sid) Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law ‘The Muslim Law or Islam Law (or the Law of Allah) is a part of Family Law. It is a personal law and a 2M Lae aled Shara (Sharh Sy) nae Pi tn fn tn Sp Sins nals ese peter hore blind te Fhe hse om hr a ai nh ate ath Islam, WW Muslim Law in general draws no distinction meee Jand secular life — Origin of Muslim Law a A re oo o> ‘Muslim Law or the Islamic is beliéved to have been oa ote. The Divine communicated it to Prophet ‘who prescribed them in cee ‘days the disciples of Prophet Mutamm tne ists) have refined and.pali eee le. The provisions of Quran a rE ost all aspects of human hi ee cia as an archaic A pathway to be followed” or ar The latter definition tr he act tha the path to water isthe whole desert environment. \ sy S Hletancle the sreenian gf Abhaepubeed fs Nts scan appeion cones a system of duties that are incupent upon a Muslim by virtue of his religious belief. Known as the Shariah (literally, "the path leading to the watering place"), the law constitutes a divinely ordained path of ennducttha lose aD wana pata exposson a liga canon nts wri Jind the goal of divine favoundn the world to come. moeumes by bie by conversion ee ere theperson There re two way inwhich person can be reared a Mostrsa) Yenaissanc@ "Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law ‘These two points are the minimum and fundamental rules for a person to be called a Muslim, ‘The Islamic law is referred to as “Sharia’, Islam has given the most comprehensive legal system to ‘mankind. Islam has its own personal, civil, criminal, evidence and international law. There are two types of sources under Muslim law, they are:- 4. Ancient sources s 2. Customary sources (o> 3. Modern sources. 1) The Quran: Since the text of the Quran is held to be the very word of Almighty God Himself, it almost goes without saying that the Quran is not only a source of Sharia but the primary material source It is criticised that Quran is not a code of law because of two main reasons. Firstly, itis argued thatsid) Yenaissanc@ "Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law (Quran is rather a moral code determining ones way of if. Secondly is also sad that Quran is not a code of law as outfits 6219 verses, no more than about 600 deal wth specially legal matters However, one must remember that, unlike western legal systems, the Sharia makes no distinction between religious and cv mater: tis the codification of God's Law, andi concers itself with every aspect of legal, soca, political and religious life, Secondly, information is judged by Its quality not avanti. Ie isthe Quran that identifies six specie crimes against religion Le"hadd punishments” The Quranic legstation also covers a range of other topics, eg. homicide, marriage, divorce and Inheritance. There isan authentic hadith ofthe Prophet that “he who knows the law of inheritance is possessed of half the knowledge ofthe world’, But if we look at the Quran, the complete outline of the law of inheritance is encapsulated within only three verses (11, 12 and 176) of Surah Al Anan mans Qos whch ge the eal test, Sore eh tory fom hse tee verses ony. AA No description, however, can fully capture the great importance af he Qiran to Muslims. Objectivey, itis the foundation and framework of Istamic law and jtspri terial source, 7 \Ss oS a” 11) The Sunna: ‘The Sunna is the second most important source of Islamic law. It comprises the practices and precedents set by the Prophet Muhammad himself. The authority of the Sunna is derived from the text ff the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the Prophet to fully understand the Quran ‘The Sunna clarifies the ambiguities of the Quran, The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. The details of the acts of 3sid) Yenaissanc©@ “Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law prayer, fasting, alms-giving and pilgrimage were all illustrated by the Sunna of the Prophet. Again, it was established by the Sunna that a killer cannot inherit from the property of his victim. Thus, for answers to many problems to which the Quran offers no solution jurists turn to the second source of Islamic Law. For, according to the Quran itself, Prophet Mulrammad was not only in possessions of the Book; he was also endowed with Wisdom. But the wide legislative role of the Sunna cannot overcome that of the Quran because it lacks originality in tel; rather itis just the elaborations of the Quran put into the practice by the Prophet. ‘The Words of the “Quran” are of “divine origin while the words of the “Hadith” are words of the “Prophet” reported by people. And itis obvious that divine words-have the utmost precedence Secondly, ater the death of the Prophet, it was not earlier than fyoand a half centuries that the written hadith compilation from religious scholars came ont ee ff lt of aration ok place into that period. But Quran is the only book of Allab_y heen distorted and thus it is the only reliable source of Islamic lave. There isan a Se ofthe Holy Prophet (bah) which he is reported to have said that if you find o mine contrary tothe instructions of Quran, then leave my tradition and follow the Queaa:) (en oN AL) tima: (2 \ lima represents the tigatgource flag law whichis more ike delegated legislation, tis defined as the consensus of the jtirists of a certain period over a religious matter. It is considered a sufficient ‘means for action because the Prophet of Islam said, "My community will not agree on an error. A good illustration for the principle of lima occurred right after the death of the Prophet: no guidance ‘was available on who would now be the political leader. The election of Abu Bakr to the post of caliph by the votes of the people was the first manifestation of lima. Today there are many schools of law in the Muslim community. For them the doctrine of consensus was a source of harmony. However, the formation of different schools of law also had an adverse effect on the instrument of Ima, In the course of time, it became impossible to obtain a consensus on a given problem just by asking all those learned in Islamic law. There was no organisation that represented a jurists, and as a result Ima has come to be determined by looking into the past. Thus, unlike Quran, the authority of ma for legal innovation is very limited and that is why itranks lower than the Holy Quran,sid) Yenaissanc©@ “Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Wy a (gest eset a tol of interpretation and is go. erating law but can only be used to find a legal principle in conformity fot Se for a new factual situation. Ijtihad ‘means “individual reasoning’. It involves p83. fige of the rules of Islamic law and the exercise of one's judgment; moron os iffurists were not. BD apply thelr oom reasoning ae gees eto tach HN A oe the Quranic erimes against ith the appearances of oie alcoholic si unknown to early Islam the jurists ext ion of wine to includ s byob deduction from YS 3 ul + ower eye NN an hs ts wespenes. WS owt dees an, Human reason ws fod Be ped Intepenenty but ater in Divine Will as manifested ih the Qura-Seebndly,ithhad has been a controversial lm aw had been firmly established, the prevailing instance the founders ofthe sch lw. Thus, there isa strong opinion law that by the 10th ic history. Once the schoole’af I pinion was that thatthe privilege of aod restFicted to the great scholars of islamic lar, ike for source of Islamic law but Qi is just matter of past now. 2. Customary source _~ In its early stage, Islamic jurisprudence was heavily inspired from prevailing customary law eg. the practices of the Caliphs, the decisions of the judges and the traditions of the people. But even then, Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of the Quran; the Qazis Le. judges did equity by seeking guidance from Quranic verses; and it was under Verse 3 of Surah Al-Nisa that the customary right of unlimited polygamy was curtailed only to a maximum of four wives. Thus, the supremacy of Quran as a primary Islamic source got fully established in that epoch, 3. Modern sources In addition to the above main Sources of Law, we find that the law is occasionally supplemented by other principles also, The following can be summarized.sid) Yenaissanc@ Law College Class LL.B (HONS) II SEM. Subject - Muslim Law a {@) Isti Hasan - Juristic preference - Equity ( G Imam Abu Hanifa adopted the principle of Isti f from absolute dependence on analogical reasoning. Isti Hasan literally means ion or juristic preference or what we call today as law of equity. This term was jerty of laying down such rule as may be necessary and the special circumstan that it let an almost uncontrolled discretion (b) Isti Salah- Public inter Q Imam Malik, who will iNJaw, also felt the necessity of surer te ‘f-aalogy. He approved nalogy could not be set asi opinion of the individual expert of reference merely to the ci ticular case: it could be disregarded 10 deduce rule of law (Shariat) ecise line to follow, Iitehad came to be born. Iitehad ‘means independent reasoning to deduce a ‘Where a legal principle is silent, Ijtehad can be used with advantage. But Ijtehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids (great scholars) based not on his holding any office in the State but is derived purely from the learning and reputation of the individuals. The qualifications of the Mujtahids consists of a complete knowledge of Quran ie, he should know the sacred text by heart and should be able to say when and where each verse was revealed and he should also have a perfect knowledge of all the traditions (Sunna-Hadis) and all the branches of the science of law. He should, besides, be a man of austere piety. In short, the {qualifications required are such that as far as the Sunni Law is concerned, after the death of fbne Hanbal (856 after Christ) there have been no recognised Mujtahids. With the end of Mujtahids, the doors of Ijtehad no longer remained open. This is known as the closure of the golden gate of Iitehad -Bab-al jjtehad.sid) Yenaissanc©@ “Law College Class LL.B (HONS) II SEM. Subject - Muslim Law (a) Taglid- Law of Precedents After Itehad or rather on the closure of the Gates of Ijtehad, a parallel doctrine of Taglid (Law of, precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions of another person without knowledge o the Authority or the authority for such opinion, a Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of Shariat, being ignorant, he was asked to follow the opinions of those who knew better. Those who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence, the vicious circle of Taqlid (imitation ~ Law of