Kartheek D. N.

Selected Topic Notes:- Family Law - II

NOTE:-
This Selected Topic Notes has been prepared according to my perspective
and I am sharing this because I think available time can be better utilized to
prepare for exams. Prepare for exams according to Syllabus.

So, if anyone feels that there is/are mistake(s) in this notes, improper
answer(s), insufficient answer(s), etc., etc., then immediately stop using this
Selected Topic Notes and prepare your own notes.

All the best for exams.

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1-side typed sheet = approximately 2-sides in exam booklet

sentences in italics = optional
Condense / Expand answer as required

UNIT - 1

Q: EXPLAIN THE ORIGIN AND DEVELOPMENT OF MUSLIM LAW

or
EVALUATE THE ORIGIN, EVOLUTION AND DEVELOPMENT OF MUSLIM LAW IN
WORLD/INDIA

A:
MUSLIM:
Islam means peace by submission and obedience to the Will and Commandments of
God Allah and those who accept Islam are called Muslims.

MUSLIM LAW:
Islamic law is a branch of Muslim theology giving practical expression to the faith
which lays down how a Muslim should conduct in accordance with his religion both towards
God and towards other men. It is based on man’s duties or obligations rather than on his
rights. It is a religious law applicable to a person who is a Muslim either by birth or by
proselytization.

According to Prophet Mohammad, the Muslim law is commandment of God Allah

and the sovereign in Muslim States and it is a Muslim’s duty to follow it literally.

ORIGIN OF MUSLIM LAW:

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All the 3 religions of the world - Judaism, Christianity and Islam originated from
Arabian peninsular region. But, Paganism was also practiced along with Judaism and
Christianity before the advent of Islam.

Prophet Mohammad was born at Mecca on 22nd April, 571 A.D. and received his first
revelation, when he was in a cave in a mountain called Hira where he used to go to think
about the concept of God, religion and the reform of the society during the month of
Ramadan, from Archangel Jibril (Gabriel) who told him Iqraa which means read or recite.

All the revealed verses over a period of 23 years ending in 632 CE were compiled in a
book known as Quran which speaks in the 1st person i.e., Allah’s Commandments to His
creation. There are 6,237 verses contained in 114 Chapters divided into 30 parts. Before
consolidation, Quran originally consisted of 6,666 Ayats/verses.
The Prophet’s says, actions and approvals are recorded separately in collections
known as Hadith/Sunnat.

DEVELOPMENT OF MUSLIM LAW (HISTORICAL):

So far as Islamic religion is concerned, it may be said that it was completely
established at the time of Prophet’s death. But, Muslim Law developed further. Social and
political changes at various stages brought about consequent changes also in the Muslim
positive law/fiqh.

Development of Muslim Law may be divided into 5 periods:

1) The 1st Period, The Legislative Period, 622-632 A.D.
2) The 2nd Period, The Caliphate Period, 632-661 A.D.
3) The 3rd Period, Islamic Jurisprudence, 661-900 A.D.
4) The 4th Period, further development of Islamic Jurisprudence, 900-1924 A.D.
5) The 5th Period, 1924 A.D. to till date

1) The 1st Period, The Legislative Period, 622-632 A.D.:

This is called the legislative period covering the last 10 years of the Prophet’s life. It
is also known as Hazira Era. The law-making revelations or legal verses of Quran were made
during the 10 year period between 622 A.D and 632 A.D.. The revelations were to solve
each and every problem in the society. In 622 A.D., Prophet Mohammad went to Medina
where the messages of Allah were easily believed and he gradually began to promulgate the
divine legislative principles to regulate the conduct of the people with the object of teaching
men how to act, what to do and what not to do.
Laws which were not available in the direct words of Allah/Quran were formulated
through the traditions/precepts of the Prophet as it was supposed to be indirect revelation.

2) The 2nd Period, The Caliphate Period, 632-661 A.D.:

After the death of the Prophet the period of 30 years is known as the Caliphate Period.
This period is also known as the 1st 4 Caliphs of Islam.

As the Prophet had not nominated his successor, majority of the people agreed that
there should be an election to elect his successor and Abu Bakr was elected as the 1st Caliph.
However, the minority including the Prophet’s daughter, Fatima disagreed with the idea of

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election and formed a separate sect called Shia. After Abu Bakr, Omar was elected as 2nd
Caliph, after Abu Bakr’s was killed Osman was elected as the 3rd Caliph and after Osman
was killed, Ali, husband of Fatima was elected as the 4th Caliph who was also killed. These
1st 4 Caliphs are known as the rightly guided Caliphs/Khulfai-i-Rashidin because they had the
privilege of being very close companions of the Prophet.

During this period, the 1st collection of Quran made by Zaid on behest of Abu Bakr by
collecting the divine messages available in scattered form and arranging them subject wise
was found to be incorrect and contradictory at many places due to which Osman asked Zaid
once again to revise the holy book and correct it. Today, the only authentic version of Quran
available is the compilation of it done by Osman.

3) The 3rd Period, Islamic Jurisprudence, 661-900 A.D.:

With the assassination of Ali, the 4th Caliph dawned the 3rd Phase of Development of
Islamic Jurisprudence.
First, the traditions of the Prophet which were numerous and also scattered were
collected and examined. Only authoritative traditions were accepted to be the law.
Secondly, as the Muslim society developed beyond expectation and became more
complex, Quran and the traditions could not solve the problems of the society due to which
theoretical exposition of law was undertaken by the jurists/Ijma to obtain a law through their
consensus opinion or a law through Qiyas/analogical deduction which was done by
establishing similarity between the situations enumerated in the texts and the situation for
which the law was then required. Qiyas was treated as the most scientific method of
legislation.

4) The 4th Period, further development of Islamic Jurisprudence, 900-1924 A.D.:

During this period, different schools of Sunnis and Shias came into existence;
practical and scientific study of law and religion was made; a systematic principle of
collecting precepts was laid down.

In this period, the development of Muslim Law became stagnated after the death of
the founders of the 4 Sunni schools as no scholar of their eminence and learning was
available who could propound new theories of law. Also, no jurist was deemed competent
for individual interpretation of the law, law could not be formulated through the opinion of
the jurists/Ijtihad.
Due to this, the Doctrine of Taqlid/following/imitation came into being as society and
scholars/muftis simply started to follow the law already laid down by the founders. However,
a fatwa, an Islamic religious ruling/opinion on a matter of Islamic law issued by a recognized
religious authority such as Judges and Scholars/Muftis who base their rulings on knowledge
and wisdom though not binding on the faithful were not ignored. Some of the very important
fatwas are the Fatwai-Alamgiri and the Fatwai Qadi Khan.

5) The 5th Period, 1924 A.D. to till date:

The Caliphate was abolished in 924 A.D. and the formation of Islamic law stopped as
the Mujtahids who had the right of developing the Islamic law by forming independent
reasoning were denied their right of doing so. After 1924, there was no Caliph as a religious
head to administer and execute the traditional law of Islam which led to the the tackling of
the situation by theoretically separating Islamic law from the religion, Shariat.

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Also, it may be assumed that the muftis, maulvi/priest/moollah, kazi, mujtahids and
jurists collectively known as Ullama have made contributions in the development of Islamic
law.
Gradually, the age of legislation came. In several Muslim countries, steps were taken
towards codification of Islamic law the first of which was in 1875 in Egypt which codified
the Hanafi Law of Family and Law of Inheritance.

MUSLIM LAW IN INDIA:

1. Muslim Law came to India through the conquests of Mohd. of Ghazni, the 1st Moghul
Conqueror.
2. The British Government changed the system by enacting several Acts which applied to
Muslims and non-Muslims alike in non-personal matters.
3. Matters relating to family affairs like marriage, divorce, dower, gift, Will, inheritance, etc.,
were continued to be governed by Muslim Personal Law and they still are.
4. Affairs of non-religious or non-personal nature are regulated by Acts of Parliament like
like the IPC, the Cr.P.C., the CPC, etc
5. The Shariat Act, 1937 lays down that except questions relating to agriculture land all
questions regarding intestate/testamentary succession/any other provision of personal law
is governed by Muslim Personal law.
6. Several legislations passed by the Parliament laying down rules of Muslim personal law
either re-establish or clarify the provisions of traditional Muslim Law.
7. Only Dissolution of Muslim Marriage Act, 1939 and Muslim Women (Protection of Rights
on Divorce) Act, 1986 has modified the principles of Muslim law.

The present Muslim law in India therefore includes the traditional law, the legislative
enactments and judicial precedents.

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Q: EXPLAIN THE DIFFERENT SOURCES OF MUSLIM LAW

A:
MUSLIM:
Islam means peace by submission and obedience to the Will and Commandments of
God Allah and those who accept Islam are called Muslims.

MUSLIM LAW:
Islamic law is a branch of Muslim theology giving practical expression to the faith
which lays down how a Muslim should conduct in accordance with his religion both towards
God and towards other men. It is based on man’s duties or obligations rather than on his
rights. It is a religious law applicable to a person who is a Muslim either by birth or by
proselytization.

According to Prophet Mohammad, the Muslim law is commandment of God Allah

and the sovereign in Muslim States and it is a Muslim’s duty to follow it literally.

SOURCES OF MUSLIM LAW:

The Muslim Law has been derived from various primary as well as secondary sources
and can be classified into 2 main categories:
1. Primary Sources and
2. Secondary Sources

1. Primary sources may be classified into 4 sub-categories:

(i) Quran
(ii) Sunna or Ahadis
(iii) Ijma
(iv) Qiyas

2. Secondary sources is classified into 3 sub-categories:

(i) Equity, Justice and Good conscience
(ii) Judicial Decision
(iii) Legislation
(iv) Custom

1. Primary Sources:

(i) Quran:
The word Quran is derived from the Arabic word Qurra and signifies the reading or
that which ought to be read. It is the original or primary source of Islamic law. It is the name
of the Holy Book of Muslims containing the direct revelations from God through the Prophet.
It is believed that Quran is of divine origin and was revealed to Prophet Mohammad for the
benefit of mankind. The 1st revelation/wahi came to the Prophet in 609 A.D. with the word
Iqra meaning recite. Collections of all revelations are called The Recital/Al Quran. Each and
every word used in the book is Quran.

The revelations were the communications/messages of Allah, the Lord of the Worlds
and were made by Angel Gabriel (Jibriel) to Prophet Mohammad/Prophet of Arabia, His
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Messenger in Arabic language in a semi-poetic manner. These were conveyed to the society
by the Prophet thorough his preaching. The communications were in scattered form and were
not systematically revealed. After the Prophet’s death, the revealed verses were collected,
consolidated and systematically written under the authority of Osman, the 3rd Caliph.

Salient Features of Quran:-

1. Quran is of divine origin:
It is believed in Islam that the words and the verses of this holy book are made by
Allah and not by any human being and the Prophet simply uttered these words on behalf of
God. Since Quran is compilation of the words of God, its words and authority are
unchangeable.

2. Quran is in the form of verses:

Each verse in the Quran is called Ayat. There are 6,237 verses in Quran which are
contained in 114 Chapters divided into 30 parts. Each chapter of Quran is called Sura and is
arranged subject-wise and has specific titles. The 1st Sura of Quran is Surat-ul-Fatiha which
is an introduction to the Holy Book and consists of verses in the praise of Almighty Allah.
Before consolidation, Quran originally consisted of 6,666 Ayats.

3. Quran is a mixture of religion, law and morality:

Religion, law and morality are at some places mixed in such a manner that it is
difficult to separate them. The law making Ayats numbering about 200 are scattered in
different chapters and they may be regarded as the fundamental source of Muslim law. Of
these 200 verses, only 80 verses deal with personal law. Some of the verses have removed
objectionable and evil customs like child infanticide, unlimited polygamy, gambling, etc.
Thus, only basic principles of Muslim law are given in Quran.

The major portion of the text deals with theological and moral reflections. It
distinguishes good from falsehood.

Because of the above mentioned facts, Quran is the primary and supreme source of law.

(ii) Sunnat or Ahadees:

Ahadees is what was said by Prophet and Sunnat is his practice and actions.

Matters which formed the subject of manifest revelation by hints from Jibriel or by
inspiration or of internal revelation are known as Ahadees i.e., precepts or traditions.
According to the Prophet, traditions are the injunctions of Allah.

The literal meaning of the term Sunna is a patch, a procedure, a way of action. It
denotes some type of practice or precedent. So, the Sunna means the traditions of the Prophet.
Many of these are recorded in the volumes of Hadith literature. Whatever the Prophet said or
did without reference to God is treated as his traditions and is the 2nd source of Muslim law as
it is believed that even his own sayings derived inspiration from Allah. Even his silence to a
question put before him was taken as authoritative and became a precedent.

The preachings and precepts could become an authoritative source of law when some
competent and qualified person called Narrator had narrated it i.e., the Narrator used to
testify that he heard the Prophet saying it or seen him doing it or has seen his silence over
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that matter. If this narration was found to be reliable, it became Sunna. Companions of the
Prophet, Successors of the Companions and Successors of the Successors were recognized as
Narrators with Ali being the most important person recording the Ahadees in black and white.
Some of the important collection of traditions called digests or musannf are contained in
writings of Abu-ibn-Zuhri, Musnad of Ahmed-ibn-Hanbal, in Muwatta, etc.

Tradition as a source of Muslim law consists of –

a) Sunnat-ul-Qaul which means the utterances or the sayings of the Prophet
b) Sunnat-ul-Fail which includes the doings of the Prophet i.e., his behaviour and
c) Sunnat-ul-Taqris which is the silence of the Prophet in answer to a question which
was put before him for his decision which amounted to implied consent/approval
of a rule of law.

(iii) Ijma:
With the death of the Prophet the original law-making process ended. So, those
questions which could not be solved either by the principles of the Quran or the Sunna were
decided by Jurists with the introduction of the institution of Ijma.

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

question of law. In other words, it is the consensus of Jurists opinion. It is termed as a
movable element in law as it is flexible and not rigid like Quran and Sunnat. The
jurists/Mujtahids were persons having knowledge of law.

This source of Muslim law has played a very important role in the subsequent
development of Muslim law because through Ijma it was possible to lay down new principles
in accordance with the changing needs of the Islamic society.

Once a valid Ijma is constituted, it is regarded equal to the Quranic verse and is
equally binding on the people provided it is not contrary to the Quran or the Sunna. The
Prophet Muhammad had once said that his community would never agree on an error.

Authority of Ijma depended upon the merit of the participator in its formation.

Types of Ijma:
From the point of view of authority and importance, there are 3 kinds of Ijma and they are –
a) Ijma of the Companions
The concurrent opinions of the Companions of the Prophet was taken to be the
most valuable and reliable as they were presumed to be the best persons to act
as jurists and such an Ijmas could not be overruled or modified by an
subsequent Ijma.

b) Ijma of the Jurists

In the absence of opinions of the Companions of the Prophet, this type of Ijma
which was an unanimous decision of the jurists over a point of law in a
particular age was taken to be the law. This could be overruled or modified by
an subsequent Ijma.

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c) Ijma of the People or masses

Sometimes, the general agreement/opinion of a great majority of Muslims was
also accepted as law. This type of Ijma was of little value because of 2
reasons - it was not possible to have concurrent opinion and every Muslim was
not a learned scholar. This could be overruled or modified by an subsequent
Ijma.

(iv) Qiyas (Analogical Deduction):

The Qiyas is a process of deduction which helps in discovering the law and not to
establish a new law. Its main function is to extend the law of the text to cases which do not
fall within the purview of the text.

The word Qiyas has been derived from the Hebruic term hiaqish and from an Arabic
root which denotes beat together. In the Arabic language, Qiyas means measurement, accord
and equality.

If there was any problem before the society on which the texts i.e., Quran, Sunnat and
Ijma were silent, then Qiyas was applied to get the law. It was a method of comparing the
problem of society with a similar problem for which solution was given in the texts i.e.,
analogical comparison. The Prophet himself approved the use of reason for exercising
private judgment subject to the dictates of the Quran and the guidance of the Sunnat.

Compared with other three primary sources of Islamic law, the Qiyas is of much
lesser significance.
Sunni uses Qiyas as the fourth source whereas Shia uses aql/intellect.

Primary Sources under Shia Law:

Shia law recognizes the following sources of law – Quran, Traditions which have
come from the Prophet’s family, Ijma which were confirmed by Imams and
Aql/intellect/reason. Besides these sources, sayings and doings i.e., conduct of Imams are
also recognized by the Shias.

2. Secondary Sources:
Secondary sources are those sources which are developments on the foundations laid
down by the primary sources.

The secondary sources of Islamic law are:

(i) Equity, Justice and Good conscience (Istihsan, Istislah, Istildlal):

Istihsan:
The principle of istihsan is something similar to the English Doctrine of Equity,
Justice and Good Conscience. It is a doctrine by which a jurist is enabled to get over a
deduction of analogy either because it is opposed to texts or consensus of opinion or is such
that his better judgment does not approve of it. It is used to override the Qiyas.

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It is a doctrine of the Hanafis which was reduced to a definite rule by Imam Abu
Hanifa, the founder of the Hanafi School. But, the other schools of Sunni law opposed this
doctrine.

Istislah:
It is also something similar to the English Doctrine of Equity, Justice and Good
Conscience and is similar to istihsan but is based on the conception of public good or
common welfare. Hence, the principle of istislah consists in prohibiting an act which may
cause injury to the public interest.
This doctrine was introduced by Imam Malik, the founder of Maliki School.

Istidlal:
This Doctrine is also similar to the English Doctrine of Equity, Justice and Good
Conscience. The word istidlal means inference of one thing from the other and is distinct
from the Qiyas.

(ii) Judicial Decision (Precedent):

Under the principle of precedent, the subordinate court is bound to follow the law laid
down by the superior court i.e., a judicial decision of SC is binding on all HCs and lower
courts and similarly HC’s decision is binding on subordinate courts and the superior court’s
decision become a source of law for the courts subordinate to them on the point decided.

Caselaw: Begum Subanu vs. A.M. Abdul Gafoor

In this case, the Hon’ble Supreme Court held that despite the fact that a Muslim
husband has legal right to contract second marriage, if the first wife lives separately only on
the ground of husband’s second marriage she would still be entitled to get maintenance from
husband.

Fatawas:
A fatwa is an Islamic religious ruling on a matter of Islamic law and is issued by a
recognized religious authority in Islam such as Judges and Scholars/Muftis who base their
rulings on knowledge and wisdom. A fatwa pronounced by a Mufti had great authority but
the Kazi/Magistrate was not bound by it. A fatwa is not necessarily binding on the faithful.

Though not binding in nature, the fatwas have played an important role in the
development of Islamic law and in enriching the legal rules because the Mufti while
searching out the law for a given case used to consult the Quran, the Sunna, the Ijma and then
gave his ruling as to the law applicable to a given case. It may be noted that the Doctrine of
Precedent has taken the form of fatwa nowadays.

The famous collections of Fatwas are Fatwa-i-Alamgiri compiled in 17th Century A.D.
in Aurangzeb’s time, Fatwa-Abdul-Hayya and Imdad-ul-Fatawa.

Caselaw: Vishwa Lochan Madan vs. UoI

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In this case, the Hon’ble Supreme Court has ruled that Fatwa has no place in
independent India under the Constitutional scheme and in case any person or body tries to
impose it their act would be illegal.

(iii) Legislation:
It is generally believed in Islam that Allah alone is the supreme Legislator and no
other agency or body on earth has authority to make laws. This belief is so deep-rooted that
even today any legislative modification may be treated as an encroachment upon the
traditional Islamic law. However, some important enactments on Muslim personal law are
given below:
1. The Mussalman Waqf Validation Act, 1913
2. The Child Marriage Restraint Act, 1929
3. The Muslim Personal Law (Shariat) Application Act, 1937
4. The Dissolution of Muslim Marriage Act, 1939
5. The Muslim Women (Protection of Rights on Divorce) Act, 1986
Apart from the above enactments, there are also enactments which regulate the
law of pre-emption and the law of Waqfs. The Family Court Act, 1984 is also applicable
to Muslims which only regulates the procedure.

(iv) Custom (Urf):

Customs are also known as urf or ta-amul or adat have the force of Ijma though it
does not command any spiritual authority like Ijma. A transaction approved by custom is
legally operative even if it is in violation of a rule of law derived from the Qiyas/analogical
deductions. They form the midway between primary and secondary source of Islamic law
and is regarded as an important source of Muslim law.
Before Islam, the Arabs were governed by customary laws and when Islam came into
existence customs found to be evil and bad were totally abolished by the Prophet and were
declared un-Islamic. But, there were certain pre-Islamic customs like dower, talaq, etc.,
which were found to be good and tolerable and continued because the Prophet sanctioned
them by his silent approval.

The following conditions must be fulfilled for the proof of a valid custom:
1. It must be ancient and of general prevalence
It is necessary that custom should be generally prevalent in a country, but it is not
essential that it should have its origin in the time of the Companions of the Prophet. It is also
not necessary that the custom should be prevailing beyond the living memory to make it
enforceable. But, there is no knowledge as to what time should elapse before a custom will
be accepted by a Court of law.

2. It must be territorial:
The custom must be existing within the territorial limits of the country in which the
question of its validity arises and a custom in one country will not hold good in another.

3. It should not be immoral or against public policy:

An immoral custom or a custom opposed to public policy is not enforceable in the
court of law.
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4. It should be continuous and invariable:

For a custom to be valid there should not be a long break in adherence to it.

5. It should not be opposed to Islamic law:

If a custom is against the provisions of Islamic law, it is invalid. Also, it should not be
in violation of the Sunna.

Caselaw: Abdul Hussain Khan vs. Bibi Sona Dero

In this case, the Privy Council observed that if a custom is proved, it would prevail
over a written text of law provided the custom was ancient and invariable.

The conservative Muslims opposed this general application of rule as they felt that it
violated the original law, Shariat and demanded that there should not be any place for
customs in the Muslim personal law as it was un-Islamic. Accordingly, the Muslim Personal
Law (Shariat) Application Act, 1937 was enacted under which custom is not an independent
source of Muslim personal law.

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Q: ENUMERATE THE DIFFERENCES BETWEEN SUNNI AND SHIA REGARDING MARRIAGE,

DOWER AND DIVORCE.

A:
1. MARRIAGE/NIKAH:
Nikah literally means to tie up together. Man and woman agree together to lead a
married life and this agreement is called Nikah. In Islam, marriage is a civil contract in
nature, it is a special kind of social and legal relationship for the purpose of making a family.

Hedaya says:-
Marriage is a legal process by which the several processes and procreation and
legitimation of children between man and women is perfectly lawful and valid.

DIFFERENCES BETWEEN THE SUNNI AND SHIA:

Following are the difference between the 2 sects regarding marriage:
TOPIC ASPECT SUNNI SHIA
Age of Puberty 15 years for both male 15 years for male
MARRIAGE and female and 9 years for
female
Guardians of Minor Father, paternal grand Father, paternal
father howsoever grand father
high, brother or other howsoever high
male members of the
father’s family,
mother, maternal
uncle, aunt or other
maternal relations
Inter-religious marriage Boy can marry a Boy cannot marry a
Muslim girl of any non-Muslim female
sect and a Kitabia girl or a Kitabia female
i.e., Christians and
Jews
Muta Marriage Prohibited Ithna-Ashari
School:- Permitted
Consent if under Hanafi School:- Valid Void
compulsion
Witnesses 1) Hanafi School:- 1
male and 2 adult
female witnesses
2) Shafi School:- 2
male witnesses
Relative Prohibitions:
1. Unlawful Conjunctions Considered Irregular Void
2. Fifth wife
3. During Iddat
During Haj Valid Prohibited

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2. DOWER:
CONCEPT OF MAHR:
In pre-Islamic Arabia, the husband in consideration of wife leaving her parent’s home
used to pay some amount to her parents and this amount was known as Mahr. According to
Fyzee, historically speaking, it is more akin to bride price than gift or anything else.

DEFINITIONS:
According to Wilson, dower is a consideration for the surrender of person by the wife.
It is the technical Anglo-Mohammedan term for its equivalent Mahr in Arabia.

According to Abdur Rahim, Mahr is that sum of money or property which a Muslim
wife is entitled to get from her husband on marriage as a token of respect towards herself.

