Muslim Personal Law (409) Page 1 of 56

MARRIAGE
Marriage signifies to Arabic term ‘Nikah’, which is a contract for legalizing
sexual intercourse and procreation of children. In Muhammadan Law, marriage
is a civil contract whose validity depends on proposal from one side and
acceptance from other side. It may also be defined as a religious contract
between a man and a woman the object of which is legalizing of sexual
intercourse, procreation and legitimization of children and regulation of social
life.
OBJECTS OF MARRIAGE: The objects of marriage in Islam are as under:-
1. Legalize of sexual intercourse;
2. Procreation of children;
3. The ordering of domestic life;
4. The discipline for care and responsibility for wife and children;
5. Regulation of social life.
ESSENTIALS OF MARRIAGE: Following are the essentials of valid marriage. If
any of these requirements is not fulfilled, the marriage becomes void or
irregular. These essentials are:
1. Offer (Ijab) and Acceptance (Qabool): A valid marriage requires offer
(ijab) from one party and acceptance (Qabool) from the other party. The
consent of parties to such offer and acceptance must be free without
coercion, fraud or undue influence.
2. Presence of both Parties: The offer and acceptance to marry must be
heard by either parties or their agents.
3. One Meeting: The offer and acceptance must be communicated at one
meeting. An offer and its acceptance made at different meetings do not
constitute a valid marriage. For instance, after the communication of
proposal for marriage either party leaves or engages in another business
without communicating its acceptance, the acceptance communicate
subsequent would not have the effect of completing the contract.
4. Competency of Parties: The parties to the contract must be competent
to marry. The parties are competent if they are Muslims, of the age of
puberty and of sound mind.

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5. Witnesses: Under Sunni law, the proposal and acceptance must be made
in the presence of either two males or one male and two females and
these witnesses must be sane, adults and Muslims as required by article
3 and 17 of Qanoon-e-Shahadat Ordinance. The absence of witnesses
would render marriage irregular not void. Under Shia law, the presence
of witnesses is not necessary.
6. No Legal Disability: The parties must not be legally disabled, that is to
say they must not be within prohibited degree, or so related to each
other as to make union unlawful.
KINDS OF MARRIAGE: Marriages are classified into valid (Sahid), Irregular or
Invalid (Fasid) and Void (Batil).
1. Valid (Sahih): A marriage which fulfills all the legal conditions is said to
be valid. In other words, a marriage which is neither invalid or irregular
nor valid is valid.
Legal Effects of Valid Marriage: Following are the legal effects of valid
marriage:
i. The spouses get the status of husband and wife;
ii. The children are legitimate and entitled to proprietary rights;
iii. Wife gets the right to Mahar and maintenance;
iv. Wife becomes obliged to observe IDDAT if marriage consummated;
v. Wife and husband may retain their sects even after marriage;
vi. Wife or husband cannot marry certain relations even after divorce.
2. Invalid or Irregular (Fasid) Marriage: An invalid marriage is not unlawful
itself, but it becomes unlawful, when irregularity arises from accidental
circumstances, or where the prohibition is temporary or relative. Such
marriage can be made valid by redressing such irregularity arose. Shia
law does not recognize invalid marriage; they only consider two kinds of
marriage as valid and void. Thus the following marriages are irregular:
i. A marriage contracted without witnesses;
ii. A marriage with a woman observing her IDDAT by either divorce
or death of her husband. Such marriage becomes valid after the
expiration of IDDAT period;

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iii. A marriage by a man with 5th woman when he is already married

to 4 wives. Such marriage can be valid if man divorces his either
wife as not exceeding 4 wives;
iv. A marriage with such women together that they could not
intermarry if either of them is a male. Such as a marriage with two
sisters, two aunts, two nieces, etc. Such marriage can be made
valid if he divorces either sister.
v. A marriage prohibited on ground of difference of religion.
Legal Effects of Irregular Marriage: The legal effects of an irregular
marriage vary and depend upon its consummation. An irregular
marriage has not legal effect before consummation. If consummation
has taken place then following would be the legal consequences:
i. Wife becomes entitled to dower;
ii. Wife is bound to observe IDDAT, but the duration of IDDAT both
on death and divorce is three months;
iii. The issues of marriage are legitimate and entitled to inheritance.
iv. Although consummated, but an irregular marriage does not create
mutual rights of inheritance between husband and wife.
3. Void (Batil) Marriage: A void marriage is one which is unlawful in itself,
the prohibition against marriage being perpetual and absolute. Such a
marriage is void ab initio and is not a marriage at all. The following
marriages are void:
i. A marriage prohibited on the grounds of consanguinity, affinity or
fosterage;
ii. A marriage with a woman who is another man’s wife;
iii. A marriage without consent of either party;
iv. Incase a person marries two sisters or five women and it becomes
impossible to know which marriage was contracted first, all the
marriages will be nullified. If incase priority of one is known, the
previous marriage will be valid and the others will be void.
Legal Effects of Void (Batil) Marriage: Following are the legal effects of
void marriage:
i. The sexual intercourse becomes unlawful;
ii. The void marriage creates no right and obligation upon any party;
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iii. The children born out are illegitimate;

iv. The wife does not become entitled to maintenance and
inheritance.
IMPEDIMENTS OF CONTRACT OF MARRIAGE: There are some legal disabilities
or prohibitions to make the contract of marriage. These legal disabilities or
prohibitions are classified into two classes as under:-
1. Absolute Disability or Prohibition: It is total prohibited contract of
marriage and it cannot be made in any circumstances. It includes
consanguinity, affinity and fosterage as under:-
a. Consanguinity: Consanguinity is derived from Latin word
‘consanguinitas’, which means ‘blood relations’. These blood
relations are established by father, mother or children. A marriage
by man with a woman prohibited by reason of consanguinity is
void. Consanguinity includes following relations:
i. mother and all female ascendants, how high soever;
ii. daughter and her female descendants, how low so ever;
iii. sister with a full uterine and her all descendants, how low
so ever;
iv. niece and all her female descendants, how low so ever;
v. aunt, whether paternal or maternal, and all her female
ascendants, how high so ever, except her descendants.
b. Affinity: Affinity signifies a relation established by marriage and
not a blood relation. A marriage of man with a woman is also
prohibited on the ground of affinity. According to Hanfi law
adulterous relatives are also included in affinity and daughter
from such woman is prohibited. According to Shia law it is
prohibited as the consanguinity is prohibited. Affinity includes
following:
i. Wife’s mother (Mother-in-law) or grandmother;
ii. Wife’s daughter (step daughter) or granddaughter;
iii. Son’s wife or son’s son’s wife, how low so ever;
iv. Wife of father (step mother) or grandfather.
c. Fosterage: Fosterage relations are established when women feeds
a child with her milk. According to Hanfis feeding once established

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fosterage, according to Shafis atleast five times feeding

established fosterage and according to Shias 15 times or 24 hours
feeding established fosterage. These foster relations, though not
born to the same woman, are taken as blood relations for the
purpose of marriage. The Shia jurists place fosterage in
consanguinity on the same footing and refuse to recognize
exceptions permitted by Sunnis. These exempted relations
include:
i. Sister’s foster mother;
ii. Foster sister’s mother;
iii. Foster brother’s sister;
iv. Foster son’s sister.
2. Relative or Temporary Disability or Prohibition: It defectives contract of
marriage but in certain circumstances it may be converted into valid
contract of marriage if so rectified. The cases of relative or temporary
prohibition include:
a. Unlawful Conjunction: It means that a man cannot have, at the
same time, two wives who are so related to each other by
consanguinity, affinity, or fosterage, that if either of them had
been a male, they could not have lawfully intermarried. For
instance, two sisters, or aunts or nieces. The bar of unlawful
conjunction renders a marriage irregular, not void. However, the
children born out of such wedlock are legitimate.
b. Polygamy: Polygamy means plurality of marriage, that is to say
marriage with fifth wife. A Muslim man is allowed to have upto
four wives at the same time but at the same time he is not
allowed to have fifth marriage. Such marriage with fifth wife is
irregular but this irregularity can be removed by divorcing one of
the wives.
c. Absence of Proper Witnesses: In Sunnis, it is essential to have
atleast two male or one male and two female witnesses to
confirm the contract of marriage otherwise marriage would be
irregular. In Shias, a marriage contracted by spouses themselves
or their guardians in absence of witnesses is held valid.

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d. Difference of Religion: Under Hanfi law, marriage of Muslim man

with a woman who believes in a revealed religion i.e. Islam,
Christianity, Judaism, is valid but he cannot marry a woman who is
neither a Muslim or belongs to revealed religion. Such marriage is
irregular which can become valid if wife converts to Islam. On the
other hand, a Muslim woman cannot marry any man who is not a
Muslim and such marriage will be irregular, which can become
valid if husband converts to Islam.
e. Woman Undergoing IDDAT: A marriage with a woman before
completion of her IDDAT is irregular.
COMPETENCY OF PARTIES AS TO MARRY: The parties, both the girl and the
boy, to the contract must be competent to enter into a contract of marriage.
The competency of the parties depends upon the following three factors:
1. Age of puberty: Age of puberty is an age at which a person is supposed
to acquire sexual competency. Due to difficulty of ascertaining the age of
puberty by physical features, the Courts have presumed that the age of
puberty for the purpose of marriage, dower and divorce is acquired at
the age of fifteen years. The requirement of the age of puberty is
essential not only for competency for consummation but also for the
parties to be able to give their consent for the marriage. After attaining
fifteen years, a person becomes mature enough to give consent for his
or her marriage. No consent of the guardian is necessary to validate the
marriage.
2. Soundness of Mind: The parties must be of sound mind at the time of
marriage. A marriage by lunatic contracted during his lunacy and not
during lucid intervals is void. However, a lunatic person may enter into
marriage contract through his guardian.
3. Religion of Parties: There is no bar with regard to sect or sub-sect of a
Muslim male and female and any male or female of any sect of sub-sect
may marry other male or female of other sect or sub-sect, as the case
may be.
But there are different approaches with regard to inter-religion
marriages. Under Hanfi law, marriage of Muslim man with a woman who
believes in a revealed religion i.e. Islam, Christianity, Judaism, is valid but
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he cannot marry a woman who is neither a Muslim or belongs to

revealed religion. Such marriage is irregular which can become valid if
wife converts to Islam. On the other hand, a Muslim woman cannot
marry any man who is not a Muslim and such marriage will be irregular,
which can become valid if husband converts to Islam.
MUTTA MARRIAGE: Muta literally means “enjoyment or use”. Hence Muta
marriage is a marriage for pleasure. It is a temporary marriage for a fixed
period for a certain reward paid to the woman. The specified period may be a
day, a month, a year or a term of years. The woman who participates in Muta
is termed as “Mustajara” which literally means “rented woman”. Muta is
considered a kind of ‘rental’ because in general a man's basic aim in this kind of
marriage is the sexual enjoyment of a woman, and in return for his enjoyment
the woman receives a certain amount of money or property.
Origin of Muta Marriage: In the earlier days of Islam, when the Arabs had to
live away from their homes for a considerably long period either on account of
wars or on trade-journeys, they used to satisfy their sex-desires through
prostitutes. In order to avoid the development of prostitution in the society
and to confer legitimacy upon children of such unions, a temporary marriage
was recognized and permitted by the Prophet (pbuh) for some time. The
institution of Muta was fairly common in Arabia both before and at the time of
the Prophet (pbuh). But later on, when he felt that this concession was being
exploited, He prohibited it absolutely.
Essentials of Muta Marriage: The following are the essentials for a valid Muta
marriage:
1. The form: There must be a proper contract entered into by competent
parties. Since it is a contract, so offer and acceptance is also necessary.
2. The subject: A Shia male may contract Muta marriage with a Muslim,
Christian, Jewish or a fire-worshipping woman but not with the follower
of any other religion. Muta marriage with a Hindu woman is void.
Relations prohibited by affinity cannot contract in Muta marriage. There
is no restriction as to number of Muta marriage.
3. The period: The period for which the Muta is contracted, must be clearly
specified. The specified time may be a day, a month, a year or several
year. A Muta terminates efflux or time or by death. The man may, on the
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expiration of specified term, make a gift and terminate contract, either

