

A husband is not liable for the support of the children of his wife by a former
husband, unless he has expressly agreed to do so at the time of the marriage.

MAINTENANCE OF CHILDREN AFTER DISSOLUTION OF MARRIAGE

It is the absolute liability of the father to maintain his children under Mahomedan
Law as well as under sec. 125 of the Criminal Procedure Code, 1973. Sec. 3(1)(b)
of Muslim Women (Protection of Rights on Divorce) Act, 1986 gives right to a
divorced wife to claim maintenance for her children.

The right of children is independent from the right of the mother, and is not
affected by the dissolution of marriage between its parents. The 1986 Act,
including sec. 3(1)(b) does not, in any way, affect the rights of children.

MAINTENANCE OF ILLEGITIMATE CHILDREN

Under the Hanafi Law, the liability to maintain illegitimate children is on mother,
but not father. Under the Ithna Asharia school, illegitimate children cannot claim
maintenance from either of the parents.

Sec. 125 of Cr.P.C. provides that if a person having sufficient means neglects or
refuses to maintain his legitimate or illegitimate minor child, or his legitimate or
illegitimate child who is adult but unable to maintain itself due to any physical or
mental abnormality or injury, a Magistrate may order such person to make
monthly allowance.
 Other Descendants’ Right to Maintenance 123

OTHER DESCENDANTS’ RIGHT TO MAINTENANCE

Under the Hanafi Law, when the father is poor and the mother rich, the liability to
maintain the infant children falls on her, with an eventual right of recovery against
her husband, even though the children may have a rich paternal grandfather.

Under the Shiah Law, if the father be poor the liability rests primarily on the
grandfather, if he have means, and not on the mother, even though she be rich.

If the father and mother are both poor, the grandfather possessed of means, is
liable to maintain his infant grandchildren, with a right to recover all money spent
on them from the father. But if the father be infirm, the grandfather would have no
right of recovery against him for any debt incurred for the maintenance of the
grandchildren.

PARENTS’ RIGHT TO MAINTENANCE

When children have means, they are bound to maintain their parents if in
straitened circumstances. It makes no difference in their liability whether the
parents are Moslems or non-Moslems. Daughters as well as sons are liable for the
maintenance of their poverty-stricken parents.

When the children are in straitened circumstances themselves, they are not bound
to maintain their parents, unless the parents are absolutely infirm and unable to
obtain a livelihood even by manual labour. In such cases the children are required
to share their food with their weak and infirm parents.

Under the Sunni Law, even if the parents be able to earn a livelihood, the children
would not be absolved from the obligation of helping to maintain them.

Under the Shia Law, the children have no duty to maintain their parents who are
capable of earning.

MOTHER’S RIGHT TO MAINTENANCE

When a mother is poor and the son is able to work for his livelihood, he is bound
to support her according to his means, though he be in straitened circumstances
himself.

When a son is able to maintain one parent only, the mother has the preferential
right.

Liability to maintain step mother lies only when she is weak and infirm, and has
no means to maintain herself.
124 6. Maintenance (Nafqah)

OTHER ASCENDANTS’ RIGHT TO MAINTENANCE

Under the Hanafi law, a person is bound to maintain his grandparents, if

1. the grandparents have no children; or

2. the children of the grandparents are not capable of maintaining them.

It is his legal obligation. It is immaterial whether they are Moslems or not.

When a son is able to maintain one grandparent only, the grandmother, has the
preferential right.

COLLATERALS’ RIGHT TO MAINTENANCE

Under the Hanafi law, a person is bound to maintain,

1. his infant male relations within the prohibited degrees, if they are in poverty;

2. all female relations within the same degrees, whether infants or adults, when
they are in necessity; and

3. also all adult male relations within the same degrees, if they are blind or
disabled, and at the same time poor.

But the support of these relations is only a quasi-legal obligation. Further rights of
these relatives subsists only as long as they are Moslems. A rich Moslem is not
bound to support his poor non-Moslem brother, uncle or cousin.

According to the Shiahs, the Shafeis, and the Malikls, the support of any relations
besides the children, the parents, and the wife, is a mere moral obligation not
enforceable by law.

APPORTIONMENT OF LIABILITY TO MAINTAIN

When there are several persons on whom the liability of maintaining a particular
individual devolves, the Hanafis hold, that the liability should be apportioned
according to the shares to which such persons would be entitled in the inheritance
of the one whom they are required to support.

For example, if a man who is poor have a son and a daughter, both possessed of
sufficient competency, the son will have to contribute two-thirds of the
maintenance, and the daughter one-third.
 Apportionment of Liability to Maintain 125

It appears that among the Shiahs and the Malikis, the more rational rule is
followed of apportioning the liability according to the individual means of the
parties.

For example, if the daughter is rich and the son comparatively poor, the larger
proportion of the maintenance devolves on her.

When a particular sum is

1. agreed upon between the person who is liable and the person to whom
maintenance is due, or

2. ordered by the Kazi to be paid periodically,

should a change occur in the circumstances of the parties, such change would
justify a re-adjustment of the liability.

If the liability has been fixed by an order of the Kazi, it is in his discretion, upon a
proof of a change in the circumstances of the parties, to modify his order to suit
the new requirements of the case. The same is the position under sec. 125, Cr.P.C.

The Court may order the person liable to maintain another person to pay a certain
sum of amount to such person every month, under sec. 125. If either of the
person’s circumstances change, an application may be made for modification of
the order, under sec. 127. On proper evidence being produced by the Applicant,
the Court has to modify or even cancel the earlier order passed by it under
sec. 125.

EFFECT OF APOSTASY ON RIGHT OF MAINTENANCE

Under the Mahomedan Law, a Muslim has no liability to maintain a non-Muslim.

Therefore, apostasy from Islam terminates the right to maintenance. So also,
where an apostate returns to Islam, his right to maintenance revives.

Under Hanafi Law, where a wife is irrevocably divorced and renounces Islam her
right to maintenance is lost and is not revived on her re-embracing Islam.

But these rules are not applicable in India and change of religion does not affect
right of maintenance, except in case of collaterals.
 7. MATRIMONIAL REMEDIES UNDER ISLAMIC LAW
The concept of matrimonial remedies is an integral part of Muslim, Christian, Jew and
Parsi religions. The following are the two main matrimonial remedies:

1. Restitution of Conjugal Rights, and

2. Divorce

Under Mahomedan Law, marriage is a contract and a suit for restitution of conjugal
rights is similar to a suit for specific performance of a contract. Divorce is similar to
rescission of a contract.

RESTITUTION OF CONJUGAL RIGHTS

Under the Mahomedan Law, wife has a duty as well as a right to reside with her
husband, and also to follow him wherever and whenever he changes his residence.

When husband or wife withdraws from the lawful society of the other spouse without
any lawful cause, the aggrieved party may bring a suit for restitution of conjugal rights.

In Moonshee Buzloor Ruheem vs. Shumsoonnissa Brgum, it was held that where a
wife without lawful cause ceases to cohabit with her husband, the husband may sue the
wife for restitution of conjugal rights.

Wife, when sued for restitution of conjugal rights, may take the following defences.

1. That the marriage is not valid.

2. Grounds Where the Marriage is Valid

(a) Legal cruelty

(i) False charge of adultery (Lian)

(ii) Institution of false cases against wife and her relatives

(iii) Grievous chastisement

(b) Agreement to divorce

(c) Non-payment of prompt dower

(d) Ex-communication of husband

(e) Apostacy

(f) Ila and Zihar

 Restitution of Conjugal Rights 127

(g) Ante Nuptial or Post Nuptial Agreements

(h) Exercise of Khyar ul Bulugh by Wife

(i) Impotency of husband

1. INVALIDITY OF MARRIAGE

Valid marriage is sine qua non for a suit for restitution of conjugal rights. Wife
may, therefore, plead that the marriage is not valid and deny the factum of nikah
as a good defence.

Mst. Bakh Bibi vs. Qaim Din

The marriage was contracted during the period of iddat. It was consummated after
the period of iddat. Later on wife deserted husband, and husband brought a suit for
restitution of conjugal rights.

The Court accepted wife’s contention that there was no valid marriage between the
parties inasmuch as it was contracted during iddat, and refused to decree the suit.

2. GROUNDS DURING THE VALIDITY OF MARRIAGE

Law recognises wife’s right to separate from husband under certain

circumstances.

(a) Legal Cruelty

Where the husband or his parents, brothers and sisters ill treat the wife, she has a
right to desert her husband and live separately or with her parents.

She may even prove that there was actual and reasonable apprehension of
violence or any other act of such a nature as to endanger her personal health or
safety.

Any reprehensible conduct on the part of the husband is a good ground for refusal
to order restitution of conjugal rights.

In suit by husband for restitution of conjugal rights, wife’s evidence as to cruelty

does not need corroboration.
128 7. Matrimonial Remedies Under Islamic Law

(i) False Charge Of Adultery (Lian)

The allegation of adultery must be an unfounded allegation. If so it is a good
defence in a suit against her by her husband for conjugal rights.

But if the allegation is true, and the wife is actually living in adultery, allegation of
adultery is not a good ground of defence and the suit by husband may be decreed.

(ii) Institution Of False Cases

Institution of false, frivolous and vaxatious litigation by husband against his wife
or her relatives is a good ground of defence for wife in a suit for restitution of
conjugal rights against her.

The false case may be a civil case or a criminal case.

Forcing a wife to live with her husband under such circumstances may amount to
exposing her to danger.

Shahina Parveen vs. M. Shakeel

The Delhi High Court observed that the institution of criminal cases by the husband
against his wife and their vigorous pursuit against the wife and her relations
amounts to cruelty and raises a reasonable apprehension in the mind of the wife
that in case she is forced to live with her husband, her life will be in danger.

The Court also found that it is a fit case to be treated as cruelty under sec. 2(viii)(a)
of the Dissolution of Muslim Marriages Act, 1939. Therefore it was found that the
wife had a just and reasonable cause to withdraw from the company of her husband.

(iii) Grievous Chastisement

Where husband or his parents punish the wife for her faults by giving severe
punishments, it is a ground of defence for wife in a suit for restitution of conjugal
rights. The punishments must be disproportionate.

Finding fault with the wife for everything done by her and reprimanding her for the
same may also amount to cruelty.

Mere correction of the faults without reprimand or punishment may not amount to
cruelty. But if the same is done in the presence of outsiders in order to insult the
wife or her family may be cruelty.
 Restitution of Conjugal Rights 129

(b) Agreement to Divorce

Where there is an agreement between husband and wife for divorce, and in
pursuance of the agreement the wife is living separately, a suit for restitution of
conjugal rights between the parties is not maintainable.

In Zainuddin vs. Latifunnisa, it is held that where there is an agreement

between the parties that the wife has a right to divorce herself, that is a good
defence.

(c) Non-payment of Prompt Dower

Wife may take a defence that the husband has not paid prompt dower on demand
by her. This defence does not, ipso facto, overthrow the husband’s suit for
restitution of conjugal rights.

If the marriage is consummated with the full consent of the wife, the suit may be
decreed subject to the condition that the husband shall pay the prompt dower to
his wife. Unless and until the husband pays the prompt dower to his wife, the
decree against her may not be executed.

If the marriage is not consummated, non-payment of dower is a complete defence

and the suit has to be dismissed.

(d) Ex-communication of Husband

In Amir Begum vs. Souran, it has been held that when husband has been
expelled from the religion, restitution of conjugal rights may be refused to the
husband.

(e) Apostasy of Husband

So also, where the husband has renounced Islam, it is a good ground of defence
for wife in a suit for restitution of conjugal rights by her husband against her.

(f) Ante Nuptial or Post Nuptial Agreements

Valid ante nuptial or post nuptial agreements may also be set up as defence in
such cases. Void agreements are of no avail.

An agreement between the parties that the wife shall be at her liberty to live with
her parents after the marriage permanently is void and is not a good defence in a
suit for restitution of conjugal rights against her.
130 7. Matrimonial Remedies Under Islamic Law

(g) Ila and Zihar

Where under the Mahomedan Law it is improper for the husband and wife to
cohabit, a suit for restitution of conjugal rights has to fail.

(h) Exercise of Khyar ul Bulugh by Wife

In her defence, the wife may claim the she has exercised her option to repudiate
the marriage. If she has not already exercised her option, she may do so through
her written statement.

(i) Impotency of Husband

Impotency of husband is a good ground of defence in such suits.

 8. DIVORCE (TALAQ)
Under Mahomedan Law, the expression talaq is used in two senses.

1. To mean divorce generally.

2. To mean a specific mode of divorce.

Among all the nations of antiquity the power divorce was regarded as a natural corollary
to the marital right. Originally this power was exclusively vested in the husband, and the
wife was under no circumstance entitled to claim a divorce.

The progress of civilisation and the advancement of ideas led to a partial amelioration in
the condition of women. They too acquired a qualified right of divorce.

Under the ancient Hebraic law, a husband could divorce his wife for any cause which
made her disagreeable to him, and there were few or no checks to his arbitrary and
capricious use of this power.

Among the Athenians as well as the early Romans, the husbands’ right to repudiate the
wife was as unrestricted as among the ancient Israelites.

In later times, amongst the Hebrews, the Shammaites to some extent modified the
custom of divorce by imposing certain restrictions on its exercise. But the school of Hillel
upheld the law in its primitive strictness.

At the time of Mohammed’s appearance, the Hillelite doctrines were chiefly in force
among the Jewish tribes of Arabia, and repudiations by the husbands were as common
among them as among the pagan Arabs.

In some few exceptional cases, both among the Arabs and the Jews, the women of noble
families would, before marriage, reserve to themselves the power of divorcing their
husbands.

When they exercised the power reserved for them, they announced the separation by
merely changing the position of their tents, which conveyed a sufficient intimation of the
fact to the repudiated husbands.

The reforms of Mohammed marked a new departure in the history of Eastern legislation.
The Mahomedan Law of divorce is the logical consequence of the status of marriage.
132 8. Divorce (Talaq)

As it regards marriage as a purely civil contract, it confers on both the parties to

the contract the power of dissolving the tie or relationship under certain specified
circumstances.

Technically, the power of the husband is greater than that of the wife. But,
virtually and in practice, it is restrained within reasonable bounds by the
numerous formulae which are attached to its exercise, and by the special dicta of
the Prophet.

“The law,” says Ibrahim Halebi, “gives to the man primarily the faculty of
dissolving the marriage, if the wife, by her indocility or her bad character, renders
the married life unhappy.

But in the absence of serious reasons, no Mussalman can justify a divorce either
in the eyes of religion or the law. If he abandons his wife or puts her away from
simple caprice, he draws upon himself the divine anger, for “The curse of God,”
said the Prophet, “rests on him who repudiates his wife capriciously”.”

The pre-Islamic institution of divorce required no formula to make its action valid.
As there was no check on the irresponsible power of the husband, a simple
intimation from him to the effect that the tie was dissolved was considered
sufficient.

The Arabian legislator, in regulating the law of divorce, imposed several conditions
on the exercise of the power possessed by husbands, with the object of protecting
women as much as possible from being thrown on the street at the mere caprice of
the man. He also gave to the woman the right of dissolving the contract under
certain circumstances.

When the dissolution of the marriage tie proceeds from the husband, it is called
Talaq.

When it takes place at the instance of the wife, it is called Khula.

When it is by mutual consent, it is called Mubarat.

In all these cases no decree of a Court is necessary to dissolve the marriage. The
mere act of the parties is sufficient in law, provided all the conditions required for
effecting a valid divorce are complied with.

There are other cases, however, in which the Court is authorised to dissolve or
cancel the marriage, on the application of either the husband or the wife.
8. Divorce (Talaq) 133
134 8. Divorce (Talaq)

TALAQ
Literally talaq means repudiation or rejection. Under the Mahomedan Law, talaq
means release from marital tie, or termination of the contract of marriage.

In Moonshee Buzloor Ruheem vs. Shumsoonnissa Brgum it is observed that

under Mahomedan Law, talaq is a mere arbitrary act of a Muslim husband who
may repudiate his wife at his own pleasure with or without any cause. He may
pronounce talaq at any time. It is not necessary for him to obtain consent of his
wife to dissolve marriage by talaq.

As a general rule, the power of talaq under the Sunni doctrines is larger than
under the Shia law. The conditions applicable to talaq under the Shia law, and
limit of its exercise, are stricter and far more rigid than under the Sunni law.

According to the Sunni Law, talaq may be effected expressly, in terms which leave
no doubt as to the intention of the sarih (repudiator), or even by the use of
ambiguous or by bilkinayeh (implicative expressions).

According to the Shia Law, repudiation pronounced implicatively, or in ambiguous

terms, does not take effect, whether there be intention on the part of the
repudiator or not.

CAPACITY TO PRONOUNCE TALAQ

In order to pronounce a valid talaq, the husband must be of sound mind and must
have attained puberty.

All the Sunni jurists agree that the repudiation of a boy under puberty, though
possessed of understanding, is ineffective.

If a youth under puberty should repudiate his wife, or another person should do
so on his behalf, and the youth, on attaining majority, should ratify what was
done while he was a minor, such ratification must be worded in the form of a
repudiation de novo, and not simply as a confirmation of what had occurred
previously.

Talaq pronounced by one who is insane or afflicted by pleurisy is invalid. So also,

if a person pronounces a repudiation, whilst asleep or unconscious (madhosh) or
lost in surprise, no legal effect will be attached to it. If a lunatic pronounces a
talaq whilst the fit is on him, it is ineffective, but it would be valid if given in a
lucid interval.
 Talaq 135

Thus, under the Sunni Law, for talaq to be valid, there are only two requirements.

1. The sarih (repudiator) must be baligh, i.e., must have attained puberty; and

2. He must be of sound mind.

Shia Law has two more requirements

3. He must act of his free will; and

4. on his part, there should be a distinct intention to dissolve the marriage.

Under Shia Law, there is, however, a difference between the case of a person who
is a minor, and one who is disqualified by reason of insanity. Whereas the
guardian of a minor husband has no authority to supply his ward’s place in order
to effect a valid repudiation, the guardian of a confirmed insane is authorised to
do so. When the insane has no guardian, the Kazi or Court can make a decree to
dissolve the tie. The reason of this difference consists in the fact that the disability
of age is temporary, whereas insanity is usually permanent.

Wife’s Minority

Attention must be directed to the effect on a minor woman of a talaq pronounced

by her legally qualified husband against her. There appears to be no express
ruling or opinion on this point, either in the Shia or in the Sunni law books.

Some of the cases given in the Jama-ush-Shattat throw considerable light on the
question. Both schools insist that the sigheh (formula), by which the talaq is
pronounced, should in every case be understood by the wife.

It follows, therefore, that when she is of such tender ago as to be unable to

comprehend the legal consequences flowing from the act of repudiation, or does
not possess discretion (rushd), a valid talaq cannot be effected against her.

The Shia Nail-ul-Maram requires akl (sound mind) on both sides for the
effectuation of a proper repudiation. Therefore, a talaq pronounced against a
woman who is of unsound mind would be invalid unless it is pronounced during a
lucid interval in case of a lunatic.

But the case of a wife of who was of unsound mind at the time of marriage
deserves a different consideration. If the woman was of unsound mind and was
married to a man by concealing unsoundness of her mind, and such unsoundness
of mind be permanent one, should the husband suffer her company as he cannot
divorce her by pronouncing talaq?
136 8. Divorce (Talaq)

Under the Mahomedan Law, therefore, there is a provision for cancellation of

marriage in such cases. Mere insanity does not give the husband the right to
cancel his marriage. It is necessary that the insanity should have existed prior to
the marriage, in order to furnish a proper ground for the cancellation of the
marital tie.

TALAQ UNDER INTOXICATION

Among the Hanafis, a talaq pronounced by a man whilst in a state of intoxication
is effective, unless the liquor or the drug which caused the intoxication, was
administered against his will, or was taken for a necessary purpose, i.e.,
medicinally.

According to Shafei, the talaq of a man so drunk as to be totally unconscious of

what he is doing is invalid, but his followers agree with the Hanafis in holding,
that a repudiation pronounced by a drunken man is effective.

The Malikis, however, agree with the Shias in regarding such repudiations as
absolutely invalid.

INTENTION TO DISSOLVE MARRIAGE

Under Hanafi Law, even a talaq uttered in sport or jest, or inadvertently by a mere
slip of the tongue results in the dissolution of marriage.

Under Shia Law, intention is a necessary element to the validity of all talaqs.
Where this essential condition is wanting, though the talaq may be pronounced in
express terms, yet it has no effect.

But, even where there is actual intention, the repudiation must be formulated in
express and unequivocal terms, or the entire proceeding would be invalid.

TALAQ UNDER COMPULSION OR FRAUD

Under the Shia Law, a husband who acts under the influence of threats of violence
is not a free agent, and consequently his talaq has no validity in law.

The Shafeis hold the same view. According to Shafei, the founder of the school, the
talaq of a man acting under compulsion is not effective, because he has no option,
 Talaq 137

and no formal act of law is worthy of regard unless it is voluntary; contrary to the
case of one speaking in jest, who, in mentioning divorce, acts from option, which is
the cause of its validity.

The Malikis follow the same rule as the Shafeis. According to them, “the fear of
punishment, the threat of death, violence, or imprisonment to the husband
himself, or to anyone whom he holds dear, renders the repudiation ineffective.

In order to invalidate a talaq on the ground of its having been pronounced under
compulsion, three conditions are necessary:

1. that the compeller is able to do what he threatens;

2. that there is a strong probability of the threat being carried into effect;

3. that the threat involves some imminent and serious danger to the compelled
person himself or to some one dear to him.

Further, compulsion must be such as to influence the conduct or frame of mind of

a reasonable man. “A trifling injury,” says the Sharaya, “is not sufficient to
establish compulsion.”

A repudiation obtained by fraud, or given under undue influence, is also invalid

under the Shiah law.

Hanafis hold a diametrically opposite view. Talaq pronounced under compulsion

or fraud or undue influence are also effective under the Hanafi Law.

Hanafis do not accept that talaq by a man under compulsion is involuntary. The
man (who acts under compulsion) has the choice of two evils – one, the thing with
which he is threatened or compelled, and the other, the divorce under compulsion;
and viewing both, he makes a choice of that which appears to him the easiest,
namely, divorce, and this proves that he has an option.

OPTIONAL, CONDITIONAL AND CONTINGENT TALAQS (TALAQ-E-TALIQ)

Under Sunni Law, a repudiation cannot be qualified by option. Thus, if a person

were to pronounce talaq subject to some option, the talaq is valid, but the option
is invalid.

If a repudiation be pronounced conditionally, or be made dependent on the

occurrence of a contingency not impossible in its nature, the condition is valid, the
talaq taking effect only when the condition is fulfilled.
138 8. Divorce (Talaq)

The condition must be

1. reasonable; and

2. not un-Islamic.
Bachoo vs. Bismillah

Husband agreed to pay wife maintenance within some period and any default shall
operate as divorce. It was held that under the Mahomedan Law a divorce may be
pronounced as to come into effect not immediately, but in future on the happening of
some specified event.

Under Shia Law talaq does not take effect if it is made dependent upon or
subjected to any condition or contingency.

AGREEMENT IN RESTRAINT OF TALAQ

A condition or agreement between husband and wife or their legal guardian that
husband will not repudiate the marriage by pronouncing talaq is invalid. A talaq
pronounced by the husband is valid and effective in spite of any such condition or
agreement.

FORM OF TALAQ
Talaq may be effected

1. orally (by spoken words); or

2. by a written document (Talaqnama)

Oral Talaq

Sunnis recognise oral talaq as well as talaq in writing. Talaq may be given in any
language. No particular form of words is necessary. Sunni Law permits
pronouncing talaq in any manner and allows use of an infinite number of formulas

If the words are clear and well understood as implying divorce, no proof of
intention is necessary. If the words are ambiguous, proof of intention is necessary.

Under Shia Law, talaq must be pronounced orally. A person who cannot speak
may signify his intention to divorce his wife through signs which must be clear
enough to convey his intention.

Talaq by a written document is not permitted unless the sarih (repudiator) is

unable to speak. Even an absent husband cannot effect a valid talaq in writing.
 Talaq 139

Further, under Shia Law, talaq must be compulsorily pronounced in Arabic

language only. A man who does not know Arabic may appoint a person knowing
Arabic to pronounce talaq on his behalf. Only where no one knowing Arabic is
available, talaq may be pronounced in any other language.

Unlike Sunni Law, the Shia Law recognises only two formulas as effectuating a
valid talaq. The use of any other formula, whether explicit or ambiguous, renders
the proceeding void.

Talaq in Writing (Talaqnama)

Under the Sunni Law, talaq may be in writing, and law does not insist for any
particular form. Where the husband executing a deed mentioning the name of the
lady whom he has divorced and his own name, it constitutes a divorce.

Talaq in writing may be of two kinds,

1. marsum (customary); and

2. ghair-marsum (not customary).

When talaq is in customary form of writing, it is effective, even when there is no

real intention on the part of the husband to divorce the wife.

In the case of non-customary writings, if there is any ambiguity, the talaq does not
take effect. When there is no ambiguity and the meaning of the writer is manifest,
the talaq is valid.

When there is no evidence to show that the writing was delivered and its purport
and effect explained to the wife, the repudiation is invalid and ineffectual in law.

In Shamim Ara vs. State of U. P. and Anr., it is held that if a man says to his
wife that she has been divorced yesterday or earlier, it leads to a divorce between
them, even if there be no proof of divorce on that previous day or earlier.

Therefore, if a wife sues husband for restitution of conjugal rights and in the
written statement if husband takes a plea that he has divorced his wife, wife may
not be entitled to a decree for restitution of conjugal rights.

Chunnoo Khan vs. State

Wife instituted proceedings against husband for maintenance. Husband raised a

plea of divorce.

It was held that the plea by itself was sufficient to terminate the marriage and that
the wife was entitled to maintenance only during the iddat.
140 8. Divorce (Talaq)

Under Shia Law, talaq by a written document is not permitted unless the sarih
(repudiator) is unable to speak. Even an absent husband cannot effect a valid
talaq in writing.

PRESENCE OF THE WIFE

The presence of wife or address to her is not essential (Fulchand vs. Nazib Ali).
But if the wife is absent, mention of the name of the wife is essential.

In Furchand Hussain vs. Janu Bibi, Calcutta High Court held that talaq
pronounced before the family counsel is invalid because the name of the wife was
not mentioned.

In Asha Bibi vs. Kadir, Madras High Court also held the view that the words
should refer to the wife.

But it is necessary that talaq should come to her knowledge.

In Fulchand vs. Nawab Ali Chowdhry, Calcutta High Court has held that the
talaq pronounced in the absence of wife takes effect though not communicated to
her, but it should be deemed to have come into effect on the date on which the
wife came to know about it.

WITNESSES

Under Sunni Law, witnesses are not necessary for divorce.

But under Shia Law it is necessary that there should be two reliable witnesses
present at the time of repudiation, to hear the words in which it is pronounced, or
in the case of a dumb individual, to see the writing or the signs in which it is
expressed.

Not only must witnesses be present at the time, but they should understand the
nature of the act and hear the distinct wording of the repudiation. If they be
unable to testify to the exact character of the talaq, or the words or signs used, it
is invalid, although all other conditions may have been duly complied with.

It is a further condition that the witnesses should be present together. The Shia
law is so strict in the matter of repudiation, and throws so many obstacles in the
way of a dissolution of marriage by this process, that it declares that if one of the
 Talaq 141

witnesses should be present at one stage and the other at another stage of the
proceeding, the talaq would not be valid.

When they testify to the acknowledgement by the wife of a repudiation, it is

necessary that their testimony should be concordant, or relate to one and the
same time, or be given together. If one testifies to the fact of repudiation and the
other to the acknowledgement of it, their testimony would not be admissible.

To Sum Up

Under Sunni Law talaq is valid

1. if pronounced by a person of sound mind who has attained the age of puberty;

2. whether it is oral or is in writing;

3. in any language;

4. in any form whether obvious in their meaning, or conveying the intention only
implicatively;

5. with or without intention;

6. whether voluntary or involuntary (under intoxication, compulsion, fraud, etc.);

7. with or without witnesses;

8. subject to any condition or contingency, or otherwise.

Under Shia Law talaq is valid

1. if pronounced by a person of sound mind who has attained the age of puberty;

2. orally or in writing only where the man cannot speak;

3. only in Arabic;

4. only in either of the two recognised forms;

5. with clear intention to dissolve the marital tie;

6. out of his free will, without any compulsion or fraud;

7. in the simultaneous presence of two witnesses;

8. unconditionally and without subject to any contingency.

142 8. Divorce (Talaq)

KINDS OF TALAQ

Two kinds of talaq are recognised by the Sunnis, viz.,

1. the talaq-ul-Sunnat; and

2. the talaq-ul-bidat or talaq-i-badai.

Talaq-ul-Sunnat

The talaq-ul-Sunnat is the divorce which is effected in accordance with the rules
laid down in the traditions (the Sunna) handed down from the Prophet
Mohammed. It is, in fact, the mode or procedure of talaq which seems to have
been approved of by him, and is consequently regarded as the regular or proper
and orthodox form of divorce.

The talaq-ul-Sunnat is either

1. ahsan (very proper), or

2. hasan (simply proper).

Talaq Ahsan
In the talaq-ul-Sunnat pronounced in the ahsan form, the husband is required to
submit to the following conditions:

1. He must pronounce the formula of divorce once, in a single sentence;

2. He must do so when the woman is in a state of tuhr (purity), and there is no bar
to conjugal intercourse; and

3. He must abstain from the exercise of conjugal rights, after pronouncing the
sigheh formula, for a period of three months.

The requirement of the second clause that the talaq must be pronounced during
the tuhr is not applicable in the following circumstances:

1. if the marriage has not been consummated;

2. if the husband and wife are away from each other over a long period of time;
and

3. if the wife is beyond the age of menstruation.

 Talaq 143

The third clause is intended to demonstrate that the resolve, on the husband’s
part to separate from the wife, is not a passing whim, but is the result of a settled
determination.

On the lapse of the term of three months, or three tuhrs, the separation takes
effect as an irreversible divorce.

The pronouncement made in ahsan form is revocable during the period of iddat.
Such revocation may be express or implied. Cohabitation with wife is implied
revocation of talaq.

After the expiry of the period of iddat the talaq becomes irrevocable. After that the
parties are separated and cannot remarry without nikah halala.

Talaq Hasan
In the hasan form, the husband is required to pronounce the formula three times,
in succession at the interval of a month, during the tuhr of the wife. In case of a
wife who is not menstruating, the gaps must be of one month each.

Husband must abstain from the exercise of conjugal rights, during this period of
three tuhrs or three months. When the last formula is pronounced the talaq or
divorce becomes irrevocable.

Both schools allow recantation, i.e., a husband who has suddenly and under
inexplicable circumstances pronounced the formula against his wife, may recant
any time before the term of three months has expired.

When the power of recantation is lost, the separation or talaq becomes bain,
irreversible or irrevocable. Whilst it continues, the talaq is simply rajai or
reversible or revocable.

When a definitive and complete separation (talaq-i-bain) has taken place, the
parties so separated cannot remarry without nikah halala, i.e., the formality of the
woman marrying another man and being divorced from him.

This rule was framed with the object of restraining the frequency of divorce in
Arabia.

Talaq-ul-Biddat (Triple Talaq)

In the talaq-ul-biddat, the husband may pronounce the three formulas at one time,
whether the wife is in a state of tuhr or not.
144 8. Divorce (Talaq)

The talaq-ul-biddat, as its name signifies, is the heretical or irregular mode of

divorce, which was introduced in the second century of the Mahomedan era.

The talaq-ul-biddat was introduced by the Ommiaide tyrants, finding the checks
imposed by the Prophet on the facility of repudiation difficult, and hence
annoying, looked about for some escape from the strictness of the law.

The Shias and the Malikis do not recognise the validity of the talaq-i-biddat. The
Hanafis and the Shafeis agree in holding, that a divorce is effective, if pronounced
in the biddat form, “though in its commission the man incurs a sin.”

The essential requirements of talaq-ul-biddat are:

1. Three pronouncements made during a single tuhr in three separate sentences or

even in a single sentence.

2. The pronouncement should clearly indicate the intention to dissolve the

marriage irrevocably.

Once the talaq is pronounced, it becomes irrevocable instantaneously, and parties

cannot remarry without nikah halala.

Rashid Ahmad vs. Anisa Khatoon

One Ghias Uddin pronounced triple talaq and divorced his wife Anisa Khatoon in her
absence, but in the presence of witnesses. Four days later, a talaqnama was
executed mentioning that Ghias Uddin had pronounced triple talaq and had
irrevocably divorced Anisa Khatoon.

Ghias Uddin and Anisa Khatoon continued to live together and five children were
born to them. Neither nikah halala, nor remarriage between them was proven.

It was held that remarriage could not be presumed in the circumstances of the case
and the five children were illegitimate.

It is said that talaq-ul-biddat is theologically improper. It is also improper from the

moral point of view.

Fazlur Rahman vs. Aisha

The legal validity of talaq-ul-biddat was challenged. It was argued that this type of
talaq is against Qur’anic Law, and hence, cannot be given effect to by Courts.

It was held that the relevant Qur’anic verses have been differently interpreted by
different schools.
 Talaq 145

CONSTITUTIONAL VALIDITY OF TRIPLE TALAQ

The Constitutional validity of triple talaq has also been questioned on the ground
that it discriminates woman on the grounds of religion only, and hence violates
art. 15(1) of the Constitution.

Shayara Bano vs. Union of India and Others

The Petitioner Shayara Bano was married to one Rizwan Ahmad in 2001. She left her
matrimonial home in 2015 and refused to return on repeated requests by her
husband. Husband instituted a suit for restitution of conjugal rights. The Petitioner
alleged her husband had demanded dowry of Rs. 5,00,000.

Husband, realising that his wife, Petitioner was not ready for reconciliation,
withdrew the suit for restitution of conjugal rights. instituted by him in the
Allahabad Court.

He, thereafter divorced the Petitioner by serving upon her a talaqnama dated
10.10.2015.

The petitioner challenged, inter alia, talaq-ul-biddat on the ground that the said
practice is discriminatory and against dignity of women. The Government agreed that
talaq-ul-biddat is against Constitutional morality, dignity of women and the
principles of gender equality, as also against gender equity guaranteed under the
Constitution. The All India Muslim Personal Law Board (AIMPLB), which was the 7 th
respondent in the above case, in their affidavit, inter alia, contended that it was not
for the judiciary to decide matters of religious practices such as talaq-ul-biddat, but
for the legislature to make any law on the same. They had also submitted in the
Supreme Court that they would issue advisories to the members of the community
against this practice.

The Court observed that triple talaq is instant and irrevocable. It is obvious that any
attempt at reconciliation between the husband and wife by two arbiters from their
families, which is essential to save the marital tie, cannot ever take place. The
marital tie can be broken capriciously and whimsically by a Muslim man without
any attempt at reconciliation so as to save it.

Such talaq is against the spirit of the Qur’an. Therefore, even many Islamic countries
such as Algeria, Egypt. Iraq, Kuwait, Lebanon, Jordan, Libya, UAE treat a triple
talaq as talaq ahsan. This shows that it is an arbitrary practice which is not an
essential religious practice.

Therefore the Court did not find any hesitation in declaring the practice violative of
the fundamental rights contained in Art.s 14, 15, 21 and 25 of the Constitution of
India. Therefore, the Court, on 22nd August, 2017, in a majority judgement of 3:2, set
aside the practice of talaq-ul-biddat (three pronouncements of talaq, at one and the
same time) practised by certain Muslim husbands to divorce their wives.

The Court struck down the Shariat Act, 1937 as void insofar as it seeks to recognize
and enforce triple talaq, as the same was, within the meaning of the expression “laws
in force” under Art. 13(1).
146 8. Divorce (Talaq)

This judgement gave a boost to liberate Indian Muslim women from the age-old
practice of capricious and whimsical method of divorce, by some Muslim men,
leaving no room for reconciliation.

In spite of the Supreme Court setting aside talaq-ul-biddat, and the assurance of
AIMPLB, there were reports of divorce by way of talaq-ul-biddat from different parts
of the country. It was seen that setting aside talaq-ul-biddat by the Supreme Court
had not worked as any deterrent in bringing down the number of divorces by this
practice among certain Muslims. It was, therefore, felt that there was a need for
legislative action to give effect to the order of the Supreme Court and to redress
the grievances of victims of illegal divorce.

In order to prevent the continued harassment being meted out to the hapless
married Muslim women due to talaq-ul-biddat, a Bill viz., Muslim Women
(Protection of Rights on Marriage) Bill, 2017 was introduced in the Parliament. The
Bill proposed to declare pronouncement of talaq-ul-biddat by Muslim husbands
void and illegal in view of the Supreme Court verdict. Further, pronouncing talaq-
ul-biddat was criminalised. This was essential to prevent this form of divorce,
wherein the wife does not have any say in severing the marital relationship. It was
also proposed to provide for matters such as subsistence allowance from the
husband for the livelihood and daily supporting needs of the wife, in the event of
husband pronouncing talaq-ul-biddat, and, also of the dependent children. The
wife would also be entitled to custody of minor children.

The Bill was passed in 2019 and was brought into force with retrospective effect
from 19th September 2018.

The Muslim Women (Protection of Rights on Marriage) Act, 2019

S. 2(c) defines talaq as talaq-e-biddat or any other similar form of talaq having the
effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

Chapter II of the Act declares talaq as void and illegal, and prescribes punishment.

Sec. 3 of the Act declares that talaq to be void and illegal. According to sec. 3, any
pronouncement of talaq by a Muslim husband upon his wife, by words, either
spoken or written or in electronic form or in any other manner whatsoever, shall
be void and illegal.

Sec. 4 prescribes punishment for pronouncing talaq. Any Muslim husband who
pronounces referred to in section 3 upon his wife shall be punished with
imprisonment for a term which may extend to three years and shall also be liable
for fine.
 Talaq 147

The offence under sec. 4 is made cognizable by sec. 7(1) if information relating to
the commission of the offence is given to an officer in charge of a police station by
the married woman upon whom talaq is pronounced or any person related to her
by blood or marriage.

The offence is a non-bailable one. Sec. 7(c) provides that no person accused of an
offence under sec. 4 shall be released on bail unless the Magistrate, on an
application filed by the accused, and after hearing the married Muslim woman
upon whom talaq is pronounced, is satisfied that there are reasonable grounds for
granting bail to such a person.

Sec. 7(b) makes the offence compoundable. An offence under sec. 4 shall be
compoundable, at the instance of the married woman upon whom talaq has been
pronounced with the permission of the Magistrate, on such terms and conditions
as he may determine.

Chapter III seeks to protect the rights of married Muslim women.

Sec. 5 makes provision for subsistence allowance. Without prejudice to the

generality of the provisions contained in any other law for the time being in force,
a married Muslim woman upon whom talaq is pronounced, shall be entitled to
receive from her husband such amount of subsistence allowance for her and
dependent children as may be determined by the Magistrate.

Section 6 deals with the custody of the children. Notwithstanding anything

contained in any other law for the time being in force, a married Muslim woman
shall be entitled to custody of her minor children in the event of pronouncement of
talaq by her husband, in such manner as may be determined by the Magistrate.

CHANGE IN SCHOOL OR SUB-SCHOOL

Talaq pronounced without any intention, by mistake, fraud or under compulsion

etc. are valid under the Hanafi Law. But under Shafei, Maliki sub-schools of Sunni
School and under Shia School, such talaq is invalid.

If such talaq is talaq-i-rajai, it may be revoked by the husband later. But in many
cases it is talaq-i-bain and is irrevocable from the moment it is pronounced. The
parties cannot marry without nikah halala in such cases. This works hard on such
couples, especially on innocent wives.

There is a way out in such circumstances. Suppose a Hanafi, under the influence
of threats and strong coercion, pronounces a talaq against his wife. Or he does so
unintentionally, inadvertently or under mistake.
148 8. Divorce (Talaq)

On recovering his freedom of action, or realising his mistake disavows the validity
of his act, and places himself under the Shafei rules to escape from the results of
the talaq, there can be little doubt that he would be justified in doing so, and the
talaq he had pronounced would be invalidated.

Several cases (similar to Anisa Khatoon) have occurred in India in which a

husband and wife, after being definitively divorced from each other, have resumed
cohabitation without submitting themselves to the orthodox requirements, but
these do not appear to have been brought before a court of justice.

If the validity of this cohabitation were judged by the Sunni Law, it would be
difficult to pronounce it lawful.

If, after the resumption of intercourse, the parties, in order to escape the ban
which the Sunni Law imposes on the connection, were to declare that they
followed the Shia doctrines, and the husband were to state that at the time of
pronouncing the talaq he had no intention of dissolving the matrimonial tie
irrevocably, then the cohabitation would be legal.

LEGAL EFFECTS OF TALAQ

In the consideration of the question of talaq, it is necessary to bear in mind the

difference as to the legal effects which arise from the form in which the formulae
are pronounced.

Talaq in view of the legal consequences arising from it, is either bain (complete or
irreversible) or rajai (incomplete or reversible). Talaq-i-bain involves a definitive
dissolution of marriage, without reservation of the power of retraction. In the
talaq-i-rajai the husband has the option of resuming cohabitation with his wife.