Precedents}. (e) Fatwas - Decisions of Muslim Judges: Jurists were always held in high ‘ould turn to such jurist and ask for his a epeecineee eatodare ofl W ==> we ee a 8.t0 school of thought or religious jurisprudence within Sunni a upique school of jurisprudence, but these schools were gradually consolidated or discarded go Wat there are currently four recognized schools. The differences between ‘these schools of thought manifest in some practical and philosophical differences. Sunnis generally do not identify themselves with a particular school of thought, simply calling themselves "Sunnis", but the populations in certain regions will often - whether intentionally or unintentionally - follow the views ‘of one school while respecting others. Hanafi ‘The Hanafi school_was founded by Abu Hanifa an-Nu'man. It is followed by Muslims. in the Levant, Central Asia, Afghanistan, Pakistan,India, Bangladesh, Western Lower Egypt, Iraq, Turkey, the Balkans and by most of Russia's Muslim community. There are movements within this school such as Barelvis, Deobandis, and the Tablighi Jamaat, which are all concentrated in South Asia and in most parts of India, Maliki ‘Maliki school was founded by Malik ibn Anas. It is followed by Muslims in North Africa, West Africa, the United Arab Emirates,Kuwait, in parts of Saudi Arabia and in Upper Egypt. The Murabitun World 7sid) Yenaissanc©@ “Law College Class LL.B (HONS) II SEM. Subject - Muslim Law ‘Movement follows this school as well. In the past, it was also followed in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily Shafit ‘The Shafil school was founded by Muhammad ibn Idris ash-Shafi“i It Is followed by Muslims inEastern LowerEgypt, Somalia Jordan,Palestine, SaudiArabia, Indonesia, Thailand, Singapore, Philipp! hes, Yemen, Kurdistan, Kerala (Mappilas) and is officially followed by the governments of Brunel and Malaysia Hanbat ‘The Hanbali school was founded by Ahmad ibn Hanbal. It is follt wed y Muslims in Qatar, most Ot Saud Arblasnd mony communis nSylsand aq, The lege of heals movement clams tofaow ths sro (OX tah TRenrtseteol wes founded. by Dawud 31 minory communis Inorocco and. align the pase Wea majorty of Muslims inMesopotamia, Portugal, the Balearic st AH Aipiea anid parts of Spain, Oren fe elon scoas a branch eed, can be usage in Muslim term is usually translate sia Athari ‘The Athari school derives its ndme from the Arabic word Athar, meaning "narrations", The Athari creed is to avoid delving into extensive theological speculation. They use the Qur'an, the Sunnah, and sayings of the Sahaba - seeing this as the middle path where the attributes of Allah are accepted ‘without questioning ‘how’ they are. Ahmad bin Hanbal is regarded as the leader ofthe Athari school of| creed. Athari is generally synonymous with Salafi, The central aspect of Athari theology is ts definition ‘of Tawhid, meaning literally unification or asserting the oneness of Allah, Kalam Kalam s the Islamic philosophy of seeking theological principles through dialectic. In Arabic, the word literally means "speech/words”. A scholar of kaldm is referred to as amutakallim (Muslim theologian; plural mucakallimin). There are many schools of Kalam, the main ones being the Ash’ari and Maturidi schools in Sunni Islam,61a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Ash'ari ‘Ash’ari is a schoo! of early Islamic philosophy founded in the 10th century by Abu al-Hasan al-Ash’ari. It was instrumental in drastically changing the direction of Islam and laid the groundwork to "shut the door ofijtihad” centuries later in the Ottoman Empire.cii mess The Asharite view was that comprehension of the unique nature and characteristics of God were beyond human capability Macurit IMs one who els Abu Mansur Al Matus theology, which sa dose varlant ofthe Alar thc Petes Su Gir soe the omers of bole sol fe lace of tama reas Maturidis state that belief (iman) does not increase nor decrease but remains static; it is piety (tagwa) wich nceases and decreare, The Ashars say at bee does ft nerease and decrease The tie iy th aed nn mine dont tr te mea Se ch tr dahal or urd cen eo chou aap of sey neh Pa ae tee ended ame ful, without divine revelation. 7 ‘mind is unable to know i something is good or ei afl a Wn Murji'ah @ Murjiah (Arabic: ) san early Islamic school hose follOwer ae known in English as "Mutin»djites™ oF “Murj'ites" (0+ +4). During the early centuries of Islami, Muslim thought encountered a multitude of Influences from various ethnié< posi acu that it absorbed. Muritah bmerged as a theologeal soa! that was oppeed tthe Wriiteson questions relat tb ear cptroversis regarding sn and etnitong gph bg Mastin, They advocated thee re 3 7 rat ond no oe le yas an nie eae) Th fi elevrs and ook tol tpg giiated tolerance oR mayyags a totam who appeared hal he Marit opinion wonlgeveritally donate hat ofthe Khan, yh su whey Ect sin ule te elie, at his sins. This contradicts the traditional Surini-belief that some Muslims will enter the riy, Therefore the Muses are essed as Ae Bah or “People of Innovation by Sunnis porter Sats urn ONY Mutaal heslogy one he Boecnury In aaah when Was tn Aste the teaching lessons of Hasan seen ee {heotogical dispute. He and his followers expanded on the logic and rationalism of Greek phildgopliy, Seeking to combine them with Islamic doctrines and show that the ‘wo were inherently compatible. The Mu'tazili debated philosophical questions such as whether the Qur'an was created or eternal, whether evil was created by God, the issue of predestination versus free will, whether God's attributes in the Qur'an were to be interpreted allegorically or literally, and ‘whether sinning believers would have eternal punishment in hell,61a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law ‘UNIT MARRIAGE » i Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding. ree of ( capacty of oN ee (22 } Offer & Acceptance Sl a \\ w Marriage in = xe hat is concluded cree LPs Sore party and an acceptance giver es particular form of words so ra he enon to 1 Under the Muslipr-taw for ee idity bf a marriage there must be a ca at the same meeting, The prépo ade) iaécebtance must both be expressed at .osal made at one meeting ar ors :made at another meeting does not make narriage. Neither writing eter iglous.ceremony is essential Under the Sunni law, the propo Seta ‘must be made inthe presence of two male Mustims who are of sound mipdand havo aang puberty or one male and wo female witnesses who are sane, adult and Muslim Agence ¢FRbysses does not render marriage vold but make told able Under the Shia law winds ecesary atthe time of mamlage. The proposal and aceptance reed not be made n wri Whee the offer and acceptance are reduced into writing the documents CalledNikah nama or Kabin Yama "The proposal made by or on behalf of one ofthe parties tothe rarsage, and an acceptance of the proposal by or on behalf female witnesses, who mustbe sane and adult Musi, 2. Presence of Witnesses Hanafi, Shafi and Hanbali schools require two adult male witnesses or one male plus two females However, in Maliki and Ithna Ashan’s law the presence of witnesses Is recommended but not mandatory, provided that in Maliki law sufficient publicity is given to the marriage.sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 3. Capacity of the Parties == very Muslim of sound mind who has atained puberty, may ener into a contract of mariage, Puberty means the age at which a person becomes adult (capable of performing sexual Intercourse and procreation of eildren} person Is presumed t have atained the age of puberty on the completion UF 15 years So the boy an gl who has attained puberty ean validly contract a mariage -A mariage under Musiim law is perfect valid ifthe parties have atained puberty and satisfied all other Conditions specified by the law According to the child marriage restraint act 1929, a marriage of mal@sbelow 21years of age and female below 18 yeas of age is child marriage. The act prohibits sch taviage. The Act prescribes violating the provisions of Child Marriage Restraint Act jle-td be punished, Thus if two Muslims marry before attaining the age prescribed under se Fesraint Act they are able to be punished, However the marriage between two we attained puberty is valid though g 4 Free Consent a> = S) a ed een fr a 9 10 free consent a So asa era eens peso : : Sent The arage owe : cy itd na eagte wate Seon wee aed When te cao meee 1s been obtained by for fra 1d a . ee was comma eh ree ali mente os eaage sci Nas been defrauded can repudiate the di ied Lunatics and minors who has not guardians. A minor is incomps belongs successively to ) Father ii) Paternal Gre iil) Brother and ot Wy) Mother ¥) The maternal uncle or aunt and other maternal relations. Under the Shia law only the father and the paternal grand father are recognized as guardian for contracting marriage of a minor, Ifa minor, whether male or female, be contracted in marriage by a remoter guardian, while a nearer guardian is present and available and such nearer guardian does not give consent to the marriage, the ‘marriage is void. But if the parties ratify it after attaining puberty, it will be valid. However if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the remoter is also lawful.sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 5.No Legal disability Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions can be classified into two classes: (. Absolute prohibition ~\ OZ \A CY Unlawful conjunction) aaa ( Marrying a fifth wife) | Absence of proper © witnesses ) nS ( (7 ~ NY Ditferences of religion a. Absolute Prohibition 1) Prohibited degrees of relationshi Under the Muslim lavkmnarriage Fen other relationship is probibited, The prohibited relationships ae the following {a} Consanguinity - Consanguinity means blood relationship and a prohibits a man from marrying the following females x 1. Hismother or grandmother (however high so ever) 2 His daughter or granddaughter (how low so ever) 3 His sister whether fll blood half blood or uterine blood 4A His niece or great niece (how low so ever) 5. Hisaunt (father's sister or mothers sisterJor great aunt (how high o ever) ‘A marriage with a woman who comes within the relationship of consanguity is absolutely void.Children born out ofthat wed-lock are illegitimate. (b) Affinity. A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is prohibited from marrying 1, His wife's mother grandmother (however high so ever) 2. His wife's daughter or granddaughter (how low so ever) 3. His father’s wife or paternal grandfather's wife (how high so ever)sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 4. Wife of one's own son or son's son