with or without wife’s consent.
4. The dower: The dower (consideration) must be specified at the time of
the contract. If it is not specified the agreement is void. When the term
and the dower have been fixed, the contract is valid. If the term is fixed,
but the dower is not specified, the contract is void. But if the dower is
specified and the term is not fixed, the contract, though void as Muta,
may operate as a “Permanent Marriage”. If the marriage is
consummated, the wife is entitled to the entire amount, if not, only to
half the Mehar. In case the wife leaves the husband before the period,
he is entitled to deduct proportionately.
Legal Effects of Muta Marriage: The following are the legal effects of muta
marriage:
1. No mutual rights of inheritance are created, unless otherwise agreed in
the contract.
2. The children born out are legitimate but have no right of inheritance.
3. The wife is not entitled to maintenance under Shia Law because the
word wife does not in reality apply to a woman contract in Muta but she
may claim maintenance under Section 125 CrPC.
4. The husband is not bound to provide residence to the muta wife.
5. If there was no cohabitation, the IDDAT is not necessary. But if the
marriage was consummated, the wife will observe IDDAT incase of death
of her husband for four months and ten days; however, incase of
pregnancy this period is to be extended till delivery. The period of Iddat
in case of termination of muta otherwise than death of the husband is
two courses.
Remedies:
DOWER
Dower is a sum of money or other property which the wife is entitled to
receive from the husband in consideration of marriage. The custom as to
dower originated in ancient times, where the husband made payment to their
wives as means of support in their old age, or when turned out by them. In
Muslim law of marriage, Mehr is essential. It may be money or immoveable
property.
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CLASSIFICATION OF DOWER: Dower may be classified into two kinds as under:-

1. Specified Dower: If the dower amount is stated in the marriage contract,
the dower is called specified dower. Dower is settled by the parties to
the marriage either before the marriage or at the time of marriage or
even after the marriage. The amount of specified dower stipulated in the
contract may be:
a. Minimum: The specified dower amount should not be less than
minimum, i.e., 10 Darham.
b. Fictitious: The dower amount is fixed as per the position of
husband and that whether he will be able to pay or not. It is
always a fantastic amount.
c. Excessive Dower: Both Shia and Sunni law of schools regarded
excessive dower as improper, though not illegal. The only
difference between fictitious and excessive dower is that the
object of former is to guard against capricious exercise of divorce
and not to realize the sum actually, whereas in the latter case the
parties are serious about its realization.
d. Proper Dower: It is the dower of the equals of the wife. It is at the
discretion of the court to which amount it considers proper for the
woman.
Kinds of Specified Dower: Specified Dower can further be divided into
following:
a. Prompt Dower: The Arabic term equivalent of prompt dower is
Mehar-e-Muajjil. It is payable on demand. A wife can refuse to
enter into conjugal domicile of husband until the payment of the
prompt dower.
b. Deferred Dower: The Arabic term equivalent of deferred dower is
Mehar-e-Muwajjal. It is payable on dissolution of marriage either
by death or divorce. The wife is not entitled to demand payment
of deferred dower. Incase of husband’s death or divorce, the
deferred dower become payable and the wife may sue for its
recovery. If wife dies, her heirs may claim the mehar. It is a kind of
penalism, with the object to compel husband to fulfill marriage

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contract in its entirety. However, the widow may relinquish her

dower at the time of her husband’s funeral.
In Shia law, the whole amount will be presumed as prompt
dower. Whereas, in Sunni law, the rule is partly prompt and partly
deferred.
2. Customary Dower: When the amount of dower is not fixed in the
marriage contract or even if the marriage has been contracted on the
condition that she should not claim any dower, the wife is entitled to a
proper dower. The amount of proper dower is to be determined by
taking into consideration the amount of dower settled upon other
female members of the father’s family, such as father’s sister.
Determination of Proper Dower: The proper dower is regulated with
reference to the following factors:-
i. Personal qualification of wife, her age, beauty, fortune,
understanding and virtue;
ii. Social position of her father’s family;
iii. Dower given to her female paternal relations, such as father’s
sister;
iv. Economic condition of her husband;
v. Circumstances of the time.
LEGAL STATUS OF DOWER: Dower is not only the right of wife but it adds to
her prestige and saves her in times of distress, or on divorce or death of
husband. According to Muslim law on the dissolution of marriage, the wife can
claim her dower money. It may be higher, lower and depends upon the source
of income of the husband. It also acts as a check on husband’s right to divorce.
WIDOW’S RIGHT TO RETENTION: Widow’s right to retention refers to hold her
right to mehar until she is fully paid. The leading case is Mina Bibi Vs. Chowdri
Ahmad: “H died leaving his wife W who took possession of H's property. After
a few years, some heirs of H filed a suit for their share in the property. The trial
court decreed possession of property to the heirs, but fixed certain sums to be
paid by them to W towards her mehr. No money was paid. W gifted the
property to K. Held gift was bad. But, W had the right to retain the property
until the mehr amount was fully paid. As she had gifted, she has no possession,
Hence, heirs need not pay”.
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Essentials of Widow’s Right to Retention: The following are the essentials of

widow’s right to retention:
1. Wife should be in possession of property with consent of husband.
2. She may exercise this right against the heirs of the deceased husband,
3. She is entitled to the use or benefits of property like rents etc., when she
is in possession.
4. She has no title to property; hence she cannot transfer or sell.

MODES OF DISSOLUTION OF MARRIAGE

Dissolution of marriage means ‘putting the marriage to an end’. It is a process
by which the material relationship between the husband and the wife is
extinguished. In Muslim law, dissolution of marriage takes place by the
following means:-
1. By Death of either Spouse: A valid marriage is dissolved or terminated at
the death of husband or wife. In case of death of wife, the husband is
free to marry another woman immediately if he so wishes. But in case of
death of husband, the wife has to undergo and observe IDDAT period of
four months and 10 days. If in case she is pregnant, the IDDAT period
shall extend till her delivery and then she is entitled to marry, if she so
wishes.
2. Divorce or by Act of Parties: The parties may choose to end marital
relationship. Such act of the parties is known as ‘divorce’ which literally
means ‘leave’ or ‘reject’. Divorce may further be classified into following
two kinds:
a. Extra-Judicial Divorce: Extra-Judicial divorce is executed outside of
the Court. It may be executed by the following:
i. By Husband: A divorce pronounced by husband is called
Talaq. Any Muslim of sound mind and age of puberty may,
himself or through an agent, divorce his wife by
pronouncing talaq, whenever he so desires without
assigning any cause. Talaq may be effected in oral or
writing. Presence of wife is not necessary at the time of
pronouncement of talaq but it must be communicated to
her for the purpose of dower.

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Modes of Talaq: Following are the different modes by

which talaq is pronounced:
1. Talaq-e-Sunna: Talaq-e-Sunnah is approved form of
dissolution as per the dictates of the Prophet (pbuh).
It has further been divided into following two kinds:
a. Talaq-e-Ahsan: Ahsan means ‘very good’. It is
the most approved form of talaq consisting of a
single pronouncement of the word ‘talaq’ in
the period of purity (tuhr). Tuhr is a period
during which a woman is free from her
menstrual courses. The pronouncement during
the period of tuhr is followed by abstinence
from sexual intercourse during Iddat. It may be
revoked during Iddat and not afterwards. Such
revocation may be expressed or implied.
During such period of Iddat the wife is a
‘woman in probation (Muatteeda).
b. Talaq-e-Hassan: Hassan means ‘Good’. It is less
approved form of talaq consisting of three
successive pronouncements during three
consecutive periods of purity (tuhrs) with
abstinence of sexual intercourse in each tuhr.
The talaq is finalized on third pronouncement
and becomes irrevocable.
2. Talaq-al-Biddat: Talaq-e-Biddat is disapproved form
of talaq among Muslims. It is known as ‘al talaq-al-
bain’, which means irrevocable divorce. It is
disapproved form of talaq consisting of three
pronouncements made in a single period of purity
(tuhr), either in one sentence or in three sentences.
This form of talaq becomes irrevocable with
pronouncement. It is lawful in Hanafi law but
unlawful in Ashari and Fitmid laws.

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Legal Effects of Talaq: Following are the legal effects

when talaq becomes irrevocable:
1) When divorce is irrevocable marital intercourse
becomes unlawful.
2) If the husband or wife dies during Iddat
without revocation, each is entitled to inherit
from the other.
3) If the divorce is irrevocable neither of them can
inherit from the other.
4) Wife is entitled to maintenance during Iddat.

ii. By Wife: The husband can delegate his own right of

pronouncing divorce to his wife, which is called ‘tafwid’. In
this form, an agreement is made either before or after the
marriage where it is provided that the wife would be at
liberty to divorce herself from her husband under certain
specified condition. Firstly such option of wife would not be
absolute and unconditional and secondly conditions would
be reasonable and not opposed to public policy. Talaq-e-
Tafwid is of three kinds:
1. Ikhtiyar: It is an option or choice. The husband may
say to his wife ‘choose’ or a similar word in
connection of talaq, giving her liberty to get rid of
matrimonial life. Delegation of such power is implied.
This delegation of power of divorce to wife may be
for a day, or for a certain period of time or for all the
times to come. This delegation is subject to some
conditions. The wife may divorce herself saying ‘I am
divorced’ or ‘I divorce myself’.
2. Amr Bi-yad: The husband may say to his wife ‘the
affair is in your hands or you are at liberty’. Incase
husband says ‘divorce yourself thrice or twice’ and
she divorced only once, divorce would take effect
because it is part of the delegation. Here expression is
implied.
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3. Mashiat: It means ‘at will’ or ‘pleasure’. In this form

the delegation of right to talaq is in express form.
While delegating the power to wife, the husband may
say ‘give yourself talaq when you please’.
iii. By Mutual Consent: Since marriage is a civil contract, so
marriage may be dissolved by an agreement between the
parties. This kind of divorce is further classified into
following two kinds:
1. Khulla: The word Khulla literally means ‘to take off’. It
means ‘getting rid of the ownership by marriage’. A
khulla is a divorce whereby wife offers, husband
accepts and with an iwad (consideration) passing
from wife to the husband for redemption. Although it
is a divorce which takes place at the instance of wife,
but it is effected with mutual consent of the parties.
It becomes irrevocable as soon as accepted by the
husband.
2. Mubaraat: Mubaraat literally means ‘release’ which
also puts an end to matrimonial rights. It is the actual
divorce by mutual consent, whereby parties desire to
have a separation. Offer may proceed from either of
the parties and accepted by the other party. The
divorce by Mubaraat effects as soon as other party
accepts the offer.

b. Judicial Divorce: Judicial divorce takes place by following means:

i. Ila: Ila means a ‘vow’ or an ‘oath’. It is a kind of constructive
divorce whereby husband makes an oath to abstain from
sexual intercourse with wife for more than four months,
upon which wife acquires a right to get judicial divorce. The
vow in itself is not pronouncement of talaq by husband. The
husband may revoke the oath by resumption of marital life.
ii. Zihar: It is a kind of divorce whereby husband compares his
wife with a female within the prohibited degree of
relationship saying ‘to me the wife is like my mother or
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sister etc’, the wife has a right to refuse herself to him until
he has performed penance. If such abstinence continues for
the period of four months, the wife acquires the right to
pray Court to direct the husband either to perform penance
or otherwise the Court allows divorce.
iii. Lian or Mutual Imprecation: Lian means imprecation. It is a
kind of divorce on the ground of adultery. If a man accused
his wife of adultery, the wife may request her husband to
withdraw his statement. In case of refusal by the husband,
the wife may approach the Court where husband is required
to substantiate his allegation. Incase of failure of husband,
the wife acquired the right to get dissolve marriage through
judicial decree.
iv. Faskh and Tafrid: The Arabic term Faskh means
‘annulment’, ‘cancellation’ or ‘abrogation’. It refers to
dissolution or recession of the contract of marriage by
judicial decree. In other words, it refers to the power of
Court to annul a marriage on the application of the
wife.According to section 2 of Muslim Marriage Act, 1939
various grounds of dissolution of marriage by woman are as
under:-
1. Absence of Husband: If the husband’s whereabouts
are unknown for four years or more, the wife can go
for divorce. The decree comes into force after six
months. During this period, if the husband appears
and prepares to join matrimonial relations, the Court
may set aside the decree.
2. Failure to Provide Maintenance: If the husband fails
or neglects to provide maintenance to his wife for
two years or more.
3. Imprisonment of Husband: If the husband has been
sentenced to imprisonment for 7 years or more.