A talaq-i-bain takes effect immediately after the formula are pronounced, under the
following circumstances:

1. when there has been no cohabitation;

2. when there is inability, by reason of tenderness of age on the part of the wife, or
from old age, to cohabitation;

3. when the parties have dissolved the tie by mutual agreement.

The retraction or recantation in the case of talaq-i-rajai is called rajat.

If the rajat is effected by words, the testimony of witnesses is admissible in

evidence; if by act, the wife is to be believed on her affirmation.
 Talaq 149

Every talaq-i-rajai becomes a talaq-i-bain, after the expiration of a certain period,

viz., three months, during which the parties evince no intention of resuming
cohabitation.

In both kinds of talaq, both among the Sunnis and the Shias, it is necessary that
at the time of the repudiation there should exist a valid marriage between the
parties.

With the Shias, it is further necessary that it should be a permanent contract of

marriage (nikah-i-daim).

TALAQ-UL-MARIZ (REPUDIATION BY THE SICK)

In many cases it might happen that the husband, lying in extremis, or suffering
from a disease which eventually caused his death (terminal illness – marz-ul-
maut), wants to exercise the power of talaq, with a view of preventing his wife from
succeeding to his estate.

Marz-ul-Maut (Death-bed Illness)

It is difficult to define with exactness the term marz-ul-maut. Some lawyers

consider it as an illness which causes death within a year, while others think it to
mean an illness which incapacitates an individual from performing the ordinary
avocations of life or from standing up for prayers.

Neither of these definitions, however, seems entirely to cover the sense which is
apparently intended to be conveyed by the words, though the Shia jurists evidently
adopted the first meaning.

In some cases the disease does not terminate fatally within a year, but the mind is
paralysed and the sufferer is unable to exercise his mental faculties. In other cases
the illness does not affect the mind and the individual is able, more or less, to
pursue his ordinary avocations.

The view adopted by the Fatawa-i-Alamgiri and the Jama-ush-Shattat seems to be

most consistent with correct reasoning, viz. that any illness which, in the ordinary
course of nature, causes death, or leads to a fatal result within the space of a year,
is marz-ul-maut.

In order to obviate the mischief which might result from this unjust exercise of the
power of talaq, certain rules are laid down for such cases, which require careful
attention, as they mark a broad distinction between the Shia and the Sunni
schools.
150 8. Divorce (Talaq)

Sunni Law

A man may divorce his wife at any time, with or without assigning any reason.
Therefore, a man may validly pronounce talaq even on deathbed, though it may be
unethical.

When a man in extremis pronounces a talaq and dies before the expiry of his wife’s
iddat, she is entitled to take her share in his estate. But if he dies after the
expiration of the iddat her right of inheritance is lost.

If the talaq is bain, and he recovers, but afterwards has a relapse and dies within
the term of the wife’s iddat, she would not inherit from him. If, however, the talaq
has been only rajai and not bain, she would retain her right of succession.

Shia Law

Under Shia Law also talaq during marz-ul-maut is valid.

Wife has a right to inherit from him if he should die any time within a year from
the date of the talaq, whether it was reversible or definitive (rajai or bain), provided
that in the meantime the woman did not marry any other person.

If during this period, when the law by its own operation, preserves her right of
inheritance, she contracted a second marriage, the right of succession to her first
husband would be lost.

Similarly, the woman would have no right to take a share in the estate of the
repudiator if he should recover from the illness from which he was suffering when
he pronounced talaq, falls sick again and then dies, unless the recovery, the
relapse, and death all occur within the term of the woman’s iddat.

If a person in extremis divorces his wife under a reversible or rajai talaq, and she
predeceases him, before the expiration of her own iddat, he would inherit from
her.

But if the talaq were bain, or if he dies after the iddat, his heirs would have no
right of inheritance on the ground of his right.
 Talaq 151

SUNNI AND SHIA LAWS OF TALAQ COMPARED

1. Sunni Law recognises oral as well as written talaq. Shia Law recognises only
oral talaq unless the man cannot speak.

2. Sunni Law recognises talaq in any language, Shia Law requires talaq to be
pronounced in Arabic.

3. Talaq does not require any particular formula in Sunni Law, while there are two
particular sigheh (formulas) only which should be used to pronounce talaq
under Shia Law.

4. Under the Sunni Law intention to divorce is not necessary, while intention is an
essential requirement under the Shia Law.

5. Under Sunni Law, talaq may be involuntary. Under Shia Law talaq has to be
voluntary and talaq under compulsion is not recognised.

6. Under Sunni Law witnesses are not necessary for talaq, under Shia law two
witnesses are mandatory for talaq.

7. Sunni Law recognises both talaq-ul-Sunnat as well as talaq-ul-biddat, while Shia

Law recognises only talaq-ul-Sunnat.

DELEGATION (TAFWEEZ) OF POWER TO DIVORCE

Both schools allow the husband to delegate his power of repudiation to a third
person, or to the wife herself. The delegation of option by the husband to his wife
confers on her the power of divorcing herself.

An agreement made either before or after the marriage providing that the wife
would be at liberty to divorce herself from her husband (talaq-e-tafweez) under
certain specified conditions such as if the husband married another woman, or
fails to maintain her for more than a specified period, is valid if three conditions
are satisfied:

1. the option is not absolute;

2. the conditions are reasonable; and

3. the conditions are not opposed to the public policy.

152 8. Divorce (Talaq)

Mohd. Khan vs. Mst. Shahmali

The husband agreed to be khana damad (to live in wife’s parents’ house), and to pay
a certain specified sum of money to wife if he left the wife’s parents’ house. It was
also agreed that default of the above conditions would operate as divorce between the
parties.

It was held that there was nothing in the conditions which may be said to be
unconscionable or opposed to the public policy. Therefore, the breach of the
conditions would operate as divorce between husband and wife.

If this right is restricted to the precise place or situation in which she receives the
power, falls to the ground on her removal from there.

If the delegation be accepted by the wife and the right is exercised, it would take
effect as an irreversible divorce under the Hanafi law.

In Mirjan Ali vs. Maimuna Bibi, it has been held that mere happening of the
contingency is not sufficient. The following two facts must pleaded and proved:

1. that the events entitling her to exercise her option have occurred; and

2. that she actually exercised her option.

Intention (kasd) on the part of the husband is requisite to constitute a delegation.

It should be noted that the wife does not divorce her husband. Wife cannot divorce
husband under Mahomedan Law. She only acts as the agent of her husband. By
so acting she divorced herself on behalf of her husband. Act of agent is act of
principal, and therefore, talaq is still deemed to be pronounced by husband.

Further, by delegating the power to wife, husband does not lose his right to
divorce his wife by pronouncing talaq.

Manjila Bibi vs. Noor Hossain

Husband delegated the power to pronounce talaq to wife and the same was entered
in kabinnama. When she was ill-treated by her husband, she exercised her power
and pronounced talaq in the presence of the Muslim Marriage Registrar.

Husband refused to pay maintenance and dower to her in a suit under sec. 3 of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, on the ground that the
marriage is not dissolved.

The Court held that the power which primarily belonged to the husband was
delegated to the wife and she has exercised the same. There is nothing in that which
is opposed to Mahomedan Law. The effect is same as divorce by husband, and
hence, the marriage cannot be said to be subsisting.
 Delegation (Tafweez) of Power to Divorce 153

According to Ameer Ali there are 3 kinds of tafweez:

1. Ikhtiar – giving wife authority to talaq herself;

2. Amr Bayed – leaving the matter in her own hand;

3. Mashiat – giving her option to do whatever she likes.

KHULA (RELEASE)
When a divorce takes place at the instance of the wife, owing to her aversion to the
husband, or her unwillingness to fulfil the conjugal duties, she has to give up to
her husband, either her settled dower, or some other property, in order to obtain a
discharge from the matrimonial tie. Such a divorce is consequently called khula.

When a divorce is effected by mutual consent on account of mutual aversion, it is

called mubarat, which operates as a release and discharge on both sides.

The Sunnis place mubarat under the head of khula, but the Shias regard it as a
distinct proceeding.

Both of these modes of divorce are irrevocable.

Khula means redemption or to lay down. It is laying down by a husband of his

right and authority over his wife.

Mst. Balaquis Ikram vs. Najmal Ikram

It was held that a wife in Islam is entitled to khula as of right is she satisfies the
conscience of the court that it will otherwise amount to forcing her into a hateful union.

In Moonshee Buzlu-ul-Raheem vs. Lateefutoonissa, the Court defined khula as

a divorce with the consent and at the instance of the wife, in which she gives or
agrees to give a consideration to the husband for her release from the marriage tie.

Khula signifies an arrangement entered into for the purpose of dissolving a marital
relation in lieu of compensation paid by the wife to her husband out of her
property. Thus, khula in fact is a divorce purchased by the wife from her husband.

If a husband grants khula to his wife, while their dispositions and tempers are still
in harmony, it would not be valid.

In case of habitual discord between husband wife, an attempt is made to effect a

reconciliation between them. Under different Schools and in different countries
different modes are adopted to effect such reconciliation.
154 8. Divorce (Talaq)

ESSENTIALS OF KHULA

Under Sunni Law the following are the essentials of khula

1. The parties must be baligh (adult) and akil (sane).

2. There must be an offer from the wife;

3. Wife must offer consideration (evaz) for the release; and

4. The offer must be accepted by the husband.

It may be observed, therefore, that mutual consent alone suffices under the Sunni
law to effect a khula. Intention is not necessary or essential to khua, the mere
mention of a compensation being sufficient in law.

As in case of talaq in case of khula also, Sunni Law does not insist for any
particular form or words.

Under the Shia law, the four conditions necessary for the effectuation of a valid
talaq are also requisite for the performance of khula.

The husband

1. must be baligh (adult);

2. must be akil (sane);

3. must be mukhtar (master of his own actions, or free agent); and

4. should have kasd (intention).

According to the Shia law, a khula, in order to be valid, must be absolute and
unconditional.

“To effect a valid khula” says the Sharaya, “the man must be adult in age, sane,
free in choice, and it must be granted intentionally. No khula is valid if granted by
a boy under puberty, with or without the permission of his guardian, or by one
acting under compulsion, undue influence, or fraudulent representations.”

A khula is invalid under the Shia Law when the grantor is in a state of
intoxication, or deprived of self-control through a fit of anger.

The committee or guardian of a non compos mentis may, however, enter into an
agreement with the wife to dissolve the marriage contract on her abandoning the
dower.

With reference to the woman herself, the same conditions are necessary as in the
case of a talaq.
 Khula (Release) 155

In khula also, the Shias insist on the observance of particular forms. The sighae
(formulae) are required to be express in their significance, and unconditional in
their character.

The words must be pronounced in the Arabic language (when there is ability to
pronounce that language).

If any condition be attached to the proceeding, it falls to the ground.

After the expiration of the iddat, a khula takes effect as an irrevocable divorce.

A khula, like the talaq, requires, under the Shia law, the presence of two witnesses
of irreproachable character.

CONSIDERATION IN KHULA

The stipulation of a consideration is a necessary condition to the validity of a

khula.

The compensation which the wife, in a proceeding of khula, makes to the husband
is a means to an end, i.e., the dissolution of the marriage tie by obtaining his
consent.

Consent given by the husband to a separation for a consideration of the wife

abandoning the dower, or paying him a certain sum, or making over to him any
property, does not entitle him to cancel the khula on her failing to fulfil the
contract.

But he may either sue her for the amount she agreed to pay him, or set off the
same against any claim she may advance against him.

Stipulation to Pay Property of Others

If the woman gives in compensation something over which she has no right, the
khula, under the Sunni Law, is not obligatory on the husband. Which means that
there is a failure of consideration, as wife is unable to deliver the stipulated
property to the husband. Khula is, therefore, not binding on the husband. At his
discretion, the marriage may or may not be terminated.

Under Shia Law, if the wife gives in compensation something over which she has
no right, the khula is valid, and the husband would be entitled to recover from his
wife the value of the specific article which she had stipulated for.
156 8. Divorce (Talaq)

Subject of Consideration for Khula

As a general rule everything which may be given in dower may serve as a

compensation for khula. Further, there is no limit to the same either in amount or
quantity.

According to Sharaya, “Anything that can validly be a dower, can validly be a

consideration, whether it be a thing in existence or not.”

The Sunni jurisconsults, in their desire to afford the wife every facility for escaping
from an irksome matrimonial tie, have prescribed the certain rules on the subject
of compensation for khula.

1. When a khula has been entered into, or has been granted in consideration of
payment by the wife of things that are haram, or unlawful under the Islamic
Law, such as wine, pork, etc., the khula is valid, but the stipulation is void.

When the husband, knowing that the articles were haram, agrees to accept
them as consideration, he cannot be supposed to have any intention to receive
the exchange, and hence is debarred from claiming them.

The same rule is applicable the wife agrees to give in consideration stolen
property, known by the husband to be stolen.

Under the Shia law, if the consideration consist of things which are haram in
Islam, the khula is valid, giving rise to the presumption of a divorce without
consideration, if the sigheh (formula) of divorce or talaq has been pronounced.
But, if the sigheh has not been pronounced, the divorce would be void.

2. A khula may be entered into, under the Sunni Law, for things of an
indeterminate value, such as the young of an animal not yet born.

But under Shia Law, in such a case, khula is void.

3. The personal engagement of the wife to provide her own maintenance during her
pregnancy, to renounce her right of hizanat over her children, etc., may,
according to all the schools, form the subject of consideration for khula.

An engagement by the wife to nourish the child must be for more than two
years. If she agrees to suckle it for two years or less, it would be no sufficient
indemnity, as she is bound by law to suckle it for two years.
 Khula (Release) 157

Who May Arrange Khula and Pay Consideration?

The parties who may validly arrange a khula, and agree to pay the consideration
required are

1. In the first place, the woman herself;

2. in the second,

(a) her relations,

(b) her friends, and

(c) even strangers

if authorised by her,

may demand a khula and enter into a composition with the husband. “Any person
may,” says the Fatuwa-i-Alamgiri, “if especially authorised by an adult woman,
enter into an agreement with the husband on her behalf.”

As a general rule, all women who may contract a valid marriage may initiate the
proceeding of khula or mubarat. This rule is subject to several exceptions.

According to the Malikis and the Shafeis, an adult female has a personal right,
and she alone can give consent to give the compensation required, though she
cannot consent to her marriage or contract a valid marriage without the consent of
her guardian or wali.

A father may enter into an arrangement of khula on behalf of his daughter who is
a sarira (a minor) and on whom he has imposed the status of marriage. As she is
subject to the patria potestas, the father can consent to a khula on her behalf and
abandon a portion of her dower to obtain a dissolution of the contract.

A sarira herself cannot legally enter into a khula, although the arrangement into
which she enters is not necessarily, as far as the actual separation is concerned,
invalid.

When a minor wife has agreed to a separation, on condition of abandoning her

dower or of paying a compensation, the separation is valid. But the stipulation as
to the dower or compensation is null and void. If she has made any payment it
must be restored to her.

In the same way, the father of a boy who is a sarir (a minor) can consent to the
khula on behalf of his son. The wasi, or the father’s executor, can consent only
when the powers of the father of the family are vested in him.
158 8. Divorce (Talaq)

Hanafi Law accords to all adult women the exclusive right of entering into a khula.
It makes no distinction between a woman who has intellect and one who has not.

As regards a sarira, law authorises the father or his executor to enter into a khula
on her behalf.

If a father enters into a khula on behalf of his minor daughter for a certain
compensation, engaging to hold himself personally responsible for its due
payment, such khula is valid.

But if the farther were to stipulate that it would be paid by her, then when she
arrives at majority, has liberty to accept or refuse the arrangement.

According to the Hadis, a khula is dependent on the ratification of the woman.

A father may, with the consent or authority of his grown-up daughter, enter into a
khula for her, agreeing to abandon on her behalf the dower settled on her.

If a khula is arranged without her consent at the time, or subsequent sanction,

and if the father has not become security for the compensation agreed upon, the
transaction is not valid, and the khula is without effect.

Where the father has guaranteed the payment of the consideration on his personal
responsibility, then, unless the daughter subsequently ratifies what he has done,
and takes the payment upon herself, she is entitled to proceed against her
husband for her dower, and he has a right against the father.

A woman may authorise a wakil or an agent to enter into a khula with her
husband. If the wakil exceeds his authority the khula would be valid and the
woman would be liable only for the sum which she authorised her agent to offer.

For example, if the wife authorises the agent for five hundred Dirhams and he
enters into a composition for one thousand Dirhams, the khula is valid and the
wife is liable only for five hundred Dirhams.

Under Shia law, if the wife be a minor, and her guardian enters into an
arrangement with her husband and obtain for her a khula, it would not be valid,
though it would be valid under the Hanafi Law.

A khula obtained by the guardian of a woman or by her father without her

authority is valid as a reversible divorce, but she is not bound to deliver the dower
to her husband, unless she herself has authorised the persons who obtained the
divorce to act for her.
 Khula (Release) 159

If she authorised them to act on her behalf, their powers would be limited within
the scope of their authority. But if they acted beyond their authority and the
husband granted the khula, neither they nor the wife would be bound to pay him
back the dower.

The husband has no right to proceed against a wakil (agent) or the father, when
the wakil has exceeded his authority, or the father has acted without express
authorisation from his daughter. In either case her right to dower remains intact,
and the khula takes effect only as a single talaq with option of revocation on the
part of the husband.

When a woman appoints an agent to enter into a khula on her behalf without
expressly defining his authority, the consideration must not exceed her mahr-i-
misl (customary dower).

If a sum in excess of the amount of the dower is agreed upon, it is void, and the
separation takes effect as a talaq-i- rajai, without the agent being held responsible.
If the consideration has been unlawfully received by the husband, he is bound to
restore it.

Legality of Consideration

A consideration is unlawful, where

1. the marriage is liable to be annulled for initial illegality;

2. the marriage is annulled, in exercise of the right of option possessed by the wife;

3. the husband has taken the initiative, and given her a talaq; and

4. the wife has the right of demanding a separation from a court of justice.

When a khula has been entered into, and the terms of consideration settled, any
addition made to the consideration is void.

KHULA UNDER THREAT OR COMPULSION

Khula, taken by a woman under the influence of threats operates as an irrevocable
separation under Sunni Law.

When a wife admits obtaining a khula from her husband on condition of paying an
indemnity, but alleges that she was forced to do so by her husband, the onus of
proving the allegations of coercion would rest on her.
160 8. Divorce (Talaq)

Under the Shia Law, when a man forces his wife to a composition with him for a
khula, the separation takes effect only as a reversible divorce without any
obligation on wife’s part to pay the compensation. The husband may revoke it at
any time. The burden of proving use of force by husband is on the wife.

CONDITIONAL KHULA

According to the Sunni Law, the consent to a khula, may be absolute or

conditional. When it is simple and unconditional, it produces the effect of a
complete and irrevocable separation like a talaq-i-bain. When the consent is
conditional, the separation does not take place until the condition is fulfilled.

The consent to a khula, according to the Shia Law, may be absolute and
unconditional.

KHULA DURING MARZ-UL-MAUT

The husband, who is suffering from marz-ul-maut may give a valid consent. But as
in the case of a talaq pronounced in extremis, so also in that of a khula given
under similar circumstances, the wife would not be divested absolutely of her
heritable rights.

A woman can, while suffering from marz-ul-maut, enter into a khula. But, as in
such cases, there is a possibility of undue influence being exercised over her, the
law declares that when a woman dies from an illness during which she has
entered into a khula, any gift made by her in consideration of the khula shall be
restored to her heirs.

DISPUTE AS TO KHULA

When a wife sues her husband for her dower, alleging that he has given her a
talaq, and the husband in defence pleads that the wife entered into a khula,
thereby abandoning her dower, the dispute should be resolved on the basis of
evidence.

If wife succeeds in proving talaq, she is not only entitled to dower, but also to
maintenance during the period of iddat.

If the husband successfully proves khula, wife is neither entitled to recover dower
from him nor for maintenance.
 Khula (Release) 161

But where neither succeeds in proving his or her case, the Fatawas say, “the word
is hers as to the dower, and his as to the maintenance".

In other words, she would be believed as far as her contention is concerned that
she did not abandon the dower, but the husband would not be bound to provide
her maintenance during the iddat.

RECLAIM OF THE CONSIDERATION BY WOMAN

Under Shia Law the woman is entitled at any time before the iddat to reclaim the
consideration, when the khula would change its nature and become a talaq-i-rajai.

MUBARAT
When a divorce is effected by mutual consent on account of mutual aversion, it is
called mubarat, which operates as a release and discharge on both sides.

In mubrat aversion is mutual and both husband and wife want to dissolve the
marital tie and separate. Therefore, either of the spouses may make a proposal
and the other spouse will have to accept the same. Once accepted it amounts to
irrevocable divorce (talaq-i-bain).

Under Sunni Law, when both the parties enter into a mubarat, all matrimonial
rights which they possess against each other fall to the ground.

The same conditions as in the case of khula or talaq are required for the validity of
a mubarat.

Under Shia Law, it is necessary that both parties should, bond fide, find the
matrimonial relationship irksome in order to justify their entering into a mubarat.
If there be no mutual aversion, the mubarat would be invalid.

Under Shia Law, in mubarat also, the sigheh (formula) must be pronounced
expressly in Arabic Language. The sigheh of mubarat is, “I have discharged you
from the obligations of marriage for (such sum) and you are separated (from me).”

If the husband were simply to say “you are separated (from me), without using the
words “I have discharged you from the obligations of marriage for (such a sum)”,
the entire proceeding would be invalid.

But if he simply say anti taliqun, without using the expression about the
discharge, it would take effect as a talaq and he would be liable for the dower.
162 8. Divorce (Talaq)

When there is inability to use the Arabic language or when the parties are not
conversant with the legal technicalities, attention must be paid to their intention.

If it is clearly evident from their conduct and their words that ‘‘a mutual release” is
intended, it would take effect as such, though the exact expressions may not have
been used.

DISTINCTION BETWEEN KHULA AND MUBARAT

1. Khula is a ‘redemption’ of contract of marriage, while while mubarat is the

mutual release of parties from the marriage tie.

2. In khula, aversion is on the part of the wife, while in mubarat there is mutual
aversion.

3. In khula wife makes the proposal and husband accepts it, while in mubarat
either party may make proposal and the other may accept it.

4. In khula consideration passes from wife to husband, in mubarat question of

consideration does not arise.

LEGAL EFFECT OF KHULA AND MUBARAT

Under Hanafi sub-School of Sunni School and Ismailya sub-School of Shia School,
the dissolution of marriage on khula and mubarat has the same effect as a single
talaq after it has become irrevocable (talaq-i-bain).

Under Sunni Law as well as under Shia Law, once khula is effected, husband has
no power to revoke it. But, the wife under Shia Law may, during the period of
iddat has the option of reclaiming the consideration, in which case the divorce
becomes revocable (talaq-i-rajai) and the husband gets an option to revoke it.

DISSOLUTION OF MARRIAGE BY DECREE OF A COURT

When the spouses have no tangible cause of complaint against each other, but a
mutual aversion due to incompatibility of temper, want of sympathy etc., they may
dissolve the marriage tie by mutual agreement.

When the husband is guilty of conduct which makes the matrimonial life
intolerable to her; when he neglects to perform the duties which the law imposes
on him as obligations resulting from marriage; or when he fails to fulfil the
 Dissolution of Marriage by Decree of a Court 163

engagements voluntarily entered into at the time of the matrimonial contract, wife
has the right of making a complaint to the Kazi or Hakim-i-Shara and demanding a
divorce by authority of justice.

The Kazi or Hakim-i-Shara has the power of granting a divorce not only for
habitual illtreatment, for non-fulfilment of ante nuptial engagements, for insanity,
but also for incurable impotency existing prior to marriage.

The power of the Kazi (Court) to pronounce divorce is based on the express words
of the Prophet, “If a woman be prejudiced by a marriage, let it be broken off.”

Failure to provide maintenance to wife is one of the important grounds for judicial
divorce. This cause entitles a wife to claim a divorce, even where it appears that it
was resorted to, with the object of forcing her to enter into khula. Mere inability to
provide maintenance is not a sufficient ground for asking for a divorce.

The following are the traditional grounds of divorce by the order of Kazi or Hakim:

1. Zihar (Injurious Assimilation or Unlawful Comparison);

2. Ila (Vow of Abstinence or Vow of Continence);

3. Lian or Laan (Imprecation or False Charge of Adultery);

Earlier the order of divorce was passed by Kazi or Hakim. Even today in some of
the Islamic countries there are Kazi’s mahkama or Courts. In countries like India,
Courts discharge the functions of Kazi or Hakim.

Further In India, judicial divorce is governed by the Dissolution of Muslim

Marriages Act, 1939. This Act provides for eight specific grounds of divorce at the
instance of a woman, while it also recognises and gives effect to the traditional
grounds such as khula, mubarat, zihar, ila and lian.

ZIHAR (INJURIOUS ASSIMILATION OR UNLAWFUL COMPARISON)

The Mahomedan Law expressly forbids the use of “injurious assimilations,” or vile
expressions of any kind towards the wife.

If a husband compares his wife to his mother or sister, or any other female
relation within the prohibited degrees, expiation would become incumbent on him
only if the comparison or assimilation was intended disrespectfully. If the
comparison is made to show appreciation or respect to the wife, then it does not
amount to zihar and expiation is not necessary.
164 8. Divorce (Talaq)

A habitual use of language of the character above described is considered as an

outrage on public morals and the decency of married life.

A husband making use of such expressions renders himself liable to expiation and
wife may refuse to cohabit with him until he as undergone expiation. The usual
expiation for the sin of vile language used towards the wife, consisted in
enfranchising a slave, or feeding the poor, or fasting for two months.

INGREDIENTS OF ZIHAR

The following are the requirements of zihar:

1. The husband must be akil (person of sound mind) and baligh (adult).

2. He compares his wife to his mother or any other female relations within
prohibited degrees.

3. The wife gets the following options:

(a) to refuse to cohabit with him till he has expiated himself from penance
prescribed by law, such as,

(i) freeing a slave;

(ii) fasting for two months; or

(iii) feeding sixty poor persons.

(b) to apply to the competent Court for an order requiring him either to perform
penance or to pass as decree of divorce in her favour.

Under Shia law two witnesses are necessary when zihar was pronounced.

LEGAL EFFECTS OF ZIHAR

Zihar, ipso facto, does not dissolve the marriage. Husband, therefore, does not lose
his right to restitution of conjugal rights, even though he has not undergone the
penance.

A woman, therefore, to whom any expression of an immoral character has been

used has the option, under the Sunni law, of asking for a dissolution of the
marriage tie by an order of the Kazi (Court), unless the husband formally expiates
the sin in the way pointed out.
 Zihar (Injurious Assimilation or Unlawful Comparison) 165

Under the Shia law, the Court does not have the power of dissolving the
matrimonial relationship on the ground of the wife having been disrespectfully and
vilely compared by the husband to a female relative of his within the prohibited
degree.

According to Sharaya, if a vile expression (zihar) is used towards a wife, she may
choose either to submit to it, in which case no other person has a right to object to
her doing so, or she may bring the matter before the Court.

When she adopts the latter course, the husband must be allowed to choose,
whether he will make an expiation or separate from his wife, and three months is
to be allowed him to make up his mind.

The Court, however, has no power to compel him to divorce the wife, or to grant a
dissolution by a decree, if the husband allows the time to expire without doing
either of these things.

Muta marriage which admits no other forms of divorce may be dissolved by zihar.

As observed by Ameer Ali, all these rules have now only a historical interest, as
throwing considerable light on the manners and customs of the Arabs in the time
of Mohammed. The term zihar is as unknown in Mussalman society, now-a-days,
as it is among foreigners.

It must not be supposed, therefore, that because there exist directions in legal
treatises against the use of injurious expressions towards a wife, such expressions
are habitual among Moslems.

ILA (VOW OF ABSTINENCE OR VOW OF CONTINENCE)

Where a husband, who has attained puberty and is of sound mind, swears by God
that he will not have cohabitation with his wife for a period of four months and
leaves her to observe iddat, he is said to make ila.

Like Zihar, the custom of ila, or the vow of abstinence which was in vogue, as well
among the pre-Islamic Arabs as among the Hebrews and Christians settled in
Arabia, has fallen into complete desuetude.

But as reference is made to it in works of Mahomedan Law, attention may has to

be drawn to the subject.
166 8. Divorce (Talaq)

Prior to the Islamic legislation, a vow of continence made by a husband, and kept
inviolate by him for a certain length of time, took effect as an absolute repudiation.
The wife had no voice in the matter. Custom recognised no right on her part to
question her husband’s option to divorce her in this manner. The Prophet
stigmatised this custom as a gross outrage on the wife.

INGREDIENTS OF ILA

The following are the necessary ingredients of ila:

1. The husband must be akil (sane) and baligh (adult);

2. He swears by God or takes a vow;

3. The vow must be that he will not cohabit with his wife;

4. In pursuance of the vow he must abstain from cohabiting with his wife for a
period of four months or more.

As in the case of zihar, a husband who took such a vow laid himself open to the
penalty of expiation, if he resumed cohabitation in the interval and before the
expiration of the term of the vow.

The term of ila is four months. A vow for less than this space of term is of no effect
in the eye of the law. If the ila is kept inviolate for four months, the Hanafi law
presumes that the husband has no intention of resuming cohabitation, and
attaches to the vow the effect of an irrevocable and complete separation. The
husband loses, after the lapse of this period, all conjugal rights over the wife.

If the husband desire to resume cohabitation, wife, on her side, becomes entitled,
to claim a dissolution of the marriage by an order of the Kazi (Court), who can
make an order dissolving the marriage.

Under the Shia law, an ila kept inviolate for four months takes effect only as a
reversible or rajai separation. The parties are at liberty to resume cohabitation
whenever they like.

Nor has the Hakim-i-Shara, among the Shias, the power which the Kazis possess
among the Hanafis. He has no power to compel the husband to divorce the wife, or
to dissolve her marriage by a decision of his mahkama (court). But when the man
is recusant and refuses restitution of conjugal rights as well as a separation, and
thus seriously prejudices her interests, the Hakim has the power of imprisoning
and straitening him, until he either returns to her or grants her a divorce.
 Ila (Vow of Abstinence or Vow of Continence) 167

CANCELLATION OF ILA

Ila may be cancelled by the husband,

1. a verbal retraction thereof;

2. by resuming cohabitation within the prescribed period of four months.

LIAN OR LAAN (IMPRECATION, FALSE CHARGE OF ADULTERY)

Where a husband falsely charges his wife of adultery, the wife may sue the
husband and obtain divorce in a regular suit for dissolution of marriage.

Wife has to institute a suit for divorce, and a mere application to the Court is not a
proper procedure.

Zafar Husain vs. Ummat-ur- Rahman

It was argued before the Allahabad High Court that this form of divorce is obsolete
and Indian Courts cannot pass a decree for divorce by lian. The Court rejected the
contention and held that the functions of Kazi are now discharged by Courts, and
Courts have power to grant a decree of divorce by lian.

INGREDIENTS OF LIAN

1. Husband must be akil (sane) and baligh (adult).

2. Wife must also be akil (sane) and baligh (adult).

3. Husband charges wife of adultery or denies paternity of her child.

4. The charge must be false.

If the charge is true, wife is not entitled to the decree.

5. The marriage must be sahih (valid).

The marriage may not be fasid (irregular) or batil (void).

If all the above ingredients are satisfied, it is a ground to move to the Court for
divorce.
168 8. Divorce (Talaq)

Thus, a false charge of adultery does not, ipso facto, dissolve the marriage.
However, it is a ground for divorce. The wife has to institute a suit for dissolution
of marriage.

It is observed by some authors that lian has become obsolete, especially in non-
Islamic countries like India. But this not true. In Nurjahan Bibi vs. Mohd. Kazim
Ali, Calcutta High Court held that lian has not become obsolete in India, and a
Muslim wife may bring a suit for divorce against her husband has falsely charged
her with adultery.

RETRACTION OF CHARGE OF LIAN

Mahomedan Law permits the Husband to retract (withdraw) the charge. This is
based on the public policy that matrimonial homes should not be lightly broken.

The following conditions must be satisfied for valid retraction:

1. Husband must admit that he made a charge of adultery against his wife;

2. He must also admit that that charge was false.

3. The admission must be unconditional.

4. He must retract the charge before the end of trial.

5. The retraction must be bona fide and not to defeat the suit by the wife.

All the schools are agreed in the opinion that a proceeding by imprecation can be
validly effected only before the Kazi or Hakim, and that until he has made his
order dissolving the marriage it continues intact.

Under the Shafei, the Maliki, and the Shia Laws, parties separated by an order of
the Court in a proceeding by imprecation are perpetually prohibited to each other,
i.e., they are debarred from remarrying.

Under the Hanafi law, however, they can contract a remarriage in the following
circumstances:

1. The husband retracts the accusation and undergoes the punishment for
slander.

2. It is found subsequently that, at the time of the proceeding, one or the other of
the two parties was labouring under some legal disability which would have
invalidated the lian.

3. Either of them should apostatise and then return to Islam.

 Cancellation of Marriage by Fask 169

CANCELLATION OF MARRIAGE BY FASK

Under Mahomedan Law, a woman may approach the Kazi or Hakim for
termination of marriage by fask (cancellation).

Fask means cancellation, abolishment, rescission, revocation, abrogation or

annulment.

This remedy was available to a woman before the enactment of the Dissolution of
Muslim Marriages Act, 1939. In fact, that was the sole remedy available to a
woman in respect of termination of marriage. Other remedies like khula were
available to the woman only with the agreement of her husband.

Main grounds for faskh were:

1. irregular marriage;

2. exercise of option of puberty by either of the spouses;

3. marriage within prohibited degree or fosterage;

4. marriage having been contracted between non-Muslims and both have accepted
Islam.

Sec. 5 of the Shariat Act, 1937 provided,

“Sec. 5. Dissolution of marriage by Court in certain circumstances – The District

Judge may, on petition made by a Muslim married woman, dissolve a marriage on
any ground recognized by Muslim Personal Law (Shariat).”

It is now omitted and substituted by the Dissolution of Muslim Marriages Act,

1939.

Termination of marriage by faskh has caused a great deal of confusion. Many

women thought that the marriage is ipso facto cancelled by faskh, and contracted
a second marriage thereby exposing themselves to prosecution for bigamy.

This confusion does not exist after the enactment of the Dissolution of Muslim
Marriages Act, 1939.

K. C. Moyin vs. Nafeesa

It was held that under no circumstances a Muslim woman may repudiate her
marriage. Unilateral repudiation of marriage by faskh was held to be invalid and
having no sanction of law.

The wife who had contracted a second marriage was held guilty of bigamy under sec.
494, Indian Penal Code.
170 8. Divorce (Talaq)

Janaki Amma vs. Padmanabhan

Husband made a Petition for annulment of marriage. The Court allowed the Petition.
When the order was in force, the husband married another woman. He was
prosecuted for bigamy.

Travancore-Cochin High Court held that when the husband remarried, the decree
declaring the first marriage was in force, and hence it cannot be said that the
husband had the mens rea to commit bigamy.

CANCELLATION OF MARRIAGE AT THE INSTANCE OF HUSBAND

Under certain circumstances, and subject to certain well defined conditions, the
power of dissolving the marriage relationship is vested in the husband, on his
paying the dower settled on his wife.

Once such ground is wife being non compos mentis. Mere imbecility does not give
the husband the right of cancelling a marriage, and in the case of insanity it is
necessary that it should have existed prior to the marriage, in order to furnish a
proper ground for the cancellation of the marital tie.

However, this provision of academic interest only, as the husband may dissolve
marriage by pronouncing talaq, at least among the Sunnis.

TALAQ-UL-INNIN
The right of the woman, under the Mahomedan law, to a cancellation of the
marriage on the ground of her husband’s impotency is similar in all respects to
her right, under the English Law. The analogy, especially between the Shia law
and the English common law, is very close.

The wife is entitled to claim a divorce on the ground of her husband’s impotency, if
she was unaware of the infirmity prior to the marriage. If she accepted the
husband with a knowledge of the fact that he was impotent and physically
incompetent to consummate the marriage, she has no right of divorce.

If the infirmity supervened after consummation, the wife has no right to ask for a
divorce.

Impotence Versus Hanc

Under the Sunni law, the wife is entitled to a dissolution of the marriage for what
is called in English law impotence versus hanc (impotence quod hanc).
 Cancellation of Marriage by Fask 171

It makes no difference in her right to obtain an annulment of the marriage,

whether the incapacity of the husband is only especial in her case, and whether he
is able to have sexual intercourse with other women or not.

Under the Shia law, if the man be able to have intercourse with other women, but
not with the wife in question, she has no right.

Delay in Exercise of the Right

The wife is bound to exercise her right immediately on becoming aware of her
husband’s infirmity. Delay in exercising the right, or in asking for a dissolution of
the marriage on this ground, would give rise to the presumption of waiver. Such
presumption, however, is rebuttable.

Circumstances may be, shown which rendered it impossible for her to urge her
claim immediately after the marriage. For instance, the husband may have been
absent from the wife since his marriage, and hence, she may have had no means
for preferring her claim, etc.

Procedure

A claim for the dissolution of the marriage on the ground of impotency is to be

preferred always before the Kazi or the Hakim-i-shara. A divorce granted by the
fatwas of the Mullas is absolutely illegal and invalid.

When a woman prefers a charge of impotency against her husband, the Kazi
investigates the complaint and examines the parties. If the wife be a virgin, a jury
of matrons is empanelled to examine whether she is virgo in tacta.

If her assertion is found to be true, the case is adjourned for a year commencing
from the date of the order of adjournment. If the husband consummates the
marriage in the interval, the wife’s petition would be dismissed after the lapse of
the period fixed by the judge. If he, however, fails in his marital obligations, the
wife is entitled to a divorce.

Under the Sunni law, she would be entitled to her full dower in case there has
been a valid retirement of the parties into the nuptial chamber. If there has been
no such retirement, the Hanafis allow her only a moiety of her dower. The Shias
and the Shafeis, in any case, give her only half the dower.

When the woman herself is not apta viro, she is not entitled to a divorce. If the
woman is not a virgin, and the husband swear that he has had cohabitation with
her, she has no right to a divorce.
172 8. Divorce (Talaq)

DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939

The British Courts denied a Muslim wife right to dissolve marriage on the grounds
available to her under the Mahomedan Law, except on the following grounds:

1. impotency of the husband;

2. lian, and

3. khyar-ul-bulugh (option of puberty).

There is no provision under the Hanafi Law, to which most of the Indian Muslims
are subject, enabling a wife to approach a Court and obtain divorce if she is
neglected or deserted by her husband and has no means of subsistence at all, or
is habitually ill-treated by her husband. This situation caused unspeakable misery
to innumerable women in India and some were forced to renounce Islam itself only
on that count.

A solution was attempted by Hanafi jurists to this problem by holding that in

cases in which application of Hanafi Law causes hardship, it is permissible to
apply the provisions of Maliki, Shafei or Hanbali Law.

Under such circumstances, the Dissolution of Muslim Marriages Act, 1939 was
passed. This law is applicable to all sects and sub-sects of Muslims throughout
India.

GROUNDS OF DIVORCE

Sec. 2 of the Act lays down eight grounds and also recognises any other ground
recognised by Mahomedan Law. The grounds provided under sec. 2 of the Act are:

1. Absence of Husband;

2. Failure to Maintain

3. Imprisonment of Husband;

4. Failure to Perform Marital Obligations;

5. Impotency of Husband;

6. Insanity, Leprosy or Venereal Disease;

7. Repudiation of Marriage by Wife;

8. Cruelty by Husband; and

9. Grounds of Dissolution Recognised by Mahomedan Law.

 Dissolution of Muslim Marriages Act, 1939 173

1. Absence of Husband [S. 2(i) r/w Proviso (b)]

If whereabouts of the husband are not known for a continuous period of four years
or more. The decree passed by the Court on this ground becomes effective only
after the expiry of six months, from the date of such decree.

Court shall set aside the said decree if before the expiry of 6 months,

1. the husband

(a) reappears in person; or

(b) communicates to the court through his agent; and

2. satisfies the Court that he is prepared to perform his conjugal duties.

Notice To The Heirs Of The Husband [S. 3]

Sec. 3 require that in a suit under sec. 2(i), the names and addresses 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.

Proviso to sec. 3 requires that paternal uncle and brother of the husband, if any,
shall be cited as party even if he or they are not heirs.

Further, a notice of the suit shall be served on such persons. All such persons
shall have the right to be heard in the suit.

2. Failure to Maintain [S. 2(ii)]

A wife is entitled to a decree of divorce if the husband has neglected or failed to

provide maintenance to the wife for a continuous period of two or more years.

The husband cannot plead poverty, unemployment, ill health etc., as a defence.
Even if the wife is rich, she is entitled to maintenance.

Yusuf vs. Sowramma

Krishna Iyer, J., held that once the husband fails to maintain wife for a period of two
years or more, wife is entitled to divorce, and reasons for not maintaining are
immaterial.