or daughter's son (how low so ever) ‘A macriage with a woman comes within the relationship by affinity is void. () Fosterage- It means the milk relationship. When a child is breast-fed suckled by a woman other than its own mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons having foster relationship. According to Shia jurists fosterage includes the same limits of relationship prohibitive to marriage as consanguinity. A man may not marry the following females: |LHis foster-mother or grandmother (however high so ever) 2.His foster-sister (daughter of foster mother) However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the general rule of prohibition on the ground of fosterage and a valid marge may bee contracted with: Sister's foster mother, or Co WD 2Fostersister’s mother, or 3 Foster-sons sister, or 4.Foster-brother's sister. Ae a The Shia jurists refuse to recognize the except Gat WS the Sunnis. The above mentioned prohibitions on account of ‘consanguinity; “afi erage’ are absolute and the marriages contracted in comevenden of ge 2) Polyandry Polyandry means marryi ‘woman is having more fage the marriage ié to be punished for. amy inde 4 ‘ofthe Indian Penal Code. nS there are certain probibiders inate not absolute but only relative, and lation of such relative préfibitions will ony be Irregular and not void and at the ‘moment when the irregularity is removed\the prohibition ends and the marriage becomes valid. The following are the relative prohb 1) Unlawful conjunction 5 W ‘A man is prohibited from marry vo Wives at the same time if they are related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other i they had been of dire is a Musiim cannot mary his wife's sister whlle the wife is alive Bute can make the marriage wld by marrying his wife's iter ater the death or dvorce of his ist wife. Marriage with two such wives 1s an Uniavful conjunction. Under sunnl law a marriage in violation ofthe rule of unlawful conjunction is not vold but only regular. However under Shia law, a Iarriage in violation of the rule of unlawful conjunction is old. Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece without he permission. 2) Marrying a fifth wife (Polygamy). Muslim law permits polygamy (Marrying more than one wife ) with a restriction of maximum four wives. Soa Musalman can have four wives atthe same time If he marries a ith wife when he has Already four, the marriage isnot void, but merely regular, But the fith marriage can be made valid after the death or divorce of any one ofthe four wives of his earlier marriages: Under the sha law marriage withthe hth wife ls vol. Inindla no Muslim marrying under or getting his marriage registered under The Special Marriage Act, 1984,can marry a second wife during te lfetime of his spouse61a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 3) Absence of proper witnesses ‘A marriage must be contracted within the presence of proper and competent witnesses. Under the Sunni law at least two male or one male and two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim. A marriage without witnesses is irregular, Under the Shia law the presence of witnesses is not necessary. The marriage is contracted by the spouses themselves or their guardians in private are held valid. The absence of witnesses does not rrender the marriage void but only invalid. 4) Differences of religion (Marriage with non-muslit The law th regard te marrage wh nan sins fle ee law and Sha law. Under Sunn law a male can marry a Mosim female or a Kitab fevesin a revealed religion possessing a Divine Book viz Christianity and Judais oh ‘male can validly marry a jews: or christian female. But he cannot marry an ee fire-worshiper. A marriage, with an idolatress or a fire worshiper Oe id Wot a S ‘A Muslim woman eannot marr)-2 jon Muslim man. A marriage of. ore with a non-Muslim male, whether hes Sc 300 6 Slew or aniitor ora Pet éefgnot void but iro: Aordngt Wd are teen asim ogy spans ise ee But according to Fyz Siwy oi (oD) 3) S 2) Under amon anon ma sais pee S355 required tobe Musi The mi ode Us le with a Shia feral elke fa Muslim female witha non- Muslim tales wha ene oF ola ra Fre-Worshipers vod under Sha Law. S Im India a marviage between a a 44 non-Muslim can only take place under The Special Marriage Act, 19540 a. musti9 registers under the Special Marriage Act, 1954, he cannot marry a second wie ont fstence of the first marriage ‘A marriage of a Muslini female ith non-Muslim male, whether he be a Christan, or a Jew or an ‘dolator or a Fire-Worshiper is eae Y 5) Marriage during Iddat Under Muslim law, a woman who is undergoing iddatis prohibited from marrying during that period, Iddat is the period during which itis incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seculasion, and to abstain from marrying another husband, The purpose behind that isto ascertain whether she is pregnant by earlier husband , so as to avoid confusion ofthe parentage of the child ‘The period of Iddat is prescribed as under: Lin case termination marriage by divorce- three lunar months or three menstrual courses. 2.In case of widow: 4 months and 10 days. 3.[n case the woman is pregnant- till the delivery. Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law ‘a marriage with a woman who is undergoing Iddat is void. 4sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Khair-ul-Balgh (Option of Puberty) eee = EO In traditional law no minimum age is laid down for marriage. However, in Hanaf law, a girl who is contracted in marriage during her infancy may on attaining puberty repudiate the marriage. ‘This‘option of puberty” is found neither in the Quran nor in the Suana, but is based on juristic opinions in the various schools. A woman retains this right untl she becomes aware of the marriage and assent to it. However, the woman does not possess this option es ardian who contracted her marriage was her father or paternal grandfather. When a minor has been contracted in marriage by the fa Rete father, the contract of Me alain cant be edi Shatter nas ‘marriage is contracted for a minor by any guardian o nthelaier or father's father, the minor has the right to repudiate such marriage on majo HisealedKhair-l-Blgh which means Option of Puberty When a minor wife's right of repudiation shop ee within a reasonable time after attaining ber and ang whch wool re ouch age The rights lost ifshe after having sted puberty svat he me he conmamguiy3 wost her Consent the right of repudiation divorce from the The dissolution of Muslim mars nek hhas considerably soa =e od of pubery. Pror tothe Act the marge eanced fora mner bye thr the minor has no right to repudiat n majority. But accor 0 Past the marrage is ne Neate or par pee wesetshee on sr se ne danas ei ae bette ae a yeas ‘The marriage has not been consummatec oie Lipo smepererspemnirener ome tyr me — ee contract by this option, \S According to Hanaf Ise ota i nope when the child aches he age of uber Salma Waheed's case” a mal nied man of her own chole Hs ater filed suit to secure his nughters estoy. waht accordance wih the Hana fw tha a marrage, of moor BM mtu the guaran con ‘he same decision was reached inthe lndian case of Abdul Ahad v. Shah Begum’. Here, 2 wife Glaimed to have repudiated her mariage The gir’: Wall was her uncle who happened to be the fons father. The court held that this fa seted principe of law in Islamic la that once the gi becomes major, she has the absolute right to contract the marriage and this right cannot be exercised Iyanvone else including the father ofthe ge Inthe Indian subcontinent, Child Mariage Restraint Act 1929 i used to restrain child marriages. This det silin operation nal three countres with avareyof diferent amendments In nda the Child Marriage Restraint (Amendment) Act 1978 sets the minimum age to 18 and 21 years for females and males respectively. In Pakistan, the 1929 Act was amended by S.12(1)(a) MFLO 1961 and the minimum age are now 1 years old fr the woman and 18 yeas old for ht tan. tn Banglades, the Iminimum ages stipulated have Been 18 years ofr he weman and 21 years old forthe man since the Child Marriage Restraint (Amendment) Ordinance 1984.sid) Yenaissanc©@ “Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Guardianship in marriage —— ‘According to Sunni schools, marriage guardian shall be agnates. In the absence of agnates, guardianship shall be vested in relatives according to proximity; otherwise it will be vested in the Head ofthe State. Inthe Ithna Ashari, the guardian is indispensable in order for the marriage of minors and majors of defective or no legal capacity to be valid. — in marriage falls under two categories: 1 r (¢ omrasnsuy wine gi tai + Guardianship “With” the right of computs mare Ww over a person of no or limited Tegal enpacty wherln the guaran hay rage contrat which eval and takes eect wht se comenr cepa fe Guardianship Without thes ‘Sen hich is exercised when thon posses the full legal capacity but delegates th ‘marriage toa sardan oN } enter into the na Ashari's any sané zi er hhas the f contract of marriage. aed smic law, majority impton of law hat 90 female 10 male below the ag¢ of. (age of 15, majority has been reached-by both sexes. ‘he right OK female to contract her ow war lag is however, not absolute according to Hana Be aerate bt ern ee i regard to piety, lenge, wealth and opto marie apes he woman becomes pregnant ‘Maliki law the hierarchy of hrarrjage guardians follows strictly the order of succession. Accordingly, the son of the woman rank® before her father. In Hanbal law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnatic kinsman. The ‘woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship, 0 In Mali, Sha and ee % woman may never conclude her own marriage contrac Insty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Thereare three ypes of marvagsin Sun school Sahih Psy, tere “Sahl” norrge whichis ly vad and flee. Under sucha marrage, sonal Increoure i lawl andthe woman seated fo bok dower and Batil Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or were unaware ofthe fc at the marage ao vols marae salected ya permanent Under th brain fom eauonhip of bod aman may notary ary arendant or dszendant sree oir me th nee ho) en a arty any crespondngmale Unto to tar of fate, to prions wh we c 8 same fstr-mother ae Jermancly Darel ron margingeath oer Phe bry arses rm marae Soman m rer wl of any ascendant or Sestendan. or any ascendant a descendant ‘wh home etal hal consummotedhsmertoge ferhtmarsoge PN os 3. Fasid - Thirdly, there is‘ "Fasi lar) marriage, which is middle way gt "his is also no mrlage but canbe sejstect in erin condoms Under ayeee re commited and a do 2 irregular