Family Law - I

Summary Notes

Hemant Patil
GLC 2025
Contents
1. Evolution of Family laws in India ...................................................................... 3
2. Shariat Application Act, 1937 .......................................................................... 3
3. Schools & Sources of Muslim Law ...................................................................... 4
4. Fiqh ........................................................................................................ 6
5. Muslim Marriage .......................................................................................... 6
6. Option of puberty (Khyar-ul-Bulugh) .................................................................. 7
7. Marriages under Muslim law (Sahi, Fasid & Batil) ................................................... 7
8. Concept of Mehr (Dower) and its classification ...................................................... 8
9. Irregular Marriages in Muslims .......................................................................... 9
10. Essentials for Christian Marriage ..................................................................... 10
11. Penalties and Miscellaneous provisions ............................................................. 11
12. Tafwid (POA)............................................................................................ 11
13. Grounds of divorce under Divorce Act .............................................................. 12
14. Dissolution of marriage under Divorce Act, 1936 .................................................. 12
15. Dissolution of marriages under Christian Law ...................................................... 13
16. Parsi Marriage & Divorce - Requisites & provisions ................................................ 14
17. Concept of Iddat ....................................................................................... 15
18. Dissolution of marriage under Muslim Act .......................................................... 15
19. Talaq, its various forms ............................................................................... 17
20. Talaq-e-Biddat .......................................................................................... 17
21. Khilawat-us-sahiha ..................................................................................... 17
22. Compare concept and procedure between “Talaq-ul-Sunna” and “Talaq-ul-Biddat” ........ 18
23. Distinguish Talaq, Khula & Mubarat ................................................................. 18
24. Talaq- E- Tafweez ...................................................................................... 19
25. Judicial Divorce (Ila, Zihar, Lian) .................................................................... 19
26. Criminalization of Triple Talaq....................................................................... 20
27. Muslim women (protection on right to divorce) Act, 1986 ....................................... 21
28. Concept of Halala Marriage ........................................................................... 21
29. Parsi Divorce by mutual consent ..................................................................... 22
30. Maintenance under Muslim law ...................................................................... 22
31. Domicile under Indian Succession Act ............................................................... 23
32. Domicile by Choice..................................................................................... 24
33. Intestate Succession ................................................................................... 24
34. Meaning of Consanguinity ............................................................................. 25
35. Parsi Matrimonial Courts .............................................................................. 25
36. Permanent Alimony under Christian Law ........................................................... 26
37. Remarriages of Christians ............................................................................. 26

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38. Ikhtiar .................................................................................................... 27
39. Guardianship of minor under Muslim Law .......................................................... 28
40. General Principles of Inheritance under Muslim Law ............................................. 28
41. Shia Law of Inheritance ............................................................................... 29
42. Sunni Law of Inheritance .............................................................................. 30
43. Ashirwad Ceremony .................................................................................... 30
44. Paternity Legitimacy, Parentage and Acknowledgment .......................................... 31
45. Domicile of Origin ...................................................................................... 32
46. Appointment of delegates under Parsi Marriage & Divorce Act ................................. 32
47. Law of Inheritance for Parsis ......................................................................... 33
48. Time & place of Christian Marriage ................................................................. 33
49. Cumulative, Non-Cumulative & Conditional Bequests (attesting witness & executor) ....... 34
50. Restitution of Conjugal rights under Divorce Act .................................................. 35
51. Legacies & ademption ................................................................................. 35
52. Guardianship under Muslim law ...................................................................... 36
53. Testamentary Succession under Indian Succession Act,1925 .................................... 37
54. Will, Its construction and interpretation ........................................................... 38
55. Revocation of Will...................................................................................... 39
56. Residuary Lagatee...................................................................................... 40
57. Bequest to Unborn Person or Non- Existing Person ................................................ 41
58. Rule against Perpetuity ............................................................................... 41
59. Onerous Gifts, Conditional Gifts ..................................................................... 42
60. Kinds of Legacies ....................................................................................... 42
61. Residuary Legatees, Lapsing of Legacies ........................................................... 43
62. Intestate Succession Estate Distribution ............................................................ 43
63. Disclaimer ............................................................................................... 44

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Evolution of Family laws in India

The history and evolution of family laws in India can be traced back to ancient times when Hindu law
and Muslim law were the primary sources of family law. The modern era of family law in India began
during British rule, when various laws were enacted to govern issues such as marriage, divorce, and
inheritance. In this response, I will describe the history and evolution of family laws in India.

Ancient Times: Hindu law and Muslim law were the primary sources of family law in ancient India.
The Hindu law was based on the Vedas and the Dharmashastras, while Muslim law was based on the
Quran and the Hadith. The Hindu law governed issues such as marriage, divorce, inheritance, and
property rights, while Muslim law governed these issues for the Muslim community.

British Era: During British rule, various laws were enacted to govern family law in India. The first
significant law was the Hindu Widow Remarriage Act of 1856, which allowed Hindu widows to
remarry. The Hindu Marriage Act of 1955 replaced the earlier Hindu law and provided for monogamous
marriages, divorce, and maintenance. The Special Marriage Act of 1954 provided for interfaith
marriages and allowed couples to marry without conversion.

Similarly, Muslim Personal Law was codified in the form of the Shariat Act of 1937. The act provided
for the application of Muslim law to matters such as marriage, divorce, and inheritance. The Muslim
Women (Protection of Rights on Divorce) Act of 1986 amended Muslim Personal Law and provided for
maintenance to divorced Muslim women.

Post-Independence: After Independence, several laws were enacted to address the changing needs
of society. The Hindu Succession Act of 1956 provided for equal rights to daughters in ancestral
property. The Dowry Prohibition Act of 1961 prohibited the practice of dowry, which had become a
social evil.

In recent years, several progressive laws have been enacted to address issues such as domestic
violence, child marriage, and gender equality. The Protection of Women from Domestic Violence Act
of 2005 provides for the protection of women from domestic violence, while the Prohibition of Child
Marriage Act of 2006 prohibits child marriages.

Shariat Application Act, 1937

The Shariat Application Act, 1937, is a law enacted by the British Indian government to regulate the
application of Muslim personal law in India. The act was based on the recommendations of the Muslim
Personal Law Committee, which was set up in 1935 to examine the need for a uniform law for Muslims
in India. In this response, let me explain the provisions of the Shariat Application Act, 1937. Provisions
of the Shariat Application Act, 1937 included:

1. Application of Muslim Personal Law: The act provides that Muslim personal law shall apply
to Muslims in matters relating to marriage, divorce, dower, maintenance, guardianship, and
inheritance. The act also provides that the Muslim law shall be applied in a manner that is
consistent with the principles of justice, equity, and good conscience.
2. Interpretation of Muslim Personal Law: The act provides that Muslim personal law shall be
interpreted in accordance with the Quran and the Hadith. The act also provides that in cases
where Muslim personal law is silent, the court may apply the principles of justice, equity,
and good conscience.
3. Custom and Usage: The act provides that in matters not covered by Muslim personal law or
where there is a conflict between Muslim personal law and custom or usage, the court may
apply the custom or usage.
4. Precedent: The act provides that the decisions of the Privy Council shall be considered as
precedents in matters relating to Muslim personal law.
5. Scope of the Act: The act applies to all Muslims in India except those in the state of Jammu
and Kashmir.

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 6. Amendments: The act has been amended several times since its enactment, including in
1986 when the Muslim Women (Protection of Rights on Divorce) Act was passed to provide for
maintenance to divorced Muslim women.
The Shariat Application Act, 1937, has been a contentious issue in India, with some arguing that it is
discriminatory towards women and needs to be reformed. However, others argue that the act is
necessary to protect the rights of Muslims to follow their personal laws. Despite the controversies,
the act remains in force and governs the application of Muslim personal law in India.

Schools & Sources of Muslim Law

Muslim law, also known as Islamic law, is a legal system that is derived from the Quran, the Hadith
(traditions of the Prophet Muhammad), and other sources of Islamic jurisprudence. Muslim law is
divided into various schools or branches, each with its own unique approach to legal interpretation
and application. The four main schools of Sunni Muslim law are:

1. Hanafi (Kufa) School: This school of thought, most famous of all, is prevalent in Turkey,
India, Pakistan, Bangladesh, and parts of the Middle East. It is named after Imam Abu Hanifa,
who was born in Kufa, Iraq, in the eighth century. The Hanafi school is known for its emphasis
on reason and analogy in legal interpretation. In Indian courts, unless proven contrary to, it
is to be presumed that parties to the suit are Sunnis of Hanafi school.
2. Maliki School: This school of thought is followed in North and West Africa, as well as parts of
the Middle East. It is named after Imam Malik, who was born in Medina, Saudi Arabia, in the
eighth century. The Maliki school is known for its reliance on the customs and practices of
the people of Medina.
3. Shafi'i School: This school of thought is followed in Southeast Asia, as well as parts of the
Middle East and East Africa. It is named after Imam Shafi'i, who was born in Gaza, Palestine,
in the eighth century. The Shafi'i school is known for its reliance on the Quran and the Hadith
in legal interpretation.
4. Hanbali School: This school of thought is followed in Saudi Arabia and other parts of the
Middle East. It is named after Imam Ahmad ibn Hanbal, who was born in Baghdad, Iraq, in
the eighth century. The Hanbali school is known for its strict adherence to the Quran and the
Hadith.

Shia Islam is one of the two main branches of Islam, the other being Sunni Islam. Like Sunni Islam,
Shia Islam has developed various schools of thought or jurisprudence, known as fiqh or madhhab.
They do not accept any decision as valid, unless endorsed by Imam. In India, there are three main
Shia schools of Muslim law - the Zaidiyyah, Ismailiyyah, and Ithna Ashari schools. In Indian courts,
unless proven contrary to, it is to be presumed that parties to the suit are Ithna Ashari school.

1. Zaidiyyah School: The Zaidiyyah school is named after its founder, Zaid ibn Ali, who was the
grandson of Imam Ali and the son of Imam Hussein. The Zaidiyyah school is mainly followed

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 in Yemen and parts of Oman. However, there are very few followers of this school in India.
The school differs from the other Shia schools in its views on the Imams, who are considered
to be fallible and not infallible. The Zaidiyyah school also differs from the other Shia schools
in its views on the method of selecting the Imam. According to the Zaidiyyah school, the
Imam should be chosen based on his knowledge, piety, and political and military leadership
abilities.
2. Ismailiyyah School: The Ismailiyyah school is named after its founder, Ismail ibn Jafar, who
was the son of Imam Jafar al-Sadiq. The Ismailiyyah school is mainly followed by the Ismaili
community, which is found mainly in South Asia, East Africa, and Central Asia. In India, the
Bohra community follows the Ismailiyyah school. The Ismailiyyah school differs from the other
Shia schools in its views on the succession of the Imams, who are believed to have been
divinely appointed. According to the Ismailiyyah school, the Imam is a spiritual and temporal
leader who guides the community and interprets the Quran and the Hadith. The Ismailiyyah
school also emphasizes the role of the intellect in understanding religious teachings and
encourages the pursuit of knowledge and education.
3. Ithna Ashari School: The Ithna Ashari school, also known as the Twelver school, is the largest
and most influential Shia school of jurisprudence. It is named after its belief in the twelve
Imams, who are considered to be divinely appointed and infallible. The Ithna Ashariyyah
school is followed by the majority of Shias in India, including the Khoja, Shia Syed, and Shia
Bohra communities. The Ithna Ashariyyah school has a comprehensive legal system, known as
fiqh, that covers all aspects of life. The school also emphasizes the importance of justice and
social welfare, and encourages the promotion of the common good.

Key Differentiation: The key differentiation between these Shia schools of Muslim law lies in their
beliefs about the Imams, their succession, and their role in matters of law & religious interpretation.
The Zaidiyyah school differs from the other two Shia schools in its views on the Imams, who are
considered to be fallible and not infallible. The Ismailiyyah school differs from the other two Shia
schools in its views on the succession of the Imams, who are believed to have been divinely appointed.
The Ithna Ashari school, on the other hand, emphasizes the belief in twelve Imams who are
considered to be divinely appointed and infallible, and has a comprehensive legal system, known as
fiqh, that covers all aspects of life.

In addition to these four schools of Sunni Muslim law, there is also a fifth school known as the Ja'fari
School, which is followed by Shia Muslims. This school of thought is named after Imam Jafar al-Sadiq,
who was born in Medina, Saudi Arabia, in the eighth century. The Ja'fari school is known for its
emphasis on reason and intellect in legal interpretation.

The sources of Muslim law include the following:

1. Quran is the holy book of Islam and is considered the primary source of Muslim law. Out of
6000 verses, only 200 deal with legal principles and just 80deal with personal laws. General
rule is earlier verses are deemed to be repealed by the verses later. Rule is Court must
neither put its own interpretation of Quran, nor examine conformity of traditionally settled
legal principles (Aga Mohd Jaffer v. Koolsom Biwi).
2. Sunnah is the rule of law deduced from the Prophet’s behaviour. Hadith are the sayings and
actions of the Prophet Muhammad, which have been recorded and transmitted by his
companions.
3. Ijma & Ijtihad: Ijma refers to the consensus of the founders of law in Muslim community on
a particular issue. Ijtihad refers to the independent reasoning and interpretation of Islamic
law by qualified scholars.
4. Qiyas refers to the use of analogy to derive legal rulings based on the principles established
in the Quran and the Hadith. It’s the collection of rules or principles by the methods of
analogy and interpretation from the first 3 sources (Quran, Sunnah and Ijma).
5. Customs & usages having the force of law: Here 2 qualifiers are considered:
1. Question of fact – Whether the custom is proved?
2. Question of law – Whether it is binding?
6. Fatwas carries more weight than random opinion of any person, and are expected to be based
on religious scripture. It is not exactly a source of law and not legally binding, it is respected

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 nevertheless. These include status for apostates, equal treatment to all 4 wives, punishment
for pre-marital or extra-marital sex etc.
7. Legislation As per Shariat Act 1937, Dissolution of Muslim Marriage Act, 1939 etc.
8. Justice, equity and good conscience where there is no specific rule to guide the court (Aziz
Bano v. Muhammad)

Fiqh

Fiqh means intelligence, exercise of intelligence in deciding point of law in absence of any binding
command from Quran. Fiqh is a term used in Islamic jurisprudence that refers to the human
interpretation and understanding of Islamic law based on the Quran and Sunnah (teachings and
practices of Prophet Muhammad). It is the study of the principles of Islamic law, its practical
application, and the sources of Islamic law. The requisites and provisions of Fiqh include:

1. Quran is the primary source of Islamic law and considered as the word of God. Fiqh scholars
analyze the verses of the Quran to derive laws and rulings.
2. Sunnah refers to the teachings and practices of Prophet Muhammad, which are recorded in
the Hadith (narrations) and the Sirah (biography). Fiqh scholars use these sources to
understand and interpret Islamic law.
3. Ijma is the consensus of the Muslim community on a particular issue. Fiqh scholars consider
Ijma as a source of Islamic law, especially when the Quran and Sunnah are silent on an issue.
4. Qiyas is the process of analogy, where a ruling is derived from a similar situation that has
already been addressed in the Quran or Sunnah.
5. Istihsan is the principle of preferring a particular ruling over another based on public welfare
and interest.
6. Urf refers to the customs and traditions of a particular society that are consistent with Islamic
law.
7. Maslaha is the principle of public interest, where a ruling is derived based on the overall
benefit of society.

Fiqh covers various aspects of life, including worship, ethics, economics, politics, and social
interactions. Fiqh scholars specialize in different areas of Islamic law, such as jurisprudence, legal
theory, and Islamic finance. They use a systematic approach to analyze and interpret the sources of
Islamic law, taking into account the historical context and the needs of the Muslim community. Fiqh
has evolved over time, with different schools of thought emerging based on different interpretations
of Islamic law. The four main schools of Islamic jurisprudence are Hanafi, Maliki, Shafi'i, and Hanbali.
These schools differ in their approach to Islamic law and the weight they give to different sources of
Islamic law.