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4. Failure to Perform Mutual Obligation: If the husband

fails to perform mutual obligation for a period for
three years without reasonable cause.
5. Impotency of Husband: Impotency means inability to
have sexual intercourse. It is a ground for divorce if
the husband was impotent at the time of marriage
and continues to be so. In such a case, on the
application of husband require him to satisfy the
court within a period of one year from such decree
that he has ceased to be impotent, in case he
succeeds no decree on such ground can be passed
otherwise the decree comes into effect soon after the
elapse of said period.
6. Insanity of the Husband: Insanity of husband for a
period of two years or his suffrage from leprosy or
virulent venereal disease is a good ground of divorce
by wife.
7. Repudiation of marriage: It means to avoid marriage.
The wife may repudiate her marriage before attaining
the age of 18 years if she has been given in marriage
by her father or guardian before she attained the age
of sixteen years. This ground is effective only if the
marriage has not been consummated.
8. Cruelty of the Husband: The wife may seek divorce if
the husband treats her with cruelty, which includes
assault and physical ill-treatment, associating her
with women of evil repute, forcing her to lead
immoral life, deposing her property or prevent her
exercising her legal rights over it, obstructing her to
observe her religion, or treating her inequitably
among other wives.
9. Any other Ground: In addition to these grounds, a
marriage can be dissolved on any grounds as
recognized under Muslim law.

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IDDAT
The Arabic term Iddat means ‘period of waiting’. It is a period observed by
Muslim woman after dissolution of her marriage either by divorce or death of
husband. During this period, a Muslim woman is prohibited to contract
another marriage contract.
OBJECT OF IDDAT: The reason behind observing Iddat period is to ascertain
whether woman is pregnant or not, as to acknowledge the certainty of
paternity for the prevention of confusion regarding percentage in inheritance.
INCIDENTS OF IDDAT: Iddat period varies in different cases:
1. Iddat of Widow: A widow woman whose husband died, observes iddat
for a period of four months and ten days after the death of her husband.
2. Iddat of Divorced: A divorced woman observes iddat for three courses if
subject to menstruation, otherwise three lunar months. The period of
Iddat when husband dies after the Talaq would commence from his
death.
3. Iddat of Pregnant Woman: If the widow or divorcee is pregnant at the
time of death of her husband or at the time of divorce, as the case may
be, the period of Iddat would extend until she delivers.
4. Iddat for Invalid Marriage: If the marriage is invalid and the parties have
separated before actual consummation, there is no Iddat. If
consummation took place, the wife is bound to observe Iddat.
PLACE TO OBSERVE IDDAT: Different incidents regarding place to observe
iddat are as under:-
1. It is compulsory to observe Iddat period in the same house where the
woman was residing permanently at the time of dissolution of her
marriage.
2. If a woman receives the news of her husband’s demise while she was on
journey, she is supposed to immediately return to the place of her
residence to observe her Iddat provided that her home is within the
reach no beyond, else she could return back upon reaching the
destination.
3. A woman who was sent to her parental home should return to the home
of her husband, upon her husband’s demise in order to complete her

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Iddat there because according to the rule, Iddat is completed in the

house which is the permanent residence of a wife. He parent’s house is
not considered as permanent residence.

MAINTENANCE
The Arabic term for maintenance is ‘Nafqah’, which means what a person
spends over his family. However, in legal sense maintenance signifies and
includes: food, clothing and lodging.
LIABILITY FOR MAINTENANCE: A person becomes liable for maintenance on
account of three causes, namely: from being a wife, from being a relative, and
from being a slave or servant.
REQUISITES FOR A CLAIM OF MAINTENANCE: In order to claim maintenance,
there is a general rule that only such person is entitled to maintenance:
1. Who has no property of his own;
2. Who is related within prohibited degrees to the person from whom his
claim is in easy circumstances.
Exceptions: There are some exceptions to this general rule as under:-
1. It does not apply when the claimant is wife;
2. It does not apply when the claimants are minor sons, unmarried
daughters, parents and grandparents.
PERSONS ENTITLED TO MAINTENANCE: A Muslim is under obligation to
maintain his descendents, ascendants, his collaterals and his wife, as under:-
1. Descendants: It is the absolute liability of father to maintain his children
and is not affected by his indigence, so long as he can earn. He is bound
to maintain them even if they are in custody of their mother. A father is
liable to provide maintenance to the following:
a. Minor children of either sex;
b. Unmarried daughter;
c. Married daughter if she is poor;
d. Adult son if he is necessitous (indigent).
2. Ascendants: Since parents are under an obligation to maintain their
children, similarly children are liable to provide maintenance to their

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parents. Every child, either male or female, adult or minor, who has
sufficient property is responsible to supply maintenance to his parents.
Under Sunni Law, whether the parents are capable of earning or
not make no difference, but under Shia law the children are relieved of
their duty if the parents are capable of earning.
3. His Collaterals: A Muslim is under an obligation to maintain his
collaterals (distant relations) only in the following cases:
a. When he himself is in easy circumstances;
b. The relation claiming to be maintained has no other means of
maintenance.
4. His Wife: A Muslim husband is bound to maintain his wife. The
obligation varied under different circumstances as under:
a. Maintenance during the Subsistence of Marriage: A Muslim
husband is bound to maintain his wife. Her right to maintenance is
absolute and remains unprejudiced even if she has income of her
own. A husband is bound to maintain his wife if she fulfills the
following conditions:
i. She attains puberty, which is an age at which she can render
to the husband his conjugal rights;
ii. She places and offers to place herself under her husband’s
power, so as to allow free access to her at all lawful times
and obeys all his lawful commands.
She is not entitled to maintenance under the following
circumstances:
i. If she abandons the conjugal domicile without any valid
cause;
ii. If she refuses access to her husband;
iii. If she is disobedient to his reasonable commands;
iv. If she refuses to live with her husband without any lawful
excuse;
v. If she has been imprisoned;
vi. If she has eloped with somebody;
vii. If she is a minor on which account marriage cannot be
consummated;
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viii. If she deserts her husband voluntarily and does not perform
her matrimonial duties;
ix. If she makes an agreement of desertion on the second
marriage of husband.
b. Maintenance of a Divorced Widow: A divorced woman is entitled
to maintenance during her period of Iddat and not afterwards.
However, in the case of Mohammad Ahmad Khan v/s Shah Bano
Begum,1985 the Court held that if the divorced wife is unable to
maintain herself after the period of Iddat, she is entitled to take
recourse to section 125 Cr.P.C.
c. Maintenance of Widow: The right to maintenance ceases on the
death of husband. However, wife is entitled to maintenance from
estate of husband during Iddat of four months and ten days, or if
she is pregnant at the time of death of husband until she delivers.
AMOUNT OF MAINTENANCE: The amount of maintenance which a husband is
liable to provide during the course of valid marriage varies in different schools,
such as:
Hanfi: Social status of both husband and wife is taken into consideration while
deciding the matter.
Shafi: Economic conditions of only husband are important and status of wife is
no more important.
Shia:Status or economic conditions are not important but the necessities of
wife such as food, clothes and accommodation are determinant factors in
settlement of amount of maintenance.
REMEDIES AVAILABLE TO WIFE: Following remedies are available to wife
where husband defaults in payment of the maintenance:
1. Wife may bring a suit for maintenance in Court;
2. She can claim divorce in Court on the grounds of non-maintenance;
3. Court may punish husband upon non-compliance of his obligations
toward the payment of maintenance.

PARENTAGE, LEGITIMACY AND ACKNOWLEDGMENT

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Parentage is the legal relation of parents to their children. It includes paternity

and maternity. These legal relations give rise to certain rights and liabilities as
regards to inheritance, guardianship and maintenance.
Maternity is a legal relation between mother and the child, which determines
the succession or inheritance from mother’s side. Maternity of a child is
established in the woman who gives birth to the child, irrespective of her
connection with the begetter. In other words, for the establishment of
maternity it is immaterial whether the child is an offspring of marriage or zina,
but it is established in the woman who gives birth to the child.
Paternity is the legal relation between father and the child, which determines
the succession or inheritance from father’s side. Paternity of a child can only
be established by marriage between its parents. Such a marriage may be either
valid (sahih), or irregular (invalid) but it must not be void (batil). The paternity
is also established is the child is born after 280 days of its dissolution if mother
remains unmarried. The child must not be an offspring of zina.
LEGITIMACY: Legitimacy is a name of relationship with child, which emerges in
result of legal contract of marriage between the adult male and female. The
legitimacy and parentage under Muslim law are closely related to marriage.
Muslim law insists on the existence of a valid marriage between the begetter
and the bearer of the child at the time of its conception. A child born in lawful
wedlock is said to be a legitimate child of the spouses. Hence, under Muslim
law, direct or indirect marriage between the begetter and the bearer of a child
can establish the legitimacy of children. If there is no lawful and direct
marriage, then an indirect marriage can be established if:
a. there is cohabitation of the father and the mother; or
b. The father acknowledges the mother as his wife;
c. The father acknowledges the child as his own.
PRESUMPTIONS OF LEGITIMACY:There are certain presumptions about
legitimacy and parentage under Muslim law:
1. A child born during continuance of valid marriage between his mother
and any man is legitimate.
2. A child born within six months of the marriage is illegitimate unless the
father acknowledges it.