DIFFERENCES BETWEEN THE SUNNI AND SHIA:

Following are the difference between the 2 sects regarding dower:
TOPIC ASPECT SUNNI SHIA
Minimum Dower 1) Hanafi School:- 10 No minimum fixed
Dirhams - Persian
(silver coin of 2.97
gms)
DOWER
2) Maliki School:- 3
Dirhams
3) Shafi School:- No
minimum fixed
Liability to pay When it is fixed by If son has no means to pay
father it is binding on it, then father is liable for
son but father is not it
personally liable to
pay it
Type of specified Whole dower is One-half of it is prompt
dower not prompt dower dower, the other half is
mentioned deferred dower
Proper dower Hanafi School:- if less Ithna Ashari School:- it
than 10 Dirhams, wife cannot exceed 500
is entitled only to the dirhams, the dower as
minimum of 10 fixed for Fatima, Prophet’s
dirhams daughter

3. TALAK:
Talak is an Arabic word and its literal meaning is - undoing of or to release from a knot.
The technical meaning of talak is freedom from bondage of marriage.
The contract of marriage under the Mohamedan law may be dissolved by the husband
and a divorce by the husband is known as talak. It is one of the kinds of divorce without the
intervention of court.

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DIFFERENCES BETWEEN THE SUNNI AND SHIA:

Following are the difference between the 2 sects regarding divorce:
TOPIC ASPECT SUNNI SHIA
If under compulsion 1) Hanafi School:- Valid Not recognized
even if pronounced
under compulsion,
coercion, under
influence, fraud,
Divorce voluntary
Or intoxication, etc.
Talaq 2) Maliki School:- Not
recognized
3) Shafi School:- Not
recognized
4) Hanbali School:- Not
recognized
Physically capability Oral or writing In writing if not
physically capable
Witnesses Valid without witnesses Oral talaq valid only if
in presence of 2
competent witnesses
Talaq-ul-Biidat - Recognized Not recognized
Disapproved mode of
divorce
Conditional and Recognized Not recognized
Contingent Talaq
Divorce by mutual
consent:
1. Khula 1) Hanafi School:- Valid Not valid
2) Maliki School, Shafi
School & Hanbali
School:- Not valid

Not necessary
a) Presence of Witness 2 competent witnesses
necessary, it is
revocable by wife
during Iddat period
Recognized
b) Conditional or Conditional Khula Not
Unconditional recognized

2. Mubarat No particular form

i) Form prescribed Proper form:
Mubaraat should be
followed by the word
Talaq and pronounced
in Arabic unless
parties incapable of
pronouncing in Arabic

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Kartheek D. N. Selected Topic Notes:- Family Law - II

Q: WHO IS A MUSLIM? WHAT ARE THE CONSEQUENCES OF COLOURABLE CONVERSION?

DISCUSS WITH THE HELP OF DECIDED CASES.

A:
MUSLIM:
Islam means peace by submission and obedience to the Will and Commandments of
God Allah and those who accept Islam are called Muslims.
Any person who follows the fundamental tenets of Islam is called a Muslim.

MUSLIM LAW:
It is a religious law applicable to a person who is a Muslim either by birth or by
conversion.

According to Prophet Mohammad, the Muslim law is commandment of God Allah

and the sovereign in Muslim States and it is a Muslim’s duty to follow it literally.

CONVERSION:
Every person has a complete liberty to forsake his previous religion and to convert
himself to another religion. There can be various reasons which can prompt a person to
change his/her religion. But, when one changes his religion, then such a change should come
from one’s heart based on his change of faith and his determination to embrace the new
religion with complete faith, belief and consciousness. Conversion from one religion to
another religion in any case is a solemn, pious and noble act with far reaching consequences
and it cannot be seen as an exercise undertaken by someone as a mere pretence to achieve
some limited objective or purpose.

COLOURABLE CONVERSION:
Colourable means it is something which looks bona fide on the face of it. Therefore,
a colourable conversion is a conversion which looks bona fide on the face of it but is actually
dishonest or done with mala fides or pretended or done with a view to elude the personal law
to which he/she is subject.

CONSEQUENCES OF COLOURABLE CONVERSION:

Caselaw: Skinner vs. Orde
In this case, one Christian lady namely Helen Skinner married in Christian form a
Christian man named George Skinner; the lady cohabited with a married Christian man, John
Thomas. In order to legalize their living together as husband and wife, both of them went
through the ceremony of conversion to Islam.
The Privy Council by observing the marriage was of doubtful validity because the
conversion was not genuine but was fraud upon law as the conversion to Islam was with a
view to elude their personal law declared the marriage between them as null and void.

Caselaw: Rakeya Bibi vs. Anil Kumar

In this case, a married Hindu lady with a view to getting rid of her impotent husband
embraced Islam and prayed the Court that on her conversion to Islam her Hindu marriage
stood dissolved.
The Hon’ble Court by observing that she embraced Islam only with the idea of getting
rid of her impotent husband.held that the conversion was not bona fide.

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Caselaw: Sarla Mudgal vs. UoI

In this case, a Hindu husband converted to Islam and thereafter contracted marriage
with a Muslim girl without divorcing his first wife, a Hindu.
The Hon'ble SC observed that since it is not the object of Islam nor is the intention of
the enlightened Muslim community that Hindu husband should be encouraged to become
Muslim merely for purpose of evading their own personal law by marrying again held that
the conversion was mala fide and declared the second marriage void.

Caselaw: Ahmedabad Women Action Group vs. UoI

In this case, a husband converted to Islam to get rid of his earlier wife as Islam
permits four wives.
The Hon'ble SC held that the right of plurality of marriages is not conferred on the
husband unconditionally. His capacity to do justice between co-wives is condition precedent.

Caselaw: Lily Thomas, etc. Vs. UoI

In this case, the Hon'ble SC held that change of religion does not dissolve the
marriage performed under the Hindu Marriage Act or between 2 Hindus. A married Hindu
contracting second marriage after professing Islam despite his conversion would be guilty of
offence punishable u/s.17 of the Hindu Marriage Act, 1955, a monogamous law r/w s.494 of
the IPC,1860 because mere conversion does not automatically dissolve his first marriage.

Caselaw: In the matter of Ram Kumari

In this case, the Hon’ble Court has ruled that conversion of a person into the Islamic
faith has effect on marital right. If a Hindu wife converts to Islam, her marriage with the
Hindu husband is not ipso facto dissolved. Before legally dissolving the marriage if she
marries for the second time a Muslim after her conversion into Islam she commits an offence
of bigamy u/s.494 of IPC, 1860.

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Kartheek D. N. Selected Topic Notes:- Family Law - II

Q: DEFINE AND DISTINGUISH BETWEEN VALID, VOID AND IRREGULAR MARRIAGES UNDER
MUSLIM LAW.

A:
MARRIAGE/NIKAH:
Nikah literally means to tie up together. Man and woman agree together to lead a
married life and this agreement is called Nikah. In Islam, marriage is a civil contract in
nature, it is a special kind of social and legal relationship for the purpose of making a family.

Hedaya says:-
Marriage is a legal process by which the several processes and procreation and
legitimation of children between man and women is perfectly lawful and valid.

KINDS OF MARRIAGE:
According to Sunni law, the marriage may be classified into 3 categories of
Valid/Sahih marriage, Void/Batil marriage and Irregular/Fasid marriage.

According to Shia law, the marriage may be classified into 3 categories of

Valid/Sahih marriage, Void/Batil marriage and Temporary/Muta marriage. Muta form of
marriage is a distinct form of marriage. Shia law does not recognize Irregular/Fasid marriage.

DEFINITIONS:
1. VALID MARRIAGE:
A marriage which fulfills all the prescribed conditions of a valid marriage, i.e.,
competency of parties, free consent of parties, due completion of formalities and ceremonies
for the marriage and absence of any prohibition or impediment to contract the marriage, is a
valid marriage.

2. VOID MARRIAGE:
A marriage in which there is any fundamental legal defect in it is a void marriage, the
prohibition against the marriage being perpetual and absolute.

Example:
Marriage with a woman prohibited by reason of consanguinity, affinity or fosterage.

3. IRREGULAR MARRIAGE:
A marriage in which there is some irregularity is an incomplete marriage which
becomes perfectly valid as soon as the particular irregularity is removed.
Shia law does not recognize irregular marriages.

Example:
1) A marriage contracted without witness due to accidental circumstances
2) A marriage with a 5th wife by a person having 4 wives, objection removed by divorc/death
3) A marriage with a woman undergoing iddat, impediment removed after Iddat period
4) A marriage prohibited by reason of difference of religion, objection removed byconversion
5) A marriage with wife’s sister, objection removed by divorcing the wife

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Kartheek D. N. Selected Topic Notes:- Family Law - II

DISTINCTION BETWEEN VALID, VOID AND IRREGULAR MARRIAGE:

Following are the distinctions between a valid, irregular and void marriage:-
SL. VALID IRREGULAR
ASPECT VOID MARRIAGE
NO. MARRIAGE MARRIAGE
1 Validity of Marriage Valid Irregular Void ab initio
2 Status of Parties Parties are called Parties are called as Free to live
as husband and husband and wife according to their
wife own ways
3 Mutual Right of Mutual right of No mutual rights of No mutual right of
Inheritance inheritance exists inheritance exists if inheritance
death of a party
occurs before
removing
irregularity
4 Cohabitation Lawful Lawful Unlawful
5 Status of Children Legitimate and Legitimate and have Illegitimate
have right to right to inherit their
inherit their parent’s properties
parent’s
properties
6 Wife’s right to Fully exists No legal effect if Not entitled to
dower, maintenance not consummated. dower or
and residence If consummated, maintenance as it
wife is entitled to does create any
dower which may civil rights or
be proper or obligations
specified whichever between the parties
is less
7 Observance of Iddat Cannot re-marry If marriage is
during this period consummated, Iddat
is required to be
observed
8 Prohibitions of Parties are
affinity prohibited to
marry the
relations of the
other within
prohibited
degrees
9 Marriage agreement If any legal
agreement exists it
comes into force on
completion of
marriage. An
illegal agreement
does not affect the
validity of the
marriage but the
conditions are void
and inoperative.

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Kartheek D. N. Selected Topic Notes:- Family Law - II

Q: WHAT ARE THE ESSENTIALS OF A SAHIH/VALID MARRIAGE?

A:
CONCEPT AND IMPORTANCE OF NIKAH:
Family starts with marriage and hence the institution of marriage is regarded as the
central idea of the branch of Family Law in every community.
Marriage acts as an outlet for sexual needs and regulates it so one does not become a
slave to his/her desires. It is a social necessity because family is the fundamental unit of a
society. It is a legitimate/halal way to indulge in intimacy between a man and a woman.

Marriage in Islam has the twin aspect of worship/ibadah of Allah and transactions
between human beings/maumalah.
The importance of the institution of marriage receives its greatest emphasis from the
following hadith of the Prophet -
Marriage is my Sunna. Whosoever keeps away from it is not from me.

MARRIAGE/NIKAH:
Nikah literally means to tie up together. Man and woman agree together to lead a
married life and this agreement is called Nikah. In Islam, marriage is a civil contract in
nature, it is a special kind of social and legal relationship for the purpose of making a family.

Hedaya says:-
Marriage is a legal process by which the several processes and procreation and
legitimation of children between man and women is perfectly lawful and valid.

ESSENTIALS OF A SAHIH/VALID MARRIAGE:

Under the Muslim Law, marriage is a contract and a valid contract will accrue only if
the following essentials have been observed:
1) Competence of the parties
2) Free consent of the parties
3) Formalities and Ceremonies
4) Absence of Prohibition and Impediment

1) Competence of the parties:

Parties to the marriage are competent if they are:-
i) of the age of puberty
ii) of sound mind and
iii) Muslim
i) Age of puberty:
For purposes of marriage, dower and divorce the age of majority is considered
to be equal to the age of puberty i.e., the age at which a person is supposed to acquire

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sexual competency which may be ascertained on the basis of physical features of the
boy and the girl.

Under Sunni law, no male is said to have attained puberty under the age of 12
years and no female under the age of 9 years, but in the absence of any evidence to
the contrary a male or a female is presumed to have attained puberty at the age of 15
years.
Under Shia law, the age of puberty for a male is 15 years and for a female is 9
years.
This has to be r/w the provisions of the Child Marriage Restraint Act, 1929
which lays down that marriage of males under the age of 21 years and females under
the age of 18 years is to be prevented. If it is in contravention to this Act, it is not
declared void but it lays down certain punishments for the breach of the same.

A person who has not attained the age of puberty i.e., 15 years is a minor.
Hence, without the consent of his guardian, his marriage is void. His guardians may
be his father; paternal grand father howsoever high; brother or other male members of
the father’s family; mother; maternal uncle, aunt or other maternal relations. If the
aforementioned are absent, then it may be contracted by a Kazi or an authority of the
Government.

ii) Sound mind:

At the time of marriage, both the parties must be of sound mind as persons of
unsound mind do not have the capacity to enter into a contract of marriage because
their own consent is no consent in the eyes of law.

iii) Muslim:
The parties must be Muslim. Where both the parties are Muslims, but belong
to different sects, it is an inter-sect marriage

2) Free consent of the parties:

Consent for the marriage should be free from all forces i.e., it should be given
voluntarily and freely and not under compulsion, fraud or mistake of fact.
Under all schools of Muslim Law except the Hanafi if consent is obtained under any
compulsion, the marriage is void. However, Hanafi school’s peculiarity is based on a
tradition.
If the consent has been obtained by playing fraud, the marriage is voidable at the
option of the party defrauded.

3) Formalities and Ceremonies:

Formalities:
The only essential formality is that the offer/ijab and the acceptance/qubool is made at
the same sitting. Offer in the form of declaration is generally made from the side of the

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boy/his guardian and is accepted by the girl /her guardian. It may be either oral or in writing.
If it is in writing, it is called Kabinnamah and it acts as an important document evidencing the
marriage.
It must be done in the presence and hearing of the other and also in the presence and
hearing of 2 male/1 male and 2 female witnesses.

Ceremonies:
No religious ceremonies are required for the validity of a marriage, but in India most
of the marriages are performed ceremoniously.
In the customary/urf form, many ceremonies are performed but in legal/Sharia form
no ceremonies are required.

Some of the customary ceremonies are:

i) Pre-marriage preparation
ii) Welcoming the Baraat
iii) The wedding night
iv) Nikah, nikah ceremony, time of marriage
v) Witnesses, presence of Kazi
vi) Valima/dinner
vii) Blessing the groom
viii) Dinner, prayers and Aarsimahaf
ix) Post-wedding ceremony
x) Welcoming the bride

4) Absence of Prohibition and Impediment:

Prohibitions are of 2 kinds:
i) Absolute prohibitions
ii) Relative prohibitions
i) Absolute Prohibitions:
A marriage contracted in violation of any of the absolute prohibitions is void-ab-initio
under all schools of Muslim Law.
2 persons are said to be within prohibited relationship if they are related to each other
by consanguinity, affinity or fosterage.

Under Consanguinity i.e., relation by blood/Tahrim-un-nasab, a Muslim cannot marry

with any of his/her relations who is one’s own ascendant/descendant howsoever high;
descendants of one’s father/mother howsoever low; brothers or sisters of one’s ascendants
howsoever high
Under Affinity i.e., relation by marriage/Tahrim-al-Musaheret, one cannot marry with
wife/husband of one’s ascendant/descendant howsoever high
Under Fosterage i.e., relation by milk/Tahrim-ar-raza, marriage with the foster-mother
is prohibited as she is treated as the real mother of the child.

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ii) Relative Prohibitions:

If a marriage is contracted in violation of relative prohibition, the marriage is not void
but is irregular according to Sunni Law. As soon as the irregularity is removed, the marriage
becomes valid.
These prohibitions are unlawful conjunctions, marriage with the 5th wife, marriage
with a non-Muslim, marriage without witnesses, marriage during Iddat.

Under unlawful conjunction, a man is prohibited to marry the sister of his wife. Such
a marriage is irregular/fasid but not void/batil and continue to subsist till terminated in
accordance with law. Issue of such a marriage is legitimate.
Muslim Law allows a limited polygamy of 4 wives. However, marriage with a 5th
wife is only irregular which can be removed either by divorce of any of the 4 wives or death
of any of them. Under Shia law, it is void.
Under Muslim Law, a Sunni male is permitted to marry a Kitabia female but is
prohibited to marry a non-Muslim or a non-Kitabia woman. However, such a marriage is
irregular, but not void ab initio. Under Shia law, such a marriage is void. A Kitabia female
is one who belongs to a community the origin of which is believed from a heavenly revealed
Kitab/book. Christians and Jews are regarded as Kitabia communities.
Under Sunni law, marriage without 2 witnesses is irregular. However, under Shia law,
the presence of witnesses is not necessary.
Under Sunni law, marriage with a woman observing Iddat is irregular but under Shia
law the marriage is void.

Under Muslim Law, polyandry is void both under the Sunni law and the Shia law.

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Kartheek D. N. Selected Topic Notes:- Family Law - II

Q: DEFINE DOWER. EXPLAIN VARIOUS KINDS OF DOWER.

A:
MARRIAGE/NIKAH:
Nikah literally means to tie up together. Man and woman agree together to lead a
married life and this agreement is called Nikah. In Islam, marriage is a civil contract in
nature, it is a special kind of social and legal relationship for the purpose of making a family.
Mahr is an integral part of a Muslim marriage.
CONCEPT OF MAHR:
In pre-Islamic Arabia, the husband in consideration of wife leaving her parent’s home
used to pay some amount to her parents and this amount was known as Mahr. According to
Fyzee, historically speaking, it is more akin to bride price than gift or anything else.

DEFINITIONS:
According to Wilson, dower is a consideration for the surrender of person by the wife.
It is the technical Anglo-Mohammedan term for its equivalent Mahr in Arabia.

According to Abdur Rahim, Mahr is that sum of money or property which a Muslim
wife is entitled to get from her husband on marriage as a token of respect towards herself.

KINDS OF DOWER:
Dower may be classified as under:
1) Specified dower/Mahr-i-Musamma
2) Proper Dower/Unspecified Dower/Mahr-i-Misl

1) Specified dower/Mahr-i-Musamma:
When the amount of dower is fixed by a contract between the parties to the marriage,
it is called specified dower. It may be fixed either before marriage or at the time of marriage
or even after marriage. But, the specified dower would not be less than proper dower. The
amount may be fixed by the father if the son is minor or insane. If it is left to the discretion
of the wife, she cannot fix more than 500 Dirhams under Shia law. It is common practice to
settle the amount of dower at the time of marriage.
According to Sunni law, dower fixed by the father is binding on the son and he is not
personally liable to pay it. But, according to Shia law, if the son has no means to pay it, the
father is liable to pay it.

Caselaw: Syed Sabir Husan vs. Farzand Hasan

In this case, a Shia father made himself surety for the payment of Mahr of his minor
son and thereafter died.
The Hon’ble Court held that the entire estate of the deceased was liable for the
payment of son’s Mahr and accordingly each heir was made responsible for a portion of the
wife’s claim in proportion to the share received by the particular heir on distribution from the
estate of the deceased from out of the extent of assets received and not personally.

Alteration of Dower:
At any time after the marriage, the husband and wife may lawfully enter into a
contract for the enhancement of the amount of dower specified at the time of marriage. Also,
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the wife can herself reduce or remit her claim to the whole or a part of the dower provided
she has attained the age of puberty and is competent to do so. This remission is called hibat
al-mahr or hiba-e-mahar.

Kinds of Specified Dower:

Specified dower is of 2 kinds:
i) Prompt Dower/Mahr-i-Muwajjal
ii) Deferred Dower/Mahr-Muwajjal

i) Prompt Dower/Mahr-i-Muwajjal:
Prompt dower is payable to wife immediately after marriage or on her demand at any
time whether consummation has taken place or not. If it is not paid on demand, the wife is
entitled to get also interest for the period of delay. If the marriage is not consummated, the
wife may refuse consummation till it is paid. If the dower is demanded very late, it does not
make it a deferred dower as the promptness is not in demand but in payment after the demand.

ii) Deferred Dower/Mahr-Muwajjal:

Deferred dower is payable to wife on the expiry of a specified period or on the
happening of such contingency to which it is deferred or on the dissolution of marriage either
by divorce or death of either party. However, the husband can pay it earlier.

When specified dower is fixed, normally it is also mentioned whether it is a prompt or

deferred dower. If it is not so mentioned, the Shias regard the whole as prompt dower and
the Sunnis regard one-half of it as prompt and the other half as deferred. However, the
Courts hold that the entire amount is prompt dower.

2) Proper Dower//Unspecified Dower/Mahr-i-Misl:

When the amount of dower is not fixed by a contract between the parties either
negligently or intentionally, the wife is entitled to a proper dower by operation of law as it is
an essential incident under Muslim Law to the status of marriage. Even in cases of irregular
marriage the wife is entitled to receive proper dower even if the dower is specified.
Once the dower is confirmed, the wife is entitled to the dower. Dower is confirmed
either on consummation of marriage or death of either party or on valid retirement.

NON-PAYMENT OF DOWER:
If the husband refuses to pay the prompt dower, the guardian of a minor wife has the
right to refuse to allow her to be sent to the husband’s house. Similarly, the wife may refuse
the husband his conjugal rights provided no consummation has taken place and in such a case
the husband is bound to maintain her.
The non-payment of deferred dower does not confer on the wife such a right of
refusal as it arises only on the happening of a specified event, divorce or death.

SUIT FOR DOWER:

The wife/widow/divorcee/her heirs have a right to sue for the recovery of dower.
According to the Indian Limitation Act, 1963, a suit must be filed within a period of 3 years
from the date of refusal in case of prompt dower while the marriage is subsisting. And, in
case no demand and refusal is made, then from the date of dissolution of marriage by death or
divorce.
If the dower is a registered immovable property, the period of limitation is 12 years
and if it is movable it is 3 years.

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SHORT NOTES ON:-

MUTA MARRIAGE

INTRODUCTION:
The literal meaning of the word Muta is enjoyment, use. So, Muta is a temporary
union of male and female for a specified duration on payment of some consideration. It is
said that Caliph Omar had made an attempt to suppress and condemn the practice of Muta
and tried his best to abolish it from the society. Since then, Muta form of marriage has not
been in practice under any School of Muslim Law except the Ithna Asharia Shia law. In
India, it is not in practice.

MUTA MARRIAGE:
Muta is a legal marriage that was built solely on a sexual desire that existed between
two couples to enable them to avoid fornication and prostitution in the society and to allow
the men who couldn’t afford a traditional and cultural marriage to still be able to marry
women.
The Quran does not support this view as it specifically disallows all sexual
relationships besides that which are based on Nikah or that which are between a master and
his slave girl.
In the classical Arabic language, a woman with whom a person had entered into a
contract of Muta was called the Mamtuah of the person and was not referred to as zaujah/wife
of the person.

ESSENTIALS OF MUTA MARRIAGE:

The essential conditions for a Muta marriage are as follows:
1) Parties must have attained the age of puberty and also possess a sound mind
2) Consent of both the parties must be a free consent
3) Formalities of offer and acceptance which are necessary for a regular marriage are also
essential in the Muta form of marriage. It may be contracted by the use of the word Muta
or any other word signifying temporary marriage
4) There must not exist any prohibited relationship between the parties
5) Period for cohabitation and the amount of dower must be specified. The period may be for
a day or for a week or for a certain number of years. If the duration has not been specified,
it is regarded as a permanent marriage.
6) The Shia male may contract Muta with any Muslim, Kitabia or a fire worshiping woman.
Muta with a Hindu woman is void.

LEGAL EFFECTS OF MUTA MARRIAGE:

The following are the main incidents of a Muta marriage:
1) Parties to a Muta marriage will be called the Muta husband and Muta wife.
2) Cohabitation between them is lawful
3) Children born out of such a marriage are legitimate and have rights to inherit properties of
both the parents
4) Parties to a Muta marriage have no mutual rights of inheritance. However, if there is an
agreement to the contrary in case of death of either party, then such an agreement is valid
5) The wife is entitled to full dower even if the husband does not cohabit for the full duration.
But, if the wife leaves the husband, then the husband has a right to deduct from the dower
an amount proportionate to the unexpired period of the duration.
6) A Muta wife is not entitled to get any maintenance from the husband under Shia law, but
she can claim maintenance u/s.125 of Cr.P.C.

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7) If the Muta is dissolved after consummation, the wife is required to undergo an Iddat of 2
months but if it is dissolved due to death of the husband then an Iddat of 4 months 10 days
is required to be observed.