Muslim Marriage

Under Muslim Law, marriage is considered to be a contract between two parties, the bride and the
groom. This contract is referred to as Nikah. The basic requisites for a valid Muslim marriage are:

1. Consent of the parties: Both the bride and the groom must give their free and unequivocal
consent to the marriage. The consent must be given in the presence of at least two witnesses.
2. Capacity of the parties: Both the bride and the groom must have attained the age of puberty
and must be of sound mind. The bride must not be under the custody of a person who has no
authority to consent to her marriage.
3. Presence of witnesses: The marriage must be solemnized in the presence of at least two adult
male witnesses who are of sound mind and who are not disqualified to be witnesses.
4. Mahr: The groom is required to pay a consideration to the bride, known as Mahr. It may be
paid in cash or in kind.
5. Absence of any impediment:
A. Absolute prohibitions: Polyandry (multiple husbands), consanguinity (blood
relations), affinity (wife’s side restrictions) and fosterage.

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 B. Relative prohibitions: Marrying 5th wife, absence of witness, different religion,
unlawful conjunction (2 wives in relation as if they were male/female, couldn’t have
valid marriage, example sister), women undergoing iddat,

The procedure for solemnization of a Muslim marriage is as follows:

1. Proposal and Acceptance: The proposal (Ijab) and acceptance (Qubool) must be made in the
presence of at least two witnesses.
2. Mahr: The amount of Mahr and the mode of payment must be agreed upon by the parties.
3. Khutbah: A sermon is delivered by the Qazi (Islamic scholar) or an authorized person.
4. Declaration: The Qazi will ask the groom and the bride for their consent to the marriage. If
both parties give their consent, the Qazi will declare the marriage solemnized.
5. Registration: The marriage should be registered with the Registrar of Muslim Marriages within
30 days from the date of solemnization.

Under Muslim Law, a man can marry up to four wives at the same time, subject to certain conditions,
such as providing equal treatment to all the wives. However, a woman can have only one husband at
a time. In case of a Muslim marriage, there is no requirement of registration of the marriage, but it
is advisable to do so to avoid any disputes in future. The Nikah Nama (marriage contract) contains
the terms & conditions of the marriage, including the Mahr amount and mode of payment, rights and
obligations of the parties, etc.

Khilwat-us-sahiha (Valid retirement) – when husband & wife are alone together with no legal, moral
or physical impediment to marital intercourse, it is called valid retirement. It’s (consummation)
purpose is for:
a. Confirmation of dower
b. Establishment of paternity
c. Observation of Iddat
d. Wife’s right of maintenance

Option of puberty (Khyar-ul-Bulugh)

In Muslim Law, the option of puberty (Khyar-ul-Bulugh) is a right given to the minor, i.e., a person
who has not yet attained the age of puberty, to either confirm or repudiate his or her pre-existing
contractual obligations after attaining puberty. The provisions of the option of puberty are mentioned
in the Hanafi School of Muslim Law. According to this school, if a minor enters into a contract, such
as a marriage contract or a sale contract, the minor has the option to either affirm or repudiate the
contract upon attaining puberty. The option must be exercised within a reasonable time after
attaining puberty, which is generally considered to be around the age of 15 for males and around the
age of 9 for females. If the minor does not exercise the option within a reasonable time, the contract
becomes binding on the minor. For example, if a minor female is married off by her parents to a
man, she has the option to confirm or repudiate the marriage after attaining puberty. If she chooses
to confirm the marriage, it becomes binding on her. If she chooses to repudiate the marriage, it
becomes voidable.

The purpose of the option of puberty is to protect the interests of minors who may not fully
understand the consequences of their contractual obligations. By giving them the option to confirm
or repudiate the contract after attaining puberty, they are given the opportunity to make an informed
decision based on their own understanding and free will.

Marriages under Muslim law (Sahi, Fasid & Batil)

Marriage is an important aspect of Muslim law and is considered a legal contract between two parties,
the bride and the groom. Here are some details regarding marriages under Muslim law:
1. Conditions for Marriage: According to Muslim law, the following conditions must be met for
a marriage to be valid:
 The bride and groom must have the capacity to marry, which means they must have
reached the age of puberty and must be of sound mind.
 Both parties must consent to the marriage.

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  The marriage contract must be witnessed by two adult male witnesses or one male and
two female witnesses.
2. Types of Marriage: Muslim law recognizes two types of marriages:
 Nikah: This is a formal contract between the bride and groom, which is witnessed and
recorded by two witnesses. This contract includes the offer and acceptance of the
marriage proposal, the amount of the dower, and the terms of the marriage.
 Muta: This is a temporary marriage that is contracted for a specified period of time where
duration of marriage is fixed by agreement (example 30 days). If no duration mentioned,
its valid for life. It is only recognized by Ithna Asari (Shia) and not recognized by others,
and is considered controversial. It does not confer inheritance rights but children are
legitimate (Shoharat v. Jaffri Biwi). If not consummated, wife is entitled to half dower,
and full if consummated. No restriction on number of wives and marriage deemed
dissolved upon expiry of the term.
3. Dower: Dower is the amount of money or property that the groom agrees to give to the bride
as part of the marriage contract. The amount of the dower is agreed upon by the bride and
groom before the marriage is contracted.
4. Prohibited Marriages: Muslim law prohibits certain types of marriages, including marriage
between:
 Close relatives, such as siblings or parent and child.
 A Muslim and a non-Muslim, unless the non-Muslim converts to Islam.
 A woman who is in her iddat period and a man who is not her husband.
5. Divorce: Muslim law recognizes the right of a husband to divorce his wife, either by
pronouncing talaq (divorce) or through khula (divorce by mutual consent). The wife also has
the right to seek a divorce in certain circumstances, such as if the husband is impotent or
has deserted her.

Under Muslim law, there are three categories of marriages: Sahi, Fasid, and Batil. Each category has
its own distinct characteristics, and it is important to understand the differences between them.
1. Sahi Marriage (Valid): A sahi marriage is a valid and lawful marriage under Muslim law. It
fulfils all the essential requirements and conditions of a marriage contract, and is recognized
by the Muslim legal system. A sahi marriage is considered binding and enforceable, and the
parties are entitled to all the rights and obligations that arise from the marital relationship.
2. Fasid Marriage (Voidable): A fasid marriage is a defective marriage under Muslim law. It is a
marriage that is missing one or more of the essential requirements or conditions of a valid
marriage, but is not completely void. A fasid marriage is considered irregular, and the parties
are not entitled to all the rights and obligations that arise from the marital relationship.
However, it can be ratified and made sahi by fulfilling the essential requirements and
conditions of a valid marriage contract. Examples of fasid marriages include:
 A marriage contracted without the consent of the bride or her guardian.
 A marriage where the bride price (mahr) is not specified.
 A marriage where the witnesses are not present or are not competent to witness the
marriage.
3. Batil Marriage (Void): A batil marriage is a void and unlawful marriage under Muslim law. It
is a marriage that is missing one or more of the essential requirements or conditions of a
valid marriage to such an extent that it is not capable of being ratified. A batil marriage is
considered null and void from the beginning, and the parties have no rights or obligations
arising from the marital relationship. Examples of batil marriages include:
 A marriage contracted between close blood relatives, such as siblings, parents and
children, or grandparents and grandchildren.
 A marriage contracted between a Muslim and a non-Muslim who does not convert to
Islam before the marriage.
 A marriage contracted during the period of iddat, which is the waiting period after a
divorce or the death of a husband.

Concept of Mehr (Dower) and its classification

In Muslim Law, Mehr refers to the dowry that a husband is required to pay to his wife at the time of
marriage. It is considered to be the right of the wife, and its payment is mandatory in Islamic Law.
The objects of dower are:
a. Impose obligation on husband, as a mark of respect

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 b. Place check on arbitrary/erratic divorce from husband, and
c. Provide for subsistence after dissolution of marriage
Mehr is classified into two types: prompt (muajjal) and deferred (muwajjal).
1. Prompt Mehr (muajjal): It refers to the payment of the entire amount of Mehr at the time
of the marriage ceremony. It is payable immediately or shortly after the solemnization of the
marriage. For example, if the husband agrees to pay a Mehr of Rs. 1 lakh, then he must pay
the entire amount at the time of the marriage ceremony. Until paid, wife has right to refuse
living tother or admit sexual intercourse.
2. Deferred Mehr (muwajjal): It refers to the payment of Mehr in installments over a period of
time. The payment of Mehr is deferred to a future date, which is usually the time of divorce
or the death of the husband. For example, if the husband agrees to pay a deferred Mehr of
Rs. 1 lakh, then he may pay Rs. 50,000 at the time of marriage and the remaining Rs. 50,000
at the time of divorce or the death of the husband. Deferred Mehr is further classified into
two types:
a. Specified (muwajjal musamma): It refers to the payment of Mehr in installments
at specified times. For example, if the husband agrees to pay a deferred Mehr of Rs.
1 lakh, he may pay Rs. 25,000 each year for the next four years. AED 10 minimum in
Sunni (no minimum in Shia) with no upper limits.
b. Unspecified or Proper (muwajjal ghair musamma): It refers to the payment of
Mehr in installments at an unspecified time. For example, if the husband agrees to
pay a deferred Mehr of Rs. 1 lakh, he may pay any amount at any time in the future,
subject to the condition that it is paid before the death of the husband or the
dissolution of marriage.
The amount of Mehr is decided by the parties at the time of the marriage contract. It may be a fixed
amount or a specified property, such as jewellery or land. The amount of Mehr may also vary
depending on various factors such as the social status of the parties, age & beauty of bride, their
financial position, and the custom and usage prevalent in their community. Widow’s right to dower
(mehr) include:
a. Dower is an unsecured debt and actionable claim, assignable (heirs not personally
liable), can be remitted (relinquished) by widow at the funeral
b. Right to retain property (Not title, not sell or mortgage, can rent and keep accounts)
(Hamira Biwi v. Zubaidabibi)
c. Kharcha-e-Pandan personal allowance (guzaara) (Akbar v. Fatima AIR1929)

Abdul Kadir v. Salima (Justice Mahmood): Dower (Mehr) is sum of money or other property, promised
by husband to be paid or delivered to the wife in consideration of marriage. It absolutely belongs to
wife.

Irregular Marriages in Muslims

In Islamic Law, there are two types of marriages - regular and irregular. A regular marriage is one
that complies with all the essential requirements of a valid marriage, while an irregular marriage is
one that fails to meet one or more of the essential requirements. In the context of Islamic law, an
irregular marriage is called "nikah-e-fasid" or "fasid marriage". The term "fasid" means "defective" or
"voidable". An irregular marriage is not completely void, but it is considered to be a defective
marriage. The validity of such a marriage is subject to certain conditions, and it can be invalidated
by a court of law under certain circumstances. The requisites and provisions for irregular marriages
under Muslim Law are as follows:

1. Consent of the parties: The marriage must be entered into with the free and mutual consent
of both the parties. If the consent is obtained by coercion, fraud, or undue influence, the
marriage is considered irregular.
2. Presence of two witnesses: The marriage must be solemnized in the presence of two male
witnesses or one male and two female witnesses who are of sound mind and have reached
the age of majority.

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 3. Capacity of the parties: The parties must be of sound mind and have reached the age of
puberty. If the parties are not of sound mind or have not reached the age of puberty, the
marriage is considered irregular.
4. Absence of legal impediments: The parties must not be related to each other in a prohibited
degree of relationship, and there must not be any legal impediments to the marriage.
5. Payment of dower: The payment of dower or "mehr" is an essential requirement of a valid
marriage. If the dower is not agreed upon or is not paid, the marriage is considered irregular.

Examples of irregular marriages under Muslim Law include marriages that take place without the
presence of witnesses or without the payment of dower, marriages between parties who are related
to each other in a prohibited degree of relationship, or marriages where one party is not of sound
mind or has not reached the age of puberty. It is important to note that while an irregular marriage
is not completely void, it is subject to certain legal consequences. For example, the wife in an
irregular marriage is not entitled to the same rights as a wife in a valid marriage, and the children
born out of an irregular marriage may be considered illegitimate under certain circumstances.
Additionally, an irregular marriage can be dissolved by a court of law if it is proven to be defective
or voidable.

Essentials for Christian Marriage

Christian marriage in India is governed by the Indian Christian Marriage Act, 1872 (Not applicable in
Manipur, J&K and erstwhile state of Travancore-Cochin), and the essential requirements for a valid
Christian marriage are as follows:

1. Consent: The first essential requirement for a valid Christian marriage is the free and mutual
consent of both parties to the marriage. This means that both the bride and groom must
enter into the marriage of their own free will, without any coercion or undue influence. The
consent must be given in the presence of two or more witnesses.
2. Age: The minimum age for marriage is 18 years for the bride and 21 years for the groom.
However, with the consent of the parents or guardians, a marriage can be solemnized for a
bride who is 16 years or older and for a groom who is 18 years or older.
3. Sound Mind: Both the bride and groom must be of sound mind at the time of the marriage.
This means that they must be capable of understanding the nature and consequences of the
marriage contract they are entering into.
4. Absence of Prohibited Relationships: The bride and groom must not be within the prohibited
degrees of relationship. This means that they must not be closely related to each other by
blood or marriage.
5. Absence of Impediments: The bride and groom must not have any legal impediments to the
marriage. This includes the absence of any prior marriage that has not been legally dissolved,
as well as any legal disabilities such as mental or physical incapacity that would prevent them
from entering into a valid marriage.
6. Solemnization: The marriage must be solemnized by a person authorized by the church or by
the government. The ceremony must be performed in the presence of two or more witnesses.

In addition to these essentials, the Indian Christian Marriage Act also recognizes the concept of
monogamy, which means that a person cannot have more than one spouse at the same time. If a
person enters into a second marriage while the first marriage is still subsisting, the second marriage
is considered void and illegal.

A person who can solemnize a Christian marriage include who:

a. Received episcopal ordination (provided marriage is solemnized according to the rules, rites,
ceremonies & customs of the church where he is a minister)
b. Clergyman of the Church of Scotland
c. Minister of Religion under the act
d. In presence of marriage registrar
e. Licensed under the act to grant certificate of marriage between Indian Christians

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Such person must enter the marriage into the marriage register kept in the church, reporting this
quarterly to the registrar. He also must sign the marriage register & marriage certificate and send
marriage certificate, within 1 month from the date of marriage, to the district marriage registrar.

Penalties and Miscellaneous provisions

The Indian Christian Marriage Act, 1872, provides for penalties and miscellaneous provisions for
certain offenses related to Christian marriages. The penalties and miscellaneous provisions under this
act include penalty for:
1. Solemnizing a marriage without proper authority: Section 5 of the act provides for a penalty
for any person who solemnizes a marriage without proper authority. Such a person is liable
to imprisonment for up to two years and a fine.
2. Solemnizing a marriage in contravention of the act: Section 6 of the act provides for a penalty
for any person who solemnizes a marriage in contravention of the act. Such a person is liable
to imprisonment for up to two years and a fine.
3. Bigamy: Section 7 of the act provides for a penalty for any person who contracts a second
marriage while the first marriage is still subsisting. Such a person is liable to imprisonment
for up to seven years and a fine.
4. For marriage between prohibited degrees of consanguinity: Section 8 of the act provides for
a penalty for any person who marries within the prohibited degrees of consanguinity. Such a
marriage is void, and the person is liable to imprisonment for up to two years and a fine.
5. For registering a marriage in contravention of the act: Section 9 of the act provides for a
penalty for any person who registers a marriage in contravention of the act. Such a person is
liable to imprisonment for up to two years and a fine.
6. For making false declarations: Section 10 of the act provides for a penalty for any person who
makes a false declaration or statement in any application, notice, or certificate required by
the act. Such a person is liable to imprisonment for up to two years and a fine.
7. Miscellaneous provisions: Section 11 of the act provides for various miscellaneous provisions,
including the power of the state government to make rules for carrying out the provisions of
the act, the power of the government to appoint registrars, the form of the marriage
certificate, and the fees to be charged for registration.