A similar view is taken by the Sindh High Court has taken a different view in Nur
Bibi vs. Pir Bux. It is submitted that the view is erroneous.
174 8. Divorce (Talaq)

Wife’s right to maintenance is subject to wife’s own performance of matrimonial

obligations. If the wife lives separately without any reasonable cause, she is not
entitled to get judicial divorce on the ground of husband’s failure to maintain her
because her own conduct dis-entitles her to maintenance.

A better view is taken by the Peshawar High Court in Fazal Mahmud vs.
Ummatur Rahim. The Court held that the Act was not enacted to abrogate the
general law applicable to Mahomedans. Where the husband was not under any
obligation to maintain his wife under Mahomedan Law, he cannot be said to have
failed to maintain her under the Act also.

This ruling is followed by the Bombay High Court in Bai Fatma vs. Munna
Miranji.

3. Imprisonment of Husband [S. 2(iii) r/w Proviso (a)]

If the husband has been sentenced into imprisonment for a period of seven years
or more the wife is entitled to a decree of divorce against the husband. No decree
can be passed on this ground unless the sentence has become final.

4. Failure to Perform Marital Obligations [S. 2(iv)]

If the husband fails to perform his marital obligations for a period of three years
without any reasonable excuse, wife may obtain a decree of divorce against him.

The expression ‘marital obligations’ is not defined in the Act or anywhere else. It
generally means cohabitation. Husband has several obligations towards his wife.
Failure to discharge any of them is a cause covered by this ground, unless it is
covered by some other provision of the Act. Thus, maintenance of wife, which is
covered by sec. 2(ii) may not be covered by sec. 2(iv) though it is an obligation of
husband towards his wife.

5. Husband’s Impotency [S. 2(v) r/w Proviso (c)]

A wife has to prove

1. that the husband was impotent at the time of the marriage; and

2. that he continues to be impotent till the filing of the suit.

 Dissolution of Muslim Marriages Act, 1939 175

On application by the husband, the Court shall 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. If the husband so satisfies the Court
within such period, no decree shall be passed on the said ground.

If the husband was impotent at the time of the marriage, and that fact was known
to the wife, under Mahomedan Law she is not entitled to a divorce.

Further, if the husband is suffering from impotence quod hanc, under the Sunni
Law wife is entitled to divorce, but not under the Shia Law.

6. Insanity, Leprosy and Venereal Disease [S. 2(vi)]

If the husband has been suffering from

1. unsoundness of mid for a period of two years; or

2. leprosy; or

3. a virulent venereal disease,

It is a good ground for his wife to seek divorce from him.

7. Repudiation of Marriage by Wife [S. 2(vii)]

Where the following conditions are satisfied, the wife gets a right to obtain a decree
of divorce under this clause:

1. The marriage is contracted by wife’s guardians when she was under the age of
15 years.

2. The marriage is not consummated.

3. She repudiated the marriage before she attained the age of 18 years.

8. Cruelty by Husband [S. 2(viii)]

If the husband treats his wife with cruelty, that is to say,

(a) Habitually assaults her or makes her life miserable by cruelty or bad conduct
even if such conducts does not amount to physical ill-treatment.

(b) Association of the husband with woman of evil repute or that he leads an
infamous life.
176 8. Divorce (Talaq)

(c) The husband attempts to force his wife to lead an immoral life.

(d) The husband disposes off her property or prevents her from exercising her
legal right over it.

(e) The husband obstructs her in the observance to her religious profession or
practice.

(f) If he has more than one wife, does not treat her equitably in accordance with
the injunctions of the Qur’an,

the wife may seek divorce against him under this clause.

9. Grounds Recognised by Mahomedan Law [S. 2(ix)]

The object of the Dissolution of Muslim Marriages Act is to supplement the

Mahomedan Law and not to derogate from it. Therefore, the wife may take any
other ground which is recognised by the Mahomedan Law for dissolution of
marriage though it is not covered by the Act.

Thus, ila, zihar, khula, mubarat, lian and tafweez may be taken as grounds for
dissolution of marriage under this clause.

Noor Jahan Bibi vs. Kazim Ali

The husband accused his wife of adultery. The wife instituted a suit for dissolution of
their marriage on the ground of lian.

As in case of Zafar Husain vs. Ummat-ur- Rahman, in this case also it was argued
that lian has become obsolete and hence on this ground decree of divorce cannot be
passed. The Court in this case also rejected the contention and held that lian has not
become obsolete, and hence a wife may seek a decree of divorce on the ground of
lian.

EFFECT OF APOSTASY ON MARRIAGE [S. 4]

Prior to the enactment of the Act, apostasy of either of the parties ipso facto
dissolved the marriage.

Now a marriage is dissolved ipso facto by the apostasy of the husband but not of
the wife. This is because, the husband may easily divorce his wife by talaq, but a
similar facility is not available to wife. She may not claim divorce on the ground of
her own apostasy.
 Dissolution of Muslim Marriages Act, 1939 177

Sec. 4 does not, however, apply to a woman who earlier belonged to some other
religion embraced Islam, and now she has re-embraced her former faith. In other
words, where a convert Muslim woman leaves Islam, she cannot take the benefit of
sec. 4.

In her case the principles of Mahomedan Law apply and the marriage is dissolved
ipso facto.

RIGHT TO DOWER

Sec. 5 states that 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.

LEGAL CONSEQUENCES OF DIVORCE

The following are the legal consequences of divorce irrespective of its mode.

1. Parties may contract another marriage;

2. Dower (deferred) becomes payable immediately;

3. Mutual rights of inheritance cease once the divorce becomes irrevocable;

4. In case of irrevocable divorce cohabitation becomes unlawful and children born

are illegitimate;

5. Wife is entitled to maintenance during iddat of divorce and not during iddat of
death;

6. Remarriage between divorced couple is not lawful if they are Irrevocably

divorced.

1. PARTIES MAY CONTRACT ANOTHER MARRIAGE

The parties may contract another marriage. Wife may remarry

1. if the marriage is consummated, after iddat;

2. if the marriage is consummated, immediately.

Normally husband may contract another marriage immediately on dissolution of

his former marriage. However, if he had four wives including the wife whom he
divorced, he may remarry only after her iddat.
178 8. Divorce (Talaq)

2. DEFERRED DOWER BECOMES PAYABLE IMMEDIATELY

Wife becomes entitled to the immediate payment of deferred dower.

If the marriage is consummated, the wife is entitled to the full payment of unpaid
dower, both deferred as well as prompt.

If the marriage is not consummated, the wife is entitled to

1. the payment of half the dower, if the dower was specified; and

2. three articles of cloths or their price, if the dower was not specified.

Sec. 5 of the Dissolution of Muslim Marriages Act, 1939 protects the right of a
Muslim Woman to dower under the Mahomedan Law.

3. MUTUAL RIGHTS OF INHERITANCE CEASE

Mutual rights of inheritance cease once the divorce becomes irrevocable.

4. COHABITATION BECOMES UNLAWFUL

In case of irrevocable divorce cohabitation becomes unlawful and children born

are illegitimate. Acknowledgement cannot legitimate such children.

5. WIFE IS ENTITLED TO MAINTENANCE DURING IDDAT

Wife is entitled to maintenance during iddat of divorce and not during iddat of
death.

6. NO REMARRIAGE BETWEEN THE DIVORCED COUPLE

Remarriage between divorced couple, without nikah halala is not lawful if they are
Irrevocably divorced.

Nikah Halala

In case of triple talaq, if the divorced spouses have to remarry each other, the
following procedure has to be followed.
 Legal Consequences of Divorce 179

1. The wife should undergo iddat;

2. After the iddat, she has to marry another man;

3. That marriage must be actually consummated;

Valid retirement is not sufficient.

4. The second (intervening) marriage should be dissolved;

5. The wife should observe iddat.

This procedure is called nikah halala.

Remarriage between the divorced couple without nikah halala is void under both
the schools. So also mere cohabitation between the divorced couple is void under
both the Schools. Children born out of such cohabitation are illegitimate as has
been held under Rashid Ahmad vs. Anisa Khatoon.

IDDAT (PERIOD OF PROBATION)

Iddat is a period of chastity which a Muslim woman is bound to observe after the
dissolution of her marriage by the death of her husband or by divorce, before she
can lawfully marry again. It is a period during which a woman is prohibited from
remarrying after the dissolution of her former marriage.

Object of iddat is to ascertain paternity of a child, if any, born after the dissolution
of the marriage. Remarriage without observing iddat is irregular under Sunni Law,
while it is void under Shia Law.

PERIOD OF IDDAT

Where the marriage is valid and consummated,

1. Iddat of divorce is 3 courses (cycles) of menstruation if the wife is menstruating.

If the wife is not menstruating 3 lunar months.

2. Iddat of widowhood is 4 months and 10 days.

If the marriage is irregular,

1. if the marriage is not consummated, there is no iddat.

2. if the marriage is consummated, wife has to observe iddat of divorce and not of
death.
180 8. Divorce (Talaq)

If the marriage is not consummated iddat has to be observed in the case of death,
but not in the case of divorce.

If, the husband dies while the wife is undergoing iddat of divorce, wife has to
undergo a fresh period of iddat of widowhood of 4 months and 10 days, from the
date of death of the husband.

The period of iddat commences from the date of dissolution of marriage and not
from the date on which the information of dissolution was received by the wife.
Therefore, if the wife receives information after the expiry of the period of iddat,
she need not observe iddat.

If wife is pregnant at the dissolution of marriage, or is found to be pregnant during

the iddat, iddat will not terminate till delivery.

RIGHTS AND DUTIES OF THE PARTIES DURING IDDAT

The following are the rights and duties of the parties during the iddat:

1. Husband is bound to maintain the wife during the period of iddat.

2. Wife is entitled to immediate payment of deferred dower on dissolution and also

prompt dower if not paid.

3. If either party dies during iddat, the survivor may inherit from the deceased,
provided the divorce had not become irrevocable before the death.

4. if divorce was pronounced during marz-ul-maut and the husband dies, wife may
claim inheritance even if divorce had become irrevocable prior to death, unless
the wife had consented for divorce.

5. The wife cannot marry during the iddat.

Husband also cannot marry a fifth wife if he already has four wives including
one observing iddat, until her iddat is complete.
 9. PRE-MPTION (SHUFA)
The right of pre-emption (shufa) is the right possessed by one person to purchase a
property in preference to another. It is based upon considerations of convenience and
the avoidance of the presence of a stranger amongst co-sharers or neighbours.

HISTORY OF RIGHT OF PRE-EMPTION

Pre-emption was apparently unknown in India before the time of the Moghal rulers. Pre-
emption in village communities in British India had its origin in the Mahomedan Law. In
the course of time customs of pre-emption grew up or were adopted among village
communities. Rights of pre-emption have in some provinces been given by Acts of the
Indian Legislature.

A custom of pre-emption was doubtless in all cases the result of agreement amongst the
sharers in the particular village. In some cases the customs followed the Mahomedan
Law while in some other cases these customs modified the Mahomedan Law. In Bihar,
parts of the Punjab and the North-Western Provinces, both Hindus and Mahomedans
were entitled to claim the right of pre-emption under Mahomedan Law. In other places, it
depended upon custom.

Generally speaking, in lower Bengal the right was confined to Mahommedans, but in
some places Hindus and Christians have exercised the right of pre-emption. Under the
Mahommedan Law itself, the right of pre-emption may be claimed by any person,
irrespective of his or her creed.

In Gobind Dayal vs. Inayatullah, Mahmood J. observed, “The law of pre-emption is

essentially a part of Muhammadan jurisprudence. It was introduced into India by
Muhammadan Judges who were bound to administer the Muhammadan law. Under
their administration it became, and remained for centuries, the common law of the
country, and was applied universally both to Muhammadans and Hindus, because in
this respect the Muhammadan law makes no distinction between persons of different
races or creeds. According to Hedaya, ‘A Musalman and a zimmee being equally affected
by principles on which shufa or right of pre-emption is established, and equally
concerned in its operation, are therefore on an equal footing in all cases regarding the
privilege of shufa’. What was the effect of this? In course of time, pre-emption became
adopted by the Hindus as a custom.

The law of pre-emption is based clearly upon the texts of Islamic law, and while there
seem to be foreign elements in it, it is a well-established doctrine in India. It was adopted
by Islam, in general, to prevent the introduction of a stranger among co-sharers and
neighbours, likely to cause both inconvenience and vexation.
182 9. Pre-mption (Shufa)

DEFINITION OF PRE-EMPTION

In Gobind Dayal vs. Inayatullah, Mahmood J. defined pre-emption (shufa) as,

“… a right which the owner of certain immoveable property possesses, as

such, for the quiet enjoyment of that immoveable property, to obtain, in
substitution for the buyer, proprietary possession of certain other
immoveable property, not his own, on such terms as those on which such
latter immoveable property is sold to another person.”

Three things are, therefore, necessary:

1. The pre-emptor must be the owner of an immovable property;

2. There must be a transfer for consideration of certain property, not his own;

3. The pre-emptor must stand in a certain relationship to the vendor in respect of

the property sold.

If these conditions are satisfied, he has the right to be substituted for the
purchaser.

Bishan Singh vs. Khazan Singh

The Supreme Court in, has summarized in the main rules of pre-emption in India.
Subba Row J. laid down the following, six rules:

1. The right of pre-emption is not a right to the thing sold but a right to the offer of a
thing about to be sold. This right is called the primary or inherent right.

2. The pre-emptor has a secondary right or a remedial right to follow the thing sold.

3. It is a right of substitution but not of re-purchase, i.e., the pre-emptor takes the
entire bargain and steps into the shoes of the original vendee.

4. It is a right to acquire the whole of the property sold and not a share of the
property sold.

5. Preference being the essence of the right, the plaintiff must have a superior right
to that of the vendee or the person substituted in his place.

6. The right being a very weak right, it can be defeated by all legitimate methods,
such as the vendee allowing the claimant of a superior or equal right being
substituted in his place.
 Object of the Law of Pre-emption 183

OBJECT OF THE LAW OF PRE-EMPTION

The object of the law of pre-emption is two-fold:

1. To prevent the introduction of stranger among co- sharers, neighbours and

participant in appendages; and

2. To prevent inconveniences and disturbances arising out of such introduction.

JUSTIFICATION FOR PRE-EMPTION

The following are the grounds for justification of pre-emption:

1. The balance of convenience is in favour of the pre-emptor, i.e., the hardship and
inconvenience caused to the pre-emptor if there is no right of pre-emption are
more than the hardship and inconvenience caused to the stranger vendee by the
right of pre-emption.

2. The democratic conception underlying Mahomedan Law of inheritance tends to

disintegrate the family property and the law of pre-emption considerably
mitigates the evil.

NATURE OF THE RIGHT OF PRE-EMPTION

A PREFERENTIAL RIGHT

It is a preferential right of the owner of an immovable property to purchase the

property belonging to another, if the property is adjoining his property or he is the
co-sharer or participator in appendages of that property.

A RIGHT OF SUBSTITUTION

In the beginning there were conflicting decisions on this point. Calcutta and
Bombay High Courts held that it is a right of the pre-emptor to repurchase a
property from the vendee, while Allahabad and Patna High Courts held that it is a
right of the pre-emptor to be substituted for the vendee.

In Bishan Singh vs. Khazan Singh, Supreme Court held that pre-emption is a
right of substitution and not a right of repurchase.
184 9. Pre-mption (Shufa)

A RIGHT RUNNING WITH THE LAND

In Gobind Dayal vs. Inayatulla, Mahmood, J. observed that right of pre-emption

is, like easement, a right running with the land (immovable property). Whoever
becomes the owner of the immoveable property gets the right of pre-emption.

Example

A and B are respectively owners of two neighbouring lands X and Y. A has a right of
pre-emption to purchase the land Y from B in preference to any other person.

If A sells his land to C, C will automatically get the right of pre-emption over the land
of B and, in the same way as A could earlier, B may exercise his right of pre-emption
to purchase the land Y from B in preference to any other person.

Thus, whoever becomes the owner of the property gets the right of pre-emption
founded on the ownership of that property. In that sense it is a legal servitude
running with the land in the same way as easement does.

The only difference between the nature of easement and of pre-emption is that
easement has a preventive remedy. Thus even before there is actual violation of
right of easement, the person entitled to that right may approach the Court and
obtain injunction for preventing the apprehended violation of his right. But right of
pre-emption does not have a preventive remedy. Right of pre-emption does not
arise till there is an actual and completed sale.

A WEAK RIGHT

In Audh Bihari Singh vs. Gejadhar Jaipuri, it is observed that the law of pre-
emption imposes a limitation or disability upon the ownership of the property to
the extent that it restricts the owner’s unfettered right to transfer of property.

Further, it is divestitive in nature. It divests the vendee who has become the owner
of the property and vests in the pre-emptor. Law does not, as a general rule,
encourage divestation. Therefore, it is a weak right (Indira Bai v. Nand Kishore).

A RIGHT OF THE OWNER OF A PROPERTY

It is the right of the owner of a property and not of the possessor of the property.
Thus, landlord, though he is not in the actual possession of his property may
exercise right of pre-emption founded on that property, but the tenant, though he
is in possession of the property, cannot exercise right of pre-emption founded on
that property.
 Constitutional Validity of Pre-emption 185

CONSTITUTIONAL VALIDITY OF PRE-EMPTION

SITUATION BEFORE THE 44TH AMENDMENT

Before the 44th amendment to the Constitution, Art. 19(1)(f) of the Constitution of
India gave the citizens of India a freedom to ‘acquire, hold and dispose of property’.
Art. 19(5) permitted the State to make laws imposing reasonable restrictions on
that freedom ‘either in the interests of the general public or for the protection of
the interest of any Scheduled Tribe’.

Art. 13(1) declares that all laws in force in the territory of India immediately before
the commencement of the Constitution and inconsistent with the provisions of the
Constitution relating to the fundamental rights of the people shall, to the extent of
such inconsistency, be void.

Art. 13(2) prohibits the State from making any law which takes away or abridges
the fundamental rights and declares that any law made in contravention of this
provision shall, to the extent of such contravention, be void.

The question was canvassed whether the law of pre-emption is constitutional,

having regard to the provisions of Art. 19(1)(f) of the Constitution. There was
considerable difference of opinion on the question among the High Courts in India.
The most important case on this point was the decision of the Bombay High Court
in Bhimrao vs. Patilbua.

Bhimrao vs. Patilbua

It was observed that the object of pre-emption in favour of a co-sharer is to avoid

introduction of a stranger on the property and to avoid the inconvenience resulting
to the other co-sharers due to that.

But as far as a neighbour is concerned, it gives him to grab the property at a lower
price as a stranger aware of the risk will not be willing to pay due price for the
property. Hence law of pre-emption, as far as is based on vicinage was held to be
unconstitutional.

Bhau Ram vs. Baij Nath

The Supreme Court also gave a similar decision. Law of pre-emption as far as on the
ground of vicinage is concerned, was held to be unconstitutional. It was held that the
restriction is not in the interest of the general public. It imposes an unreasonable
restriction on the right of the owner to sell his property to any person of his choice
for any price that may be settled between him and the vendee.
186 9. Pre-mption (Shufa)

The Court held that in view of the light thrown by the introduction of Art. 15 of the
Constitution the division of society on the grounds such as that introduction of a
stranger on the property causes inconvenience, is no more reasonable.

But the Court upheld the law of pre-emption as far as co-sharers are concerned on
the ground that it was in the interest of the general public and does not impose any
unreasonable restriction on the right of the owner to acquire, hold and dispose of his
property.

In Sant Ram vs, Labh Singh, the Supreme Court applied the same reasoning to
the customary rules of pre-emption and held that pre-emption of the ground of
vicinage was unconstitutional.

AFTER THE 44TH AMENDMENT

The 44th amendment to the Constitution omitted Art. 19(1)(f) and Art. 19(5). As law
of pre-emption is a pre-Constitutional law, with the omission of Art. 19(1)(f), it is
revived. Unconstitutionality of the right of pre-emption on the ground of vicinage is
now removed with the omission of Art. 19(1)(f).

Therefore, now law of pre-emption is challenged under Art. 14 and Art. 15(1). In
Atma Prakash vs. State of Haryana, the Supreme Court held that pre-emption
on the ground of consanguinity (being co-sharer) under sec. 15(1)(a) of the Punjab
Pre-emption Act, 1923 as unconstitutional.

In that case sec. 15(1)(a) of the Punjab Pre-emption Act, 1923 was challenged as
violative of Art. 14 of the Constitution. The Supreme Court held that the claim of
pre-emption on the ground of consanguinity is a relic of feudal past and is totally
irrelevant under the present Constitutional scheme. The Court observed that the
right was justified in the past on the reason that it preserved the integrity of rural
society, the unity of family life and the agnetic theory of succession. These
grounds are totally irrelevant in the present society.

Accordingly, sec. 15(1)(a) of the Punjab Pre-emption Act, 1923 was held violative of
Art. 14 of the Constitution because of unreasonable classification.

It is worth noting that this decision is specifically applicable to sec. 15(1)(a) of the
Punjab Pre-emption Act, 1923. It is not applicable to the law of pre-emption on the
ground of consanguinity, in general, and to Mahomedan Law is special.

In Razzaque Sajan Saheb Bagwan and Others vs. Ibrahim Hazi Mohd.
Husain, the Supreme Court held that the right of pre-emption on the ground of
vicinage is unconstitutional and void, and therefore cannot be recognized.
 Application of Pre-emption 187

APPLICATION OF PRE-EMPTION

SOURCE OF THE RIGHT

1. The law of pre-emption is applied to Muslims throughout India as a matter of
justice, equity and good conscience, except in the State of Madras, where it is
considered as opposed to justice, equity and good conscience (Ibrahim Saib vs.
Muni Mir).

2. The law of pre-emption is applied by custom, also to Hindus in certain localities,

for instance in Bihar, in Sylhet, and in certain portions of Gujarat in the State of
Bombay, including Ahmedabad (Sonabashi Kuer vs. Ramdeo Singh).

3. The law of pre-emption is applied by Statute, in the Punjab, the former North-
West Frontier Province and Oudh, both to Hindus and to Muslims.

4. Rights of pre-emption may also arise in certain cases by contract.

SUBJECT-MATTER OF PRE-EMPTION
The right of pre-emption applies only to immoveable property, whether held jointly
or separately.

It is reported that the Prophet said that there was no shufa except in a mansion or
a garden. Therefore, the law lays down that landed property alone, including
houses and gardens, can be subject to the law of pre-emption. If the property
consists of a share in a village or a large estate, a mere neighbour cannot claim
pre-emption, but a co-sharer can, and probably also a participator in appendages.

Pre-emption must be claimed of the whole of the estate. Mahmood J. explained the
reason for this rule in Sheobharos Rai vs. Jiach Rai. The principle underlying
the denial of the right of pre-emption, except as to the whole of the property sold,
is that by breaking up the bargain the pre-emptor would be at liberty to take the
best portion of the property and leave the worst part of it with the purchaser.

The rule applies only to those transactions which, while contained in one deed,
cannot be broken up or separated. It should be limited to such transactions, and
cannot be applied where the shares are separately specified. If several distinct
properties are sold by one contract, the pre-emptor may exercise his right in
respect of any one or some of them, and not necessarily in respect of them all.

If the pre-emptor is one of many, he can claim his rateable share and tender the
money.
188 9. Pre-mption (Shufa)

In Shafie law mushaa (property which is incapable of division) cannot be the

subject of pre-emption. Some Shiaite authorities allow pre-emption to be exercised
even in the case of movables.

TRANSACTIONS TO WHICH PRE-EMPTION IS APPLICABLE

Where a property is conveyed to another by virtue of a sale, exchange, or even
compromise of a claim the right of pre-emption accrues.

Pre-emption does not take effect with regard to property which has devolved by
right of inheritance or which has been received through will (wasiyat).

It is also not applicable to hiba (gift) without any consideration. But it is applicable
to gift for return (hiba-bil-ewaz) and gift with stipulation for return (hiba-ba-shart-
ul-ewaz). In the case of an assignment by hiba-ba-shart-ul-ewaz, it takes effect
only after the settled consideration has been paid by the transferee.

Pre-emption in the Case of a Sale to a Shafi

Once it was held by the Calcutta High Court in Lalla Nowbut Lall vs. Lalla
Jewan Lall that sale to a shafi does not introduce a stranger into the property,
and therefore, there is no right of pre-emption in case of such a sale.

Allahabad and Bombay High Courts held otherwise. The reasoning of Allahabad
and Bombay High Court was that the passage of Hedaya which stated “When there
is a plurality of persons entitled to the privilege of shuffa, the right of all is equal,"
applies as much when the sale is made to a shafi as when it is made to a stranger.

In Enatullah vs. Kowsher Ali, a special bench of Calcutta High Court has
followed the decisions of Allahabad and Bombay High Courts.

Enatullah vs. Kowsher Ali

A, B and C are co-sharers in a certain property. A sells his share to B. C is entitled to

claim pre-emption in respect of one half of the property.

Where there are two or more shafis of the same class, and the sale is made by one
of them to another, the other shafis are entitled to claim pre-emption of their
share against the shafi purchaser.

Amir Hasan vs. Rahim Bakhsh

A, B, C and D own each a house situate in a private lane common to all the four
houses. A sells his house to B. Here B, C and D are participants in the appendages
of the house sold, the appendage being the right of way. C and D are each entitled to
claim pre-emption of one third of the house.
 Application of Pre-emption 189

Similarly, where the sale is made to a shafi and a stranger, the other shafis are
entitled to claim pre-emption of their share against the shafi-purchaser and the
stranger.

Saligram vs. Raghubardayal

A, B and C are co-sharers in certain property. A sells his share to B and S, a

stranger. C is entitled to claim pre-emption of one-half of tile property sold.

Pre-emption in Case of Transfer in Lieu of Mahr

In Fida Ali vs. Muzaffar Ali, Allahabad High Court held that the right of pre-
emption accrues when a property is conveyed by the husband to the wife in
discharge of her dower-debt. Such a transfer being in satisfaction of a previous
obligation, it is one for consideration and should be regarded as a ‘sale’, thus
giving rise to the right of pre-emption.

But in Bashir Ahmad vs. Mst. Zuhaida Khatun, the Lucknow High Court held
that in such cases right of pre-emption does not arise, as it is a case of hiba-bil-
ewaz where husband gifts his property to wife and wife gifts dower debt to him.

The reason of this rule is obvious for a husband conveying to the wife does not
thereby introduce a stranger among co-sharers and neighbours.

Pre-emption comes into operation when the property, in respect of which the right
is claimed, is transferred for a consideration.

It accrues only when a complete transfer of the right, title, and interest of the
transferor has taken place and not where there is a mere agreement to sell or
transfer, or where the transfer is only fictitious or the sale is invalid.

In Najm-un-nissa vs. Ajaib Ali Khan, it was held that the question whether the
transaction amounts to a complete transfer will be determined on the basis of the
Mahommedan Law and not of the Transfer of Property Act.

On the same ground, in Begam vs. Muhammad Yakub, Allahabad High Court
held that if a complete sale is effected under that law, as where the price is paid
and possession is delivered, the right of pre-emption will arise, although the sale is
not complete under the Transfer of Property Act.

On the other hand some judges have opined that the right of pre-emption does not
arise until after registration, as required by the statutory law of India.
190 9. Pre-mption (Shufa)

But the true position was stated by their Lordships of the Privy Council in
Sitaram Bhaurao vs. Haul Hasan. In order to determine whether a sale had
taken place or not, in each case, the intention of the parties must be considered to
decide which system of law is to be applied.

PERSONS TO WHOM LAW OF PRE-EMPTION IS APPLICABLE

Under the Hanafi Law, three classes of persons are entitled successively to the
right of pre-emption.

1. Shafi-i-sharik (persons who are sharers in the substance of the thing);

2. Shafi-i-khalit (sharers in the appendages, i.e., persons who have a right of

easement in respect of the property which forms the subject of the sale);

3. Shafi-i-jar (Persons entitled by vicinage, i.e., neighbours, whose property is

contiguous to the subject of the sale.

The three classes of pre-emptors take in the order specified above; the first class
excludes the second; and the second excludes the third. Thus, one who has
actually a share in the property has a stronger claim than a person who has a
mere easement over it, whilst the latter has a superior right to a person claiming
on the ground of neighbourhood.

When a person preferentially entitled disclaims or abandons his right, the person
next in order can assert his claim.

Pre-emptors of the same class are in Hanafi Law entitled to pre-empt in equal
proportions, even though they are owners of unequal shares.

Under Shafei Law, however, the right of a pre-emptor is proportionate to his share
in the property.
Example

S, P1, P2 and P3 own a plot of land jointly in the following proportions:

S=3/8 P1 = 1/3 P2=1/6 P3= 1/8

S sells his 3/8 share.

Under Hanafi Law, P1, P2 and P3 can each claim 1/3 of the share of S,

i.e., l/3  3/8 = l/8 of the whole.

But under Shafei Law, P1, P2 and P3 can only obtain

P1: l/3  3/8 = l/8; P2: l/6  3/8 = 1/16 P3: 1 / 8  3/8 = 3/64

of the estate, respectively.

 Application of Pre-emption 191

As between pre-emptors of the same class no distinction is made. Thus, if X is a

participator in appendages (khalit) and also a neighbour (jar), and Y is only a
participator (khalit), X has no priority over Y. Similarly a co-sharer who is a
neighbour, has no priority over a co-sharer who is not a neighbour (Syed Haji
Imambakhsh vs. Mir Muhammadali Khan).

A co-sharer has a right of pre-emption in large estates but a neighbour’s right has
been held to extend only to houses, gardens and small plots of land (Mahammed
Hossein vs. Mohsin Ali). Although the neighbour is himself entitled to pre-empt,
neither his tenant nor persons in possession without any title have the right.

CONFLICT OF LAWS

Where the parties to a transaction which gives rise to a case of pre-emption are
governed by different personal laws, it is necessary to lay down the principles
upon which the Court would act.

Difference of Religions

In India, all religions are treated with equality, and therefore in this branch of the
law the principle of reciprocity should be logically applied. Hence, on general
principles, it would be unfair to apply the law of pre-emption and to create rights
in favour of persons who would not be subject to corresponding obligations.

Gobind Dayal’s Case

This is the leading case on the subject and, as several important points were
discussed and decided therein, it is perhaps best to give a summary of the
judgement of Mahmood J. which is considered to be one of the most authoritative
expositions of the law of pre-emption.

Several aspects of Mahomedan Law on pre-emption were clarified in this decision

of a Full Bench of the Allahabad High Court. One of the questions before the Court
was application of law of pre-emption where the parties belong to different
religions.

It was held that if all parties are Muslims, no problem arises, but the question is
whether the law of pre-emption is applicable where only the vendee is a Hindu.

1. If all parties are Muslims, Mahomedan Law applies.

2. If all parties are Hindus. Mahommedan law does not apply.

192 9. Pre-mption (Shufa)

3. If the vendor and the vendee are Hindus, but the pre-emptor is a Muslim, there
is no pre-emption.

4. If the pre-emptor is a Hindu, and the vendor and the vendee are Muslims, there
is no pre-emption.

5. If the vendee is a Muslim, and the pre-emptor and the vendor are Hindus, there
is no pre-emption.

6. If the vendor is a Muslim, and the pre-emptor and the vendee are Hindus, there
is no pre-emption.

This is so because now Muhammadan law is a personal law. and not the
common law of the land, and the rights and obligations must be reciprocal.

7. The last instance is where the pre-emptor and the vendor are Muslims, but the
vendee is a Hindu, the right of pre-emption arises.

The most important case till then was Sheikh Kudratulla vs. Mahini Mohan
Sinha, where it was held by a majority of the Full Bench of the Calcutta High
Court that a Hindu purchaser is not bound by the Muhammadan law of pre-
emption in favour of a Muslim co-sharer, nor is he bound by the law of pre-
emption on the ground of neighbourhood. And this, because the right of pre-
emption possessed by a Muslim does not depend on any defect of title on the part
of his Muslim co-sharer, but upon a rule of Muhammadan law, which is not
binding on the Court, nor on any purchaser other than a Muslim.

Mitter, J. held that pre-emption is a right of repurchase not from the vendor, but
from the vendee. Two propositions were laid down:

1. That the right of pre-emption under the Muhammadan law does not exist before
actual sale, and

2. that a sale, in respect of which pre-emption can be claimed, passes full

ownership to the vendee, and does not involve any defect of title.

Similar view was also held by Bombay High Court in Hamedmiya vs. Benjamin.
Mahmood, J. differed from this view and held that the right of pre-emption is not a
right to repurchase from the vendee, but it is a right of substitution, entitling the
pre-emptor to stand in the shoes of the purchaser.

In support of his view, Mahmood, J. discussed the nature of the right of pre-
emption. He observed that the law of pre-emption creates what may be called a
legal servitude running with the land. He referred to a passage of the Hedaya and
showed that that high authority lays down that sale is not the cause of pre-
emption. The real cause is the situation of the properties in question. The right to
 Application of Pre-emption 193

enforce the pre-emptor’s right comes into being after the sale, which clearly shows
the intention to dispose of the property. The right exists independently of and
antecedent to the sale.

In Audh Behari Singh vs. Gajadhar Jaipuria and Others, the view of
Mahmood J., was accepted by the Supreme Court, that the right of pre-emption is
a right of substitution, and not of repurchase.

Principle Of Reciprocity

Though there was difference between the Allahabad and Patna High Courts on one
hand and Calcutta and Bombay High Courts on the other, about the law
applicable where the vendee is a zimmee, they are unanimous in holding that for
the application of law of pre-emption, the vendor and the pre-emptor must both be
Mahomedans.

The vendor should be a Mahomedan. Hence no right of pre-emption can be

claimed by a Mahomedan when the vendor is a zimmee, though the vendee may be
a Mahomedan.

The pre-emptor also should be a Mahomedan. The reason is that if he is a

Mahomedan and subsequently wants to sell the pre-empted property, he is bound
to offer it to his Mahomedan neighbours or partners before i,e., can sell it to a
stranger. But a zimmee is not subject to any such obligation, and he call sell it to
any one he likes.

The law of pre-emption contemplates both a right and an obligation, and if a

zimmee were allowed to pre-empt, it would be allowing him the right without the
corresponding obligation.

Difference of Schools

A similar question also arises when there is difference of sects among the parties
to a sale of an immoveable property.

Under the Shia Law, co-sharers in the property, i.e., shafi-i-sharik alone, are
entitled to the right of pre-emption. A Hanafi would be entitled to pre-empt on the
basis of a right of easement or neighbourhood also.

1. If both vendor and pre-emptor are Hanafis, Hanafi Law is applicable (Abbas Ali
vs. Maya Ram), and if vendor and pre-emptor are Shias, Shia Law is applicable
(Kurban Hossein vs. Chote).
194 9. Pre-mption (Shufa)

2. If vendor is Hanafi and pre-emptor is Shia, according to Allahabad and

Hyderabad High Courts Shia Law is applicable according to principles of
reciprocity.

That is, if the pre-emptor is Shia, and Hanafi Law is applied, the Shia who will
receive the property will be able to sell it to anyone he liked, as under Shia Law
there is no right of pre-emption on the ground of neighbourhood, and his Hanafi
neighbours would be deprived of their right.

3. If the vendor is Shia and pre-emptor is Hanafi, according to Allahabad and

Hyderabad High Courts Shia Law (Pasha Begum vs. Syed Shabber Hasan).
But according to Calcutta High Court, Hanafi Law is applicable (Joy Deb vs.
Mahomed).

4. The personal law of the buyer is immaterial in these cases (Gobind Dayal vs.
Inayatullah).

Pasha Begum vs. Syed Shabber Hasan

One Abdur Rahman (Hanafi) sold a house to Pasha Begum (also Hanafi). Thereupon
Syed Shabber Hasan (Twelver Shia) filed a suit for pre-emption. The question arose
whether the Hanafi or the Ithna Ashari law was to apply. The five-judge bench by
majority adopted the following scheme:

1. If both the parties belong to one and the same school, the rules of that particular
school apply.

2. If the vendor is a Shia and the pre-emptor a Hanafi, then as the Shia law does not
recognize the right of pre-emption on the ground of vicinage, applying the
principle of reciprocity, the pre-emptor does not succeed; and similarly

3. Where the vendor is a Hanafi and the pre-emptor a Shia, again, for want of
reciprocity, the pre-emptor must fail.

FORMALITIES (THE THREE DEMANDS)

According to the Hedaya ‘the right of shufa is but a feeble right, as it is the
disseizing another of his property merely in order to prevent apprehended
inconveniences’. Thus, the right of pre-emption is strictissimo juris, and failure to
perform the “demands” in accordance with the requirements of the law will defeat
the claim.

1. The First Demand – Talab-i-Mowasibat or talab-i-Muwathaba;

2. The Second Demand – Talab-i-Ishtesh-had or Talab-i-Taqrir

3. The Third Demand – Talab-i-Tamlik or Talab-i-Khusumat

 Application of Pre-emption 195

1. The First Demand – Talab-i-Mowasibat or talab-i-Muwathaba

A person, who intends to advance a claim based on the light of pre-emption in

respect of property which has been sold to another, must, immediately on
receiving information of the sale, but not before, express in explicit terms his
intention to claim the property. It is not necessary that this demand should be
made in the presence of witnesses.

The intention must be formulated in the form of a demand. No specific formula is

necessary so long as the assertion of the demand is expressed in unequivocal
language. There cannot be implied demand. In Kheyali vs. Mullick, it was held
that a letter to the sub-registrar to stay the registration of sale is not exercise of
the right of pre-emption, as that is not a demand.

In making this demand there must be no delay on the part of the pre-emptor. It
must follow immediately upon the receipt of the information. The Courts enforce
this formality strictly; and any unreasonable delay will be construed as an election
not to pre-empt. A delay of twelve hours was, in one case, considered too long (Ali
Muhammad vs. Taj Muhammad).

Jarfan Khan vs. Jabbar Meah

A man who, on hearing of a sale, entered his house, opened a chest and took out a
sum of Rs. 47.25 Ps. apparently to tender the money to the buyer, and then made
the first demand (talab-i muwasibat). It was held that the delay was unnecessary,
and hence the right of pre-emption was defeated.

2. The Second Demand – Talab-i-Ishtesh-had or Talab-i-Taqrir

The pre-emptor should, with as little delay as possible under the circumstances,
make a second demand. He must make the second demand

1. by making reference to his first demand,

2. in the presence of two witnesses.

3. (a) on the premises in dispute,

(b) in the presence of the vendor (if he is in possession), or

(c) the vendee.

In order to entitle the pre-emptor to perform the second demand in the presence of
the vendee it is not necessary that the latter should be in possession of the
property in respect of which the right is claimed.
196 9. Pre-mption (Shufa)

The Courts in India have held that at the time of making this second demand the
pre-emptor should distinctly state that he has already made the talab-i-
mowasibat.

If the property sold is a building, it is not necessary for the pre-emptor to enter
that building and make a demand. It is enough if he goes near the building and,
touching the walls, and make the demand.

If there are several purchasers, the demand must be made to all of them, unless it
is made on the premises, or in the presence of the vendor. But it is not necessary
to name all of them. If, however, the demand is made to some only of the
purchasers, the pre-emptor can claim his rights as against these purchasers only,
and not as against the others.

It has also been held that the personal performance of the talab-i-ishtesh-had
depends on the claimant’s ability to perform it. He may do it by means of a letter
or a messenger, or may depute an agent if he is at a distance and cannot attend
personally. Any omission by the agent will bind the pre-emptor.

The pre-emptor must offer to pay the price that has been paid by the vendee, or, if
he considers the consideration alleged as not real, must express his willingness to
take the property for the actual price paid for it or the price fixed by the Court. But
he is not required to tender the price at the performance of either demands.

A transfer of property, after the proper demands, does not affect the right of the
pre-emptor.

Combination Of Demands

Sometimes, the first two demands may be combined. If, at the time of the first
demand, the pre-emptor has an opportunity of invoking witnesses in the presence
of the vendor or purchaser, or on the premises, or to attest the talab-i-mowasibat,
and witnesses are actually present to testify to this formality, the requirements of
both demands are satisfied.

The Third Demand – Talab-i-Tamlik or Talab-i-Khusumat

The third demand is not really a demand, but taking legal action, and is not
always necessary. It is only when his claim is not conceded that the pre-emptor
enforces his right by bringing a suit.

In a suit or claim for pre-emption, the whole of the interest must be claimed; a
claim to a part of the estate sold is not sufficient.
 Application of Pre-emption 197

Art. 10 of Schedule II of the Limitation Act prescribes the period of limitation. The
suit must be brought within one year of the purchaser taking possession of the
property, if it is corporeal; or within one year of the registration of the instrument
of sale, if incorporeal.

RIGHT OF PRE-EMPTION WHEN LOST

Right of pre-emption may be lost by acquiescence, death or release. In addition, a

co-sharer in the property loses his right by alienating his share in the property.

1. Acquiescence or Waiver

Most ordinary form of acquiescence is to omit to take the necessary formalities.

Example

S sells land to B. P, has a right of pre-emption in respect of that land. He has got the
information of the sale.

1. P does not claim his right immediately. There is no sufficient cause for his
omitting to claim his right immediately.

2. P makes an offer to build a house for B on that land.

3. P agrees to cultivate the land with B.

4. P takes the land on lease from B.

In each of these cases P is deemed to have acquiesced in the sale and to have lost his
right of pre-emption.