TERMINATION OF MUTA MARRIAGE:

A Muta marriage terminates in the following circumstances:
1) It terminates automatically on the expiry of the fixed duration. However, if parties to
cohabit even after the fixed duration, then it will be presumed that the term has been
extended to the entire period.
2) The husband can terminate the marriage before the completion of the duration without the
wife’s consent by making a gift of the term, Hiba-i-Mudddat
3) It terminates on death of either party
4) It may also be terminated by mutual consent of the parties.

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Q: SCHOOLS OF MUSLIM LAW

A:
MUSLIM LAW:
Islamic law is a branch of Muslim theology giving practical expression to the faith
which lays down how a Muslim should conduct in accordance with his religion both towards
God and towards other men. It is based on man’s duties or obligations rather than on his
rights. It is a religious law applicable to a person who is a Muslim either by birth or by
proselytization.

According to Prophet Mohammad, the Muslim law is commandment of God Allah

and the sovereign in Muslim States and it is a Muslim’s duty to follow it literally.

Islam means peace by submission and obedience to the Will and Commandments of
God Allah and those who accept Islam are called Muslims.

SCHOOLS OF MUSLIM LAW:

The followers of Islam are divided into two main divisions:
1) Sunni and
2) Shia.
Each of the schools is again divided into a number of schools having its own books of
authority.

1) Sunni School of Jurisprudence:-

Abu Bakr, father of Ayesha Begum, the youngest wife of Prophet was elected as the
1 Caliph of the Sunni sect. They assumed the name of Ahlu-Sunnat-wal-Jamat which means
st

people of the tradition and assembly.

There emerged four schools of thought or schools of jurisprudence during 8th and 9th
Centuries and they are:
(i) The Hanafi School or Kufa School
(ii) The Maliki School or Medina School
(iii) The Shafi School and
(iv) The Hanbali School
All the schools of Sunni Law subscribed to the same principles, but they differed in
details. The main cause of division among Sunnis is probably their different degrees of stress
on one or more sources of law though the text of Quran is accepted by all the schools.

(i) The Hanafi School or Kufa School:

The Hanafi school is regarded as the most prominent among the four schools of Sunni
law. It is named after its founder Abu Hanifa who was an eminent scholar of his time and
was widely known for his outstanding logical reasoning and technical legal thought due to
which he earned the titles of upholder of private judgment and Great Imam.

Some important features of this school are as follows:

a) Its main contribution is finding out the law in Quran through analogical deductions instead
of accepting each and every tradition as law
b) It applied Istihan i.e., principle of juristic equity in the absence of law in Quran

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c) It relied upon only 18 traditions which passed the severe test of originality
d) It gave prominence to other sources of law such as the Qiyas i.e., measurement and Ijma
i.e., consensus of jurists’ opinion

(ii) The Maliki School or Medina School:

This school is named after its founder Imam Malik-ibn-Anas who is regarded as the
greatest exponent of traditions and he was also a jurist. Malik and the subsequent jurists of
this school had the privilege of being judges and as such they had to solve day-to-day
problems of the public. This made their approach of law more practical than that of the
Hanafis. A new element called Istidlal i.e., inferring a thing from another thing for public
welfare was introduced.

Some important features of this school are as follows:

a) It gave importance to traditions of Prophet in interpreting the text and law
b) It relied on Ijma (of Mujtahids) where there was a conflict of traditions
c) It upheld the exercise of Qiyas on the failure of other sources.
d) It recognized the principle of Muslahat i.e., public welfare which was corresponding to
Istihan.

(iii) The Shafi School:

This school is named after its founder Imam Mohammad Ibn-Idris-Ash-Shafei who
was an eminent scholar of Islamic jurisprudence. He examined the traditions in the light of
legal reasoning and logic in order to get a very balanced and systematic rule of law.

Some important features of this school are as follows:

a) It relied on traditions more than Hanafis but also studied them more critically than Hanafis
and devised ways to compromise between contradictory traditions
b) It made more use of analogy based on Quran, the Sunnat, the Ijma and the Qiyas.
c) It gave wide scope to Ijma
d) It created the Classical theory of Islamic jurisprudence
e) It also founded the science of Usul.

(iv) The Hanbali School:

This school is named after its founder Imam Abu Abdullah Ahmed-ibn-Hanbal. Due
to his rigid adherence to traditions of the Prophet, he is said to be a traditionalist rather than a
jurist. He neglected the other sources of law namely Ijma and Qiyas but recognised Ijma
only of the Companions of the Prophet.

Some important features of this school are as follows:

a) It’s interpretations of traditions was very liberal
b) It relied solely on the traditions of the Prophet
c) It perfected the Doctrine of Usul
d) It permitted a very narrow scope to the doctrine of analogy

2) Shia School of Jurisprudence:-

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Ali who was son-in-law of Prophet and his cousin and husband of Fatima, the
daughter of the Prophet was nominated as the first Imam of Shia sect. They being direct
descendants of Mohammed often referred to themselves as people of the house (of the
Prophet).

Due to dispute over leadership of Shia community in various stages of its

development led to the formation of three schools of thought or schools of jurisprudence and
they are:
(i) The Zaydis School
(ii) The Ismailia School
(iii) The Ithna Asharia School

The important features of the Shia Schools are as follows:

a) The Shias accept only those traditions which emanate from the household of the Prophet,
particularly of Ali
b) They do not accept Qiyas i.e., analogical deductions
c) They affirm that Imam is the final interpreter of law
d) They affirmed that the Ijma could be valid only when it was impossible to consult the
Imam
e) They do not recognize Istihasan i.e., the principle of equity, Muslahat i.e., public welfare
and analogy
There is no important difference between these schools in so far as the law is concerned.

(i) The Zaydis School:

This school is named after its founder Zyad and is the first school of Shia law. The
Zyadis were the first to defect from the general body of Shia Muslims. One of the peculiar
features of this school is that its doctrines incorporate some of the Sunni principles as well.

(ii) The Ismailia School:

This school is named after its founder Ismail who was recognized as the 7th Imam and
not Musa Karim. They were called Ismailias or the Seveners because according to them there
had been only 7 Imams the 7th being Ismail.

In India, they consist of two main groups:

a) Khojas and
b) Bohras
The Khojas are Eastern Ismailis and the followers of Aga Khan, the 49th Imam
whereas the Bohras are Western Ismailis. The expression Bohra means merchant.

(iii) The Ithna Asharia School:

This is the third and most prominent among other schools of Shia law. Its followers
are also known as Twelvers because they recognize the 12 Imams from Imam Ali to Imam
Mohammad-al-Mahdi and the followers believe that the 12 Imams possessed spiritual powers.
The followers take everything that comes from the Imam as law. This school has been
followed by majority of the Shia Muslims in the world.

This school is further divided into two sub-sects:

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a) The Akhbari and

b) The Usuli
The Akhbaris are orthodox and rigid traditionalists and are guided by authoritative
expositions of law laid down by their sages or Mujtahids. On the other hand, the Usulis are
guided by traditions and also by their private judgments as equity but in the absence of
Imams only. They accept only those resolutions which are approved by Imams.

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UNIT - 2

Q: EXAMINE THE GROUNDS FOR DIVORCE UNDER INDIAN DIVORCE ACT, 1869.

A:
MARRIAGE/NIKAH:
Nikah literally means to tie up together. Man and woman agree together to lead a
married life and this agreement is called Nikah. In Islam, marriage is a civil contract in
nature, it is a special kind of social and legal relationship for the purpose of making a family.

DIVORCE:
A divorce decree has the effect of dissolving the marriage by putting an end to the
marriage ties and the separation is absolute and final. This kind of divorce is with the
intervention of the Court.

1. GROUNDS FOR DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
s.2 of Dissolution of Muslim Marriages Act, 1939 contains 9 grounds on the basis of
any one or more of which a wife married under Muslim Law may file a petition for divorce.
A non-Muslim woman can also invoke the provisions of this Act if she was married
u/Muslim Law.

The specified grounds are as under:

(1) Husband is missing for 4 years
(2) Husband’s failure to maintain the wife for 2 years
(3) Husband is imprisoned for 7 years
(4) Husband’s failure to perform marital obligation for 3 years
(5) Husband’s impotency
(6) Husband’s insanity, Leprosy or Venereal Disease for 2 years
(7) Repudiation of Marriage or Option of Puberty
(8) Husband’s Cruelty
(9) Any other ground which is recognised as valid for the dissolution of marriage u/Muslim
Law

1) Husband is missing for 4 years: - s.2(i)

s. 2(i) of the Act deals with this aspect. According to the section, if the whereabouts
of the husband have not been known to the wife for a period of 4 years or more, then the wife
is entitled to sue for divorce.
s.3 of the Act lays down that the wife in such a case is required to furnish the Court
with names and addresses of all such persons who would have been legal heirs of the husband
upon his death so as to issue notice to them to appear before it and state if they have any
knowledge about the whereabouts of the husband during the duration.
Once it is fully established that nobody knows about the whereabouts of the husband,
the Court passes a decree of dissolution of marriage.
However, proviso (b) to s.2 provides that a decree passed by the Court will not take
effect for a period of 6 months from the date of such decree during which period if the
husband appears either in person or through an agent before the Court and satisfies the Court
that he is prepared to perform his conjugal duties the Court shall set aside the decree.

2) Husband’s failure to maintain the wife for 2 years: - s.2(ii)

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s. 2(ii) of the Act deals with this aspect. According to the section, if the husband has
neglected or has failed to provide for the maintenance of the wife for a period of 2 years the
wife is entitled to sue for divorce.
The word neglect implies willful failure and the words has failed to provide implies
the omission of duty.
It is the legal obligation of the husband to maintain his wife with those things which
are necessary to support life such as food, cloths and lodging.
s.125, Cr.P.C. is an independent provision for maintenance of a wife.

Caselaw: A. Yousuf Rawther vs. Sowramma

In this case, the Hon’ble Court by reading s.2(ii) w/s.2(iv) of the Act has held that
whatever the cause may be the wife is entitled to a decree for dissolution if the husband fails
to maintain her for a period of 2 years even though she might have contributed towards the
failure of the maintenance by her husband.

3) Husband is imprisoned for 7 years: - s.2(iii)

s. 2(iii) of the Act deals with this aspect. According to the section, if the husband has
been sentenced to imprisonment for a period of 7 years or upwards the wife is entitled to sue
for divorce. This right arises from the date on which the sentence has become final i.e.
dismissal of appeal if any has been preferred by the husband according to proviso (a) to s.2.

4) Husband’s failure to perform marital obligation for 3 years: - s.2(iv)

s. 2(iv) of the Act deals with this aspect. According to the section, if the husband has
failed to perform his marital obligations without reasonable cause for a period of 3 years the
wife is entitled to sue for divorce.
For the purpose of s.2(iv) only those conjugal obligation may be taken into account
which are not included in any of the clauses of s.2 of the Act as marital obligations has not
been defined .in the Act.

5) Husband’s impotency: - s.2(v)

s. 2(v) of the Act deals with this aspect. According to the section, if the husband was
impotent at the time of the marriage and has continued to remain so till the filing of the suit
the wife is entitled to sue for divorce.
Thereafter, if the husband makes an application to the Court to prove his potency, the
Court is bound to give him a period of 1 year within which the husband has to prove his
potency

Caselaw: Abdul Azeem vs. Fahimunnisa Begum

In this case, the Hon’ble Court has held that it is not necessary for the wife to submit
herself to the husband during the period of 1 year to prove his virility and that among other
equally efficacious methods production of medical evidence would establish the same.

6) Husband’s Insanity or Venereal Disease for 2 years: - s.2(vi)

s. 2(vi) of the Act deals with this aspect. According to the section, if the husband has
been insane for a period of 2 years and has continued to be so till the filing of the suit or is
suffering from virulent venereal disease the wife is entitled to sue for divorce.
The Act does not specify whether unsoundness of mind should be curable or incurable
nor does it mention the duration of the disease.

7) Repudiation of Marriage or Option of Puberty: - s.(vii)

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s. 2(vii) of the Act deals with this aspect. According to the section, if the wife has
been given in marriage by her father or any other guardian before she attained the age of 15
years she can repudiate the marriage before attaining the age of 18 years and the marriage has
not consummated the wife is entitled to sue for divorce.
This is an independent provision under which the marriage is voidable at the option of
the wife.

8) Husband’s Cruelty: - s.2(viii)

s. 2(viii) of the Act deals with this aspect. According to the section, if the husband
treats the wife with cruelty that is to say physical and mental cruelty; associates with bad
women or leads an infamous life; attempts to force her to be immoral; disposes her property
and prevents her legal right; obstructs her in the observance of her religious profession or
practice; does not treat her equitably in comparison to other wives the wife as per the
injunctions of Quran she is entitled to sue for divorce.

Caselaw: Muhammad Sharif vs. Nasrine

In this case, the Hon’ble Court has made clear two points regarding mental cruelty
that one, mental cruelty cannot be defined and therefore any type of conduct which causes
mental tension and hurts her feelings is cruelty and two, any single incident of assault or use
of insulting language will not be regarded as cruelty against the wife.

9) Any other ground which is recognised as valid for the dissolution of marriage u/Muslim
Law: - s. 2(ix)
s. 2(ix) of the Act deals with this aspect. Clause ix to s.2 is is a residuary clause.
According to this, it entitles the wife to a decree of divorce on any other ground which is
recognised as valid for dissolution of marriage under Muslim Law.
This clause provides the Courts with discretion and freedom to dissolve a marriage.
This clause has been interpreted to mean that if the wife finds it impossible to continue her
marriage as her marital life has totally broken down then she should be compelled to live with
the husband for want of any defined ground for divorce.

2. GROUNDS FOR DIVORCE UNDER THE DIVORCE ACT, 1869

DIVORCE:
S. 10 of the Divorce Act, 1869 deals with divorce. A petition may be presented to the
District Court by either the husband or the wife on any of the following grounds:
(i) Adultery:
Adultery is defined as consensual sexual intercourse between a married person and
another person of the opposite sex during the subsistence of the marriage.

Caselaw: Susantu Kumar Mitra vs. Himangshu Prova Mitra

In this case, the Hon’ble Court observed that as the allegation that the respondent used
to bring people into the house and used to pass nights with them was not enough assertion
and allegation of actual act of adultery as a life of vice is not necessarily one of adultery and
held that adultery has neither been pleaded nor proved.

(ii) Conversion:
It provides that if either spouse has ceased to be a Christian by conversion to
another religion it acts as a ground for divorce.

(iii) Unsound Mind:

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It provides that if either spouse has been suffering from has been incurably of
unsound mind for a continuous period of not less than two years immediately preceding the
presentation of the petition, it acts as a ground for divorce

(iv) Venereal Disease:

Mental and physical health is of prime importance in a marriage as one of the
objects of the marriage is the procreation of equally healthy children.

It provides that if either spouse has been suffering from venereal disease in a
communicable form for a period of not less than two years immediately preceding the
presentation of the petition, it acts as a ground for divorce.

Caselaw: Mr. X vs. Hospital Z,

In this case, the Hon'ble SC has held that once the law provides venereal disease
as a ground for divorce to either husband or wife, such a person who was suffering from
that disease even prior to the marriage cannot be said to have any right to marry so long
as he is not fully cured of the disease

(v) Unheard of:

It provides that if either spouse has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have heard of the respondent if
the respondent had been alive, it acts as a ground for divorce.

(vi) Consummation:
It provides that if either spouse has wilfully refused to consummate the marriage
and the marriage has not therefore been consummated, it acts as a ground for divorce.

Caselaw: Kuruvilla Varghese vs. Sapnam Elizabeth Joseph

In this case, it was observed by the Court that after the Amendment Act of 2001 more
grounds are available for divorce and wilful refusal to consummate the marriage was not a
ground available before the substitution of s.10 by the Amendment Act of 2001.
The appellant at the time was employed abroad and within one month of his arrival in
India filed a petition for dissolution of marriage, that there was no unreasonable delay on his
part and granted a decree of divorce as it constituted a continuing, recurring and ever present
state of affairs.

(vii) Restitution of Conjugal Rights:

It provides that if either spouse has failed to comply with a decree for restitution of
conjugal rights for a period of two years or upwards after the passing of the decree against
the respondent, it acts as a ground for divorce.

(viii) Desertion:
s.3(9) of the Act defines desertion as - desertion implies an abandonment against
the wish of the person charging it. It provides that if either spouse has deserted the
petitioner for at least two years immediately preceding the presentation of the petition, it
acts as a ground for divorce.

The essence of desertion is the forsaking and abandonment of one spouse by the
other without reasonable cause and without the consent or against the wish of the other.
It is withdrawal not from a place but from a state of things.

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The essential ingredients of offence which may furnish a ground for relief are:
(i) Factum of separation and
(ii) The intention to bring cohabitation permanently to an end - animus deserendi
(iii) The element of permanence which is a prime condition requires that both these
essential ingredients should continue during the entire statutory period of not
less than 2 years immediately preceding the presentation of the petition.

Similarly, 2 elements are essential so far as the deserted spouse is concerned:

(i) The absence of consent and
(ii) Absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid.

Factum of separation:
Caselaw: Wanbon vs. Wanbon
In this case, both parties lived as one household but wife refused to perform her
wifely duties and never addressed a word to her husband except to find some fault with him.
It was held that the wife was guilty of desertion though both wife and husband lived
as one household.

(ix) Cruelty:
It provides that if the respondent has treated the petitioner with such cruelty as to
cause a reasonable apprehension in the mind of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent, it acts as a ground for divorce.

The legal conception of cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined by any statute of the Indian
legislature relating to marriage and divorce.

Cruelty includes cases of physical as well as mental cruelty and cases where both the
elements are present.

The following instances have been held by the courts to be cruelty:

1) Imputing unchastity to the wife
2) Exposing wife to insulting behaviour of husband’s relations is mental cruelty.
3) Impotency of husband
4) Wife leaving for her father’s place w/o informing the husband and his family
members.
5) Wife threatening husband to burn herself and bring husband into trouble with police is
legal cruelty.
6) Wife failing to see husband in hospital undergoing treatment for several months after
an accident is cruelty.
7) Act of violence resulting in injury to body, limb or health or causing reasonable
apprehension
8) Causing injury to private parts

Grounds available to wife only:

A wife may also present a petition for the dissolution of her marriage on the ground that the
husband has since the solemnization of the marriage been guilty of rape, sodomy or bestiality.

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Q: EXPLAIN DIFFERENT FORMS OF TALAK. WHEN TALAK BECOMES IRREVOCABLE?

A:
MARRIAGE/NIKAH:
Nikah literally means to tie up together. Man and woman agree together to lead a
married life and this agreement is called Nikah. In Islam, marriage is a civil contract in
nature, it is a special kind of social and legal relationship for the purpose of making a family.

TALAK:
Talak is an Arabic word and its literal meaning is - undoing of or to release from a knot.
The technical meaning of talak is freedom from bondage of marriage.
The contract of marriage under the Mohamedan law may be dissolved by the husband
and a divorce by the husband is known as talak. It is one of the kinds of divorce without the
intervention of court.
Any Mohamedan of sound mind who has attained puberty may divorce his wife
whenever he desires without assigning any cause. Formalities for a valid talak is that the
talak may be effected orally i.e., by spoken words or by a written document called a
talaknama.

Oral talak:
In an oral talak, no particular form of words is prescribed for effecting a talak. No
intention is required to be proved if the words used are express (saheeh) or well understood as
implying divorce. But, if the words are ambiguous (kinayat), the intention has to be proved.
It is not necessary that talak should be pronounced in the presence of wife or even addressed
to her, but for a talak to be valid it is necessary that the wife should be named.

Talak in writing:
A talaknama may only be a record of the fact of an oral talak or it may be the deed by
which the divorce is effected. The deed is said to be in customary form if it is properly
superscribed and addressed so as to show the name of the writer and the person addressed to.
If it is not done so, it is said to be in unusual form. If it is in customary form, it is called
manifest and it takes effect immediately even though it has not been brought to the
knowledge of the wife. The deed may be executed in the presence of a kazi or the wife’s
father or other witnesses.

DIFFERENT MODES OF TALAK:

A talak may be effected in any of the following ways:-
i) Talak ahsan
ii) Talak hasan
iii) Talak-ul-bidaat or talak-i-badai

i) Talak ahsan:
This is a kind of talak under talak-ul-sunnat i.e., the traditions of the Prophet. This is the
most approved and best form. Ahsan means very good. In this kind of talak, the

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pronouncement of divorce is revocable as it provides sufficient opportunity for

reconciliation between spouses and a hasty divorce can be prevented. This form is
recognised by all schools of Islamic Jurisprudence.
Under this mode, the husband makes a single pronouncement of divorce during a tuhr i.e.,
period between menstruations followed by abstaining from sexual intercourse for the period
of iddat i.e., the period of seclusion of a woman whose marriage has been dissolved by
divorce or death. If the marriage is dissolved by divorce, the woman is bound to observe the
iddat only if the marriage was consummated and if there was no consummation there is no
iddat and she is free to marry immediately.

ii) Talak hasan:

This is also a kind of talak under talak-ul-sunnat i.e., the traditions of the Prophet.
This is an approved form. Hasan means good. In this kind of talak also, the pronouncement
of divorce is revocable as it provides sufficient opportunity for reconciliation between
spouses and a hasty divorce can be prevented, but it should be revoked before the third
pronouncement is made. This form is also recognised by all schools of Islamic
Jurisprudence.
Under this mode, the husband makes three pronouncements of divorce during
successive tuhrs and abstains from sexual intercourse during any of the three tuhrs.
The first pronouncement is made during during a tuhr, the second during the next tuhr
and the third during the succeeding tuhr.

How talak is revoked:

As the modes of talak of ashan and talak of hasan are revocable in nature, Hedaya and
Baillie say that until a talak becomes irrevocable the husband has the option to revoke it
which may be done either expressly or impliedly by resuming sexual intercourse.

iii) Talak-ul-bidaat or talak-i-badai:

Talak-ul-bidaat is also known as talak-i-badai. Biddat means sinful. It was
introduced by the Omeyyade Monarch in the 2nd Century of the Mohamedan era. It is
pertinent to note that it was not Islam but Omeyyade practices which has given validity to
these divorces.
There are two forms under this mode of talak wherein the husband makes -
(i) single irrevocable talak i.e., a single pronouncement during a tuhr clearly
indicating his intention to irrevocably dissolve the marriage for example “I
divorce thee irrevocably” or “I have divorced you by a talak-ul-bain”; or
(ii) triple irrevocable talak i.e., three pronouncements during a single tuhr either
in one sentence for example “I divorce thee thrice” or in separate sentences
for example “I divorce thee, divorce thee, I divorce thee”

Caselaw: Shayara Bano vs. Union of India

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In this case, the Hon'ble Supreme Court on August 22, 2017 set aside the practice of
instant triple talak saying that it was violative of Articles 14 and 21 of the Constitution of
India. It also held that triple talak was against the basic tenets of Quran.

WHEN TALAK BECOMES IRREVOCABLE:

1) Oral talak becomes irrevocable as under:
i) Under the ahsan mode of talak, it becomes irrevocable and complete on the
expiration of the period of iddat.
ii) Under the hasan mode of talak, it becomes irrevocable and complete on the
third pronouncement, irrespective of iddat.
iii) Under the badai mode of talak, it becomes irrevocable immediately on
pronouncement or declaration. As the talak becomes irrevocable at once, it
is called talak-i-bain i.e., irrevocable talak.

2) A talak in writing becomes irrevocable as under:

In the absence of words showing a different intention in the talaknama, a divorce in
writing operates as an irrevocable divorce (talak-i-bain) and takes effect immediately on its
execution.

Caselaw: Mst. Sakha Bi vs. Sheikh Gulla

In this case, the Hon’ble Court held that where the husband in an application to the Kazi
said that he had divorced his wife by talak-ul-bain and the Kazi recorded his statement it
amounted to an irrevocable divorce.

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Q: MENTION THE TYPES OF GUARDIANS. WHAT ARE HIS POWERS AND FUNCTIONS?

A:
GUARDIAN:
A guardian is a person who acts on behalf of a minor. Such action of a guardian is
known as guardianship.

According to s.4(2) of the Guardians and Wards Act, 1890, guardian means a person
having the care of the person of a minor or of his property or of both his person and property.