marriage arise: SN ‘ Xe . ea a triply repudiated, we ww) ther man and that marriage has erates tne ato nied he dah ready has four wives may ei +A Muslim man may contract marriage witha non sla woman provided sheis akitabiya, yy volly cna arog ths Mim ma coring he Bam law 9 masage consuded by 9 woman herself ‘rt furdihte soya sis marrage conclude bys person performing he foctrdingo Mall ost a ste of dea acess prone rom marrage ‘The Effects of Impediments to Marriage ‘The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove such as if the woman is married to another man. Where any other impediment exists, ‘the marriage is not void but irregular. Ifthe marriage is irregular certain effects flow fom it: ‘The parties may not be found guilty of zina, “Any children born out of the union will be held to be legitimate. ‘+ When the parties separate, and separate they must, the woman must observe an idda period ‘A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have 7sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law acted in good faith, ie. they were unaware of the existence of the impediment. This is the only instance ‘where Islamic law recognises ignorance of the law as a defence. ‘Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties: ‘+ Mutual Rights ~ Legitimacy of children, inheritance, sexual intercourse, { Rihtso the Wife (Maintenance). (oN y Wa ‘Rights of the Husband (Polygamy). ee ter oS ea rae te -nfariage with kitabia woma sin, Christian or Jewish ‘wit per but Woman following any other man’may not contract a rage wha nr Mastin. any number of mata marsages. Al he fequisit formalities of mariage, such sptance, have to be cima te arviage. Its essential to the validity of i\(aday,amonth, year, years) and that s6 marriage will be vod. If the period isnot specified , sed a5 9 permanent union, even ifthe parties calla spires nite ‘That main incidents of : No mutual rights jeritance created between the spouses, but children considered legitimate and capable of inheriting from both parents. Thus, a muta marriage is different from prostitution and itis not a marriage for pleasure or a marriage of convenience. Wile is not entitled to maintenance (unless specified). However, she is entitled to maintenance asa wife under the Cr. PC If marriage is not consummated, the wife is entitled to only half ofthe dower. If consummated, then full dower. On the expiry of the term of marriage, if the marriage has been consummated, the wife is required to undergo iddat to three courses Husband has the right to refuse procreation ke. il “Marriage come to end ipso facto on the expiry the term, unless extended, Husband and wife do not have a right of divorce, but he can terminate the union earlier by making a “gift of the term'(hiba-i-muddat), In that case, the wife is entitled to ull dower. The wife has a right to leave the husband before the expiry of the term of the muta marriage; if she does so, the hhusband has a right to deduct the proportionate part of the dower for the unexpired period, 18sid) Yenaissanc@ Law College Class -LLB (HONS) I'SEM. Subject - Muslim Law 7. If there is evidence of the term for which the muta marriage was fixed and cohabitation continues after that term, muta marriage stands extended for the whole period of cohabitation. And, the children conceived during the extended period shall be legitimate, According to both Sunnis a may consist of anything jed in money, is eb Dower sa sum of money or property which zane pyle by the husband to he wie as an effet | is ; ts the dow useful and ritually clea dower may be land, building chattels etc, The property given as d ea A vague jal" or “a house” hate ~ Dower is a unique feature of a West, itis not a bride- father, but the requirem ‘According to the Hanah Jurist At Kamal, dower is there to underline the prestige of the marriage, itis not a consideration like a price, anid otherwise it would have been set as a prior condition, Dower is not a precondition to marriage. It is mentioned in Surah Baqara, Verse 236, that: “It is no sin for you if ye divorce woman while yet ye have not touched them nor appointed unto them a portion (dower)”. This means that there is no sin if no dower is paid and the woman is divorced, before consummation. Since divorce can only occur after a valid marriage contract, this shows that dower is not a precondition to marriage Itis also different from a bride price because a bride price was paid to the father of the bride, but dower, on the other hand, isan inalienable and imprescriptible right of the wife, Itis inalienable in that itis taken for granted even ifit is not expressly stated in the contract Ithe husband makes a condition in the marriage contract that no dower will be pai, this shall be void but not the remaining contract. It isimprescriptible in that the wife shall not lose her entitlement to it through prescription alone.sid) Yenaissanc@ Law College Class LL.B (HONS) II SEM. Subject - Muslim Law Classical jurists set no higher limit for the dower. But there is no such unanimity on the minimum dower. The Shafi, Hanbalis and the Shias maintain that there is no such limit. However, the Malikis set ‘a quarter dinar of gold or three dirhams of silver as the minimal dower, by analogy with the Sharia limit for punishable theft. A dirham weighs 2.97 grammes. The Hanafi doctrine maintains that the ‘minimal dower shall be 10 dithams, citing the authority of a tradition-of the Prophet to that effect, a tradition whose authenticity is disputed by other schools. The Shi at what was given to Bib Ayesha should be the minimum limit. i isband says to his wi all be valid. still live The parties may stipulate an anfolnt| lower inthe marriage itself, THisis eld specified dower, and it may be reduced or 1al consultation. Provided tha dis sane and major, the addition rN ‘under three conditions: inlisband, subsequent to the marriage lid if the husband accepts it or keeps due to pressure, Le. threat or on husband’s death bed, then it will not be valid reduce her specified dower, Butif no dower is spet wife is nevertheless the proper dower is ta comparable members of the wife's family such as her sisters or cousins. Her personal attributes are also relevant: her virginity, agey€ducation, beauty and so on. ‘The specified dower is further sub-classified into "prompt" or “deferred” dower. The parties may agree between themselves when the dower shall be paid, If itis payable immediately atthe conclusion of the marriage contract marriage itis called prompt dower. Dower will be deferred if itis payable some time later, otherwise it shall become payable immediately on the earlier of two events: death or divorce. If the marriage contracts silent on the type of dower itis presumed that it will be prompt.61a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law a. Entitlement to Whole Dower: Itis unanimously agreed by the Sunnis that the whole dower shall become due to the wife on the ‘occurrence of either of two events: ‘The actual consummation of marriage; + The death of either spouse before consummation. Ifit is the wife who dies, her heirs can claim it from the husband, All the jurists agree that the whole dower shall be due to the wife if the husband dies by natural causes or murder by a third party, or if the husband himself kills the wife. With the exception of Hanafls, all the other schools agree that the ‘wife shall lose her entitlement to any dower if she killed her husband before consummation, The Shias have a different view. According to them, ifthe husband dies-before consummation without having specified a dower then nothing is payable to the wife. ». Entitlement to Half Dower & Mutat: Jurists deduce the following conditions fr half the dower t * That marriage is under a valid is specified; ;Thatavore ors before consrmation an 39 usband, other than his exercising the ‘option of puberty or recovery from insanity >“ / ( It should be remembered that o1 he ruts iiedallak wns which were rade to itafter the marriage coF Express Se © Consent ) X 7 words (¢ of pber s competent 1.) Capacity: Every Muslim husband of sound mind, who has attair to pronome tla Kiet nesta fort ture aa Gal pS pom A husband ‘mind is void and ineffective. However, if a husbay ach -falaaq pronounced by him during “ued itera valié The guardian canot pronounce flan behalf a minor husband, When insane husband has no guardian, the QuzVOr.2 Judge ha-the right to dissolve the marriage in the interest of such ahusband. an 7 2) Free Consent: xcept under ent of the husband in prongufelng talaaq must be jon is void even 2 re Conent ey ne oat ae ae atte fraud and voluntary intoxic id and dissolves the marriage. moles eso ogee cre mes under the Hanafi lawe® 00 < eri Shi we der si oda under other school SNe iain onounced under compulsion, codrcion, aikdue Wifluence, fraud, or voluntary’ int $ Void and ineffective. 3.) Foi es: Ac arg ‘to Sunni law, a aa may Ue Ora by the husband ay write a Talaagnam Ne sree yahula or use of any particular word Is required ta constitute a valid talaag, Any expression whichcléarly indicates the husband's desire to break the marrage is sufficient Irneed not be made nthe presence ofthe witnesses According to Shias,talaag, must be proflomiged orally except where the husband is unable to speak. If the husband can speak but gies 4.) Express words: The ‘marriage. If the pronovnet prove hat the husband ca Express Talaaq (by husband) When clear and unequivocal words, such as “I have divorced thee" are uttered, the divorce is express. ‘The express talaag, falls into two categories: aTalaag-e-sunnat, b. Talaag-e-biddat. Talaag-e-sunnat has two forms: i) Talaag-e-ahasan (Most approved) Ji)Talaag-e-hasan (Less approved), aTalaag-e-sunnat is considered to be in accordance with the dictates of Prophet Mohammad. i)The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, ifthe wife Is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of ‘menstruation or the parties have been away from each other for along time, or when the marriage has 26sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law not been consummated. The advantage ofthis form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee" the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce. The Raad-ul-Muhtar pus it thus: "Its proper and right to observe this form, for human nature is apt to be ‘mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes Cf which one is certain to feel ashamed afterwards 4i)The hasan talaag: In this the husband is required to pronounce the formula of talaaq three time during three successive tubs. Ifthe wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the sycessve pronouncements