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3. The child born after the expiration of six lunar months from the date of
marriage is legitimate, unless father disclaims the child by lian;
4. The child born within two years after dissolution of marriage, if mother
remained unmarried unless disclaimed by lian. This rule is according to
Hanafi law. According to Shafi, the period is 4 years. According to the
Shia law, it is 10 months.
ACKNOWLEDGMENT: Acknowledgment is a declaration ascertaining the
paternity where though the marriage exists but the child's paternity is doubtful
because of absence of direct proof of marriage. Where the paternity of a child
cannot be proved by establishing a marriage between its parents at the time of
its conception or birth, such marriage and legitimate descent may be
established by acknowledgement. Acknowledgment is either expressed or
implied. It may be presumed from the fact that one person has habitually and
openly treated another as his legitimate child, son or a daughter.
Acknowledgment once made cannot be revoked.
CONDITIONS OF ACKNOWLEDGEMENT: For a valid acknowledgment, following
conditions must be fulfilled:
1. Intention to Confer Legitimacy: A person is not only required to
acknowledge a child as his son, but as a legitimate son. Mere
casual acknowledgement, not intended to confer the status of
legitimacy, will not be a legal acknowledgement.
2. Age of the Acknowledger: The acknowledger must be atleast
twelve and a half years older than the person acknowledged, as
they may be father and son.
3. Child of Others: The child so acknowledged must not be known to
be the child of another person.
4. Person Acknowledged Should Confirm: The acknowledged child
must believe to be the acknowledger's child and the child must
verify or atleast must not repudiate the acknowledgement.
5. Legal Marriage Possible between Parents of the Child
Acknowledged: The parents of the child acknowledged must not
be in any prohibited relationship either by consanguinity, affinity
or fosteration etc. The marriage should be possible at the time
when the child was begotten.
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6. Competency of the Acknowledger: The acknowledger must

possess the legal capacity for entering into a valid contract, that is,
he should be adult and sane.
7. Offspring of Zina: The child acknowledged must not be the result
of zina, that is, adultery, incest or fornication. He must be the
result of lawful wedlock and must not born out of zina:
LEGAL EFFECTS OF ACKNOWLEDGEMENT: Following are the legal effects of
acknowledgment:-
1. The child becomes the legitimate issue and its paternity is established.
2. The child is entitled to inherit the properties of the acknowledger, its
mother as well as of other relatives.
3. It also establishes a lawful marriage between the child's mother and the
acknowledger. The child's mother gets the status of the wife of the
acknowledger and she is also entitled to inherit the properties of her
husband (acknowledger).

GUARDIANSHIP (WILAYAT) OF PERSON AND PROPERTY

The term Guardian denotes to a person having the care of the person of a
minor or of his property, or of his person and property. Generally, a person for
whom or whose property a guardian is appointed is known as ward, who is
necessarily under 15 years of age or lunatic. The object of guardianship is the
care and welfare of the ward.
APPOINTMENT OF GUARDIAN: According to section 7 of Guardian and Wards
Act, 1890, where the Court is satisfied that it is for the welfare of a minor that
an order should be made for appointing a guardian of his person or property or
both as declaring a person to be such guardian, the Court may make an order
accordingly.
PERSONSENTITLED TO BE THE GUARDIAN: According to section 8 of Guardian
and Wards Act, 1890, the Court can make order on the application of any of
the following persons:
1. Person who desires to be appointed or a person claiming to be the
guardian of the minor;
2. Any relative or friend of the minor;

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3. The collector of the district or other local area within which the minor
ordinarily resides or which he has property;
4. The collector having authority with respect to the class to which the
minor belongs.
Interlocutory order for production of minor and interim protection of person
and property: According to section 12 of Guardian and Wards Act, 1890 the
Court may make an order to a person having custody of minor to produce the
minor before the person as it appoints, or may make such an order for
temporary custody or protection of person or property. In case of female
minor, the Court shall require her production in accordance with customs and
manners of the country. However, the Court cannot place a female minor in
the temporary custody of a person claiming to be her guardian on the ground
of being her husband unless she is already in his custody with the consent of
her parents. Moreover, no any person having temporary custody and
protection of minor’s property can dispossess any person in possession of any
property except by due course of law.
TITLE OF GUARDIAN TO CUSTODY OF WARD: According to section 25 of
Guardian and Wards Act 1890 secures the title of guardians. If a ward leaves or
is removed from the custody of a guardian of his person, in such a case the
Court considering the welfare of the minor may make an order for the return
of minor to the custody of his guarding and for the enforcement of such order
the ward may be arrested and delivered into the custody of guardian.
KINDS OF GUARDIANSHIP: Under Islamic law of Guardianship, the following
are the 4 kinds of guardian:
1. Natural or Legal Guardian: Natural or legal guardian is the one that
encompasses a right to regulate and supervise the activities of a minor.
Under Muslim law, father is recognized as the natural guardian of a
minor. The father’s right to act as guardian of his child is independent
and after father such right is vested in grandfather. The father or
grandfather may also appoint the executor to act as a legal guardian on
his behalf. Thus, the natural or legal guardian of a minor in order of
priority are under:-
a. Father;
b. Executor of father;
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c. Paternal grandfather;
d. Executor of paternal grandfather.
Under Muslim law, there is no other natural or legal guardian except
abovementioned. According to Shia law, in the absence of father only
grandfather would act as a legal guardian. In the absence of paternal
grandfather, the father’s executor has no right to act as a legal guardian of
child.
2. Testamentary Guardian: A testamentary guardian is one which is
appointed as guardian of a minor beneath a will. The father or, in his
absence, paternal grandfather has the right to appoint a testamentary
guardian. A non-Muslim and feminine may also be appointed as a
testamentary guardian. However, according to Shia law a non-Muslim
cannot be appointed as a testamentary guardian.
3. Guardian Appointed by Court or Statutory Guardian: In the absence of
a natural and legal guardian, the Court is authorized to appoint a
guardian of minor’s person or property or for both. Such appointment of
guardian is regularized under Guardian and Wards Act, 1890. Such
guardian, as appointed under statute, is also known as statutory
guardian. While appointing a guardian the Court takes into consideration
welfare of the minor.
4. De-facto Guardian: A de-facto guardian is a person who is neither a legal
guardian nor a testamentary guardian or statutory guardian, but has
voluntarily placed himself in the custody and care of a minor. It is an
unauthorized person who, as a matter of fact, has custody of the person
or property of minor. A de-facto guardian is a mere custodian of the
minor’s person and property but has no right over either. He has only
responsibilities towards the minor’s person or property or both, but no
rights in respect thereof.
MOTHER AS GUARDIAN: The right of mother as to guardianship is known as
‘hidana’. There are several grounds entitling mother to act as guardian as
under:-
1. According to Hanafi law, mother is entitled to the custody of her son till
the age of 07 years and of her daughter till age of puberty.

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2. In Ithna Ashari law, mother is entitled to the custody of her son till the
age of 02 years and of her daughter till the age of 07 years.
3. The mother is considered as the best entitled of her infant child during
marriage and after separation from her husband, unless she becomes an
apostate, or wicked, or unworthy to be trusted.
4. Where the father and mother are living together, their child must stay
with them and the husband cannot take the child away with him. Where
the child is in the custody of one of its parents, the other is not to be
prevented from seeing and visiting it. The father’s supervision over the
child continues in spite of the child being under the care of female
relations, for it is the father who has to maintain the child.
Disqualification of Mother or Female Guardian: Following are the
circumstances which render a mother or female guardian as disqualified for
guardianship:
1. If she marries to a person not related to the child within the prohibited
degree.
2. If she commits immorality, adultery, or neglects to take proper care of
the child.
3. A mother does not lose guardianship of her infant children merely
because she is no longer the wife of her former husband unless she
marries another person.
In the absence of Mother: In the absence of mother or female relations,
following persons are entitled are entitled to the custody of a Muslim child in
order of priority:
1. The father;
2. The paternal grandfather;
3. Consanguine brother and other paternal relations.
GIFTS
The Arabic term for gift is ‘Hiba’. It is “a transfer of property, made
immediately, and without any exchange, by one person to another, and
accepted by or on behalf of the latter”. A gift is generally a transfer of
ownership of a property by a living person to another living person without any

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consideration. A Muslim may dispose of his whole property through hiba. Gift
is a wider term while the object of hiba is only to earn love and affection.
FORM OF GIFT: A gift of moveable and immoveable property may be either in
writing or oral.
Essentials of a Gift: The essential elements of gift are:
1. Parties: There must be a person making gift known as ‘donor’ and the
person accepting gift or to whom a gift is made is known as ‘donee’.
2. Declaration of Gift by the Donor: There should be an unambiguous and
clear declaration by the donor to make a gift. Such declaration may be
either oral or written. A declaration of gift in ambiguous words is void.
3. Absence of Consideration: A Hiba is a transfer of property without any
consideration. If anything of any value is taken by the donor in return or
exchange, such a transfer of property is not a gift.
4. The Subject Matter: The subject matter of gift must be certain existing
moveable or immoveable property. It may be land, goods, or actionable
claim.
5. Acceptance of the gift: There should be an acceptance of gift, express or
implied, by or on behalf of the done.
6. Delivery of possession of the subject of Gift: There should be delivery of
possession of the subject of the gift by the donor to the donee. Such
transfer of possession, either actual or constructive, is necessary to
complete a gift.
COMPETENCY TO MAKE A HIBA: Every Muslim male or female, married or
unmarried, who has attained the age of majority and has a sound mind is a
competent donor. He must not be insolvent and should necessarily be the
owner of property subject of hiba.
COMPETENCY OF DONEE: The person in whose favour the gift is made is
known as the donee. For being a competent donee, the only essential
requirement is that a donee must be any person in existence at the time of the
making of a gift. He may be a person of any religion, sex, or state of mind.
Child in Womb: A child in the mother’s womb is a competent donee
provided that it is in mother’s womb or its conception has taken place at the
time of declaration of a gift. If he is born alive within six months from the date

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on which the gift was made the gift is valid. But if after the declaration of the
gift the child dies in the womb or an abortion takes place, the gift becomes
void.
Juristic Person: A juristic persons includes a firm, corporation, company,
association, union, university or any other organization. A juristic persons is
presumed to be an adult of sound mind like a human being in the eyes of aw
and hence, a competent donee in whose favour a gift can be made. A gift in
favour of a Masjid, temple or a school is valid.
Two or More Donees: A gift may be made to an individual or a class of
persons. In case the donee is a group of people, all the people in that particular
group must be ascertainable.
KINDS OF GIFT OR HIBA: It has four Kinds as under:-
1. Hiba-bil-iwaz: Hiba means ‘gift’ and Iwaz means ‘consideration’. It
means a gift for which consideration is already received. Hiba bil-iwaz is
a transaction consisting of two separate and distinct parts. Hiba is the
original gift by the donor to the donee, while Iwaz is the return gift by
the donee to the donor. In this case, the gift and return are independent
transactions; therefore, when both i.e., hiba (gift) and iwaz (return or
consideration) is completed, the transaction is called Hiba-bil-iwaz.
It is a gift for consideration and resembles to sale. The
consideration may be adequate or not. Thus, registration of gift is
necessary and the delivery of possession is not essential and prohibition
of Musha does not exist.
For example, A makes a gift of a cow to B and later B makes a gift of a
house to A. If B says that the house was given to him by A by way of
return of exchange, then both are irrevocable.
2. Hiba-bi-shartul-iwaz: Hiba means ‘gift’ shart means ‘stipulation’ and
iwaz means ‘consideration’. Thus it is a gift made with stipulation for a
return. Unlike Hiba-bil-iwaz, the payment of consideration is postponed.
Since the payment of consideration is not immediate the delivery of
possession is essential and the gift is revocable until the iwaz is paid. On
the payment of iwaz by the donee, the gift becomes irrevocable. When
the consideration is paid, it assumes the character of a sale and is

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subject to preemption (Shufa). As in sale, either party can return the

subject of the sale in case of a defect. It is also called a contingent gift,
which becomes valid upon happening of certain thing.
3. Areeat: Areeat is the grant of license to take and enjoy the usufruct of
the property or thing, without any consideration. In areeat there is no
transfer of the property but only the temporary usufruct or use or
enjoyment of the property is given. There is no iwaz (return gift). It may
be revoked by the donor at any time. For instance, areeat of rent of a
building.
4. Sadqah: It is a gift made with object of acquiring religious merit or
spiritual benefit. Delivery of possession is essential. It is irrevocable and
the property may be used up by the donee.
GIFT TO MINOR: A gift made in favour of a minor or insane person is valid.
They may not have the capacity to understand the legal consequences but
they are persons in existence and thus, are competent donee. But such gifts
are valid only if accepted by the guardian of the minor or insane donee. A
gift is void without the acceptance by the guardian. For the purpose of
acceptance of the gift, the guardian of a minor or insane donee is as under
in the order of priority:
1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor
Therefore, in the presence of the father, the paternal grandfather is not
allowed to accept the gift on behalf of the minor or insane and so on. If all the
above-mentioned guardians are not present, then the gift is accepted by the
‘guardian of the property of minor or insane’. If a guardian himself makes a gift
in favour of his ward, he will declare the gift acting as a donor and has the
capacity to accept the gift as the guardian of the minor or insane.
It is to be noted here that the mother is not recognized as the guardian
of the property of her minor child. Hence, she is not entitled to accept the gift
on behalf of her minor child.