TYPES OF GUARDIAN:
Muslim Law recognises following kinds of guardians:
1. Natural Guardian/Legal Guardian
2. Testamentary Guardian
3. Guardian appointed by Court
4. De facto Guardian

1) Natural Guardian/Legal Guardian:

Natural guardian is a person who has a legal right to control and supervise the
activities of a child.
Father is recognized as the natural guardian of his child under all schools of Muslim
Law. The mother is not a natural guardian even of her minor illegitimate children but she is
entitled to their custody.
This type of guardian is a de jure guardian.

Caselaw: Syed Shah vs. Syed Shah

In this case, the Hon'ble SC has held that only the father, the executor appointed by
the Will of the father, the father’s father and the executor appointed by the Will of father’s
father are legal guardian of minor. Any other relation is not entitled as of right to be
appointed as guardian of minor’s property.

2) Testamentary Guardian:
Testamentary guardian is a person who is appointed as guardian of a minor under a
Will.
Among the Sunnis, the father has full power of making a testamentary appointment of
guardian.
Among the Shias, the father appointing a testamentary guardian is valid only if the
grandfather is not alive.
Under both the schools, a mother has no power of appointing a testamentary guardian
for her minor children except when the father of the minor appoints her by his Will as
executor and in the case of her own property which will devolve on her children after her
death she can appoint a testamentary guardian.

Any person appointed executor by the Will of the father or paternal grandfather of the
minor becomes by virtue of his office legal guardian of the property of the minor. He is
called wali or guardian; he is also called amin i.e., a trustee; he is also termed as kaim-
mukam i.e., personal representative of the testator.

3) Guardian appointed by Court:

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If there is no legal guardian/natural guardian, the District Court may appoint any other
person guardian of a minor child’s person, property or both under s.7 of the Guardians and
Wards Act, 1890 after taking into consideration the age, sex, wishes of the child as well as
the wishes of the parents and personal law of the minor.
This type of guardian is a de jure guardian.

4) De facto Guardian/fazuli:
A de facto guardian is a person who takes continuous interest in the welfare of the
minor’s person or in the management and administration of his property without any
authority of law. He is a self-appointed guardian. A de facto guardian is also called a fazuli.

POWERS AND FUNCTIONS:

1. Functions:
Functions of a guardian is as follows:
1) In respect of minor’s person:
Guardianship of minor’s person means care and welfare of the child including the
liability to maintain it.
Under Muslim Law. Guardianship of the minor’s person is called Wilayat-e-nafs and
the custody of the minor is called Hizanat.

2) In respect of minor’s marriage:

A marriage guardian is a person who under Muslim Law is authorised to contract the
marriage of a minor. This authority is termed as guardian for marriage. It is called as
Wilayat-e-Nikah or Wilayat-e-Jabar. The marriage remains valid if not repudiated on
attaining puberty.
Such a guardian has the power to contract marriage of a minor or a lunatic; power to
contract for dower; power to relinquish dower; power of contracting conditions; and, power
to pronounce talaq

3) In respect of minor’s property:

The guardian of the minor’s property must act in the best interest of the minor.

Under Muslim Law, following persons are entitled in the order mentioned below to be
guardians of the property of a minor:
(i) Father
(ii) Executor appointed by the father’s Will
(iii) Father’s father/paternal grandfather
(iv) Executor appointed by the Will of the Father’s father/paternal grandfather

In the absence of all of the above, the Court u/s.7 of the Guardians and Wards Act,
1890 appoints a guardian.

Caselaw: Mahboob Sahab vs. Syed Ismail

In this case, the Hon'ble SC has held that although mother is in the nearest
relationship of her child she is not regarded as guardian of her minor child’s property and
therefore she has no right to transfer the interest of her minor children’s property.

2. Powers:
i) Powers of Natural/Legal Guardian and Testamentary Guardian:

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Under Muslim Law, the powers of a natural/legal guardian and testamentary guardian are
the same because the natural guardian appoints the executor and the executor represents the
natural guardian. They are as follows:
(i) Alienation:
This type of guardian has the power to alienate minor’s movable property but can
dispose of immovable property only under exceptional circumstances like when it is either
absolutely necessary or is manifestly advantageous.
Alienation includes selling, mortgage and lease and in all the instances the only
consideration is that it should be for the benefit of the minor.

(ii) Debt:
This type of guardian has the power to incur debts on behalf of the minor if there is some
necessity and not otherwise.

(iii) Contract:
This type of guardian has the power to enter into a contract on behalf of the minor for the
minor’s benefit and the minor is entitled to bring a suit for specific performance of contract
also.

(iv) Business
This type of guardian has the power to carry on business or trade on behalf of the minor
just like a person of ordinary prudence would do so in respect of his own business provided
the business or trade is not of speculative or hazardous nature. He can also invest minor’s
property in partnership and may enter into partnership with others.

(v) Pre-emption:
This type of guardian has the power to assert the right of pre-emption on behalf of the
minor or to refuse/accept an offer of a share in pursuance of such right and the minor will be
bound by such act if it is done in good faith.

(vi) Partition:
This type of guardian has the power to make partition of the share of minor only if there
are shares of minors and adults. But, if all the shareholders are minors, then he has no power
of making partition.

ii) Powers of Guardian Appointed by Court:

The power and duties of a guardian appointed by Court is governed by the provisions of
the Guardians and Wards Act, 1890 and they are as follows:
(i) Immovable Property:
This type of guardian cannot sell, exchange, mortgage or otherwise transfer the minor’s
property without prior sanction of the Court and the Court gives sanction only in cases of
absolute necessity or where it is manifestly advantageous to the minor.
Also, this type of guardian can lease out the minor’s property for a period of 5 years or
for any term not extending more than 1 year beyond the date on which the minor attains
majority. If it exceeds the period mentioned hereinbefore, prior permission of the Court is
necessary. If prior permission is not taken, it is merely voidable and not void.
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(ii) Movable property:

This type of guardian has power to deal with movable properties of the minor without
any previous permission of the Court but he must do so as a man of ordinary prudence would
do with his own property.

iii) Powers of de facto Guardian:

This type of guardian has no power or authority to alienate the minor’s property without
prior sanction of the Court even if it for the benefit of the minor. If it is alienated without
prior sanction of the Court, it is void and not voidable.
If a minor seeks to assail the legality and binding nature of such an alienation, it is
always open to him to avoid the contract as being void irrespective of the fact that it benefited
him or the arrangement followed for a long period. When it is not challenged, it is not open
to third-parties to impugn the alienation.

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Q: WHEN CAN A GUARDIAN APPOINTED BY COURT BE REMOVED? WHO CAN BE A GUARDIAN

OF MINOR’S PROPERTY?

A:
GUARDIAN:
A guardian is a person who acts on behalf of a minor. Such action of a guardian is
known as guardianship.

According to s.4(2) of the Guardians and Wards Act, 1890, guardian means a person
having the care of the person of a minor or of his property or of both his person and property.

MINOR:
Under Muslim Law, in the matters of marriage, dower, divorce and adoption, a person
shall be deemed to be a minor till the age of puberty.
According to Sunni School, no male is said to have attained puberty under the age of
12 years and no female under the age of 9 years. But, in the absence of any evidence to the
contrary, a male or a female is presumed to have attained puberty at the age of 15 years.
According to Shia School, the age of puberty for a male is 15 years and for a female is
8 years.

But, a Muslim under the age of 18 years cannot file any suit relating to his/her
marriage, dower and divorce without the next friend/ the guardian ad litem.

MAJORITY:
Under Muslim Law, in all other matters i.e., matters other than marriage, dower,
divorce and adoption, a person shall be deemed to be of majority on attaining the age of
puberty.
But, the Indian Majority Act, 1875 has superseded Muslim Law on this point and lays
down that every person domiciled in India shall attain the age of majority on his completing
the age of eighteen years and not before.

LEGAL GUARDIAN OF MINOR’S PROPERTY:

The legal guardian of the minor’s property must act in the best interest of the minor.

Under Muslim Law, the following persons are entitled in the order mentioned below
to be guardians of the property of a minor:
(i) Father
(ii) Executor appointed by the father’s Will
(iii) Father’s father/paternal grandfather
(iv) Executor appointed by the Will of the Father’s father/paternal grandfather

Guardianship of a minor’s property belongs primarily to the father who is a natural

guardian. After his death, it belongs to his executor. Where there is no Will appointing any
person as an executor or where the executor also dies, then the paternal grandfather is entitled
to the guardianship. After the death of the paternal grandfather, his executor if any acts as as
guardian of the minor’s property. In the absence of all of them, the Court under the
Guardians and Wards Act, 1890 appoints a guardian.

Caselaw: Mahboob Sahab vs. Syed Ismail

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In this case, the Hon'ble SC has held that although mother is in the nearest
relationship of her child she is not regarded as guardian of her minor child’s property and
therefore she has no right to transfer the interest of her minor children’s property.

COURT APPOINTED GUARDIAN:

If there is no legal guardian mentioned above, the Court may appoint any other
person guardian of the property of a minor. The appointment of a guardian by Court is
governed by the Guardians and Wards Act, 1890 which is applicable to all Indians
irrespective of their religion.
Under the Guardians and Wards Act, 1890, the power of appointing or declaring any
person as guardian is conferred on the District Court. The District Court may appoint or
declare any person as guardian of a minor child’s person as well as property whenever it
considers it necessary for the welfare of the minor taking into consideration the age, sex,
wishes of the child as well as the wishes of the parents and personal law of the minor. Where
there is a conflict between the personal law of the minor and considerations of minor’s
welfare, the latter will prevail.

REMOVAL OF GUARDIAN APPOINTED BY COURT:

s.39 of the Guardian and Wards Act, 1890 deals with removal of guardian. It lays
down that the Court may on the application of any person interested or of its own motion
remove a guardian appointed or declared by the Court or a guardian appointed by will or
other instrument for any of the following causes namely —
1) for abuse of his trust;
2) for continued failure to perform the duties of his trust;
3) for incapacity to perform the duties of his trust;
4) for ill-treatment, or neglect to take proper care, of his ward;
5) for contumacious disregard of any provision of this Act or of any order of the Court;
6) for conviction of an offence implying, in the opinion of the Court, a defect of character
which unfits him to be the guardian of his ward;
7) for having an interest adverse to the faithful performance of his duties;
8) for ceasing to reside within the local limits of the jurisdiction of the Court;
9) in the case of a guardian of the property, for bankruptcy or insolvency;
10) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the
law to which the minor is subject:

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Q: WHAT IS ACKNOWLEDGMENT OF PATERNITY? WHAT ARE THE CONDITIONS OF A VALID

ACKNOWLEDGMENT?

A:
INTRODUCTION:
The law of parentage which includes paternity and maternity is the result of the
institution of marriage. Parentage gives rise to the concepts of legitimacy and illegitimacy.
Parentage is the legal relation between a child and the parents.

The legal relation between the mother and her child is called maternity and the legal
relation between the father and his child is known as paternity.

ACKNOWLEDGMENT OF PATERNITY/IKRAR-E-NASAB:
Where the paternity of a child i.e., its legitimate descent from his father cannot be
proved by establishing a marriage between his parents at the time of his conception/birth,
such a marriage and legitimate descent may be established by the Doctrine of
Acknowledgment which is a special mode prescribed by Muslim Law for establishing the
legitimacy of the child and the marriage of the child’s mother. This is a kind of indirect proof.

The acknowledgment/ikrar is a kind of legal evidence and it may be in express form

or implied form. In express form, the husband declares himself to be the father of the child
and in implied form it can be inferred by his conduct of say for example openly treating the
child as his son/daughter.
But, where the child is illegitimate either because the child is born out of
adultery/Zina or because the marriage is prohibited under Muslim Law, the acknowledgment
cannot make the child legitimate.

CONDITIONS OF A VALID ACKNOWLEDGMENT:

Following are the conditions for a valid acknowledgment:
1) Paternity must be ascertained
The paternity of the child must be ascertained before the acknowledgment. That is to
say, the child must not be the offspring of any other known person. If it is proved that some
other person is the father of that child, the acknowledger cannot accept it as his own child.

2) Age difference:
If the acknowledger is equal in age or is younger to the acknowledged person, the
acknowledgment of paternity would be void in its very face because they would not appear to
be father and child.
According to Baillie, the acknowledger must be at least twelve-and-a-half years older
than the person acknowledged.

3) Capacity:
Only a major person of sound mind can make a valid acknowledgment. An
acknowledgment made by a minor or an insane person is not valid. A dumb person by signs
may make a valid acknowledgment.

4) Illegitimate child:
The child acknowledged must not be an offspring of illicit intercourse/zina i.e., the
sexual intercourse between the child’s mother and the acknowledger must not be unlawful at
the time when the child would have possibly been conceived or born. Zina includes adultery,

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fornication, illicit relations or incest. That is to say, the child’s mother should not have been
within the prohibited relationship of the acknowledger or was the wife of another person at
the time of conception of the child.
In other words, a lawful marriage between the child’s mother and the acknowledger
must have been possible under Muslim Law when the child was conceived or took birth. If
such a marriage was not possible, there can be no acknowledgment.

5) Acknowledgment of legitimacy:
The acknowledger must acknowledge the child not just as his child but as his
legitimate child. Casual love and affection towards a child is not sufficient to confer
legitimacy on that child.
In case of twins, if the husband acknowledges one of them but denies the other the
paternity of both is established.

6) Irrevocable:
An acknowledgment once made cannot be revoked.

7) Burden of Proof:
Until the claimant establishes his acknowledgment, the burden of proof is on him to
prove a marriage. Once he establishes an acknowledgment, the onus is on those who deny a
marriage to negative it in fact.
In case of an allegation that a divorce took place at the time when the child was
begotten and that the child is illegitimate, the burden of proving the fact lies on that person
who alleges.

8) Repudiation:
An acknowledged child on attaining the age of discretion can repudiate the
acknowledgment or may confirm it by his/her acquiescence. But, for the validity of
acknowledgment, confirmation of the child is not necessary.

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SHORT NOTES ON:-

LEGITIMACY AND LEGITIMATION/LEGITIMIZATION

INTRODUCTION:
The law of parentage which includes paternity and maternity is the result of the
institution of marriage. Parentage gives rise to the concepts of legitimacy and illegitimacy.
Parentage is the legal relation between a child and the parents.

The legal relation between the mother and her child is called maternity and the legal
relation between the father and his child is known as paternity.

LEGITIMACY AND LEGITIMATION:

In the Islamic law as in other systems of law, parentage involves certain rights and
obligations.

By and large, there are 2 modes of filiation known to the law: as a rule, the law treats
the natural father as the father of the child; sometimes however adoption leads to the result
that someone who is not the father acquires rights similar to those of the father. Adoption is
not recognized in Islam as it was disapproved by the Koran.

In addition to natural filiation, the first form, another form is Acknowledgment of

Paternity. The peculiarity of Islamic law is that in certain cases where it is doubtful whether
a person is the child of another, the acknowledgment of the father confers on the child the
status of legitimacy.

However, the distinction between the status of legitimacy and the process of
legitimation must be kept in mind. Legitimacy is a status which results from certain facts.
Legitimation is a proceeding which creates a status which did not exist before.

In the proper sense, there is no legitimation under the Muslim Law. Under Muslim
Law, such an acknowledgment is a declaration of legitimacy and not a legitimation. No
statement made by one man that another (proved to be an illegitimate) is his son can make
that other legitimate, but where no proof of that kind has been given such a statement or
acknowledgment is substantive evidence that the person so acknowledged is the legitimate
son of the person who makes the statement provided his legitimacy be possible. Legitimation
per subsequens matrimonium is not known to Islamic law.

Parentage is therefore established in Islam in one of two ways and there is not third:
first, by birth during a regular or irregular marriage or second, by acknowledgment/ikrar in
certain circumstances.

Those certain circumstances are:

i) paternity of the child is either not known or is not established beyond doubt
ii) it is not proved that the child/claimant is the offspring of illicit intercourse/zina and
iii) the circumstances are such that marriage between the acknowledger and the mother is not
an impossibility.

This is known as the Doctrine of Acknowledgment of Paternity. A valid

acknowledgment is not revocable and gives rights of inheritance to the child. This doctrine

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of Acknowledgment of Paternity is however different from legitimation as provided under

other personal laws.

MATERNITY AND LEGITIMATION:

INTRODUCTION:
The law of parentage which includes paternity and maternity is the result of the
institution of marriage. Parentage gives rise to the concepts of legitimacy and illegitimacy.
Parentage is the legal relation between a child and the parents.

The legal relation between the mother and her child is called maternity and the legal
relation between the father and his child is known as paternity.

ESTABLISHMENT OF MATERNITY:
Maternity of a child is established in the woman who gives birth to the child. It does
not matter whether conception had taken place lawfully or unlawfully, whether she was
married or unmarried. Only actual birth determines maternity.
But, the difference is that a child if born out of lawful sexual intercourse will be
legitimate but if born out of unlawful sexual intercourse will be illegitimate. Such a child is
entitled to inherit from the mother.
But, under the Shia school, mutual rights of inheritance does not exist between the
mother and the illegitimate child.

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UNIT - 3

Q: DEFINE GIFT/HIBA. WHAT ARE THE ESSENTIALS OF A VALID GIFT?

A:
GIFT/HIBA:
A Hiba is an immediate transfer of ownership of some movable property or right by
the one person to another without any consideration.

Hedaya defines Hiba or gift as -

a transfer of a determinate amount of property without any exchange from one person
to another and accepted by or on behalf of the other.

ESSENTIALS OF A VALID GIFT/HIBA:

The essentials of a valid Hiba are as follows:
1) Qualifications for the parties
2) Subject matter of a Hiba, Mouhub
3) Formalities of a Hiba

1) Qualifications for the parties:

a) Capacity for a Donor/Wahib
b) Capacity for a Donee/Mohub-Ileh

a) Capacity for a Donor/Wahib:

A donor has to have the following to make a valid Hiba:
i) Religion: A donor must be a Mohammedan
ii) Sex: A donor may be a male/a female
iii) Status: A donor may be married/unmarried
iv) Age: A donor must have attained the age of majority i.e., 18 years per s.3 of the Indian
Majority Act
v) Ownership: The donor must be the owner of the property which is the subject matter of
the Hiba
vi) Consent: A gift made under compulsion is not valid but voidable.

b) Capacity for a Donee/Mohub-Ileh:

A donee has to have the following to take a valid Hiba:
i) Religion: A donee may be a Mohammedan or a non-Mohammedan
ii) Sex: A donee may be a male/a female
iii) Status: A donee may be married/unmarried
iv) Age: A donee may be a major/a minor
v) Soundness or unsoundness of mind: A donee may be an insane, but when a gift is made to
a minor or a person of unsound mind the gift will be complete by delivery of possession to
the guardian of the minor or of the person of unsound mind
vi) Existence of donee/child in womb: A Hiba made to an unborn person is invalid but a gift
to an unborn donee who is in the womb and is born within 6 months of making of the
gift is valid as in the eyes of law the unborn person is regarded as a living person.
vii) Deceased person: When a widow makes a Hiba of her Mehr to her deceased husband, the
principle of Hiba does not apply
viii) Gift of future usufruct to an unborn person is valid provided the donee is in being at the
time when the interest opens out of heirs

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ix) Joint donees: A Hiba jointly in favour of 2 or more persons is not ipso facto invalid if the
shares of each is clearly specified.

2) Subject matter of a Hiba/Mouhub:

A Muslim can make a Hiba of the whole of his/her property/mal. Every form of
property/right which has some legal value may be the subject-matter of a Hiba. However, the
property must be transferable u/s. 6 of the TP Act, 1882.

Following are some types of property/right which may constitute the subject-matter of a Hiba:
i) Gift of corporeal/incorporeal property: Eg: Negotiable instrument, government promissory
notes, property on lease or under attachment, right to receive an annuity charged on land
ii) Gift of equity of redemption: Equity of redemption is the right of the mortgagor to redeem
his property from the mortgagee by paying the loan. A mortgagor can make a gift of this
right of redemption
iii) Gift of debt: A release of a debt by the creditor to the debtor may be made
iv) Gift of existing property only: A property or a right which is not in existence cannot be
the subject matter of a gift an example being a gift of a fruit that may be produced by the
donor’s tree
v) Gift of dower: Hiba-e-Mahr/gift of dower may be made but only to the husband otherwise
it is void
vi) Gift of service: Services or the natural love and affection are not properties and cannot be
the subject-matter of a Hiba
vii) Gift of Musha/undivided share: Under the Hanafi School, a Hiba of Musha is
invalid/irregular

3) Formalities of a Hiba:
For a valid Hiba, the following formalities have to be complied with:
i) Clear and unequivocal declaration by the donor
ii) Acceptance by the donee
iii) Delivery of possession

i) Clear and unequivocal declaration by the donor:

A clear and unequivocal declaration of the intention of making a gift by the donor or
his agent is the first essential element of a valid gift. Such declaration may be made orally or
by writing a deed. However, a gift made with the intention of defrauding creditors is invalid.

ii) Acceptance by the donee:

The second element of a valid gift is its acceptance by the donee or his agent. Such
an acceptance may be made expressly or impliedly.
However, acceptance is not required where the gift is made by a guardian to his ward
or where the gift of a debt is made to the debtor.

iii) Delivery of possession:

The third and final element of a valid gift is the delivery of its possession to the donee.
A gift takes effect from the date on which the possession is delivered to the donee. If its
possession is not delivered to the donee before the donor’s death it devolves on the heirs of
the donor as a gift not accompanied by delivery of possession is void ab initio.

The delivery of possession may be either actual or constructive/symbolic. Actual

delivery of possession takes place when a property is physically handed over to the donee.

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Constructive delivery/ symbolic transfer of property takes place when the donor has done
some act due to which it is legally presumed that the possession has been given to the donee
an example being the donor and donee both residing in the gifted house or a gift deed handed
over to the donee of a mortgaged property which is in the possession of the mortgagee.

Caselaw: Smt. Hussenabi vs. Husensab Hasan

In this case, a grandfather made an offer of gift to his grandsons and also accepted the
offer on behalf of the minor grandsons. However, no express or implied acceptance was
made by the major grandson.
The Hon’ble HC of Karnataka held that since all the 3 elements for a valid gift were
absent as regards the major grandson it was invalid to that extent and valid as regards the
minor grandsons.

Revocation of Gift:
Under Islamic law, all voluntary transactions are revocable. As the transfer of
property by way of gift consists of three stages i.e., declaration, acceptance and delivery of
possession, a gift may be revoked at any time before the delivery of possession. However, if
the gift is revoked after delivery of possession, it may be may either by mutual consent of the
parties or through a decree of the Court.

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Q: DEFINE WAKF/Auqaf/Waqf. EXPLAIN THE TYPES OF WAKF. HOW A PRIVATE WAKF IS

ESTABLISHED?

A:
WAQF:
According to S.3(r) of the Waqf Act, 1995 as amended by the Wakf (Amendment) Act,
2013, waqf means the permanent dedication by any person of any movable or immovable
property for any purpose recognised by the Muslim law as pious, religious or charitable.

Waqf widely relates to land and buildings. However, there are waqf of books,
agricultural machinery, cattle, shares and stocks and cash money.

ESSENTIALS OF A VALID WAQF:

The essentials of a valid waqf are:
1) Permanent dedication
2) Subject of waqf
3) Object of waqf
4) Waqif must extinguish his ownership of the property
5) Waqf must be irrevocable
6) Waqf must be immediate and not contingent
7) Registration

1) Permanent dedication:
The dedication must be permanent. Therefore, a waqf for a limited period is not
valid. Further, the purpose for which a waqf is created must be of a permanent
character. Although the definition of waqf does not require that there should be an
express dedication to God, it is implied that dedication becomes permanent only by
vesting the property in God.

Caselaw: Mohd. Ismail vs. Thakur Sabir Ali

In this case, the Hon'ble Supreme Court has observed that the expression permanent
dedication in the definition of waqf signifies that the waqf property is vested in God. The
Hon’ble Court further observed that even in a family waqf the property remains in the
implied ownership of God.

2) Subject of waqf:
The subject of waqf under the Waqf Act may be any property. A valid waqf may
therefore be made not only of immovable property but also of movable such as shares in
joint stock companies, government promissory notes and even money but it must belong
to the waqif a the time of dedication.