Tafwid (POA)
Tafwid is a concept in Islamic law that refers to the delegation of authority or power of attorney by
a person to another person to act on their behalf in a specific matter or task. The person who
delegates the authority is known as the "Muwakkil" and the person who is appointed as an agent is
known as the "Wakeel". Provisions and Requisites of Tafwid:
1. Free and Willing Consent: The Muwakkil must have the capacity and intention to delegate
the authority to the Wakeel. The delegation must be done freely and willingly without any
coercion or undue influence.
2. Specific or General Authority: The Muwakkil can delegate specific or general authority to
the Wakeel. The specific authority can be delegated for a particular matter or task, such as
selling a property, whereas general authority can be delegated for all matters.
3. Trust and Competence: The Wakeel must be trustworthy and competent to carry out the
task or matter. The Muwakkil should ensure that the Wakeel has the necessary skills,
knowledge, and expertise to carry out the delegated authority.
4. Clarity and Unambiguity: The delegation of authority must be clear and unambiguous. The
Muwakkil should clearly define the scope of authority delegated to the Wakeel and specify
the time limit or duration of the delegation.
5. Revocation: The Muwakkil can revoke the delegation of authority at any time, either by
mutual agreement or unilaterally. The revocation must be communicated to the Wakeel, and
any authority delegated before the revocation remains valid.
Example: A person who is going on a pilgrimage to Mecca delegates the authority to manage his
business affairs to his brother by executing a power of attorney. The power of attorney specifies that
his brother has the authority to sign contracts, receive payments, and manage the finances of his
business. The power of attorney is specific and limited to the duration of his pilgrimage. Upon his
return, the person revokes the power of attorney, and his brother is no longer authorized to manage
his business affairs.

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Grounds of divorce under Divorce Act

The Divorce Act, 1869 governs the law of divorce in India for those who have been married under the
Christian religion. The Act provides for several grounds of divorce that can be invoked by either party
to the marriage. The following are the grounds of divorce under the Divorce Act:

1. Adultery: One of the spouses has committed adultery, which means they have had voluntary
sexual intercourse with a person who is not their spouse.
2. Desertion: One spouse has deserted the other for a continuous period of not less than two
years preceding the filing of the divorce petition.
3. Conversion: One spouse has converted to another religion and has ceased to be a Christian.
This ground can only be invoked by the spouse who has not converted.
4. Mental disorder: One spouse has been incurably of unsound mind for a continuous period of
not less than two years preceding the filing of the divorce petition.
5. Venereal disease: One spouse has been suffering from a venereal disease in a communicable
form, and the other spouse was not aware of the fact at the time of marriage.
6. Renunciation: One spouse has renounced Christianity by an open profession of a religion
other than Christianity.
7. Presumption of death: One spouse has been absent for a continuous period of seven years,
and the other spouse believes them to be dead.

It is important to note that in order to obtain a divorce, the party invoking the ground of divorce
must prove the existence of that ground. The burden of proof lies on the petitioner who is seeking
the divorce. Additionally, the party seeking the divorce must have resided in India for a period of at
least two years immediately before filing the petition, and the marriage must have been solemnized
under the Christian religion.

Dissolution of marriage under Divorce Act, 1936

The Dissolution of Muslim Marriages Act, 1939 provides for the grounds and procedures for the
dissolution of Muslim marriages in India. The Act applies to all Muslims in India, regardless of the sect
or sub-sect to which they belong. The following are the grounds for the dissolution of Muslim
marriages under the Act:

1. Cruelty: If the husband treats his wife with cruelty, either physically or mentally, the wife
can seek a dissolution of the marriage.
2. Desertion: If the husband has deserted his wife without any reasonable cause for a period of
not less than two years, the wife can seek a dissolution of the marriage.
3. Impotency: If the husband is impotent at the time of the marriage and continues to be so,
the wife can seek a dissolution of the marriage.
4. Adultery: If the husband has committed adultery, the wife can seek a dissolution of the
marriage.
5. Conversion: If the husband has converted to another religion and has ceased to be a Muslim,
the wife can seek a dissolution of the marriage.
6. Insanity: If the husband has been of unsound mind for a period of at least two years before
the filing of the petition, the wife can seek a dissolution of the marriage.
7. Leprosy: If the husband is suffering from leprosy in a communicable form, the wife can seek
a dissolution of the marriage.
8. Venereal disease: If the husband is suffering from a venereal disease in a communicable
form, and the wife was not aware of this fact at the time of the marriage, she can seek a
dissolution of the marriage.
9. Repudiation of marriage: If the husband has repudiated the marriage under Islamic law, the
wife can seek a dissolution of the marriage.

In addition to the above grounds, a Muslim wife can also seek a divorce on the grounds of irretrievable
breakdown of the marriage, which means that the marriage has irretrievably broken down and cannot
be restored. The procedures for a wife seeking a dissolution of marriage under the Act are as follows:

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 1. The wife must file a petition in the court of the district judge.
2. The petition must be accompanied by a statement of the grounds on which the dissolution of
marriage is sought.
3. The husband must be made a party to the proceedings, and he can file a written statement
in response to the petition.
4. The court may make inquiries and may also order the parties to undergo a reconciliation
process.
5. If the court is satisfied that the grounds for dissolution of marriage exist, it may pass a decree
dissolving the marriage.

It is important to note that the husband can also seek a dissolution of the marriage under Islamic law
by pronouncing talaq, which means a declaration of divorce. However, if the wife does not accept
the talaq, she can seek a dissolution of the marriage under the Act.

Dissolution of marriages under Christian Law

The Indian Divorce Act, 1869 provides for the provisions for dissolution of marriages under Christian
law in India. The Act applies to all Christians, including Catholics, Protestants, and members of the
Syrian Christian Church. The following are the grounds for the dissolution of marriages under Christian
law:

1. Adultery: If either spouse has committed adultery, the other spouse can seek a dissolution
of the marriage.
2. Conversion: If either spouse has converted to another religion and has ceased to be a
Christian, the other spouse can seek a dissolution of the marriage.
3. Desertion: If either spouse has deserted the other without any reasonable cause for a period
of at least two years, the other spouse can seek a dissolution of the marriage.
4. Unsoundness of mind: If either spouse has been of unsound mind for a period of at least two
years before the filing of the petition, the other spouse can seek a dissolution of the
marriage.
5. Incurable form of leprosy: If either spouse is suffering from an incurable form of leprosy,
the other spouse can seek a dissolution of the marriage.
6. Venereal disease: If either spouse is suffering from a venereal disease in a communicable
form, and the other spouse was not aware of this fact at the time of the marriage, the other
spouse can seek a dissolution of the marriage.
7. Cruelty: If either spouse treats the other with cruelty, either physically or mentally, the
other spouse can seek a dissolution of the marriage.
8. Presumption of death: If either spouse has been missing for a period of at least seven years
and is presumed to be dead, the other spouse can seek a dissolution of the marriage.
9. Non-consummation of marriage: If either spouse is incapable of consummating the marriage,
the other spouse can seek a dissolution of the marriage.

The procedures for seeking a dissolution of marriage under the Act are as follows:

1. Either spouse must file a petition in the court of the district judge.
2. The petition must be accompanied by a statement of the grounds on which the dissolution of
marriage is sought.
3. The other spouse must be made a party to the proceedings, and he or she can file a written
statement in response to the petition.
4. The court may make inquiries and may also order the parties to undergo a reconciliation
process.
5. If the court is satisfied that the grounds for dissolution of marriage exist, it may pass a decree
dissolving the marriage.

It is important to note that the Act also provides for judicial separation, which is a legal separation
of the spouses without dissolving the marriage. Judicial separation can be sought on the same grounds
as dissolution of marriage, and the procedures are similar. However, the spouses remain legally
married, and neither spouse can remarry unless the marriage is later dissolved.

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Parsi Marriage & Divorce - Requisites & provisions

Parsi Marriage refers to marriages solemnized under the Parsi Marriage and Divorce Act, 1936. This
Act governs the personal and family law of Parsis in India. The following are the requisites and
provisions for Parsi marriage:

1. Age of Marriage: The age of marriage for men and women under Parsi law is 21 and 18 years
respectively. However, the parties can get married with the consent of their legal guardians
at the age of 18 and 16 years respectively.
2. Form of Marriage: Parsi marriage can be solemnized either by the Parsi Zoroastrian Anjuman
or by a registered Parsi priest. The marriage must be solemnized in accordance with the Parsi
marriage ceremony, which is a combination of Indian and Iranian customs.
3. Registration of Marriage: The Parsi Marriage and Divorce Act mandates the registration of
marriages. The parties must apply to the Registrar of Marriages within 30 days of the
solemnization of the marriage. The marriage certificate is the conclusive evidence of the
marriage.
4. Prohibited Degrees of Relationship: Parsi law prohibits marriages between persons related
to each other within the prohibited degrees of relationship. A marriage between a Parsi and
a non-Parsi is also not permitted under Parsi law.
5. Consent to Marriage: Parsi law requires that the parties to the marriage must give their free
and voluntary consent to the marriage. The consent must be given without any coercion,
undue influence, or fraud.
6. Validity of Marriage: A Parsi marriage is valid if it fulfils the requirements of Parsi law. It is
essential that the marriage is solemnized according to the Parsi marriage ceremony, both
parties give their free and voluntary consent to the marriage, and the marriage is registered
within the prescribed period.
7. Grounds for Divorce: Parsi law recognizes the following grounds for divorce:
 Adultery
 Cruelty
 Desertion for a continuous period of two years
 Conversion of religion
 Insanity for a continuous period of two years or more
 Incurable leprosy or a communicable venereal disease
 Wilful refusal to consummate the marriage
 Irretrievable breakdown of marriage
8. Jurisdiction: The Parsi Marriage and Divorce Act provides that only the High Court has the
jurisdiction to grant a decree of divorce under Parsi law. Under the Parsi Marriage and Divorce
Act, 1936, a Parsi marriage can be dissolved through either divorce or annulment. The
provisions for Parsi divorce are as follows:
1. Grounds for Divorce: A Parsi marriage can be dissolved by a decree of divorce on any
one or more of the following grounds:
 Adultery
 Desertion for a continuous period of not less than two years immediately preceding
the presentation of the petition
 Conversion to another religion
 Insanity for a continuous period of not less than two years immediately preceding the
presentation of the petition
 Cruelty
 Venereal disease in a communicable form
 Renunciation of the Zoroastrian religion
 Non-resumption of cohabitation for a period of one year or upwards after the passing
of a decree for judicial separation
2. Jurisdiction: The petition for divorce must be presented to the District Court within
whose jurisdiction the marriage was solemnized or the husband or wife resides at the
time of presenting the petition.
3. Filing the Petition: The petition for divorce must be filed by either the husband or the
wife. The petition must state the facts on which the claim for relief is founded, and it
must be verified by the petitioner or some other competent person.

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 4. Settlement of Issues: The court will then frame the issues to be decided and will give
notice to the parties to appear before the court on a specified date. The court will try
to bring about a reconciliation between the parties and will adjourn the proceedings for
a period of up to six months to allow the parties to reconsider their decision.
5. Decree of Divorce: If reconciliation is not possible, the court will pass a decree of divorce
if it is satisfied that the grounds for divorce are established. The decree of divorce will
become effective after a period of six months, during which time an appeal can be filed
against the decree.
6. Maintenance and Custody: The court may also make orders with regard to the
maintenance of the wife and the custody of the children of the marriage.

Concept of Iddat
In Muslim Law, Iddat refers to the period of waiting or mourning that a woman must observe after
her husband's death or after the dissolution of her marriage. It is a mandatory period of abstinence
during which a woman cannot remarry, and it serves as a period of transition for the woman as she
adjusts to her new life circumstances. If the marriage is not consummated, there is no applicability
of observing the iddat period. The concept of Iddat is derived from the Quran and is considered an
important aspect of Islamic family law. The iddat period has certain rules and regulations that vary
depending on the circumstances. Here are the general rules regarding the iddat period in Indian
Muslim laws:
1. Iddat after divorce (Talaq): If a husband pronounces talaq (divorce), the iddat period for a
woman is generally three menstrual cycles (or three lunar months), during which she remains
in the marital home. However, if the woman is pregnant, the iddat period extends until the
completion of her pregnancy.
2. Iddat after death of the husband: If a woman's husband passes away, the iddat period is
usually four months and ten days (130 days) after his death. During this time, she is required
to observe a period of mourning and abstain from remarriage.
3. Maintenance during iddat: During the iddat period, it is the responsibility of the husband to
provide maintenance to his wife. He must continue to fulfill her financial needs and provide
a place for her to reside.
4. Restrictions during iddat: During the iddat period, a woman is expected to live in seclusion
and refrain from engaging in any activities that could be considered incompatible with
mourning. She is not allowed to leave the house except for essential purposes and must dress
modestly.
5. Remarriage after iddat: Once the iddat period is over, a woman is free to remarry if she
wishes. If the iddat is due to divorce (talaq), she may remarry after the completion of the
iddat period. If the iddat is due to the death of her husband, she can remarry after the iddat
period ends.

During the Iddat period, a woman is expected to dress modestly and not wear any makeup or
jewellery. She is also not allowed to leave her house except for essential needs, such as going to the
doctor. The purpose of these restrictions is to ensure that the woman is not seen as available for
marriage and to provide her with a period of solitude and reflection.

Dissolution of marriage under Muslim Act

Husband gets superior privileges/rights when it comes to divorce. He can divorce without assigning
any cause and can have 4 wives wherein wife cannot have more than one husband. Wife cannot
divorce herself on own (except by obtaining decree of court), In Muslim personal law, the dissolution
of marriage is referred to as Talaq. The provisions for Talaq under the Muslim Personal Law (Shariat)
Application Act, 1937 are as follows:
1. Types of Talaq: There are two types of Talaq under Muslim law:
A. Talaq-ul-Sunnat (As per Sunnah, Valid): This refers to a divorce in accordance
with the tradition of the Prophet Muhammad. It can be further classified into
two sub-types:
I. Talaq-e-Ahsan: This is the most approved and proper form of Talaq,
where the husband makes a single pronouncement of divorce during the

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 wife's period of purity (tuhr). After the pronouncement, the husband has
to wait for a period of three months (iddat) during which the couple can
reconcile. If they do not reconcile within this period, the divorce
becomes final.
II. Talaq-e-Hasan: This is a less approved form of Talaq, where the husband
makes three pronouncements of divorce, each during a period of purity
(tuhr) and with a gap of one menstrual cycle between each
pronouncement. After the third pronouncement, divorce becomes final.

B. Talaq-ul-Biddat (Unlawful, Tripple Talaq, Irrevocable, Only for Sunnis): This

refers to a divorce which does not follow the traditional procedure of Talaq-
ul-Sunnat. It involves the husband making three pronouncements of divorce
at once. This type of Talaq is considered sinful and unlawful by some Islamic
scholars.

Talaq can be contingent to future event, invalid if given while in sleep but valid if given while
ill/sick or voluntarily intoxicated. There are 3 strong restraints to control this one-sided
menace such as Doctrine of Halala (marry/consummate with other create jealousy/damage
Honor of husband), fix exorbitant dower and wife seeking delegation of divorce from husband
at the time of marriage. In Zeenath Fatema Rashid v. Md. Iqbal Anwar, court observed that
husband must have reasonable cause (not arbitrary whims) and must have made reasonable
attempt to reconcile.

A. Ila (Vow of continence): Example ‘I swear to god that I shall not approach
you’. This form of divorce is obsolete now.
B. Zihar (Injurious assimilation, unlawful comparison with female in prohibited
degree). Wife is entitled to divorce husband until he pays money or does
fasting (liable for penance).
C. Khula (redemption) at the instance of wife, for a consideration from wife
(such as waiver of dower). Husband can sue wife for such consideration if not
fulfilled.
D. Mubaarat (Mutual). Wife observe iddat despite of mutual consent, and
husband bound to maintain her/children during the iddat period.
E. Lian (False charge of adultery) Wife can sue for dissolution of marriage if
charges are false (those who have no illegitimate child – Ghulam Bhik v.
Hussain Begum). If wife takes oath of denial, she is entitled for seeking
divorce.
F. Judicial Wife could sue husband for divorce on the grounds of impotence and
adultery (Lian). In addition, grounds such as no whereabouts of husband for
4 years or more, husband neglect or unpaid maintenance for 2 or more years,
husband imprisoned for 7 or more years, husband failed to perform marital
obligations for 3 years, husband insane for 2 years, suffering from
leprosy/venereal disease, wife repudiating marriage upon reaching puberty,
Cruelty by husband etc.

2. Procedure for Talaq: In order to give Talaq, the husband must:

 Make a clear and unambiguous pronouncement of divorce in the presence of two
witnesses
 Inform the wife about the pronouncement of divorce

3. Effect of Talaq: Once Talaq has been pronounced, the marriage is dissolved with immediate
effect. The 5 legal effects of divorce include:
a) Right to contract another marriage
b) Maintenance
c) Dower (Full if marriage was consummated, otherwise half)
d) Mutual rights of inheritance
e) Remarriage with divorced wife (except when Tripple Talaq, Halala Marriage)
4. Iddat: After Talaq, the wife is required to observe a waiting period of three menstrual cycles
(iddat), during which time she is not allowed to remarry.