When the last pronouncement is made, the talaag, becomes final and Yerevocable. I is necessary that coh ofthe omnes hob mean hn eure as hen Pe during the period of tuhr. Example: W, a wile, is havin St purity and no sexual intercourse has taken place. At this time, her husband, Hy ~talaag, on her. This is the first he indulges in sexual intercourse, he makes the Sécénd pronouncement. He again revokes it. Again the third pronouncement. The norte dissolved irrevocably, irrespectiv o b. Talaag-i-Biddat: It came ng the second century of lam. i ¥t {0 the triple declaratio 4 pero of purty i ong Beto xn tre, (i) he m when the wife enters her third period of purity and before any intercourse takes pla 1H pronounces re oH ake this third pronouncement, t earls stands at ) oN) ‘other form constitut irréyocable pronouncement t oll of tubr or even rt iy otherwise Tis ttt recopize by te Shas {hs Ona ores condemned. ei cate nes near UR Na 2. lla: Besides talaaG, 8 Min husband can rp ate Near ‘two other modes, that are, lla and Zihar, T) led constructive divorce, If Ila, etic baspand takes an oath not to have sexual imercour ORta le otiowed by this oth Yeo nf zncammation er aero of fur months the fourth month tx lage dsofesrevocbly Dut e husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does ‘a, divorce without order of the court of law. After the expiry ofthe fourth month Jide ora fia ore If here lnm cohabeon, even ater expiry of fee ay flea suit for restitution of conjugal rights against he husband, = 3 ztars tn ths mode tS tWSa compares his wife wth a woman within his prohibited relationship mur or ster et The bashond would ay tat on aday the wf ike smother orate fier sucha comparison the hushand dows not cehait wih Nsw ora ered a four months Upon thecal ofthe sald pro Zara complete Aer the expr of fourth ont the wile has following rights: @ ‘She may go to the court to get a decree of judicial divorce (ii) She may ask the court to grant the decree of restitution of conjugal rights. Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife Cannot seek dvore Ian be revoked {The husban observes fora period ow months oF, (i). He providestood atleast sity peopleo ti) Wetoosa save According to hia law Zar mustbe performed inthe presence of two witnesses Divorce by mutual agreement They are oe forms of dvore by mutual consent utn eter of them, the wife hs to part with her dower ora parafsome other property. A vers in te Haly Quran ana -And cot awl for Jou 27sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law that ye take from women out ofthat which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah, in that case itis no sin for either of them ifthe woman ransom herself” 1. Khula- The word khnula, in its original sense means “to draw” or “dig up" or “to take off” such as taking off one's clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes fT his or her clothes, e, they get rd of each other. In law itis said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition ae he vay ofthe kl, Once the husband gives his consent it results in an irrevocable divgrce The husband has no power of aca the Nn on the ume he as not been paid. The consideration canbe anything sly iis ab ae er ie but may be ay property though not illusory. In mubarat, tl ature is that both the parties desire divorce, Thus, the proposal may em: Naber abr be te hu are en to get rid of each other. Among the Sunnis when the parti fer into a mubarat all mutual rights and oblin ame o an 58 The oa nt though. It requires that hoth the parties ‘must bona fide find the ma errksome and combersgne mong the Suns to specif frm is aid faeee insiston proper fori Th a ist that the word mubarat shoul bythe word talag others i i ld result. They ineesnent must be in Ar re incapable of pronouncing: i Intention to dissolv res cre arly expressed. iis, mubarat is irrevocabl jehts-are the same as in pst undergo the me = of itdat y the dlvorce is essentially an Hes, aid no inereton yt ul we wee Seg ( ites Act 1939. or delegated divorce is recognized among both, the Shias and the Sunnis. n-husband is free to delegate his power of pronouncing divorce to his wife or any temporarily or perinanently. A permanent delegation of power is revocable but a temporary dolegation of power Is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated, The power of talaag may be delegated to his wife and as Faizee observes, "this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India’. This form of, delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the hhouse and conferred a power to pronounce divorce on his wife. The husband left his father-in- law's house without paying the amount. The wife exercised the right and divorced herself. It ‘was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of. power may be made even in the post marriage agreements. Thus where under an agreement it Is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and 28sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law such condone reason ad ot ga ple poly 1 shoul ene hat even incor af congeny meio sti por cand depen apes le she moy ace erecta sh ey aoe Pe hapenoga te een cote Joss Sie pears ER tan ae care of wc o dor gat ew thes is qeun Sachataecod dees lie ian neck Wis ya olnncy pene Sees enes espe stan weet tome ee names Sr bona these ws bacon acetonide sergtvce beat the husband says in response to the bad behaviour ofthe wifeeannot be used by te wife as a ies iru mae onsn hse a eo 3. Dissolution of Muslim Marriages Act 1939: AS Qazi Mohammad Ahmad Kazmi had introduced a bi ire’ regarding the issue on 17th April ‘cmon mented under atg von 2 ‘Avoman married under Musin fw dissolution 4) That the whereabouts of the hi not been kmown fora period of ‘the husband is missing for a period of four ‘may file a petition for, the fs 7 husband is deemed to, iétho wie or any such pet hye knowledge of the husband, is unabl husband. Section 3 provides t fg Miles petition for divorce ed to give the names and add: persons who would have. sband upon his de ert Buea ttices to al such persons appear if they have any knowledge abovt the missin@situsband. If nobody knows then the Wo this elect which becomes effective aul ane the expiry of sx months If before the expiry, the husband reappears, the court shall et ae dgcree and the marriage is not dissolved. ii) That the husband has neglected or has failed to provide for her maintenance for a period of two years: it isa legal obligation of every husband faint pis wife andi heals to do so, the wife may seek dvorce Gn ths proud A husband may = fe ether because he neglects he or becuse he has no means fo provide het maine th the cases the result would be the same The husbands Chiigaton to malntain his wit aabjetto Wie’ own performance of matrimonial obligations, Therefore iene we ves separate sonable excse she snot ented to gta ud dvoree on the round of husband's fall do her because her own Conduct dsenties her Eom malotonance tinder Musi owe i) That the husband has bee sentenced to Imprisonment fora period of seven years or upwards: the ws right of judiil divorce on this ground begin from the date on which the Sentence becomes fina Therefore, he decree cane passed inher favour ony alter the expry ofthe date fr appeal by he husband orafterthe appeal bythe husband has been dismissed by the final court iv) That the husband has filed to perform, without reasonable cause his martal obligations for a period of three years: the Act does define arial cligatins ofthe husband. There are several marital aigations ofthe husband under Muslim law. But for the purpose ofthis cause husband's alare to perform onl those Conjugal obligations may be taken nt account which are not included in any of the clauses of Secon 2 of thisae 4) That the husband was impotent at the tme ofthe marrage and continues ta beso for geting a decree of Givoree on this ground, te wife has to prove thatthe husband va impotent atthe tne of Se marrage Sn continues to be impotent til te ling of te sut Before passing a decree of divorce of divorce on ths ground the courts bound to give to the husband ne yar to improve his potency provided he males an Sppleation frit If the husband does not give such application, the cout shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife fled sut for dissolution of marrage on the ground of 29sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law viii)That the husband treats her with cruelty, that is to say, wl (b) Associates with women. of ll repute or’ sin an. SN 7 (d) Disposes of her property or prevents her rights over it, or aac ears Ros InSyed Ziauddin v. Parve 2 one vas a sence ‘wanted to take sas in promised to give her money provid liment of promise fon the part of the atti a hore Hy a ‘husband sold the ory mo thatthe hushand' snd does not amount cy imu Koya, the husband use age to put on a sari and see pictures in sfe reused to do so because ss Diet eles this was against the Islamic way of Ife, Si ought dors ont und tia ry The ers ih Gr lt hc he husband cannot be regarded a5 en se mere departure from the standards of sutfocating orthodoxy does not constitute ups v. see the court's sida Begum v. Sardar Shah, a case ‘observed that Indian Law does not recognize various types of cruelty such as ‘Must ‘Mju cruelty’ and so on, and that the test of cruelty is based on universal and humanita that is to say, conduct of the husband which would cause such the wife's safety or health. ce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 inUmar Bibi v. Md. Din, it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibt v. Pir Bux , again an attempt ‘was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce (a) non-payment of maintenance by the husband even ifthe failure has resulted due to the conduct of the wi, (b) where there is total irreconcilability between the spouses.sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law ‘The source of law of guardianship and custody are certain verses in the Koran and a few ahadis, The Koran, the alladis and other authorities on Muslim law emphatically speak of the guardianship of the Property ofthe minor; the guardianship ofthe person isa mere inference, We would discuss the law of guardianship of custody as under (¢ Qo AE co ac dnrataonatta ci rd ( e bapjession ‘natural guardian’, but it seems to be schools ofboth the Sunnis amd the-Shias/ the father is recognized as guardian which term inthe context is equivalent to natra guardian, and the mother in all schools of Muslim law fs not recognized as a guardian, natur revsejeven ater the death ofthe father Since the moter is not the legal guardian of her ‘minor's property. ‘The question of her beh ural'guardian during the life time of the father does not arise. The father's right of guardiariship’ exists even when the mother, or any other female, is entitled to the custody of the minor, ‘The father’s right to control the education and religion of minor children is recognized. He also has the right to control the upbringing and the movement of his minor children. So long as the father is alive, he is the sole and supreme guardian of his minor children. ‘The father’s right of guardianship extends only over his minor legitimate children, He is neither entitled to guardianship nor to custody of his minor illegitimate children at any time, even after the death of the mother, though itis a different matter that he may be appointed as guardian by the court. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody. ‘Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to his executor. Among the Shias, after the father, the guardianship belongs to the grandfather, even if the father has appointed an executor; the executor of the father ‘becomes the guardian only in the absence of the grandfather. tappears that the Shias consider the father as a natural guardian, and in his absence the grandfather is considered to be the natural guardian. No other person can be a natural guardian, not even the has no right to enter into a contract to alienate the Etsty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law brother. In the absence of the grandfather, the guardianship belongs to the grandfather's executor, if any. ‘A minor cannot be represented by the grandfather when father is alive 2. Testamentary Guardian: atnss the aber ands okt e panier hase yous of spamange esa Fey be sunt Serssppotnmentof esamenory prin si ony he gander ernie pg Saas Ane tne sit mh mtr no a tesamentary gadin ae a ino eas Getencs a me as conn rn Smet ela he anette by her Wan pinata nee pe executor by his Will: this provi oral cos The latter exception, too, has little ee ere pan ae rhea anon ijathong the Shias suchas zs they a he ane ny pe nis that the appointment of non: yom ie eyte needy as ean te 0 take the same view. Danna ron Mush ora fast (reprobate), is appointed asa testamentary guardian, any eld be replaced by the Kaz, But any act done by them \ iinet ain Further, disability cba ir remaval, they cannot be removed. The Fatwa Alamgir also takes this view, bi xt the ‘appointment of a minor or insane person as guardian is void, and, therefore, any act done by them before or after his removal will be void and non-effective. ann! carb vy apie icanentary nda of he oper oe oe 9f the person of the minor, ‘There is some controversy amorig the Muslim jurists on the point whether a person, who was a minor at the time of his appointment but who ceased to be so before his removal, can be removed on the ground that when his appointment was made, he was unqualified. It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian, ‘The Muslim jurists of all schools agree that a profligate, ie., a person who bears in public walk of life a notoriously bad character, cannot be appointed as guardian. However, all acts done by such a person before his removal are valid and binding unless found to be contrary to the interest of the minor. Acceptance of the appointment of testamentary guardianship is necessary, though acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court. Muslim law does not lay down any specific formalities for the appointment of testamentary guardians Appointment may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and unequivocal.sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law ‘A testamentary deposition made by testator may be invalid, but appointment ofthe testamentary guardian of minor children will be valid. The appointment of the executor may be general ot particular ‘The testator must have the capacity to make the Willa the time when it was execute, This means that the testator should be malor, of sound mind, te, atthe time of execution ofthe Will he should be in fll possession of his senses. The executor ofthe testamentary guardian is designated variously by Muslim law-gvers, indicating his Postion and powers He is commonly called, wast or guardian. He Is als called amin Lea trustee. Me ISalso termed as kalm-mukam, Le, the personal representative ofthe testator. Asin other systems af aw, itis the duty of the executor under Muslin law to administer the estate and assets ofthe testator, to carry out the wishes ofthe testator with utmost fidelity, and to actas guardian af the minor children whenever he is appointed as testamentary 3. Guardian appointed by the Court De Facto guardian): re ~ On the failure of the natural guardians and testamentary 0 cn iazi was entrusted with the power of appointment of guardian ofa Muslim ni, the Musim la of appointment of guardians by the Kaz stands abrogated. (7) Now the matter is governed by the Sains a Is Act, 1890. This Act applies to the appointment of guardians ofall min to/iny community. The High-Cour’'s also have Inherent powers of appointmentof guardians, though the power is exercised sparingly. Under the Guardians and Ward: fs power of appointing or-declarin a iy person as i The District Court may appoi ver soft 2 »afiy person as A, hhad remarried after the death Sian scare sare _ it ge rn Scjac ofc mgr tse mecgatcsn hace coe eco ash wee the parents and the aye of the minor. WS uaposs eb Gauhat High oan thal ‘of her\hushand) she’ sholild not be appointe ronnie woul be rete asan goakalan ‘tminor daughter. The paternal de court epointed her accordingly, M. Sharma, rion to be a guardian i motes Wasied second time. As regards the mother o a female guardian, marriage to a person fot related to the child within the prohibited degrees is a bar to guardianship. \ \ Its od hte 5 orlese the custody ofher infant chien merely because she is no longer the wife if her’ ee usband, but where she marries a second husband, the custody. otsch ren normal ober former husband. Imaal ease other relations Yang the mother by absence or disqualification, the following female Teutionsare ented tcutgaytn era prion (Motes nather how hgh sever, (i) Father's mother how highs ever and (iii) Full sister and other female relations including aunts.sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law MAINTENANCE - ‘Termination of Wife's. ‘Maintenance ADS ‘Maintenance consists of the provisions ot acon od, and clothing, Itis a lawful right of the wife under a valid marriage irrespe je means or religion. The entitlement of the wife to Matnerance derives autor rte Garay fea "the Quran, Prophets tradition and congersusstn Surah Al- rode protector and matntamersafseones techuse God has Nisa, Verse 34, The Quran ase 5 given the one more oOo et ohd becouse they support them foe weit aga 1) Assessment of ioe v (COD) Theses ot Sor “iscusedin The Holy Qua Shh Std ie as rather let 0 peas y ly nna, jurist“ opinions. Te ated In Hanaf, Maliki 35 the mean between the resourses he pean issn However, Shafis and Shia's fix ieaccoraipgtathe meats ofthe husbandalone.\ e \ ‘The husbandi3 required to provide the wif with bse thats safe both structurally and in location and is free from any ather membe! niles Ticluding other co-wives. The only exception Is that the husband can require his live with infant children of his previous marriage, although Shia school differs. G > \ The eat be msn ene ve even ise is wealthy and her huskand poor: When the husband has no means \at allthis 1s a misfortune that has to be shared’ by the wife IL) Entitlement & Loss of Maintenance: Maintenance shall be due to the wife during the subsistence of a marriage if all the following aa 7 ae! —_ be Jsty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 4A Valid Marriage - In a Batil (void) or Fasid (irregular) marriage, the wife shall not be entitled to maintenance, since the husband has no lawful right of acess to er. The wife shall also lose her right to maintenance ifshe apostasies because apostasy renders the marriage contract void 2, Lack of Access - It is tamkeen, ie, availablity ofthe wife for her husband, and not the marriage itself that makes maintenance the right ofthe wife, ths right shall be lot ifthe husband is denied access to the wife at al lawful times. Thus, a woman in ailis not entitled to maintenance, even if she is ‘innocent and consummation has occurred. The same rule applies for a kidnapped wife 3. Obedience - A disobedient wife has no right to maintenance. The husband's duty to maintain begins when the wife submits her to husband, Ifthe wife declares herself ready to start cohabiting withthe husband, he is to maintain her even if she is living inthe house of her guardian, as she has done everything she could. Even a minor husband is obliged to maintain his wife, if he is of an age ‘where consummation is possible. Sharia defines» obedient wife asa woman who leayes Gu Tats home without a awa excuse. The Shias consider as a lawful excuse, wife vis sic father who needs her to stay with him, having nobody else to look after him, even ted permission. Both Sunnis and Shia gre tha here wil be no maintenance for ‘goes to work without the husband's permission. The disobedient wife's lost right to mdinenance shall be revived on the removal of the Similarly, the wie's maintenandhai’bé sgpondedif she travels, unaecompan(ed her husband Th und vel ha ttre hn red a te nd unless otherwise stipulated jn wrriage contract. - SX 7 However if the wife ds for some laveful meqaehan intenance does not extinguish. Non dower isa reasonal fet refuse to live with her husbi WT 1 Terminana VIA ‘Divorce Regarding divorce, all schools“ agree that if the divorce is "revocable", the wife is entitled to maintenance throughout the idda, because repudiation is a matter in the husband's hands and wife still remains under his control If, however, the divorce is “irrevocable”, then only Hanafi allow maintenance during idda. The Malikis, states that such a woman is entitled to full maintenance only when she is actually pregnant. If she is non-pregnant, then the wife is entitled to lodging only during the idda, Al schools agree that a divorced Muslim woman is entitled to no maintenance after the idda period, the rationale being that these women would normally return to their natural family or would remarry, However, ifa man wants to provide maintenance for the rest of her life is not preventing from doing so by any provision of Muslim law. This area has been a subject of considerable reforms. Surah Al-Baqara, Verse 236 provides that Mutat is payable in deserving cases as a matter of goodwill and of custom. However, this remedy is not a general entitlement. Various Muslim states