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Where a gift is made to a minor or lunatic, the gift is complete only if the
guardian has taken the actual or constructive delivery of possession of the
property on behalf of such persons. If the possession is taken by any other
person who is neither a legal guardian nor a de facto guardian, the gift
becomes ineffective and void.
DOCTRINE OF MUSHA: The Arabic term Musha means ‘confusion’. Musha
denotes to an undivided share in joint or co-owned property. If one of the
several owners of such property makes a gift of his share without partition,
there may arise confusion in regard to what part of the property is to be given
to the donee. To circumvent such confusion, the Hanafi Jurists have developed
the doctrine of Mushaa. Gift of a share in co-owned property is invalid without
the partition and actual delivery of that part of the property to the donee. If
the co-owned property is not capable of partition, the doctrine of Mushaa is
impertinent. A Mushaa or undivided property is of two kinds as under:
1. Mushaa Indivisible: Mushaa indivisible is the property in which the
partition is impossible. A gift of an undivided share (Mushaa) in a
property which is incapable of being divided or where the property can
be used for better advantage in an undivided condition, is valid. The
doctrine of Mushaa is not applicable where the property constituting the
subject-matter of the gift is indivisible. All the schools of Islamic law
accept the view that a gift of Mushaa indivisible is valid without partition
and the actual delivery of possession.
For example, a staircase, a cinema hall, a bathing ghat etc. comprises
indivisible Mushaa properties. If these kinds of properties are divided,
then their original identity will be lost.
2. Mushaa Divisible: Mushaa divisible is the property which is capable of
division without affecting its value or character. If the subject-matter of
a Hiba is Mushaa divisible, the doctrine of Mushaa is applied and the gift
is valid only if the specific share which has been gifted, is separated by
the donor and is actually given to the donee. However, a gift without
partition and the actual delivery of possession is merely irregular and
not void ab initio.

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For example, a co-owned piece of land or a garden or a house is a

Mushaa divisible property which can be divided by a visible mark of
identification without changing its original character.
Shia law does not recognize the principle of Mushaa. According to Shia
law, a gift of a share of divisible joint property is valid even if it is made
without partition.
REVOCATION OF GIFT: It is a well established rule of the Islamic law that all
voluntary transactions, including Hiba, are revocable. Different schools have
different views with regard to revocation of hiba. The Muslim law-givers
classified the Hiba from the point of view of revocability under the following
categories:
1. Before delivery of Possession: All gifts are revocable before the delivery
of possession is given to the donee because no hiba is complete till the
delivery of the possession is made. Therefore, in all those cases where
possession has not been given to the donee, the gift is incomplete and
whether it is revoked or not, it will not be valid till the delivery of
possession is made to the donee. Such revocation implies that the donor
has changed its mind and not willing to complete the gift by delivery of
possession.
2. After delivery of Possession: In a situation where delivery of possession
has been made by the donor to the donee, a hiba can be revoked in
either following ways:
a. With the consent of the donee.
b. By a decree of the Court.
However, a gift after delivery of possession cannot be revoked in the
following cases:
1. When the gift is made by a husband to his wife or by a wife to her
husband;
2. When the donee is related to the donor within the prohibited degree;
3. When the donee is dead;
4. When the thing given has passed out of the donee’s possession by
sale, gift or otherwise;
5. When the thing given is lost of destroyed;

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6. When the thing given has increased in value, whatever be the cause
of increase;
7. When the thing given is so changed that it cannot be identified, as
when wheat is converted into flour by grinding;
8. When the donor has received something in exchange (iwaz) for the
gift.
MARZUL MAUT- DEATH-BED TRANSACTIONS: A person suffering from a illness
(marz) under the apprehension of death (maut) is said to be suffering from
Marz-ul-Maut or death-illness. Mulls defined it as ‘a malady including an
apprehension of death in the person suffering from it and which eventually
results in his death’.
A person can make a will either during his lifetime or at the time of his
death. A gift made during marz-ul-maut is of amphibious nature. It not exactly
a gift nor a legacy. In Muslim law the rules are to be taken from the law of gifts
and law of wills. A gift made by a Muslim during Marz-ul-Maut or death illness
cannot taken effect beyond 1/3rd of his property after payment of funeral
expenses, unless the heirs give their consent. Such a gift if made in favour of
any heir cannot take effect unless other heirs give their consent thereto. Such
a gift takes place only when the donor dies. If the donor lives after making the
gift, the question may be whether it is an ordinary valid gift or not.
Essentials of Marz-ul-Maut: The essentials of gift made under Marz-ul-Maut
are as under:-
1. Offer by the donor;
2. Acceptance by the donee;
3. Immediate delivery of possession;
4. No disposal of property more than 1/3;
5. No gift in favour of heir.
Legal effects of Marz-ul-Maut

WAKFS
Wakf literally means ‘detention’, ‘stoppage’ or ‘tying up’ of a property. Wakf
means the permanent dedication by a person professing Islam of any
moveable and immovable property for any purpose recognized by the Muslim

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Law as pious, religious or charitable. In other words, when a Muslim person

who is working for a charitable purpose under religious faith and sentiments
and for the benefit and upliftment of the society, has donated his property in
the name of Allah is called wakf. The ownership of dedicated property is taken
away from the person making wakf and transferred and detained by God. A
wakf must be permanent and the property dedicated becomes non-
transferable.
WAKIF: The person constituting wakf of his own property is known as ‘founder
of wakf’ or ‘wakif’. Any Muslim of sound mind and having age of majority is
capable of creating a wakf.
MUTAWALLI: The manager or superintendent of wakf is known as ‘Mutawalli’.
He is neither owner nor even a trustee of property, thus cannot sell or
mortgage wakf property. The only job of mutawalli is to see that the usufructs
of the property are being utilized for valid purpose as desired by wakif.
Qualification of Mutawalli: Any Muslim of sound mind and age of majority and
capable of performing the functions to be discharged under a particular wakf,
can be appointed as Mutawalli of the wakf.
Who can Appoint Mutawalli? Generally, the wakif appoints Mutawalli. He can
also appoint himself as Mutawalli. However, in case the wakf is created
without the appointment of a Mutawalli then the following persons are eligible
to appoint the Mutawalli:
1. The executor of the founder;
2. The mutawalli on his death-bed;
3. The Court, which shall be guided by the following rules:
a. It should not disregard the directions of the settler;
b. Preference should be given to the family member of the wakif
instead of an utter stranger.
POWERS AND DUTIES OF MUTAWALLI: Being the manager of the wakf, he is in
charge of the usufruct of the property. He has the following rights:
1. He has the power to use usufructs as he may deem fit in the best
interest of the purpose of wakf. He can take all reasonable actions in
good faith to ensure that the intended beneficiaries are benefited by the
wakf. As he is not the owner, therefore he cannot sell the property.

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However, the wakif may give such rights to mutawalli by explicitly

mentioning it in wakfnama.
2. He can get a right to sell property or borrow money by taking permission
from the Court upon appropriate grounds or if there is an urgent
necessity.
3. He is competent to file suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three
years and for non-agricultural purpose for less than one year. However,
he can exceed the term by permission of the Court.
5. He is entitled to remuneration as provided by the wakif. If the
remuneration is too less, he can apply to the Court to get an increase.
ESSENTIALS OF WAKF: The essential elements for a valid wakf are as under:-
1. Permanent Dedication: The dedication of wakf property must be
permanent and the wakif himself must devote such property and give it
for charitable, religious or pious purposes. A wakf for a limited period is
invalid.
2. Competency of Wakif: A person making wakf is known as Wakif. He
must be a Muslim of age of majority and sound mind. If a person makes
wakf of his inheritance, the wakf is held partially valid.
3. Wakif must be the Owner: A person making wakf must be the owner of
property subject to wakf. Even if a property is subjected to lease or
mortgage, a valid wakf may be made.
4. Object of Wakf: The object of wakf must be recognized by Muslim law as
religious, pious or charitable.
5. Unconditional: The wakf must not be subject to any conditions. It must
be unconditional. If there is a wakffor making a wakf, such a wakf will be
invalid.
MODES OF CREATING WAKF: Wakf can be created in the following ways:
1. By an act of Living Person (inter vivos): This type of wakf is created
between living voices when a person creates a wakf during his life time
and takes effect immediately. This kind of wakf can also be created while
the person is on death bed (marz-ul-maut) but in this case he cannot
dedicate more that 1/3rd of his property for wakf.

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2. By Will: A person can also create wakf by will. It is opposite of wakf by

inter vivos as it only takes effect after the death of wakif. Such a wakf,
being created through will, cannot operate more than 1/3rd of the net
assets, without the consent of the heirs of property. It is also known as
‘testamentary wakf’.
3. By Usage: When a property has been in use for the charitable or
religious purpose for time immemorial, it is deemed to belong to wakf.
No declaration is necessary and wakf is inferred.
KINDS OF WAKF: Generally, there are three kinds of wakf as under:-
1. According to people: According to people for whom a wakf is created,
there are following two kinds:
a. Public Wakf: It is created for the public, religious or charitable
purposes.
b. Private Wakf: This kind of wakf is created for settler’s own family
and his descendants. It is also known as wakful Aulad.
2. According to Purpose: According to the purpose of wakf, there are
following kinds:
a. Wakf Ahli: This kind of wakf is created to cater to the needs of the
wakif’s family and their descendants. However, these beneficiaries
cannot sell or dispose of the property subject-matter of wakf.
b. Wakf Khayri: This kind of wakf is created for charitable and
philanthropic purposes. The beneficiaries in such kind of wakf may
include the poor and the needy. Wakf Khayri is typically used to
finance Masjids, shelters, schools and universities. This is meant to
help financially challenged individuals and communities.
c. Wakf-al-Sabil: The beneficiaries of this kind of wakf are the
general public. Although similar to wakf khayri but this kind of
wakf is usually used to establish and construct the public utility
including Masjids, graveyards, schools, power plants, water
supplies, etc.
d. Wakf al-awaridh: In this kind of wakf, the yield is held in reserve
so that it can be used in case of emergency or any unexpected
event that negatively affects the livelihood and well being of
people of a particular community. For example, a wakf may be