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 5. Mahr and Maintenance: The wife is entitled to receive the unpaid amount of the mahr
(dower) from the husband upon divorce. The husband is also required to provide maintenance
to the wife during the period of iddat.
6. Arbitration: In case of a dispute regarding the validity of Talaq, the matter can be referred
to an arbitration council consisting of two arbitrators appointed by each party and a
representative of the government.

Talaq, its various forms

In Muslim law, divorce is referred to as Talaq. Talaq refers to the act of repudiation or dissolution of
marriage by the husband. There are three forms of Talaq under Muslim law:

1. Talaq-e-Ahsan: It is the most approved and preferable form of divorce under Muslim law.
This form of Talaq is revocable and can be pronounced by the husband in a single
pronouncement during the period of Tuhr (purity). The husband must abstain from sexual
relations with his wife during the period of Tuhr, which is the time between two menstrual
cycles. After the Talaq is pronounced, the wife has to observe a period of Iddat (waiting
period) for three menstrual cycles.
2. Talaq-e-Hasan: It is the second approved form of divorce under Muslim law. In this form of
Talaq, the husband pronounces Talaq three times during three successive Tuhrs. The
pronouncement of Talaq must be made in a state of purity and the husband must abstain
from sexual relations with his wife during the period of Tuhr. After the final pronouncement
of Talaq, the wife has to observe the period of Iddat.
3. Talaq-e-Biddat: It is the most disapproved and sinful form of divorce under Muslim law. It is
also known as instant triple Talaq. In this form of Talaq, the husband can pronounce Talaq
three times in a single pronouncement, either orally, through a written message or through
any other form of communication. The pronouncement of Talaq can be made by the husband
even when the wife is menstruating or pregnant. The Supreme Court of India has declared
this form of Talaq as unconstitutional and void.

It is important to note that the husband has to give notice of Talaq to the wife, and if the wife is
pregnant, the Talaq cannot be pronounced until the child is born. The wife also has the right to
challenge the validity of Talaq in a court of law.

Talaq-e-Biddat
Talaq-e-Biddat, also known as instant or triple talaq, refers to a form of divorce under Muslim Law,
where a husband can instantly divorce his wife by pronouncing talaq thrice in one sitting. The practice
was deemed unconstitutional and void by the Indian government in 2019 through the enactment of
the Muslim Women (Protection of Rights on Marriage) Act, which criminalized the practice. Before
the enactment of this Act, talaq-e-biddat was recognized as a valid form of divorce under Muslim
Law, although it was highly criticized due to its one-sided nature and the lack of adequate rights for
women. The procedure for talaq-e-biddat involves a husband pronouncing talaq thrice in one sitting,
without any opportunity for the wife to contest or challenge the divorce.

Under Muslim Law, talaq-e-biddat was considered to be an innovation and not a recognized form of
divorce. However, it was still widely practiced in some parts of the Muslim world, including India,
until the government's intervention. The provisions under the Muslim Women (Protection of Rights on
Marriage) Act state that the practice of talaq-e-biddat is void and illegal. A husband who pronounces
talaq-e-biddat can face imprisonment for up to three years and a fine.

Khilawat-us-sahiha
"Khilawat-us-Sahiha" is a term used in Muslim Law to refer to the reconciliation of a husband and wife
after a divorce. It is a process by which the couple reunites and cancels the effect of the divorce. In
other words, it is a revocation of the divorce before it becomes irrevocable. According to Muslim
Law, there are three types of divorce - Talaq-e-Ahsan, Talaq-e-Hasan, and Talaq-e-Biddat. In case of
Talaq-e-Ahsan and Talaq-e-Hasan, the husband has the option to revoke the divorce during the iddat
period. However, once the iddat period is over, the divorce becomes final and irrevocable. In case
of Talaq-e-Biddat, the divorce becomes irrevocable as soon as it is pronounced. However, if the

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husband pronounces a divorce but later wishes to revoke it, he can do so by following the process of
Khilawat-us-Sahiha. In order for the reconciliation to be valid, it must meet certain conditions. These
conditions include:
1. The divorce must have been pronounced only once.
2. The reconciliation must be done during the iddat period.
3. The wife must not have completed her iddat period.
4. The reconciliation must be done voluntarily by both parties.
5. The reconciliation must be done in the presence of two witnesses.

If the above conditions are met, the divorce is revoked, and the couple is considered to be reunited.
However, if the wife has completed her iddat period or the divorce has been pronounced more than
once, the process of Khilawat-us-Sahiha cannot be used to revoke the divorce. It is important to note
that the option of Khilawat-us-Sahiha is only available if the divorce has been pronounced verbally.
If the divorce has been given in writing (Talaq-e-Tafweez), the process of Khilawat-us-Sahiha cannot
be used to revoke it.

Compare concept and procedure between “Talaq-ul-Sunna” and “Talaq-ul-Biddat”

In Muslim law, there are two main types of divorce: Talaq-ul-Sunna and Talaq-ul-Biddat.
Talaq-ul-Sunna refers to the traditional and recommended method of divorce in Islam. It involves a
husband pronouncing talaq (divorce) to his wife in the presence of two witnesses during the wife's
state of purity (tuhr) or when she is not menstruating. This is known as Talaq-ul-Ahsan. After the first
pronouncement, the husband can reconcile with his wife during the waiting period (iddat) of three
menstrual cycles, during which the wife is considered to be still married to him. If the husband
pronounces talaq again during the waiting period, it is known as Talaq-ul-Hasan. If the husband
pronounces talaq for the third time during the waiting period, it is known as Talaq-ul-Bain, and the
divorce is irrevocable.

Talaq-ul-Biddat, on the other hand, is an innovation that involves pronouncing talaq three times in
one sitting or through written communication, without giving the wife a chance for reconciliation
during the waiting period. This type of divorce is considered invalid and is heavily criticized in Islamic
jurisprudence as it violates the principles of justice and fairness.

The main difference between the two forms of divorce is the procedure involved. Talaq-ul-Sunna
involves a more structured and gradual process with a waiting period for reconciliation, while Talaq-
ul-Biddat is a quick and instant form of divorce. Talaq-ul-Sunna is also considered to be more in line
with the principles of justice and fairness, while Talaq-ul-Biddat is seen as an arbitrary and unfair
way of ending a marriage.

Illustration: A husband pronounces talaq to his wife three times in one sitting without giving her a
chance for reconciliation during the waiting period. This is an example of Talaq-ul-Biddat, which is
considered invalid and not recognized under Islamic law. If the husband wishes to divorce his wife,
he must follow the proper procedure of Talaq-ul-Sunna, which involves a gradual and structured
process with a waiting period for reconciliation.

Distinguish Talaq, Khula & Mubarat

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Under Muslim law, there are different types of dissolution of marriage, including Talaq, Khula, and
Mubarat. These are explained below:

1. Talaq: Talaq refers to the unilateral repudiation of marriage by the husband. There are three
types of Talaq, namely Talaq-e-Ahsan, Talaq-e-Hasan, and Talaq-e-Biddat, which were
explained in the previous answer. The husband has the right to pronounce Talaq unilaterally,
without any reason and without the consent of his wife. However, the husband must follow
certain procedures before pronouncing Talaq, such as giving notice of Talaq to the wife,
abstaining from sexual relations with the wife during the period of Tuhr, and observing the
period of Iddat.

3. Khula: Khula refers to the dissolution of marriage initiated by the wife. Under Khula, the
wife seeks the dissolution of marriage on the ground of some valid reason, such as cruelty or
desertion by the husband. The wife can seek Khula through the intervention of a court or
through mutual consent of the parties. If the court grants Khula, the wife may have to return
the dower amount to the husband.

3. Mubarat: Mubarat refers to the dissolution of marriage by mutual consent of the parties.
Unlike Khula, Mubarat is initiated by both parties and does not require any fault on the part
of either party. The husband and wife mutually agree to dissolve the marriage and settle
their disputes, if any, amicably. The Mubarat deed is signed by both parties, and the marriage
is dissolved by mutual consent.

Talaq- E- Tafweez
Talaq-E-Tafweez is a type of divorce that is permitted under Muslim law, in which the husband
delegates the right of divorcing his wife to her. It is a form of unilateral divorce, where the wife can
pronounce the divorce by herself, without requiring the husband to do so. The delegation of the right
to divorce is made through a written document, known as the Deed of Tafweez. The requisites for
Talaq-E-Tafweez are as follows:
1. The husband must be of sound mind at the time of delegation.
2. The delegation must be made through a written instrument.
3. The instrument must be signed by the husband.
4. The instrument must be voluntarily executed.
5. The instrument must be unambiguous.

The effects of Talaq-E-Tafweez are similar to those of Talaq. Once the wife pronounces the divorce,
the marriage is dissolved, and the wife is entitled to receive the dower from her husband.

An example of Talaq-E-Tafweez can be seen in the case of Shabana Banu v. Asif Khan. In this case,
the husband had executed a Deed of Tafweez, in which he delegated the right of divorcing his wife
to her. The wife had exercised this right and had pronounced the Talaq. The husband, however,
refused to accept the Talaq and claimed that the Deed of Tafweez was invalid. The court, however,
upheld the validity of the Deed of Tafweez and the Talaq pronounced by the wife, and granted a
decree of divorce in her favour.

Judicial Divorce (Ila, Zihar, Lian)

In Muslim Law, Judicial Divorce can be sought by either the husband or the wife under certain
circumstances. There are three forms of Judicial Divorce recognized in Muslim Law: Ila, Zihar, and
Lian.

1. Ila: Ila is a form of divorce that takes place when the husband takes an oath of abstinence
from his wife. If the husband does not have sexual relations with his wife for a period of four
months or longer, and he takes an oath in the presence of witnesses that he will abstain from
sexual relations with her, the wife can seek a divorce through the courts. The husband is
given a period of four months to either revoke his oath or to resume sexual relations with his
wife. If he fails to do so, the divorce becomes final.

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 2. Zihar: Zihar is a form of divorce that takes place when the husband compares his wife to a
non-mahram woman (a woman with whom he is not allowed to have sexual relations) or to
an object. Zihar is considered a serious offense in Islam, and the husband is required to make
expiation (kaffara) for his offense. If the husband fails to do so within a reasonable period of
time, the wife can seek a divorce through the courts.

3. Lian: Lian is a form of divorce that takes place when the husband accuses his wife of adultery.
The husband is required to make an oath in the presence of witnesses that his wife has
committed adultery. The wife is then given the opportunity to swear an oath of innocence in
the presence of witnesses. If she does so, the divorce is granted and the husband is required
to pay compensation to his wife. However, if she does not swear an oath of innocence, the
divorce becomes final and the wife is considered to have admitted to the offense of adultery.

It is important to note that Judicial Divorce is a serious matter in Muslim Law, and the courts are
required to follow strict procedures and guidelines when granting a divorce. In addition, the parties
are encouraged to seek reconciliation and to exhaust all efforts to save the marriage before seeking
a divorce.

Criminalization of Triple Talaq

Triple Talaq refers to the practice of instant divorce in which a Muslim husband can unilaterally
divorce his wife by pronouncing the word "Talaq" three times. This practice has been a subject of
controversy and debate in India, with many women's rights groups and activists calling for its
criminalization.

In 2019, the Indian government passed the Muslim Women (Protection of Rights on Marriage) Act,
which criminalized Triple Talaq. The act makes the pronouncement of Triple Talaq a cognizable
offense, meaning that a police officer can arrest the husband without a warrant if the wife or any
other person gives information about the commission of the offense. The act also provides for a jail
term of up to three years for the husband, along with a fine. The offense is non-bailable, meaning
that the husband cannot secure bail from the court before the completion of the investigation. The
act also makes the pronouncement of Triple Talaq void and illegal, and it does not have any legal
effect on the marriage.

The Criminalization of Triple Talaq was a significant step towards empowering Muslim women and
protecting their rights. It has been widely welcomed by women's rights groups and activists, who have
been fighting for the abolition of the practice for years. However, some Muslim groups have criticized
the Criminalization of Triple Talaq, arguing that it is an interference in Muslim Personal Law and that
the government should not be involved in religious matters. There have also been concerns about the
misuse of the law by women to settle scores with their husbands.

One of the key cases that led to the Criminalization of Triple Talaq in India was the case of Shayara
Bano vs. Union of India, which was heard by the Supreme Court of India in 2017. In this case, Shayara
Bano, a Muslim woman from Uttarakhand, challenged the practice of Triple Talaq and argued that it
violated her fundamental rights. The Supreme Court, in a landmark judgment, held that Triple Talaq
was unconstitutional and violative of the rights of Muslim women. The court observed that Triple
Talaq was not an essential part of Islam and that it was not protected by the right to religious
freedom. The court also held that Triple Talaq was discriminatory and arbitrary and that it violated
the right to equality enshrined in the Indian Constitution. The court, however, did not criminalize
Triple Talaq at that time, and it left it to the government to take appropriate steps to address the
issue. In response to the judgment, the government introduced the Muslim Women (Protection of
Rights on Marriage) Bill, which criminalized Triple Talaq and provided for stringent punishments for
the offense. In subsequent cases, such as the case of Ishrat Jahan vs. Union of India, the Supreme
Court upheld the constitutionality of the Criminalization of Triple Talaq and dismissed the arguments
that it violated the right to religious freedom. The court observed that the law was a necessary
measure to protect the rights and dignity of Muslim women and to ensure gender justice and equality.

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Muslim women (protection on right to divorce) Act, 1986
The Muslim Women (Protection on Rights of Divorce) Act, 1986, is a law enacted by the Indian
government to protect the rights of Muslim women in matters of divorce. The Act seeks to provide
Muslim women with greater security and protection in case their husbands decide to divorce them.
The key provisions of the Act are as follows:
1. Right to fair and reasonable provision and maintenance: The Act provides that a Muslim
husband who divorces his wife is liable to make a reasonable and fair provision for her
maintenance during the period of her Iddat. The provision must be made in accordance with
the standard of living enjoyed by the wife prior to the divorce.
2. Mahr: The Act also provides that the Mahr or any other property or gift given to the wife at
the time of marriage or during the marriage, belongs to the wife and cannot be taken away
by the husband in case of divorce. The Act also provides that the wife is entitled to dower,
which is a sum of money or property that is promised to be paid by the husband to the wife
as a mark of respect and consideration for her.
3. Protection against arbitrary divorce: The Act also provides that a Muslim husband cannot
divorce his wife without a valid reason, and any divorce that is given without a valid reason
is void and illegal.
4. Maintenance beyond the Iddat period: The Act also provides that the wife is entitled to
maintenance beyond the Iddat period if she is unable to support herself after the divorce.
5. Custody of children: The Act also provides that the mother has the right to custody of her
children up to a certain age, after which the father may take custody.

Concept of Halala Marriage

Halala marriage is a practice in Muslim Law where a divorced woman marries another man,
consummates the marriage, and then divorces him to become eligible to remarry her former husband.
The concept of Halala marriage has been controversial and has been a subject of debate among
Muslim scholars and Islamic jurists.

In the case of Saira Banu v. State of U.P. & Ors. (2006), the Allahabad High Court dealt with the issue
of Halala marriage. The petitioner, Saira Banu, had filed a writ petition challenging the constitutional
validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which permits a
Muslim man to divorce his wife by saying "talaq" thrice. The petitioner contended that the practice
of triple talaq and Halala marriage were unconstitutional and violated the fundamental rights of
Muslim women. The High Court held that the practice of triple talaq and Halala marriage were not
essential practices of Islam and were, therefore, not protected by Article 25 of the Constitution of
India, which guarantees the right to freedom of religion. The Court also observed that the practice
of Halala marriage was against the principles of justice, equity, and good conscience and was,
therefore, illegal and void. The Court further observed that the practice of Halala marriage was a
form of cruelty and exploitation of women, and it was not a legitimate means of fulfilling the
requirements of Islamic Law. The Court, therefore, declared that the practice of Halala marriage
was unconstitutional and void.