Where the waiver of the right is upon misinformation of the amount or the kind of
price, or of the purchaser, or of the property sold, the pre-emptor may assert the
right on being informed of the true facts (Abadi Begam vs. Inam Begam).

Waiver in favour of one vendee does not operate in favour of another vendee.

Example

The pre-emptor waives his right in favour of the vendee A, but the property is
purchased by B. The pre-emptor may assert his right of pre-emption against B.

If the vendor offers to sell the property to the pre-emptor and pre-emptor refuses
to buy it, he may still exercise right when vendor sells it to the vendee. His refusal
to purchase the property does not amount to waiver as he did not have the right of
pre-emption at that point of time. It arose only when the property was sold.
198 9. Pre-mption (Shufa)

2. Death

Under Hanafi Law, the right of pre-emption is a personal right, and is extinguished
if the pre-emptor dies after the first two demands, but before instituting a suit.
The right is extinguished if death occurs during the pendency of a suit, and the
action cannot be continued by his legal representatives.

Under Ithna Ashari and Shafie Laws, right descends to the heirs proportionately.

However, death of the vendee does not extinguish the right of pre-emption. The
pre-emptor may exercise the right against the legal heirs of the vendee.

3. Release

The right may be destroyed if there is a release for consideration to be paid to the
pre-emptor. The right, however, is not lost if there has been a refusal on the part
of the pre-emptor to buy before the actual sale, nor by an unwillingness to make
an offer to purchase the property after notice that the property was for sale.

4. Transfer

If a co-sharer or neighbour alienates the property on which his right of pre-

emption is founded, he loses the right of pre-emption.

Where the pre-emptor bungs an action to assert his right and it is found that he
had, before suit, transferred to another the property on which his light was
founded, his action must fall to the ground. In order to obtain relief his right must
be subsisting at the time of the decree. He may alienate the property after decree.

But to destroy the right the alienation must be absolute and not partial.

Being a personal right, the pre-emptor cannot transfer his right of pre-emption,
although he may convey the property sued for after purchasing it.

In Mehr Khan vs. Ghulam, it has been held that even a decree of pre-emption
cannot be transferred by the pre-emptor. If the pre-emptor transfers the decree,
then the transferee of the decree is not entitled to take possession of the pre-
empted property.

Extinction Of Right Is One Capacity Only

When the pie-emptor has right of pre-emption in different capacities, the

extinction of one does not affect the other.
 Application of Pre-emption 199

Example

P is both a co-sharer and a neighbour. P sells his share on which his right was
founded. He may still assert his claim on the ground of neighbourhood.

LEGAL EFFECTS OF PRE-EMPTION

Pre-emption amounts to the substitution of the pre-emptor for the vendee, i.e., the
pre-emptor stands in all respects in the shoes of the vendee, and takes the
property subject to prior equities.

Example

S agrees to sell to B land which is mortgaged to M for Rs 5,00,000. P enforces his

claim for pre-emption and takes possession of the land. P is liable to pay to M the
mortgage debt, whether he had notice of it or not.

If the sale has already been completed in its entirety, the original buyer becomes
the new vendor, and the pre-emptor the new purchaser. In that case, the original
buyer is entitled to receive or retain the rents and mesne profits between the date
of sale to himself and the date of the transfer to the pre-emptor.

The pre-emptor, by virtue of the right of pre-emption is bound to pay for any
improvement effected by the purchaser, unless the improvements are detachable.
Conversely, in case of deterioration in the hands of the purchaser, the pre-emptor
is entitled to a deduction. But where the deterioration has taken place without the
fault of the purchaser, the pie-emptor must pay the full value.

The pre-emptor’s rights are not affected by any attempted disposition of the
property by the purchaser, nor by the purchaser’s death. So also, after the
completion of the contract of sale, alterations in the terms of the sale, if any, do
not affect the pre-emptor.

DEVICES FOR EVADING PRE-EMPTION

Mahomedan Law, does not, in fact, permit evasion of the right of pre-emption. But
textbooks on Mahomedan Law describe some ‘devices’ for evading the right.

It is doubtful if they can be treated as permissible in India. Wilson mentions only

one which may conceivably be capable of achieving its object. The right of a
neighbour, though not that of a co-sharer or a participator, may be defeated by the
vendor reserving to himself a strip of land, however narrow, so that his land does
not actually adjoin the land sold.
 10. WAKF
The expression ‘wakf’ literally means ‘detention’. But in Mahomedan Law it means

1. State lands which are inalienable, used for charitable purposes; and

2. pious endowments.

In India, the expression is used in the second sense. Wakf is thus a pious endowment
which is inalienable and therefore supposed to be perpetual. But, in actual practice, this
quality of perpetuity is cut down by several limitations.

The origin of wakf is to be sought in the strongly marked impulse to charitable deeds
which is characteristic of Islam. The impulse to endow property ‘in the way of God’ ( li-
wajhi’l-lah, fi sabili’llah) increased gradually, and in the centuries that followed, shops,
warehouses, stables, baths, mills, bakeries, soap and paper works, looms, agricultural
establishments such as gardens, farms and even villages came to be endowed by way of
wakf. The commonest objects were to pay the mosque staff and to endow schools and
hospitals.

BASIC TERMS
Wakf means a dedication in perpetuity of some specific property for a pious purpose or a
succession of pious purposes.

When a wakf is made of a property, the proprietary right of the grantor is divested
therefrom, and it remains thereafter in the implied ownership of the Almighty. The
usufruct alone is applied for the benefit of human beings and the subject of the dedication
is rendered inalienable and non-heritable in perpetuity.

The person creating the wakf, or making the dedication, is called the wakif or the founder
of the wakf, or the settlor, or dedicator.

The property dedicated is called the subject of the wakf, or the wakf property or dedicated
property.

The purpose to which the wakif dedicates the income (the term income includes the
usufruct or rents and profits or benefit) of the subject of wakf, or declares that the income
shall be devoted to, is called the object of the wakf or of the object of dedication.

For whose benefit a wakf is created is called the mowkoof alaih i.e., cestuis qui trust
(beneficiary of the trust)1.

When the dedication is in writing, the document containing it, is called the wakfnama.

When a dedication by way of wakf is so made as to come into effect after the death of the
wakif it is called a testamentary dedication of wakf.

1 Plural mowkoof alaihim, cestuis qui trustent

 Basic Terms 201

The person entrusted with the fulfilment of the object of the wakf, and the carrying
out of the directions given at the time of its dedication, is called the mutawalli. A
mutawalli’s position is known as tawliyat.

A khankah is a Muslim monastery or religious institution, where dervishes and

other seekers after truth congregate for religious instruction and devotional
exercises.

A dargah is a shrine or tomb of a person honoured after his death as a saint.

An imambara resembles a mosque, but unlike a mosque, imambara is not

necessarily a public place of worship.

A sajjadanishin is a spiritual preceptor. He is the curator of a dargah or a khankah.

He may or may not be also the mutawalli of wakf property. (Sajjada means a
prayer-mat, and nashin, means the person seated thereon).

A mujawar is a caretaker of a shrine or mosque, or similar institution. He may also

sweep the premises.

DEFINITION
According to the Imam Abu Hanifa, wakf is

“the tying-up of the substance of a property in the ownership of the wakif and the
devotion of its usufruct, amounting to an ariya, for some charitable purpose”.

The two elements to be noted are that the right of the owner continues and that
the usufruct is to be devoted to some charitable or pious purpose.

According to the two disciples of Abu Hanifa, Imam Abu Yusuf and Imam
Muhammad wakf 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 wakif becomes extinguished and
is transferred to Almighty God for any purpose by which its profits may be applied
to the benefit of His creatures”.

This is an important definition and as it was accepted substantially by the later

Hanafi jurists. An analysis of the definition shows that it has three elements:

1. the ownership of God, hence, perpetuity and irrevocability;

2. the extinction of the founder’s right; and

3. the benefit to mankind.

This difference between the Imam and his two disciples is extremely important for
other purposes as well, and in this case the view of the disciples prevailed in the
succeeding centuries.
202 10. Wakf

The Shiaite View

The Sharai-ul-Islam defines wakf as follows:

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

The main points in this definition are

1. the immobilization of the corpus; and

2. the use of the income or profits for certain purposes.

The definition does not state clearly to whom the corpus belongs.

The Mussalman Wakf Validating Act, 1913

Sec. 2(1) of the Mussalman Wakf Validating Act, 1913 defines wakf as under:

“‘Wakf means the permanent dedication by a person professing the Mussalman

faith of any property for any purpose recognized by the Mussalman Law as
religious, pious or charitable.’

In Ma Mi vs. Kallander Ammal, the Privy Council has held that the above
definition is for the purposes of the Act and not necessarily exhaustive.

The Wakf Act, 1954

Sec. 2(i) of the Wakf Act, 1954 defines wakf as under:

“Wakf means the permanent dedication by a person professing Islam of any

movable or immovable property for any purpose recognised by the Muslim law as
pious, religious or charitable and includes-

(i) A wakf by user;

(ii) Grants for any purpose recognised by the Muslim law as pious, religious or
charitable; and

(iii) A wakf-alal-aulad to the extent to which the property is dedicated for any
purpose recognised by Muslim law as pious, religious or charitable.
 Legal Incidents of A Wakf 203

LEGAL INCIDENTS OF A WAKF

It is necessary to consider briefly the following dominant characteristics of a wakf.

1. Religious Character;

2. Perpetuity (Permanent Dedication);

3. Absoluteness;

4. Irrevocability;

5. Inalienability; and

6. Use for Mankind.

1. Religious Character

In the first instance, the motive must be religious; a merely secular motive would
render the dedication a gift or a trust, but not a wakf.

2. Perpetuity (Permanent Dedication)

Secondly, it is a permanent endowment. A pious gift which is not a permanent

foundation may be a sadaqa, but cannot in law be termed a wakf.

A wakf is not terminable. Permanency is ensured by the legal fiction that the
property is transferred to the ownership of Almighty God. In the eye of the law the
property belongs to God, and as such, the dedication is both permanent and
irrevocable. The property itself is ‘detained’ or, to use the expressive language of
French lawyers, it is ‘immobilized’ and no further transfers can be effected.

But under the rule of Imam Abu Yusuf which is the recognised law, it is not
necessary that it should he so stated at the time of dedication. When a dedication
is made by the term of any expression which conveys the meaning of permanent
appropriation, it is sufficient. When any such expression is used the law will
presume perpetuity. Where an object mentioned which is liable to become extinct,
the reversion unit be for the poor although they are not expressly mentioned at the
time of dedication.
Example

A wakf is created by a wakif for the benefit of his descendants. This is a valid wakf
under Hanafi Law though the descendants may become extinct at any time in future.
On such an eventuality, the beneficiaries of the wakf will be the poor, although it is
not so mentioned at the time of creation of the wakf.
204 10. Wakf

But under the Shia Law, there should be a clear mention that the wakf is in
perpetuity. If the wakf is created for the benefit of persons who are not permanent
in themselves, reversion must be reserved by express terms in favour of a
permanent class as its ultimate beneficiary.

It is now established beyond any possibility of doubt that any property capable of
being endowed in perpetuity can be the subject-matter of wakf.

3. Absoluteness

A wakf must be created in absolute terms. If any condition is attached to the

creation of a wakf, or if the creation of the wakf is made dependant on come
contingency, the wakf is invalid.

4. Irrevocability

A wakf, once it is validly constituted, is irrevocable. A testamentary wakf operates

only from the death of the testator, and there is nothing to prevent a man from
revoking his will and making another. Even such a revocation is not the revocation
of a wakf, but only the revocation of a will, which may result in the revocation of
the wakf created under that will.

If a condition is inserted in a deed of wakf, that the wakif reserves to himself the
power of revoking the wakf, the wakf is void ab initio.

But a wakif may at the time of dedication reserve to himself the power to alter the
beneficiaries either by adding to their number or excluding some.

North Svlhet Local Board vs. Gaznafar Ali

In a wakfnama the wakif reserved to himself certain powers in the following terms:
“If during my life-time, I so desire, I shall be competent to rescind or alter by a fresh
wakf-nama the provisions as to the appointment of the mutawalli and other rules
and procedure”.

It was held that the words of reservation did not imply the power of revocation of the
wakf, but only to the mutation of the mutawallis.

In Rashidunnissa vs. Ata Rasool, it was held that power to amend the wakf after
completion may be reserved; but not the absolute power to change the objects of
the wakf.
 Legal Incidents of A Wakf 205

4. Inalienability
As a wakf is a permanent endowment, perpetuity is ensured by the doctrine that
wakf property belongs to God and cannot be alienated by human beings for their
own purposes. Hence the rule of law that wakf property is not alienable.

Although wakf property cannot be sold, transferred or encumbered, in a fit case

the mutawalli may apply to the Court, and for the protection or the better
management of the wakf, he may sell or grant leases with the Court’s express
permission.

The prohibition to sell must not be confused with a mere variation of investments,
and the Courts have often consented readily to allow an alteration in the form of
investment

5. Use For Mankind

And lastly, the usufruct is to be utilized for the good of mankind. Under the
Mahomedan Law, every object which tends to the good of mankind, individually or
collectively, is a pious purpose. A dedication to a mosque signifies the support of a
place of worship for human beings, to a caravanserai (the maintenance of a place
of rest for travellers), a provision for ones children and descendants, kindred or
neighbours, is a pious object under the Mahomedan Law.

Except in the case of the Hanafis, in a wakf, wakif is not entitled to take any
benefit in the wakf property.

CREATION OF A WAKF

There is no essential formality or the use of any express phrase requisite for the
constitution of a wakf. It is also not necessary to use the word wakf. Any
expression which conveys distinctly the intention of the donor to dedicate the
property to a pious purpose is sufficient to constitute a valid dedication under the
Mahomedan Law.

Wakf may be created either by writing or verbally. Further, it may be made either
inter vivos to take effect in the dedicator’s life-time or by a testamentary
disposition to come into operation on his death.

Creation of wakf during marz-ul-maut is also valid. But where wakf is made
through a will or during marz-ul-maut, not more than one third of the wakif ‘s
estate may be dedicated, unless the legal heirs of the wakif give their consent to
206 10. Wakf

the dedication beyond the limit of one third of the estate of the wakif. The consent
must be given after the death of the wakif. A wakf through will (wakf-bil-wasiyat)
is revocable at any time during the lifetime f the wakif.

Contingent or Conditional Wakf

A contingent or conditional wakf is not valid. In Mohd Ahsan vs. Umar Daraz, a
wakif created a wakf with a condition that wakf shall not operate if a child is born
to the wakif. It was held that the wakf was invalid.

Wakf by User

A wakf may also come into existence without dedication by anyone. A wakf may
come into existence by an immemorial user. For example, a land which is used as
a burial ground from time immemorial partakes the characteristics of a wakf. So
also a mosque which is used as such from time immemorial is treated as a wakf.

Mazhar Husain vs. Adiya Saran

One Haidar Bakhsh, belonging originally to a wealthy Hindu family, adopted Islam in
1794 A.D. Even after that he remained in good terms with his Hindu brother and his
descendants. In 1813 he built a mosque and an imambara, and planted a grove
called Imam Bagh. The mosque was used for worship and the imambara for burial of
tazias in accord with the Shiite faith. There was no evidence that Haidar Bakhsh
ever executed a wakfnama and no direct evidence of any oral dedication by him.

Privy Council held that the wakf was created even without evidence of express
dedication.

QUALIFICATIONS OF THE WAKIF

The wakif must be

1. major (of 18 years of age or more);

2. of sound mind;

3. must be professing the Mussalman faith;

4. acting voluntarily with free will (not acting under compulsion, fraud, etc.)

5. must be the owner of the property which forms the subject of the dedication.

Neither a minor, nor a guardian on behalf of the minor, can make a wakf, and
such a wakf, even if purported to be made, is void.
 Creation of a Wakf 207

According to the classical jurists of Islam, even non-Muslims could make wakfs,
but the law requires that the objects for which the dedication is made should be
lawful according to the religion of the wakif as well as the Islamic doctrines. Under
the Wakf Act, 1954, however, a non-Muslim cannot make a wakf.

CONSIGNMENT TO A MUTWALLI

Under Sunni Law, consignment to a mutwalli or delivery of possession is not

necessary. If after constituting the wakf, the wakif, continues in possession he
does so as a trustee for the beneficiaries and is accountable as such.

But under the Shia Law consignment to a mutwalli or delivery of possession is

necessary to complete the act except where the wakf is created for

1. the benefit of minors; or

2. (a) a pious purpose, or

(b) benefit of public at large, or

(c) benefit of large bodies of people.

Where the wakif himself is the mutawalli, question of consignment or delivery of

possession does not arise.

What is required under the Law is that there should he a transmutation of the
proprietary right and that the subject of the wakf should cease to be the property
of the wakif.

SUBJECT OF WAKF

Hanafi law recognises the following as valid subjects of wakf:

1. immovable property;

2. accessories to immovable property;

3. Quran or other books;

4. Such other things as it is customary to make the subject of wakf.

The property must be of the ownership of the wakif. It may be movable property or
immovable property. If it is a moveable property, it must be of permanent nature
or renewable from time to time.
208 10. Wakf

According to Abdur Rahim, the movable property dedicated must possess two
characteristics:

1. It must be mal, tangible property, and

2. it must be capable of being used without being consumed.

Subject to this, there are no further restrictions. The terms of the Mussalman
Wakf Validating Act, 1913, Sec. 2(1), where the expression ‘any property’ is used,
are wide enough to include almost every species of property.

Where money is dedicated it will be invested in commerce or business, and the

proceeds applied to the benefit of the purposes for which the benefaction is
created.

Dedication of any of the following properties is valid:

1. mushaa (an undivided part in property);

A mushaa (an undivided part in property) whether it is capable of division or

not, may be validly dedicated as a wakf, as delivery of possession is not
necessary under the Sunni Law. However, under the Shia Law, delivery of
possession to the mutawalli is mandatory, and therefore, creation of wakf of a
mushaa is valid only if the mushaa is not capable of division. Creation of wakf
of a mushaa which is capable of division is not valid.

But where a mushaa is to be used for a mosque or a burial ground, mushaa

cannot be dedicated, irrespective of whether it is capable of division or not. This
is because continuous participation of other in the property will be repugnant to
the God becoming the exclusive owner.

2. a property which has been mortgaged,

Where a mortgaged property is dedicated, its income will be devoted to the

discharge of the debt, and after it has been paid oft, it will be applied to the
purposes of the dedication.

3. a property which is leased and in the possession of a lessee.

Under the Hanafi Law, a wakif may lawfully make a dedication with the condition
that the income of the property should be applied to his benefit or to the payment
of his debts. Under the Shia Law such a condition would be invalid.
 Creation of a Wakf 209

OBJECT OF THE WAKF

A wakf must be created with some clear object.

The object

1. must not fail

2. must be expressly set forth, and

3. must be recognised by Muslim Law, as religious, pious, or charitable.

The real object of making a wakf is to acquire merit in the eyes of the Lord. All
other purposes are subsidiary. Therefore every purpose considered by the
Mohammedan Law as ‘religious, pious or charitable’ are considered valid. Where
the object of a wakf is against the principles of Islam or, is prohibited in Islam, the
object is illegal, and the wakf has to fail.

This includes a wakf created in favour of the settlor’s family, children and
descendants (wakf-alal-aulad). Reservation of life interest for benefit of wakif
himself is permitted under the Hanafi Law. Therefore, the wakif may provide in
the wakfnama that during his life time that he must be maintained by income of
wakf property or the whole of the income from the wakf property may be reserved
used to pay his debts.

The object need not be specifically mentioned. It may be mentioned generally.

Thus, a wakif may settle property by stating “to be used for the objects permitted
by Shariat”.

Certainty

The objects of a wakf are not always indicated with reasonable certainty. On this
point there is an interesting divergence of view between modern authorities and
the ancient ones.

The view of the ancient jurists, however, was different. According to them, once a
man made a wakf, even without designating clearly the purpose for which the
income was to be applied, it was nevertheless a lawful dedication. They were of the
view that just because the object of wakf is unclear, the wakif cannot be denied of
his right to make wakf. In such cases the income from the wakf property may be
used for the benefit of the poor because they are always the ultimate beneficiaries
in wakfs.
210 10. Wakf

The modern view is that the purposes of a trust must be indicated with reasonable
certainty; if they are not, the trust fails. Applying this doctrine, a number of wakfs
have been held to be void. The view of modern jurists is in respect of trusts, which
cannot be properly applied to wakfs.

There is a divergence of opinion between different High Courts in India. Some High
Courts have applied the ancient doctrine while some other High Courts have
applied the modern doctrine. Despite conflict of opinions on the subject, the latest
tendency appears to be that:

1. Once it is clear that there is a bona fide intention on the part of the wakif to
create a wakf, and divest himself completely of the property, there is a good
wakf which will not be allowed to fail. A valid wakf may thus be constituted:

(a) where the objects are not specified at all,

(b) where the objects fail as being impracticable, or

(c) where the objects are partly valid and partly invalid.

2. The poor, by necessary implication, constitute the ultimate beneficiaries of every

wakf.

Uncertainty Or Impracticability
Where the object fails because of uncertainty or impracticability, doctrine of cy
pres may be applied.

Doctrine Of Cy Pres

Cy pres means “as nearly as possible”. This term is applicable mainly to trusts. If
wishes of maker of a trust cannot be carried out literally, it will be carried out as
nearly as possible. Similarly, if due to change of circumstances or lapse of time,
etc., the property cannot be applied for the purpose of trust as per the wakif’s
desire, the Court may apply it for

1. a similar purpose;

2. benefit of poor;

3. some other purpose as per its own scheme.

Example

A wakf is created for adult education. After some time it is found that all adult
persons are educated. The income of the wakf property may be applied for higher
education, or education to children.
 Creation of a Wakf 211

Intention of wakif is important. There cannot be unintentional diversion of

property to other purposes.

In Salebhai vs. Bai Sfaiabu, the Court held that where the testator has indicated
a general charitable intention in the bequest made by him, and if these bequests
fail, the Court may devote the property to religious charitable purposes, according
to doctrine of cy pres.

In Kulsoom Bibi vs. Ghulam Hussain, it was held that where a clear intention is
expressed in the instrument of wakf, it will not be permitted to fail just because
the objects, if specified, happen to fail, but the income will be applied for the
benefit of the poor or as near as possible to the objects which failed.

Object Of The Wakf Being Partly Valid And Partly Invalid

Where the object of the wakf is partly valid and partly invalid,

1. If the property which is dedicated for the invalid object may be separated from
the property which is dedicated for the valid object, then the creation of wakf for
invalid object will fail. The property dedicated for the invalid object will revert
back to the wakif. Wakf will come into existence only in respect of the valid
object.

2. If the property dedicated for invalid object cannot be separated from the
property dedicated for valid object, the whole property will be dedicated for valid
object.

KINDS OF WAKF

Ameer Ali classifies wakfs into three categories:

1. in favour of the rich and the poor alike.

2. in favour of the rich and then for the poor.

3. in favour of the poor alone.

1. WAKFS IN FAVOUR OF THE RICH AND THE POOR ALIKE

Poverty is one of the many qualities that are recognized as being capable of
attracting the benefit of a wakf, but it is by no means a sine qua non. Law does not
insist that a man must necessarily be proved to be poor before he can take the
benefit of a wakf.
212 10. Wakf

This class of wakfs would comprise what might be termed in modern law public
trusts of a charitable or beneficial character. For example, schools or hospitals
open to all persons.

2. WAKFS IN FAVOUR OF THE RICH AND THEN FOR THE POOR

This class would include family wakfs in favour of a settlor’s family, the ultimate
benefit of which goes to the poor.

3. WAKFS IN FAVOUR OF THE POOR ALONE

The third class of wakfs would comprise endowments for giving food, clothing or
medical relief to the needy alone.

According to another classification, there may be three types of wakfs.

1. Private Wakf;

2. Public Wakf; and

3. Quasi Public Wakf.

PRIVATE WAKF

A wakf created for the wakif’s own family or descendants (wakf-alal-aulad) is a

private wakf.

A private wakf was void before 1913.

Abdul Fata Mohd Isitak vs. Rassomoy Dhur Chowdhury

Two Muslim brothers created a wakf for the benefit of their descendants from
generation to generation, and only in their total absence for the benefit of widows
and orphans.

The Privy Council held that the gift of charity was illusory and the sole object of the
settlor was to make family settlement in perpetuity. Therefore, the provision for the
srttlor’s family was invalid.

This decision caused considerable dissatisfaction among the Muslims and as a

result the Mussalman Wakf Validating Act, 1913 came to be passed. Under this
Act, wakf-alal-aulad is permitted.
 Kinds of Wakf 213

PUBLIC WAKF

A wakf created for some public religious or charitable purpose is a public wakf. It
is not created solely for the wakif’s family.

Wali Mohd. (Deceased) by his L.R.s vs. Smt. Rahmat Bee and Others

The offerings were not restricted to prayers at the tomb of the wakif or his family
members. The grant was given by the head of the order and related to the prayers at
a number of tombs at a graveyard. Held, the wakf was of public nature.

Therefore, the direction to conduct fateha at the graveyard and to use the rouse for
that purpose were held to be valid objects of a wakf beyond any doubt.

PUBLIC AND QUASI PUBLIC WAKF

Wakfs in favour of the rich and the poor alike fall in this category.

Therefore, all persons, regardless of considerations of wealth, are entitled to come

in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other
purposes fail, the relief of the poor is the ultimate purpose of every wakf.

DIFFERENCES BETWEEN WAKF AND TRUST

Mahomedan Law relating to wakfs differs fundamentally from the English Law
relating to trusts.

1. The object of wakf is always religious; in trust, it is generally temporal.

2. A wakf has to be perpetual, inalienable and irrevocable. In a trust, permanency,

inalienability and irrevocability are not an essential conditions.

3. In a wakf, except in the case of the Hanafis, a wakif is not entitled to take any
benefit in the wakf property, but in a trust, the settlor himself can lawfully take
an interest.

4. In a wakf, the ownership of wakif ends and is vested in God. In a trust there is
a dual ownership, equitable and legal. The property vests in the trustee.

5. As to the administration, a mutawalli differs widely from a trustee. A mutawalli

is merely a ‘procurator’, manager or superintendent, ‘the property is not vested
in him and he is not a “trustee” in the technical sense’.

6. A mutawalli is entitled to remuneration, a trustee is not.

214 10. Wakf

THE MUTAWALLI

A wakf property belongs to the Almighty and is a God’s property. There must be
some human agency to look after the dedicated property on behalf of the God. The
mutawalli is not the owner of the property. The wakf property does not vest in
him. Mutawalli is merely the servant of God, managing the property for the good of
His creatures. He is not a trustee, but a manager or superintendent of property.

APPOINTMENT OF MUTAWALLI
1. By Wakif

The wakif may appoint himself or any other person as a mutawalli. The wakif has
the power of appointing a mutawalli during his lifetime whenever he likes. He is
also authorised to lay down the scheme according to which the subsequent
mutawallis are to be appointed in future.

2. By the Wasi (Executor) of Wakif

If he dies without making any express appointment, the power devolves upon his
wasi (executor).

3. By Kazi (Court)

In the absence of an executor, as a general rule, the Kazi (Court) has the power to
nominate a mutawalli.

1. The Court should not as far as possible disregard the directions of the wakif.
The primary duty of the Court is to consider the interests of the general public,
for whose benefit the wakf is created.

2. Preference should be given to a member of the wakif’s family over a total

stranger.

3. In a contest between wakif's lineal descendant and one who is not a lineal
descendant, the Court is not bound to appoint the lineal descendant, the Court
is free to exercise its discretion.

4. By Congregation

Where the wakf is in favour of an ascertainable body of people limited in number,

the beneficiaries may elect a trustee. Similar rule is applicable to a wakf. As such,
appointment of mutawalli by devotees or congregation of a mosque is valid.
 The Mutawalli 215

5. By Earlier Mutawalli

The existing mutawalli has no power to appoint his successor. But if he is on

death bed and there is no possibility of appointment of his successor, then he
himself can appoint subject to two conditions.

1. he is on death-bed and there is no chance of his survival; and

2. the office of mutawalli would remain vacant if he does not appoint his successor
before his death.

6. By State Wakf Board

When there is a dispute between two persons to the office of mutawalli or about
the competency of the mutawalli then the State Wakf Board has the power to
appoint the mutawalli for a specified period or till the matter is disposed of.

7. By State Government

When wakf deed or order of Court provides that any authority may appoint the
mutawalli, the state government shall in consultation with the local board appoint
the mutawalli.

QUALIFICATIONS OF MUTAWALLI

Anyone who is major (18 years of age or more) and of sound mind may be
appointed as a mutawalli. A minor or a person of unsound mind cannot be
appointed as a mutawalli. But, where the office of the mutawalli is hereditary, and
the person entitled to succession is a minor, the Court may appoint another
person to discharge the duties of the mutawalli during the minority of such
person.

Free will and professing Islam are not necessary conditions. The main requirement
is that he must be capable of performing the functions to be discharged under that
particular wakf.

Thus, a woman may be appointed as mutawalli, but if the office has spiritual
functions to perform, which may be performed only by a man, a woman cannot be
appointed as mutawalli. The same principle is applicable to a non-Muslim.

A woman or non-Muslim cannot hold the offices of Sajjadanashin, Khatib,

Mujawar of a daragah or an Imam of mosque.
216 10. Wakf

POWER AND DUTIES OF MUTAWALLI

Besides legal duties, a mutawalli has also the religious and moral obligation to
take care of the wakf property.

It is the power as well as the duty of the mutawalli to do everything that is

necessary and reasonable to protect and administer the wakf property.

He may, in like manner as a trustee, employ agents and servants to perform the
ministerial acts necessary to carry out the duties of his office.

In general, a mutawalli has no power, without the permission of the Court to

mortgage, sell or exchange wakf property or any part thereof except where

1. he is expressly empowered by the wakfnama to do so,

2. he has obtained the permission of a competent Court, or

3. there is an urgent necessity.

A mutawalli may, with the permission of court–

1. borrow money;

2. sell, mortgage or dispose of wakf property in any other way;

3. to grant a lease.

Sec. 56 of the Wakf Act, 1995 provides that notwithstanding anything in the
wakfnama or any law for the timebeing in force, a lease of an immovable
property belonging to the wakf by mutawalli for a period exceeding 30 years is
void and of no effect.

The first proviso to sec. 56 provides that a lease for any period up to thirty years
may be made for commercial activities, education or health purposes, with the
approval of the State Government. Further, previous sanction of the Board is
mandatory for a lease for a period of one year but not exceeding thirty years.

The second proviso to sec. 56 provides that notwithstanding anything contained

in the wakfnama or in any law for the time being in force, lease of any
agricultural land belonging to wakf, for a period exceeding three years shall, be
void and of no effect.

Every lease of a wakf property shall be through bids.

Mutawalli has no beneficial interest in the wakf property. He is bound to

distribute the benefit according to the directions laid down in the wakfnama.
 The Mutawalli 217

A mutawalli is competent to file a suit for protecting and for administering wakf
property.

A mutawalli is entitled to remuneration, if any fixed by the settler. If the amount

fixed is too small, the mutawalli may apply to the Court for increasing the
allowance.

A mutawalli has no power to transfer the office to another, but he may appoint
deputies or agents to assist him in the administration of the wakf.

REMOVAL OF MUTAWALLI

Once the wakif has appointed a mitawalli, he cannot remove him for any reason
whatsoever.

The Court, however, may, in a fit case remove a mutawalli and appoint another in
his place. The grounds on which a Court may remove a mutawalli are,

1. misfeasance;

2. breach of trust;

3. neglect in repairing wakf property in despair irrespective of funds in hand;

4. knowingly or intentionally causing damages to the wakf property;

5. insolvency; or

6. on the mutawalli claiming adversely to the wakf.

Under sec. 64 of the Wakf Act, 1995, Wakf Board has the power to remove a
mutawalli on the following grounds:

1. conviction of penalties as per s. 61 of the Wakf Act, 1995;

2. failure to register the wakf;

3. failure to carry out direction of Wakf Board;

4. conviction for criminal breach of trust or an offence involving moral turpitude;

5. insolvency, unsoundness of mind, being drunkard, having physical defect;

6. advocate against wakf;

7. failure to maintain regular accounts of the wakf;

8. continuous neglect of duties;

9. misapplication of wakf funds.

 11. GIFT (HIBA)
For a transfer of property two parties are necessary. One, the transferor and the other,
the transferee.

Transfers of property may be classified under two heads:

1. Transfers Inter Vivos;

2. Testamentary Transfers.

A transfer inter vivos, means a transfer between two living persons. Both, the transferor
and the transferee are living persons. Gift is an example of a transfer inter vivos, while
transfer through will is testamentary transfer.

Both gifts and testamentary transfers are quite similar in the sense that the transferor,
out of his free will, transfers his property to the transferee without any consideration.
Therefore, sometimes a transfer through will is referred to as a gift. But there is a main
difference between the two. Gift takes place immediately, while a transfer through will
takes place on the death of the testator (maker of the will).

In Mahomedan Law, there is another possibility which falls somewhere in between these
two transactions. It is called a gift during marz-ul-maut, i.e., a gift during death-bed
illness. It has characteristics of both gift and will.

The main transfers inter vivos to which Mahomedan Law is applicable are Hiba and
Wakf. Other transfers inter vivos, i.e., sale, exchange, lease and mortgage are governed
by secular law such as the Sale of Goods Act, 1930, Transfer of Property Act, 1882
Indian Contract Act, 1872, etc.

GIFTS UNDER MAHOMEDAN LAW

A hiba is a gift and is, generally speaking, divisible under three heads:

1. hiba;

2. hiba-bil-ewaz;

3. hiba-ba-shart-ul-ewaz.

Hiba-bil-ewaz (a gift for a consideration) is more in the nature of an exchange than a gift.
Hiba-ba-shart-ul-ewaz is a gift made on the condition that the donee should pay to the
donor at some future time or periodically some determinate thing in return for the gift.

As to movable property, the term usually applied is atiyya or hadiyya, rather than hiba.
 Hiba 219

HIBA
A hiba properly so called, is a voluntary transfer, or a grant, of some specific thing,
by one person to another, without consideration.

More generally, we may define gift as a 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.

A hiba may be made orally or in writing. The provision of Transfer of Property Act,
1882 which requires that a gift of an immovable property shall be compulsorily in
writing is not applicable to hiba. In Kamar-un-Nissa Bibi vs. Hussaini Bibi Privy
Council upheld an oral gift when it appeared to be supported by all the attendant
circumstances.

If a gift of an immovable property is made in writing, i.e., through a Gift Deed,

registration of the is compulsory under sec. 17(1)(a) of the Registration Act, 1908.
Gifts of movable properties, if in writing, may be registered at the option of the
parties. Oral gifts, of movable properties as well as immovable properties may be
completed by delivery of possession.

ESSENTIAL REQUIREMENTS OF A VALID HIBA

There are four essential requirements of a valid hiba.

1. competent parties;

2. subject matter (mouhoob);

3. extent of donor’s power; and

4. formalities.

1. Competent Parties

There are two parties to any gift, one the donor, who makes the gift, and the other,
donee who takes the gift.

The capacity for making a gift or voluntary settlement is dependent upon the same
conditions as are required for the validity of any other contract, viz., the donor
must be:
220 11. Gift (Hiba)

1. rushd (majority i.e., 18 years of age and above)

2. akl (soundness of mind)

3. mukhtar (free agent)

4. ownership of the mouhoob (subject-matter of the gift)

In other words, a person, in order to be able to make a valid gift, must be sui juris,
must be able to understand the nature of the act, be subject to no undue
influence, coercion or duress, and must be the owner of the property of which he
purports to make the disposition.

A gift by a pardanashin lady is equally valid, but the burden of proving that she
made the gift with proper knowledge of what she was doing and the knowledge of
the consequences of her act and also that she was acting with her free will, free
from coercion, undue influence, etc. is on the donee. If the donee is minor or of
unsound mind, the gift may be accepted on his behalf by his guardian.

Mst. Hussaina Bai vs. Mst Zohra Bai

A pardanashin Muslim lady was brought from Nagpur on the false pretext that her
sister’s husband was seriously ill. Her signature was obtained on a document
misrepresenting that she was making a gift of only one property to the plaintiff which
will take effect only after her death. She was not allowed to take independent advice.

The Madhya Pradesh High Court held that in case of pardanashin lady it is necessary
to satisfy the Court that she executed the document with full understanding of the
contents and their effect. Even where she had an independent advice, the Court will
scrutinize the transaction very closely to see that it was fair. Where the document is
not in her mother tongue, the law requires that it should be not only read over to her,
but must be explained to her in her mother tongue.

The protection given by the Court to pardanashin ladies is, in fact, a protection
given by law to weak, ignorant and infirm. Therefore, the principle is equally
applicable to ladies who are not actually pardanashin, but are still illiterate or
ignorant.

Any person, including an artificial person, may, without distinction of sex, age or
creed, receive a gift provided he or she is in existence at the time of the gift.

Gift To Unborn Persons

An absolute gift, therefore, to an unborn child, one not in esse, either actually or
presumably, is invalid. But a gift to a child en ventre sa mere (child in womb) is
valid, if the child be born within six months from the date of the gift, because in
that case it is presumed that the child was actually existing as a distinct entity in
the womb of its mother.
 Hiba 221

2. Mouhoob (The Subject of the Gift)

Anything which may be owned may form the subject of a gift. It may be anything
which comes within the meaning of the word mal. It may be movable property or
immovable property. It may be corporeal property or incorporeal property.

The property must be a present property, i.e., it must be in existence at the time of
making the gift. Gift of a future property i.e., a property which is to come into
existence on a future date, is not valid.

Further, the donor must not only be the owner of the property, but must also have
the possession of the property. The possession may be actual or constructive.

Thus, a property in the occupation of a tenant may also be gifted. It implies the
constructive possession of the property and grant of the right to receive the rent
from the tenant during the subsistence of lease and to receive the actual
possession of the property from the tenant on the termination of the lease.

Gift Of Life Interest In A Property

In law, a property has two elements, namely, the corpus i.e., the property itself,
and the usufruct, i.e., the use of or income from the property. In Mahomedan Law,
they are called ayn or mal, and manafi, respectively. Gift of the ayn (tamlik-ul-ayn)
is hiba, while gift of the manafi (tamlik-ul-manafi) is called ariya.

Hiba gives absolute right of ownership of the property to the donee. The donee may
enjoy both the property as well its usufructs. The right of the donee over the
property is transferable as well as heritable.

Ariya does not give right over the property to the donee. It only gives him a right to
enjoy the benefits of the property. He may use the property himself or he may let it
out to someone and enjoy the income of the property. The right is limited in point
of time and is not heritable.

Where a person is gifted the usufructs of the property during his life time, i.e., till
his death, it is called the gift of the life interest in the property, and the donee is
called the life tenant. This is because he has the right to enjoy the property during
his life time, but does not have the right to alienate it it. His position, thus, is
similar to that of a tenant.

Though in Sardar Nawazish Ali Khan vs. Ali Raza Khan, the Privy Council
held that life interest in a technical sense was not known to Mahomedan Law, in
Amjad Khan vs. Ashraf Khan, Privy Council held that a gift of life interest is
valid under the Mahomedan Law.
222 11. Gift (Hiba)

3. Extent of Donor’s Power

As a general rule, a Mahomedan donee has an unrestricted power to gift his

properties. He may gift away his entire estate, thereby leaving nothing to his legal
heirs (Ranee Khajoorun-nissa vs. Mst. Roushan Jehan).

But a gift during marz-ul-maut is like a transfer through will and the restrictions
applicable to the testamentary capacity of a Muslim are applicable to such a gift.
The following are the two restrictions:

1. The gift cannot be in excess of one-third of the estate of the donor; and

2. The gift cannot be to the legal heirs of the donor.

Even a gift in contravention of the above restrictions is valid, if all the legal heirs of
the donor give their consent. But the consent must be given not at the time of
making the gift, but after the death of the donee.

4. Formalities

In P. Kunheema Umma vs. Aayssa Umma, Kerala High Court has laid down that
the following formalities for a valid hiba.

1. declaration by the donor (ijab);

2. acceptance by the donee (qubool); and

3. delivery of possession (kabza) by the donor to the donee.

1. Declaration By The Donor (Ijab)

The legal effect of every transfer depends on the intention of the transferor.
Therefore, there must be a clear and unambiguous declaration of the intention of
the donor to make a gift. A declaration may be oral or written.

The declaration must be of a bona fide intention of divesting himself in praesenti of

his proprietary title in the property gifted by the donor. Where there is no real
intention to make a gift, the gift fails. For example, sham gifts, colourable or
benami transactions are not bona fide transactions.

The manifestation of that intention must be clear and unambiguous.

The declaration must be made with free will. If the declaration is made under
coercion, undue influence, fraud or misrepresentation, the gift is void.
 Hiba 223

2. Acceptance By The Donee (Qubool)

A gift does not take effect unless accepted by the donee, or by some person on
behalf of the donee. Where the donee is a minor, the gift may be accepted on his
behalf by his guardian.