have incorporated the Mutat payments in their statutes. In Syria, Jordan and Egypt, the law agree on the principles in general but they differ on the amount payable. Generally, the wife will be entitled to 3561a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Mutat, on repudiation by the husband after consummation, as compensation for an arbitrary talag ie iF is proven to a qadi thatthe husband exercised talag without a lawful justification, n Syria, the amount payable should not bein excess of the amount of maintenance for her equals for three years. In Jordan, the amount is equivalent of the maintenance due to her for a yar. In Egypt, the amount is equivalent of the maintenance due to her for two years In South Asia rather on Mutat, reforms have taken place on the wife's right of maintenance itself. In India, $.2(2) DMMA 1939 allows Muslim women to seek divorce if her husband fails to maintain her for two years. However, in India, the reforms started with the coming of S125 of the Code of Criminal Procedure 1973 in which the definition of a wife, entitled to maintenance, also included an unmarried “divorcee” In the controversial case of Shah Banu", a Muslin husband drow fis Wife, an old lady, out ofthe hws afer nating a son marin She ld a etn Br scan der he 97 Cole ‘The husband gave the respondent an irrevocable talag. ab Tis to the lady's claim for ‘maintenance was that she had ceased to be his wife eine Court confirmed the High Court's decision that she was entitled to maintenance. ~7 ‘The Supreme Court stated that that there is inad upport the proposition that a Muslim husband is not ane anoblgation prow 4 jance of his divorced wife, “who is unable t maintain hese. The cout ad tah re pas tat the elas ise so no ‘maintenance, with the expiration or yorcee who “can” maintain wever, if she anno maintain here then arse to $.125, The court su ae with the Surah Bagar: secant 241-42 which seer se gee yorced woman, ‘The decision in this by various Muslim rdekued that once the dda periods o eae parents ie on lew women were sree y te aw and Pa Eh Bade eno Masini wore Ding hs views. The Sap Court tht ing than to reflect the true Islamic position ayy te oe eihosando maintain hs exe tl death Ee conan egety cate ha bt wc eo Sosa a as cae a survival isnot caret to say tat sh as Beg iat, tease the above menoned ‘Quranic verses themselves say Women should be provided maintenance on a reasonable scale and itis not unfaie to thebsband betause the scale of reasonable payment is judged according to the means ofthe his (hee Boor ex-husband should pay less for maintenance and a rich exchusband should pa ‘ery harsh to say that this decision favours women heavily just Because ofthe fax tat ie dsgn the pockets of many Musi husband In explice reaction to this tase the Muslim Woman (Protection of Rights on Divorce) Act 1986 was Promulgated. This has done precisely what its name suggests and has proved rather beneficial to divorced Muslim wives who were unable to maintain themselves appropriately after the idda 83 of 1986 Act offers a more or less instant remedy today to any divorced Muslim wife in India who, at the end ofthe idda period, finds that her ex-husband has not made reasonable provisions for her furure maintenance, After this Act, there are a number of High Court cases which support the view that the divorcing husband remains liable for his former wife's welfare. Only the very few cases go the other way In Ali v Sufaira the judge again turned to the Quran text and sad that Surah 2, verse 236-37 and 241-42 makes itclear that any Muslim must give a reasonable amount by way of gift or maintenance to the divorced lady and they are not limited tothe period of idda. It was therefore held that under S.3(0)(a) ofthe Acta divorcee is entitled to maintenance fr the period of idda as well as a reasonable and fair provision for her future Contrastingly, in Usman Khan v. Fathimunnisa Begum, the judge examined the precise wording of ‘$.3(1)(a) in particular the phrase “within the idda period" and concluded that the husband is not liable 3661a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law vomake reasonable ad fr provisions beyond ida period However, the decision in this case seemed faulty guonny the ttenton bhi he 1586 Acad the delat sto he Quran poveons Under the Quranic law Mutat is payable in deserving cases only and not unconditionally to every, female divorcee The Goa under te 1088 Aa pon sn sect right tl divorcees espe thrateumotances eee ee Cee ee eee Is te rae tir hae TS tiger time of capers cis aes Peete Nee eee eam esas nad Garcons ees atctnancs agen ios neces Psa ee ate race ocak oe sees ey erase Zettoa i at the bandon of nsintning Stvored omen ir nny ors he star ei Father than the divorcing husband or his fara. (oy Howover Bangladesh abo ster ftw Inia. In Ma Hear RbSeafe. Shamsun Nahar, was Manna haat otceeivaciag Eras ona repeat a edoonats eae hares Oe ida till she remarries SU GS v asty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law UNIT aaroelk Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other ‘meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, alter he is dead. According to section 2(h) of Indian Succession Act 1925, Willis the legal declaration of the intention of a testator with respect to his property which he desires to be career afer death 2 For a Maslim, Wasiyat isa divine institution because itis fae Lis oters tothe estatora ‘means to change the course of inheritance to certal recognize the value of those ght have helped him in life or in last ‘hot unrestricted and should not be 1-Wwho is major and ‘Of sound mind can make a ‘will. Regarding wills, the age of majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he attains majority, A person of unsound mind isnot ‘competent to make a will and a will made by such a person is invalid. A will_made by a person while of sound mind, Who later becomes of unsound rot (power of ras oT of the legate ‘mind, becomes invalid. In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a minor may make a valid will to dispose off the property. So far as a deed is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose, Will of a person committing suicide - Under Sunni Law the will of a person committing sulcide is valid. Under Shia law, a will made by the person who has done any act towards committing suicide is invalid but f the will is made before doing of any act towards committing suicide, itis valid61a Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 2. Competency ofthe legatee ‘ny person capable of holding property may be the legatee under a wil. Thus, ex age, reed ox Faligon arto bar. However bo ous can ve mado to Beneficial owner ofthe shares against fis will therefore, to complete the transfer, Ge logatee must give his express or pled consent to accepting the legacy fan instcation can be alegatee. A non-muslim can bea legate if he isnot an enemy of Islam and is not hostile towards Ilan. In Sunni la, a testator's murderer cannot be legate In Shia law ifthe actor the murderer was an aeldent he can bea legate otherwise not Unborn person - In Sunni Law, a child bora within 6 months of the date of making ofthe ail is considered to be in existence and isa vad legatee. In Shi-law, the period is 10 months, which is the maximum period of gestation. (o Bequest for a charitable objects wali 3. Validity of the subject of will- To be able to will ZA be- a capable of being transferred. b ASH notin existence at the time of Sy ahaa suries be pained a proved in future 0G Picemeniyst nell A bequest that i to take effect a event happening isa is void. However, a bequest wi — take effect aif the condi Ise or examples grant smo Vand thenitis sete rehire oe as da See sited ho ways - vie in Ghulam Mohammad in favour of a heir is not valid bequest, and walid and will Z confine vr to perso The en ain 1982 by Sa ae irs consent othe be ula ‘of the testator. Whether a person detern ahd) PN he cme of tesars “death ie ner aslong asi doesnot exceed on third of his ee required. In Hussaini Begam vs Mohammad Mehdi ‘was bequested to one heir and other were not given ‘st\ was void =—sin—sits.—_ entirety. 1@-Amount The general principle is that a muslim is not of his property after taking out funeral charges and debt r wi may be valid if heirs give the consent after the death of the property and no consent of 41927, ie was held that al anything, by Limitations allowed to wil However, under testator. in Shi la exception is that if the testator has no hele, he can will any amount. The govt eannot act as an herto the herless person Differences between Shia and Sunni Law on Will Sunni Law Shialaw Bequest to an heir without consent of other heirs is invalid. Bequest up to 1/3 of the property is valid even ‘without consent. Bequest to unborn child is valid if the child is born within 6 months of making the will. Valid if the child is born within 10 months oF making the will ‘Bequest to unborn child is valid if the child Is born within 6 months of making the wil, Valid if the child is born within 10 months of ‘making the will Legatee who causes death even by accident is incapable of receiving Legatee who causes death by accident is capable 39sid) Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator, Heir’s consent may be obtained before or after death. Will ofa person committing suicide is valid. Valid only ifthe will is made before the person does any act towards committing suicide. ‘Recognizes rate able distribution. Does not recognize rate able distribution. If the legate dies before testator, the legacy Japses and goes back to the testator. ‘The legacy lapses only ifthe legatee dies without heirs otherwise, it goes to legatee's heirs. ‘Legatee must accept the legacy after the death of the testator. ‘Legatee can accept the legacy even before the death ofthe testator Differences between Will and Gift (¢ ~(o5 Gin will Ttis an immediate transfer of right or interest. \ Itisatwansier after death. Delivery of possession isnecessar Delivery.of possession is not necessary. Subject of gift must exist at the time of ma} sift. Siyetebal ‘must exist at the time of death stator. Right of donor is unrestricted. This imited up to 1/3rd of the property. x amr Cannot be revoked. [Can be revoked by making anothér wi. es © includes all transfers Alt) Hiba but technically, donation of a thing from\which conse e itera Complete. "The most es al el Gift scope than Hiba. The word Hiba .e may derive a benefit. It must be it Of Hiba is the declaration, "I have given’. mne person to another and accepted by or on behalf of As per Hedaya, tas defined tech uncondonal rans of property, male immediatly and without any exchange or on ty the latter”, ne is the( ‘The gift ofthe corpus of a Yhing is called Hiba and the gift of only the usufructs of a property is called Ariya, According to Fyzee, ate and without any return, unqualified transfer of the corpus of the property aoe Since muslim law views the law of Gift as a part of law of contract, there must be an offer (zab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, 2 40sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren, However, no express of implied acceptance was made by a major grandson. Karnataka HC held that since the three elements ofthe gift were not present in the case of the major grandchild, the gift was not valid. [twas valid in regards to the minor grandchildren, ‘Thus, the following are the essentials of valid gitt= 1 -Adeclaration by the donor = There must e clea and unambiguous intention of the donor tomakeagh. 