In another case, Shabnam Hashmi v. Union of India (2014), the Supreme Court of India dealt with the
issue of the right of Muslim women to seek protection from the practice of Halala marriage. The
petitioner had filed a writ petition seeking the protection of the rights of Muslim women against the
practice of Halala marriage. The Supreme Court held that the practice of Halala marriage was
unconstitutional and violated the fundamental rights of Muslim women. The Court observed that the
practice of Halala marriage was a form of exploitation of women and was not in keeping with the
principles of justice and equity. The 2014 case of Shabnam Hashmi v. Union of India was a landmark
ruling on the practice of halala marriage. The case was brought by Shabnam Hashmi, a Muslim woman
from Uttar Pradesh, India, who had been divorced by her husband. She argued that the practice of
halala marriage was a violation of her fundamental rights under the Indian Constitution. The case
was heard by the Supreme Court of India, which ruled in favour of Hashmi, declaring the practice of
halala marriage unconstitutional. The court held that the practice of halala marriage violated the
right to equality, the right to life and personal liberty, and the right to freedom of religion. The court

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also noted that the practice of halala marriage was not sanctioned by the Quran, and that it was a
form of gender discrimination. The ruling was a major victory for women's rights in India, and has
had a lasting impact on the practice of halala marriage. Since the ruling, the practice has become
much less common, and many Muslim women have been able to remarry their former husbands
without having to go through the process of halala marriage.

Parsi Divorce by mutual consent

Under the Parsi Marriage and Divorce Act, 1936, divorce by mutual consent is also known as 'amicable
divorce'. Here are the requisites and provisions for this type of divorce:

1. Mutual Consent: Both the husband and wife should agree to the divorce and express their
consent to dissolve the marriage.
2. Separation: Both the parties should have been living separately for at least a year before
they apply for a divorce by mutual consent.
3. Petition for Divorce: The petition for divorce by mutual consent should be jointly filed by
both parties before the relevant court.
4. Statement of Parties: The petition should include a joint statement by both the husband and
wife that they have been living separately for at least a year and have mutually agreed to
dissolve their marriage.
5. Settlement Agreement: The petition should also include a settlement agreement that
outlines the terms of the divorce, such as alimony, child custody, property division, etc.
6. Appearance in Court: Both parties should appear before the court and give their consent to
the divorce. The court will verify that the parties have freely consented to the divorce and
have understood the consequences of their decision.
7. Cooling-off Period: After the first hearing, the court will adjourn the case for a minimum of
six months but not exceeding 18 months to give the parties a chance to reconsider their
decision.
8. Second Appearance in Court: After the cooling-off period, the parties should appear before
the court again and confirm their consent for the divorce. If both parties still desire a divorce,
the court will grant the decree of divorce.

It is important to note that the provisions for divorce by mutual consent under the Parsi Marriage and
Divorce Act, 1936, are applicable only to Parsi couples.

Maintenance under Muslim law

Maintenance is a legal obligation that is imposed upon a person to provide financial support to their
spouse, children, and parents in certain circumstances. Under Muslim law, maintenance is a
fundamental right of the wife, and it is the responsibility of the husband to provide for his wife's
maintenance. The provisions related to maintenance under Muslim law are governed by the Muslim
Personal Law (Shariat) Application Act, 1937. The following are the key provisions related to
maintenance under Muslim law:

1. Maintenance of wife: A Muslim husband is required to provide maintenance to his wife during
the subsistence of marriage. The wife (as long as she is faithful and obeys all reasonable
orders of her husband unless she is too young for matrimonial intercourse), is entitled to
receive a reasonable and fair amount of maintenance that is commensurate with the standard
of living of the parties. During her widowhood, wife is not entitled for maintenance (even
during iddat) as she is entitled for inheritance in lieu of. Under Section 125 of Criminal
Procedure code, a wife who is unable to maintain herself can claim maintenance through the
court provided she is not married. But if she refuses to live with her husband on the grounds
of non-payment of dower, she cannot claim maintenance (Md. Azizullah v. Abdul Halim). Due
to social pressure from Muslim community across India (who viewed Shaha Bano decision on
maintenance as an interference in Muslim personal laws), enactment of Muslim Women’s
(Protection rights) Act effectively nullified the Supreme Court decision. Arrears of
maintenance can only be claimed by wife. And future maintenance agreement (in case of
eventualities) at the time of marriage is not void.

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 2. Maintenance of children: A Muslim father is required to provide maintenance to his sons
until they attain the age of puberty and daughters until they are married (Bayabai v. Ismail).
However, if the child is unable to maintain himself/herself, the obligation of maintenance
may extend beyond the age of majority. Adult children are not liable for maintenance unless
they are weak, infirm. Illegitimate children have no right of maintenance.
3. Maintenance of parents: A Muslim son is required to provide maintenance to his parents if
they are unable to maintain themselves. Even grandparents, if poor, are to be maintained by
their grandchildren.
4. Quantum of maintenance: The amount of maintenance payable to the wife, children, and
parents is determined based on various factors, including the financial position of the
husband, the standard of living of the parties, and the needs of the wife, children, and
parents.
5. Recovery of maintenance: In case of non-payment of maintenance, the wife, children, and
parents can approach the court for recovery of maintenance.
6. Modification of maintenance: The amount of maintenance can be modified by the court
based on changed circumstances.

In the case of Shah Bano Begum v. Mohammed Ahmed Khan (1985), the Supreme Court of India held
that Muslim women are entitled to maintenance under Section 125 of the Code of Criminal Procedure,
1973, which provides for the maintenance of wives, children, and parents. The Court observed that
the provisions related to maintenance under Muslim law are inadequate, and hence, Muslim women
can seek maintenance under the secular law. The case is significant as it recognized the right of
Muslim women to seek maintenance under secular law.

Domicile under Indian Succession Act

Under the Indian Succession Act, domicile plays an important role in determining the succession of a
person's property. Domicile refers to a person's permanent home, where he has the intention of
returning to after any period of absence. The following are the provisions and requisites for domicile
under the Indian Succession Act:
1. Domicile of origin: A person acquires domicile of origin at birth, which is the domicile of his
father at the time of his birth. This domicile continues until he acquires a new domicile.
2. Domicile of choice: A person can acquire a domicile of choice by residing in a place with the
intention of making it his permanent home. The following requisites must be met:
1. Actual residence: The person must physically reside in the place.
2. Intention to reside permanently: The person must have the intention of residing
permanently in the place.
3. Abandonment of previous domicile: The person must abandon his previous domicile.
3. Domicile of dependence: A person can acquire a domicile of dependence if he is a minor or
a mentally incapacitated person who is under the care of another person who has a domicile
of choice or origin. In such cases, the domicile of the dependent person is the same as that
of the person under whose care he is.

Domicile is important in matters of succession because the law of the domicile governs the succession
of movable property, while the law of the country where the immovable property is situated governs
the succession of immovable property. For example, if a person is domiciled in India and has movable
property in India and immovable property in the USA, the Indian law will govern the succession of
the movable property, while the law of the USA will govern the succession of the immovable property.
In the case of Azizunnessa v. Md. Monowar Hossain, the issue of domicile was raised when the
deceased husband's property was being distributed. The husband was born in India and had acquired
British citizenship. He had married the plaintiff in Bangladesh and had been residing there for several
years before his death. The court held that the husband's domicile of origin was India, but he had
acquired a domicile of choice in Bangladesh as he had been residing there for several years with the
intention of making it his permanent home. Therefore, the law of Bangladesh would govern the
succession of his property.

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Domicile by Choice

Domicile by choice is a legal concept used to describe the process by which an individual voluntarily
acquires a new domicile, typically in a different country or state. The concept of domicile is
important because it determines an individual's legal status and the laws that govern his or her
property and personal affairs.

Under Indian law, there are several requisites and provisions for acquiring domicile by choice. These
include:

1. Intention: The first requirement for acquiring domicile by choice is the intention to make a
permanent home in a new country or state. The individual must demonstrate a clear and
unequivocal intention to reside in the new location permanently.
2. Physical presence: The individual must physically move to the new location and establish a
residence there. The length of time required to establish domicile varies depending on the
circumstances, but generally, a period of at least six months is required.
3. Connection with the new location: The individual must have a connection with the new
location, such as owning property or conducting business there. This connection must be
sufficient to demonstrate a genuine intent to make the new location his or her permanent
home.
4. Absence of a previous domicile: Finally, the individual must have abandoned his or her
previous domicile. This means severing ties with the old location and demonstrating a clear
intention to make the new location the primary place of residence.

Once these requirements are met, the individual may be considered to have acquired a new domicile
by choice. The new domicile will determine the individual's legal status and the laws that govern his
or her property and personal affairs. It is important to note that domicile is a complex legal concept,
and the process of acquiring a new domicile by choice can be challenging. It is recommended that
individuals seeking to acquire a new domicile seek the advice of an experienced attorney or legal
professional.

Intestate Succession
Intestate succession refers to the distribution of property of a deceased person who has not made a
valid will. The Indian Succession Act, 1925 provides the framework for the intestate succession in
India. The provisions of the Act are applicable to all persons who die intestate, irrespective of their
religion or community. The distribution of property of a deceased person who dies intestate depends
on whether the deceased person is male or female and whether the deceased person had any children
or not. The provisions of the Act provide for the distribution of property to the legal heirs of the
deceased person in a specified order.

In the case of a male intestate, the distribution of property is governed by Section 8 of the Act.
According to this section, the property will devolve first on the Class I heirs (widow, children, mother,
and so on). If there are no Class I heirs, then the property will devolve on the Class II heirs (father,
brothers, sisters, and so on). If there are no Class II heirs, then the property will devolve on the
agnates, and if there are no agnates, then on the cognates.

In the case of a female intestate, the distribution of property is governed by Section 15 of the Act.
According to this section, the property will devolve first on the children of the deceased person, and
if there are no children, then on the husband or husband’s heirs. If there are no children or husband
or husband’s heirs, then the property will devolve on the parents of the deceased person, and if there
are no parents, then on the parents’ heirs.

Illustration: Let us consider an example to understand the distribution of property in the case of an
intestate male. Mr. X, a Hindu, dies intestate, leaving behind his wife, two sons, and a daughter.
According to Section 8 of the Act, the property will first devolve on the Class I heirs, which includes
the wife and children. Since Mr. X has a wife and children, the property will be divided equally among
them. The wife will get one share, and each of the children will get one share each. In another
example, suppose Mr. Y, a Muslim, dies intestate, leaving behind his mother, brother, and two sisters.

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According to Section 8 of the Act, the property will first devolve on the Class I heirs, which include
the mother, brother, and sisters. Since Mr. Y has no wife or children, the property will be divided
equally among the mother, brother, and sisters. The mother will get one share, and the brother and
sisters will get one share each.

Meaning of Consanguinity
Consanguinity in Indian testamentary succession refers to the relationship of a person to their blood
relatives. It is an important concept in succession law because the degree of consanguinity
determines who has the right to inherit a person's property in case of their death. In India, the laws
of succession are based on personal laws that are specific to each religion. In general, these laws
follow the principles of consanguinity, with closer blood relatives having a higher claim to inheritance
than more distant relatives.

For example, under the Hindu Succession Act, the heirs of a deceased Hindu are determined based
on the degree of consanguinity. If the deceased had a wife, his wife and children have the first claim
to his property. If he had no children, his wife and her relatives, such as her parents and siblings,
have the next claim. If he had no wife or children, his parents and their relatives, such as his siblings
and their children, have the next claim. If he had no living parents, his grandparents and their
descendants have the next claim, and so on.

Similarly, under the Muslim Personal Law, the heirs of a deceased Muslim are determined based on
the degree of consanguinity. The nearest relatives have the first claim, followed by more distant
relatives. In Indian Muslim succession, the order of priority for consanguinity, i.e., the degree of
blood relationship, determines the entitlement to inherit the property of a deceased person when
there is no valid will. The order of priority may vary based on the school of thought followed and the
specific circumstances, but generally, the following relatives have higher priority in inheritance:
1. Children: The children of the deceased, including both sons and daughters, have a high
priority in inheritance. They are considered primary heirs and are entitled to a share in the
estate.
2. Parents: If the deceased does not have any children, the next in line for inheritance are the
parents. Both the mother and father have a share in the estate of their deceased child.
3. Spouse: In the absence of children and parents, the surviving spouse, whether it's the husband
or wife, has a significant entitlement to the estate.
4. Siblings: If there are no children, parents, or spouse, the deceased's siblings, including both
full siblings and half-siblings, may inherit a portion of the estate.
5. Other Relatives: In the absence of the above-mentioned relatives, more distant relatives such
as grandparents, uncles, aunts, and cousins may have a claim to the estate. The specific
order of priority and entitlement for these relatives may vary depending on the personal laws
followed and the specific circumstances.

Parsi Matrimonial Courts

In India, Parsi matrimonial disputes are governed by the Parsi Marriage and Divorce Act, 1936. This
act provides for the establishment of Parsi matrimonial courts, which are authorized to hear and
adjudicate disputes related to Parsi marriages and divorces.

Provisions: The Parsi matrimonial courts are established under Section 19 of the Parsi Marriage and
Divorce Act, 1936. These courts are presided over by a judge who is appointed by the government.
The judge is required to be a Parsi and must have a degree in law. The court is also assisted by a
registrar who maintains the records and documents related to the cases.

Functions: The Parsi matrimonial courts have a wide range of functions related to Parsi matrimonial
disputes. Some of the major functions of these courts include the following:
1. Granting of divorce: The court is authorized to grant divorce to Parsi couples who are seeking
to dissolve their marriage. The court can grant divorce on various grounds such as adultery,
cruelty, desertion, etc.

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 2. Suits can be heard ‘In Camera’ to prevent embarrassment or humiliation of procedure to
parties & witnesses (S43). Provisions of Civil Procedure code apply (S45) for all court
proceedings.
3. Alimony: The court can also award alimony to the wife or children of a Parsi husband who is
divorcing his wife. The amount of alimony is determined based on various factors such as the
income of the husband, the needs of the wife, the standard of living, etc. The Parsi
matrimonial court has no jurisdiction to pass an order for permeant alimony, unless
accompanied by other matrimonial relief (Gulabai Harver v. Behramsha Harver).
4. Child custody: The court can also decide the custody of children who are affected by a Parsi
matrimonial dispute. The court will take into consideration the best interests of the child
while making this decision.
5. Property division: The court can also decide the division of property between the parties in
a Parsi matrimonial dispute. The court will take into consideration various factors such as the
duration of the marriage, the contributions of each party, the needs of the parties, etc.
6. All appeals lie with High court (S47) for decisions contrary to the law or defect in procedure
or investigation (Jamshed v. Zarina)

In the case of Jehangir Boman Behram v. Shirin Jehangir Behram, the Parsi matrimonial court had to
decide the issue of maintenance in a Parsi matrimonial dispute. In this case, the husband had
appealed against the order of the lower court, which had awarded maintenance to his wife. The Parsi
matrimonial court upheld the order of the lower court and observed that the husband was obliged to
maintain his wife even after their separation. The court also took into consideration the income of
the husband, the needs of the wife, and the standard of living of the parties while deciding the
amount of maintenance.

Permanent Alimony under Christian Law

Under Christian law, permanent alimony refers to the financial support paid by one spouse to the
other after the dissolution of marriage. This type of alimony is different from rehabilitative alimony,
which is paid for a temporary period to help the other spouse become self-sufficient. The provisions
for permanent alimony under Christian law are provided under the Indian Divorce Act, 1869.
According to Section 37 of the Act, either spouse can apply for alimony after the decree of divorce
has been granted. The court has the power to award the alimony to the wife or husband as the case
may be, as per the financial status of the parties involved and their respective needs. The requisites
for permanent alimony under Christian law include the following:

1. Financial status: The financial status of both parties is taken into consideration while
awarding permanent alimony. The court will look at the income, assets, and liabilities of
both parties before determining the amount of alimony.
2. Needs of the parties: The court will also consider the needs of both parties while awarding
permanent alimony. This includes the living expenses, medical expenses, and other basic
necessities of life.
3. Duration of the marriage: The duration of the marriage is also taken into account while
awarding permanent alimony. If the marriage was long-lasting, the alimony amount may be
higher.
4. Conduct of the parties: The court may also consider the conduct of the parties during the
marriage while deciding the alimony amount.

In the case of Mary vs. P.X. Joseph (2003), the court held that the wife was entitled to permanent
alimony as she was unable to support herself financially after the divorce. The court considered the
financial status of both parties, the duration of the marriage, and the needs of the wife before
awarding her a monthly amount as permanent alimony.