In Kamarun-nissa vs. Hussaini Bibi, the Allahabad High Court has held that
where the gift is made by the father or other guardian of a minor in favour of that
minor, acceptance of the gift is not necessary. This is because, the same person
who is making the gift is also the person who has to accept the gift.

3. Delivery Of Possession (Kabza) By The Donor To The Donee

Possession of the subject-matter of the property must be delivered by the donor to

the donee or some person representing the donee. A gift to a minor or a person of
unsound mind may be delivered to his father or guardian, as the case may be. If a
minor girl is married and is living with her husband, a gift of which possession is
taken by the father or the husband is equally good.

How the possession of a property may be delivered depends upon the nature of the
property itself.

Delivery of possession may be

1. actual delivery of possession;

2. symbolic delivery of possession; or

3. constructive delivery of possession.

Where the property is a movable property like gold, cash, etc., possession of the
same may be delivered by handing over. This is called the actual delivery of
possession. In case of money a mere entry in the book of accounts is not
sufficient. The money must be actually delivered to the donee.

If the movable property is of such nature that its possession cannot be delivered
by handing over, then the delivery of possession may be what is called symbolic
delivery of possession. Thus, delivery of possession of a vehicle may be effected by
the handing over of its key. So also where the subject-matter of gift is kept in a
godown or warehouse, the key of that godown or warehouse may be the symbolic
delivery of possession of those goods. Delivery of title deeds amounts to the same.

If the property is an immoveable property, as a general rule, two things are

necessary to effect the delivery of possession.
224 11. Gift (Hiba)

1. The donor must physically depart from the premises;

2. The donee must formally enter into possession.

Where the property gifted is lawfully in the possession of another person, the
delivery of possession may be constructive delivery of possession. For example,
some movable property is given by A to B for month’s use. After the expiry of that
period of one month, B has to return the property to A. If A instructs B to deliver
the property at the expiry of that period, to C, it is constructive delivery of
possession of that thing by A to C.

A Mahomedan gift may be complete without delivery of actual possession in the

following cases:

1. Gift by father to his minor son or son of unsound mind or gift by guardian to
his ward. This is because the person entitled to receive possession on behalf of
that minor or person of unsound mind, is the donor himself.

2. Where both donor and donee reside in the same property. It has been
observed in Hayatuddin vs. Abdul Gani and Others, that where both donor
and the donee reside in the same property, physical departure and formal entry
are not necessary. A clear intention to gift the property to the donee may be
sufficient. This may be done, for example, by change in names in the Municipal
records.

Gift Between the Spouses is an example of this kind of gift.

Transmutation of Possession: In considering the question of transmutation or

delivery of possession, the relationship between the parties must be kept in
mind.

Examples

A husband makes a gift of a house or landed property to his wife, and continues to
reside in the house or to realise the rents and profits of the estate. The gift cannot be
held to be invalid on that ground. Because those acts are explainable by the
relationship of the donor and the donee.

Similarly, a father makes a gift of his business to his minor son and continues to
manage that business on behalf of his son, the gift will not be invalid on that account.

3. Gift by one co-sharer to another. In this case also actual delivery of

possession in not a sine qua non.

4. Part Delivery of Possession. Proof of delivery of some of the properties gifted

gives rise to presumption that other properties are also delivered.
 Hiba 225

5. Gift of Zamindari Villages. In this case the lands consisted of the entire village
or villages or parcels of large amount of lands, the physical possession of which
was impossible. Therefore, delivery of possession was not essential to complete
the gift. The gift could be completed by mutation of names and transfer of rents
and incomes.

6. Gift of property in the possession of a tenant. This may be completed by

asking the tenant to pay the rent to the donee in future and to deliver the
vacant possession of the property to the donee on the expiry of the term of
lease.

7. Gift of incorporeal property. An incorporeal property such as copyright,

patent or trade mark, or fishing right etc. has no physical presence and,
therefore there cannot be delivery of possession in the case of gifts of such
properties. The gift may be completed by appropriate method of transferring the
control over the property, and by the donor divesting himself of all his rights
over the property.

8. Where the donee is in the possession of the property gifted to him.

Mohammad Hesabuddin vs. Mohammad Hesaruddin

The donor was an old aged lady and the donee was one of her sons. Donee alone was
looking after and maintaining the donor. Other sons neglected her. Therefore, out of
love and affection for the donee, the donor gifted her land to the donee. The donee
was already in the possession of the land and he got his name mutated in the
revenue records.

It was held that though there was no actual delivery of possession, the gift was valid.

9. Property in the Possession of a Trespasser. Supreme Court has held that gift
of property in the possession of a trespasser is not invalid. The donor may
recover the possession from the trespasser and deliver it to the donee, or he
may put donee in a position to recover the possession of the property from the
trespasser.

Registration

Hiba may be made orally or in writing. Requirement of registration depends upon

the nature of writing. There are two types of documents

1. Gift Deed (Hibanama);

2. Memorandum of Oral Gift

226 11. Gift (Hiba)

A Gift Deed of immovable property is a document which effects a gift. Gift takes
place on execution of the deed. Thus, the transfer of property takes place on
execution of the Gift Deed. Therefore, registration of Gift Deed is mandatory under
sec. 17(1)(a), irrespective of the value of the property.

However, if an oral oral gift is made, and a that fact is recorded in writing, it is
called a Memorandum of Oral Gift. This document does not effect a gift, but only
records the fact that an oral gift is already done. The transfer of property is done
orally. Therefore, question of registration does not arise. The Memorandum only
records a transfer which has already taken place. It does not effect any transfer of
property. Therefore, registration of Memorandum is not necessary.

Courts, normally, do not look at the language of a document, but the effect of the
document. Therefore, we must keep in mind that the language of Gift Deed is in
present tense, while the language of the Memorandum of Oral Gift must be in past
tense. If a Memorandum is drafted in present tense, it become a Gift Deed, and
requires compulsory registration.

Sec. 49(c) of the Registration Act, 1908 provides that any document, registration of
which is compulsory, is not registered, it shall not be admitted in evidence.

Therefore, if a Gift Deed, or Memorandum of Oral Gift which is written in present

tense, is not registered, it will not be received as evidence of the gift.

Further, sec. 91 of the Indian Evidence Act, 1872 provides that where a transfer of
property must be in writing, and where a transfer of property though not required
to be in writing, is actually made in writing, oral evidence of such transfer is not
admissible.

Thus, if a Gift Deed in respect of immovable property is not registered, it will not
be admitted in evidence, and oral evidence is also not admissible. Therefore, such
gift cannot be proved.

If the Gift Deed is in respect of a movable property, registration of such Gift Deed
is optional under sec. 18(1)(d) of the Registration Act, 1908. Therefore, there does
not arise any need of making a Memorandum of Oral Gift, if the property gifted is
a movable property.

Sec. 49(c) of the Registration Act, 1908 is not applicable and irrespective of
registration, a Gift Deed in respect of movable property is admissible in evidence.
But Sec. 91 of the Indian Evidence Act, 1872 is still applicable and oral evidence of
the gift is not admissible if there is a Gift Deed.

Where a Gift Deed covers both movable and immovable properties, law applicable
to gifts of immoveable properties will be applicable to such Gift Deed.
 Hiba 227

VOID GIFTS

The following gifts are invalid:

1. Gift to Unborn Person;

2. Gift of Future Property;

3. Contingent Gift;

4. Conditional Gift;

5. Gift of Mushaa.

1. Gift to Unborn Person

Gift is a transfer inter vivos. Therefore, both the parties, i.e., donor and donee
must be living persons. An unborn person cannot be a donee. Thus, if A makes a
gift of his land to his grandchild, where his son is still unmarried, the gift is void.

But if the transfer is made to a child in womb, and the child is born within six
months from the date of the gift, the gift is valid. This is because, the birth of the
child within six months shows that when the gift was made, the child was a foetus
of three months, and it had already acquired life and could be called a living child.

Using the instrument provided under sec. 13 of the Transfer of Property Act, 1882,
gift may be made to the interest of an unborn person. The following is the method
of making gift to the interest of an unborn person:

1. Life interest must be created in respect of the property to be gifted, in one or

more persons, simultaneously or successively.

2. The whole of the remaining interest must be gifted to an unborn person.

‘Whole of the remaining interest’ means that the property must be absolutely
gifted to the unborn person. Property transferred to the unborn person cannot
be life interest.

3. The unborn person must be born before the termination of the life interest or
life interests, as the case may be.

Example

A has only one son B who is unmarried. A transfers his house to B for life, and, after
the death of the B, B’s son.

B has a life interest in the house. He may enjoy that house as if he is the tenant in
respect of that house. He may reside in that house or he may let it out to a tenant
228 11. Gift (Hiba)

and enjoy the rent. But he may not alienate the property through sale, exchange,
gift, etc.

Then B should get married, and must beget a son. If B gets married and begets a son
C, C will get the property after the death of B.

If B dies

1. without marrying; or
2. after marrying but without begetting a son; or
3. after marrying and begetting a son, but the son is born after B’s death,

the gift fails, and the property reverts to A if A is alive, and to legal heirs of A, if A is
deceased as on the date of B’s death.

2. Gift of Future Property

The property which is gifted must be in existence at the time of the making of the
gift. Gift of a property which may come in existence in future is void. Thus, gift of
crop which will be grown next year is void. Gift of crop already grown in valid.

Further, if the property is in existence, but does not belong to the donor, and the
donor has to acquire the property in future, the gift is void. Distinction should be
made between acquiring ownership and acquiring the possession of a property.

3. Contingent Gift

A gift cannot be made dependent on the happening or non-happening of a future

uncertain event. A gift made by A to B if India wins a cricket match next week is
void.

4. Gift with Condition Attached

There is a distinction between a conditional gift and gift with a condition attached
to it.

Conditional Gift
A gift may be made subject to a condition. But the condition must be lawful. If the
fulfilment of the condition requires doing of some illegal or immoral act, the
condition is void.

A condition which is to be fulfilled before the transfer is complete is called a

condition precedent. If a condition precedent is void, under the Transfer of
Property Act, 1882, both condition as well as the transfer is void.
 Hiba 229

Gift With A Condition Attached

A gift with condition is a gift which is made absolutely, and the donee is asked to
fulfil a condition. If the condition is not satisfied, the gift will fail and the property
will revert to the donor.

Such a condition which is to be fulfilled after the gift takes place is called a
condition subsequent. If a condition subsequent is illegal or immoral, the
condition fails, and the gift becomes absolute as if there was no condition attached
to it.

5. Gift of Mushaa (Hiba-bil-Mushaa)

Mushaa means undivided share in a property. Freytag defines mushaa as meaning

‘pluribus communis’. In other words, every joint undivided property subject to the
right of more than one individual is a mushaa.

There may be two kinds of mushaa:

1. mushaa capable of division; and

2. mushaa incapable of division.

Mushaa Capable Of Division

A land owned by two of more persons is an example of the first type of mushaa. It
may be divided and each person’s share may be separated. Mahomedan Law
expects that in such a case the property must be divided and the donor must gift
his separate share to the donee. Otherwise, the gift is invalid. However, under the
Sunni Law, such a gift may be validated by subsequently separating the share of
the donor and delivering it’s possession to the donee.

However, in certain cases a gift of mushaa even in a property, capable of division is

valid. There case are as follows:

1. gift by one heir to another;

2. gift by a co-sharer in a zamindari;

3. gift of share in a company; and

4. gift of a share in the freehold property in a large commercial town.

5. gift to 2 more persons jointly

6. gift with stipulation that the donee shall pay certain periodical sum to someone.
230 11. Gift (Hiba)

But under Shia Law such a gift is valid, provided the donor gives to the donee
possession of the property by vacating and permitting the donee to control it.

Thus, where a thing is given to two persons jointly, i.e., without apportionment
and they take possession jointly each donee becomes the proprietor of the portion
given to him. If, again, one only of them accepts the gift and takes possession
while the other should refuses, the gift to the acceptor would be valid.

Mushaa Incapable Of Division

A well owned by the two or more persons is an example of the second type of
mushaa. Gift of undivided share in this type of mushaa is valid.

REVOCATION OF GIFT

Gift is a non-testamentary transaction. Once it is completed, it comes into

operation immediately, and becomes binding on the parties, especially the donor.
It cannot be revoked unilaterally. It may be revoked with the consent of the donee,
or through a Court order. The same is the situation in case of a hiba under the
Sunni Law.

But this rule is applicable only where the gift is complete. Therefore, revocation of
a gift is studies studied from the point of view of delivery of possession.

1. Revocation Before Delivery of Possession

A gift may be revoked before the delivery of possession, because at that point of
time gift is not complete. Technically, therefore, it cannot be said to be revocation
of gift, but it is only dropping the idea of making a gift.

2. Revocation After Delivery of Possession

On delivery of possession, a gift is complete, and cannot be revoked by the donor

unilaterally. He may still revoke the gift with the consent of the donee, or through
the order of the Court.

The Courts may allow revocation of a gift after its completion, on certain grounds.
Under Hanafi Law, a gift, once complete, cannot be revoked under the following
circumstances:
 Hiba 231

1. When the donor is deceased;

Right of revocation of a gift is a personal right of the donor. It cannot be

exercised by his heirs.

2. When the donee is deceased and the subject-matter of the gift has devolved on
his or her heirs.

3. Where the donee is related to the donor within prohibited degrees of

relationship;

4. Where donee is the spouse of the donor;

But in order to be irrevocable the gift must be made during the subsistence of
the relationship. For example, a gift made prior to marriage may be revoked.

But when a gift is made during marriage and the relationship is afterwards
dissolved, the gift cannot be revoked.

Difference in the religion of the married parties makes no difference in the

irrevocable character of the gift.

5. Where the donee has alienated the subject-matter of the gift by sale, exchange,
gift, etc.;

The donee has lost the dominion over the subject-matter of the gift, and is not
in a position to return it.

Thus, if the donee has alienated the subject-matter of the gift through a gift in
favour of a third party, the donor cannot revoke the gift, because, the donee
does not have dominion over the property. But if the donee revokes the gift
made by him in favour of the third party, he gets dominion over the property,
and the donor may revoke the gift.

Illustration

A gifts his car to B. B, in turn, gifts that same car to C. A desires to revoke the
gift which he has made to B. He cannot do so as the ownership of the car is not
with B.

Afterwards, B revokes the gift of the car made by him to C. Thus, now B again
becomes the owner of the car. Now, therefore, A may revoke the gift.

6. Where the subject-matter of the gift is lost, destroyed or so changed as to lose

its identity;

For example, where wheat is converted into flour.

7. Where the subject-matter of the gift is increased in value, and the accretion is
not separable from the subject-matter of the gift.
232 11. Gift (Hiba)

It is not necessary that the increase in value should be due to some act on the
part of the donee. It may happen from the thing itself. A fruit may be grown on
a tree without any effort on the part of the donee. Or it may be an accession to
the thing itself. A sapling may grow into a tree without any effort on the part of
the donee.

Mere transfer from one place to another, when it adds to the value and has
occasioned expense, is sufficient to prevent revocation.

The accretion must be incorporated with, or form part of, the body of the
subject-matter of the gift, and imply an addition to, or enhancement in, its
value. Dyeing, sewing, porterage, etc, are considered as causes which
extinguish the power of revocation.

A increase which can be separated from the subject-matter of the gift does not
prevent the revocation of the gift. Thus, in case of fruits, they may be separated
from the tree and the gift of the tree may be revoked.

Any loss or damage sustained by the subject of the gift does not render the gift
irrevocable.

Where there is an accretion to the subject-matter of the gift, and that accretion
has perished or destroyed, the gift becomes revocable.

8. Where the gift is a sadaqa;

9. Where the donor has accepted something in return for the gift.

Value of the thing received in return for the gift is immaterial. Even if its value
is negligible, the gift cannot be revoked.

Under the Shia Law, once possession of the property has been delivered, it cannot
be lawfully revoked when such gift is made in favour of

1. parents;

2. a donee who is related to the donor by consanguinity

3. a spouse of the donor.

Some authorities, however, hold that gift to a spouse is revocable.

But if the gift be to a stranger, i.e., to a person who is not related to the donor by
consanguinity or husband or wife, it may be revoked at any time so long as the
substance of the thing given is in existence. After it has perished there can be no
revocation.

A gift, however, cannot be revoked if anything has been received in exchange,

though of very small value.
 Hiba 233

A gift may be revoked by a mere declaration, without intervention of a Court. But,

in order to be effective revocation must be explicit. Mere resumption of the gift is
not sufficient. And if the donor dies without giving any express proof of his
intention to revoke the gift, it will be regarded as the donee’s property although
found in the donor’s possession at the time of his death.

GIFTS FOR CONSIDERATION (EWAZ)

Gifts for consideration (ewaz) are of two kinds, depending on the nature of the
contract. The consideration for a gift may either be stipulated for in the contract of
the gift or its effectuation may be postponed to a time subsequent to the donation.

1. When the consideration is stipulated in the contract, it is called a hiba-bil-ewaz

or a gift in lieu of a return i.e., consideration (ewaz).

2. When the performance of the condition relating to the consideration is

postponed to a future time it is called a hiba-ba-shart-ul-ewaz or a gift on
condition of an exchange.

Such a hiba differs in essential particulars from a hiba-bil-ewaz.

Both these, hibas, in turn differ from hiba simpliciter, in some respects, though
they are only a variation of hiba.

HIBA-BIL-EWAZ (GIFT FOR CONSIDERATION)

Hiba-bil-ewaz is a gift for consideration already received. It is thus a transaction
made up of two mutual or reciprocal gifts between two persons. One gift from a
donor to the donee and one from donee to the donor.

The gift and return gift are independent transactions. Therefore, when both i.e.,
hiba (gift) and ewaz (return or consideration) are completed, the transaction
becomes hiba-bil-ewaz.

Muhammad Faiz Ahmad Khan vs. Gulam Ahmad Khan

A and B, two Muslim brothers were tenants-in-common in respect of some villages.

A dies leaving B and widow W. B executed a deed giving two of the villages. W, in
consideration executed a release deed in favour of B, giving up her claim to her
husband’s estate in favour of B.

It was held that the transaction was hiba-bil-ewaz.

234 11. Gift (Hiba)

In reality, it is a sale or exchange. Therefore, there are several particulars in

respect of which a hiba-bil-ewaz differs from a hiba.

1. Delivery of actual possession not compulsory.

Any consideration, however small, would be sufficient to take it out of the

category of a simple hiba which requires delivery of possession for the
completion of the gift.

2. The gift, if of immovable property, must be in writing. Sec. 54 of the Transfer of

Property Act 1882, not sec. 129, is applicable.

3. Registration of the deed is compulsory if the value of the immoveable property

gifted is above Rs. 100.

This is because, the registration becomes compulsory under sec. 17(1)(b) of the
Registration Act, 1908, and not under sec. 17(1)(a).

Sec. 17(1)(a) makes registration of all deeds of gifts of immovable properties

compulsory. It does not refer to value of the immovable property gifted.
Therefore, even where the value of the immovable property gifted is less than
Rs. 100, the deed must be compulsorily registered.

Sec. 17(1)(b) is applicable to other transaction in writing by which any right,

title or interest in an immovable property of a value of more than Rs. 100 is
created, declared, assigned, limited or extinguished.

Hiba, being a gift proper, falls under sec. 17(1)(a), hiba-bil-ewaz and hiba-ba-
shart-ul-ewaz, not being gifts proper, fall under sec. 17(1)(b).

4. The gift is irrevocable.

5. Gift of mushaa in property capable of division is also valid.

6. As the transaction is sale, doctrine of shufa (pre-emption) is applicable.

Requisites of a Valid Hiba-bil-Ewaz

The following are the requisites of a valid hiba-bil-ewaz:

1. Actual payment of consideration; and

2. Bona fide intention on the part of the donor.

 Gifts for Consideration (Ewaz) 235

1. Actual Payment Of Consideration

Actual payment of ewaz (consideration) on the part of the donor is necessary. In

Khajooroonissavs. Raushan Jehan, the Privy Council observed that “adequacy
of consideration is certainly not in question … but whatever may be the amount, it
must be actually and bona fide paid.” Hence, mere promise to pay is not enough.

2. Bona Fide Intention On The Part Of The Donor

There must be bona fide intention on the part of the donor to divest himself of the
property and to confer it on the donee.

Bai-Mokasa (Gift In Lieu of Dower)

If a man transfers any property to his wife in lieu of her dower the transaction
would be a hiba-bil-ewaz, the assignment being called bai-mokasa.

Gulam Abbas vs. Razaia

A Full Bench of Allahabad High Court held that an oral transfer of an immovable
property, the value of which is more than Rs. 100 to his wife in lieu of dower debt
which also exceeded Rs. 100 is not valid. It is neither a gift, nor a combination of
gifts, but a sale. Therefore, it must be through a registered instrument ony.

HIBA-BA-SHART-UI-EWAZ
(GIFT WITH A STIPULATION FOR CONSIDERATION)

A hiba-ba-shart-ul-ewaz is a contract of a different description. It is a gift made

with a stipulation for a return. Here the payment of consideration is postponed.

Sarifuddin

A Muslim lady executed a gift deed and transferred a mushaa capable of division, in
favour of her two nephews with a condition that every month they should pay her
Rs. 900, and that, if they fail to do so she had a right to recover the same through a
suit. The deed was registered.

It was held that the transaction was not hiba, and gift of mushaa though capable of
division was valid.

The terms used in the constitution of such a hiba imply a condition. Thus, “I have
given you this on condition of your giving me such a thing” is a hiba-ba-shart-ul-
ewaz. This contract is declared to have the property of a sale, when the parties
have given effect to it according to then meaning and intent.
236 11. Gift (Hiba)

In hiba-bil-ewaz the payment of consideration is immediate, while in hiba-ba-shart-

ul-ewaz the payment of consideration is postponed. Therefore, delivery of
possession of the property is compulsory. The gift becomes complete as hiba once
the possession is delivered, and becomes hiba-ba-shart-ul-ewaz once the donee
pays consideration. In other words, the transaction remains a simple hiba, until
the performance of the condition relating to the consideration or ewaz.

Until the ewaz (return) is paid, the transaction remains hiba, and the donor may
revoke the gift in the same way as in case of hiba.

Once the transaction acquires the characteristics of hiba-ba-shart-ul-ewaz, it

becomes a sale and becomes subject to shufa (pre-emption).

HIBA-BIL-EWAZ AND HIBA-BA-SHART-UL-EWAZ COMPARED

Similarities
1. In both cases gift is paid on reciprocal basis.

2. Both are recognised under Mahomedan Law only.

3. To both the transactions, law relating to hiba is applicable.

4. Both are considered as sales.

5. Both must be in writing and the deed must be registered in both cases.

6. Law of pre-emption is applicable to both these cases.

Differences
No. Hiba-bil-Ewaz Hiba-ba-Shart-ul-Ewaz
1. Payment of ewaz (return) is direct Payment of ewaz (return) is postponed.
and immediate.
2. Ewaz is paid voluntarily, without There is a condition for payment of
any stipulation. ewaz.
3. Delivery of possession is not Delivery of possession is essential for
essential for validity. validity.
4. It is irrevocable ab initio i.e., from It becomes irrevocable only when ewaz
the very moment of making the gift. is paid.
5. It is similar to a sale. Initially it is similar to a gift, but when
ewaz is paid becomes similar to a sale.
6. Gift of mushaa which is divisible is Gift of mushaa which is divisible is
valid. invalid.
 Gifts for Consideration (Ewaz) 237

COMPARISON OF HIBA, HIBA-BIL-EWAZ AND HIBA-BA-SHART-UL-EWAZ

No. Hiba Hiba-bil-Ewaz Hiba-ba-Shart-ul-Ewaz

1. Payment of consideration Payment of consideration Stipulation for payment of

is not involved. is involved. consideration is involved.

2. Delivery of possession is Delivery of possession is Delivery of possession is

compulsory. not compulsory. compulsory.

3. Gift of mushaa which is Gift of mushaa which is Gift of mushaa which is

divisible is invalid. divisible is valid. divisible is invalid.

4. It is, generally, revocable. It is not revocable from the It is revocable till the ewaz
moment it is made. is paid, but becomes
irrevocable once the ewaz
is paid.

5. It is pure gift. It is like a sale. It is like a gift in the

inception, but once ewaz
is paid, takes the colour of
a sale.

SADAQA
The word sadaqa in the widest sense means a pious or charitable act; ‘a smile in
the neighbour’s face is sadaqa; to help the weary is sadaqa'. But in Mahomedan
Law it means a gift made with the object of obtaining merit in the eyes of God. The
motive of hiba is secular; the motive of sadaqa is religious.

Delivery of possession is necessary in sadaqa. But it is doubtful if the rule against

mushaa applies to it in its strictness. Thus, if a man were to give 10 Dirhams to
two poor men, according to Abu Hanifa the gift by way of sadaqa is perfectly valid.

Sadaqa becomes irrevocable once the possession is delivered.

SADAQA AND HIBA COMPARED

Similarities

1. In both cases delivery of possession is necessary.

2. In both cases gift of mushaa which is divisible is invalid.

238 11. Gift (Hiba)

Differences

1. Sadaqa has a religious object, hiba does not have a religious object.

2. Sadaqa becomes irrevocable once delivery of possession is made, hiba may be

revoked under certain circumstances even after delivery of possession.

3. Express acceptance is not necessary in case of sadaqa, but express acceptance

is necessary in case of hiba.

4. Sadaqa made to two or more persons jointly is valid if the donees are poor, hiba
made to two or more persons is invalid.

SADAQA AND WAKF

In the old legal texts of Islamic Law the term sadaqa is often applied both to wakfs
(permanent dedications) and to ordinary gifts (where the substance is consumed).

But in modern usage it is best to keep the two terms distinct, applying sadaqa to
gifts which are consumed in use and wakf to permanent foundations.

If A gives Rs 10,000 for purchasing books for the poor, it would be sadaqa. But if
the same sum is invested in some permanent form and a wakf made for
purchasing books for the poor from its income, it would be a wakf.

ARIYA
Ariya or ariyat is transfer of the right to enjoy the use or profits without any
return. According to the Durru’l-Mukhtar, ‘to make a person the owner of the
substance of a thing without consideration is a hiba (gift), while to make him the
owner of the profits only without consideration is an ariya or commodatum.

In the classical definition of the Hedaya and the Fatwa-i-Alamgiri, it is ‘the giving
(tamlik) of the usufruct (manafi) without any return (ewaz). For example, if A gives
his house to B, it is hiba. If A permits B to reside in his house without giving the
house to B, it is ariya.

In hiba the transferee acquires the right to the property itself; in ariya, he only
obtains the use or beneficial enjoyment for a limited time, and the property does
not pass to him.
 Ariya 239

The chief incidents of ariya are,

1. that the period for which the gift is made may or may not be specified; and

2. that it is revocable at will.

ESSENTIALS OF ARIYA

The following are the essential requirements of ariya:

1. Ownership of the property is not transferred. Ownership remains with donor.

2. It is for a definite period.

3. It may be revoked.

4. It is a personal right, does not devolve upon legal heirs of the donee.

DIFFERENCES BETWEEN HIBA AND ARIYA

In Mohammad Faiz vs. Haji Ghulam the Judicial Committee of the Privy Council
has pointed Some differences between hiba and ariya.

The following are the differences between hiba and ariya.

1. To make a person owner of a property without consideration is hiba, while to

make him the owner of the profits only without consideration is ariya.

2. For the validity of a hiba, the donor must be sane and major, and should be the
owner of the property gifted. In ariya, it is not necessary that the donor should
be major, though he should be the owner of the property.

3. For the validity of hiba, there must be express acceptance, for validity of ariya,
express acceptance is not necessary.

4. Hiba of a mushaa which may be divided is invalid, ariya of mushaa which may
be divided is valid.

5. Hiba is permanent, ariya is temporary, i.e., for a definite period.

6. Hiba is irrevocable in some cases, ariya is revocable in all cases.

7. Hiba gives proprietary right to the donee, ariya gives personal right to donee.

8. Therefore, hiba is transferable and heritable, ariya is not.

240 11. Gift (Hiba)

GIFT DURING MARZ-UL-MAUT

MARZ-UL-MAUT
Marz-ul-maut means death-bed illness. It is a terminal illness, i.e, it is an illness
which ends in the death of the person.

Under Mahomedan Law, the main test of marz-ul-maut is the apprehension in the
mind of the person suffering from illness. Thus, it is subjective test. It is not what
others think. According to Mulla, marz-ul-maut is an illness which creates an
apprehension of death in the mind of the person suffering from it, and which
eventually results in his death.

In Hasrat Bibi vs. Ghulam Jaffar, the Calcutta High Court has indicated that an
illness is deathbed illness when,

1. the donor is suffering from a disease at the time of the gift, which is the
immediate cause of his death;

2. the disease is of such nature or character as to induce in the person suffering,

the belief that death would be caused thereby, or to engender in him the
apprehension of death;

3. the illness is such as to incapacitate him from the pursuit of his ordinary
avocations, i.e., standing up for prayers, which may create in the mind of the
sufferer an apprehension of death.

4. the illness, after a long continuance has taken such a serious turn as to cause
an apprehension of death in his mind, but not if he is accustomed to the malady

Thus, marz-ul-maut may be distinguished from a prolonged illness, such as high

blood pressure, diabetes, asthma, etc., to which a person gets accustomed, and it
does not cause any fear of imminent death in his mind. But even such an illness
may become marz-ul-maut, where because of the seriousness, for example, in case
of a severe asthmatic attack, if the person feels that the death is imminent, and in
fact he dies due to such attack.

The following are the four requirements of marz-ul-maut:

1. Long continuance of the illness;

2. Seriousness of the illness;

3. Apprehension of death in the mind of the sufferer; and

4. Death resulting from that illness.

 Gift During Marz-ul-Maut 241

GIFT DURING MARZ-UL-MAUT

It is a gift made during marz-ul-maut. This kind of gift is a combination of gift and
will.

It is a gift because both the parties, donor and donee are living. Therefore, there all
the requirements of valid hiba must be fulfilled:

1. Declaration by the donor;

2. Acceptance by the donee;

3. Delivery of possession.

It is a will, because, the reason for making the gift is the approaching death of the
donor. In ordinary course, the donor might not have made this gift. Further, the
apprehension of imminent death in the mind of the donor makes him believe that
by the time the donee gets to enjoy the gift, the donor will be no more. Thus, in his
mind, the real effect of the gift will be after his death. Therefore, the restrictions
applicable to the testamentary capacity of the donor are applicable to a gift during
marz-ul-maut.

1. The property gifted cannot exceed one-third of the donor’s estate;

2. The property cannot be gifted to an heir presumptive of the donor.

However, these two restrictions are not applicable if the heirs of the donor give
their consent after his death.

RECOVERY OF DONOR FROM ILLNESS

An illness which does not culminate in the death of the sufferer is not a marz-ul-
maut. Therefore, if the donor recovers from the illness, the gift ceases to become a
gift during marz-ul-maut. It becomes an ordinary gift.

Therefore, it is now governed by the law applicable to ordinary hiba. The

limitations applicable to will will not be applicable now. Therefore, even if

1. the gift is in excess of one-third of the donor’s estate; or

2. the gift is to an heir presumptive of the donor,

the gift is valid. Consent of the heirs of the donor is not necessary, because there
are no limits to the capacity of a Muslim to make ordinary gifts.
242 11. Gift (Hiba)

DONATIO MORTIS CAUSA

A similar transaction may be seen under sec. 191 of the Indian Succession Act,
1925. It is called donatio mortis causa (gift in contemplation of death).

Sec. 191, Indian Succession Act, 1925

191. Property transferable by gift made in contemplation of death – (1) A man may
dispose, by gift made in contemplation of death, of any moveable property which he
could dispose of by will.

(2) A gift is said to be made in contemplation of death where a man, who is ill and
expects to die shortly of his illness, delivers, to another the possession of any
moveable property to keep as a gift in case the donor shall die of that illness.

(3) Such a gift may be resumed by the giver, and shall not take effect if he recovers
from the illness during which it was made; nor if he survives the person to whom it
was made.

GIFT DURING MARZ-UL-MAUT AND DONATIO MORTIS CAUSA

Both transactions are gifts made in contemplation of death, but the following are
the differences between the two transactions.

1. Under sec. 191, only movable property can be gifted, while under Mahomedan
Law, any property, movable or immovable, may be gifted.

2. Under sec. 191, the delivery of possession must be actual delivery of possession.
Anything, which cannot actually delivered cannot be subject-matter of donatio
mortis causa. Under Mahomedan Law delivery of possession may be actual or
constructive.

3. Donatio mortis causa is not subject to the limitations as to the extent or the
persons. Gift may be of the entire estate of the donee and it may be made to his
heirs presumptive. But gift during marz-ul-maut is subject to these limitations.

4. If the donor recovers from illness, donatio mortis causa fails, and the property
reverts to the donor. In case of gift during marz-ul-maut, the gift becomes an
ordinary gift. The restrictions on the testamentary capacity of the donor are no
more applicable and even if the gift is in contravention of the same, it becomes
valid.
 12. WILL (WASIYAT) (TESTAMENTARY SUCCESSION)
Wasiyat is the act of conferring a right in the substance or the usufruct of a thing after
the death of the person.

It is also an instrument by which a person makes disposition of his property to take

effect after his death.

In case of a gift (hiab), the donor gifts the property during his life time and it comes into
effect immediately on its execution. In case of a will (wasiyat), the testator makes the
bequest during his lifetime, but it comes into effect immediately on his death.

Apart from that difference gift and will are same in other legal systems. But under
Mahomedan Law, there are two important limitations on the testamentary capacity of a
Muslim, which are not there on his capacity to make gifts.

As the two transactions are same in most respects, especially in respect of consideration,
we may see the equivalence of terms used in these two areas:

Transaction Gift Will

Document Gift Deed Will

Nature of Document Non-testamentary Testamentary

Testator
Transferor Donor Maker of the Will
Author of the Will

Transferee Donee Legatee

Property Gift Legacy, Bequest

The Mahomedan Law does not insist that a will should be in writing. A nuncupative
(oral) testamentary disposition reduced to writing.

A Will may be made even by signs, as in the case of a dumb person who does not
possess the faculty of speech, but who can express his meaning by signs.

Even where the will is in writing, there is no particular form or language in which a will
is to be written. It may be constituted by the use of any expression that sufficiently
indicates the intention of the testator. So long as it is apparent that the intention of the
testator is to make a disposition operative on his death, it will be regarded as a wasiyat.

The will of a Muslim need not be attested, for the verse in the Qur’an regarding witnesses
is considered merely as a recommendation and is not mandatory.

Registration of a will is optional under sec. 18(e) of the Registration Act, 1908.
244 12. Will (Wasiyat) (Testamentary Succession)

IMPORTANT FEATURE OF A WILL

1. An instrument by which a person makes disposition of his property;

2. The disposition takes effect immediately on the death of the testator;

3. It may be varied or even revoked by the testator at any time.

REQUISITES OF A VALID WILL

The following are the essential requirements of a valid will:

1. The testator must be competent to make the will;

2. The legatee must be competent to take the legacy; and

3. The subject-matter of bequest must be transferable.

1. COMPETENT TESTATOR
Every Muslim who is sane and rational is entitled to make a will. The testator
must also be a major. Under Mahomedan Law majority is attained at puberty, and
the presumption is that a Muslim attains majority on the completion of the
fifteenth year. In India, however, under the provisions of the Indian Majority Act,
majority, for the purpose of making a will, is attained at eighteen and not at fifteen

A will procured by undue influence, coercion or fraud will not be upheld, and the
Courts take great care in admitting the will of a pardanashin woman.

Suicide by the Testator

Under Sunni Law, the fact that the testator has committed suicide does not make
any difference to the validity of his will.

Under the Shia Law, commission of suicide by testator may affect the validity of
the will depending upon circumstances. There are two possibilities.

1. The testator has taken steps to commit suicide before making the will; and

2. Testator has not taken any step to commit suicide before making the will.

In the first case, the will is invalid, while it is valid in the second case.

Thus, a will made by a person after wounding himself or taking poison, with a
view to committing suicide, is invalid. But, if he makes a will and then commits
suicide, the will is not invalid.
 Requisites of a Valid Will 245

Restrictions on the Testamentary Capacity of a Muslim

In pre-Islamic times, a man had an almost unlimited power of disposing of his

property. But as the Qur’an has laid down clear and specific rules for the
distribution of the inheritance, it was thought undesirable for man to interfere
with God’s ordinances. On the other hand, Bukhari reports a tradition laying
down that a Muslim who possesses property should not sleep even for two nights
unless he has made a will. As a via media, Mahomedan Law imposes the following
restrictions on the testamentary capacity of a Muslim. By will a Muslim cannot

1. Dispose of more than one-third of his net estate.

2. Bequeath to one or some of his heirs presumptive.
3. Further, it is unlawful to make a bequest for an object opposed to Islam.

Thus, Where a Muslim leaves to a stranger by will a house exceeding in value the
bequeathable third, or a Hanafi Muslim makes a bequest to one of his heirs, or a
Muslim makes a will for building a Hindu temple, the bequests would not be valid.

The Bequeathable Third

No Muslim can bequeath more than one-third of the residue of his estate, after the
payment of debts and other charges. When a Muslim dies, his debts and funeral
expenses are to be paid first; thereafter, out of the residue only one-third can be
disposed of by will.
Example

Rehman dies leaving Rs 35,00,000 as his gross assets. His funeral costs Rs 10,000
and his debts amount to Rs 4,90,000; the balance is Rs 30,00,000. Hence the
bequeathable third amounts to Rs 10,00,000, and he cannot dispose of more than
this amount by will.

In this example, Rehman bequeaths property worth Rs. 15,00,000 distributed

among different legatees. The bequest is not valid. But if the heirs of Rehman
consent to the bequest in excess of the third, i.e., Rs. 10,00,000 the bequest will
be valid. The consent may be express or implied.

But,
1. The consent must be a free and informed consent.
2. The consent must be given by all heirs of Rehman;
If the consent is given by only few heirs only their shares will be affected.
3. The consent must be given after Rehman’s death.
Consent once given cannot be revoked or withdrawn.
246 12. Will (Wasiyat) (Testamentary Succession)

This restriction is imposed in view of law of inheritance given under Qur’an, under
which two things are provided:

1. the persons (heirs) who are to inherit the property of a person after his death;

2. the shares (extent of property) to be inherited by different heirs of the deceased.

This is the desire of the Almighty, and it should not be completely disregarded by
humans. Legal heirs ordained by the Almighty cannot be deprived without their
consent.

When the testator is alive, his heirs have no right to inherit his estate. Therefore,
they cannot waive a right which they do not have. After the death of the testator,
they get a the right of inheritance, only then they can waive their right. However,
under the Ithna Ashari Law, consent may be obtained either before or after the
testator’s death.

Bequest To An Heir Presumptive

A Muslim cannot bequeath his property to one or some of his own legal heirs
presumptive. An heir presumptive is one who would be the heir of the person on
his death. However, it is only a chance. If the heir presumptive dies before the
person, he will not become his heir.

Example

B is A’s son. Therefore B is A’s heir presumptive, and if A dies before B dies, he will
inherit his property. But if B dies before A dies, he will not inherit from A’s estate. B
becomes A’s heir only after A’s death, if he survives A. During the lifetime of A it is
only a chance that B may become A’s heir, and therefore he is heir presumptive.

The same rules as are applicable to a case of bequest in excess of a third are also
applicable to the case of bequest to an heir presumptive. Thus, bequest to an heir
presumptive is initially invalid, but if all the remaining heirs of the testator
consent to the bequest, after the death of the testator, the bequest is valid.

Whether a person is an heir or not will be decided at the death of the testator,
because a person who was not an heir earlier may have become an heir at the time
of the testator’s death, and vice versa.

The reason behind this rule is that a bequest in favour of heirs causes change in
the shares of the heirs, and thus causes discrimination between heirs.

Under Shia Law if the bequest to an heir is within one-third of the estate, consent
of other heirs is not necessary. Consent is necessary only of bequest exceeds one-
third of the estate of the testator.
 Requisites of a Valid Will 247

2. COMPETENT LEGATEE

As in case of gift, in case of will also any person capable of holding property may
be a legatee irrespective of caste, religion, sex or age. The legatee may even be an
artificial person.

Bequest to Institution

Bequest to an institution is valid under Mahomedan Law.

Bequest to Zimmee (Non-Muslim)

Bequest to a zimmee (non-Muslim) is not prohibited under Mahomedan Law. But

such non-Muslim must not be hostile towards Islam.

Homicide (Bequest to Person Committing Testator’s Homicide)

Homicide means killing a human being. There are two types of homicides:

1. Innocent Homicide; and

2. Culpable Homicide.

Innocent homicide is unintentional homicide, i.e., committed without intention. It

may be accidental or under a mistake of fact, etc.

Culpable homicide is intentional. Murder and culpable homicide not amounting to

murder are the two types.

Under Sunni Law, bequest in favour of a person committing homicide of the

testator fails. It is immaterial whether the homicide is innocent or culpable.

Under Shia Law, bequest in favour of a legatee is invalid only if he has committed
the homicide intentionally. If the legatee has committed the homicide accidentally
or unintentionally, the bequest does not fail.