2. ‘Acceptance by the donee - A gifts void ifthe donee has not sven his acceptance Legal guardian may acepton behalf ofa minor : 3. Delivery of possession by the donor and taking ofthe oer m by the done- In Muslim law the term possession means only such possession asthe nature ofthe subject is capable of ‘Thus, the real test of the delivery of possession is oe Awhiether the donor or the donee = reaps the benefits ofthe property I the donors reaping the benefit then the delivery is not done and the gift is invalid. a Ao )\ 6 ingaf he cons which must be gatiste for aval ate ‘There must be two parties to a gift transaction). the-donor and the done:- Seanditaes or boner he. consi) i) Musthave attained the ag i Governed by Indian Majority Act 1875. i) Must be of sound mind ar have understanding ofthe transaction, i) Must be hee ofahy faint oc herve adie aswell ar ando infuence ix) Musthave owners ove thepFopertyt be transfered by way of git ‘Agittby amarred woe alc and is subjected to sre legal rules ad consequences A git by a pardanashin woman is als yal but incase ofa dispute the burden of root thatthe transaction Was hot eonducted by coercion of undue influence onthe donee Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors. ’b. Conditions for Donee (who can receive) i) Any person capable of holding property, which includes a juristic person, ‘may be the donee of a gift. A muslim may also make a lawful gift to a non- ‘muslim, 4) Done must be in existence at the time of giving the gift In case of a minor ‘or lunati, the possession must be given to the legal guardian otherwise the giftis void. Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs. asty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 2. Conditions for Gift (What can be gifted) — 2 Itmstbe designable under the term mal b, Itmust be in existence at the time when the gift is made. Thus, gift of anything that is to bemade in future i voi «The donor must posses the git. Muslim law recogizes tho diference between the corpus and te usufruets ofa property. Corpus, ot ‘Ayn, means the absolte right of ownership ofthe property whic shertabe and limited ih point Ol tne, wl, usutructs, oF Manat means the right to use and enjoy the property Ils imited and s not hestable"The git ofthe corpus of a thing is called iba and the gk of enly the usufucts of @ property iscalled riya, Tn Nawazish Ali Khan vs Ali Raza Khan AIR 1984 it was held ae jsuruetsis vai in Musin Jaw and that the gift of corpus is subject to any such ee to usufructs being gifted tosomeone els. tfrther held that gt of ie nerests nape Futomatialy enlarge into 3. Subject of Gift- The general ‘anything over which domi anything which may ber sSessio x 2, b anything which exists eft sanyo as an enced a anything which comes wit (of the word mal pre made to more than one ft to gift - General rule ceet os to a is unrestricted. oriinissa vs Mst mown a Ba ‘ecognized by the privy council may gift all or any wa ices ciyeyenie adversely affects the expectant ver, there Is one exception tl “of gift of a person on death bed (Marz. ul iS restricted in following was ies “arora than one third of his property and he cannot gift it to any of his; Kinds of Gift ‘There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul lwaz, Sadagah, and Ariat. 42sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Hiba Bil Iwaz- Hiba means gift and waz means consideration. Hiba Bil Iwaz means gift for consideration already received, It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions which together make up Hiba bil lwaz. In India, twas introduced asa device for affecting a gift of Mushaa in a property capable of division. So 2 Hiba Bil waz is a gift for consideration and in reality itis a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil waa ~ 1. Actual payment of consideration on the part ofthe donee is necess InKhajoorunissa vs Raushan Begam 1876, held that adequacy gf.the consideration is not the question. slong is the consideration i bona fide itis valid nom itisinsuficient 2. A bona fide intention on the part of the donor to d property is essential Gift in lieu of dower debt - In Gulam Abbas vs Raz immovable property worth more than 100/- can ya muslim husband to his wife by way of gift in lieu of dower debt whichis also Its neither Hiba nor Hiba bil waz. Itisa sale and must done through a registered instante —— \ iba ba Share waz Share edn Sapa Kexiismade with a stipulation for return. Unlike in Fiba bl wane payment of considerat fd. Since the payment of consideration ‘ro ate the delivery of possession ise Phe transaction 4 ihe Oe risrewebleupithelwarispa > (C)\\ oo ce ae tema in.) ) Tr: ‘when completed by mapper “P (es the character ofa sale. Teturn and the gifts must be ma¢ snce with all the rules relating to simple gifts. ‘Ariat - An ariat, the grant of interest in respect of the use or usufruct of some property or right, 4 Uiere a git of any probe Feigous mes led Sa Sado o Sad It san oan term hat means “voluntary ehriy”. This concept encampases any ato ging out of compasion, lov, endsip (aternip),regousdty or generosity Sadaah ir hot rested to ving part of our wealth oy material posesons or any spel dee of tghtoouness Lam considers al good deodsas saan tht inrese on ean To beable to eny Alas trmenous reward fr every sada that we sve, we ned io observe the fovingenchings 1. Salagah must done sincerely forthe pleasure of Aah nd nat out of ya (Show of oan pra or eongon fom oes Wis beter to conceal wate ge ord as sadagah Sadagah nt elton al aa Source Begin charity wh your dependents Netto dngot salah or how tary or negligence ning sadagah Donot count the aaah you gesty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law 7. Seek only the desire to see Allah, which is the supreme success in Paradise. Do not expect, favor or reward from any person for the sadaqah you give. Differences between Hiba, Hiba bil waz, and Hiba ba Shart ul Iwaz.~ Hiba Hila bil lwaz iba ba Shart ul lwaz ‘Ownership in property is Wwnership in property is | transferred for consideration | Ownership in property | is Ownership in property is | wansferred for, consideration | transferred for consideration transferred without | called iwaz. But there is. no consideration, express agreement for a return, | Caled twaz, with an express expres agree Sgeementforaretur. Delivery of possession is | Delivery of possession is NOT | Delivery of possession is essontil essential Sonia Girt of mushan where a cit of mushaa ever hv ot atone property is divisible is invalid. NS sroperty is divisible is invalid. Barring a few exceptions it is Teis revocable until the waz is revocable. Os) paid. Irrevocableafter that. ao Tn is ince os a sift but Itisa pure gift | ne becomes waz is ai Exceptions in deliv The bllowing are te cans were deliver of possesion by th es ath lunatic son. In Mod Hesa Hesaruddin AIR 1984, er the donr, his mot oie ees sve were nel her The donor nee andthe done subsequently ctangey the name onthe and records, twas $ valid gift even though there wa8.nddelivery of land. donor andthe dane sed in the sey house which sto be ltd, In such a case, ‘house's not required, ne delivery of posesson isnot require ithe donor hada Fal and Gittby one cos Part delvery- delivery of theres amindart villages s Delivery 1s not required where the gift incides parcels of land in zamindari if the physical possession is impossible. Such gift may be completed by mutation ofnames and transfer of rents and incomes. Subject matter in occupation of tenant - Ifa tenants occupying the property the git may be affected by change n ownership records andby a request tote tenant toattor the donee Incorporeal Hghts “The gt may be completed by any appropriate method of Wanstring ll the control thatthe nature ofthe git admits rom the danor tothe done, Thus a it of gov. promissory note may bealfected by endorsement and delivery tthe dane, Where the donce i In possesion - Where the donee is already in possession of the property, delivery isnot required. However ifthe property in adverse possesion ofthe donee the gt isnot aid unless elterthe donor recovers the possession and delivers todonee of does allthatis in hs power tet the donee take the pessession,sty Yenaissanc@ Law College Class LL.B (HONS,) ILSEM. Subject ~ Muslim Law Voia cits Mefollonngg aevo Gift to unborn person‘ ewe in froma fos valid ithe interés iS te Ce comes into ce st ‘opens out. Gifts in future ~ A. Seem ease os cae “thus, a eittoF sap ona is void Contingen Tas cakes affect after the 1) nen Ftd Thus a tamale hers oid ie a A) @ , 'b¢ unconditional. When a (it is\ aft is valld but the ae ae Thus, fA gifts B his house on a ‘will not sell itor B will sell i¢ onl condition is void and B takes full rights of the house, Mushaa (Hiba bil mu Moshas means uid share GS Ye sift of undivided share in an indivisible property is valld under all schools sae thes (Eb inaninity of opinion amongst ferent schools about gi of undivided share ina ren is divisible. In Shaft and Iehna Asharia laws is valid ithe donor wtharaws his conrl ver the’ proper n favor ofthe donee. Buk under Hanaf law such 9s invalid unless iis separated and delivered tothe done. Mlustration : A,B, and C are the co-owners of a house, Since a house cannot be divided, A can give his undivided share of the house to Din gift. ‘A,B, and Care the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law, A can give his undivided share of the wheat to D if he withdraws control over it but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D. In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being used by C as well. Ths gift was held valid hecause staircase is indivisible. Revocation of a Gi Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable, In Shia law, a gift can be revoked by mere 45