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assigned to the satisfaction of specific needs such as medication

for sick people who cannot afford medicines. It may also be used
for finance maintenance of the utilities of a village or
neighbourhood.
3. According to Output Nature: According to the purpose of wakf, there
are following kinds:
a. Wakf Istithmar: This kind of wakf is created for using the assets
for investment purposes. The assets are managed in such a way so
that the income is applied for constructing and reconstructing
wakf properties.
b. Wakf Mubashar: This kind of wakf is is created for using the
assets to generate services which would be of some benefit to
beneficiaries. Examples of such assets include schools, utilities,
etc.
COMPLETION OF A WAKF: According to Abu Yousuf, a dedication by way of
wakf is complete by the mere declaration. Neither delivery of possession nor
appointment of Mutawalli is essential. According to Imam Muhammad & Ithna
Ashari Law, a wakf is not complete unless there is a declaration coupled with
appointment of Mutwalli and delivery of possession.
OBJECTIVES OF WAKF: The purpose for which a wakf may be created must be
recognized by the Islamic law as religious, pious or charitable. The following
are the valid objects of a wakf:
1. Masjid and provisions for Imamas to conduct worship;
2. Celebrating the birth of Ali Murtaza;
3. Repairs of Imambaras;
4. Maintenance of khankahs;
5. Reading the Quran in public places and also at private houses;
6. Maintenance of poor relations and dependant;
7. Payment of money for Fakirs;
8. Grant of an Eidgah;
9. Grant to the college and provisions for professors to teach in colleges;
10. Aqueducts, bridges and caravanserais;
11. Distribution of alms to poor persons, and assistance to the poor to
enable them to perform pilgrimage to Makkah;
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12. Keeping tazias in the month of Muharram, and provisions for camerls
and Duldul for religious processions during Muharram;
13. Celebrating death anniversary of the settler and of the family members;
14. Performance of ceremonies known as Kadam Sharif;
15. The construction of a cobat or free boarding house for pilgrims at
Makkah;
16. Performing the annual fateha of the members of his family;
17. A Durgah or shrine of a Pir, which has long been held in veneration by
the public.
DOCTRINE OF CYPRESS: The word cypress means ‘as nearly as possible’. The
doctrine of cypress is a principle of English law of trusts. According to this
doctrine, a trust is executed or carried out as nearly as possible, according to
the objects laid down in it. Where a settler has specified any lawful object
which has already been completed or the object cannot be executed further,
the trust does not fail. In such cases, the doctrine of cypress is applied and the
income of property is utilized for such objects which are as nearly to the object
already given as possible.
The doctrine of cypress is also applicable to wakfs. Where it is not
possible to continue any wakf because of failure of specified objects due to
lapse of time, or change of circumstances, or some legal difficulty or where the
specified object has already been completed, the wakf may be allowed to
continue further for objects as near as possible.

WILL or WASIYAT
The Arabic term equivalent to will is ‘Wasiyat’, which means ‘endowment with
property or any thing after death’. It is an instrument by which a person makes
disposition of his property to take effect after his death. Will is also known as
‘testament’.
CAPACITY TO MAKE A WILL: The person who makes a will is known as testator
or legator. Every Muslim of sound mind and age of majority may dispose of his
property by will. The legator must not be under coercion, undue influence or
fraud at the time of execution of will. Moreover, a will executed by a person
who has attempted to commit suicide is invalid under Shia law because such a

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person is considered as mentally unstable. However, according to Sunni law, a

will under such circumstances is completely valid.
CAPACITY OF LEGATEE: The person to whom the property is bequeathed is
known as ‘legatee’. The following are the characteristics of a legatee who is
capable of taking a will executed by a legator:
1. Person in Existence: A legatee is competent to take property under a will
if he is living at the time of death of legator, because a will comes into
effect after the death of legator. Thus, a legatee has to be a person in
existence at the time of death of the legator. The age, sex, caste,
religion, gender and state of mind is insignificant to become a lawful
legatee. A charitable or religious institution is also capable legatee and
any Will in favour of it is lawful.
2. Consent of Legatee: Before the declaration of the Will, it is important to
take the consent of the legatee whether he wants to accept the will or
not. The acceptance can be expressed or implied. A legatee has a
complete right to disclaim the Will. If a legatee declines to own any
property bequeathed to him, then the will is considered to be
incomplete and invalid.
3. Unborn Child: A child in mother’s womb is treated as a living person and
thus, is a competent legatee subject to two conditions. Firstly, he must
be in existence in the mother’s womb at the time of declaration of the
Will. Secondly, a child must be born alive within six months from the
date of declaration of Will under Sunni law and within 10 months under
Shia law.
4. Murderer of Legator: A legatee who kills or causes the death of legator,
intentionally or unintentionally, is not allowed to take the Will and
generally disentitle to take the property. However, under Shia law, the
legatee is only prohibited to take Will if he causes death of legator
intentionally and not otherwise. The reason behind this bar is that a Will
comes into effect only after the death of legator and there is possibility
that an avaricious and impatient legatee may cause the death of the
legator in order to grab the property as soon as possible.
5. Joint Legatees: A will may also be executed in favour of several legatees
in two ways as under:-

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a. Where share is specified: If the share of all legatees is explicitly

mentioned under the Will by the legator, then there arises no
confusion regarding the share. The property will be distributed as
per the ratio mentioned by the legator in the Will and each
legatee will get the respective share allotted to him.
b. Where share in unspecified: In case the share of each legatee is
not explicitly mentioned in the Will, then the property will be
divided equally among the legatees.
FORMS OF WILL: Muslim law does not recognize particular form of will but the
intention of legator plays vital role in validating a will. A will can be made
through following modes:
1. Oral: A simple oral declaration is also considered as a valid Will, but in
such a case the burden of proof is very hefty which has to be proved
with extreme fidelity with precision in date, time and place.
2. Written: A Will may also be declared in writing and no specific form is
specified. A Will is valid even if it is not signed by legator or attested by
witnesses. The name of the document is also immaterial. If it possesses
the essential characteristics of a will, then it will be treated as a valid
Will.
3. Gestures: A will may also be made by gestures. For example, if a sick
person makes an endowment and cannot speak due to weakness, gives
a nod with his hand in comprehensive way and if it is understood that he
is trying to convey and subsequently, he dies without regaining his ability
to speak, the bequest is valid and lawful.
THE SUBJECT-MATTER OF WILL: Any type of property, movable or immovable,
can constitute the subject-matter of the Will. But the legator can only bequest
a property in a Will if he owns the property at the time of his death and if that
property is transferrable. A property bequeathed may or may not exist at the
time of declaration of the Will but is must exist and owned by the legator at
the time of his death. The logic behind is that a Will comes into effect after the
death of the legator and transfer of property to legatee takes place from the
date of death of legator and not from the date of declaration of the Will.
PRINCIPLE LIMITATIONS ON TESTAMENTARY POWERS: There are two types of
restrictions on the testamentary powers of a Muslim as under:
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1. With respect to the extent of property: A Muslim desirous to make a

Will is allowed to make a Will only to the extent of 1/3rd of his property.
This extent of 1/3rd is calculated after the payment of funeral expenses
and debts of legator. If there is any Will exceeding specified limit, it will
not come into effect unless the heirs of the legator give their consent
thereto. In case the heirs do not give their consent, then the bequest will
be valid to the extent of 1/3rd and the remaining 2/3rd will be
transferred through intestate succession.
However, a Muslim having no heir can bequest his property to
anyone and in whatsoever amount he desires to do. The reason is to
protect the rights and interests of legal heirs which may adversely affect
in case of such bequest.
2. With respect to the legatees: The legatee may be any person either heir
or stranger. If in case the legatee is one the heirs of legator, if consent of
the other heirs is of paramount importance nevertheless the property
bequeathed is 1/3rd or less. The ground of this rule is that a legator may
make a bequest in favour of one of the legal heirs giving more
precedence to him, which may result in a feeling of jealousy and enmity
among the legal heirs.
However, Shia law does not discriminate between heir or non-
heir. A bequest can be made in favour of anyone till the extent of 1/3rd
of the property is treated to be valid.
REVOCATION OF WILL: A Will can be revoked before death of legator. Muslim
law grants an emancipated right to legator exercising which he can revoke the
Will or any part of the Will executed by him any time. Similarly, he can add
something reasonable to the Will as well. A legator may revoke the will
expressly or impliedly, as under:
1. Express Revocation: An express revocation may be made in oral or in
writing. For example, if a legator bequests some of his property to a
person and subsequently bequeaths the same property to another
person, then the first Will is considered revoked. If the legator burns or
tears off a Will executed by him, then also the Will is said to be expressly
revoked.

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2. Implied Revocation: Any act of the legator done contrary to the bequest
will revoke the Will. For example, if a legator executed a Will giving land
to a person and thereafter builds a house on the same land, or if he sells
or gifts that land to someone else, then consequently, the Will is said to
be impliedly revoked.
It is to be noted that mere denial of a Will is not sufficient to
amount a Will as revoked but some action must be taken by the legator
which indicates his clear intention for the revocation of the Will.
ABATEMENT OF WILL: Abatement of Will refers to reduction of Will. When a
bequest exceeds the limit of one 1/3rdand heirs deny to give their consent, the
ratio of the legatees is sustained in order to maintain the rule of bequeathable
one-third. This reduction in the legacy of the legatees is known as abatement
of legacies. Under Sunni law, the abatement occurs in a ratable manner
(proportionality) whereas in Shia law it is done preferentially.
1. Rateable Distribution: This rule of abatement is followed under Sunni law.
In this method, if a Sunni Muslim bequeaths his property in a certain ratio
which exceeds the limit of one-third, then the abatement is done in the
same ratio in which the property was distributed.
For example: D, a Sunni Muslim who makes a Will in favour of A, B and C.
Under the Will, he directs to give Rs. 4,500/- to A, Rs. 3,000/- to B and Rs.
1,500/- to C and his total property amounts to Rs. 9,000/-. Now, as per the
rule, only one-third of the total property is bequeathable. So, one-third of
Rs. 9,000/- equals to Rs. 3000/- which is the required bequeathable
property. It can be observed that the legator divided the property among
A, B and C in the ratio 3:2:1 respectively. Applying the rateable abatement
rule, the shares of A, B and C Will be reduced in the same ratio i.e. 3:2:1.
Thus, the share of A Will become Rs. 1,500/-, the share of B becomes Rs.
1,000/- and the share of C turns to be Rs. 500/-.
2. Preferential Distribution: The Shia law recognizes a different rule for
abatement. In this method, the preference is decided by the order in which
the name of the legatees is mentioned under the Will. The legatee whose
name is mentioned first will get his full share as specified in the Will and
the remaining will be passed in favour of the second legatee and so on. As
soon as one-third of the property is finished, the distribution comes to its
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end. Therefore, it can be concluded that either a legatee will get his full
share or he will get nothing.
For example: D is a Shia Muslim who executed a Will under which
the share of A is Rs. 2,000/-, the share of B is Rs. 1,000/- and share of C is
also Rs. 1,000/-. The total property is Rs.9,000/- which is beyond one-third
of the bequeathable property. So, one-third of Rs. 9,000/- comes out to be
Rs. 3,000/- which is the required bequeathable amount. Now, according to
the preferential rule, A Will get his full share i.e. Rs. 2,000/-, B Will get the
remaining Rs. 1,000/- which constitutes his full share and C Will not get
any share because the bequeathable property exhausted after the share of
B.