Bequest to an Unborn Person

Bequest to an unborn person is invalid. The legatee must be in existence at the

time of testator’s death. Under Sunni Law, if a child is born within six months, the
child is treated as a living person. Under Shia Law the child may be born within
the longest period of gestation, i.e., ten lunar months.
248 12. Will (Wasiyat) (Testamentary Succession)

3. TRANSFERABLE SUBJECT-MATTER

The subject of the bequest

1. must be capable of being transferred.

2. must be in existence at the time of the testator’s death.

It is not necessary that it should be in existence at the time of the making of the
will.

3. must belong to the testator, i.e., testator must be the owner of the property.

The bequest may consist of the corpus of the thing (wasiyat-bil-ayn), or its
usufruct (wasiyat-bil-manafi). The usufruct may be given to one person and the
corpus to another.

For example, the service of a slave, or the right to occupy a house during a future
period of time, or to take the rents or future produce, or usufruct for a limited
time, or for the lifetime of a legatee, may be validly bequeathed.

Bequest Of Life Interest In A Property

It has been held that the bequest of a life interest is valid according to
Mahaomedan law, provided it does not offend the rule of the bequeathable third,
or rule against bequest to heirs presumptive.

For example, if a life-grant is bequeathed of a testator’s land, such a life interest

can only be valid if the interest bequeathed is no more than a third of the total
estate, and the grantee is not an heir presumptive of the testator.

However, in this case also, if all the heirs of the testator give their consent to the
creation of life interest in excess of one-third of the estate of the testator, after his
death, the life interest in excess of the one-third is valid.

If a prior interest, such as a life interest fails, the subsequent interest based on
that interest also fails.

Example

A bequeaths a life interest to an heir B, and thereafter the remainder to C, a non-

heir. The bequest is not valid unless all other legal heirs of A consent to the bequest
in favour of B after the death of A.

If they do not give their consent after A’s death not only the bequest to B will fail, the
bequest to C will also fail.
 Some Special Types of Bequests 249

SOME SPECIAL TYPES OF BEQUESTS

ALTERNATIVE BEQUESTS
An alternative bequest, i.e., bequest to one person, and failing him to another
person, is valid. If the first person is in existence at the time of the death of the
testator, he will receive the bequest absolutely. If he is not in existence at the time
of the testator’s death, as for example, if he predeceases the testator, the second
person, if in existence at the time of the death of the testator, will get the bequest.

CONTINGENT BEQUESTS
A bequest of property contingent on happening or not happening of any uncertain
event is void.

Death of a person is a certain event. But the date or time of the death of a person
is uncertain.

CONDITIONAL BEQUEST
A conditional bequest is not valid. But the condition must be to do something

1. which is lawful;

2. which is not immoral; and

3. which is not opposed to Islam.

A condition may be a condition precedent, or a condition subsequent. A condition

precedent is one, on the fulfilment of which the legacy vests in the legatee. A
condition subsequent is one which must be performed after the legacy vests in the
legatee. If the condition subsequent is not performed, the legatee loses the legacy
vested in him.

Thus, a condition precedent is vestitive in nature, i.e., its performance vests legacy
in the legatee. A condition subsequent is divestitive in nature, i.e., its non-
performance divests the legacy which is already vested in the legatee. In other
words, by performing a condition precedent a legatee gets the legacy, while by
non-performance of a condition subsequent, a legatee loses a legacy already
received by him.

If condition precedent is invalid, both condition as well as legacy fail. If a condition

subsequent is invalid condition fails, and legatee gets the legacy absolutely, as if
no condition was attached to it.
250 12. Will (Wasiyat) (Testamentary Succession)

ABATEMENT OF LEGACIES

Where the bequests taken in the aggregate exceed the bequeathable third and the
heirs do not consent, in Hanafi law, the bequests abate rateably.

Now bequests may, for the purposes of rateable reduction, be divided into
bequests for pious purposes and bequests for secular purposes.

As a general class, bequests for pious purposes are decreased proportionately to

bequests for secular purposes, and do not have precedence over them. But
bequests for pious purposes are themselves divided into three classes:

1. faraid (obligatory charities);

For example, a bequest for the performance of hajj on behalf of the deceased.

2. wajibat (recommended, but not obligatory);

For example, a bequest for charity on the day of breaking the fast.

3. nawdfil (voluntary and pious, but not recommended).

For example, building a bridge or an inn.

Bequests of the first class take precedence over those of the second; and bequests
of the second class take precedence over those of the third.

Example
A Hanafi testator leaves Rs 3,00,000 jointly to A and B and Rs 3,00,000 for pious
purposes designated by him. At his death, after clearing the funeral expenses and
his debts, his remaining estate is Rs 12,00,000. The bequeathable third amounts to
Rs 4,00,000.
Hence Rs 2,00,000 will be allotted to the secular bequests and Rs 2,00,000 to the
pious ones.
Out of the sum of Rs 2,00,000, A and B will each receive Rs 1,00,000.
As to the sum of Rs 2,00,000 available for pious bequests, regard shall be had to the
rules laid down above, and bequests for faraid will take precedence over, and may
even exclude, those for wajibat, and bequests for wajibat will likewise have priority
over those for nawafil.

The Ithna Ashari Law does not accept the principle of rateable reduction. The rule
of that school is that, of several bequests, the first in time prevails, until the
bequeathable third is exhausted; and for the purposes of this rule, where several
bequests are to be found in a will, priority is determined by the order in which
they are mentioned.
 Lapse of Legacy 251

LAPSE OF LEGACY

Where a legatee is not in existence at the time of the death of the testator, it
results in lapse of the legacy.

Thus, if the legatee predeceases the testator, the legacy in Hanafi Law lapses; but
not under in Shia Law. Under Shia Law, if the legatee dies leaving heirs, the legacy
would pass to them. If there are no heirs, the legacy lapses.

ADEMPTION OF LEGACY

Where the property which is the subject-matter of a bequest is not in existence at

the time of death of the testator, it results in ademption of the legacy.

Example

A bequeaths a house to B. After making the will, the testator sells that house or
makes a gift of it to C. The legacy to B is adeemed.

REVOCATION OF WILLS

A testator may, at any time, revoke a bequest either expressly or impliedly. A

Mahomedan will is not revoked by the marriage of the testator subsequent to its
execution.

EXPRESS REVOCATION

An express revocation may be oral or written.

Examples

Revocation of Will

A Muslim makes a will in the year 2005 and gives his properties to certain legatees.
He again makes another will in 2017 and states in that will that he thereby revokes
his earlier will of the year 2005. It is express revocation of the earlier will.

Revocation of Bequest

A, a Muslim makes a will in the year 2005 and gives his properties to certain
legatees, one of whom is B, who is given a land. again makes a will in 2017 and
mentions in that will that “I hereby bequeath the land bequeathed to B to C.” The
will of 2005 is not revoked, but only the bequest to B is revoked
252 12. Will (Wasiyat) (Testamentary Succession)

IMPLIED REVOCATION

A will may be revoked impliedly by destroying it. Where a testator burns, tears
down or otherwise mutilates a will, with an intention of revoking it, it is implied
revocation of that will.

Thus, there are two requirements for implied revocation:

1. act of destroying; and

2. intention of revocation.

If a person accidentally or under a delirium, destroys a will without intending to

revoke the will, it does not amount to implied revocation.

EFFECT OF SUBSEQUENT WILL

Under law, a person may have only one will. If a person writes two or more wills,
the rule is that all of them shall be read as a single will, unless by a subsequent
will, the testator revokes his earlier will or wills.

Revocation of the earlier will, however, cannot be lightly assumed. The subsequent
will must clearly show an intention to revoke an earlier will. Mere words that “This
is my last will” or even that “This is my last and the only will” are not sufficient to
assume revocation of earlier will or wills.

Example

A makes a will in the year 2005 and gives his land to B. A again makes another will
in the year 2017 and gives his house to C. A dies in 2019.

Both his wills are read together and B will get A’s land under the will of 2005 and C
gets A’s house under the will of 2019.

Where a testator makes a will, and by a subsequent will gives the same properly to
someone else, the prior bequest is revoked. But where, in the same will, the same
thing is given to two different persons, the property will be shared equally by both.

Example

A makes a will in the year 2005 and gives his land to B. A again makes another will
in the year 2017 and gives the same land to C. A dies in 2019.

C will get A’s land under the will of 2017, as that is the later will. Bequest in favour
of B under the will of 2005 is revoked by implication.
 Will and Gift Distinguished 253

WILL AND GIFT DISTINGUISHED

1. Will takes effect at the death of the testator. Gift takes effect immediately.

2. Delivery of possession is not necessary in a will. In a gift delivery of possession

is necessary.

3. Subject-matter of a will need not be in existence at the time of making a will.

Subject-matter of a gift must be present at the time of making a gift.

4. Power of a Muslim to make will has two restrictions. Power of a Muslim to make
gift is unrestricted.

5. After completion of gift, it cannot be unilaterally altered or revoked by the donor.

A will can at any time be altered or revoked by the testator at his pleasure.

6. Doctrine of mushaa has no application to a will. It is applicable to a gift.

SUNNI AND SHIA LAWS OF WILL DISTINGUISHED

1. In Sunni Law, every bequest to an heir is invalid unless consented to by all

other heirs. In Shia Law consent of heirs is necessary only if the bequest in
favour of an heir exceeds one-third.

2. In Sunni Law, heirs can give their consent only after the testator's death. In
Shia Law, consent may be given before as well as after the testator's death.

3. In Sunni Law, to be treated as a living person child must be born within six
months. In Shia Law this period is maximum period of gestation, i.e., ten
months.

4. In Sunni Law the who legatee kills the testator, even accidentally loses his
legacy. But In Shia Law killing must be intentional to disentitle the legatee.

5. A will of a person made after preparation to commit suicide is valid in Sunni

Law, but such a will is invalid in Shia Law.

6. Rateable distribution in case of abatement of will is recognised by Sunni Law.

Shia Law does not recognise rateable distribution.

7. In Sunni Law, if the legatee predeceases the testator, legacy lapses and reverts
back to the testator. In Shia Law the legacy passes to the heirs of deceased
legatee and only if the deceased legatee does not have any heirs, the legacy
lapses and reverts to the testator.
 13. ADMINISTRATION OF ESTATE OF THE DECEASED
After the death of a person, all his properties have to be collected 2. If he has any account
in any bank, the moneys have to be collected. If he has given debts to any debtors, those
debts should be realised. If he has any shares or debentures in any company, they have
to be collected. The sum total of all these is the estate of the deceased.

Then out of his estate, the following expenses are to be met out (Sec.s 320 to 325 of the
Indian Succession Act, 1925):

1. his funeral expenses and death bed charges (hospital bills, medicine bills);

2. expenses of obtaining probate, letter of administration or succession certificate;

3. unpaid wages of any labourer, artisan or domestic servant in respect of their services
given to the deceased during the last three months;

4. all debts of the deceased in the order of their respective priorities;

5. legacies under the will of the deceased to the extent of one-third of what remains after
the above expenses are met.

6. lastly, out of the residue, the shares of the legal heirs.

This entire process is called administration of the estate of the deceased. In case of
testamentary succession (succession by will), this is done by executor under the will of
the deceased. In case of intestate succession (succession where there is no will), this is
done by an administrator appointed by a competent Court.

ADMINISTRATION OF ESTATE UNDER MAHOMEDAN LAW

Al Sirajiyya, mentions four duties of the Magistrate, in respect of the estate of a
deceased:

1. first, his funeral ceremony and burial without unnecessary expense, yet without
deficiency;

2. next, the discharge of his just debts from the whole of his remaining effects;

3. the payment of his legacies out of a third of what remains after his debts are paid; and

4. lastly, the distribution of the residue among his successors, according to the Divine
Book, to the Traditions, and to the Assent of the Learned.”

2 Collected means systematically listed, so that one may know exactly what are the assets (properties,
securities and debts in favour of the deceased) and what is the total value of the assets.

Securities means, shares, debentures, fixed deposits, etc.

 Administration of Estate under Mahomedan Law 255

In Jafri Begam’s Case Mahamood, J. observed that jus representationis is

entirely foreign to the Mahomedan Law of Inheritance. The same is the view of
Fitzgerald. Thus, strictly speaking, there was no administration in the Law of
Islam.

What Mahmood, J. and Fitzgerald meant was that there was no person who is an
executor or administrator, under Mahomedan Law. The situation is illustrated as
under:

It is as though the estate were a round cake, which from a distance seems entire; but
as each heir approaches the table, the cake is found to be carefully cut up and
divided proportionately; and all that remains to be done is to hand over to him his
particular piece.

But in reality the things are not so simple. The assets of the deceased are not in
one place. There are liabilities of the deceased. Therefore, normally some one or
few persons should undertake the responsibilities of administration of the estate of
the deceased. For the proper discharge of the duties, there should be a set of
rules. Under Mahomedan Law, there are no such persons necessary, and hence,
there are no rules for administration of the estate of a deceased Muslim.

Administration was introduced into Mahomedan Law by the reception of the

English concept of administration and later by the enabling provisions of the
Probate and Administration Act, 1881.

VESTING OF INHERITANCE: RULE IN JAFRI BEGAM’S CASE

In Jafri Begam’s Case Mahmood, J. laid down the fundamental principles of the
Mahomedan Law relating to the administration of estates.

One Ali Muhammad Khan died in 1878, leaving him surviving his father, mother,
widow, two sons, three daughters and a brother. Jafri Begam was the youngest
daughter, and Amir Muhammad Khan was the brother of the deceased.

Jafri Begam’s husband, Abdur Rahman, brought a suit and obtained a decree
against the widow, two sons and three daughters for a debt due by the deceased.
In execution of the decree a portion of the village belonging to the deceased was
sold and purchased by Abdur Rahman himself.

Later Amir Muhammad Khan, the brother, brought a suit against the widow, two
sons and three daughters to recover his share of the estate, as he was not a party
to the previous suit.
256 13. Administration of Estate of the Deceased

The case was referred to a Full Bench and the judgement of Mahmood J. deals
with the law on the subject exhaustively.

Three propositions were laid down:

Rule I. When a Muslim dies leaving debts unpaid, his estate devolves
immediately on his heirs. Such devolution is not suspended till or
contingent upon the payment of debts.

Rule II. A decree for a debt passed against such of the heirs as are in possession
of the estate does not bind the other heirs.

Rule III. If one of the heirs, who was out of possession and who was not a party to
the proceedings, brings a suit against the decree-holder for the recovery
of his share of the estate, he must pay his proportionate share of the
debt before recovering possession of his share of the inheritance.

As to Rules I and II, Mahomedan heirs are independent owners of their specific
shares, and if they take their shares subject to the charge of the debts of the
deceased, their liability is in proportion to the extent of their shares.

Rule I is, however, considerably affected by the paramount duty in Islam to pay
debts. An heir is entitled only to the residue after the payment of a legacy or debt.

The heirs succeed to the estate as tenants-in-common in specific shares. The

Hindu Law of joint family is foreign to the Islamic jurisprudence. The fact that the
heirs live together in a common household, or that one of them manages the
property to the exclusion of others, is not sufficient to create property rights in
favour of the members of the family living jointly.

ADMINISTRATION OF THE ESTATE IN INDIA

As there is no law in respect of administration of the estate of a deceased under

Mahomedan Law, the general law of the land, i.e., the Indian Succession Act, 1925
is applicable to Muslims also.

In respect of the estate of the deceased, as distinguished from administration of

estate of the deceased, personal law is applicable depending upon the School of
Mahomedan Law applicable to the deceased at the time of his death. If however,
he registers his marriage under the Special Marriage Act, 1954, his personal law
would be ousted and the Indian Succession Act, 1925 applies.
 Administration of the Estate in India 257

Prior to the enactment of Indian Succession Act, 1925 3 administration of the

estate of a deceased Muslim was to be according to the Hanafi text, Al Sirajiyya.
But now the Indian Succession Act replaces the Islamic rules and sec.s 320 to 325
of the Act are applicable to Mahomedans also.

VESTING OF ESTATE
The executor or administrator of a deceased Muslim is his legal representative for
all purposes, and the property of the deceased vests in him as such. It is his duty
to collect the assets, discharge the debts, pay the legacies and distribute the estate
amongst the heirs.

The executor, when he has realized the estate, is a ‘bare’ trustee for the heirs as to
two-thirds of the estate, and an ‘active’ trustee as to one-third for the purposes of
the will.

A ‘bare’ trustee (or a simple trustee) is a person to whose office no duties were
originally attached, or who, although such duties were originally attached, would
on requisition of his beneficiaries be compellable in equity to convey the estate to
them, or to some other person by their direction. The term ‘active’ trustee (or
special trustee) is applied to a person who has duties to perform.

Administrator and Letter of Administration

Administrator is the person appointed by a competent Court to administer the

estate of a deceased intestate person, by issuing Letter of Administration.

Issuing a Letter of Administration is proof that the deceased died intestate, i.e.,
without making a will. Therefore, where the deceased has died leaving a will, letter
of administration cannot be issued.

Letter of Administration, has three legal effects:

1. It is a letter of appointment of Administrator to the estate of an intestate;

2. It shows the authority of the Administrator to receive the property of, or debt
due to the deceased; and

3. It is proof that the deceased died intestate.

3 Before the Indian Succession Act, 1925, the two Acts were in force in British India relating to
the administration of the estate of deceased persons. They were the Indian Succession Act,
1865, and the Probate and Administration Act, 1881. The Indian Succession Act, 1865, was not
applicable to Hindus, Muslims and Buddhists. The Probate and Administration Act applied to
Hindus, Muslims and Buddhists Both these Acts have been repealed by the Indian Succession
Act, 1925.
258 13. Administration of Estate of the Deceased

Executor and Probate

In Muhammadan law the term wasi means an executor. An executor is a person

appointed by the testator through his will. This means two things:

1. Only the testator, and no other person, including Court, can appoint the
executor; and

2. Testator may appoint an executor only through his will and by no other means.

Therefore, if the executor predeceases the testator, refuses to discharge his duties,
or becomes incapable of discharging his duties, Court cannot replace him. The
Court has to appoint an administrator in his place. But Court cannot issue letter
of administration because it means that the deceased has died intestate. Therefore
the administrator, in this case is appointed by issuing a letter of administration
cum testamento annexo (with will annexed). As the will is attached to the letter of
administration, it displaces the proof that the deceased has died intestate.

Probate is nothing but a copy of the will with a seal of the competent Court. It is a
conclusive proof that

1. the will is genuine,

i.e., it is not a forged will.

2. the testator has sound disposing mind when he executed the will,

i.e., he was not suffering from any kind of unsoundness of mind.

Therefore, once probate is issued, no one may challenge a will as forged will or on
the ground of testator's mental capacity at the time of execution of the will. But
the probate proceedings themselves may be challenged and the probate may be got
set aside.

Probate is the proof of the authority of the executor to receive the properties of the
testator or to recover the debts due to the testator.

Succession Certificate

Under the Indian Succession Act, 1925, obtaining probate to the will of a Muslim
is not mandatory. Where a Muslim has died intestate, obtaining Letter of
Administration is also not mandatory.

However, if any debt or property is to be recovered recognition is necessary. A

Succession Certificate may act as such recognition.
14. INHERITANCE (INTESTATE SUCCESSION)
 PART II
INDIAN SUCCESSION ACT, 1925
 1. SUCCESSION TO PROPERTY
A person having a right or an interest in a property may transfer it to another person.
On the death of the person having interest in a property, that interest goes to another
person or persons. This process is called succession.

Succession to the property of a deceased (dead) person takes place in three ways:

1. Succession by the operation of law. This is called intestate succession.

2. Succession by the act of the deceased person during his life time. This is called
testamentary succession.

3. Partly by operation of law and partly by the act of the deceased. That is, partly by
intestate succession and partly by testamentary succession.

Where the deceased person has made a will, his properties pass to his successors by
way of testamentary succession.

A will is called a testament, and the person who makes a will is called a testator.
Therefore, the succession is called testamentary succession, meaning succession
through a testament, i.e., a will.

The persons who are entitled to properties under the will are called legatees and the
properties to which they are entitled are called legacies.

Example

A owns a house and a plot of land. A makes a will in respect of his properties. Under the
will A gives his house to B and his plot to C.

A is the ‘testator’, B and C are ‘legatees’ and the house and plot are the legacies under the
will.

Where a person dies without making will in respect of his properties, his properties pass
to his successors by way of intestate succession. The persons who are entitled to the
properties of the deceased and their shares are determined in accordance with the
provisions of the law applicable to the partied. If the parties are Hindus, the applicable
law is Hindu Succession Act, 1956. If the parties are Muslims, the succession is
governed by the rules of Mahomedan Law. In case of others, i.e., Christians and Parsis,
Indian Succession Act, 1925 is applicable.

The deceased is called the ‘propositus’, and the successors are called ‘legal heirs’. The
properties are called ‘inheritance’.

Example

A owns a house and a plot of land. A dies without making any will in respect of his
properties. Under the provisions of the relevant law B gets A’s house to C gets A’s plot.

A is the ‘propositus’, B and C are A’s ‘heirs’ or ‘legal heirs’.

Where a person makes a will in respect of only some of his properties but not in
respect of all of his properties, succession to his properties takes place partly by
way of testamentary succession and partly by way of intestate succession.

Example

A owns a house and a plot of land. A makes a will in respect of his properties and
gives his house to B and his plot to C. After that, A purchases a shop.

After the death of A, his house and plot will go to B and C respectively by way of
testamentary succession. His shop will go to his legal heirs by way of intestate
succession.

LEGAL REPRESENTATIVES

Where a person has written a will, and left several properties to several legatees,
the testator, normally appoints a person through his will for the administration of
his estate4 after his death. Such a person appointed by the testator through his
will for the administration of his estate is called the ‘executor’.

Similarly where a propositus has left behind him lot of properties and several
legal heirs, a competent Court may appoint, on the application of the legal heirs,
a person for the administration of the estate of the deceased. Such a person
appointed by a competent Court for the administration of the estate of an
intestate is called the ‘administrator’. An administrator is appointed by issuing a
‘letter of administration’.

Proof of authority of an administrator is the letter of administration issued by the

Court for appointing him. Proof of authority of the testator is called the ‘probate’
which is nothing but a copy of the will with a seal of the Court on it confirming
that it is genuine and that the testator was competent to make that will.

Common Term Testamentary Succession Intestate Succession

Deceased Testator Propositus

Successor Legatee Legal Heir

Property Legacy Inheritance

Legal Representative Testator Administrator

Proof of Authority Probate Letter of Administration

4 Administration of estate means collecting all the properties of the deceased person and
distributing them among the legatees or heirs of the deceased, after discharging all the
liabilities of the deceased.
 DOMICILE

The provisions of Indian Succession Act, 1925 are not applicable if the deceased was a
Hindu, Mahomedan, Buddhist, Sikh or Jaina.

In its ordinary meaning ‘domicile’ means the place where a man lives or has his home.
The word ‘domicile’ is not defined in this Act. It is defined by Halsbury as under.

“A person’s domicile is that country in which he either has or is deemed by law to have his
permanent home.”

In Whicker vs. Hume the following definition was given,

“Habitation (by a man) in a place with the intention of remaining there for ever unless some
circumstances should occur to alter his intention.”

By permanent residence is meant the residence to which no definite limit of time can be
assigned. Two things are essential to constitute domicile:

1. residence and

2. intention of making it the home.

No person can be without any domicile at all. For the purpose of succession a person
shall have only one domicile. Sec. 6 of the Indian Succession Act, 1925 also reiterates
that for the purpose of succession a person cannot have more than one domicile.

CLASSIFICATION OF DOMICILE

Domicile is classified under three heads:

1. Domicile by birth, also known as domicile of origin (Secs. 7 and 8);

2. Domicile by choice (Secs. 10, 11, 12, 13); and

3. By operation of law (Secs. 14, 15, 16, 17 and 18).

Domicile by Birth

Sec. 7 of the Indian Succession Act, 1925 provides that

“The domicile of origin of every person of legitimate birth is in the country in which at the
time of his birth, his father was domiciled; or, if he is a posthumous child, in the Country
in which his father was domiciled at the time of the father’s death.”

Sec. 8 deals with the domicile of an illegitimate child. Accordingly,

“The domicile of origin of an illegitimate child is in the country in which, at the time of his
birth, his mother was domiciled.”

In Udny vs. Udny, it was observed,

 “It is a settled principle that no man shall be without a domicile and to secure this
result law attributes to every child as soon as he is born the domicile of his father, if
the child is legitimate and the domicile of his mother if illegitimate.”

In case of a posthumous legitimate child, it is the domicile of the country in

which his father was domiciled at the time of the father’s death. The place where
the child is born is immaterial.

The legitimacy of a child depends upon the law of domicile by birth.

‘Domicile by birth’ or ‘domicile of origin’ is a creation of law, whereas domicile of

choice is created by the party.

The domicile of origin once ascertained in law clings and adheres to the person
until he chooses to divest himself of it by substituting a domicile of choice for the
domicile of origin.

When a domicile of choice is acquired the domicile of origin remains in abeyance.

It is not absolutely extinguished. When the domicile of choice is abandoned the
domicile of origin revives (Sec. 9).

Domicile of a foundling is the place where he is found.

Domicile by Choice

Sec. 10 of the Indian Succession Act, 1925 provides that

“A man acquires a new domicile by taking up his fixed habitation in a country

which is not that of his domicile of origin.”

Explanation to sec. 10 provides,

“A man is not to be deemed to have taken up his fixed habitation in India merely by
reason of his residing there in the civil, military, naval or air force service of
Government, or in the exercise of any profession or calling.”

There are the following seven illustrations to sec. 10.

Illustrations

(i) A, whose domicile of origin is in England, proceeds to India, where he settles as

a barrister or a merchant, intending to reside there during the remainder of his
life. His domicile is now in India.

(ii) A, whose domicile is in England, goes to Austria, and enters the Austrian
service, intending to remain in that service. A has acquired a domicile in
Austria.
 (iii) A, whose domicile of origin is in France, comes to reside in India under an engagement
with the Central Government for a certain number of years. It is his intention to return
to France, at the end of that period. He does not acquire a domicile in India.

(iv) A, whose domicile is in England, goes to reside in India for the purpose of winding up
the affairs of a partnership which has been dissolved, and with the intention of
returning to England as soon as that purpose is accomplished. He does not by such
residence acquire a domicile in India, however long the residence may last.

(v) A, having gone to reside in India in the circumstances mentioned in the last preceding
illustration, afterwards alters his intention, and takes up his fixed habitation in India.
A has acquired a domicile in India.

(vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled by

political events to take refuge in Calcutta, and resides in Calcutta for many years in the
hope of such political changes as may enable him to return with safety to
Chandernagore. He does not by such residence acquire a domicile in India.

(vii) A, having come to Calcutta in the circumstances stated in the last preceding
illustration, continues to reside there after such political changes have occurred as
would enable him to return with safety to Chandernagore, and he intends that his
residence in Calcutta shall be permanent. A has acquired a domicile in India.

Domicile of choice is acquired by a combination of fact with intention. The fact is

residence and the intention is that the residence should be permanent.

It is the taking up of a fixed habitation that determines the acquisition of new domicile.

A domicile of choice is the creation of the party. The domicile of origin is the creation of
law, and, when a party creates a new domicile, the domicile of origin remains in
abeyance. It is not extinguished. If the domicile of choice is abandoned without
acquisition of another, the domicile of origin revives without the need of any further act
or intention on the part of the person. The onus lies on a person who alleges the change
of domicile, otherwise the domicile of origin will prevail (sec. 9).

To constitute a change of domicile it must be both animo et facto. Mere residence in a

new place however long is not enough, it must be both residence and intention, i.e., the
residence must be accompanied by an intention of permanently residing in the new
domicile with the intention of abandoning his domicile of origin.

As regards proof of acquisition of domicile of choice the length of residence is a very

strong ground for inferring, in the absence of express intention, an intention to make a
residence a fixed habitation or permanent home.

No new domicile is obtained without a clear intention of abandoning the old. In every
case it is a question of fact. It is on a party who relies on a change of domicile to prove
that such a change has taken place and to do this he must show a double intention of
abandoning his domicile of origin and the intention of adopting the domicile of choice.

Sec. 13 enacts that

 “A new domicile continues until the former domicile has been resumed or another
has been acquired.”

A domicile of choice continues until it is abandoned. It is divested only when the

country of domicile has been actually abandoned with the intention of
abandoning it for ever. According to English law it is not necessary that another
domicile should be acquired. In such a case the domicile of origin which was in
abeyance automatically takes effect.

But according to sec. 13, the domicile of choice will continue until the domicile of
origin is resumed both animo et facto. According to this section a person who
acquired a domicile of choice, cannot resume his domicile of origin by merely
abandoning the former but he has got to do something further to resume his
domicile of origin.

Special Mode Of Acquiring Domicile In India

Sec. 10 of the Indian Succession Act, 1925 provides for a special mode of
acquiring domicile of India. According to this provision,

“Any person may acquire a domicile in India by making and depositing in some
office in India, appointed in this behalf by the State Government, a declaration in
writing under his hand of his desire to acquire such domicile; provided that he has
been resident in India for one year immediately preceding the time of his making
such declaration.”

DOMICILE BY OPERATION OF LAW

Domiciles of persons like a minor, a married woman and a person of unsound

mind, depend upon the domicile of some other person.

Minor’s Domicile

Under sec. 14,

“The domicile of a minor follows the domicile of the parent from whom he derived
his domicile of origin.”

But there is an exception to this section. The domicile of a minor does not change
with that of his parent, if the minor is

1. married, or

2. holds any office or employment in the service of Government, or

3. has set up, with the consent of the parent, in any distinct business.

Sec. 17 deals with minor’s acquisition of new domicile. The general rule is that person
cannot, during minority, acquire a new domicile. But there may be exceptions to this
general rule.

The domicile of a minor follows that of his parent, i.e., of the father if the minor is
legitimate (sec. 7) and of the mother if the minor is illegitimate (sec. 8). If the father dies
during the minority of his child, the minor’s domicile would continue to be of the father.

Married Woman’s Domicile

The doctrine that the domicile of the wife is that of the husband is founded on the duty
of the wife to live with her husband. Secs. 15 and 16 lay down this law in India. By
marriage a woman acquires the domicile of her husband (sec. 15), if she had not the
same domicile before. And during marriage the wife’s domicile follows that of her
husband (sec. 16).

However, the wife’s domicile no longer follows that of her husband

1. if they are separated by the sentence of a competent Court, or

2. if the husband is undergoing a sentence of transportation.

Under the English law where the husband deserts his wife the wife may acquire an
independent domicile. The widow retains the domicile of her husband after his death,
unless she has changed it after his death.

The word ‘sentence’ in sec. 16 means both a decree for divorce and a decree for judicial
separation and after a decree for divorce the wife may select her own domicile. But if the
parties live separate under a deed of separation the exception will not apply.

Lunatic’s Domicile

Sec. 18 clarifies that an insane person cannot acquire a new domicile in any other way
than by his domicile following the domicile of another person.

Therefore, if the insane person is a minor, his domicile follows that of his parent or if an
insane person is a married woman her domicile follows that of her husband. If the
lunatic is a major, his domicile cannot be changed either by his own act or by the act of
the person having the custody of the lunatic. It remains what it was at the
commencement of his insanity.
 LAW REGULATING SUCCESSION [SEC. 5]

It is a well settled principle of International Law that succession to immoveable

property of a deceased is determined by the lex loci rei sitae, i.e., by the law of the
country where the property is situated.

This rule is enacted under sec. 5(1) of the Indian Succession Act, 1925 which
states,

“Succession to the immoveable properties in India of a person deceased shall be

regulated by the law of India, wherever such person may have had his domicile at
the time of his death.”

Accordingly, even in the case of a person governed by this Indian Succession Act,
1925 if such person dies leaving immoveable property outside India succession to
such property will be determined by lex loci rei sitae.

Thus a will of immoveable property in India must comply with the provisions of
Indian Succession Act, 1925. Also the construction of a will of immoveable
property is, as a general rule, governed by the lex loci rei sitae.

In case of succession to the movable properties, the law of the place where the
deceased had a permanent residence at the time of his death is applicable.

Sec. 5(2) of the Indian Succession Act, 1925 which enacts this rule states,

“Succession to the moveable property of a person deceased is regulated by the law

of the country in which such person had his domicile at the time of his death.”

The law of the country of domicile is to be applied whether the person dies
intestate or whether he leaves a will.

In case of intestacy the law of the country of domicile at death determines who is
entitled to succeed to the moveables of the deceased. For example, if by the law of
domicile children, whether legitimate or illegitimate, are entitled to succeed their
claim will be enforced. In the absence of proof of domicile elsewhere if a person
dies in India, succession to his moveable property is governed by the law of India
(sec. 19).

In case of will in respect of moveables, the validity of the will will depend in
general upon the law of the domicile of the deceased at the date of his death. If by
the law of domicile a testator’s capacity to dispose of the moveables is restricted
effect will be given to the same.
 Bartlett vs. Bartleti

A Muslim British subject domiciled in Egypt died in 1918, possessed of property which was
all in Egypt. He was survived by his mother who according to the Mahomedan Law was
entitled to a one-sixth share. The deceased had executed a will in the English form leaving
all his property to his widow and children.

It was held that the testator had no testamentary power over the share to which his mother
was entitled.

If on the other hand the testamentary capacity is increased by the law of domicile of the
testator effect will be given to the same.

Wills in respect of moveables must be construed with reference to the law of the place
which was the testator’s domicile at the time of his death.

Under English Law, no will shall be held to be revoked or to have become invalid by
reason of any subsequent change of domicile of the person making the same. There is no
such provision in the Indian Succession Act, 1925. Under sec. 69 of the Act a will made
by a testator previous to his marriage is revoked by the subsequent marriage of the
testator. But if by the law of the domicile of the testator marriage does not revoke the
will, effect will be given to it.

There are two illustrations to sec. 5 which illustrate both the above rules.

Illustrations

(i) A, having his domicile in India, dies in France, leaving moveable property in France,
moveable property in England, and property, both moveable and immoveable, in India.

The succession to the whole is regulated by the law of India.

(ii) A, an Englishman, having his domicile in France, dies in India, and leaves property,
both moveable and immoveable, in India.

The succession to the moveable property is regulated by the rules which govern, in
France, the succession to the moveable property of an Englishman dying domiciled in
France, and the succession to the immoveable property is regulated by the law of India.
 2. INTESTATE SUCCESSION
Part V of the Indian Succession Act, 1925 deals with intestate succession. This part is
not applicable to any intestacy occurring before the first day of January, 1866, or to the
property of any Hindu, Mahomedan, Buddhist, Sikh or Jaina. Further, provisions of Part
V are subject to any other law for the time being in force, apart from the Hindu
Succession Act, 1956 and the Mahomedan Law.

Chapter II lays down the rules of succession in cases of intestates other than Parsis and
Chapter III lays down the rules of succession for Parsi intestates. Chapter II applies to
Europeans, Indian Christians, Jews, Armenians and other persons professing Christian
religion domiciled in British India.

However, the law applicable to Europeans, Indian Christians and Parsis before the first
day of January, 1866, is left untouched. Such law was the Common Law of England
except as modified by any customary law applicable to the Parsis or the Indian Christian
community.

INTESTACY

Sec. 30 with the four illustrations appended to it defines intestacy.

"A person is deemed to die intestate in respect of all property of which he has not made a
testamentary disposition which is capable of taking effect."

Illustrations

(i) A has left no will. He has died intestate in respect of the whole of his property.

(ii) A has left a will, whereby he has appointed B his executor; but the will contains no
other provision. A has died intestate in respect of the distribution of his property.

(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in
respect of the distribution of his property.

(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has
made no other bequest; and has died leaving the sum of 2,000 rupees and no other
property. C died before A without having ever had a son. A has died intestate in respect
of the distribution of 1,000 rupees.

A man is considered to die intestate in respect of all property of which

1. He has not made a testamentary disposition, e.g., when he has left no will.

2. He has made a will but the will is not capable of taking effect.

For example, when he has bequeathed his whole property for an illegal purpose or if
the subject of the bequest is non-existing.
 Intestacy 273

Intestacy is of two kinds

1. total intestacy, or

2. partial intestacy.

A man may die partly testate and partly intestate. For example, where the will
contains several bequests to several legatees, but there is no disposition of the
residue; he dies intestate as regards the residue.

DISTRIBUTION OF PROPERTY OF DECEASED CHRISTIAN

Chapter II of Part V of the Indian Succession Act, 1925 consisting of secs. 31-49
applies to Europeans and Indian Christians only and lays down the shares of the
next of kin of the deceased in cases of intestacy.

GENERAL PRINCIPLES

The general principles of distribution of property of a deceased Christian are as

under:

I. Where the deceased has left behind him widow (Sec. 33)

1. and also lineal descendants = W + LD 1/3 to W – 2/3 to LD

2. and also kindred but no lineal descendants* =W+K 1/2 to W – 1/2 to K

3. but no lineal descendants, no kindred =W Entire property to W

II. Where the deceased has left behind him no widow (Sec. 34)

1. but lineal descendants = LD Entire property to LD

2. but kindred =K Entire property to K

3. and no lineal descendants, no kindred Escheats to Govt.

* Where the deceased has left widow but no lineal descendants, the value of the
property is calculated after deducting:

1. all the debts of the deceased;

2. all funeral and administration expenses of the deceased; and

3. all other lawful charges to which the property is subject, such as taxes, etc.

from the gross value of the property.

274 2. Intestate Succession

Where the value of the property so calculated

1. does not exceed Rs. 5,000, the entire property goes to the widow.

2. exceeds Rs. 5,000, the widow is entitled to

(a) Rs. 5,000, and till the amount is paid, she is also entitled to

(i) a charge for Rs. 5,000 over the property; and

(ii) interest @ 4% p.a. from the date of death of the deceased till payment.

(b) half of the remaining property, i.e., the property of the deceased after
deducting the amount of Rs. 5,000 with interest which is payable to the
widow.

DISTRIBUTION OF PROPERTY AMONG LINEAL DESCENDANTS

Where the deceased has left behind him widow and lineal descendants, two thirds
of the property will go to lineal descendants. If the deceased has not left behind
him widow, the entire property will go to lineal descendants. Lineal descendants
exclude kindred.

Sec. 36 provides that the property of the deceased will be distributed among the
lineal descendants as per the rules laid down in secs. 37-40. Thus, there are four
situations:

Where the deceased has left behind him

I. children only (Sec. 37)

II. grand children only (Sec. 38)

III. great-grand children or remoter lineal descendants of the same degree only (Sec. 38)

IV. lineal descendants of different degrees and the nearer descendants through whom
remoter descendants are descended are dead.

P P P P

S S D S S D S S D S S D

SS SD DS SS SD DS SS SD DS

Circle indicates that the person is deceased SSS SDS SDS SDD
 Distribution of Property of Deceased Christian 275

Where the deceased is survived by

I. a child, the entire property goes to that child. If there are more children than
one, the property is distributed equally among them.

II. a grand child only, the entire property goes to that grand child, and where
there are more grand children than one, the property is distributed equally
among them, if there are no descendants of any predeceased grand children.

Illustrations

(i) A has three children, and no more, John, Mary and Henry. They all die before the
father, John leaving two children, Mary three and Henry four. Afterwards A dies
intestate, leaving those nine grandchildren and no descendant of any deceased
grandchild. Each of his grandchildren will have one-ninth.

(ii) But if Henry has died, leaving no child, then the whole is equally divided between
the intestate’s five grandchildren, the children of John and Mary.

Illustration (i) Illustration (ii)

Each child gets 1 ÷ (2 + 3 + 4) = 1/9 share Each child gets 1 ÷ (2 + 3) = 1/5 share

III. The same rule is applicable where the deceased leaves behind great-
grandchildren or remoter descendants who are all of the same degree. Thus, if
there is a sole descendant, he or she will get the entire property, and if there
are more descendants than one, they will share the property equally,
irrespective of the branches to which they belong.

IV. Where the descendants left behind by the deceased belong to different degrees,
each branch to which they belong will get equal share, and the same will be
distributed equally among the descendants belonging to that branch.
276 2. Intestate Succession

Illustrations
(i) A had three children, John, Mary and Henry; John died, leaving four children,
and Mary died, leaving one, and Henry alone survived the father. On the death of
A, intestate, one-third is allotted to Henry, one-third to John’s four children, and
the remaining third to Mary’s one child.

Illustration (i) Illustration (ii)

(ii) A left no child, but left eight grandchildren, and two children of a deceased
grandchild. The property is divided into nine parts, one of which is allotted to
each grandchild, and the remaining one-ninth is equally divided between the two
great-grandchildren.

(iii) A has three children, John, Mary and Henry;

John dies leaving four children; and one of
John’s children dies leaving two children. Mary
dies leaving one child. A afterwards dies
intestate. One-third of his property is allotted
to Henry, one-third to Mary’s child, and one-
third is divided into four parts, one of which is
allotted to each of John’s three surviving
children, and the remaining part is equally
divided between John’s two grandchildren.

(iv) A has two children, and no more, John and Mary. John dies before his father,
leaving his wife pregnant. Then A dies leaving Mary surviving him, and in due
time a child of John is born. A’s property is to be equally divided between Mary
and the posthumous child.
 Distribution of Property of Deceased Christian 277

DISTRIBUTION OF PROPERTY AMONG KINDRED

Where the deceased has left behind him widow and kindred, half property will go
to the kindred. If the deceased has not left behind him widow, the entire property
will go to the kindred.