Remarriages of Christians

In India, the Christian community is governed by the Indian Christian Marriage Act, 1872. This act
allows for remarriage of Christians after the dissolution of their previous marriage through divorce or

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death of the spouse. Here are the provisions and requisites of remarriages of Christians under the
Indian Christian Marriage Act, 1872:

1. Divorce: The first requisite for remarriage of Christians is that the previous marriage must
have been legally dissolved through divorce. The Christian Divorce Act, 1869 lays down the
provisions for divorce among Christians in India.
2. Waiting Period: The Act does not prescribe any waiting period before remarriage after
divorce. However, the parties may choose to wait for a certain period before remarrying.
3. Death of Spouse: In case of death of the previous spouse, there is no waiting period for
remarriage.
4. Consent: Both parties must give their free and informed consent for the remarriage. The
consent must be obtained in the presence of at least two witnesses.
5. Notice: The parties must give notice of their intention to remarry to the Marriage Registrar
of the district where at least one of the parties has resided for at least thirty days prior to
giving notice. The notice must be in the prescribed form and must contain the necessary
details of the parties and their previous marriages.
6. Objections: The Marriage Registrar may receive objections to the intended marriage from
any person within thirty days of the notice. The objections may be based on the grounds that
one of the parties is already married, or that they are related within the prohibited degrees
of consanguinity or affinity.
7. Solemnization: After the expiry of thirty days from the notice, and in the absence of any
valid objection, the parties may proceed with the solemnization of the marriage. The
marriage must be solemnized in the presence of at least two witnesses, and the solemnization
must be in accordance with the provisions of the Act.

It is important to note that any person who remarries without satisfying the above-mentioned
requisites is guilty of bigamy under Indian law, and may be punished accordingly.

Ikhtiar
In Islamic law, Ikhtiar is the power or authority given to an individual to make a choice or decision
regarding a particular matter. It is a concept that is often applied in matters of contractual
obligations, such as a partnership agreement, sale of property, or marriage. The concept of Ikhtiar
is based on the Islamic principle of free will, which holds that individuals have the freedom to choose
their actions and decisions, subject to the guidance of Islamic law. In legal terms, Ikhtiar refers to
the power to choose between two or more legal options in a given situation.

Under Islamic law, Ikhtiar may be granted by one party to another through a contract or agreement,
or it may be implied in certain situations. For example, in a partnership agreement, each partner
may be granted Ikhtiar to make decisions related to the partnership, such as investments or business
operations. Similarly, in a marriage contract, the husband may grant Ikhtiar to his wife to make
decisions regarding household matters or the upbringing of children. The provisions and requisites of
Ikhtiar may vary depending on the situation and the terms of the agreement. However, some common
elements include:
1. Clear expression of intent: The granting of Ikhtiar must be clearly expressed and understood
by all parties involved.
2. Specificity of scope: The scope of Ikhtiar should be clearly defined and limited to specific
matters or decisions.
3. Trust and confidence: The granting of Ikhtiar involves a level of trust and confidence in the
individual who is given the authority to make decisions.
4. Compliance with Islamic law: The decisions made under Ikhtiar must be in accordance with
Islamic law and principles.

An example of Ikhtiar in practice can be seen in a marriage contract where the husband grants Ikhtiar
to his wife to make decisions regarding the upbringing and education of their children. In this
situation, the wife has the authority to make decisions related to the children's education,
healthcare, and other matters, subject to the guidelines of Islamic law.

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Guardianship of minor under Muslim Law
Under Muslim Law, guardianship of minors is an important issue. It is the duty of the guardians to
take care of the minors' welfare, including their personal and financial affairs. The following are the
provisions and requisites of guardianship of minors under Muslim Law:
1. Types of Guardians: Muslim Law recognizes two types of guardians - natural guardians and
testamentary guardians.
a) Natural Guardians: According to Muslim Law, the father is the natural guardian of his
children. If the father is absent or incapable, the mother becomes the natural guardian. If
both parents are absent or incapable, the court will appoint a guardian.
b) Testamentary Guardians: The father and mother have the right to appoint a testamentary
guardian for their minor children. The guardian appointed in the will becomes the legal
guardian of the minor after the death of both parents.
2. Requisites of Guardianship: Under Muslim Law, the following are the requisites of
guardianship:
a) Religion: The guardian should be of the same religion as that of the minor.
b) Capacity: The guardian should be of sound mind and of legal age.
c) Character: The guardian should be of good character and of high moral standing.
d) Relationship: The guardian should be related to the minor in such a way that he or
she is entitled to inherit the minor's property under Muslim Law.
3. Duties and Functions of Guardians: The guardian has the following duties and functions:
a) Custody: The guardian is responsible for the custody and upbringing of the minor.
b) Maintenance: The guardian is responsible for the maintenance and education of the
minor.
c) Property: The guardian is responsible for the management and protection of the
minor's property.
d) Legal Proceedings: The guardian can take legal action on behalf of the minor.
4. Appointment of Guardian by the Court: If the father and mother are absent or incapable,
the court will appoint a guardian for the minor. The court will consider the welfare of the
minor while appointing a guardian. In the case of Shamim Ara v. State of Uttar Pradesh (2002),
the Supreme Court held that the father is the natural guardian of a minor. If the father is
dead or incapable, the mother becomes the natural guardian. If both parents are dead or
incapable, the court will appoint a guardian for the minor's welfare.

General Principles of Inheritance under Muslim Law

Under Muslim Law, inheritance is governed by the Shariah, which lays down the general principles of
inheritance. These principles are based on the Quran and the Sunnah and apply to all Muslims
regardless of their sects. The key principles of inheritance under Muslim Law are discussed below:
1. Definition of inheritance: Inheritance is the transfer of property from the deceased to
his/her heirs. The heirs are determined based on the rules of inheritance prescribed by the
Shariah.
2. Conditions of inheritance: There are two conditions for inheritance under Muslim Law.
Firstly, the property must be capable of inheritance, meaning that it must be owned by the
deceased at the time of death. Secondly, the heirs must be eligible for inheritance based on
the rules of inheritance prescribed by the Shariah.
3. Female rights in inheritance: Muslim Law provides for the equal distribution of the
deceased's property among his/her heirs, including female heirs. Female heirs have the right
to inherit under Muslim Law, and their share is determined based on the rules of inheritance.
The Quran lays down specific rules for the distribution of the property among the female
heirs, including daughters, wives, mothers, and sisters.
4. Rules of inheritance: The rules of inheritance under Muslim Law are based on the Quran and
the Sunnah. The Quran lays down specific shares for the different heirs, while the Sunnah
provides guidance on how the shares are to be distributed. The general principle of
inheritance is that the property is divided among the heirs according to their prescribed
shares. The shares are determined based on the relationship of the heir to the deceased and
the number of heirs.
5. Exclusion from inheritance: Slavery, Infidelity (conversion to another religion), homicide
and illegitimacy exclude any Muslim from inheritance rights.

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 6. Calculation of shares: The shares of the heirs are calculated based on a formula prescribed
by the Shariah. The formula takes into account the relationship of the heir to the deceased,
the number of heirs, and the nature of the property. The formula ensures that the distribution
of the property is fair and equitable.

Shia Law of Inheritance

Shia law of inheritance is based on the interpretation of Quran and the sayings and practices of the
Prophet Muhammad and his family. It differs from Sunni law in some aspects, particularly in the
classification of heirs and distribution of shares. The heirs in Shia law of inheritance are classified
into three main groups:

1. Ashabul Furudh (Primary Heirs): These are the heirs who are entitled to receive a fixed
share of the estate. They include:
 Husband or wife
 Children, grandchildren, great-grandchildren
 Father and mother
 Grandfather and grandmother (paternal side only)
 Full siblings and their children
 Half-siblings (same father but different mother) and their children
2. Ashabul 'Asaba (Residuaries): These are the heirs who are entitled to receive the remaining
portion of the estate after the primary heirs have received their shares. They include:
 Paternal uncles and aunts
 Maternal uncles and aunts
 Paternal and maternal cousins
 Full siblings of father and mother
3. Dhawul Arham (Uterine Relations): These are the heirs who are related to the deceased
through the mother only. They include:
 Maternal grandmother and grandfather
 Maternal uncle and aunt
 Maternal cousins

Rules of Succession: Shia law of inheritance follows the principle of 'awl, which means "preference".
This means that certain heirs are given priority over others based on their proximity to the deceased.
The order of preference is as follows:
1. Husband or wife
2. Children and their descendants
3. Father
4. Mother
5. Grandfather (paternal side only)
6. Full siblings and their children
7. Half-siblings and their children
8. Paternal uncles and aunts
9. Maternal uncles and aunts
10. Paternal and maternal cousins
11. Full siblings of father and mother
12. Maternal grandmother and grandfather
13. Maternal uncle and aunt
14. Maternal cousins

Distribution of Shares: The shares of the heirs in Shia law of inheritance are determined based on
the principle of "Ta'sib" which means "proportionate share". The proportionate shares of the heirs are
determined based on the following rules:
 The share of the primary heirs is fixed and determined by Islamic law.
 The residuaries are entitled to receive the remaining portion of the estate after the primary
heirs have received their fixed shares.

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  The shares of the residuaries are determined based on their proximity to the deceased.
 The uterine relations are entitled to receive a share of the estate only if there are no primary
or residuary heirs.

In case of the deceased leaving no primary, residuary, or uterine relations, the estate goes to the
state.

Sunni Law of Inheritance

Under Sunni Muslim Law, inheritance is governed by the Shariah, which lays down the general
principles of inheritance. These principles are based on the Quran and the Sunnah and apply to all
Sunni Muslims. The key principles of inheritance under Sunni Muslim Law are discussed below:

1. Definition of inheritance: Inheritance is the transfer of property from the deceased to

his/her heirs. The heirs are determined based on the rules of inheritance prescribed by the
Shariah.
2. Conditions of inheritance: There are two conditions for inheritance under Sunni Muslim Law.
Firstly, the property must be capable of inheritance, meaning that it must be owned by the
deceased at the time of death. Secondly, the heirs must be eligible for inheritance based on
the rules of inheritance prescribed by the Shariah.
3. Classes of heirs: Sunni Muslim Law recognizes four classes of heirs: sharers (asaba),
residuaries (dhawu al-furud), male agnates (dhawu al-qurba), and female agnates (dhawu al-
arham). The sharers are entitled to a fixed share of the estate, while the residuaries are
entitled to the remainder of the estate after the sharers have taken their share. The male
and female agnates are entitled to a share of the estate if there are no sharers or residuaries.
4. Sharers (asaba): Sharers are the closest male relatives of the deceased, and they are entitled
to a fixed share of the estate. The sharers are divided into three groups: first group (parents),
second group (children and their descendants), and third group (brothers and sisters and their
descendants).
5. Residuaries (dhawu al-furud): Residuaries are entitled to the remainder of the estate after
the sharers have taken their share. If there are no residuaries, the estate will be distributed
among the male and female agnates.
6. Male agnates (dhawu al-qurba): Male agnates are the male relatives of the deceased who
are related through the male line (father's side). They are entitled to a share of the estate if
there are no sharers or residuaries.
7. Female agnates (dhawu al-arham): Female agnates are the female relatives of the deceased
who are related through the male line (father's side). They are entitled to a share of the
estate if there are no sharers, residuaries, or male agnates.
8. Calculation of shares: The shares of the heirs are calculated based on a formula prescribed
by the Shariah. The formula takes into account the relationship of the heir to the deceased,
the number of heirs, and the nature of the property. The formula ensures that the distribution
of the property is fair and equitable.

Ashirwad Ceremony

In Hindu Law, the Ashirwad ceremony is also known as the Vara Satkar or the Kanyadaan ceremony,
which is a significant ritual performed during the Hindu wedding ceremony. The Ashirwad ceremony
is the act of blessing and handing over the bride to the groom's family by the bride's father or any
other male relative. It is a traditional practice in Hindu culture and signifies the acceptance and
approval of the groom's family of the bride as their daughter-in-law. The Ashirwad ceremony is an
important ritual and has several provisions under Hindu Law. Some of the provisions are as follows:

1. Consent of the bride and groom: The Ashirwad ceremony cannot be performed without the
consent of the bride and groom. They have the right to choose their life partner, and their
consent is essential for the ceremony to take place.

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 2. Role of the father or male relative: In the Ashirwad ceremony, the father or any other male
relative of the bride plays an important role. He blesses the couple and hands over the bride
to the groom's family. The father or male relative also performs other rituals during the
ceremony.
3. Importance of the ceremony: The Ashirwad ceremony is considered to be a very important
ritual in Hindu culture. It signifies the bond between the two families and is a way of seeking
blessings from the elders for the couple's future life together.
4. Legal status: The Ashirwad ceremony does not have any legal status under Hindu Law. It is a
traditional practice that is performed during the wedding ceremony.

Paternity Legitimacy, Parentage and Acknowledgment

In Indian Muhammadan Law, the concepts of paternity legitimacy, parentage, and valid
acknowledgment play a crucial role in establishing the legal status, rights, and responsibilities of a
child and their relationship with their father. Here are the details regarding these concepts and their
effects:
1. Paternity Legitimacy:
o A child born during a valid marriage is considered legitimate, and the husband is
presumed to be the father of the child. This presumption can be challenged by either
the husband or any other person claiming to be the biological father. Child born after
6 months of marriage or within 280 days of termination of marriage is legitimate.
Parents must have a valid or irregular marriage proof. There need not be an express
proof of acknowledgement, and mere acknowledgement is sufficient (indirect proof).
o The legitimacy of paternity provides certain legal rights and privileges to the child,
including inheritance rights, legitimacy status in society, and the right to bear the
father's name.
o To challenge the paternity presumption, a person must present clear and convincing
evidence that disproves the husband's biological relationship to the child. This
evidence can include scientific tests, such as DNA testing, or other relevant evidence.
2. Parentage:
o Parentage refers to the biological relationship between a child and their parents. In
cases where the parentage is disputed or needs to be established, the court may
order scientific tests, such as DNA testing, to determine the biological relationship
between the child and the alleged parents.
o The results of DNA tests are considered strong evidence in determining parentage,
and they play a crucial role in establishing the legal rights and obligations of the
biological father towards the child.
o The determination of parentage affects various legal aspects, including inheritance
rights, custody, maintenance, and other rights and obligations associated with the
parent-child relationship.
3. Valid Acknowledgment:
o Acknowledgment refers to the voluntary acceptance of paternity by the biological
father of a child born out of wedlock.
o An unmarried woman who gives birth to a child can provide an opportunity for the
biological father to acknowledge his paternity. The acknowledgment can be made
orally or in writing, and it establishes the legal relationship between the father and
the child.
o Conditions of a valid acknowledgment of paternity (not merely sponsorship) include
that the acknowledgement must be:
 In writing and signed by the biological father.
 Made voluntarily and without any coercion or duress.
 Made in the presence of a magistrate or any other authority authorized by
law.
 The biological mother must also sign the acknowledgment, and her signature
must be witnessed by the same authority who witnessed the father's
signature.
 Made within a reasonable time after the birth of the child.

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  The father must be of sound mind and must be over the age of majority.

o A valid acknowledgment can have several effects, including:

 Establishing the legal relationship between the father and the child, which
includes the right to maintain a relationship, inheritance rights, and other
legal privileges.
 Imposing financial obligations on the father, such as providing financial
support for the child's upbringing, education, and other necessary expenses.
 Granting the child certain rights and benefits associated with the father's
family, such as social status, succession rights, and access to family property.
 Enabling the child to claim their legitimate status within society and enjoy
legal and social recognition as the child of the acknowledged father.
 A valid acknowledgement is irrevocable.

There is nothing like an adoption in Muslim law.

Domicile of Origin
Domicile of origin refers to the domicile that an individual acquires at birth, which is the domicile of
their father or, in the case of an illegitimate child, the domicile of their mother. It is the domicile
that an individual is presumed to have until they establish a new domicile by choice. Under Indian
law, the concept of domicile of origin is relevant in several areas, including personal laws, taxation,
and eligibility for certain government schemes. The provisions for domicile of origin are as follows:

1. Birth: The domicile of origin is acquired at birth and is determined by the domicile of the
father or the mother in the case of an illegitimate child.
2. Presumption: The domicile of origin is presumed to continue until a new domicile is acquired
by choice or operation of law.
3. Burden of proof: The burden of proving a change of domicile lies on the person who claims
to have acquired a new domicile.
4. Acquisition of new domicile: A new domicile can be acquired by choice, by operation of law,
or by birth in a new domicile.
5. Choice: A new domicile can be acquired by choice by establishing a physical presence in a
new place with the intention of making it a permanent home.