GENERAL RULES OF INHERITANCE

Generally, inheritance opens at the death of a person and nobody can claim
right in the property even if he is an heir. In Islamic law of inheritance, there is
no distinction between movable and immovable property or between
ancestral and self acquired property. After the death of a Muslim, his
properties are utilized for the payment of funeral expenses, debts and legacies
(Wills), if any. After these payments, the remaining property is heritable
property and subject-matter of inheritance.
BIRTH RIGHT: A Muslim child does not acquire right to property on his birth.
No person becomes legal heir and therefore holds right to property till the
death of ancestor. If an heir lives at the time of death of ancestor, then he
becomes a legal heir and is therefore entitled to a share in property.
DOCTRINE OF REPRESENTATION: Doctrine of representation states that if
during the lifetime of ancestor any of his legal heir die, but the latter’s heirs
still survive, then such heirs shall become entitled to a share in the property
being the representatives of ancestor’s heir so died.
Doctrine of representation is recognized in Roman, English and Hindu
laws of inheritance, but it is not recognized in Muslim law of inheritance.
Under Muslim law of inheritance, the nearer heir totally excludes the remoter
heir from inheritance. The Muslim jurists justify the reason for denying the
right of representation on the ground that a person has not even an inchoate
right to the property of his ancestor until the death of that ancestor.
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Accordingly, there can be no claim through a deceased person who himself had
no right in property of his ancestor.
For example: A, a Sunni Muslims has two sons namely B and C. B dies in
the lifetime of A, leaving his son D. Thereafter, A also dies leaving his son C and
grandson D. The whole of A’s property shall pass to C, to the entire exclusion of
D. D cannot claim his right in A’s property, being representative of B.
RULES OF DISTRIBUTION: Under Muslim law of inheritance, the property is
vested in legal heirs as soon as their ancestor dies. There are two ways for the
distribution of property as under:-
1. Per Captia Distribution: This method is majorly used in Sunni law of
inheritance. According to this method, the estate left over by the
ancestors gets equally distributed among the heirs. Therefore, the share
of each heir depends on the number of heirs.
For example, A, a Sunni Muslim has two sons B and C. A dies leaving
estate of Rs. 10,000/-. B and C shall equally inherit Rs. 5000/- each.
A, a Sunni Muslim has two sons B and C. B has two sons namely D
and E, and C has three sons namely F, G and H. B and C die before A and
thereafter A also dies leaving estate of Rs. 10,000/-. The grandsons of A
namely D, E, F, G and H shall equally inherit Rs. 2000/- each.
2. Per Strip Distribution: This method is recognized in Shia law. According
to this method, the estate left over by the ancestors gets distributed
among the heirs according to the strip they belong to. Hence the
quantum of their share depends upon the branch and the number of
persons that belong to the branch.
For example, A, a Shia Muslim has two sons B and C. B has two sons
namely D and E, and C has three sons namely F, G and H. B and C die
before A and thereafter A also dies leaving estate of Rs. 12,000/-. The
grandsons of A namely D, E, F, G and H. D and E shall inherit to the
extent of B’s share and F, G and H shall inherit to the extent of C’s share.
Accordingly, D and E shall inherit Rs. 3000/- each, and F, G and H shall
inherit Rs. 2000/- each.
RIGHT OF FEMALES AS TO INHERITANCE: Males and females have equal rights
of inheritance. Upon the death of a Muslim, the male and female heirs inherit
the properties simultaneously. Males have no preferential rights over the
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females, but normally the quantum of share of female heir is half of the male
heir. The justification available to this distinction under Muslim law is that the
male only inherit property form their ancestor but has much financial
obligations as to Mehr of wife and maintenance of wife and children, whereas
female receives Mehr and maintenance from her husband.
PRINCIPLES OF SUCCESSION: The principles to be followed at the time of
succession of estate of deceased are as under:-
1. Whoever is related to the deceased through any person shall not inherit
while that person is living. Thus father excludes brothers and sisters. The
mother excludes uterine brothers and sisters.
2. The nearer in degree excludes the more remote. The true grandfather is
excluded by father. Similarly, true grandmother is excluded by mother.
GROUNDS OF DISQUALIFICATIONS AS TO INHERITANCE: The grounds which
debar the heirs to succeed the property of the intestate are as under:-
1. Homicide: Under Sunni law, an heir who kills or causes the death of his
ancestor, intentionally or unintentionally, is disentitled to take the
property. However, under Shia law, an heir is only debarred from
inheritance if he causes death of ancestor intentionally and not
otherwise.
2. Illegitimate Child: Under the Hanafi law, an illegitimate child is not
entitled to inherit from his father but can inherit from his mother and all
the relatives of the mother. The mother can also inherit the property of
her illegitimate child.
3. Widow: A widow is not excluded from the succession. A childless Muslim
widow is entitled o one-forth property of the deceased husband and a
Muslim widow having children or grandchildren is entitled to one-eighth
of the deceased husband’s property.
4. Child in the Womb: A child in the womb of his mother is competent to
inherit only if it is born alive. A child in embryo is regarded as a living
person and as such, the property vests immediately in that child. But, if
such a child in the womb is not born alive, the share already vested in it
is divested and it is presumed as if there was no such heir.

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5. Step-Children: The step-children cannot inherit from their step-parents.

However, the step brother can inherit from the property of his step
brother or sister.
6. Difference of Religion: A non-Muslim cannot inherit from a Muslim.
7. Escheat: In cases where a person dies without leaving any heir, then the
property of such a child shall go to the government through the process
of escheat. The State is considered as the ultimate heir of every
deceased.

SUNNI LAW OF INHERITANCE

Under the Sunni law of Inheritance, the classes of heirs are as under:-
SHARERS: These are the heirs whose shares of inheritance are prescribed in
the Holy Quran. They are entitled to receive a fixed share allotted to them in a
certain mode of preference and mode of succession. After payment of funeral
expenses, debts and legacies, the estate of deceased Muslim is distributed
among sharers. The sharers are twelve in number and include, 1) Husband, 2)
father, 3) true grandfather, 4) uterine brother, 5) Wife, 6) mother, 7)
grandmother, 8) daughter, 9) son’s daughter 10) full sister, 11) consanguine
sister, 12) Uterine sister.
1. Husband: The husband will get 1/2 if there is no (a) child or, (b) child of
son how-low-so-ever.
The husband will get 1/4 if there is (a) child or, (b) child of son
how-low-so-ever.
2. Father: The father will get 1/6 share if there are children (son and
daughter) to the deceased.
The father will get 1/6 share plus residue if there are only
daughters and no son to the deceased.
If there are no children (son and daughter) to the deceased, the
father will be converted into the residuaries and shall take the entire
residue.
3. Grandfather: The true grandfather will get 1/6 share only in the absence
of father and if there are children (son and daughter) to the deceased.

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The true grandfather will get 1/6 share plus residue only in the
absence of father and if there are only daughters, and no son.
If there are no children (son and daughter) to the deceased, true
grandfather will be converted into the residuaries and shall take the
entire residue.
4. Uterine Brother: The uterine brother will get 1/6 share if there is only
one uterine brother and only in the absence of (a) children, (b) son’s
children how-low-so-ever, (c) father or, (d) true grandfather.
The uterine brothers will get 1/3 share if there are two or more
than two uterine brothers and only in the absence of (a) children, (b)
son’s children how-low-so-ever, (c) father or, (d) true grandfather. This
1/3 shall be equally distributed among all uterine brothers.
5. Wife: The wife will get 1/4 if there is no (a) child or, (b) child of son how-
low-so-ever.
The wife will get 1/8 if there is (a) child or, (b) child of son how-
low-so-ever.
If, exceptionally, a person has left behind two wives they have to
share this entitlement equally.
6. Mother: The mother will get 1/6 share (a) if entitled descendants exist
(son, daughter and their children) or, (b) brothers and sisters exist.
The mother will get 1/3 share if neither children, brothers, sisters,
father nor spouse exist.
The mother will get 1/3 share from residue if any of the brothers,
sisters, father or spouse exist and there are no children.
7. True Grandmother: The true maternal grandmother will get 1/6 share in
the absence of mother, even if the father of deceased is alive.
The true paternal grandmother will get 1/6 share only in the
absence of (a) mother, (b) father and (c) true grandfather.
If, there are two or more grandmothers of the deceased, maternal
or paternal, they will inherit 1/6 as joint share which they will share
equally.

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8. Daughter: The daughter will get ½ if there is only one daughter and no
son is there.
The daughters share will be 2/3 if there are two or more than two
daughters and no son is there. This 2/3 shall be equally distributed
among all daughters.
In presence of son(s), the daughter(s) will become residuaries.
After giving respective shares to all sharers, the son(s) will get two-
shares, and daughter(s) will get one-share, out of the residue.
9. Son’s Daughter (granddaughter): The son’s daughter will get 1/2 share
if there is only one son’s daughter and no son’s son is there.
The son’s daughters will get 2/3 share if there are two or more
than two son’s daughters and no son’s son is there.
In presence of son’s son(s), the son’s daughter(s) will become
residuaries. After giving respective shares to all sharers, the son’s son(s)
will get two-shares, and son’s daughter(s) will get one-share, out of the
residue.
Exception: Son’s daughters, either one or more, will get 1/6 share when
surviving with a single daughter of the deceased. This 1/6 share will be
equally distributed among all son’s daughters.
If the deceased is having more than one daughter then son’s
daughters will be entirely excluded from inheritance.
10.Full Sister: The full sister will get 1/2 share if there is only one full sister
and only in the absence of (a) children, (b) son’s children how-low-so-
ever, (c) father or, (d) true grandfather, or (e) full brother.
The full sisters will get 2/3 share if there are two or more than two
full sisters and only in the absence of (a) children, (b) son’s children how-
low-so-ever, (c) father or, (d) true grandfather, or (e) full brother. This
2/3 shall be equally distributed among all full sisters.
11.Consanguine Sister: The consanguine sister will get 1/2 share if there is
only one consanguine sister and only in the absence of (a) children, (b)
son’s children how-low-so-ever, (c) father or, (d) true grandfather, or (e)
full brother, (f) full sister, (g) consanguine brother.

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The consanguine sisters will get 2/3 share if there are two or more
than two consanguine sisters and only in the absence of (a) children, (b)
son’s children how-low-so-ever, (c) father or, (d) true grandfather, or (e)
full brother, (f) full sister, (g) consanguine brother. This 2/3 shall be
equally distributed among all consanguine sisters.
12.Uterine Sister: The uterine sister will get 1/6 share if there is only one
uterine sister and only in the absence of (a) children, (b) son’s children
how-low-so-ever, (c) father or, (d) true grandfather.
The uterine sisters will get 1/3 share if two or more than two and
only in the absence of (a) children, (b) son’s children how-low-so-ever,
(c) father or, (d) true grandfather. This 1/3 shall be equally distributed
among all uterine sisters.
Rules for determining shares of sharers or Quranic Heirs: The following are
the rules for determining the shares of sharers or Quranic heirs:
1. Firstly, the heritable property is determined, which is the residue that
remains after payment of the funeral expenses, debts and legacies.
2. Secondly, it is ascertained as to which of the surviving relations of the
deceased, (a) belong to the class of sharers, and (b) are entitled to a
share of the inheritance, that it, they are not totally or partially
excluded. Whoever is related to the deceased through other person shall
not inherit while that person is living. Further, within the limit of each
class of heirs, the nearer in degree excludes the remoter.
3. Thirdly, the respective shares, to which the sharers are entitled, are
assigned to them. If it is found that the total of the shares exceeds unity
then the shares of each sharer is proportionately diminished by the
process called “increase”.
4. Fourthly, if there is any residue left after satisfying the shares of the
sharers, it is devolved upon the residuaries. However, if there is no
residuary, the residue reverts to the sharers in proportion to their shares
by the process called “return”.
DOCTRINE OF RAAD or RETURN: If the sum of total fractions allotted to the
sharers is less than the unity, or in other words, if there is a residue left after
satisfying the claims of Sharers and there is no residuary, the residue reverts to

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the Sharers in proportion to their shares. This right of reverter is called

“return” or “raad”.
Exception: In the presence of any heir, neither the wife nor husband is
entitled to the return. But, if there is no other heir, the residue will go to the
husband or the wife, as the case may be, by return. A widow is also not
entitled to return in the presence of daughter of deceased.
Illustration: A lady dies leaving behind his mother and a daughter. According to
Islamic law of inheritance, the Mother will get 1/6 share and the daughter will
get 1/2 share. The sum of these both shares becomes 2/3 and 1/3 remains
residue. Incase there are no residuaries, this 1/3 share will be distributed
between mother and daughter proportionately, as under:
1. Reduce the fractional shares to the common denominator. Thus, 1/6 and
1/2 become 1/6 and 3/6.
2. Decrease the denominator to make it equal to the sum of the
numerators and allow the individual numerators to remain. Thus, 1/6
and 3/6 became 1/4 and 3/4.
3. After proportionately distributing residue, the share of mother will be
1/4 and the share of daughter will be 3/4. The shares are thus
proportionately increased and the sum of fractions comes equal to unity.
DOCTRINE OF AUL or INCREASE: If the sum of total fractions allotted to the
sharers is more than the unity, then the share of each Sharer is proportionately
diminished by reducing the fractional share, to a common denominator; and
increasing the denominator so as to make it equal to the sum of numerators.
This process is called “doctrine of AUL or increase”.
Illustration: A lady dies leaving behind his husband and two full sisters.
According to Islamic law of inheritance, the husband will get 1/2 and the two
full sisters will equally distribute the share of 2/3. The sum of these both
shares becomes 7/6, which is more than unity. The doctrine of increase (aul)
will apply in this case, as under:-
1. Reduce the fractional shares to a common denominator. Thus, 1/2 and
2/3 become 3/6 and 4/6.