Sec. 41 provides that the property of the deceased will be distributed among the
kindred as per the rules laid down in secs. 42-48. Thus, there are seven
situations:

Where the deceased has left behind him

I. father

II. no father – but mother, brothers and sisters

III. no father – but mother, brothers, sisters and children of any predeceased brothers
and sisters

IV. no father, brother or sister – but mother and children of any predeceased brother or
sister.

V. only mother – no father, brother, sister or children of predeceased brothers and sisters

VI. no father and mother – but only brother, sister or children of predeceased brothers
and sisters

VII. No father, mother, brother, sister or children of predeceased brothers and sisters

Where the deceased is survived by

I. Father, the father will take the entire estate of the deceased.

II. Where the father is not alive, but mother, brothers and sisters are alive, they
will have equal shares in the estate of the deceased.

Illustration

A dies intestate, survived by his mother and two brothers of the full blood, John and
Henry, and a sister Mary, who is the daughter of his mother but not of his father.
The mother takes one-fourth, each brother takes one-fourth and Mary, the sister of
half blood, takes one-fourth.
278 2. Intestate Succession

III. Where the father is not alive, but mother, brothers, sisters and children of
predeceased brothers and sisters are alive, mother, brothers and sisters,
including the predeceased brothers and sisters whose children are surviving
will have equal shares. Children of the predeceased brothers and sisters will
have equal shares in the share of their father or mother.

Illustration

A, the intestate, leaves his mother, his brothers John and Henry, and also one child
of a deceased sister, Mary, and two children of George, a deceased brother of the half
blood who was the son of his father but not of his mother. The mother takes one-
fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the
two children of George divide the remaining one-fifth equally between them.

Illustration to III Illustration to IV

IV. Where the father, brothers and sisters are not alive, but mother and children
of predeceased brothers and sisters are alive, mother and predeceased
brothers and sisters whose children are surviving will have equal shares.
Children of the predeceased brothers and sisters will have equal shares in the
share of their father or mother.

Illustration

A, the intestate, leaves no brother or sister but leaves his mother and one child of a
deceased sister, Mary, and two children of a deceased brother, George. The mother
takes one-third, the child of Mary takes one-third, and the children of George divide
the remaining one-third equally between them.

V. Where the deceased is survived by his mother, and had no father, brothers,
sisters and children of predeceased brothers and sisters not living at the time
of his death, the entire property goes to the mother.

VI. Where the deceased had no father and mother at the time of his death, but
had only brothers and sisters, brothers and sisters will get equal; shares.
 Distribution of Property of Deceased Christian 279

If there were also children of predeceased brothers and sisters, such

predeceased brothers and sisters will also be allotted equal shares with the
living brothers and sisters, and those shares will be distributed equally among
their children.

VII.Where the deceased did not have any parent, brother or sister at the time of
his death, his property shall be divided equally among those of his relatives
who are in the nearest degree of kindred to him.

DISTRIBUTION OF PROPERTY OF DECEASED PARSI

Chapter III of Part V of the Indian Succession Act, 1925 consisting of secs. 50-56
applies to Parsis and lays down the shares of the next of kin of the deceased in
cases of intestacy.

GENERAL PRINCIPLES

The general principles of distribution of property of a deceased Parsi are as under:

I. There is no difference between the children born during the lifetime of the
deceased and the posthumous children, i.e., children who were conceived
during the lifetime of the deceased, but were born alive after his death.

II. A predeceased lineal descendant who has died without leaving a widow or
widower or any lineal descendant or a widow or widower of any lineal
descendant is excluded.

III. A widow or widower of any relative of the deceased who has remarried in the
lifetime of the deceased is also excluded.

DISTRIBUTION OF PROPERTY
Sec.s 51 to 56 of the Indian Succession Act, 1925 deal with the rules regarding
distribution of property among the legal heirs of a deceased Parsi. Thus, there are
five situations:

Where the deceased has left behind:

I. spouse, children and parents

II. lineal descendants of a predeceased child

III. no lineal descendant – but spouse or spouse of lineal descendants

IV. no spouse, and no lineal descendant or spouse of a lineal descendant

V. no relative entitled to inherit under the above provisions

280 2. Intestate Succession

I. Where a Parsi dies leaving spouse and children, they will get equal shares in
the property.

Where a Parsi dies leaving children but no spouse, they will get equal shares in
the property.

Where the Parsi as also left a parent or both the parents in addition to
children, or in addition to spouse and children, the property will be so
distributed that each parent will get half the share of each child.

Example

A, a Parsi dies leaving father, mother, widow and a son. Widow and son are entitled
to equal shares. Father and mother are entitled to shares equal to half the share of
son. Thus if father and mother are entitled to 1 unit each, widow and son are
entitled to 2 units each. Total units are 1+1+2+2=6. Dividing each heir’s unit by 6
will give their respective shares.

Father Mother Widow Son Total

1 Unit + 1 Unit + 2 Units + 2 Units = 6 Units
(1/6) (1/6) (2/6 = 1/3) (2/6 = 1/3) 1

II. In all cases where the deceased has left any lineal descendant, if any
predeceased child of the deceased as left any lineal descendant, the share of
that lineal descendant will be distributed as if the child died after the deceased
and subject to the following four rules:

(a) If the child was a son, his widow and children will get equal shares in his share.

Example

A, a Parsi dies leaving behind a son and a widow and son of a predeceased son.
Widow and both sons, living as well as predeceased, will get equal shares. i.e., one-
third share each. The one-third share of the predeceased son will go to his son.
Thus, widow will get 1/3 share and son will get 1/3 share and the son of the
predeceased son will get 1/3 share.

Predeceased Son’s
Widow Living Son share received by Total
+ + his Son =

1/3 1/3 1/3 1

(b) If the child was a daughter, her share will be divided among her children equally.
Widower and descendants of predeceased children are excluded.

(c) If any child of a predeceased child died during the lifetime of the deceased, its
share will be distributed as per (a) or (b) as the case may be.

(d) Rule (c) is applicable also where a remote descendant of a predeceased child died
during the lifetime of the deceased.
 Distribution of Property of Deceased Parsi 281

III. Where the deceased leaves spouse or spouse of a predeceased lineal

descendant, but no lineal descendant, the property of the deceased shall be
distributed according to the following five rules:

(a) If the deceased leaves spouse but no spouse of a predeceased lineal descendant,
the spouse will take half share.

(b) If the deceased leaves spouse and also spouse of a predeceased lineal descendant,
the spouse will take one third share and spouse of the predeceased lineal
descendant will take one third.

Where there are spouses of more than one lineal descendant, they will equally
share that one third share.

(c) If the deceased leaves no spouse, but spouse of a predeceased lineal descendant,
the spouse of the predeceased lineal descendant will take one third.

Where there are spouses of more than one lineal descendant, they will equally
share two third share.

(d) The residue in rules (a), (b) and (c) will go to the relatives mentioned in Par I of
Schedule II.

(e) If there are no relatives mentioned in Part I of Schedule II, the residue will return
to the persons entitled to receive shares under this section.

IV. Where the deceased leaves no spouse, lineal descendant and spouse of lineal
descendant, his property will go to persons mentioned in Part II of Schedule II.

V. If no relative entitled to inherit under this Chapter is available, the property of

the deceased will be divided equally among persons nearest in degree of
kindred to him.
 3. WILLS

‘WILL’

According to sec. 2(h) of the Indian Succession Act, 1925, ‘will’ means the legal
declaration of the intention of a testator with respect to his property which he desires to
be carried into effect after his death.

Under the General Clauses Act will includes a codicil and every writing making a
voluntary posthumous disposition of property. According to Halsbury, a will or
testament is the declaration in a prescribed manner of the intention of the person
making it, with regard to the matters which he wishes to take effect upon or after his
death.

A will differs from a deed in the following respects:

1. A deed operates eo instanti, from the date of its execution. A will comes into operation
on the death of the testator.

2. A deed is ordinarily irrevocable, unless there is an express power of revocation. A will

can be revoked at any time by the testator during his lifetime. It becomes irrevocable
on the death of the testator.

3. In case of mistake in a deed, the Court has power to rectify it. A will cannot be
rectified by any Court of law.

CODICIL

According to sec. 2(h) of the Indian Succession Act, 1925, ‘codicil’ means an instrument
made in relation to a will, and explaining, altering or adding to its dispositions, and shall
be deemed to form part of the will.

This definition is practically the same as in the Act of 1865, except that the words “and
shall be deemed to form a part of the will” are substituted for the words “it is considered
as forming an additional part of the will.” Under the General Clauses Act a will includes
a codicil.

Therefore, a codicil is ordinarily an instrument made in relation to a will, but it may

operate by itself as a will and probate can be granted of the codicil alone. The definition
of ‘codicil’ as given by Halsbury is, “A codicil is of similar nature to a will, and in general
is supplemental to and considered as annexed to a will previously made, and executed
for the purpose of adding to, varying, or revoking the provisions of that will, though it is
capable of independent existence.”
 Codicil 283

A codicil duly executed will give effect and operation to unattested alterations in a
will. A defective bequest in a will may stand cured by a codicil.

Before the English Wills Act it was held that a codicil depended on the will and a
revocation of the will was an implied revocation of the codicil. This provision was
later amended. Under the provisions of sec. 70 of the Indian succession Act, 1925
it is now settled that a codicil is not deemed to be revoked merely by implication of
the revocation of the will, but the codicil will remain effectual unless it is shown
that the testator while intending to revoke the will also intended to revoke the
codicil as well.

PURPOSE OF A WILL

A will may be made for the purpose

1. of appointing an executor,

2. for appointing a testamentary guardian,

3. for exercising a power of appointment, and

4. for revoking or altering a previous will.

ESSENTIAL CHARACTERISTICS OF A WILL

The Essential characteristics of a Will are:

1. There must be a legal declaration.

2. The declaration must be with respect to the property of the testator.

3. The declaration must be to the effect that it is to operate after the death of the
testator, i.e., it is revocable during the life of the testator.

If any of the three essentials is lacking the document is not a will.

1. LEGAL DECLARATION

The document purporting to be a will or testament must be legal, i.e., in

conformity with the provisions as regards the execution and attestation as
provided by sec. 63 of the Act, and must be by a person competent to make it. A
minor is legally incompetent to make a will and a will by a minor is not a legal
declaration. The mere use of the word “will” cannot make it a will if it does not
amount to a testamentary declaration disposing of the property.
284 3. Wills

2. IN RESPECT OF PROPERTY

The declaration should relate to the property of the testator which he wants to
dispose of. If the declaration contains no reference to the disposal of the property
but merely appoints a manager to manage the property or gives merely an
authority to his widow to adopt it is not a will.

Brijraj vs. Sheodan

An old Hindu executed a document styled “Will” whereby he partitioned his property
amongst his sons. It contained the following clause, “If I at any time come back from
pilgrimage and find mismanagement or the character of any one bad, then I shall
have the power to cancel this will.” Held, it was not a will but a family agreement.

Bheema Deo vs. Behari Das

A Hindu executed the following document, “I have consented to your adopting a son
at your pleasure and conducting the management of the estate in the best manner.
None of my heirs shall have cause to raise disputes touching this matter. This will
has been executed by my consent.” Held, that the document was not a will.

Ramchandra vs. Ramabai

A Hindu member of a joint family consisting of himself and his nephew executed a
deed called Vyavastha Patra (Deed of Settlement). He made a declaration that he had
separated from the nephew from that date but it was not possible to effect by metes
and bounds but he had made a symbolical partition of the property. He then made a
disposition of his property giving a half share of the income of his property to his
widow, etc. The document was also signed by the nephew. Held, that the deed was a
will and entitled to probate.

DISPOSAL OF PROPERTY AFTER TESTATOR’S DEATH

The declaration as regards the disposal of the property of the testator must be
intended to take effect after his death. Some disposition of property by will is
necessary. If the declaration is not to that effect or if the declaration is to carry
into effect the intention of the writer immediately, i.e., inter vivos then it is not a
will. The essence of every testamentary instrument is that it is revocable during
the life of the testator. In this respect a will differs from a deed which takes effect
during life and is irrevocable. Hence a will is said to be ambulatory until the death
of the testator. One of the tests to ascertain whether an instrument is a will or a
deed is to see if it is revocable. A document which is plainly intended to be
operative immediately and to be final and irrevocable is a non-testamentary
instrument. But a deed not intended to have any effect till the settlor’s death is
testamentary.
 Essential Characteristics of a Will 285

The mere fact that the testator calls it irrevocable or covenants not to revoke it
does not alter its quality and it is nevertheless revocable except only in case of a
joint will.

Nor does the fact that the writer of the instrument calls it a “will” make it a
testamentary document if it does not amount to testamentary disposition. What is
necessary is that the will must make a disposition of the testator’s property and
the declaration regarding the disposition must be in accordance with the
provisions of the law.

Another test is to ascertain whether the dispositions made by the instrument are
intended to take effect immediately on execution or during any period in the life of
the executant or whether the dispositions are to take effect after his death. An
instrument which reserves a life interest to the maker is not a will.

An instrument may be partly of a testamentary character and partly a deed and

probate may be granted of a part of the will. In the case, however, of an
instrument of which one part is proved to be of a testamentary character, the
Court may presume that the remainder is also intended to be testamentary.

FORM OF WILL

Will may be in any form, but to be effective it must be in the form required by the
Indian Succession Act, 1925. It is not necessary that it should be of a
testamentary form in order to operate as a will, but there must in all cases be the
animus testandi, i.e., the intention that the writing should operate as a will.

Thus agreements, letters, bills of exchange, powers-of-attorney, a Vyavasta Patra

(deed of settlement), a Sambandha Nirnaya Patra (a matrimonial arrangement
deed), a Tamliknama (assignment), an Ekrarnama (deed of agreement) and other
instruments may take effect as wills, if duly executed, where a testamentary
intention can be collected, and the dispositions are not to take effect until after the
death of the person making them.

It is very often contended that a deed and especially a deed of gift or a deed of
family settlement, which is inoperative for want of stamp or registration or other
prescribed formalities should operate as a will.

But in order that a document should have the effect of a will, it must satisfy the
following two tests:
286 3. Wills

1. That it was the intention of the writer of the paper to convey the benefits by the
instrument which would be conveyed by it, if considered as a will, the writer
had the animus testandi. A will though formally executed as such, will not be
valid, if there were no animus testandi, e.g., if it was written in jest.

2. That death was the event that was to give effect to it. If the writing confers or is
intended to confer benefits inter vivos, without any reference to the death of the
party conferring it, it cannot be established as a will.

LANGUAGE OF WILL
A will may be written in any language and no technical words are necessary. Only
the wording shall be such that the intention of the testator can be known
therefrom (sec. 74). A will may be written with any material—ink or pencil. It may
be partly in ink and partly in pencil. But if the will is once written in ink and there
are pencil alterations therein, there will be a presumption that the alterations are
deliberative. If the will written in ink contains blank portions which are filled up in
pencil before execution the pencil additions will be included in probate; if in ink
they are final and absolute.

It is also not necessary that the testator himself should write the will. It may be
written by any person. But if it is written by a person who himself benefits by it,
the rule in Barry vs. Butlin must be borne in mind. It is a suspicious circumstance

REGISTRATION AND STAMP DUTY

Under sec. 18 of the Registration Ac, 1908, registration of will is optional. Further,
wills may deposited with the Registrar in sealed covers. The cover will be opened
after the death of the testator. Thus, it will be safe and also confidential.

Wills and codicils are not required to be stamped. They are exempt from stamp
duty.

DIFFERENT KINDS OF WILLS

The Act mentions only two kinds of wills— a privileged will and an unprivileged
will. There are other types of wills, some are valid under the Indian Succession
Act, 1925, while others are not.
 Different Kinds of Wills 287

1. Privileged Will

‘A Privileged Will’ is a will made by a soldier employed in an expedition, or engaged

in actual warfare or by an airman so employed or by a mariner at sea.

2. Unprivileged Will

An ‘Unprivileged Will’ is a will made by a person, not being a soldier or airman

employed in an expedition or engaged in actual warfare or a mariner at sea. This is
the ordinary will.

3. Oral or Nuncupative Will

An ‘oral or nuncupative will’ is a will declared by a testator before a sufficient

number of witnesses. The word “nuncupative” is derived from nuncupando
meaning naming, because when a man makes a nuncupative will he must name
his executor and declare his whole mind before witnesses.

There is no scope for this kind of will under the Succession Act but in place where
the act does not apply a will can be made orally. It is, therefore, not competent for
any person governed by this Act to make a nuncupative will.

4. Holograph Will

A holograph will is a will which is written by the testator himself. Such a will is
included in the definition of an unprivileged will. A holograph will may show
indication that the testator was fully conscious of what he was doing and will not
be easily set aside.

5. Inofficious Will

A will which is not consonant with the testator’s natural affection and moral
duties is called an inofficious will. An inofficious will may throw some light upon
the question of testator’s condition of mind.
288 3. Wills

6. Mutual Will

A mutual will is one of two testamentary documents made respectively by two

persons giving each other similar rights in each other’s property. It implies two
separate wills executed on the same day containing similar provisions.

Two persons may agree to make mutual wills which remain revocable during their
joint lives by either of them with notice to the other. The peculiar characteristic of
this kind of wills is, that they become irrevocable after the death of one of them, if
the survivor takes advantage of the provisions made by the other.

7. Joint Will

A joint will is a will made by two or more testators contained in a single

instrument duly executed by each testator disposing either of their separate
properties or their joint property. By a joint will is meant a single instrument by
which two persons give effect to their testamentary wishes. Such a will is not a
single will and is revocable at any time by either of them or by the survivor. But in
certain cases it will be enforced in equity as contracts.

8. Contingent Will and Conditional Will

Will may be made contingent upon the happening of an event, so that if the event
does not happen the will has no effect. For example, where the will contained the
following clause, "should anything happen to me during my passage to Wales or
during my stay” it was held to be a will. It will take effect only if the contingency
happens; if the contingency does not happen the will is not entitled to probate.

In order that a will should be regarded as conditional or contingent it must plainly

appear from the terms of the will that its provisions were intended to take effect
only in the event of the happening of the contingency and not otherwise.

PERSONS CAPABLE OF MAKING WILLS

Sec. 59 of the Indian Succession Act, 1925 provides that every person of sound
mind and not a minor may dispose of his property by will. Generally speaking,
therefore, all persons who have sufficient discretion and free will are capable of
disposing of their property by will. There are two grounds of incapacity:

1. the want of sufficient legal discretion;

2. the want of liberty or free-will.

 Persons Capable of Making Wills 289

SOUND DISPOSING MIND

It is essential for the validity of a will that the testator should be of sound mind,
memory and understanding. This is described by the expression “sound and
disposing mind”. A sound and disposing mind connotes that the testator must be
conscious of the various claims persons have upon his property and must also be
capable of realising the extent of the property disposed of under the will.

It is essential that while signing the will, the testator should be mentally
competent to understand both these things. Where the mind was too weak due to
illness or old age and infirmity arising from the approach of death, the protection
of law is more important.

Mere ability to sign one’s name, nor mere consciousness, nor the fact that the
testator was able to maintain ordinary conversation and to answer familiar and
easy questions is enough to constitute a sound and disposing mind.

MINORITY

Minors i.e., persons who have not completed the age of 18 years are not capable of
making wills. Wills made by such persons during minority shall be null and void,
void, though the person may have died after attaining majority.

FRAUD, COERCION OR UNDUE INFLUENCE

Sec. 61 provides that a will or any part of a will, the making of which has been
caused by fraud or coercion or by such importunity as as takes away the free
agency of the testator, is void.

EXPLANATION I – MARRIED WOMAN

A married woman is capable of disposing by will of any property which she could
alienate during her life. The effect of this Explanation is to declare that a married
woman can dispose of by will any property which she can alienate by her own act
during her life without any consent of her husband. Earlier, married women were
not competent to make wills. That position is altered by this explanation.
290 3. Wills

EXPLANATION II – DEAF. DUMB AND BLIND

This Explanation refers to the case of persons who are deaf or dumb or blind. The
explanation omits the case of a person who is deaf and dumb and blind who is
held incapable of making a will.

This Explanation makes it clear that a person deaf and dumb by birth can make a
will if he is able to know what he does by it.

Mere blindness will not incapacitate a person from making a will provided he is
able to know what he does. It will, therefore, be sufficient if there is satisfactory
proof of the knowledge and approval of the will by the blind man.

EXPLANATION III – LUNATICS AND INSANE PERSONS

A lunatic is a person usually of unsound mind but having intervals of reason.

Such a person cannot make a will during his insanity.

If a person whilst he is of sound mind makes a will and subsequently becomes

insane the will is not revoked by subsequent insanity. This Explanation enacts
that a lunatic may make a will during a lucid interval.

Delirium and Insanity

Delirium is a fluctuating state of mind created by temporary excitement in the

absence of which the patient is most commonly really sane and the difficulty of
proving a lucid interval is less. In order to constitute insane delusion it must be
shown that the testator’s belief in it was unfounded but that it was so destitute of
foundation that no one except an insane person would have entertained it.

Mere existence of a delusion or a partial unsoundness of mind, not affecting the

general faculties and not affecting the mind of the testator in regard to
testamentary disposition, will not be sufficient to deprive a person of the power of
disposing of his property. The result is that a person subject to delusions may
make a valid will, if the delusions under which he labours be such that they could
not be supposed to have affected the dispositions made by the will.

Lucid Interval

It is an interval during which there is entire absence of the malady and the
interval must be substantial, though it may be temporary. In such cases the order
 Persons Capable of Making Wills 291

of proof and of presumption is reversed, if the man is habitually insane, the proof
of lucid interval will be on the party alleging the same.

In cases of inofficious wills, i.e., when a testator gives away his property to
strangers forgetting his natural duty to his children, there is no presumption of
insanity, but it may throw some light upon the question of the testator’s capacity.

EXPLANATION IV – INTOXICATION, ILLNESS, INFIRMITY ETC.

A will made by a person when he is so excessively drunk that he is utterly

deprived of the use of reason and understanding is null and void. It is called
delirium tremens. But a person who is habitually addicted to drink but is not
insane or deranged may make a valid will.

Illness which impairs the mind of a person in such a manner as to deprive him of
the power of understanding the nature of the instrument or the effect of its
provision will invalidate the will. But mere debility unaccompanied by any mental
incapacity will not deprive a person from making a will.

Infirmity is of two kinds, physical and mental. Wills made during those infirmities
are looked upon with suspicion. Physical infirmity results from old age or severe
illness. Mere old age does not deprive a man of the capacity of making a will. Yet if
a man in his old-age becomes a very child again in his understanding or by reason
of extreme old age or other infirmity he becomes so forgetful that he does not know
his own name, he is not fit to make a will.

PRIVILEGED WILLS

A ‘Privileged Will’ is a will made by a soldier employed in an expedition, or engaged

in actual warfare or by an airman so employed or by a mariner at sea.

Sec. 65 provides that any soldier being employed in an expedition or engaged in

actual warfare or an airman so employed or engaged or any mariner being at sea,
may, if he has completed the age of eighteen years, dispose of his property by a
will made in the manner provided in sec. 66. Such wills are called privileged wills.

There are six illustrations to sec. 65.

292 3. Wills

Illustrations

(i) A, a medical officer attached to a regiment is actually employed in an expedition.

He is a soldier actually employed in an expedition, and can make a privileged
will.

(ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and,

being at sea, can make a privileged will.

(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual
warfare, and as such can make a privileged will.

(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while

she is lying in harbour. He is, for the purposes of this section, a mariner at sea,
and can make a privileged will.

(v) A, an admiral who commands a naval force, but who lives on shore, and only
occasionally goes on board his ship, is not considered as at sea, and cannot
make a privileged will.

(vi) A, a mariner serving on a military expedition, but not being at sea, is considered
as a soldier, and can make a privileged will.

MODE OF MAKING A PRIVILEGED WILL

Sec. 66(1) provides that privileged wills may be in writing, or may be made by word
of mouth.

The execution of privileged wills shall be governed by the following rules given in
sec. 66(2).

(a) The will may be written wholly by the testator, with his own hand. In such case
it need not be signed or attested.

(b) It may be written wholly or in part by another person, and signed by the
testator. In such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by another

person and is not signed by the testator, it shall be deemed to be his will, if it
is shown that it was written by the testator’s directions or that he recognised it
as his will.

(d) If it appears on the face of the instrument that the execution of it in the
manner intended by the testator was not completed, the will is invalid.
 Privileged Wills 293

However, if it is shown that he had the intention to make a will, but his non-
execution of it was due to some cause, the will is valid in spite of its incomplete
execution.

(e) If the testator has written instructions for the preparation of his will, but has
died before it could be prepared and executed, such instructions shall be
considered to constitute his will.

(f) If the testator has, in the presence of two witnesses, given verbal instructions
for the preparation of his will, and they have been reduced into writing in his
lifetime, but he has died before a written will could be prepared and executed,
such instructions shall be considered to constitute his will, although they may
not have been reduced into writing in his presence, nor read over to him.

(g) The testator may make a will by word of mouth by declaring his intentions
before two witnesses present at the same time.

(h) A will made by word of mouth shall be null at the expiration of one month after
the testator, being still alive, has ceased to be entitled to make a privileged will.

In other words, the testator of a privileged will, shall make an unprivileged will
within one month after the circumstances entitling him to make privileged will
cease, if he is alive.

UNPRIVILEGED WILLS

An ‘Unprivileged Will’ is a will made by a person, not being a soldier or airman

employed in an expedition or engaged in actual warfare or a mariner at sea. This is
the ordinary will.

Sec. 63 provides for the mode of making an unprivileged will. Accordingly, there
are three requirements for the valid execution of a will.

1. Execution i.e., signing of the will by the testator;

2. Place of signature is such as to show an intention to execute the will; and

3. Attestation by at least two witnesses.

294 3. Wills

EXECUTION OF THE WILL BY TESTATOR

The first requirement is that the will has to be executed by the testator. There are
different modes of signing.

1. by writing one’s own name

2. by affixing left thumb mark (LTM)

3. by putting a mark

4. through another person

Normal way of signing a document is by writing one’s own name. This is possible
where the executant is literate.

An illiterate person affixes his left thumb mark (LTM).

Where the testator cannot put his left thumb mark, he may put any other mark.
He may affix mark of any other finger or write any other mark. Even a literate
person may put his mark if he is unable to put his signature due to any reason.

Nirmal Chunder vs. Saratmoni

A rubber stamp impression where the testator was in the habit of using the rubber
stamp was held to be good.

But the mark must be made by the testator and not by some other person for the
testator. If a testator intentionally or unintentionally signs under a wrong or
assumed name still if he signs animo tesiandi it is sufficient. Under the General
Clauses Act, 1897 the word ‘sign’ with reference to a person who is unable to write
his name shall include mark.

Where the testator is unable even to put any mark, he may request any other
person to put his signature. According to sec. 63(a) a will may be signed by some
other person,

1. in the testator’s presence and

2. by the testator’s direction.

Further that ‘some other person’ cannot be a beneficiary under the will. So also he
cannot attest his own signature. Therefore, there have to be two other persons in
addition to that some other person signing the will.
 Unprivileged Wills 295

According to English practice when a person signs for the testator by his direction,
he may sign either the testator’s name or bis own name for the purpose of giving
effect to such directions. But according to sec. 63(a) when some other person signs
on behalf of the testator the proper form of signature is for the other person to sign
the name of the testator and not his own, as is held in Dasuredi vs.
Venkatasubbammal. This is. however, merely to furnish prima facie evidence of
due execution.

The section requires the signature and not the mark of the person signing on
behalf of the testator. However, in Theresa vs. Francis and in Nitya Gopal vs.
Nagendra Nath, mark of the person signing on behalf of the testator was held to
be good.

PLACE OF SIGNATURE

The normal and most appropriate place of signing any document is at the foot or
end thereof. But according to sec. 63(b) the signature or mark of the testator or
the signature of the person signing for him may be placed any where on the will.

According to this clause the signature need not necessarily be at the end of the
will. It does not matter in what part of the will the testator signs. What matters is
that it must be so placed that it shall appear that it was “intended to give effect to
the instrument as a will”.

It may be either at the commencement or at the end. In Amarendra vs. Kashi Nath
signature was at the commencement of the will. It was held to be valid.

If a will is written on several sheets of paper it is not necessary that all sheets
should be severally signed. One signature on the last sheet made with the
intention of executing the whole is sufficient.

ATTESTATION

The will shall be attested by two or more witnesses.

1. Each witness must have seen the testator sign or affix his mark, or

2. Each witness must have seen some other person sign the will in the presence
and by the direction of the testator, or

3. If the will is already signed each witness must have received from the testator a
personal acknowledgement of his signature or mark or of the signature of such
other person signing for him.
296 3. Wills

It is not, therefore, necessary, that both the witnesses should he present at one
and the same time.

The testator may sign in the presence of one witness and acknowledge his
signature before another witness. But, the attesting witness must sign in the
presence of the testator.

The fact that a witness is under-age does not disqualify him provided he has the
requisite understanding to testify as a witness (sec. 118 Indian Evidence Act). A
scribe can be an attesting witness but it must be shown that his signature was
put for attesting the will.

The beneficiary under the will cannot attest the will. If a beneficiary under the will
attests the will, the attestation is valid, but he loses the legacy under the will.
Under sec. 67, any legacy or bequest given to a person who attests the will, or to
his wife or her husband, or to any person claiming under either of them shall be
null and void.

Explanation to sec. 67 provides that a legatee under a will does not lose his legacy
by attesting a codicil which confirms the will.

Sec. 67 does not apply to Hindus. Hence the attesting witness to the will of a
Hindu does not lose the legacy given to him by the will.

It is not necessary that the attesting witnesses should know contents of the will.
The testator need not disclose the nature or contents of the instrument. Mere
attestation is not enough to prove that the attesting witness had knowledge of the
contents of the will. Sometimes the contents of the will are covered by a paper, so
that the attesting witnesses should not read them. In such cases, one should be
careful that the signature of the testator is not covered up. If the signature is also
covered up so that the attesting witnesses do not see it, there would be no
sufficient acknowledgement, and the attestation will be invalid.

Personal Acknowledgement

When the testator does not execute the will in the presence of the attesting
witnesses, the attesting witnesses put their signatures on the personal
acknowledgement of the execution of the will by the testator.

It is not necessary that the testator should in express terms say, “That is my
signature.” It would be sufficient, if the testator produces a paper and makes his
witnesses understand that it is his will.
 Unprivileged Wills 297

Sec. 68 requires the personal acknowledgement by the testator. Therefore, the

testator should personally make the acknowledgement. A request by a third party
to the witnesses to attest the will would not be a sufficient acknowledgement.

VOID BEQUESTS

Sections 112 to 118 list seven types of bequests as void. They are:

1. Bequest to a non-existent person (Sec. 112);

2. Bequest to an unborn person (Sec. 113);

3. Bequest in violation of rule against perpetuity (Sec. 114);

4. Bequest to a class some of whom may come under rules in sec. 113 or 114
(Sec. 115);

5. Bequest to take place on failure of a prior bequest on account of rules in sec.

113 or 114 (Sec. 116);

6. Bequest with direction for accumulation (Sec. 117); and

7. Bequest to religious or charitable uses in certain cases (Sec. 118).

1. TRANSFER TO A NON-EXISTENT PERSON

Where a bequest is made to a person by a particular description, and there is no

person in existence at the testator’s death who answers that description, the
bequest is void.

Sec. 112 has five illustrations:

Illustrations

(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B
has no son. The bequest is void.

(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C.
At the death of the testator, C had no son. Afterwards, during the life of B, a son
is born to C. Upon B’s death the legacy goes to C’s son.

(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C.
At the death of the testator, C had no son. Afterwards, during the life of B, a son,
named D, is born to C. D dies, then B dies. The legacy goes to the representative
of D.
298 3. Wills

(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the
eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest
son is void.

(v) A bequeaths Rs. 1,000 to the eldest son of C, to be paid to him after the death of
B. At the death of the testator C has no son, but a son is afterwards born to him
during the life of B and is alive at B’s death. C’s son is entitled to the Rs. 1,000.

2. BEQUEST TO UNBORN PERSON

Bequest to an unborn person is void. Sec.113 of Indian Succession Act, 1925

provides for transfer for the benefit of an unborn person.

For such a transfer there are three important requisites:

1. a prior interest for life has to be created in another person (who is an

intermediary);

2. the legatee, i.e., the unborn person must be born before the death of that
intermediary; and

3. the bequest must comprise of whole of the remaining interest of the testator.

The leading case on the point is Sopher vs. Administrator-General of Bengal.

Sopher vs. Administrator-General of Bengal

A grandfather made the bequest to his grandson who was yet to be born, by creating
a prior interest in his son and daughter in law. The Court upheld the transfer to an
unborn person and the Court held that since the vested interest was transferred
when the grandsons were born and only the enjoyment of possession was postponed
till they achieved the age of twenty one the transfer was held to be valid.

The bequest must comprise of whole of the remaining interest of the testator. That
means that the interest transferred to the unborn person must be absolute. It
cannot be life interest, and it cannot be a limited interest.

Girish Dutt vs. Datadin

The Will stated that the property was to be transferred to a female descendant (who
was unborn) only if the person did not have any male descendant. The Court held
that since the transfer of property was dependent on the condition that there has to
be no male descendant, the transfer of interest was limited and not absolute and
thereby the transfer was void.
 Void Bequests 299

3. BEQUEST CREATING PERPETUITY

Sec. 114 of the Indian Succession Act, 1925 provides that no bequest is valid
whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of
one or more persons living at the testator’s death and the minority of some person
who shall be in existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong.

Sec. 114 provides that where an interest is created for the benefit of an unborn
person in accordance with the provisions of sec. 113, such interest shall not take
effect if the interest is to vest in such unborn person

1. after the life time of one or more persons living on the date of the transfer, i.e.,
the intermediaries in whose favour the prior interest is created as required
under sec. 13; and

2. the minority of such unborn person.

In other words, the interest created for the benefit of an unborn person shall take
effect only if the interest is to vest in such unborn person before he attains the age
of eighteen years.

The rule against perpetuity provides that the property cannot be tied for an
indefinite period. The property cannot be transferred in an unending way. The rule
is based on the considerations of public policy since property cannot be made
inalienable unless it is in the interest of the community.

4. TRANSFER TO A CLASS SOME OF WHOM MAY COME UNDER

ABOVE RULES

Sec. 115 provides that if a bequest is made to a class of persons with regard to
some of whom it is inoperative by reasons of the fact that the person is not in
existence at the testator’s death or to create perpetuity, such bequest shall be void
in regard to those persons only and not in regard to the whole class.

A number of persons are said to be a class when they can be designated by some
general name as grandchildren, children and nephews.
300 3. Wills

5. TRANSFER TO TAKE EFFECT ON FAILURE OF PRIOR TRANSFER

S. 116 provides that where by reason of any of the rules contained in sec.s 113
and 114 and bequest in favour of a person of a class of persons is void in regard to
such person or the whole of such class, any bequest contained in the same will
and intended to take effect after or upon failure of such prior bequest is also void.

Girish Dutt vs. Datadin

One S gave property to B for life and after her death if there be any descendants
whether born as son or daughter to them absolutely. In the absence of any issue,
whether male or female, living at the time of B’s death, the property was to go to C.

It was held that the gift in favour of C was dependent upon the failure of the prior
interest in the favour of daughter and hence the gift in favour of C was also invalid.
However alternative bequests were held to be valid.

6. BEQUEST WITH DIRECTION FOR ACCUMULATION

Sec. 117 provides that where the terms of a will direct that the income arising
from any property shall be accumulated either wholly or in part during any period
longer than a period of eighteen years from the death of the testator, such
direction shall be void to the extent to which the period during which the
accumulation is directed exceeds the aforesaid period. At the end of such period of
eighteen years the property and the income thereof shall be disposed of.

Example

A make a will by which he directs for accumulation of interest arising out of certain
property for a period ending 21 years after his death, and after that it should go to B.
The direction is valid only to the extent of 18 years after his death, and after the
expiry of 18 years from the death of A it will go to B.

Sec. 117 provides for three exceptions to the rule against accumulation. They are:

(i) the payment of the debts of the testator or any other person taking any interest
under the will,

(ii) the provision of portions for children or remoter issue of the testator or of any
other person taking any interest under the will,

(iii) the preservation or maintenance of any property bequeathed.

 Void Bequests 301

7. BEQUEST TO RELIGIOUS OR CHARITABLE USES

Sec. 118 provides that no man having a nephew or niece or any nearer relative
shall have power to bequeath any property to religious or charitable uses, except
by a will executed not less than twelve months before his death, and deposited
within six months from its execution in some place provided by law for the safe
custody of the wills of living persons. In John Vallamattom & Anr. vs. Union of
India Supreme Court has struck down sec. 118 as unconstitutional.

VOID WILLS
Wills not executed in accordance with the provisions of the Indian Succession Act,
1925 are void. Thus,

1. a privileged will executed by persons not entitled to make privileged wills is void.

2. An unprivileged will which is not signed by the testator or not attested as

required by the provisions of the Act is void.

In addition to this, there are other circumstances in which a will may be void.

1. WILLS VOID DUE TO FRAUD, COERCION OR UNDUE INFLUENCE

Sec. 61 provides that a will, or any part of will, which has been caused by fraud or
coercion, basically not by free will, will be void and the will would be set aside.

Fraud: Sec. 17 of the Indian Contract Act provides for fraud. Fraud implies a
wilful act on the part of anyone whereby, another is sought to be deprived by
illegal or inequitable means, of which he is entitled to.

Coercion: Sec. 15 of Indian Contract Act defines coercion. Any force or fear of
death, or of bodily hurt or imprisonment would invalidate a will.

Ammi Razu vs. Seshamma

A man threatening to commit suicide induced his wife and son to give him a release
deed. It was held that even though suicide was not punishable by the Indian Penal
Code yet it was forbidden by law and hence the release deed must be set aside as
having been obtained by coercion.

Undue Influence: Undue influence under sec. 16 of Indian Contract Act is said to
be exercised when the relations existing between the two parties are such that one
of the parties is in the position to dominate the will of the other and uses that
position to obtain an unfair advantage over the other.
302 3. Wills

However neither fiduciary relationship nor a dominating position would raise a

presumption of undue influence in case of wills as all influences are not unlawful.
Persuasion on the basis of affection or ties is lawful. The influence of a person in
fiduciary relationship would be lawful so long as the testator understands what he
is doing. Thus it can be said that a testator maybe led but cannot be driven.

2. WILLS VOID DUE TO UNCERTAINTY

S. 89 states that if the will is uncertain as regards either to the object or subject of
the will then it would be invalid.

The will may express some intention but if it is vague and not definite then it will
be void for the reason of uncertainty.

The will may depose of the property absurdly or irrationally i.e., the intention
maybe irrational or unreasonable, but that does not make it uncertain. For
uncertainty to be proved it has to be proved that the intention declared by the
testator in the will is not clear as to what is he giving or whom is he giving. Only if
the uncertainty goes to the very root of the matter, then only the will has to be
held void on the grounds of uncertainty.

3. WILLS VOID DUE TO IMPOSSIBILITY OF CONDITION

Sec. 124 provides that a contingent legacy can take effect only on happening of
that contingency. A conditional will is that will which is dependent on the
happening of a specific condition the non-happening of which would make the will
inoperative. Sec. 126 provides that a bequest upon an impossible condition is void.
The condition may be a condition precedent or a condition subsequent.

4. WILLS VOID DUE TO ILLEGAL OR IMMORAL CONDITION

Sec. 127 provides that a bequest, which is based upon illegal or immoral
condition, is void. The condition which is contrary, forbidden, or defeats any
provision of law or is opposed to public policy, then the bequest would be invalid.
A condition absolutely restraining marriage would also make the bequest void.

Sec. 138 provides that the direction provided in the will as to the manner in which
the property bequeathed is to be enjoyed then the direction would be void though
the will would be valid.
 4. LEGACIES
Legacy is an amount of money or property left to someone in a will. A legacy may be
made in different languages.

Examples

1. A bequeaths to B, “my gold ring”.

2. A bequeaths to B, “all my gold ornaments”.

3. A bequeaths to B, “a gold ring”.

In all the three cases, A had only one gold ring at the time of making the will. Later he got
that gold ring converted into a gold chain.

In the first case, B does not get anything. In the second case B will receive the gold chain.
In the third case A’s executor has to convert the gold chain into a gold ring or to buy a new
gold ring and give it to B.

KINDS OF LEGACIES

Depending upon language of the will or the legacy actually made, there are three classes
of legacies – general, demonstrative and specific.

A general legacy is a gift of something which, if the testator leaves sufficient assets, must
be raised by his executor out of his general personal estate. It is a legacy not of any
particular thing, but of something which is to be provided out of the testator’s general
estate. An example of a general legacy is “I give Rs. 1,00,000 to A”.

A specific legacy is a gift of some particular thing or of some interest, legal or equitable,
forming part of the testator’s estate. It must be identified by a sufficient description and
separated in favour of the particular legatee from the general mass of the testator’s
personal estate. In other words, a specific legacy is a gift of a distinguished part of the
testator’s property, thus showing an intention that the property shall pass to the legatee
in specie. An example of a specific legacy is “I give my dwelling house, Blackacre, to A” or
“I give my silver teaspoons to A”.