3) Object of waqf:
The object or purpose for which a waqf may be created must be one recognized by
the Mohamedan law as religious, pious or charitable. A waqf may also be created in
favour of the settlor’s family, children and descendants as a private waqf. The objects of

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a waqf must be indicated with reasonable certainty and if they are not the waqf will be
void for uncertainty.

Examples of valid objects of a waqf are -

i) Mosques and provisions for imams to conduct worship therein
ii) Colleges and provision for professors to teach in colleges
iii) Distribution of alms to poor persons and assistance to the poor to enable
them to perform the pilgrimage to Mecca
iv) Celebrating the death anniversaries of the settlor and of the members of
his family
v) Burning lamps in a mosque
vi) Reading Quran in public places and also at private houses

4) Waqif must extinguish his ownership of the property:

One of the salient features of a waqf is that the waqif, the dedicator of the waqf must
divest himself of the ownership of the property i.e., his ownership should stand
extinguished once the dedication of property is made to waqf.

5) Waqf must be irrevocable:

A waqf must be irrevocable. Where a waqif reserves the right of revoking the waqf
such a waqf would be void as a human being cannot subsequently revoke it because it
would amount to taking back from God and would be un-Islamic and also inconsistent
with the very concept of waqf.

But, a testamentary waqf is revocable any time by the settlor before his death
because it is like a will and comes into existence only after the death of the waqif and
thereafter the property is transferred to God.

6) Waqf must be immediate and not contingent:

A waqf must take immediate effect absolutely and for ever except where it is created
by a Will. A waqf cannot be deferred to a future date nor can it be contingent on an
event happening.

Example:
If a person says that this property is a waqf after my death, the waqf would not
be valid on the ground that it would not cover the period from the date of declaration
to the day of his death.

Similarly, a waqf which is made on the happening of an event like the property
would be dedicated only if no children are born to the waqif till his death or the waqif
leaves no children is invalid.

7) Registration:
A waqfnama i.e., the document creating a waqf, by which immovable property of the
value of 100 rupees and upwards is dedicated by way of waqf requires to be registered
under the Indian Registration Act, 1908.

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TYPES OF WAKF:
Under Muslim Law, Wakfs in respect of object may be classified into 3 categories:
1) Private Wakfs/Family Wakfs/Wakfs-Alal-Aulad
2) Public Wakfs/Wakfs-Sabi-Lil-Lah
3) Wakfs under statutes

1) Private Wakfs/Family Wakfs/Wakfs-Alal-Aulad:

Before the decision of Privy Council in Abdul Fata Mohammad vs. Rasamaya in
which it was held that a waqf exclusively for one’s family was not a waqf for charitable
purposes and was therefore invalid, there existed 3 categories of Wakfs:
i) Wakfs exclusively for the family
ii) Wakfs substantially for the family as well as for charity
iii) Wakfs substantially for charity as well as for the family
After the coming into force of the Mussalman Wakf Validating Act, 1913, category (i)
wakf is not valid but later on by an amendment to the Act in 1930 Family Wakfs were
validated retrospectively.

i) Wakfs exclusively for the family/private Wakf:

A private waqf is also called a family waqf or waqf-alal-aulad. Under Muslim Law,
making provisions for the maintenance, comfort and dignity of one’s own children is also
regarded as an act equal to that of charity.
In this type, the ultimate benefit is reserved to God but only the property vests in the
beneficiaries and income therefrom is used for maintenance and support.

ii) Wakfs substantially for the family as well as for charity:

Caselaw: Aligarh Muslim University vs. Syed Mohammad Syeed Chishty
In this case, a wakf-alal-aulad was executed by one “H” in the year 1942 in which a
substantial portion of earning from Wakf was maintenance of Wakif, H and his descendants.
The Hon’ble Court held the Wakf to be was valid.

iii) Wakfs substantially for charity as well as for family:

Caselaw: Sheikh Mohd. Ahsanmullah vs. Amar Chand
In this case, the Privy Council held that Wakf-Alal-Aulad was valid if there was
substantial dedication of the property to charitable uses at some period of time or other.

Shia Law:
If the condition of ultimate disposition in favour of charity is not satisfied, the Wakf would be
invalid and the effect would be to give the property back to Wakif’s descendants.

2) Public Wakfs/Wakfs-Sabi-Lil-Lah:
Wakf the primary object of which is a permanent dedication of the property to some
public purpose like religious, pious or charitable purpose is called a public wakf.

According to Durr-ul-Mukhtar, they are of 3 kinds - for the poor; for the rich, then for
the poor; and thirdly, for both deriving equal benefit therefrom like mosques, graveyards,
bridges, etc.

3) Wakfs under statutes:

A. Wakf void for uncertainty:

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Caselaw: Abdul Rahiman Kutty vs. Aysha Beevi

In this case, a wakf was created with the declaration that the usufruct should be used
for the benefit of the descendants of the Prophet.
The Hon’ble Court held that it was impossible to ascertain who were the descendants
of the Prophet and held the wakf to be void for uncertainty.

B. Wakf valid even when uncertainty exists:

Sometimes, even when the objects of the wakf are uncertain, the wakf may be valid.
Such a possibility may happen in any one of the following 3 cases:
(i) When the objects are unspecified
(ii) When the objects specified have failed
(iii) When the objects are partly valid and partly invalid

In cases of (i) and (ii) the Doctrine of Cypress would apply. Cypress literally means
“as nearly as possible” based on an English doctrine with a reasoning that the rights and
benefits of poor and needy should not be hampered only on technicalities of law through
which an object may fail. Accordingly, if the wishes of the Wakif cannot be carried out
literally, they will be carried out as nearly as possible in the way desired.

Example:
If a wakf is created for removing illiteracy among adults of a locality but after some
time it is found that all the adults of that locality have become literate, then the income of that
property may be utilized for giving them further education or for educating children of that
locality.

In case of (iii), the wakf may be valid as to the extent of the valid objects and the
property dedicated for invalid object reverts back to the Wakif.

PROCEDURE TO ESTABLISH A PRIVATE WAKF:

Following are the formalities for creating a private wakf:
1) Oral/Written:
Wakf may be made in writing or it may be made orally. In the written form, a
wakfnama or wakf deed is prepared.

2) Registration:
It is not necessary that a wakf should be in writing as it may be made orally.
But, a waqfnama i.e., the document creating a waqf by which immovable property of
the value of 100 rupees and upwards is dedicated by way of waqf requires to be
registered under the Indian Registration Act, 1908.

3) Declaration:
Mere intention to create a wakf is not sufficient, only declaration of wakf makes
the dedication complete. According to Abu Yusuf, a wakf inter vivos i.e., between
the living comes into existence by a mere declaration of endowment by the owner of
the property.

4) Delivery of Possession:
According to Abu Yusuf , a wakf may be completed without appointment of
Mutawalli and without any delivery of possession of wakf property to him.

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According to Abu Hanfia, a wakf is complete when a declaration is made

which has extinguished the rights of Wakif in the property.
According to Imam Mohammed, a Wakf would be complete only when a
Mutawalli is appointed and the possession of the property is delivered.

Shia Law:
According to Shia law, a wakf is completed by declaration, appointment of
Mutawalli and delivery of possession to such Mutawalli.

In case the Wakif appoints himself as Mutawalli, delivery of possession is

not required but the Wakif’s position changes from that of an owner to a mere
manager.

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Q: WHO IS MUTAWALLI? WHAT ARE HIS POWERS AND DUTIES?

A:
WAQF:
According to S.3(r) of the Waqf Act, 1995 as amended by the Wakf (Amendment) Act,
2013, waqf means the permanent dedication by any person of any movable or immovable
property for any purpose recognised by the Muslim law as pious, religious or charitable.

Waqf widely relates to land and buildings. However, there are waqf of books,
agricultural machinery, cattle, shares and stocks and cash money.

MUTAWALLI:
As soon as a Wakf is created, all rights of property pass out of the Wakif and vest in
God. There must be some person or a human agency that could look after the dedicated
property on behalf of God. The person who supervises or takes over the management of a
Wakf is called a Mutawalli/Manager/Superintendent.
The office of Mutawalli is not transferable and Muslim Law does not recognise the
office to be hereditary unless there is a custom.

MUTAWALLI’S POWERS AND DUTIES:

POWERS:
A Mutawalli has the following powers:
1) Power of management and administration
2) Power of incurring debt
3) Power of alienation
4) Power to grant lease
5) Right of pre-emption
6) Power to compromise

1) Power of management and administration:

A Mutawalli has the power of management and administration of Wakf property. His
legal position is that he is a manager having no beneficial interest in the wakf properties. He
is only a superintendent of the property.

2) Power of incurring debt:

A Mutawalli has no power of incurring a debt unless he is permitted either by a
provision of the Wakfnama or by the Court.
A person who gives loan to a Mutawalli for carrying out the purposes of the Wakf has
no remedy against the Wakf properties.

3) Power of alienation:
A Mutawalli cannot transfer the property by way of sale, exchange, gift or mortgage
unless he is permitted either by a provision of the Wakfnama or by the Court.
However, prior permission of the Court is not a hard and fast rule. If the transfer is
for the benefit of the Wakf or is urgently required in the given circumstances, he may alienate
the property first and thereafter get the permission.

4) Power to grant lease:

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A Mutawalli has power to grant leases of the Wakf property but his power is limited
as regards the period of lease unless he is permitted either by a provision of the Wakfnama or
by the Court.
If the Wakf property is an agricultural land, then he cannot grant a lease of it for more
than 3 years and if it is non-agricultural land i.e., residential place he can grant lease only
upto 1 year.

5) Right of pre-emption:
Where a land which is adjacent to the Wakf property has been sold, a Mutawalli
cannot claim repurchase or substitution under the right of pre-emption.

6) Power to compromise:
s.93 of the Wakf Act, 1995 bars a Mutawalli from compromising in a suit or
proceedings without the sanction of the Board.

DUTIES:
The primary duty of a Mutawalli is to preserve the property like his own but to
manage and spend it like a servant of God.

s.50 of the Wakf Act, 1995 provides for duties of a Mutawalli as follows:
1) to carry out the directions of the Board in accordance with the provisions of the Act or of
any rule or order made thereunder
2) to furnish such returns and such information or particulars as required by the Board in
accordance with the provisions of the Act or of any rule or order made thereunder
3) to allow inspection of Wakf properties, accounts or records or deeds and documents
relating thereto
4) to discharge all public dues and
5) to do any other act which he is lawfully required to do by or under the Act

MUTAWALLI’S APPOINTMENT:
The Wakif enjoys full power of appointment of Mutawalli and he may appoint the
first Mutawalli. He may also appoint himself as the first Mutawalli. But, if the Wakif does
not appoint himself as the first Mutawalli, the first Mutawalli shall be appointed in the
following manner:
1) Appointment by the Wakif
2) Appointment by executor of the Wakif/Founder
3) Appointment by the outgoing Mutawalli
4) Appointment by the Court
5) Appointment according to Custom or usage

1) Appointment by the Wakif:

If no Mutawalli is appointed at the time of dedication of property, according to Abu
Yusuf Wakif would become Mutawalli, but according to Abu Hanifa and Imam Mohammed
Wakf would be unlawful.
Under Shia Law, as transfer of possession of Wakf property is necessary, Wakif may
appoint a Mutawalli before transfer of possession and not after transfer of possession.
However, if the Wakif has made a provision in the Wakfnama for appointment of
Mutawalli, the Mutawalli shall be appointed in accordance with the directions of the
Wakfnama.

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2) Appointment by executor of the Wakif/Founder:

If the Wakif dies without appointing any Mutawalli and the Wakfnama is silent about
the appointment of Mutawalli, then the executor of the Wakif is entitled to appoint a
Mutawalli as the executor possesses the same powers as the Wakif himself had the Wakif
been alive.

3) Appointment by the outgoing Mutawalli:

Generally, an existing Mutawalli has no right to appoint his successor. But, when the
Wakif and his executor are both dead and the Wakfnama does not lay down any scheme of
succession, then the outgoing Mutawalli may appoint his successor on his death-bed.

4) Appointment by the Court:

If a Mutawalli could not be appointed by any of the aforesaid manner, the Court has
the power to appoint a Mutawalli. Court here means the District Court within the jurisdiction
of which Wakf property is situated.

5) Appointment according to Custom or Usage:

The office of Mutawalli may be hereditary by custom or usage only if there is no
provision in the Wakfnama.

6) Appointment by Board of Wakfs:

s.63 of the Wakf Act empowers the Wakf Board to appoint a Mutawalli where there is
a vacancy provided the terms of Wakf deed has to be observed in such an appointment.

Caselaw: Syed Shah Mohammed Raju vs. A.P. State Wakf Board
In this case, the Hon’ble Court has made it clear that the power to appoint a Mutawalli
u/s. 63 can only be exercised when there is clear vacancy or there is dispute as to competency
or eligibility of existing Mutawalli.

Wakf Board is also empowered to take over the management of Wakf where no
suitable person is available to be appointed as a Mutawalli.

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Q: WHAT IS PRE-EMPTION? WHO CAN CLAIM FOR PRE-EMPTION? STATE BRIEFLY THE
FORMALITIES FOR EXERCISING RIGHT OF PRE-EMPTION.

A:
PRE-EMPTION:
Pre-emption is a right. Literally, the term pre-emption means purchase by one person
before an opportunity is offered to others.

Shufaa or the right of pre-emption is defined to be a power of possessing property which

has been sold by paying a sum equal to that paid by the purchaser. It is derived from a right
which signifies conjunction i.e., the land sold is conjoined to the land of pre-emptor. The
person who claims this right is called a pre-emptor or Shufee.

By invoking shufaa, the shufee is entitled to repurchase an adjacent property which has
been sold to some one else and avoid a stranger from being his permanent neighbour. An
apprehended inconvenience which may be caused by the stranger has been the very basis of
this right.

Caselaw: Bishan Singh vs. Khazan Singh

In this case, the Hon'ble Supreme Court has held that the right of pre-emption is a right
of substitution but not of repurchase. The pre-emptor takes the entire bargain and steps into
the shoes of the original vendee.

CONSTITUTIONAL VALIDITY OF PRE-EMPTION:

The constitutional validity of pre-emption came up for consideration again before the
Hon'ble Supreme Court in Krishna vs. State of Haryana. The Apex Court when the issue was
again raised under The Punjab Pre-Emption Act, 1923, while interpreting S. 15(1)(b) of the
Act held that the right of pre-emption to co-sharer is valid and is not violative of Articles 14,
15 and 16 of the Constitution.

WHO CAN CLAIM FOR PRE-EMPTION:

Only 3 classes of persons may claim the exercise of the right of pre-emption under
Muslim law and they are the co-sharers or Shafi-i-Sharik, the participators in immunities or
Shafi-i-Khalit and the owners of adjacent properties or Shafi-i-Jar.
Persons who are entitled to inherit properties of a common ancestor are called as co-
sharers, participators in immunities means two or more persons enjoy a common privilege
like a common right of wary or drainage or any other common right to use a property, Shafi-
i-Jar is the owner of an adjoining property who can be a pre-emptor in the absence of Shafi-i-
Sharik and Shafi-i-Khalit but his right does not extend to large properties such as Zamindaris
and Jagirs or village.

FORMALITIES FOR EXERCISING RIGHT OF PRE-EMPTION:

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The formality for the claim of Shufaa consists of three demands and the demand must be
made by pre-emptor step-by-step and at proper time. The three demands are:
(i) Talab-i-Mowasibat, the first demand
(ii) Talab-i-Ishhad, the second demand &
(iii) Talab-i-Tamlik, the third demand

(i) Talab-i-Mowasibat, the first demand

Talab-i-Mowasibat is an Arabic expression and means demand of jumping. It means
that the demand must be made immediately on hearing of the completion of sale. It
implies that every class of pre-emptor should demand immediately and a pre-emptor
belonging to an inferior class should not wait till a pre-emptor belonging to superior class
waives his right.

(ii) Talab-i-Ishhad, the second demand

Talab-i-Ishhad means a demand with the invocation of witnesses. It is also called as
Talab-i-Taqris which means demand of confirmation. This is the second demand and is a
repetition of the first demand and is hence called as confirmatory demand. The second
demand is made by the pre-emptor as soon as he can and affirm his intention of asserting
his right by referring to the fact that he has already made the first demand and no
particular form is prescribed for the same. It may be made through a letter or by a
messenger also if he is unable to do so.

It is pertinent to note that the first and second demands may be clubbed for
exercising the right of pre-emption.

(iii) Talab-i-Tamlik, the third demand

If the pre-emptor is unsuccessful in his attempt to repurchase the property, the third
and last step is to maintain an action in a court of law. This is also termed as demand of
possession. The suit for pre-emption must be filed within a period of one year and claim
of pre-emption must be made for the whole property.

HOW TO DEFEAT PRE-EMPTION:

This right of pre-emption may be defeated by the vendee by selling off the property to
another but by excluding a very narrow strip of land bordering the neighbour’s property
lawfully and hence the right of pre-emption is said to be a very weak right.

RIGHT OF PRE-EMPTION WHEN LOST:

The right of pre-emption may be lost -
a) If a pre-emptor has waived his right by acquiescence i.e., by not asserting his
claim by failing to make demands or willingly foregoes his claim by not
making any demand
b) If the pre-emptor joins himself as a co-plaintiff with a person who is not
entitled to claim the right of pre-emption

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c) If the pre-emptor releases the property for consideration of something to be

paid to him by the seller
d) If the right of the pre-emptor does not exist till the date when the final decree
is passed by the court
e) If there is any statutory disability on the part of pre-emptor to repurchase the
pre-empted property

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SHORT NOTES ON:-

DOCTRINE OF MUSHA

Musha:
Musha in Arabic means undistributed or common; in legal language it refers to
undivided portions of property and in particular to such property with reference to its forming
the subject of a gift. Such property may be movable or immovable.

Under Muslim Law, Musha signifies an undivided share in a joint property. It is

therefore a co-owned or joint property. If one of the several owners of a property makes a
gift of his own share, there may be confusion as to which portion or part of the property is to
be given to the donee.
Under Hanafi School, the subject of gift must be separated or removed so as not to be
joined to what is not given. Otherwise, it becomes invalid/irregular. However, if the co-
owned property is not capable of partition or division, the Doctrine of Musha is not
applicable.

KINDS OF MUSHA:
Musha may be of 2 kinds:
1) Musha-indivisible
2) Musha-divisible

1) Musha-indivisible:
There are certain properties which are by nature indivisible. In such a situation,
Musha is not applicable. According to all the schools of Muslim Law, this is valid without
any partition and actual delivery of possession.

Example:
A staircase, a cinema house, etc.

2) Musha-divisible:
In Musha-divisible, a property capable of division may be divided easily without
changing the nature and without affecting the utility of the property.

Example:
A co-owned piece of land, house or a garden.

Under Hanafi School, a gift of Musha-divisible property is irregular/fasid if made

without partition as it may be validated by its subsequent division from the rest of the
property of which it forms part and delivering possession of the divided part to the donee.

Shia School does not recognise the Doctrine of Musha. Under Shia law, gift of a
share of divisible joint property is valid even if made without partition.

EXCEPTION:
The Doctrine of Musha has been confined to limited sphere. The following
exceptions have been recognised where gift of an undivided share of property capable of
division is valid even if the share is not divided off and delivered to the donee:
1) Gift by one co-heir to the other
2) Gift of share in Zamindari by one of its co-sharers

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3) Gift of share in free-hold property in commercial town

4) Gift of a share in landed company

APPLICABILITY OF DOCTRINE OF MUSHA IN PRESENT SOCIETY:

The Doctrine of Musha originated for avoiding confusion in the simple cases of gifts
of small undivided properties. In the present commercially advanced society, the Doctrine of
Musha is nether legally required nor has any practical significance as it may operate as a
restriction upon the right of a person to deal with his properties as gifts are not trade oriented
transactions but are voluntary and gratuitous transfers. Moreover, where a constructive
delivery of possession is sufficient to complete the gift, there is no need of making actual
division. A symbolic possession by the donee of the gifted share in property validates the gift.

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UNIT - 4

Q: WHAT IS THE SIGNIFICANCE OF SUCCESSION CERTIFICATE? STATE THE PROCEDURE TO

OBTAIN IT.

A:
SUCCESSION:
Succession is the transmission of property vested in a person at his death to some
other person or persons. It is regulated by law.

The Law of Succession is divided into the Law of Testamentary Succession and the
Law of Intestate Succession. The law of Testamentary Succession regulates the devolution of
the property of a person who dies having made a Will disposing of it. The Law of Intestate
Succession on the other hand regulates the devolution and distribution of the undisposed
property of a deceased person.

Inheritance means only the acquisition of property by succession and not by devise
under a Will.

SUCCESSION CERTIFICATE:
A certificate granted to a person interested in the estate of the deceased to facilitate
collection of debts or security on succession is called a Succession Certificate.

SIGNIFICANCE OF SUCCESSION CERTIFICATE:

The grant of a Succession Certificate does not establish a title of the grantee as the
heir of the deceased.
A Succession Certificate facilitates collection of debts on succession and affords full
indemnity to all such persons as regards all payments made or dealings had in good faith in
respect of such debts or securities to or with the person to whom the certificate was granted.
It acts as conclusive proof of any payment made and lawfully discharges them.
The holder of a Succession Certificate can proceed against the debtors also.

PROCEDURE TO OBTAIN SUCCESSION CERTIFICATE:

Following is the procedure to obtain a Succession Certificate:

1. Court of Jurisdiction:
s.371 of the Act lays down that the District Judge within whose jurisdiction the
deceased ordinarily resided at the time of his death or within whose jurisdiction any part of
the property of the deceased may be found is empowered to grant the Succession Certificate.

2. Application to Court of Jurisdiction:

s.372 of the Act lays down the formalities and the particulars to be given in the
application for Succession Certificate.

It prescribes that the application should be made to the District Judge signed and
verified on behalf of the applicant in the manner provided under Code of Civil Procedure,
1908 for signing and verification of plaint furnishing the following details -
1) time of death of the deceased
2) jurisdiction of court wherein the deceased ordinarily resided and jurisdiction in which the
property is situated

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3) particulars of family or other near relatives of the deceased and their respective
residences
4) the right in which the petitioner claims
5) absence of impediments to the grant of succession certificate u/s.370 of the Act or under
any provision of the Act/enactment or to its validity if granted
6) the debts and securities in respect of which it is applied for

The application for such certificate may be made in respect of any debt or
debts due to the deceased creditor or in respect of any portion thereof.

3. Procedure on Application:
s.373 of the Act deals with this aspect. On an application to the District Judge, if the
Judge is satisfied that there is ground for entertaining the application -
1) he shall fix a day for its hearing and cause special notices of it to be served upon any
person he thinks fit or have it posted on some conspicuous part of the court-house and
have it published in such other manner subject to the rules made by the High Court in
this behalf

2) on the day fixed or soon thereafter as may be practicable he may proceed in a summary
manner the right to the certificate. If the Judge determines the right belongs to the
applicant, he shall make an order for grant of certificate to him. In a case where it is too
intricate and difficult to determine due to questions of law or fact, he may nevertheless
grant a certificate to the applicant if prima facie it appears to him that the applicant has
the best title to it.

3) in a case where there is more than one application for the certificate, the Judge may grant
the certificate to an applicant having regard to the extent of interest and fitness in other
respects of the applicants.

REVOCATION OF SUCCESSION CERTIFICATE:

s.383 of the Act deals with this aspect. It lays down that a certificate granted may be
revoked for any of the following reasons:
1) that the proceedings to obtain the certificate were defective in substance;
2) that the certificate was obtained fraudulently or by concealment something material to
the case;
3) that the certificate was obtained by means of an untrue allegation though such allegation
was made in ignorance or inadvertently;
4) that the certificate has become useless and inoperative through circumstances;
5) that a decree or order made by a competent Court in a suit or other proceeding with
respect to effects comprising debts or securities specified in the certificate renders it
proper that the certificate should be revoked.

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Q: WHAT IS DOMICILE? MENTION THE KINDS OF DOMICILE AND EXPLAIN HOW A PERSON
CAN ACQUIRE DOMICILE IN INDIA.

A:
DOMICILE:
Domicile may be described as the place of permanent abode and a person can have
only one domicile at a time.