Example: Mr. A was born in Delhi to parents who were domiciled in Delhi at the time of his birth. He
continued to reside in Delhi throughout his childhood and completed his education in Delhi. After
completing his education, he got a job in Mumbai and moved to Mumbai, where he rented an
apartment and started living. He also bought a house in Mumbai and registered it in his name. He
spends most of his time in Mumbai and has no intention of returning to Delhi. In this case, Mr. A has
acquired a new domicile of choice in Mumbai by establishing his permanent home there with the
intention of living there permanently.

Appointment of delegates under Parsi Marriage & Divorce Act

Under the Parsi Marriage and Divorce Act, 1936, the High Court can appoint a delegate to exercise
its jurisdiction for performing the functions and duties of the court. The delegate appointed by the
High Court has the same powers, jurisdiction, and authority as the court under the Act.

The provisions for the appointment of delegates are mentioned in Section 50 of the Parsi Marriage
and Divorce Act. According to this section, the High Court may appoint a delegate to perform the
functions and duties of the court under the Act. The delegate can be a person who is a member of
the Parsi community and who possesses the qualifications prescribed by the High Court. The delegate
appointed by the High Court has the power to hear and decide any matter that the court is authorized
to hear and decide under the Act. The delegate can also exercise any other power that the court can
exercise under the Act. The delegate is required to follow the same procedure as the court in hearing
and deciding a matter. The delegate appointed by the High Court can be removed from office by the
court if it is satisfied that the delegate has acted in a manner that is contrary to the provisions of
the Act or has been guilty of misconduct.

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An example of the appointment of a delegate under the Parsi Marriage and Divorce Act is the case of
Dorab Cawasji Mehta vs. Ratbai. In this case, the High Court of Bombay appointed a delegate to
decide the matter of divorce between the parties. The delegate was given the power to hear and
decide the matter and was required to follow the procedure prescribed by the court. The delegate
was also required to submit a report to the court on the matter. The delegate’s decision was subject
to appeal to the court.

Law of Inheritance for Parsis

The Parsi community in India has its own unique personal laws, including laws related to inheritance.
The law of inheritance for Parsis is governed by the Parsi Intestate Succession Act, 1865, and the
Parsi Wills Act, 1869. The following are the key principles of inheritance for Parsis:
1. Intestate Succession: When a Parsi dies without leaving a valid will, his or her property is
distributed among his or her heirs according to the rules of intestate succession.
2. Class I heirs: The first category of heirs are Class I heirs, which include the spouse, children,
and parents of the deceased. If the deceased has no Class I heirs, then the property passes
to Class II heirs.
3. Class II heirs: The second category of heirs are Class II heirs, which include brothers and
sisters of the deceased, as well as their children and grandchildren. If the deceased has no
Class II heirs, then the property passes to Class III heirs.
4. Class III heirs: The third category of heirs are Class III heirs, which include more distant
relatives of the deceased. If the deceased has no Class III heirs, then the property passes to
the executor of the deceased's will, or to the government if there is no executor.
5. Wills: A Parsi may make a valid will under the Parsi Wills Act, 1869, which allows for the
disposition of property after death. A will must be in writing, signed by the testator (the
person making the will), and attested by two or more witnesses. A Parsi may also make a
verbal will in exceptional circumstances, such as imminent danger of death.
6. Disinheriting heirs: A Parsi may disinherit an heir in his or her will, but only if there is a valid
reason for doing so, such as misconduct on the part of the heir. The disinherited heir may
challenge the will in court if he or she believes the disinheritance was unjust.
7. Female inheritance: Under Parsi law, women have the same rights of inheritance as men. A
female heir has the same right to inherit from her deceased relative as a male heir, and the
distribution of property is based on the same principles regardless of gender.

Under the Parsi Succession Act of 1865, if a Parsi person dies without leaving a will (i.e., intestate),
their property is distributed according to the rules of intestate succession. The rules of intestate
succession for Parsis in India are as follows:

 The spouse of the deceased Parsi is entitled to one-half of the estate.

 The other half of the estate is divided equally among the children of the deceased, or their
legal representatives if any of the children have predeceased the deceased Parsi.
 If the deceased Parsi has no spouse or children, the estate is distributed equally among their
parents.
 If the deceased Parsi has no spouse, children, or parents, the estate is distributed equally
among their brothers and sisters or their legal representatives if any of them have
predeceased the deceased Parsi.

Time & place of Christian Marriage

Under Indian Christian Law, the time and place of marriage are regulated by the Indian Christian
Marriage Act, 1872.

Time of Christian Marriage: As per the Act, Christian marriages can take place at any time of the
day, but they are usually held during the day time (6AM to 7PM). However, it is prohibited to
solemnize the marriage on Good Friday or Christmas day.

Place of Christian Marriage: The Act provides that Christian marriages can be solemnized in any
licensed place of worship, church, or chapel. The marriage can also be solemnized in the presence

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of a licensed Christian minister or priest. In addition, the marriage can also take place in the
residence of the bride or the groom, provided that it is licensed by the District Magistrate or
Commissioner of Police.

The Act also lays down provisions for the notice of intended marriage, registration of marriages, and
the duties and responsibilities of the persons solemnizing the marriage. It also provides for the
punishment of persons who solemnize marriages without proper authority or who violate any of the
provisions of the Act. It is important to note that under Indian Christian Law, marriage is considered
a sacrament and therefore, the parties to the marriage are required to be baptized Christians. If
either party is not a Christian, the marriage will not be recognized under the Act. In addition, the
Act also lays down provisions for the dissolution of Christian marriages through divorce or annulment.

Cumulative, Non-Cumulative & Conditional Bequests (attesting witness & executor)

Under the Indian Succession Act, 1925, a person is entitled to make a will for the disposition of their
property after their death. In a will, a person may make different types of bequests, including
cumulative, non-cumulative, and conditional bequests. The provisions related to these types of
bequests are as follows:
1. Cumulative Bequest: A cumulative bequest is a type of bequest where the testator makes a
series of gifts to the same person, and the gifts are accumulated until the time of distribution.
For example, if a person leaves Rs. 10,000 to his nephew every year for the next five years,
this is a cumulative bequest. The nephew will receive Rs. 50,000 at the end of five years. In
case of a cumulative bequest, the distribution is done after the last instalment.
2. Non-Cumulative Bequest: A non-cumulative bequest is a type of bequest where the testator
makes a series of gifts to the same person, but the gifts are not accumulated. For example,
if a person leaves Rs. 10,000 to his nephew every year for the next five years, but the nephew
only receives Rs. 10,000 each year, this is a non-cumulative bequest. In case of a non-
cumulative bequest, the distribution is done annually.
3. Conditional Bequest: A conditional bequest is a type of bequest where the testator imposes
a condition on the beneficiary before the beneficiary can receive the gift. For example, if a
person leaves Rs. 10,000 to his nephew, but only if the nephew gets married within a year of
the testator's death, this is a conditional bequest. In case of a conditional bequest, the
condition must be fulfilled before the beneficiary can receive the gift.
In addition to the types of bequests, the Indian Succession Act, 1925 also lays down the requirements
for the attesting witness and executor. An attesting witness is a person who witnesses the testator
sign the will, while an executor is a person appointed by the testator to carry out the directions in
the will after the testator's death. The requirements for an attesting witness are as follows:
1. The attesting witness must be present at the time of the testator's signature.
2. The attesting witness must attest the signature of the testator in the presence of the
testator.
3. The attesting witness must sign the will in the presence of the testator.
The requirements for an executor are as follows:
1. The executor must be of sound mind and capable of executing the will.
2. The executor must accept the appointment.
3. The executor must apply to the court for probate of the will.
If the will is not properly attested, it may be declared void. Similarly, if the executor does not follow
the directions in the will, they may be removed from their position. Therefore, it is important to
carefully consider the provisions related to attesting witnesses and executors while making a will.

A void bequest does not make a will void, but a void will make all its bequests void. Void bequests
include:

a. Bequest to an attesting witness

b. Uncertain bequests
c. Bequest to non-existing persons
d. Bequest to unborn person (at the time of testator’s death, unless it comprises the whole of
the remaining interest of testators)
e. Bequests infringing the rule against perpetuity (not exceeding 21 years for beneficiary
existence & claim)

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 f. Bequest with a direction of accumulation (income from testator property for the period
exceeding beyond 18 years from his death)
g. Bequest upon an impossible condition (marry someone, who by then is dead)
h. Bequest upon an illegal or immoral condition

Restitution of Conjugal rights under Divorce Act

Restitution of Conjugal Rights is a legal remedy provided under the Divorce Act, 1869 to the spouse
who has been deserted or whose partner has refused to cohabit without any lawful reason. It is an
attempt to reconcile the estranged couple and restore their matrimonial relationship. The following
are the provisions and requisites of Restitution of Conjugal Rights under the Divorce Act:
1. Meaning: The term "Restitution of Conjugal Rights" refers to the legal right of a spouse to
claim the resumption of marital cohabitation from the other spouse who has withdrawn from
it without any valid reason.
2. Who can file the petition: Only the aggrieved spouse can file a petition for Restitution of
Conjugal Rights under the Divorce Act.
3. Grounds for filing: The following grounds can be used to file for Restitution of Conjugal
Rights:
 Refusal to cohabit without any valid reason.
 Desertion by one spouse without any lawful reason.
4. Jurisdiction: The petition for Restitution of Conjugal Rights can be filed in the district court
where the respondent resides or works.
5. Procedure: The procedure for filing a petition for Restitution of Conjugal Rights is the same
as that for filing a petition for divorce under the Divorce Act. The petitioner needs to file a
petition stating the grounds and facts supporting the claim for Restitution of Conjugal Rights.
6. Court’s discretion: The court has the discretion to pass a decree for Restitution of Conjugal
Rights after examining the facts of the case. If the court is satisfied that there are reasonable
grounds for the aggrieved spouse's claim, it can pass an order for Restitution of Conjugal
Rights.
7. Failure to comply: If the respondent fails to comply with the court's order for Restitution of
Conjugal Rights, the court may initiate contempt proceedings against them.
8. Conclusion: Restitution of Conjugal Rights is an attempt to reconcile estranged couples and
restore their matrimonial relationship. It is a legal remedy that can be sought by an aggrieved
spouse when the other spouse has deserted them or refused to cohabit without any lawful
reason.

Legacies & ademption

In Indian Family law, legacies and ademption are governed by the Indian Succession Act, 1925, which
provides rules and guidelines for the distribution of assets upon a person's death. A legacy is a specific
gift of property or assets made by a testator in their will to a particular person or organization, which
is to be distributed after the testator's death. Legacies can be either general or specific. A general
legacy is a bequest of a certain amount of money or other assets that can be satisfied from the
general assets of the estate. A specific legacy, on the other hand, is a bequest of a particular asset
or property, which is to be transferred to the beneficiary upon the testator's death.

Ademption occurs when the specific asset that was bequeathed as a legacy is not available at the
time of the testator's death. Ademption can occur in several ways, such as when the testator sells or
disposes of the asset, or when the asset is destroyed or lost before the testator's death. In such cases,
the legacy is said to have failed or been adeemed, and the beneficiary is not entitled to receive the
asset. Under Indian law, the principle of ademption applies to both general and specific legacies. If
the specific asset that was bequeathed as a legacy is no longer available, the legacy fails, and the
beneficiary is not entitled to receive any compensation or replacement. However, there are certain
exceptions to the rule of ademption. For example, if the testator has sold the specific asset and
replaced it with a similar asset, the beneficiary may still be entitled to receive the replacement
asset. Similarly, if the testator has sold a part of the specific asset, the beneficiary may still be
entitled to receive the remaining part of the asset.

Requisites of Legacies:
In order for a legacy to be valid, there are certain requisites that must be fulfilled:
1. The testator must have the intention to bequeath the property or asset as a legacy.

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 2. The beneficiary must be clearly identified in the will.
3. The property or asset being bequeathed must be clearly identified in the will.
4. The bequest must be made in the form of a will.
5. The will must be properly executed and attested in accordance with the law.

Effects of Legacies: The effect of a legacy is to vest the property or asset in the beneficiary from
the date of the testator's death. This means that the beneficiary becomes the legal owner of the
property or asset, and is entitled to all the rights and privileges associated with it.

Example 1: A testator writes in his will that he bequeaths his house to his daughter. The
testator clearly identifies the property and the beneficiary, and the will is properly executed
and attested. The effect of this legacy is to vest the house in the daughter from the date of
the testator's death, and she becomes the legal owner of the house.

Example 2: A testator writes in his will that he bequeaths Rs. 1 lakh to his son. The testator
clearly identifies the amount and the beneficiary, and the will is properly executed and
attested. The effect of this legacy is to vest Rs. 1 lakh in the son from the date of the
testator's death, and he becomes the legal owner of the amount.

Under the Indian Succession Act, 1925, ademption occurs when a specific bequest made by a testator
in their will fails or is rendered impossible to fulfill because the property or asset no longer exists or
is not available at the time of the testator's death. In other words, ademption occurs when the
property or asset that was bequeathed is no longer in the estate at the time of the testator's death.

Requisites of Ademption: For ademption to occur, the following requisites must be fulfilled:
1. The testator must have made a specific bequest in their will.
2. The property or asset being bequeathed must no longer be in the estate at the time of the
testator's death.
3. The beneficiary must not receive any other property or asset in place of the bequest.

Effects of Ademption: The effect of ademption is that the beneficiary of the specific bequest will
not receive the property or asset that was bequeathed to them, as it is no longer available in the
estate. The bequest will fail, and the beneficiary will not receive any compensation or replacement,
unless the will specifies otherwise.
Example: A testator writes in their will that they bequeath their antique car to their
daughter. However, before the testator's death, they sell the car and purchase a new one
with the proceeds. The new car is not the same as the antique car and is not what the testator
intended to bequeath to their daughter. In this case, ademption occurs, and the daughter
will not receive the car as a bequest because the original asset no longer exists in the estate
at the time of the testator's death.

Vested interest is unconditional, confers a present right to present or future possession & enjoyment,
heritable & transferable and complete. Contingent interest is a possibility (contingent even may or
may not happen), uncertain, confer no present right, neither heritable nor transferrable and not
complete until specified event happens.

Guardianship under Muslim law

Under Muslim law, guardianship refers to the legal authority and responsibility of a person (guardian)
to take care of the personal and property matters of another person (ward) who is incapable of
managing their own affairs. The concept of guardianship is important in Muslim law as it ensures the
protection and welfare of minors, women, and other vulnerable individuals. There are different types
of guardianship under Muslim law, which are as follows:
1. Natural guardianship: This type of guardianship is determined by the biological relationship
between the guardian and the ward. The natural guardianship of a minor child is as follows:
 Father: The father is the natural guardian of his legitimate minor children. If the father
is dead, the guardianship passes on to the paternal grandfather, and then to the father's
brother.

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  Mother: The mother is the natural guardian of her minor children in the absence of the
father. If the mother dies, the guardianship passes on to the maternal grandmother, and
then to the mother's sister.
2. Testamentary guardianship: This type of guardianship is appointed only by the father or
grandfather of the minor child in their will. Mother has no authority. The appointment of a
testamentary guardian is subject to the approval of the court, which considers the best
interests of the child. Executor of will and guardian can be different persons.
3. Guardianship by appointment: This type of guardianship is appointed by a court of law in
cases where the natural or testamentary guardians are unable or unwilling to take care of
the ward. The court may appoint a guardian who is deemed fit and suitable to take care of
the ward's welfare and interests.
4. De facto guardianship: This type of guardianship arises when a person takes the responsibility
of taking care of the ward without any legal authority. In such cases, the person may be
recognized as the de facto guardian if it is deemed to be in the best interests of the ward.
He should neither be de-jure (by law) or appointed by court, but voluntarily accepts the
guardianship. He can alienate movable property of minor (for his interest), but not the
immovable property (unless court authorized).
In addition to the above types of guardianship, Muslim law also recognizes the concept of
"guardianship of property," which refers to the legal authority and responsibility of a person to
manage and administer the property and assets of another person who is incapable of managing their
own affairs. The guardian of property is appointed by a court of law and is responsible for the
safekeeping and proper management of the ward's property.