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2. Increase the denominator to make it equal to the sum of the numerators

and allow the individual numerators to remain. Thus, 3/6 and 4/6
became 3/7 and 4/7.
3. After proportionately reducing shares, the share of husband will be 3/7
and the two full sisters will be 4/7. The shares are thus proportionately
reduced and the sum of fractions comes equal to unity.

RESIDUARIES:
When there are sharers and a residue of estate left after allotting them their
respective shares, or when there are no sharers, the residue or whole
inheritance, as the case may be, devolves upon residuaries. The residuaries are
also known as agnates, whose relation to the deceased can be traced without
the intervention of female links. They are all male including four females, that
are, daughter, son’s daughter, full sister and consanguine. The residuaries or
agnatic heirs may be classified into (i) Agnatic Descendants, (ii) Agnatic
Ascendants, and (iii) Agnatic Collaterals (father’s agnatic descendants and
grandfather’s agnatic descendants). These are as under:-
1. Descendants:
1) Son: The son is not included in sharers but he takes inheritance as
a residuary. In the presence of daughter(s), he takes two-shares
while in the absence of daughter(s), he takes the entire residue. If
there are two or more than two sons then they will take double
share of that of daughter(s).
Note: The daughter cannot inherit has a sharer when there
is a son. But if the heirs be a daughter and son’s son, the daughter
as a sharer will take 1/2 and the son’s son as a residuary will take
the remaining 1/2.
2) Son’s son: The son’s son is not included in sharers but he takes
inheritance as a residuary. In the presence of son’s daughter(s), he
takes two-shares while in the absence of son’s daughter(s), he
takes the entire residue. If there are two or more than two son’s
sons then they will take double share of that of son’s daughter(s).
2. Agnatic Ascendants:
3) Father: The father as a residuary takes the entire residue estate.

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Note: The father becomes residuary when (a) there are only
daughters, (b) there are no children.
4) True Grandfather: The true grandfather as a residuary takes the
entire residue estate.
Note: The true grandfather only inherits in the absence of
father and the near true grandfather excludes the remoter. He
becomes residue when (a) there are only daughters, (b) there are
no children.
3. Agnatic Collaterals:
Descendants of father:
5) Full Brother: The full brother is not included in sharers. In the
presence of full sister he will take two-shares out of the residue,
while in the absence of full sister he takes the entire residue.
Note: The full sister cannot inherit as a sharer when there is
a full brother.
6) Full Sister: The full sister becomes residuary in the presence of full
brother and she takes half share of that of full brother.
In the absence of the full brother and aforesaid residuaries,
she takes the residue, if any, if there be (a) daughter(s), or (b) a
son’s daughter(s) how-low-so-ever, or even if there be (c) one
daughter and son’s daughter(s) how-low-so-ever.
7) Consanguine Brother: The consanguine brother is not included in
the sharers. In the presence of consanguine sister he will take
two-shares out of the residue, while in the absence of
consanguine sister he takes the entire residue.
Note: The consanguine sister cannot inherit as a sharer
when there is a consanguine brother.
8) Consanguine Sister: The consanguine sister becomes residuary in
the presence of consanguine brother and she takes half share of
that of consanguine brother.
In the absence of the consanguine brother and aforesaid
residuaries, she takes the residue, if any, if there be (a)

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daughter(s), or (b) a son’s daughter(s) how-low-so-ever, or even if

there be (c) one daughter and son’s daughter(s) how-low-so-ever.
9) Full Brother’s Son: In the default of above residuaries he takes the
entire residue.
10) Consanguine Brother’s Son: In the default of above residuaries he
takes the entire residue.
11) Full Brother’s Son’s Son: In the default of above residuaries he
takes the entire residue.
12) Consanguine Brother’s Son’s Son: In the default of above
residuaries he takes the entire residue.
Descendants of True father:
13) Full Paternal Uncle: He takes the entire residue.
14) Consanguine Paternal Uncles: He takes the entire residue.
15) Full Paternal Uncle’s Son: He takes the entire residue.
16) Consanguine Paternal Uncle’s Son: He takes the entire residue.
17) Full Paternal Uncle’s Son’s Son: He takes the entire residue.
18) Consanguine Paternal Uncle’s Son’s Son: He takes the entire
residue.
DISTANT KINDRED:
In the absence of Sharers and residuaries, the estate devolves upon Distant
Kindred, also known as uterine heirs. There is only one case in which the
Distant Kindred inherit along with a Sharer. When the only surviving sharer is a
husband or a wife and there is no residuary, then the husband or wife takes his
or her share and the rest of the estate will be divided among Distant Kindred.
Distant Kindred are diving into four classes:
1. Descendants of the deceased other than Sharers and Residuaries:
a. Daughter’s children and their descendants.
b. Children of son’s daughters how-low-so-ever and their
descendants.
2. Ascendants of the deceased other than Sharers and Residuaries:
a. False grandfathers how-high-so-ever.
b. False grandmothers how-high-so-ever.
3. Descendants of parents other than Sharers and Residuaries:

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a.Full brothers’ daughters and their descendants.

b.Consanguine brothers’ daughters and their descendants.
c.Uterine brothers’ children and their descendants.
d.Daughters of full brothers’ sons’ how-low-so-ever and their
descendants.
e. Daughters of consanguine brothers’ sons’ how-low-so-ever and
their descendants.
f. Sisters’ (full, consanguine or uterine) children and their
descendants.
4. Descendants of ascendants how-high-so-ever other than residuaries.
a. Full paternal uncles’ daughters and their descendants.
b. Consanguine paternal uncles’ daughters and their descendants.
c. Uterine paternal uncles, their children and their descendants.
d. Daughters of full paternal uncles’ sons how-low-so-ever and their
descendants.
e. Daughters of consanguine paternal uncles’ sons how-low-so-ever
and their descendants.
f. Paternal aunts (full, consanguine or uterine), their children and
their descendants.
g. Maternal uncles and aunts, their children and their descendants.
h. And descendants of remoter ancestors how-high-so-ever (true or
false).
PRIMARY HEIRS: There are five primary heirs which cannot be excluded from
inheritance and are entitled to some share. These are (1) children (son or
daughter), (2) father, (3) mother, (4) husband and, (5) wife. Next to these there
are three namely (1) child of a son, (2) true grandfather how-high-so-ever and,
(3) true grandmother how-high-so-ever. These three are the substitutes of the
corresponding primary heirs. The husband and the wife has no substitute.

DIFFERENCES:
Void v/s Irregular Marriage:
1. A void marriage is void in itself. Whereas irregular marriage is not
unlawful in itself but it becomes unlawful due to irregularity arising from
accidental circumstances.

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2. In void marriage, the prohibition is perpetual and absolute. Whereas in

irregular marriage, the prohibition is temporary.
3. In void marriage, the children born out of union are not legitimate.
Whereas, in irregular marriage, the children born out are legitimate.
4. In void marriage, no civil rights and obligations arise. Whereas, in
irregular marriage, civil rights and obligations arise only if marriage is
consummated.
5. A void marriage has no legal effects. Whereas, an irregular marriage has
legal effects after consummation.
6. A void marriage cannot be modified into valid marriage. Whereas an
irregular marriage can be modified into valid marriage.
Gift v/s Will:
1. A man can dispose off his whole property during his lifetime through
gift, whereas only 1/3rd of the whole property can be bequeathed.
2. A gift invervivos (during lifetime) can be made to any person without any
restriction, whereas consent of heirs is necessary for bequeathing more
than 1/3rd of property.
3. The property which is subject of gift must be in existence at the time of
making the gift, whereas the property subject to will may or may not be
in existence at the time of execution of the will but it must be existing at
the time of death of the legator.
4. Under gift, immediate and absolute transfer of property takes place,
whereas a transfer of property comes into effect only after the death of
the legator.
5. A gift is not revoked by mere declaration of donor but by consent of
donee or intervention of Court, whereas a bequest may be revoked by
the legator any time before his death, either expressly or impliedly or by
a subsequent will.
Wakf v/s Trust:
1. A waqf may be constituted only for those purposes which are recognized
as religious, pious or charitable in Islam, whereas a trust may be
constituted for any lawful object.
2. Except under Hanafi law, the founder of wakf cannot reserve any benefit
for himself, whereas the founder of a trust may himself be a beneficiary.
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3. The powers of mutawalli are limited, whereas a trustee enjoys more

powers as compared to mutawalli.
4. A wakf is perpetual and irrevocable, whereas a trust need not be
perpetual and may also be revoked under certain conditions.
5. The ownership of wakif is extinguished and vested in God, whereas
founder of trust may have equitable and legal ownership.
6. Mutawalli has the power to demand remuneration, whereas trustee has
no power to demand remuneration.
Sadqah v/s Wakf:
1. In sadaqah, the legal estate and beneficial interest passes to the charity
to be held by the trustees appointed by donor. Whereas, in wakf, the
legal estate or ownership is not vested in the mutawalli but is
transferred to God.
2. In Sadaqah, both the corpus and the usufruct is given away, therefore
the trustee has the right to sell the property. Whereas, in wakf,
mutawalli cannot alienate the corpus of the property except in case of
necessity subject to prior permission of the Court or when authorized by
wakif.
3. Sadqah is in the form of donation or gift, whereas wakf is an
endowment.
Sunni law v/s Shia law of Will:
1. In Sunni law, a will in favour of one of the heirs of legator is invalid
without the consent of other legal heirs. Whereas, in Shia law, a will in
favour of one of the heirs of legator is valid even without the consent of
other legal heirs.
2. In Sunni law, the consent of heirs must be given after the death of
legator. Whereas, in Shia law, consent can be given either before or
after the death of legator.
3. In Sunni law, the legatee committing murder of legator, intentionally or
unintentionally, cannot take legator’s property under a Will. Whereas,
under Shia law, the legatee committing intentional murder of legator
cannot take legator’s property under a Will.

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4. In Sunni law, a Will is valid if a legator commits suicide before or after

the execution of Will. Whereas, in Shia law, a Will is only valid if the
legator commits suicide after the execution of the Will.
5. In Sunni law, bequest for an unborn is valid if he is born within 6 months
of making the Will. Whereas, in Shia law, bequest for an unborn child is
valid if he is born within 10 months of making the Will.
6. In Sunni law, abatement of legacies is followed through rateable
distribution (proportionality). Whereas, abatement of legacies is
followed through preferential distribution.
7. In Sunni law, if legatee dies before legator, the legacy reverts to the
legator. Whereas, in Shia law, if legatee dies before legator, the legacy
will lapse only when legatee dies without leaving an heir or the legator
revokes the Will himself.

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