KINDS OF DOMICILE:
Domicile has been classified under 3 heads:
1) Domicile of Origin or Domicile of Birth
2) Domicile of Choice
3) Domicile by Operation of Law

1. DOMICILE OF ORIGIN/BIRTH: - SS. 7, 8

s.7 of the the Indian Succession Act, 1925 deals with this aspect. It lays down that
every child as soon as he is born his domicile is the domicile of his father if he child is a
legitimate child. s.8 of the Act lays down that if the child is an illegitimate child, then the
child’s domicile is that of his mother.

Illustration:
At the time of the birth of A, his father was domiciled in England. A’s domicile of
origin is in England whatever may be the country in which he was born.

s.8 of the Act lays down the case of a posthumous child i.e., a child born after his
father’s death, the domicile of such a child is the country in which his father was domiciled at
the time of the father’s death.

s.9 of the Act lays down that the domicile of origin prevails until a new domicile has
been acquired.

2. DOMICILE OF CHOICE: - SS. 10, 11, 13

s.10 of the Act lays down that a domicile of choice is acquired by a combination of
fact with intention i.e., animo et facto. The fact is residence and the intention is that the new
residence should be permanent.

A domicile of choice is the creation of the party and when a party creates a new
domicile, the domicile of origin remains in abeyance and not extinguished as mere residence
in a new place however long is not enough as the residence must be accompanied by an
intention of fixed habitation in the new domicile with the intention of abandoning his
domicile of origin.

Example:
A person who seeks a country to live in as resident for the sake of his health acquires
a domicile of choice.

Illustration:
(i) A, whose domicile of origin is in England goes to Austria and enters the Austrian service
intending to remain in that service. A has acquired a domicile in Austria.

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(ii) A, whose domicile of origin is in England proceeds to India where he settles as a barrister
or a merchant intending to reside there during the remainder of his life. His domicile is
now in India.

(iii) A, whose domicile of origin is in France comes to reside in India under an engagement
with the Central Government for a certain number of years. It is his intention to return to
France at the end of that period. He does not acquire a domicile in India.

Caselaw: Kedar Pande vs. Narayan Bikvan Shah

In this case, the Hon'ble SC has observed that residence is a mere physical fact.
When this physical fact is accompanied by the required state of mind, neither its character nor
its duration is in any way material.

s.11 of the Act which is a special mode of acquiring domicile in India lays down that
a person is entitled to acquire such domicile by making and deposition in some office in India
appointed on this behalf a declaration provided he has been a residing in India for 1 year prior
to the making of such a declaration.

s.13 of the Act lays down that the domicile of choice continues until the former
domicile has been resumed or another has been acquired.

3. DOMICILE BY OPERATION OF LAW: - SS. 14-18

ss. 14-18 of the Act deals with this aspect.

s.14 lays down that the domicile of a minor follows that of his parent i.e., of the father
if the minor is legitimate per s.7 and of the mother if the minor is illegitimate per s.8. If the
father dies during the minority of his child, the minor’s domicile continue to be of the father.

Exception:
If the minor is married or holds any office/employment in the service of government
or has set up with the consent of the parent any distinct business, his domicile does not follow
the domicile of his parent. Also, per s.15 a woman on her marriage acquires the domicile of
her husband if she had not the same domicile before, but if a minor girl is married the minor
retains the domicile of her parent even after marriage.

s.15 lays down that during marriage the wife’s domicile follows that of her husband.

Exception:
The wife’s domicile does not follow that of her husband if they are separated by the
sentence of a competent Court i.e., by divorce or by judicial separation or if the husband is
undergoing a sentence of transportation.

s.18 lays down that if the lunatic is a minor his domicile follows that of his parent and
if the lunatic is a married woman her domicile follows that of her husband.

PROCEDURE TO ACQUIRE DOMICILE:

s.11 of the Act which is a special mode of acquiring domicile in India lays down that
a person is entitled to acquire such domicile by making and deposition in some office in India
appointed on this behalf a declaration provided he has been a residing in India for 1 year prior
to the making of such a declaration.
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UNIT - 5

Q: DEFINE WILL. EXPLAIN THE KINDS OF WILLS. DISCUSS THE RULES FOR THE EXECUTION
OF PRIVILEGED WILLS AND UNPRIVILEGED WILLS.

A:
WILL:
According to s.2(h) of the Indian Succession Act, 1925, Will means the legal declaration
of the intention of a testator with respect to his property which he desires to be carried into
effect after his death.

According to s.2(b) of the Indian Succession Act, 1925, Codicil means an instrument
made in relation to a Will and explaining, altering or adding to its dispositions and shall be
deemed to form part of the Will.

KINDS OF WILLS:
Under the Indian Succession Act, 1925, Wills are divided into 2 classes: privileged Wills
and unprivileged Wills

1. PRIVILEGED WILL/INFORMAL WILL:

There are certain persons who are exempted from the provisions of the law regarding
making of Wills as to age, capacity and also the formalities to be observed. Such privilege is
conferred on persons in extremis.

s.65 of the Indian Succession Act, 1925 deals with a privileged Will and provides for
disposing of property by a Will of a soldier, airman, mariner who is placed under exceptional
circumstances involving greater uncertainties of life of and such a Will is called privileged
Will and it has to be executed in the manner provided in s.66 of the Indian Succession Act,
1925.

Illustration:
A, a soldier serving in the field against insurgents is a soldier engaged in actual warfare
and as such can make a privileged Will.

DURATION OF A PRIVILEGED WILL:

s.67(h) of the Act lays down that an oral Will becomes null and void at the expiration of
1 month after the testator has ceased to be entitled to make a privileged Will. Therefore, a
written Will will remain operative as under English law.

2. UNPRIVILEGED WILL:
s.63 of the Indian Succession Act, 1925 deals with a unprivileged Will and provides for
disposing of property by a Will by a person other than a soldier, an airman or a mariner and
such a Will is called an unprivileged Will and it has to be executed in the manner provided in
the section.

RULES FOR EXECUTION:

1. RULES FOR EXECUTION OF PRIVILEGED WILLS
A privileged Will may be either verbal or written.

(a) Verbal Will:

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Rule 1:
If it is a verbal Will, it must be declared before the witnesses present at the same time.

(b) Written Will:

If the will is in writing, the following rules apply:
Rule 1:
If it is written by the testator wholly, signature of the testator is not necessary and
attestation is also not necessary.

Rule 2:
If it is written by another person wholly or in part, signature of the testator is necessary
and attestation is also necessary if it is not signed by the testator to show that it was written at
the direction of the testator or that he recognised it as his Will.

Rule 3:
If the soldier, airman or mariner leaves written instructions for his Will but dies before
the Will is prepared and executed, such instructions shall constitute his Will.

Rule 4:
If the soldier, airman or mariner gives verbal instruction to prepare his Will in the
presence of 2 witnesses and the instructions are reduced to writing in his lifetime but he dies
before the Will is prepared and executed, such instructions shall constitute his Will although
the instructions may not have been reduced into writing in his presence nor read over to him.

2. RULES FOR EXECUTION OF UNPRIVILEGED WILLS

The prescribed rules are:
Rule 1 - Signature:
It shall be signed by the testator or shall have his mark affixed to it or it shall be signed
by some other person but in the presence of the testator and also by testator’s direction.

Rule 2 - Place of Signature of Testator:

The signature or mark of the testator or the signature of the person signing for him may
be placed anywhere on the Will i.e., either at the commencement or at the end. But, it must
be so placed that it shall appear that it was intended to give effect to the instrument as a Will.

Rule 3 - Attestation:
The Will has to be attested by two or more witnesses. Attestation means signing a
document for a particular purpose the purpose being to testify to the signature of the
executant.

It is a mandate of law that -

a) each witness must have seen the testator sign or affix his mark or
b) each witness must have seen some other person sign the Will in the presence of and by the
direction of the testator or

c) if the Will is already signed, each witness must have received from the testator a personal
acknowledgment of his signature or mark or of the signature of such person signing for him
It is not however necessary that both the witnesses should be present at one and the
same time.

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The prescribed rules of a valid execution and attestation of a Will under the Act are
mandatory in nature and any failure or deficiency in adherence thereto would lead to
invalidation of such a document/instrument of disposition of property.

TYPES OF WILLS:
The various types of Wills are:
1) Conditional or Contingent Wills:
A conditional Will is a Will which is made so as to take effect only on a contingency
i.e., if the Will is clearly expressed to take effect only on the happening or not happening of
event it is called conditional/contingent Will.

Caselaw: Parsons vs Lanoe

A person proceeding to Ireland made the following devise: If I died before my
return from my journey to Ireland then my house and land at F should be sold after
my death.
The testator after his trip to Ireland did return to England, lived many years
and died.
The Hon’ble Court held that the Will is void as the contingent event of his
return to England did happen.

2) Onerous Wills:
An Onerous Will is a Will in which onerous and beneficial properties are included in
the same gift and the legatee cannot disclaim the onerous and accept the beneficial unless the
Will manifests a sufficient intention of the testator to the contrary.

3) Joint Wills:
A joint Will is a Will in which two or more persons make a declaration of their
intention to be carried into effect after their death. It will take effect as if each has properly
executed a Will as regards his own property. It operates on the death of each. On the death
of each testator, the legatee would become entitled to the properties of the testator who dies.

4) Mutual Wills/Reciprocal Wills:

A Will is mutual when two testators confer upon each other reciprocal benefits as by
either of them constituting the other his legatee. But, where the legatees are distinct from the
testators, there is no mutual Will. They would remain revocable during the joint lives by
either. However, previous notice to the other party must be given as to enable him also to
alter the Will. Revocation is possible even after the death of either.

5) Oral Wills:
In view of s.57(c) of the Indian Succession Act, 1925, no oral Will can be legally
made by Hindus. Still, there is the Mohammedan community among whom oral Will is
recognised. Again, the privileged Wills by soldiers, etc., may be oral, a simple declaration
before witnesses. An oral Will however must be proved by very satisfactory evidence.

6) Sham Wills:
The general principle is that animus testandi is essential to the validity of a Will. It
therefore follows that a document may be deliberately executed with all due formalities
purporting to be a Will, still it will be nullity if it can shown that the testator did not intend it
to have any testamentary operation but was to have only some collateral object for example

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to be shown to another person to induce him to comply with the testator’s wish or the like.
Such a will is called a sham Will.

7) Genuine/Authentic Will:
There is no mathematical equation to determine whether a Will is genuine or not. The
authenticity of a Will depends on the circumstances surrounding its execution and the quality
of the evidence that is led in respect of its genuineness.

8) Holograph or Olograph Will:

Will which is entirely in the handwriting of the testator is called a holograph Will.
But, in order to be valid it must also satisfy all the statutory requirements.

9) Concurrent and Duplicate Will:

Concurrent Will:
The general rule is that a man can leave only one Will at the time of his death. But,
for the sake of convenience, a testator may dispose of some properties for example those in
one country by one Will and those in another country by another Will. They may be treated
as wholly independent of each other unless there is any interconnection or the incorporation
of the one in the other.

Duplicate Will:
A testator for the sake of safety may make a Will in duplicate, one to be be kept by
him and the other deposited in some safe custody with a bank/executor/trustee. Each copy
must be duly signed and attested in order to be valid. A valid revocation of the original
would effect a valid revocation of the duplicate also.

10) Void Will:

s.89 of the Indian Succession Act, 1925 indicates what a void Will is as follows: a Will
or bequest not expressive of any definite intention is void for uncertainty.

ESSENTIALS OF A VALID WILL:

Following are the essentials to a Will:
1) Legal Declaration:
It must be a legal declaration of the intention of testator i.e., the person who makes the
Will. Law prescribes form and formalities to be complied with; if not complied with there
cannot be a legal declaration. The document must be signed and attested as required by law.
An unprivileged Will must be in accordance with provisions of s.63 of the Indian Succession
Act, 1925.

2) Subject matter:
The declaration of intention must be with respect to the testator’s property. It is
manifest that unless a document satisfies the definition in s.2(h) of the Indian Succession Act,
1925, it cannot constitute a Will in the eye of law.

3) Disposition of Property:
There must be a disposition of property under the document.

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SHORT NOTES ON:-

SPECIFIC LEGACY AND DEMONSTRATIVE LEGACY
LEGACY:
The word legacy has not been defined in the Indian Succession Act, 1925. In England,
the word legacy or bequest denotes a gift of personal estate and the word devise denotes a gift
of real estate. There is no such distinction under this Act and the word legacy is used for
denoting a gift of movable or immovable property as evidenced in Illustration (iv) to S.142 of
the Act.
Legacies are ordinarily divided into two classes namely specific legacies and general
legacies. There is also a third kind of legacy called demonstrative legacy.
A general legacy is a legacy not of any particular thing, but of something which is to
be provided out of the testator’s general estate..

SPECIFIC LEGACY:
Ss.142-151 of the Act deal with specific legacies. A specific legacy is defined by
s.142 of the Act as being a specified part of the testator’s property and it must be a part as
distinguished from the whole of his property.
It must be identified by a sufficient description and separated in favour of the
particular legatee from the general mass of the testator’s property and it shall pass to the
legatee in specie i.e., in the same or like form.

Illustrations:
(i) The sum of 1,000 rupees in a certain chest
(ii) 2,000 rupees which I have in the hands of Constitution
(iii) My promissory notes of the Central Government for 10,000 rupees in their 4% loan
Here, “my” indicates a specific part of the testator’s property

TESTS TO DETERMINE SPECIFIC LEGACY:

1) It must be a part of the testator’s property
2) It must be a part specifically distinguished from the whole i.e., a severed/distinguished part
3) It must be of the whole of the testator’s or of the general residue
4) It should b taken in the condition in which it is

DEMONSTRATIVE LEGACY:
s.150 of the Act deals with demonstrative legacy. A demonstration legacy is a legacy
which is given with reference to a particular source out of which it is to be met.

Illustration:
A bequeaths to B 1,000 rupees being part of a debt due to him from W. He also
bequeaths to C 1,000 rupees to be paid out of the debt due to him from W. The legacy to B is
specific, the legacy to C is demonstrative.

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s.151 of the Act lays down the order of payment when there is a specific bequest of a
portion of a fund and also a legacy directed to be paid out of that fund i.e., a demonstrative
legacy. The order of payment is as follows:
i) the specific bequest must be paid first
ii) out of the residue, the demonstrative legacy should be paid
iii) if the residue is not sufficient to pay the demonstrative legacy in full, the rest of the
demonstrative legacy must be made good out of the general assets of the testator.

Illustration:
A bequeaths to B 1,000 rupees being part of a debt due to him from W. He also
bequeaths to C 1,000 rupees to be paid out of the debt due to him from W. The debt due to A
from W is only 1,500 rupees; of these 1,500 rupees, 1,000 rupees belong to B and 500 rupees
are to be paid to C. C is also to receive 500 rupees out of the general assets of the testator.

DISTINCTION BETWEEN SPECIFIC AND DEMONSTRATIVE LEGACY:

The distinction between a specific legacy and a demonstrative legacy consists is that
where specified property is given to the legatee, the legacy is specific; where the legacy is
directed to be paid out of specified property it is demonstrative.

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Q: WHO IS AN EXECUTOR? WHAT ARE THE POWERS AND FUNCTIONS OF EXECUTOR?

A:
WILL:
According to s.2(h) of the Indian Succession Act, 1925, Will means the legal
declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.

According to s.2(b) of the Indian Succession Act, 1925, Codicil means an instrument
made in relation to a Will and explaining, altering or adding to its dispositions and shall be
deemed to form part of the Will.

A Will is not governed by provisions of the TP Act, 1882.

EXECUTOR:
s.2(c) of The Indian Succession Act, 1925 defines executor as - executor means a
person to whom the execution of the last Will of a deceased person is by the testator's
appointment confided.

POWERS AND FUNCTIONS:

1. FUNCTIONS/DUTIES:
Following are the functions/duties of an executor:
1) Funeral Expenses: Expenses for this purpose will have precedence over all other
liabilities. If the deceased has left no directions, the executor must dispose of the body in
the usual manner prevailing in the community and the caste to which the deceased
belonged in a manner suitable to the estate he leaves behind, s.316..

2) Inventory and Account: A statutory obligation is placed upon the executor to exhibit in
Court an inventory of all the property movable and immovable and of all credits and
debts due to the estate of the deceased within 6 months from the date of grant without
any proceedings calling upon him to do so, s.317.
However, in the case of a grant throughout the whole of India, in addition to
the requirements in s.317 above, the inventory must show separately the property
situate, in each state and the approximate value of such property, s.318.

3) Property and debts: It is the duty of the executor to collect and get the property of the
deceased as well as to collect his debts with due diligence, s.319

4) Save as per s.322, all debts to be paid equally and rateably: While s.321 stipulates
expenses of probate proceedings have to be paid after funeral expenses (s.320), s.322
directs wages to be paid next for services done by servants to the deceased. Next come
payment of debts u/s.323.

5) Will - Interest:
i) The duties of an executor are covered u/ss.316 to 331 of the Act

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ii) Duty of the executor is to administer the estate only so far and so long as to enable
him to carry out the terms of the Will. His authority to manage ceases after estate
becomes property of residuary legatee.

iii) s.325 casts a duty upon the executor the obligation to discharge all debts of the debts
of testator of which he has notice before paying or delivering legacies bequeathed under
a Will.

2. POWERS:
Following are the powers of an executor:
1) s.305 and 306: The real effect of these sections is that whereas s.305 puts the executor in
the same position as the deceased would have been in with regard to any cause of action
which survives the deceased, s.306 makes clear what those causes of action are. Read
together, these two sections leave room for survival to persons other than the executor of
actions affecting property.

2) s.307: This section deals with the power of the executor to dispose of property. This
general power in that respect however is subject to the restriction imposed by sub-section
(2) and although it speaks of restrictions, it extends to total prohibition.
An executor is not entitled to carry on the business of the testator except in so far as
maybe necessary to wind up the business. But, he can do so if the Will gives him that
power.

3) s.308: This section deals with general powers of administration which empowers the
executor to incur expenditure in addition to and not in derogation of any other powers of
expenditure lawfully exercisable by him.

4) s.309: This section deals with commission or agency charges and entitles an executor in
special cases for remuneration for acts done in connection with the estate within the limits
laid down in the Administrator-Generals’s Act of 1913.

5) s.310: This section deals with purchase by executor of deceased’s property and makes it
only voidable at the instance of any person interested seeking Court relief in this regard.
When an executor purchases the interests of a legatee, the burden is on the executor-
cum-trustee to show that he gave full value and that all information was laid before the
legatee when it was sold.

6) s.311: This section lays down that where there are several executors the powers of all
maybe exercised by any one of them unless there is anything to the contrary in the Will.
For example, where the Will appoints 4 executors and directs that 2 of them shall be a
quorum, no act can be done by a single executor.

7) s.312: This section lays down that upon the death of one or more of several executors
unless there is anything to the contrary in the Will all the powers of the office become
vested in the survivor/survivors.

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UNIFORM CIVIL CODE (UCC): - Part Syllabus

The Preamble of the Indian Constitution declares that India is a Sovereign Socialist
Secular Democratic Republic.

Art. 44 of the Constitution which deals with DPSP states that that state shall
endeavour to secure for the citizens a UCC throughout the territory of India.
An objection was taken to this provision in the Constituent Assembly by several
Muslim members who apprehended that their personal law might be abrogated. This
objection was met by pointing out:
1) that India has already achieved a uniformity of law over a vast area
2) that though there was diversity in personal laws there was nothing sacrosanct about them
3) the secular activities such as inheritance covered by personal laws should be separated
from religion
4) that a uniform law applicable to all would promote national unity and
5) that no legislature would forcibly amend any personal law in future if people were opposed
to it
In this connection, reference may be made to Art. 25 which guarantees freedom of
conscience and profession, practice and propagation of religion. However, secular activity
associated with religious practice is exempted from this guarantee.

The only tangible step taken in this direction has been the codification and
secularisation of Hindu Law. The codification of Muslim Law still remains a sensitive matter
though liberal Muslim opinion appears to favour such a step.

JUDICIAL OPINION:
A large number of cases, PIL has come before the SC pleading the following:
1) praying for the introduction of UCC or
2) declaring certain enactments relating o family law as unconstitutional
3) to declare Muslim Personal Law which allows polygamy as void as offending Arts. 14
and 15 of the Constitution
4) to declare Muslim Personal Law which enable a Muslim to give a unilateral talaq to his
wife without her consent and without resort to judicial process of courts as void offending
Arts. 13, 14 and 15 of the Constitution
5) to declare that the mere fact that a Muslim husband takes more than one wife is an act of
cruelty within the meaning of s.2(viii) of Dissolution of Muslim Marriages Act, 1939
6) to declare ss.2(2), 5(i), 5(iii), 6 and Explanation to s.30 of the Hindu Succession Act, 1956
as void as offending Arts. 14 and 15 r/w Art. 13 of the Constitution
7) to declare s.2 of the HMA, 1955 as void offending Arts. 14 and 15 of the Constitution.
In all the cases, the SC stated at the very outset that the petitions mentioned above did
not deserve disposal on merits as the issues involved were matters of policy with which the
SC would not ordinarily have concern.

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Caselaw: Mohd. Ahmed Khan vs. Shah Bano Begum (AIR 1985 SC 945)
In this case, the Hon'ble SC has ruled that a Muslim husband is liable to pay
maintenance to the divorced wife beyond the iddat period.
Further, the Court emphasized that a common civil code will help the cause of
national integration by removing disparate loyalties to laws which have conflicting ideologies.

Caselaw: Sarla Mudgal vs. UoI (1995 3 SCC 635)

In this case, the Hon'ble SC ruled that the second marriage of Hindu husband after his
conversion to Islam would be a void marriage in terms of s.494, IPC and in this context
pleaded for a uniform civil code for protection of the oppressed and promotion of national
unity and solidarity.

Caselaw: John Vallamattom vs. UoI (AIR 2003 SC 2902)

In this case, the Hon'ble SC has continued to emphasize that a common civil code will
help the cause of national integration by removing the contradictions based on ideologies.

Caselaw: Punnala Bansilal Patil vs. S. of AP (AIR 1996 SC 1023)

In this case, the Hon'ble SC observed that the founding fathers while making the
Constitution confronted with problems to unite and integrate people of India professing
different religions, faiths, born in different castes, creeds or sub-sections in the society,
speaking different languages and dialects in different regions provided a secular Constitution
to integrate all sections of the society as a united Bharat.
The Court further observed that the Directive Principles of the Constitution
themselves visualise diversity and attempts to foster uniformity among people of different
faiths; that in a democracy governed by the rule of law gradual progressive change and order
should be brought about and that it would therefore be inexpedient and incorrect to think that
all laws have to be made uniformly applicable to all people in one go; a uniform law though
desirable enactment thereof in one go perhaps may be counterproductive to unity and
integrity of the nation; the mischief of defect which is most acute can be remedied by process
of law in stages.

FIRST STEP TOWARDS UCC:

Caselaw: Seema vs. Ashwani Kumar (AIR 2006 SC 1158)
In this case, the Hon'ble SC has held that all marriages irrespective of their religion be
compulsorily registered as it is necessary because certain unscrupulous husband deny
marriages leaving the spouses in the lurch be it for seeking maintenance, custody of children
or inheritance of property.
The benefits of this ruling are:
i) it will prevent child marriage
ii) it will check bigamy and polygamy
iii) it will help women exercise their rights under marriage
iv) it will enable widows to claim inheritance and
v) it will deter husband from deserting their wives

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Conclusion:
Such piecemeal attempts by the Courts to bridge the gap between personal law cannot
take the place of a common civil code. These problems can be eliminated only if a law is
made in conformity with the present day social and economic realities.

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UNIT - 3 - part syllabus

KINDS OF GIFTS:
1. CONDITIONAL GIFTS:
Where a gift has been made subject to any condition, the donee is under an obligation
to fulfill that condition.
However, under Muslim Law, if a gift is made subject to some condition, the gift is
valid but the condition is void. Condition being void the donee need not fulfill the condition
as it will not affect the validity of the gift and the gift will be treated as if no condition was
attached to it.
The reason behind this rule is very simple - gift is an unconditional transfer of
property in which ownership or the absolute interest is given to the donee.

Exception:
There are 2 parts of any property:
i) The corpus which is the main property in existence i.e., the subject matter of the gift and
ii) The usufruct which is the income or the benefit of the subject matter of the gift

Example:
A garden is the corpus and its periodical produce of flowers, fruits, etc., are the
usufruct.