A demonstrative legacy shares characteristics of both general and specific legacies. It is

in the nature of a specific legacy in that it is a gift of a specified amount or quantity
which is directed to be satisfied primarily out of a particular fund or asset. It is in the
nature of a general legacy, in that it could be paid out of the general estate if the
specified fund falls short. An example of a demonstrative legacy is: “I give Rs. 1,00,000
to be raised out of the sale of my land.”
304 4. Legacies

SPECIFIC AND DEMONSTRATIVE LEGACIES

Sec. 142 defines specific legacy as, “Where a testator bequeaths to any person a
specified part of his property, which is distinguished from all other parts of his
property, the legacy is said to be specific.”

Illustration to sec. 142 gives the following examples, among others: “the diamond
ring presented to me by C”, “my gold chain”, “a certain bale of wool”, “a certain
piece of cloth”, etc.

Sec.s 143 to 146 list the legacies which appear to be specific, but are not specific
legacies.

1. A certain sum bequeathed out of a specific stock, funds or securities in which it

is invested.

Example: “Rs. 10,000, at present secured by mortgage of Rampur factory”.

2. A bequest made in general terms of a certain amount of any kind of stock,

which was, at the date of his will, in the possession of the testator.

Example: “5% Government securities worth Rs. 5000”. The testator had at the
date of the will 5% Government securities for Rs. 5,000.

3. A money legacy, the payment of which is to be postponed until some part of the
property of the testator has been reduced to a certain form, or remitted to a
certain place.

Example: “Rs. 10,000 to be paid as soon as the testator’s property in India shall
be realised in England.

4. A bequest of the residue of the testator’s property along with an enumeration of

some items of property not previously bequeathed The articles enumerated shall
not be deemed to be specifically bequeathed.

Sec. 147 provides that a specific bequest of a property to two or more persons in
succession, it shall be retained in the form in which the testator left it, although it
may be of such a nature that its value is continually decreasing.

Sec. 150 defines demonstrative legacy as, “Where a testator bequeaths a certain
sum of money, or a certain quantity of any other commodity, and refers to a
particular fund or stock so as to constitute the same the primary fund or stock out
of which payment is to be made, the legacy is said to be demonstrative.
 Specific and Demonstrative Legacies 305

SPECIFIC AND DEMONSTRATIVE LEGACIES DISTINGUISHED

Explanation to sec. 150 provides that the distinction between a specific legacy and
a demonstrative legacy is that a demonstrative legacy is in its nature a general
legacy. The only distinction between a general legacy and a demonstrative legacy is
that where a specific property is indicated out of which the legacy is payable it
becomes a demonstrative legacy.

Rajam Kant vs. Keki

An illustration of demonstrative legacy is in this case where the testator directed that
his land be sold and out of the sale proceeds Rs. 10,000 be paid to his wife and
Rs. 4,000 to his daughter. It was held that the legacies were demonstrative.

ADEMPTION OF LEGACIES

According to sec. 152, If anything which has been specifically bequeathed does
not belong to the testator at the time of his death, or has been converted into
property of a different kind, the legacy is adeemed, i.e., it cannot take effect, by
reason of the subject-matter having been withdrawn from the operation of the will.

Where stock which has been specifically bequeathed does not exist at the
testator’s death, the legacy is adeemed. Where stock which has been specifically
bequeathed exists only in part at the testator’s death, the legacy is adeemed so far
as regards that part of the stock which has ceased to exist.

Where the stock specifically bequeathed is sold, and an equal quantity of the
same stock is afterwards purchased and belongs to the testator at his death, the
legacy is not adeemed.

Where the thing specifically bequeathed is the right to receive something of value
from a third party, and the testator himself receives it, the bequest is adeemed.
For example, A bequeaths to B “the debt which C owes me”. C repays the debt to A
during his lifetime. The legacy is adeemed.

The receipt by the testator of a part of an entire thing specifically bequeathed

operates as an ademption of the legacy to the extent of the sum so received. For
example, A bequeaths to B, “the debt due to me by C”. C owes Rs. 10,000 to A. C
pays Rs. 5,000 rupees to A. The legacy adeems to the extent of Rs. 5,000.

Where a portion of a fund is specifically bequeathed to one legatee, and a legacy

charged on the same fund is bequeathed to another legatee, then, if the testator
receives a portion of that fund, and the remainder of the fund is insufficient to pay
306 4. Legacies

both the specific and the demonstrative legacy, the specific legacy shall be paid
first, and the residue of the fund shall be applied in payment of the demonstrative
legacy. If the residue is not sufficient to pay the demonstrative legacy, the rest of
the demonstrative legacy shall be paid out of the general assets of the testator.

Sec. 160 clarifies that a specific bequest of goods under a description connecting
them with a certain place is not adeemed by reason that they have been removed
from such place from any temporary cause, or by fraud, or without the knowledge
or sanction of the testator.
Illustrations

(i) A bequeaths to B, “all my household goods which shall be in or about my

dwelling-house in Calcutta at the time of my death.” The goods are removed from
the house to save them from fire. A dies before they are brought back.

(ii) A bequeaths to B, “all my household goods which shall be in or about my

dwelling-house in Calcutta at the time of my death”. During A’s absence upon a
journey, the whole of the goods are removed from the house. A dies without
having sanctioned their removal.

Similarly, where the place is only referred to in order to complete the description of
what the testator meant to bequeath, the removal of the thing bequeathed from
the place in which it is stated in the will to be situated does not constitute an
ademption.

The same rule is applicable to the change to the subject-matter of the bequest.
Where a thing specifically bequeathed undergoes a change between the date of the
will and the testator’s death, without the knowledge or sanction of the testator, the
legacy is not adeemed.

Sec. 153 clarifies that a demonstrative legacy is not adeemed by reason that the
property on which it is charged by the will does not exist at the time of the death
of the testator, or has been converted into property of a different kind. It shall in
such case be paid out of the general assets of the testator.
 5. RULES OF CONSTRUCTION OF WILLS
Issues relating to construction of wills basically arise out of poor drafting. This is
particularly a problem with ‘home-made’ wills, but unfortunately it is also not
uncommon in the case of professionally drafted wills.

The fundamental principle in the construction of wills is to effectuate the testator’s

intention so far as it is consistent with law. The principles of construction of wills are
based on this principle.

The main principles of construction f wills at common law which are also applicable
under the Indian Succession Act, 1925 are as under:

1. Presumption that words are given their ordinary meaning;

2. The meaning of any clause in a will is to be collected from the entire instrument;

3. No part of a will is to be rejected as destitute of meaning;

4. ‘Last Word Rule’ in case of inconsistent clauses;

5. ‘Armchair Rule’;

6. A will speaks from the testator’s death.

7. Treatment of ambiguous expressions

PRESUMPTION THAT WORDS ARE GIVEN THEIR ORDINARY MEANING

It is sufficient if the wording of a will is such that the intentions of the testator can be
known therefrom. No technical words or terms of art need necessarily be used. A will not
expressive of any definite intention is void for uncertainty.

There is a presumption in construing a will that the ‘ordinary and usual meaning of the
words’ should be applied. If the words are technical words, then prima facie they should
be given their ordinary technical meaning.

MEANING TO BE COLLECTED FROM THE ENTIRE INSTRUMENT

The meaning of any clause in a will is to be collected from the entire instrument, and all
its parts are to be construed with reference to each other; and for this purpose a codicil
is to be considered as part of the will.

If in a Parsi will written in Gujarati the words used are such as to Create a joint interest,
it is impossible to escape the consequence that the beneficiaries take as joint tenants
with the benefit of survivorship.
308 5. Rules of Construction of Wills

NO PART OF A WILL TO BE REJECTED AS DESTITUTE OF MEANING

No part of a will is to be rejected as destitute of meaning if it is possible to put a

reasonable construction upon it. Testator’s intention is not to be set aside because
it cannot take full effect, but is to be effectuated as far as possible.

Where any word material to the full expression of the meaning has been omitted, it
may be supplied by the context. Erroneous particulars in the description of the
subject-matter of a bequest shall be rejected. A part of the description, however,
shall not be rejected as erroneous, if any object answers, the whole description.

‘LAST WORD RULE’ IN CASE OF INCONSISTENT CLAUSES

Where two parts of a will are mutually inconsistent there is theoretically an

arbitrary rule that the later clause prevails. The reason for the rule lies in the
somewhat suspect notion that the later clause is the last word of the testator.

Re Potter’s Will Trust

Lord Greene MR described the rule as as a ‘rule of despair’. Furthermore, a rule has
developed to the effect that where, looking at the will as a whole, it appears that the
testator intended the first clause to apply, the arbitrary presumption that the later
clause prevails should not be applied.

Re Alexander’s Will Trusts

It was held that where the inconsistency consists of giving the same property to
different persons in different clauses, the persons should both take an interest in the
property as joint tenants or tenants in common.

The Indian Succession Act, 1925 lays down four rules of construction where a will
purports to make two bequests to the same person, and nothing appears in the
will to show the testator’s intention whether the latter bequest was to be
cumulative or to be substitutional only.

First – The same specific thing is bequeathed twice to the same legatee in the
same will, or in the will and again in a codicil, he is entitled to receive that specific
thing only.

Second – Where one and the same will or one and the same codicil purports to
make, in two places, a bequest to the same person of the same quantity or amount
of anything, he shall be entitled to one such legacy only.

Third – Where two legacies of unequal amount are given to the same person in the
same will, or in the same codicil, the legatee is entitled to both.
 5. Rules of Construction of Wills 309

Fourth – Where two legacies, whether equal or unequal in amount, are given to
the same legatee, one by a will and the other by a codicil, or each by a different
codicil, the legatee is entitled to both legacies.

‘ARMCHAIR RULE’

In construing the will, the court can put itself in the testator’s position at the time
he or she made their will, in order to understand the words of the will itself.

Boyes vs. Cook

James LJ said, “You may place yourself so to speak, in [the testator’s] armchair and
consider the circumstances by which he was surrounded, when he made his will to
assist you in arriving at his intention”.

The object of this exercise is so that the court can make itself aware of the facts
which were known to the testator at the time of the execution of the will.

The armchair rule is used most commonly to identify the beneficiary or the subject
matter of the gift. It is applied by the courts following two steps:

1. construing the will without reference to the surrounding circumstances;

2. applying the apparent effect of the will to the surrounding circumstances to

ascertain that the will is being construed in accordance with the circumstances
which prevailed at the time when the will was made.

It is essential to understand that the armchair rule can only be used to confirm
the apparent effect of a will or to shed light on vague terms. It cannot be used to
alter the effect of the words used in the will if those words are clear and
unambiguous.

A WILL SPEAKS FROM THE TESTATOR’S DEATH

A will speaks from the testator’s death. Where property is bequeathed to any
person, he is entitled to the whole interest of the testator therein, unless a
restricted interest appears to have been intended for him. In the case of a bequest
in the alternative, the legatee first named shall be entitled to the legacy, if he be
alive at the time when it takes effect; but if he be then dead, the person or class of
persons named in the second branch of the alternative shall take the legacy.
310 5. Rules of Construction of Wills

TREATMENT OF AMBIGUITY

‘Ambiguity’ arises where an expression or a sentence is capable of giving more

than one meaning at the same time.

Examples

1. “When the accident took place, the vehicle was on the right side of the road”. Here,
‘right’ is the ambiguous word. It may mean ‘right hand side of the road’, or ‘proper
side of the road’, i.e., left side of the road.

2. “Pay by cheque only if the bill amount is more than Rs. 1,000”. This is an
ambiguous sentence. Does it mean that the bill may be paid by cheque only where
the amount is more than Rs. 1,000 and not less? Or does it mean that where the
bill amount is more than Rs. 1,000 it may be paid by cheque only and not in
cash?

Ambiguities, for the purpose of rules of construction of wills, are of two types:

1. patent ambiguity; and

2. latent ambiguity.

Patent ambiguity is ambiguity which is apparent on the face of the will. Mere
reading of the will shows that there is an ambiguity. Oral evidence is not admitted
to prove the correct meaning of the expression.

Example

A, by his will gives “my black horse or white horse to B”. The bequest is ambiguous.
It is not clear whether A intended to give white horse or black horse to B. Oral
evidence is not admitted to prove which of the horse was intended by A to be given to
B.

Latent ambiguity is ambiguity which is not apparent on the face of the will. Mere
reading of the will does not show that there is an ambiguity. Only when effect is to
be given to the will the ambiguity comes to the surface. Oral evidence is admitted
to prove the correct meaning of the expression.

Example

A, by his will gives “my horse to B”. There is no ambiguity in the bequest. But when
the effect is sought to be given to the bequest, it is known that A had two horse, one
black and one white. It is not clear whether A intended to give white horse or black
horse to B. Oral evidence is admitted to prove which of the horse was intended by A
to be given to B.
 6. ADMINISTRATION OF ESTATE OF A DECEASED
‘Estate’ includes all the moveable and immoveable property, of the deceased including
debts due to him.

‘Administration of estate’ means collecting all the properties and recovering debts and
distributing them among the legal heirs of the deceased in case of intestate succession
and among the legatees of the deceased in case of testamentary succession.

In case of testamentary succession, executor discharges the function of administration

of the estate of the testator, while in case of intestate succession, this task is done by the
administrator.

EXECUTOR

Sec. 2(e) defines ‘executor’ as “‘executor’ means a person to whom the execution of the
last will of a deceased person is, by the testator’s appointment, confided.”

Thus, executor is a person appointed by the testator through his will to administer his
estate after his death.

The above statement means three things:

1. Executor may be appointed by testator only. No other person or Court can appoint an
executor.

2. Executor may be appointed only through a will or codicil.

3. Function of an executor is to administer the estate of the testator after his death.

PROBATE

Probate is nothing but the will on which the competent Court puts its seal. Once the
Court puts its seal on a will, the will is said to be probated, or that probate is granted for
the will. Under sec. 41 of the Indian Evidence Act, 1872, read with sec. 227 of the Indian
Succession Act, 1925, grant of probate is the conclusive proof that the will is genuine
and that the testator has sound deposing mind at the time of making the will.

Probate is the proof of the authority of the executor to collect his properties. Thus, if a
bank or a debtor has to pay money to a person claiming to the executor, there should be
come evidence that they are paying the money to a right person, and their liability will be
discharged by such payment. Probate is that evidence.
312 6. Administration of Estate of a Deceased

ADMINISTRATOR

Sec. 2(a) defines administrator as “‘administrator’ means a person appointed by

competent authority to administer the estate of a deceased person when there is
no executor.

Administrator is appointed by a competent Court, by issuing a letter of

administration. An administrator can only be appointed by a competent Court as
distinguished from an executor who can only be appointed by a person by his will
or codicil.

If a person dies intestate, letters of administration of his estate are granted under
secs. 218 and 219 to the person or persons as provided in those sections. Such
person is called an administrator.

LETTERS OF ADMINISTRATION

Letters of administration are also granted under sec. 232 when a person dies
leaving a will but

1. has not appointed an executor; or

2. if the executor appointed by the will

(a) is legally incapable;

(b) or refuses to act; or

(c) dies before the testator or before he has proved the will.

In these cases letters of administration with the will annexed are granted to the
person mentioned in that section. Such letters of administration are called ‘letters
of administration testamento annexo’ or ‘letters of administration with will
annexed’. This is because, grant of letter of administration is conclusive proof of
intestacy of the deceased. If the will is attached to the letter of administration,
then the presumption of intestacy is removed.

Under the same section if a proving executor dies without fully administering the
estate letters of administration with the will annexed are also granted.

There are also other cases when letters of administration are granted. (See sec.s
240-247, 249-254, 256, 258 and 260). A person to whom grant of letters of
administration is made under these sections is also called an administrator.
 Powers of Executors and administrators 313

POWERS OF EXECUTORS AND ADMINISTRATORS

Sec.s 305 -315 of the Indian Succession Act, 1925 deal with the powers of
executors and administrators.

1. In respect of causes of action surviving deceased, and debts due at death;

2. In respect of demands and rights of action of or against deceased;

3. Power to dispose of property of the deceased;

4. General powers of administration of the estate of the deceased;

1. POWERS IN RESPECT OF CAUSES OF ACTION AND DEBTS

By virtue of sec. 211 all the property of the deceased vests in the executor or
administrator. Sec. 305 lays down that the executor or an administrator alone can
sue in respect of any cause of action which survives the deceased. Sec. 306 makes
clear what those causes of action are.

Hence an executor or an administrator completely represents the estate and all

the rights and liabilities of the deceased are in him and him alone. All the rights
which the deceased could have exercised in his lifetime and ail the liabilities to
which the deceased was subject vest in the executor or administrator.

Sec. 37 of the Indian Contract Act, 1872 provides that “Promises bind the
representatives of the promisors in case of the death of such promisors before
performance, unless a contrary intention appears from the contract.” Therefore, on
the death of a person all obligations, contracts, debts and other engagements
survive to and against his executors or administrators.

The causes of action which survive are either in contract or in tort and the liability
of the executors or administrators is not personal but to the extent of the assets of
the deceased which come to their hands.

2. POWERS IN RESPECT OF DEMANDS AND RIGHTS OF ACTION

Sec. 306 lays down that all the rights to prosecute or defend any action or
proceedings survive to and against his executors or administrators. This section
gives the right to an executor or administrator and not to an heir of the deceased.
The words ‘executors or administrators’ mean persons who are appointed by the
Court to administrator the estate of the deceased person.
314 6. Administration of Estate of a Deceased

3. POWER TO DISPOSE OF PROPERTY

Sec. 307 gives to the executor power to dispose of the property of the testator
wholly or in part. However, the extent of the power of the executor or
administrator depends upon the religion of the deceased.

If the deceased is a European, Parsi or Indian Christian, A transfer of the property

by an executor is valid without any reference to Court and without any reference
to the provisions of the will, even if the property is specifically bequeathed.

Illustrations

(i) The deceased has made a specific bequest of part of his property. The executor,
not having assented to the bequest, sells the subject of it. The sale is valid.

(ii) The executor in the exercise of his discretion mortgages a part of the immoveable
estate of the deceased. The mortgage is valid.

The transfer is valid unless it be established that the transfer was without
consideration or that the transferee had notice that the executor was acting in
breach of trust.

If the deceased was a Hindu, Muhammadan, Buddhist, Sikh, or Jaina, or an

exempted person, the general power conferred by Sec. 307(1) is subject to the
following restrictions and conditions,

The power of an executor to dispose of immoveable property so vested in him is

subject to any restriction which may be imposed in this behalf by the will
appointing him, unless probate has been granted to him and the Court which
granted the probate permits him by an order in writing, notwithstanding the
restriction, to dispose of any immoveable property specified in the order in a
manner permitted by the order.

An administrator may not, without the previous permission of the Court by which
the letters of administration were granted,

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any

immoveable property for the time being vested in him under sec. 211, or

(b) lease any such property for a term exceeding five years.

A disposal of property by an executor or administrator in contravention of relevant

clause is voidable at the instance of any other person interested in the property.
 Powers of Executors and administrators 315

4. GENERAL POWERS OF ADMINISTRATION

Sec. 308 empowers an executor or administrator to, in addition to, and not in
derogation of, any other powers of expenditure lawfully exercisable by him, incur
expenditure

(a) on such acts as may be necessary for the proper care or management of any
property belonging to any estate administered by him, and

(b) with the sanction of the High Court, on such religious, charitable and other
objects, and on such improvements, as may be reasonable and proper in the
case of such property.

A legal representative has power to incur expenditure for the proper management
of the estate of the deceased. If the property is in disrepair he has power to incur
expenditure to put it in proper repairs. In all such acts with regard to the
management of the property entrusted to him, he must act with the same degree
of care as a man of ordinary prudence would in his own affairs.

An executor or administrator has the power to

1. perform contracts entered into by the deceased; and

2. carry on business of the deceased.

He may appoint agents subject to delegatus non potest delegare, and he may also
appoint servants for exercising his powers.

Other Aspects of Powers of Executors and Administrators

An executor or administrator shall not be entitled to receive or retain any commission or

agency charges at a higher rate than that for the time being fixed in respect of the
Administrator General.

If any executor or administrator purchases, either directly Or indirectly, any part of the
property of the deceased, the sale is voidable at the instance of any Other person
interested in the property sold.

When there are several executors or administrators, the powers of all may, in the absence
of any direction to the contrary, be exercised by any one of them who has proved the will
or taken out administration.

Upon the death of one or more of several executors or administrators, in the absence of
any direction to the Contrary in the will or grant of letters of administration, all the
powers of the office become vested in the survivors or survivor.
316 6. Administration of Estate of a Deceased

DUTIES OF EXECUTORS AND ADMINISTRATORS

Sec.s 316 -331 of the Indian Succession Act, 1925 deal with the duties of
executors and administrators.

1. In respect of deceased’s funeral;

2. In respect of Investory and account;

3. In respect of payment of expenses and debts;

4.In respect of payment of legacies.

1. IN RESPECT OF DECEASED’S FUNERAL

A man cannot dispose of his body by his ill and after death the custody and
possession of the body belong to his executors until it is buried. But it is the duty
of the executor to give effect to the wishes of the deceased and if the deceased has
left no directions, the executor must dispose of the body in the usual manner
prevailing in the community and the caste to which the deceased belonged.

The deceased should be buried in a manner suitable to the estate he leaves behind
and funeral expenses according to the degree and quality of the deceased are
allowed. Expenses for this purpose will have precedence over all other liabilities.

2. IN RESPECT OF INVENTORY AND ACCOUNT

Inventory: Sec. 317(1) places a statutory obligation upon the executors and
administrators to exhibit in Court an inventory of all the property moveable and
immoveable and of all credits and debts due to the estate of the deceased within
six months from the date of grant without any proceedings calling upon them to
do so.

Accounts: Sec. 317(1) does not make it obligatory on the Court to require an
executor or administrator to exhibit an inventory and account. It merely imposes a
duty on the executor or administrator to do so. If he does not do so the Court may
require him to do so.

A statutory obligation is also placed on Ibt legal representatives to exhibit, within

one year from the date of grant, an account of the estate showing the assets come
to his hands and of the disbursements thereof. The account must show the assets
come to his hands and the manner in which they have been applied.
 Duties of Executors and administrators 317

3. IN RESPECT OF PAYMENT OF EXPENSES AND DEBTS

Sec. 319 requires the executor or administrator to collect, with reasonsable

diligence, the property of the deceased and the debts that were due to him at the
time of his death.

Expenses to be Paid before all Debts

Sec.s 320, 321 and 322 provide for the expenses to be paid before all debts:

1. (a) Funeral expenses to a reasonable amount, according to the degree and

quality of the deceased,

(b) death-bed charges, including fees for medical attendance, and

(c) board and lodging for one month previous to his death.

2. the expenses of obtaining probate or letters of administration, including the

costs incurred for or in respect of any judicial proceedings that may be
necessary for administering the estate, shall be paid next after the funeral
expenses and death-bed charges.

3. Wages due for services rendered to the deceased within three Hionths next
preceding his death by any labourer, artizan or domestic servant shall next be
paid, and then the other debts of the deceased according to their respective
priorities.

4.IN RESPECT OF PAYMENT OF LEGACIES

Sec. 323 provides that Save as aforesaid, i.e., sec.s 320-322, no creditor shall have
a right of priority over another; but the executor or administrator shall pay all
such debts as he knows of, including his own, equally and rateably as far as the
assets of the deceased will extend.

There is no rule of law that it is the duty of executors to pay the debts of the
testator within a year of his death. Apart from any provisions contained in the will
which expressly or impliedly deal with the payment of debts, it is the duty of
executors as a matter of due administration of the estate, to pay the debts of the
testator with due diligence, having regard to the assets in their hands which are
properly applicable for the purpose. In determining whether due deligence has
been shown regard must be had to all the circumstances of the case.

An executor or an administrator may pay a debt barred by limitation.

318 6. Administration of Estate of a Deceased

SUCCESSION CERTIFICATE

A succession certificate is issued by a civil court to the legal heirs of a deceased

person. If a person dies without leaving a will, a succession certificate can be
granted by the court to realise the debts and securities of the deceased.

It establishes the authenticity of the heirs and gives them the authority to have
securities and other assets transferred in their names as well as inherit debts. It is
issued as per the applicable laws of inheritance on an application made by a
beneficiary to a court of competent jurisdiction. A succession certificate is
necessary, but not always sufficient, to release the assets of the deceased. For
these, a death certificate, letter of administration and no-objection certificates will
be needed.

A succession certificate, strictly speaking, does not effect adjudication of title of

the deceased far less than that of the holder as regards the debts and securities
covered thereunder. Yet, simply to afford protection to the parties paying the
debts. The grant of succession certificate is conclusive against the debtor. A
succession certificate is conclusive as against the persons liable to whom full
indemnity is afforded for payments made.

But, despite the succession certificate is only conclusive of the representative title
of the holder thereof as against the debtors, a suit of declaration will not lie that
the holder of the certificate is not the legal representative of the deceased.

PROCEDURE FOR OBTAINING SUCCESSION CERTIFICATE

The beneficiary has to approach a competent court and file a petition for a
succession certificate.

The District Court within whose jurisdiction the deceased ordinarily resided at the
time of his death is the competent court. If deceased did not have any fixed place
of residence at the time of his death, the District Court, within whose jurisdiction
any part of the property of the deceased is situate, is the competent court.

The petition should mention important details such as the name of petitioner,
relationship with the deceased, names of all heirs of the deceased, time, date and
place of death. Along with the petition, death certificate and any other document
that the court may require should also be attached.

The court, after examining the petition, issues a notice to all concerned parties
and also issues a notice in a newspaper and specifies a time frame (usually one
 Succession Certificate 319

and a half months) within which anyone who has objections may raise them. If no
one contests the notice and the court is satisfied, it passes an order to issue a
succession certificate to the petitioner.

If there is more than one petitioner, then the court may jointly grant them a
certificate but it will not grant more than one certificate for a single asset.

When the District Judge grants a succession certificate, he shall specify the debts
and securities set forth in the application for the certificate, and may thereby
empower the person to whom the certificate is granted

(a) to receive interest or dividends on the securities;

(b) to negotiate or transfer the securities;

(c) both to receive interest or dividends or negotiate or transfer the securities.

 7. PROTECTION OF PROPERTY OF THE DECEASED
Part VII of the Indian Succession Act, 1925 deals with the Protection of Property of
Deceased. Provisions of this Part do not apply to the case of a family governed by the
Mitakshara law.

The object of this Part is to provide a summary procedure for the protection of property
in cases of dispute as to succession. It is in the nature of an interlocutory proceeding
asking the Court to determine who has the right to possession pending the final
determination of the right of the parties in a regular suit.

Where the actual possession of a property, to which a person has a right of succession,
has been taken by another person, or when forcible means of seizing possession are
apprehended, may make application for relief under sec. 192, to the District Judge of the
district where any part of the property is situate.

The word ‘succession’ used in sec. 192 applies not only to intestate succession but also
applies to testamentary succession.

APPOINTMENT OF CURATOR

The necessary conditions before a curator is appointed under this Part are:

1. that the applicant must show that he has an interest in the property;

2. that there is danger of misappropriation or waste of the property;

3. that the applicant will be materially prejudiced if left to the ordinary remedy of a suit;

4. that the application is bona fide, (sec. 193); and

5. the application is made within six months of the death of the owner of the property,
(sec. 205).

All these conditions must be fulfilled before a curator can be appointed.

No curator can be appointed of a property of which there is a trust made or of any

direction in respect thereof made in a will by the deceased owner of the property to take
effect after his death (Sec. 206).

The section requires that before appointing a curator the District Judge should ask the
party in possession to give security. It is only when that party makes delay in providing
security or the security is found insufficient that the Judge can pass an order appointing
curator. When the party in possession was never asked to give any security, the order of
appointment of curator is liable to be set aside.
 Powers and Duties of Curator 321

POWERS AND DUTIES OF CURATOR

Curator shall have power

1. to take possession of the property,

2. to manage the property,

3. to recover debts and rents, and

4. to file and defend suits.

The order of appointment must expressly state that the curator is empowered to
recover debts and rents. The power to collect debts contains by implication a
power to sue for their recovery. All payments made to the curator shall be valid
and will discharge the person paying the same.

A curator is an officer of the Court and shall be subject to all orders of the District
Judge. If any suit is to be instituted by the curator he must do so after obtaining
the leave of the Court. If any person wants to bring a suit against the curator he
must also apply to the District Judge who appointed him for leave to institute the
suit against the curator. The suit should be instituted or defended in the name of
the curator. It is not necessary that the Curator must be specifically authorised by
the District Judge to institute or defend the suit.

Where, however, a succession certificate, probate, or letters of administration are

granted, the curator shall not have authority to exercise any power belonging to
the holder of the certificate or to the executor or administrator.

Curator must give security and render faithful account of his management. He
shall be subject to all the orders of the District Judge.

POSITION OF CURATOR

His position is analogous to that of a receiver appointed by Court under Oder XL,
R. 1 of the Code of Civil Procedure.

In Babasab vs. Narsappa it is stated that the curator appointed under Act is not
a person claiming the property of the deceased whose estate he is appointed to
manage. Therefore, he is not required to take out a certificate under it before he
can obtain a decree.

He is not a representative of the deceased but is merely entrusted by the Court

with certain powers over the estate for a temporary purpose.
 PART III
FAMILY COURTS ACT, 1984
AND
UNIFORM CIVIL CODE
 8. FAMILY COURTS ACT, 1984
Until 1984, matrimonial and other family matters fell within the jurisdiction of the
ordinary civil courts of the country, where other civil matters were also litigated. It is
generally accepted that litigation in family matters needs to be less formal and less
adverserial. Courts should endeavour to save and stabilise the institution of marriage,
rather than destroy it.

Therefore, most western countries had established special courts, known as Family
Courts, to deal with diverse matters like divorce, separation, maintenance, custody of
children, etc. It was with these social objectives in mind that India opted for the
establishment of family courts by passing the Family Courts Act in 1984.

SALIENT FEATURES OF THE ACT

The following are the salient features of the Family Courts Act, 1984:

1. Family Courts are empowered to formulate their own procedures but till then they
have to follow the Civil Procedure Code.

2. Evidence need not be recorded in detail.

3. Judgement may be concise with statement of the case, points for determining decision
and reasons.

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

5. No party to a suit or proceeding under the Family Court shall be entitled to be

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

6. Association of Social Welfare Agencies: The State Government may, in consultation

with the High Court, provide, by rules, for the association, in such manner and for
such purposes and subject to such conditions as may be specified in the rules, with a
Family Court of,

(a) institutions or organisations engaged in social welfare or the representatives

thereof;

(b) persons professionally engaged in promoting the welfare of the family;

(c) persons working the field of social welfare; and

(d) any other person whose association with a Family Court would enable it to exercise
its jurisdiction more effectively in accordance with the purposes of this Act.
 ‘FAMILY COURT’
Sec. 2(d) of the ‘Family Court’ means a Family Court established under sec. 3.

Sec. 3 provides that

(1) For the purpose of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government, after consultation with the
High Court, and by notification,

(a) shall, as soon as may be after the commencement of this Act, established
for every area in the State comprising of city or town whose population
exceeds one million, a Family Court;

(b) may establish Family Courts for such other areas in the State as it may
deem necessary.

(2) The State Government shall, after consultation with the High Court, specify,
by notification, the local limits of the area to which the jurisdiction of a Family
Court shall extend and may, at any time, increase, reduce or alter such limits.

CONSTITUTION

According to sec. 4, the State Government may, with the concurrence of the High
Court, appoint one or more persons to be the Judge or Judges of a Family Court.

When a Family Court consists of more than one Judge,

(a) each of the Judges may exercise all or any of the powers conferred on the
Court by this Act or any other law for the time being in force;

(b) the State Government may, with the concurrence of the High Court, appoint
any of the Judges to be the Principal Judge and any other Judge to be the
Additional Principal Judge;

(c) the Principal Judge may, from time to time, make such arrangements as he
may deem fit for the distribution of the business of the Court among the
various Judges thereof;

(d) the Additional Principal Judge may exercise the powers of the Principal Judge
in the event of any vacancy in the office of the Principal Judge or when the
Principal Judge is unable to discharge his functions owing to absence, illness
or any other cause.
Sec. 4(3) provides for the qualifications of the judges of Family Court: Accordingly, a
person shall not be qualified for appointment as a Judge unless he,

(a) has for at least seven years held a judicial office in India or the office of a Member of
a Tribunal or any post under the Union or a State requiring special knowledge of law;
or

(b) has for at least seven years been an advocate of a High Court or of two or more such
Courts in succession; or

(c) possesses such other qualifications as the Central Government may, with the
concurrence of the Chief Justice of India, prescribe.

Sec. 4(4) advises the Government to have the following considerations in mind while
appointing judges to the Family Courts:

In selecting persons for appointment as Judges,

(a) every endeavour shall be made to ensure that persons committed to the need to
protect and preserve the institution of marriage and to promote the welfare of
children and qualified by reason of their experience and expertise to promote the
settlement of disputes by conciliation and counselling are selected; and

(b) preference shall be given to women.

JURISDICTION

1. Family Court exercises all the jurisdiction exercisable by any District Court or any
subordinate civil court under in respect of suits and proceedings for

(a) (i) a decree of nullity of marriage; or

(ii) restitution of conjugal rights;

(iii) judicial separation; or

(iv) dissolution of marriage;

(b) declaration

(i) as to the validity of a marriage; or

(ii) as to the matrimonial status of any person;

(c) the property of the parties or of either of them;

(d) an order or injunction in circumstance arising out of a marital relationship;

(e) a declaration as to the legitimacy of any person;

(f) maintenance;
 (g) the guardianship of the person or the custody of, or access to, any minor.

2. A Family Court shall also have and exercise the jurisdiction exercisable by a
Magistrate of the First Class relating to order for maintenance of wife, children
and parents under the Code of Criminal Procedure, 1973.

3. A Family Court shall also have such other jurisdiction as may be conferred on
it by any other enactment.

Jurisdiction of the Family Court in the matters enumerated above is exclusive,

i.e., in respect of those matters, the jurisdiction of ordinary civil and criminal
courts is barred.
 9. UNIFORM CIVIL CODE
India has multiplicity of family laws. The Christians have their Christians Marriage Act
1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. The Jews have
their uncodified customary marriage law and in their succession matters they are
governed by the Indian Succession Act of 1925. The Parsis have their own Parsi Marriage
and Divorce Act, 1936, and their own separate law of inheritance contained in the Indian
Succession Act, 1925. Hindus and Muslims have their own separate personal laws.

Hindu law has by and large been secularized and modernized by statutory enactments.
On the other hand Muslim law is still primarily unmodified and traditional its content
and approach.

The law is communal insofar as each community or religious group has its own distinct
law to govern domestic relations. It is also personal insofar as each person carries his
own law wherever he goes in India. The family law is partly statutory and partly
customary. There in no lex loci in India in matters of marriage, succession and family-
relations.

MERITS OF UNIFORM CIVIL CODE

If a Common Civil Code is enacted and enforced:

1. It world help and accelerate national integration;

2. Overlapping provisions of law could be avoided;

3. Litigation due to personal law world decrease;

4. Sense of oneness and the national spirit would be roused, and

The country would emerge with new force and power to face any odds finally defeating
the communal and the divisionist forces. Israel, Japan, France and Russia are strong
today because of their sense of oneness which we have yet to develop and propagate.

According to the Committee on the Status of Women in India:

“The continuance of various personal laws which accept discrimination between men and
women violate the fundamental rights and the Preamble to the Constitution which promises
to secure to all citizens “equality of status, and is against the spirit of natural integration”.
The Committee recommended expeditious implementation of the constitutional directive in
art. 44 by adopting a Uniform Civil Code.
330 9. Uniform Civil Code

CONSTITUTIONAL ASPECT

With a view to achieve uniformity of law, its secularization and making it equitable
and non-discriminatory, the Constitution contains art. 44 of the Directive
Principles of State Policy which runs as follows; “The State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India”.

The secular activities, such as inheritance covered by personal laws should be

separated from religion. A uniform law thus prepared and made applicable to all
would on the contrary promote national unity. It was pointed out at that time that,

1. Common Civil Code would infringe the fundamental right of freedom of religion
as mentioned in art. 25 and

2. it would amount to a tyranny to the minority.

The first objection is misconceived because secular activity associated with

religious practice is exempted from this guarantee. Further, as personal laws
pertain to secular activities, they fall within the regulatory power of the state.

Regarding the second point, nowhere in advanced Muslim countries has the
personal law of each minority been recognized as so sacrosanct as to prevent the
enactment of a civil code. In Turkey and Egypt no minority is permitted to have
such rights.

If we look at the countries in Europe which have a civil code, everyone who goes
there from any part of the world and every minority has to follow the Civil Code. It
is not felt to be tyrannical to the minority. Our first problem and the most
important problem is to produce national unity in this country. We think we have
got national unity, but there are many important factors which still offer serious
dangers to our national consolidation.

Communalism breeds discrimination at two levels:

1. between people of different religions, and

2. between the two sexes.

This dangerous and ruinous effect should be done away with, possibly by
introducing a Uniform Civil Code. For women who constitute almost half the
population of India, the Uniform Civil Code provides with equality and justice in
courts of law irrespective of their religion in matters pertaining to marriage,
divorce, maintenance, custody of children, inheritance rights, adoption, etc.
 Constitutional Aspect 331

The only step taken forward in this direction was the codification of the Hindu law
in spite of great protest; but the codification of Muslim law or enacting a Common
Civil Code is a sensitive issue owing to its politicization. Enlightened Muslim
opinion however, is in favour of codification.

JUDICIAL APPROACH
Mohammad Ahmed Khan vs. Shah Bano Begum

The Supreme Court for the first time, directed the Parliament to frame a UCC in the
year 1985 in this case, popularly known as the Shah Bano case.

In this case, a penurious Muslim women claimed for maintenance from her husband
under sec. 125 of the Code of Criminal Procedure after she was given triple talaq
from him. The Supreme Court held that the Muslim woman have a right to get
maintenance from her husband under sec. 125. The Court also held that art. 44 of
the Constitution has remained a dead letter. The then Chief Justice of India Y. V.
Chandrachud observed that, “A common civil code will help the cause of national
integration by removing disparate loyalties to law which have conflicting ideologies”

After this decision, nationwide discussions, meetings, and agitation were held. The
then Rajiv Gandhi led Government overturned the Shah Bano case decision by
way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed
the right of a Muslim woman for maintenance under sec. 125, Cr.P.C. The
explanation given for implementing this Act was that the Supreme Court had
merely made an observation for enacting the UCC; not binding on the government
or the Parliament and that there should be no interference with the personal laws
unless the demand comes from within.

Mary Roy vs. State of Kerala

The question argued before the Supreme Court was that certain provisions of the
Travancore Christian Succession Act, 1916, were unconstitutional under art. 14.
Under these provisions, on the death of an intestate, his widow was entitled to have
only a life interest terminable at her death or remarriage. It was also argued that the
Travancore Act had been superseded by the Indian Succession Act, 1925. The
Supreme Court avoided examining the question whether gender inequality in matters
of succession and inheritance violated art.14, but, nevertheless, ruled that the
Travancore Act had been superseded by the Indian Succession Act

Mary Roy has been characterized as a “momentous” decision in the direction of

ensuring gender equality in the matter of succession.
332 9. Uniform Civil Code

Sarla Mudgal vs. Union of India

Finally, the Supreme Court issued a directive to the Union of India to “endeavour”
framing a Uniform Civil Code and report to it by August, 1996 the steps taken. The
Supreme Court opined that: “Those who preferred to remain in India after the
partition fully knew that the Indian leaders did not believe in two-nation or three-
nation theory and that in the Indian Republic there was to be only one nation and no
community could claim to remain a separate entity on the basis of religion”.

In Lily Thomas the Supreme Court observed that the directives as detailed in
Part IV of the Constitution are not enforceable in courts as they do not create any
justiciable rights in favour of any person. The Supreme Court has no power to give
directions for enforcement of the Directive Principles. Therefore to allay all
apprehensions, it is reiterated that the Supreme Court had not issued any
directions for the codification of a Uniform Civil Code.

John Vallamattom & Anr. vs. Union of India

In this case, a Christian priest John Vallamatton knocked the doors of the Court
challenging the Constitutional validity of sec. 118 of the Indian Succession Act,
1925. He made a writ petition in the year 1997 stating that sec. 118 of the said Act
was discriminatory against the Christians as it imposes unreasonable restrictions on
their donation of property for religious or charitable purpose by will. The Court
struck down the Section declaring it to be unconstitutional. Chief justice Khare
stated that,

“We would like to State that art. 44 provides that the State shall endeavour to secure
for all citizens a uniform civil code throughout the territory of India it is a matter of
great regrets that art. 44 of the Constitution has been given effect to. Parliament is
still to step in for framing a common civil code in the country. A common civil code
will help the cause of national integration by removing the contradictions based on
ideologies”.

Thus, as seen above, the apex court has on several instances directed the
government of realize the Directive Principle enshrined in our Constitution and the
urgency to do so can be inferred from the same.