Under Muslim Law, if the condition affects the ownership of the donee in respect of
any part of the corpus, the gift is valid but the condition is void. But, if there is any condition
under which the donor simply reserves only the income or usufruct during his life or during
the life of any other person without affecting the corpus, the condition and the gift are both
valid.

Under Shia School, if the condition attached to a gift is subsidiary, then both the gift
and the condition are valid.

2. CONTINGENT GIFT:
A gift subject to a contingency is called a contingent gift. Any uncertain future event
which is not dependent upon the will of the parties is called a contingency as it is beyond
their control; it is merely a possible event which may or may not happen. Such a contingent
gift is void under all the schools of Muslim Law.

According to Fyzee, a classical example of the contingent gift is Ruqba which means
an interest in the property provided the transferee survives the transferor i.e., where A says to
B, “My house is your Ruqba, i.e., if you die, it is mine; if I die, it is yours”.

3. GIFT WITH CONSIDERATION/HIBA-BIL-IWAZ

Hiba-bil-Iwaz is a peculiar concept of Muslim Personal Law. Hiba means gift and
Iwaz means consideration/return.

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If a gift has duly been made and completed, but subsequently the donee also gives
something to the donor in lieu of this gift, then the gift is called Hiba-bil-Iwaz. The
consideration, Iwaz paid by the donee to the donor need not be equal to the value of the
property gifted. However, the consideration must be of some monetary value.

Examples:
1. A makes a gift of his house to B. Subsequently, B in return gifts a car to A. Here, gift of
house from A to B is a Hiba-bil-Iwaz. Thus, the return gift is actually not a gift but a
consideration for the original gift.
2. It has been held that a copy of Quran or even a prayer carpet is a good consideration.

Legal Nature:
The legal nature of such a return gift/consideration for the original gift is that it is
considered either a sale or an exchange depending on whether the consideration is money or
some property. In Indian form of Hiba-bil-Iwaz, delivery of possession is not required but a
bona fide intention to divest himself is required.

Essentials of Hiba-bil-Iwaz:
The following 2 conditions are necessary to render a transfer as Hiba-bil-Iwaz.
i) A valid and completed gift by the donor to the donee
ii) The donee must give something to the donor after the completion of the gift

Legal Incidents:
In India, following are the legal consequences:
1) It is considered as a sale or exchange if the Iwaz is money and it must be completed
according to the provision of s.4 of the TP Act, 1882. If the gift is of immovable
property exceeding Rs.100 in value, it must be in writing and must also be duly attested
and registered.
2) The delivery of possession is not required
3) The Doctrine of Musha does not apply
4) The transfer becomes irrevocable from the moment it is made

4. HIBA-BA-SHART-UL-IWAZ:
Shart means stipulation and Hiba-ba-Shart-ul-Iwaz means a gift made with a
stipulation for return. In this transaction, payment of consideration is a prior condition/Shart
for the gift. Here, the donee does not pay the consideration voluntarily, it is paid by the
donee because it is a condition precedent for the gift. The result is that in a Hiba-ba-Shart-
ul-Iwaz, the original gift is a pure gift at its inception and the payment of Iwaz is also an
independent gift. The transaction is nothing but a set of 2 independent gifts.

Here, the payment of consideration is postponed. Since the payment of consideration

is not immediate, delivery of possession is essential and the transaction becomes final
immediately upon delivery. When the consideration is paid, it assumes the character of a sale
and is subject to pre-emption/Shufa. As in sale, either party can return the subject of the sale
in case of a defect.

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It has the following characteristics:

1. Delivery of possession is necessary
2. It is revocable until the Iwaz is paid
3. It becomes irrevocable after the payment of Iwaz
4. Transaction when completed by payment of Iwaz assumes the character of a sale

Legal Incidents:
Following are the legal incidents:
1. The whole transaction must be completed by declaration, acceptance and delivery of
possession as they are 2 sets of independent gift
2. As soon as the donee makes the gift of his property in furtherance of fulfillment of the
condition, the transaction become irrevocable.
3. It gives rise to pre-emption
4. Doctrine of Mush is applicable.

SADQA/RELIGIOUS GIFT:
Sadqa is made to please the God with the object of securing religious or spiritual
gains. Thus, Sadqa is a religious gift. When a Sadq is made, its religious object is achieved
as soon as the property is transferred to the donee. Thereafter, the donee becomes the owner
of the property and he may transfer the property as he likes. But, in a Wakf, the subject
matter is tied up for ever and only its usufruct is utilized.

The essential requirements of a valid Sadqa are the same as that of a Hiba i.e., there
must be declaration, acceptance and delivery of possession. Any property which may be the
subject matter of a Hiba may also be the subject matter of a Sadqa.

VOID GIFTS:
The following gifts are void:
1. Gift to unborn person:
But, a gift of life interest in favour of an unborn person is valid if such a person comes
into existence when such interest opens out.

2. Gift in future:
A thing that is to come into existence in future cannot be made. Thus, a gift of a crop
that will come up in future is void.

3. Contingent Gift:
A gift that takes effect after the happening of a contingency is void. Thus, a gift by A
to B if A does not get a male heir is void.

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WILL/WASSIYAT - Part Syllabus

INTRODUCTION:
A gratuitous transfer of ownership in a property by way of a testamentary document is
called a Will. It takes effect only after the death of the testator.
A gratuitous transfer of ownership in a property by way of a gift deed made inter
vivos i.e., between living person is called a gift and it takes effect immediately.

WILL:
According to s.2(h) of the Indian Succession Act, 1925, Will means the legal
declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.

According to s.2(b) of the Indian Succession Act, 1925, Codicil means an instrument
made in relation to a Will and explaining, altering or adding to its dispositions and shall be
deemed to form part of the Will.

A Will is not governed by provisions of the TP Act, 1882.

ISLAMIC WILL:
The Islamic Will is called al-wasiyya. The one who makes the Will is called a
testator/Al-musi and the one who is the beneficiary is called a legatee/Al-musa-lahu. The
executor of the Will if any acts as a manager of the estate of the deceased and carries out the
wishes of the testator according to Islamic law and is called Al-wasi Al -mukhtar.

Wassiyat means the Act of conferring a right in the substance or the usufruct of a
thing after death. Usufruct means the legal right to use and enjoy the fruits or profits of
something belonging to another.

BEQUESTS BY INSOLVENT PERSONS:

If a person is deeply involved in debt and bequeaths any legacies, the bequest is
unlawful as debts have a preference to bequests for discharge of debt is obligatory while
bequests are gratuitous and voluntary in nature. However, if the creditors relinquish their
claims, the obstacle is removed and the bequest becomes valid.

LIMITATIONS ON A MUSLIM IN MAKING A WILL:

A Muslim can transfer his entire property through gift. In the case of a Will however
there is a very reasonable balance between the law of inheritance and a Will as Muslim Law
has not given unlimited powers for testamentary disposition and has put 2 limitations on him
as follows:
1) Limitation on bequest to heirs:
No bequest can be made to an heir unless the other heir(s) consent to it. This rule is
based on a tradition of the Prophet. The consent of the other heirs may be express or implied
but silence/inaction does not amount to implied consent. The reason is that who his heirs are
is determined after his death as a person may not be his heir during his lifetime and become
an heir after his death.
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Example:
A has got a son and a wife at the time of making the Will. A makes a bequest of 1/3rd
of his property to his son. But, A’s son predeceases him and A’s grandson becomes the heir
leading to invalidity of the bequest in favour of his son.

Rule of Consent:
If the heirs are major and of sound mind, they can give their consent to the bequest
made in favour of an heir. But, if they are minors at the time of the testator’s death, consent
must be given by them on attaining majority as a minor’s guardian cannot consent to such a
bequest. Once the consent is given, it cannot be withdrawn even if made under a mistake of
law.
Under the Ithna Ashari school of Shia, the consent may be given either before or after
the death of the testator.

The reason for putting restriction on bequeathing in favour of an heir is intended to

prevent the showing of favouritism to any heir to the prejudice of the others as such a
restriction safeguards against the breach of ties in kindred.

Caselaw: Kallobai vs. Babukhan

In this case, the Hon’ble Court held that a Will executed in favour of the daughter as
ineffective even to the extent of the legal third in absence of consent of other heirs i.e., sons.

2) Limitation on bequeathable property:

The testamentary power of a Muslim is limited to the bequeathable 1/3rd. 1/3rd will be
counted after paying general expenses and debts.

Exceptions:
Following are a few exceptions where excess of 1/3rd is permitted -
i) In case of a stranger:
(a) If a Will is made in favour of a stranger which is in excess of 1/3rd of its value and the
heirs consent to it, then such a bequest is valid. But, if the heirs do not consent to such a
bequest, the bequest will take effect only in respect of 1/3rd and the other 2/3rds will go to the
heirs.

(b) When a Muslim has no heirs left, he can bequeath his entire property to a stranger in
which case it will go to such a universal legatee and will not escheat to the Government.

ii) In case of a wife or a husband as sole heir:

A male Muslim can bequeath 5/6ths of his property and a female can bequeath 2/3rds of
her share in the property to a stranger.

Example:
If A, a wife makes a bequest of her entire property to C, a stranger and dies leaving B,
her husband as her sole heir and the husband does not consent to the bequest in favour of C,
then the Will is valid to the extent of 2/3rds only in favour of C, the stranger.

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ESSENTIALS OF A VALID WILL:

Following are the essentials of a valid Will:
1. Qualifications for the Will
2. Subject-matter of a Will
3. Formalities of a Will

1) Qualifications for the Will:

i) Capacity for a Testator/Al-musi:
A testator should have the following qualifications:
(i) Religion: A testator should be a Muslim
(ii) Sex: A testator should be a male/or a female
(iii) Status: A testator may be married/unmarried
(iv) Age: A testator must have attained the age of majority per s.3 of the Indian Majority Act,
1875 and the Act prescribes it as 18 years, but if a person who has made a Will during
his minority ratifies it on attaining majority it become valid.
(v) Soundness of mind: At the time of making a Will, the testator must be of sound mind as a
Will made by an insane person would not become valid even if he recovers after that.
However, a Will is made when of sound mind even though in lucid intervals remains
valid. But, a Will made by a testator of sound mind would become void on him
subsequently becoming insane or of unsound mind and stays so till his death.
(vi) Ownership: A testator should have ownership of the property at the time of making the
Will
(vii) Consent: A testator who makes the Will must do it out of his own free consent as a
Will made under coercion, undue influence or fraud is invalid.
(viii) Suicide attempt: A Will executed before attempting to commit suicide is valid. Where a
Will is made by a person who has taken poison or has wounded himself with a view to
commit suicide is void under Shia law but valid under Sunni law.

ii) Capacity for a legatee/Al-musa-lahu:

A legatee should have the following qualifications:
(i) Religion: A legatee may be a Muslim or a non-Muslim. When the Will is made in favour
of a non-Muslim, the property will be subject to the personal law of the legatee.
(ii) Sex: A legatee may be a male/a female
(iii) Status: A legatee may be married/unmarried
(iv) Age: A legatee may be a major or a minor
(v) Soundness of mind: A legatee may be an insane person
(vi) Consent: A legatee’s consent is necessary after the death of the testator for taking the
property otherwise the legatee’s title to the property is not complete
(vii) Unborn person: A Will in favour of an unborn person is void. But, to a child in womb
may be made and will be valid provided the child is born within 6 months of the death of
the testator as in the eyes of the law the child in the worm is regarded as a living person.
(viii) Bequest to heir: Under Hanafi school, a bequest to an heir is not valid unless the other
heirs consent to it either expressly or impliedly after the death of the testator. However,
even a single heir’s consent binds his share.
(ix) Joint legatees: A Will may be made jointly to 2 or more persons. In such a case, if any
one legatee is incapable of being a legatee at the time the Will was made, the entire
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legacy will go to the other remaining legatees. But, if the legatee was qualified at the
time the Will was made but later became disqualified, then the other remaining legatees
would be entitled to their share only and the rest would lapse.
(x) Murderer of testator: A legatee who intentionally or accidentally kills the testator is not a
competent legatee and is disqualified from getting any property under the Will.
However, under Shia School, such a legatee is not disqualified and the Will in his favour
is valid.

2) Subject-matter of a Will:
The subject matter of the Will must be capable of being transferred and it may be any
type of property whether it be movable/immovable, corporeal/incorporeal. [ Hereditaments are
corporeal which are tangible (in fact, they mean the same thing as land) and incorporeal which are not tangible and are
the rights and profits annexed to or issuing out of land. It includes money held in trust to be laid out in land ] The
corpus i.e., the main property in existence i.e., the subject matter of the Will and the usufruct
which is the income or the benefit of the subject matter of the Will be bequeathed to different
persons as in the case of a gift. Life interest may be a lawful subject matter of a Will under
Muslim Law.

It is necessary that the subject matter of the Will must be in existence at the time of
testator’s death though it may not be in existence at the time when the Will was made the
simple reason being that the Will operates only after the death of the testator and not from the
moment it is made.

3) Formalities of a Will:
The following formalities must be complied with -
(i) Oral Will: A will may be made orally and no form of verbal declaration is specified.
However, the burden of proving an oral Will is very heavy and must be proved with
utmost precision and with every circumstances of time and place.
(ii) Will in writing: No specific form is specified for a Will in writing and it does not require
the signature of the testator or attestation by witnesses
(iii) Will made by signs: Under Muslim Law, it may be made by signs or gestures provided
that the testator is unable to speak or write an example being of a dumb person.
However, Will of a sick man being unable to speak from weakness is valid if he is
capable of nodding his head to indicate that he comprehends that he is bequeathing
provided that he dies without regaining his power of speech.
(iv) Acceptance by the legatee after the death of the testator whether expressly or impliedly is
required for the validity of a Will even though such a legatee has rejected the Will during
the lifetime of the testator.

CONDITIONAL AND CONTINGENT WILLS:

Conditional Will:
A Will made subject to certain conditions is called a Conditional Will. A conditional
Will is valid but the condition attached to it is void. But , a bequest of usufruct may be made
with a condition.
Example:

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A Muslim makes a conditional Will of his properties to a stranger. The condition is

that the legatee cannot sell the property. The Will is valid and enforceable.
Under Sunni law, condition of a life interest to a legatee is void but the Will will be
valid but under Shia law such a Will is valid.

Contingent Will:
A contingent will is one in which the vesting of interest of a legatee depends upon
some uncertain future event. Such a Will is void and does not operate even though the
contingency happens unless custom permits such a contingent bequest. But, such a custom
should have the force of law.

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GIFT

DIFFERENCES BETWEEN WILL AND GIFT:

GIFT/HIBA:
A Hiba is an immediate transfer of ownership of some movable property or right by
the one person to another without any consideration.

Hedaya defines Hiba or gift as -

a transfer of a determinate amount of property without any exchange from one person
to another and accepted by or on behalf of the other.

WILL/AL-WASIYYA
According to s.2(h) of the Indian Succession Act, 1925, Will means the legal
declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.

According to s.2(b) of the Indian Succession Act, 1925, Codicil means an instrument
made in relation to a Will and explaining, altering or adding to its dispositions and shall be
deemed to form part of the Will.

The Islamic Will is called al-wasiyya. Wassiyat means the Act of conferring a right
in the substance or the usufruct of a thing after death. Usufruct means the legal right to use
and enjoy the fruits or profits of something belonging to another.
The one who makes the Will is called a testator/Al-musi and the one who is the
beneficiary is called a legatee/Al-musa-lahu. The executor of the Will if any acts as a
manager of the estate of the deceased and carries out the wishes of the testator according to
Islamic law and is called Al-wasi Al -mukhtar.

Following are the differences between a Will and a Gift:

SL. NO. GIFT WILL
It is an immediate transfer of right or It is a transfer after death of the testator
1
interest
2 Delivery of possession is necessary Delivery of possession is not necessary
Subject of Gift must exist at the time Subject of Will must exist at the time of
3
of making gift death of the testator
Right of donor is unrestricted and can Right of testamentary disposition is
4
gift 100% of his estate limited to 1/3rd of his estate
Gift cannot be revoked A Will can be revoked by making a
5
subsequent Will

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DEATH-BED GIFT/MARZ-UL-MAUT:
GIFT/HIBA:
A Hiba is an immediate transfer of ownership of some movable property or right by
the one person to another without any consideration.

Hedaya defines Hiba or gift as -

a transfer of a determinate amount of property without any exchange from one person
to another and accepted by or on behalf of the other.

DEATH-BED GIFT/MARZ-UL-MAUT:
Marz-ul-Maut is a malady which induces an apprehension of death in the person
suffering from it which eventually results in his death. Gift made by a person in
contemplation of his death is known as donatio mortis causa.

Ameer Ali says that as Durr-ul-Mukhtar has put it -

When a person suffers from a malady which is ordinarily mortal for over a year, it
ceases to have any apprehensive influence on his mind as it has become part of his nature and
hence it cannot be called Marz-ul-Maut.

Through a gift, a Muslim donor on his deathbed may transfer his properties without
any restriction of its quantity although in its effect the transaction is a Will. This may
frustrate the very purpose of the 1/3rd rule in respect of Muslim Wills.
Accordingly, in order to prevent the evasion of restrictions on the testamentary
capacity of a Muslim on his deathbed, such a gift is interpreted as a Will. Hence, a gift made
by a Muhammadan during Marz-ul-Maut or death-illness cannot take effect beyond a third of
the surplus of his estate after payment of funeral expenses and debts unless the heirs give
their consent after the death of the donor to the excess taking effect.

ESSENTIALS OF A DEATH-BED GIFT:

A gift during death-illness is a pure Hiba in its formation but after the donor’s death it
operates like a Will. Therefore, the essential conditions of a gift during death illness are the
following::
1) There must be a valid gift
2) Apprehension of death
3) Illness must result in death
4) Presence of external indicia

1) There must be a valid gift:

Requirements for a valid gift must be fulfilled i.e., declaration, acceptance and
delivery of possession.

2) Apprehension of death:
There must be a reasonable apprehension of death. In other words, any disease or
ailment may be regarded as a death-illness if the person suffering from it believes that
there are no chances of his survival.

3) Illness must result in death:

The illness must result in death. If there is recovery from illness, it will not be
death illness. So, all those disease whether dangerous or not which result in death
should be regarded as Marz-ul-Maut maladies.

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4) Presence of external indicia:

There must be some external indicia the chief among them being the inability to
attend to any ordinary vocations or to stand up to say prayers to constitute death illness.
Subjective apprehension is the crucial test, symptoms are only the indicia.

LEGAL EFFECT OF MARZ-UL-MAUT:

Following are the legal effects of Marz-ul-Maut -
1) Effects on Marriage: A marriage contracted during Marz-ul-Maut is an irregular marriage.
It means that the wife is not entitled to dower if the husband dies before the marriage is
consummated and no mutual rights of inheritance arise out of such a marriage. But, such a
marriage becomes valid if it is consummated.

2) Effects on Divorce: During Marz-ul-Maut, if a husband pronounces Talaq or makes Ila or

Lian against the wife, then the husband is not entitled to right of inheritance from the wife.
But, the wife on the death of her husband during Iddat is entitled to maintenance from the
husband only during the period of Iddat and not afterwards. But, when the wife is
suffering from death illness and she asks the husband to give Talaq to her, then the husband
is entitled to the right of inheritance from her.

3) Effect on Gift: Gift made during Marz-ul-Maut has a testamentary effect and such a gift
cannot take effect beyond a third of the surplus of the estate after payment of funeral
expenses and debts unless the heirs give their consent after the death of the donor to the
excess taking effect.

It may be noted that s.129 of TP Act, 1882 deals with deathbed gift or Donatio
Mortis Causa. Similarly, s.191 of the Indian Succession Act, 1925 deals with
deathbed gift with regard to movable property.

4) Effect on Wakf: Like a gift, a Wakf created during Marz-ul-Maut is valid to the extent of
1/3rd unless the heirs give their consent.

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CUSTODY/HIZANAT - Unit - 2, Part Syllabus

Guardianship and Custody:

Guardianship of minor’s person means an overall supervision of the minor’s
personality. It means care and welfare of the child including the liability to maintain it.
Under Muslim Law. Guardianship of the minor’s person is called Wilayat-e-nafs and
the custody of the minor is called Hizanat. Custody is granted specifically as a matrimonial
relief to a parent who seeks such custody whereas guardianship connotes wider rights than
mere custody.

A guardian even if he does not have custody may yet by virtue of his guardianship
status exercise powers regarding marriage or education of the child and move the Court for
appropriate orders if required.

MOTHER’S RIGHT OF HIZANAT:

This right is recognised by almost all the Muslim authorities. This rule is based on
the presumption that on account of her peculiar relationship with the child she is obviously
the best person to give natural love and affection which a child requires during its infancy
including its dependence for feeding.

(i) Custody of Son:

Under Hanafi School, the mother is entitled to the custody of sons below 7 years of
age; under Maliki school, it continues till the child attains puberty; under Shia school, it is
until the son is weaned (2 years).

(ii) Custody of Daughter:

Under Hanafi School, the mother is entitled to custody of female child till the age of
puberty; under Maliki and Shafi law, until her marriage; under Ithana Ashari school of Shia,
till the age of 7 years; under all schools, the mother has the right to custody of her married
daughter below the age of puberty.

When Mother’s Right to Custody is Lost:

(i) When she remarries after divorce or after the death of her husband
(ii) When she is unable to take proper care of the child
(iii) When she leads an immoral life or is of bad character or guilty of acts which is not in the
interest of the child

FATHER’S RIGHT OF HIZANAT:

All schools of Muslim Law recognize father’s right of hizanat under the following conditions:
(i) In the absence of the mother or other female relations entitled to custody
(ii) After completion of the age of the child upto which the mother or other female relations
are entitled to custody
This right continues till the child attains puberty, but according to Shafis and
Hanbalis he is entitled till the female children are married

The only condition for a male to be a guardian for the custody of a girl is that
he should be within the prohibited degrees of relationship with the girl. The purpose
of this rule is to avoid the possibility of any exploitation of the custody of an
unmarried girl. The cardinal principle of hizanat is Muslim Law is the welfare of the
child.

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(iii) Custody of an Illegitimate Child;

Custody of such a child belongs to the mother up to the age of 7 years and above 7
years it is the discretion of the child as to who she wants to be with i.e., the child may choose
the mother or the father or any other person.

(iv) Custody of Minor Wife:

Custody of a Muslim minor wife who has not attained the age of puberty is
not given to the husband till she attains the age of puberty i.e., 15 years. But,
s.19 of the Guardians and Wards Act, 1890 lays down that the husband is the
guardian of his minor wife unless he is found unfit.

4) In respect of minor’s marriage:

A marriage guardian is a person who under Muslim Law is authorised to contract the
marriage of a minor. This authority is termed as guardian for marriage. It is called as
Wilayat-e-Nikah or Wilayat-e-Jabar.

Such a guardian has the -

a) power to contract marriage of a minor or a lunatic
b) power to contract for dower
c) Power to relinquish dower
d) Power of contracting conditions
e) Power to pronounce talaq

Effect of Guardianship in Marriage:

The marriage is valid until it is repudiated on attaining puberty.

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NULLITY OF MARRIAGE - Unit -2, Part Syllabus

MARRIAGE:
Marriage is the voluntary union of one man with one woman to the exclusion of all
others satisfied by the solemnisation of the marriage. A marriage may be solemnised in the
sense that the parties to it have gone through the customary rites and ceremonies of either
party thereto.

NULLITY OF MARRIAGE:
Nullity means something that is legally void. Nullity of marriage means the invalidity
of a presumed or supposed marriage because it is void on its face.

s.18 of the Indian Divorce Act, 1869 deals with nullity of marriage. It lays down that
any husband or wife may present a petition to the District Court praying that his or her
marriage may be declared null and void.

It therefore appears that a matrimonial status is conferred on them by the mere fact of
solemnization of the marriage and s.19 of the Act lays down that such a decree may be on
any of the following grounds -
1) Impotency:
It lays down that if the respondent was impotent at the time of the marriage and at the
time of the institution of the suit, it acts as a ground for nullity of marriage.

Caselaw: Benjamin Doming Cardoza vs. Mrs. Gladys Benjamin Cardoza

In this case, the marriage was the solemnised in April 1983.but the respondent-wife
was unable to give birth to a child due to an operation she had in December 1976.
The Hon’ble Court held that this is a fit case wherein the marriage between the
petitioner-husband and the respondent-wife be declared a nullity and passed a decree of
nullity of marriage u/s. 19 of the Act.

(2) Prohibited Degree:

It lays down that if the parties are within the prohibited degree of consanguinity
(whether natural or legal) or affinity, it acts as a ground for nullity of marriage.

Caselaw: Lakshmi Dhar vs. Sachit Dhar

In this case, the petitioner-wife sought to invoke the ground that the marriage was
within prohibited degrees of relationship i.e., of consanguinity and sought decree of nullity.
Prohibition resting on consanguinity is created by Canon law and Canon law itself has
its own machinery of dispensation i.e., an exemption from a law under which an impediment
can be dispensed with by the proper Church authority which in this case was a competent
priest.
The Hon’ble Court held that dispensation had already been obtained from the
competent priest and the petitioner could not therefore assert that the marriage was void. The
case went upto the Supreme Court.

(3) Unsound Mind:

It lays down that if either party was a lunatic or idiot at the time of the marriage, it
acts as a ground for nullity of marriage.

Caselaw: Dr. Thomas Titus vs. Mrs. Roja Titus and Another

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In this case, a petition for nullity of marriage was filed by a reputed doctor alleging
that the wife was a lunatic at the time of marriage and after living with her for about five
years and begetting a child.
The Hon’ble Court by observing that it was impossible to believe that a well qualified
doctor took five years to know about the condition of his wife was that of a lunatic at the time
of marriage and dismissed the appeal.

(4) Subsisting Marriage:

It lays down that if the former husband or wife of either party was living at the time of
the marriage and the marriage with such former husband or wife was then in force, it acts as a
ground for nullity of marriage.

It is significant to note that the word used in ss. 18 and 19 is “may” which means that
it is only an enabling provision and not mandatory.
Apart from this, the Indian Christian Marriage Act, 1872 provides a marriage may be
declared void but a bigamous marriage has not been mentioned as a ground for such
declaration. This is an anomalous.

The section also lays down that the Court is empowered to pass a decree of nullity of
marriage on the ground that the consent of either party was obtained by force or fraud.

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ADEMPTION OF LEGACIES - part syllabus, Unit - 5

ADEMPTION:
s.152 of the Indian Succession Act, 1925 deals with this aspect. Ademption may be
defined to be the failure of a specific bequest or devise through its subject not being in
existence in specie at the time of the testator’s death as a part of his estate.
(in specie is anything in its own form, not any equivalent/substitute)

Ss.154 to 166 lay down special rules for the guidance of the Court on the subject of
ademption. A demonstrative legacy is not subject to ademption as can be seen in s.153 of the
Act.

Illustration:
A bequeaths to B certain bales of goods. A takes the goods with him on a voyage.
The ship and goods are lost at sea and A is drowned. The legacy is adeemed.

Example:
On conversion of immovable property into form of money by acquisition of land by
State during the lifetime of testator, the legacy through a Will before the acquisition to a
particular individual shall be adeemed and on such ademption succession shall open and all
the heirs will have a right to receive the compensation as per the provisions of the Hindu
Succession Act, 1956.

FORMS OF ADEMPTION:
The 2 primary forms of ademption are:
1) ademption by satisfaction and
2) ademption by extinction
Ademption by satisfaction occurs during the lifetime of the testator when the testator
provides the bequeathed property or a valid substitute to the beneficiary so as to show that the
bequest is revoked or satisfied.
Ademption by extinction is determined at the time of the testator’s death when the
specific bequest cannot be fulfilled because the bequeathed property no longer exists in the
estate.

s.154:
The section deals with ademption of specific bequest of a debt and lays down that
where a debt due from a third person to the testator is bequeathed specifically and the testator
recovers the debt in his lifetime the legacy is adeemed and if he recovers a portion of the debt
the legacy is adeemed pro tanto (to that extent) as per s.155 whether the debt is paid by the
debtor voluntarily or not.

Example: Receipt of interest by testator in certain policies of life assurance .

s.155:
This section follows from the previous section and lays down that a partial resceipt by the
testator of a portion of the debt specifically bequeathed Will operate as an ademption pro
tanto

Example: Receipt of part of debt by testator.

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s.156:
This section lays down that if the testator receives a portion of the fund what will
remain of the fund will first go towards the payment of the specific legacy and if the residue
falls short of the amount specifically bequeathed the specific legacy will be pro tanto
adeemed and the specific legatee will only be entitled to the residue/balance of the fund.

s.157:
This section lays down that the fund becomes sufficient by reason of the testator
receiving a portion of that fund, in such a case also the order of payment is - the specific
legacy shall be paid first and residue if any to the demonstrative legacy and any further dues
to the demonstrative legatee shall be paid out of the general assets of the testator, the same as
u/s.151.

s.158:
This section lays down that if the stock specifically bequeathed is sold by the testator
the legacy is adeemed. But, s.166 lays down that the legacy is not irretrievably adeemed and
would be revived by a new purchase of similar stock by the testator. s.165 shows that when
the testator lends the stock specifically bequeathed on condition that it be replaced the legacy
is not adeemed and s.163 provides that no ademption will take place when the stock
specifically bequeathed is exchanged by an act of law, s.159 deals with their bequest of stock
which exists only in part.

s.160:
This section is an exception to the general rule that a bequest of a thing where the
thing bequeathed is described as connected with a certain place is adeemed by the removal of
that from that place.
This section lays down that the removal will not amount to ademption where the
removal is from any temporary cause or the removal is fraudulent or the removal is without
the knowledge or sanction of the testator.

s.161:
This section lays down that where the connection with a place for example a house
where the thing bequeathed is situated is not a vital/substantive part of the description but the
place is only referred to in order to complete the description the removal of the thing
bequeathed from that place is not an ademption.

s.162:
This section lays down that the bequest is only adeemed if the testator mixes up the
thing bequeathed with his general estate.

s.164:
This section lays down that where the thing specifically bequeathed undergoes a
change between the date of the Will and the testator’s death and the change takes place
without the knowledge or sanction of the testator the legacy is not adeemed.

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Kartheek D. N. Selected Topic Notes:- Family Law - II

PROTECTION OF PROPERTY OF DECEASED - part syllabus, Unit - 5

DECEASED PERSON:
1) Deceased person means a person in whom permanent disappearance of all evidence of life
occurs by reason of brain-stem death or in a cardiopulmonary sense at anytime after live
birth has taken place [Transplantation of Human Organs Act, 1994 (42 of 1994), s. 2(e)]

2) Means a person who is no more, who is dead and gone [Estate Duty Act, 1953, s. 2(6)]

PROTECTION OF PROPERTY OF DECEASED:

Part VII of the Indian Succession deals with this aspect. ss.192 - 210 of the Indian
Succession Act, 1925 deals with this aspect. It is to be noted that ss.192, 193, 194 and 195 of
the Act form a part of Chapter XIII dealing with the modalities to be adopted for protection
of properties of the deceased being covered by Part VII.

It applies to all the subjects in India. It reproduces the Succession (Property Protection)
Act also otherwise known as the Curators Act which is for the protection of moveable and
immoveable property against wrongful possession in cases of succession by prescribing a
summary proceeding in which the Court is to determine the right to actual possession and
s.209 of the Act distinctly provides that the decision in such a proceeding shall have no other
effect than that of settling the actual possession and shall not be subject to any appeal or
reviews.

s.192 of the Act inter alia (among other things) provides that a person who claims
right by succession can make an application in respect of a property movable or immovable
left behind by a person who has died. The jurisdiction is only given to a District Judge and
not to a Subordinate Judge and the procedure is by way of an application which application
must be made within 6 months of the death of the person whose estates is in question as per
s.205 of the Act. The word succession used in the section applies not only to intestate
succession but also applies to testamentary succession.

s.193;
This section provides for an enquiry to be made by the District Judge before whom
such an application is made who examines the applicant on oath and holds inquiry as to
whether the opposite party has lawful title and whether the applicant is entitled to present the
application and whether it is bonafide. s.194 deals with the procedure to be adopted when an
application is made u/s.192.
If the Court is satisfied about the bonafides of the applicant and is also satisfied that
the applicant is likely to be materially prejudiced if left to a regular suit it passes the
necessary order.
Omission to hold inquiry is a material irregularity and an application for revision will
lie u/s.115 of CPC.

s.194:
The section lays down a summary procedure and the question to be determined is the
question of possession and not of title. The question of title can only be decided in a regular
suit.
Proviso to the section says that the District Judge may direct an inventory to be taken
after making the necessary inquiry.

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s.195:
This section lays down that before appointing a curator the District Judge should ask
the party in possession to give security. It is only when that party makes delay in providing
security or the security is found insufficient that the Judge can pass an order appointing the
curator.
The position of the curator is analogous to that of a receiver appointed by Court under
Order XL, Rule 1 of CPC. He is merely entrusted by the Court with certain powers over the
estate for a temporary purpose.

However, no curator can be appointed of a property of which there is a trust made or

of any direction in respect thereof made in a Will by the deceased owner of the property to
take effect after his death as in s.206.
An application for revision lies u/s.115 from an order made under this section.

The necessary conditions before a curator is appointed under this Part are:
(i) that the applicant must show that he has an interest in the property;
(ii) that there is danger of misappropriation or waste of the property;
(iii) that the applicant will be materially prejudiced if left to the ordinary remedy of suit;
(iv) that the applicant is bona fide as in s.193 and
(v) the application is made within 6 months of the death of the owner of the property as in
s.205.

s.196:
This section deals with the powers that may be conferred on the curator which may be:
i) Power to take possession of the property
ii) To manage the property
iii) To recover debts and rents, s.197
iv) To file and defend suits, s.200

s.197:
s, 197(1) of that Act lays down that where a Succession Certificate or probate or
letters are granted the curator shall not have authority to exercise any power belonging to the
holder of the certificate or to the executor or administrator.
s, 197(2) of that Act lays down that a person who pays debts or rents to a curator is
discharged and is indemnified.

s.199:
This section lays down that in cases of agricultural and other land paying revenue to
Government that the District Judge before issuing the summons and appointing a curator
must except in cases of urgency call for a report from the collector in whose district the land
is situated and that if the District Judge does not wish to proceed in accordance with the
report then he must immediately send a statement of his reasons to the HC why he does not
want to act in conformity with the report and that if the HC is dissatisfied with the reason
then it shall direct the District Judge to proceed in conformity with the report.

s.200:
This section lays down that the curator is an officer of the Court and shall be subject
to all orders of the District Judge. If any suit is to be instituted by the curator, he must do so
after obtaining the leave of the Court. If any person wants to bring a suit against the curator,
he must also apply to the District Judge who appointed him for leave to institute the suit

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Kartheek D. N. Selected Topic Notes:- Family Law - II

against the curator. The suit should be instituted or defended in the name of the curator. It is
not necessary that the curator must be specifically authorised by the District Judge to institute
or defend the suit.
The proviso to the section requires that if a curator is appointed to collect debts or
rents of property the order appointing him as curator must confer express authority to give
discharge for the moneys received. It is not necessary for the curator to obtain a succession
certificate before instituting a suit to recover the debt.

s.201:
This section enables the District Judge to make interim order for payment of
allowances to parties pending the custody of the property by the curator until the rights of the
parties are finally determined on such terms as to security or otherwise as the circumstances
of the case permit.

s.202:
This section lays down that the curator shall file accounts with the District Judge
showing the receipts and payment of his administration. Interim accounts are to be filed
every 3 months and final account on his being required to give up the possession of the
property.

s.203:
This section lays down that the parties are entitled to inspect and take copies of the
accounts kept by the curator. If there is any objection to the account the parties are entitled to
file objections to the account when the accounts are filed u/s.202.
It also empowers the District Judge to punish the curator for any wilful default in the
accounts or for wilful disobedience to file the accounts after being required to do so.

s.204:
This section lays down that if a curator is appointed for the whole property of a
deceased person, it shall be a bar to the appointment of a second curator for the same property.
If a curator is appointed for a part of the property of the deceased, a second curator
may be appointed for the remaining property. If two or more curators are appointed by the
judges of different district courts, the last proviso empowers the HC for efficient
administration of the whole property to appoint one curator. It is the HC alone that has
jurisdiction to do so. The District Judge of one District Court cannot in such cases appoint
one curator for the whole property.

s.205:
This section lays down a special period of limitation for application under this Part.
The period is 6 months from the date of death of the owner of the property. But, should there
be a delay, if it could be properly explained by reasonable cause, an application beyond time
could be condoned.

s.206:
This section lays down a bar to the appointment of a curator in the following 2 cases:
1) where there is a public act of settlement made by the deceased proprietor of this property
2) where any legal direction is given in respect of possession of such property after his death
in cases of minority or otherwise of the person entitled thereto.

s.207:

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This section lays down that if the District Judge decides on inquiry to issue a
summons in respect of property which is in the possession of the Courts of Wards and if he
determines to appoint a curator in respect of such property then the Judge should invest the
Court of Wards with the curatorship of the estate and in such a case no security is required.

s.208:
This section saves the right of the aggrieved party to bring a suit if that party’s rights
are affected and where he has been evicted from his possession. Such a suit may be brought
within 12 years from the date of the cause of action and not one year.

s.209:
This section lays down that the decision of the Judge in summary proceedings under
this Part is only on the question of actual possession and is final in respect thereto.
But, if the District Judge’s decision is based on material irregularity or if the Judge
has acted illegally it may form the subject of a revision in a proper case.

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Kartheek D. N. Selected Topic Notes:- Family Law - II

VOID BEQUESTS & VOID WILLS - part syllabus, Unit - 5

s.89 of the Indian Succession Act, 1925 deals with this aspect. It lays down that - a
Will or bequest not expressive of any definite intention is void for uncertainty.

In England, the word legacy or bequest denotes a gift of personal estate and the word
devise denotes a gift of real estate. There is no such distinction under this Act and the word
legacy is used for denoting a gift of movable or immovable property as evidenced in
Illustration (iv) to S.142 of the Act.

Illustration:
If a testator says “I bequeath goods to A” or “I bequeath to A” or “I leave to A all the
goods mentioned in the schedule and no schedule is found or “I bequeath money, wheat, oil
or the like” without saying how much, this is void.

s.89 of the Act deals with 2 subjects:

1) the first portion of the section relates to inconsistent Wills
2) the second portion of the section relates to inconsistent Bequests

1) Inconsistent Wills:
If 2 inconsistent Wills are of the same date or without any date and no evidence is
forthcoming establishing the priority of the execution of either, both the Wills are void for
uncertainty and the deceased must be considered to have died intestate. Also, a Will not
expressive of any definite intention is void for uncertainty.
But, if both the Wills are not inconsistent, both will be admitted for probate. Where
the words of a Will aided by evidence of material facts of the case are insufficient to
determine the testator’s meaning, no evidence will be admissible to prove what the testator
had intended and the Will will be void for uncertainty.

2) Inconsistent Bequests:
Where the object of a testator’s bounty or the subject of disposition is described in
items which are applicable indifferently to more than one person or thing, evidence is
admissible to prove which of the person or thing so described was intended by the testator.
But, if notwithstanding such attempts, the language of the Will is so equivocal or obscure as
to leave the testator’s intention difficult to ascertain, the bequest will be void for uncertainty.

MEANING OF THE TERM DEFINITE:

The word definite used in the section requires that to the validity of every disposition
there should be:
1) a definite subject and
2) a definite object
and uncertainty in either of these particulars is fatal.

Uncertainty of Subject:

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Kartheek D. N. Selected Topic Notes:- Family Law - II

It is essential to the validity of a bequest that the subject-matter be described in

definite terms. If it is described in vague and general terms, e.g., where the subject of
disposition consists of an indefinite part or quantity, the gift will necessarily fail for
uncertainty.

Examples:
1) Some of my linen
2) What shall remain at the death of the prior legatee
3) What the prior legatee can save
In all the examples, the quantity or amount of the bequest is left indefinite and hence
the bequest is void for uncertainty.

Caselaw: Jaamnabahi vs. Khimji

In this case, the purpose indicated in the Will was to establish a Sadavart at Nasik but
the amount to be expended for that purpose was not mentioned.
But, it appeared from the Will that it was to be on the same scale as the one carried
out at Anjar.
The Hon’ble Court upheld the gift.

RIGHT OF SELECTION:
It is a settled principle of law that a gift is not to be declared void and as far as
possible the Courts will have to ascertain the intention of the testator.
With a view to saving a bequest on account of uncertainty of its subject-matter, the
Courts have evolved the Doctrine of Legatees Right of Selection.

Caselaw: Balakrishan vs. Mahalakshmi Ammal (1961 SC)

In this case, the testator had directed 1 acre each out of a larger extent of land to be
given to his granddaughters without specifying the lands in question and an attempt to nullify
the bequest on the ground of uncertainty was made.
The Hon'ble SC repelled this attempt and held that the words were not so uncertain as
to attract the provision of void for uncertainty and declared that the devisees were entitled to
make a selection of the respective lands.

Uncertainty of Object:
Uncertainty in regard to the objects of a bequest arises either from the testator having
described such objects in vague terms or if a definite class is the object of the bequest.

Example:
1) A gift to 1 of the sons of A is void for uncertainty though only 1 son may be alive at the
testator’s death and parol evidence is not admissible to show which of the sons was
intended.
2) A gift in favour of dependents is void
3) A bequest directing executors to give the testator’s brothers, brother’s wives and brother’s
children according to the wishes of executors

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Consequences of Bequest Being Held Void for Uncertainty:

The Doctrine of Uncertainty is a Doctrine of Last Resort. It should not be availed of
except when the indefiniteness is so impenetrable that any amount of effort to give reasonable
construction to the words used gets ultimately wrecked on the rock of uncertainty.

If a bequest is held void for uncertainty, its effect is that the property reverts to the
estate of the deceased and will fall into the residue if there is a residuary clause in the Will.

Caselaw: Re Koeppler’s Will Trusts

In this case, a testator by his Will left a substantial portion of his estate for the benefit
of an institution which was found to be vague and non-charitable. There was also a provision
of gift-over.
The Hon’ble Court held that bequest to the institution having failed, the gift-over also
failed and the bequest devolved on the next-of-kin on an intestacy.

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Kartheek D. N. Selected Topic Notes:- Family Law - II

FAMILY COURTS ACT, 1984 - part syllabus, Unit - 5

INTRODUCTION:
Several associations of women, other organisations and individuals have urged from
time to time that Family Courts be set up for settlement of family disputes where emphasis
should be laid on conciliation and achieving socially desirable results and adherence to rigid
rules of procedure and evidence should be eliminated.

The Family Courts Act, 1984 received assent of the President on 14.09.1984.

FAMILY COURTS:
s.2(d) of the Act deals with this aspect. According to the section, Family Court means
a Family Court established u/s.3.
The Family Court constituted u/s.3 of the Act has all the trappings of a Court and thus
is a Court but it is a Court of limited jurisdiction.
There is provision for appeal under the Act against order made by a Family Court but
when the maintenance order is passed by a Magistrate a revision lies under Cr.P.C.,1973

SCOPE AND APPLICABILITY OF THE ACT:

Caselaw: R. Kasthuri vs. M. Kasthuri

In this case,, the Hon'ble SC has observed that the objects and reasons behind
enactment of Family Courts Act would suggest that reason for constitution of Family Courts
is for settlement of family disputes if possible by pre-litigation proceedings. If dispute cannot
be settled same has to be adjudicated by adoption of a process which is different from
ordinary civil proceedings with an approach radically different from that adopted in ordinary
civil proceedings and it should make reasonable efforts at settlement before the
commencement of trial.
CPC was amended in 1976 to provide for a special procedure to be adopted in suits or
proceedings relating to such matters. However, not much use has been made by courts in
adopting this conciliatory procedure and courts continued to deal with family disputes in
same manner as other civil matters and same adversarial approach. Therefore, in public
interest, need was felt to establish Family Courts for speedy settlement of family disputes.
Ss.13,14 and 15 of the Act spell out a special procedure. Other provisions of the Act
i.e., s.4(4) would indicate that a major objective behind enactment of Act is to have
specialized body to preserve and save institution of marriage.

CONSTITUTION / COMPOSITION:
s.3 of the Act deals with establishment of Family Courts, s.4 of the Act deals with
appointment of Judges, s.5 of the Act deals with association of social welfare agencies, etc.,
and s.6 of the Act deals with counsellors, officers and other employees of Family Courts.

s.4:
s.4 of the Act lays down the State Government may with the concurrence of the HC
appoint 1 or more persons to be the Judge or Judges of a Family Court, that where there is

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more than 1 Judge the State Government may with the concurrence of the HC appoint any of
the them as the Principal Judge and any other Judge as the Additional Principal Judge.
The Principal Judge may make arrangements for the distribution of the business of the
Court among the various judges thereof and the Additional Principal Judge may exercise the
powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge
or when the Principal Judge is unable to discharge his functions owing to absence, illness or
any other cause.

s.5
s.5 of the Act lays down that the State Government may in consultation with the HC
provide by rules for association in such manner and for such purposes and subject to such
conditions as may be specified in the rules with a Family Court institutions, organisations,
persons professionally engaged in promoting the welfare of the family, persons working in
the field of social welfare and any other person whose association with a Family Court which
would enable it to exercise it jurisdiction more effectively in accordance with the purpose of
the Act.

s.6
s.6 of the Act lays down that the State Government in consultation with the HC
determine the number and categories of counsellors, officers and other employees required to
assist a Family Court in the discharge of its functions and provide the Family Court with such
counsellors, officers and other employees as it may think fit.

POWERS AND FUNCTIONS:

s.7 of the Act lays down that subject to other provisions of the Act a Family Court
shall have and exercise all the jurisdiction exercisable by any District Court or any
Subordinate Civil Court under any law for the time being in force in respect of suits and
proceedings of the nature referred to in the Explanation to the section i.e.,
1) A suit or proceeding between parties to a marriage for a decree of nullity of marriage or
restitution of conjugal rights or judicial separation or dissolution of marriage

2) A suit or proceeding for a declaration as to the validity of a marriage or as to the

matrimonial status of any person
The Hon'ble SC has held that where there is a dispute on matrimonial status of any
person, a declaration in that regard has to be sought only before Family Court irrespective of
whether the said declaration is affirmative or negative in nature.

3) A suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them

4) A suit or proceeding of an order or injunction in circumstances arising out of a marital

relationship

5) A suit or proceeding for a declaration as to the legitimacy of any person

6) A suit or proceeding for maintenance

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Here, a neglected wife is not conferred an absolute right to get an order of

maintenance against the husband nor is the husband liable to support the wife in all
circumstances as the word “may” indicates that the power conferred on the Magistrate is
discretionary.

Caselaw: Shamina Farooqui vs. Shahid Khan

In this case, the Hon'ble SC has held that the Family Court can grant maintenance
allowance to a divorced Muslim woman u/s.125 Cr.P.C.

7) A suit or proceeding in relation to guardianship of the person or the custody of or access to

any minor
This lays down that only the Family Court has jurisdiction to decide the matter in a
proceeding which has been instituted before it

8) The jurisdiction exercisable by a Magistrate of 1st Class u/Chapter IX of Cr.P.Constitution

Under this, the Family Court has jurisdiction to pass an ex parte interim order of
maintenance in a petition filed u/s.125 Cr.P.C..

Caselaw: P. Srihari vs. P. Sukunda

In this case, the Hon’ble Court has held that if one of the spouses is absent in the
litigation the cause does not fall within the jurisdiction of the Family Court.

APPEALS & REVISIONS:

s.19 of the Act deals with this aspect. It lays down that an appeal shall lie from every
judgement or order not being an interlocutory order of a Family Court to the HC both on facts
and on law. However, no appeal shall lie from a decree or order passed by the Family Court
with the consent of the parties or from an order passed u/Chapter IX of the CrPC. It
prescribes that an appeal should be preferred within a period of 30 days from the date of the
judgement or order.
It also lays down that the HC may of its own motion or otherwise call for and
examine the record of any proceeding or an order passed u/Chapter IX of CrPC for the
purpose of satisfying itself as to the correctness, legality or propriety of the order not being an
interlocutory order and as to the regularity of such proceeding and that an appeal preferred
u/s.19(1) has to be heard by a Bench consisting of two or more judges.

Though an order of interim maintenance u/ss. 24 and 25 of the HMA, 1955 is an

interlocutory order against which neither an appeal nor a revision lies, the same can be
challenged by filing a WP u/Art. 227 of the Constitution.

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