Under Muslim law, guardianship is a legal concept that provides for the protection and welfare of
minors, women, and other vulnerable individuals who are incapable of managing their own affairs.
In order to be appointed as a guardian under Muslim law, there are several prerequisites that must
be met. These prerequisites are as follows:
1. Muslim: In order to be appointed as a guardian under Muslim law, the person must be a
Muslim. Non-Muslims cannot be appointed as guardians.
2. Sound Mind: The person appointed as a guardian must be of sound mind and capable of
fulfilling their responsibilities towards the ward.
3. Majority: A person who is a minor cannot be appointed as a guardian. They must be of
majority age (18 years) to be eligible for appointment as a guardian.
4. Moral Character: The person appointed as a guardian must have a good moral character and
be of upright conduct.
5. No Adverse Interest: The person appointed as a guardian must not have any adverse interest
in the matter of guardianship. For example, a person who has a financial interest in the ward's
property cannot be appointed as a guardian.
6. Capacity to Manage Property: If the guardianship includes the management of property or
assets, the person appointed as a guardian must have the capacity to manage property and
be financially responsible.
7. No Disqualification: The person appointed as a guardian must not be disqualified under any
law or rule. For example, a person who has been convicted of a crime or has been declared
bankrupt cannot be appointed as a guardian.
8. Consent: The person appointed as a guardian must give their consent to the appointment.
The consent can be given orally or in writing.

Testamentary Succession under Indian Succession Act,1925

The Indian Succession Act, 1925 provides for the testamentary succession of property, which refers
to the transfer of property by way of a will. Here are the key provisions of testamentary succession
under the Indian Succession Act, 1925:

1. Who can make a Will: Any person who is of sound mind and has attained the age of majority
(18 years) can make a will. However, a person who is of unsound mind or is disqualified by
law cannot make a will.
2. What can be bequeathed: A person can bequeath any property or interest in property,
movable or immovable, including money, shares, bonds, and other investments. However, a
person cannot bequeath property that they do not own, property acquired by illegal means,
or property that is subject to a legal restriction.

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 3. Execution of Will: A will must be executed in writing and signed by the testator or by a
person on the testator's behalf, in the presence of two or more witnesses who have also
signed the will in the presence of the testator.
4. Registration of Will: Registration of a will is not mandatory but is recommended as it provides
proof of the authenticity of the will.
5. Revocation of Will: A will can be revoked or altered by the testator at any time during their
lifetime. Revocation can be done by destroying the will, making a new will or codicil, or by
making a written declaration.
6. Probate of Will: Probate is the legal process by which the will is proved in court and the
executor is authorized to administer the estate of the deceased. Probate is not mandatory
but is required in some cases, such as when the will is disputed, when the estate is large, or
when the property is situated in a foreign country.
7. Distribution of Property: The property is distributed according to the terms of the will. If
the will does not provide for the distribution of property, it is distributed according to the
rules of intestate succession.
One of the most famous cases related to testamentary succession under the Indian Succession Act,
1925 is the case of Raja Har Narain Singh v. Smt. Sajani Rai & Ors. (AIR 1962 SC 933). In this case,
the testator, Raja Har Narain Singh, had made a will bequeathing his entire estate to his wife, Sajani
Rai. After the death of the testator, the sons of his first wife filed a suit challenging the will on the
grounds of undue influence, coercion, and fraud. The trial court found in favour of the plaintiffs and
declared the will to be null and void. On appeal, the High Court confirmed the decision of the trial
court, but the matter was taken to the Supreme Court. The Supreme Court examined the evidence
presented by the parties and held that the will had been executed voluntarily by the testator and
there was no evidence of undue influence, coercion, or fraud. The court noted that the testator had
made the will after due deliberation and with the intention of benefiting his wife. The court further
held that the testator had the right to dispose of his property by way of a will, and that the courts
should respect the wishes of the testator, provided that the will is executed voluntarily and without
any coercion or fraud. The court also observed that the burden of proof lies on the party challenging
the validity of the will, and that the court should be cautious in interfering with the testator's right
to dispose of their property. This case is significant as it established the principles of testamentary
succession under the Indian Succession Act, 1925, and reaffirmed the importance of the testator's
intentions and freedom of choice in making a will.

Will, Its construction and interpretation

The Indian Succession Act, 1925 governs the law of wills in India. A will is a legal document in which
a person, known as the testator, sets out how they want their assets to be distributed after their
death. A will is an important tool for estate planning and can help to ensure that the testator's wishes
are carried out after their death. The following are the key features of a will under the Indian
Succession Act:
1. Definition: Section 2(h) of the Indian Succession Act defines a will as "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."
2. Capacity to Make a Will: According to Section 59 of the Indian Succession Act, any person
who is of sound mind, and who is not a minor or disqualified by law, can make a will.
3. Essential Requisites: Section 63 of the Indian Succession Act specifies the essential requisites
of a valid will. These include:
 The will must be in writing.
 The will must be signed by the testator or by some other person in their presence and by
their direction.
 The signature of the testator or the person signing on their behalf must be made or
acknowledged in the presence of at least two witnesses present at the same time.
 Each witness must sign the will in the presence of the testator, but not necessarily in the
presence of each other.
4. Revocation of Will: A will can be revoked by the testator at any time before their death by
destroying the original copy of the will with the intention of revoking it, or by making a
subsequent will that revokes the previous will.
5. Probate: A probate is a legal process in which a court verifies the validity of a will and grants
authority to the executor to carry out the testator's wishes. While probate is not mandatory
in all cases, it is advisable in cases where there is a dispute regarding the validity of the will
or the distribution of assets. It is a document issued under the deal of court, certifying the

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 original will as proven on a date with a certified will copy attached. Probate can be granted
ONLY to the executors of the will (not to minor, person with unsound mind), not before 7
days from the death of testator. Any renunciation by executor is irrevocable for future. Grant
of probate is a conclusive evidence of testamentary succession, genuineness of a will and all
representative titles (executor, beneficiaries etc).
6. Types of Wills: The Indian Succession Act recognizes three types of wills:
 Privileged Will: A privileged will is a will made by a soldier, a mariner, or an airman in
active military service or during their voyage at sea or in the air. A privileged will does
not require compliance with the formalities of a regular will.
 Unprivileged Will: An unprivileged will is a will made by a person who is not a soldier,
mariner, or airman. An unprivileged will must comply with the formalities specified under
the Indian Succession Act.
 Holograph Will: A holograph will is a will that is entirely handwritten and signed by the
testator. In India, holograph wills are not recognized under the Indian Succession Act,
and therefore, it is advisable to make a formal will.

The construction and interpretation of a will is an important aspect of estate planning, and the Indian
Succession Act provides guidelines on how to construe and interpret a will. The following are the key
provisions regarding the construction and interpretation of a will under the Indian Succession Act:
1. Language of the Will: A will can be written in any language, but the language used in the
will must be clear and unambiguous. If the language used is ambiguous or unclear, it may
result in confusion and disputes, and the court may have to interpret the will.
2. Intent of the Testator: The primary objective of interpreting a will is to ascertain the
testator's intent. The court will consider the language used in the will and the surrounding
circumstances to determine the testator's intent.
3. Natural and Ordinary Meaning: The words used in the will are to be given their natural and
ordinary meaning. If the words used have more than one meaning, the court will interpret
them in the context of the will and the surrounding circumstances to determine the meaning
that best reflects the testator's intent.
4. Extrinsic Evidence: The court may consider extrinsic evidence, such as the circumstances
surrounding the creation of the will, the relationship between the testator and the
beneficiaries, and any relevant facts that may assist in interpreting the will.
5. Residuary Clause: A residuary clause is a provision in a will that distributes any assets not
specifically mentioned in the will. The court will interpret the residuary clause to determine
the testator's intent with respect to the distribution of the residual assets.
6. Contra Proferentem Rule: The contra proferentem rule is a rule of interpretation that states
that if there is any ambiguity in the will, it should be construed against the person who
drafted the will. This means that if the language of the will is ambiguous, the court will
construe it against the person who drafted the will.
7. Mistakes and Errors: If there is an error or mistake in the will, the court may interpret the
will in a manner that corrects the mistake or error, provided that the intent of the testator
is clear.

Four kinds of will are void:

a. Will made by minor, lunatic (S59)

b. Will caused by fraud, coercion (S61). There is no provision for will made under
mistake.
c. Oral privileged will (S66(h)) if the testator lives for more than one month after making
this will
d. Uncertain will (S89) No definite intention of testator (ambiguous, vague, undefined)

Revocation of Will
Revocation of a will means cancelling or invalidating a previously made will. The Indian Succession
Act provides various ways in which a will can be revoked, which are as follows:
1. By making a subsequent will: A will can be revoked by making a subsequent will that expressly
revokes the earlier will. The subsequent will must be executed in the same manner as the
earlier will.

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 2. By physical destruction: A will can be revoked by physically destroying it with the intention
of revoking it. This can be done by tearing, burning, or otherwise destroying the will.
3. By an act of the testator: A will can be revoked by the testator by performing an act that
shows an intention to revoke the will. For example, if the testator writes "cancelled" or
"revoked" on the will or on a copy of the will, it would be considered an act of revocation.
4. By operation of law: A will can be revoked by operation of law in certain circumstances, such
as when the testator gets married after making the will. In such a case, the will is
automatically revoked unless it was made in contemplation of marriage.
It is important to note that partial revocation of a will is also possible under the Indian Succession
Act. This means that the testator can revoke only a part of the will without revoking the entire will.
The part that is revoked must be clearly identified. It is also important to note that revocation of a
will must be done with the intention of revoking it. If the act of revocation is not done with the
intention of revoking the will, it will not be considered a valid revocation.

Case law: Rani Purnima Debi v. Kumar Khagendra Narayan Deb (AIR 1962 SC 567)
Facts: In this case, the testatrix had executed a will in 1942, bequeathing certain properties to her
husband and son. In 1952, she executed a subsequent will, revoking the earlier will and bequeathing
the properties to her son alone. In 1954, she executed another will, revoking the previous two wills
and bequeathing the properties to her husband.
Issue: The issue in this case was whether the testatrix had validly revoked the earlier wills and
whether the last will was valid.
Decision: The court held that the testatrix had validly revoked the earlier wills. The subsequent wills
were executed in accordance with the law and expressly revoked the earlier wills. The court also
held that the last will was valid, as it was executed in accordance with the law and the testatrix had
the mental capacity to execute the will at the time.
Analysis: This case illustrates the concept of revocation of a will under the Indian Succession Act.
The testatrix had revoked the earlier wills by executing subsequent wills that expressly revoked the
earlier wills. The court upheld the validity of the last will, which had been executed in accordance
with the law and with the testatrix's mental capacity. It is important to note that the revocation of
a will must be done properly and with the intention of revoking the will. In this case, the testatrix
had executed subsequent wills that expressly revoked the earlier wills. This is one of the ways in
which a will can be revoked under the Indian Succession Act.

Residuary Lagatee
According to the Indian Succession Act, 1925, a residuary legatee is a person who is entitled to receive
the residue of the surplus property after all the legacies & bequests have been fulfilled (S102). A
residuary legatee is entitled to all property belonging to the testator at the time of his death, of
which he has not made any other testamentary disposition which is capable of taking effect (including
lapsed legacies), unless testator has sufficiently expressed that such property/legacy is NOT to fall
into the residue & will go to the residuary legatee. In other words, if a testator has not made a
specific bequest of some property or assets, then those assets will pass on to the residuary legatee.
The provisions for residuary legatee are covered under Section 111 of the Indian Succession Act,
which provides that if the testator has not disposed of the whole of his property, then the residue of
the property shall be disposed of according to the provisions made for the testator’s property of the
like nature. If there is no such provision made, then the residue shall be distributed among the
testator’s legal heirs, according to the rules of intestate succession. In case there are no legal heirs,
the residue shall be escheated to the government. The provisions for residuary legatee ensure that
the testator’s entire estate is distributed properly (unintentionally or by mistake), even if the testator
has not specified the distribution of certain assets or property in his will.

For example, if a testator leaves his property to his wife and children in equal shares, but does not
specify the distribution of his car, then the car will go to the residuary legatee. If the testator has
not named a residuary legatee, then the car will be distributed among the legal heirs according to
the rules of intestate succession.

Doctrine of Lapse require legatee to survive the testator. Law does not require existence of legatee
on the date of will, but require existence when the testator dies. Else such lapsed property falls into
residue. However, legacy will not lapse if one of the joint legatees survive, lineal descendant

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survives, beneficiary is appointed by legatee, surviving class of persons as legatees (like all children),
and charitable intention of bequest.

Bequest to Unborn Person or Non- Existing Person

In India, bequests to unborn persons or non-existing persons are governed by Section 113 of the Indian
Succession Act, 1925. According to this section, a bequest may be made to a person who is not in
existence at the time of making the will, but who would come into existence at the time of the
testator's death, such as an unborn child.

Similarly, a bequest may also be made to a person who is not in existence at the time of making the
will and who would never come into existence, such as a fictional character or an imaginary person.
However, in order for such a bequest to be valid, certain conditions must be met:
1. The bequest must be made to a definite person or persons, or to a class of persons.
2. The person or persons must be sufficiently described in the will, so as to be capable of
identification.
3. The person or persons must come into existence at the time of the testator's death, or within
the period of the rule against perpetuity, which is generally 21 years from the date of the
testator's death.
4. The bequest must not be contrary to any rule of law or public policy.
If these conditions are met, the bequest to an unborn or non-existing person will be valid and
enforceable. However, if the conditions are not met, the bequest may be deemed invalid, and the
property or assets will be distributed according to the other provisions of the will or as per the
applicable laws of inheritance.

Rule against Perpetuity

The Rule against Perpetuity is a common law principle that limits the period of time during which a
property interest can be tied up in a trust or other arrangement. In India, the Rule against Perpetuity
is codified in Section 14 of the Transfer of Property Act, 1882, and applies to testamentary succession
as well.

The Rule against Perpetuity provides that no interest in property is valid unless it must vest, if at all,
not later than the expiration of a period of 21 years from the date of the death of a person who was
alive at the time the interest was created. In other words, the interest in property must vest in a
person within 21 years after the death of the testator, or within a life or lives in being at the time of
the testator's death, plus 21 years. If the interest in property is not certain to vest within this period,
it will be deemed void.

For example, if a testator creates a trust for the benefit of his grandchildren and their descendants,
and the trust provides that the property will be held in trust for 50 years from the date of the
testator's death, the trust violates the Rule against Perpetuity because the interest in property is not
certain to vest within the permissible period of 21 years from the testator's death.

However, there are certain exceptions to the Rule against Perpetuity. The Rule does not apply to
interests created in the government, charitable trusts, or a contingent remainder or executory
interest in property. The Indian courts have also held that the Rule against Perpetuity is a rule of
construction, and not a rule of substantive law, and therefore, the Rule can be waived or modified
by the parties concerned.

In Indian testamentary succession, the Rule against Perpetuity applies to bequests made in a will,
and any bequest that violates the Rule will be deemed void. Therefore, it is important for a testator
to ensure that any bequest made in a will complies with the Rule against Perpetuity, to avoid any
potential legal challenges to the bequest.

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Onerous Gifts, Conditional Gifts
In Indian testamentary succession, there are rules governing the validity of onerous gifts and
conditional gifts. These rules are based on the provisions of the Indian Succession Act, 1925, and the
Transfer of Property Act, 1882.

Onerous Gifts: An onerous gift is a gift made by a testator that comes with a burden or obligation
attached to it. For example, if a testator leaves a property to a person, but with the condition that
the person must pay off the outstanding mortgage on the property, it is an onerous gift. Under Indian
law, an onerous gift is valid, provided that the beneficiary of the gift accepts the burden or obligation
attached to it. If the beneficiary refuses to accept the burden or obligation, the gift will be deemed
invalid, and the property will be distributed according to the other provisions of the will or as per
the applicable laws of inheritance.

Conditional Gifts: A conditional gift is a gift made by a testator that is subject to certain conditions
or contingencies. For example, if a testator leaves a property to a person, but with the condition
that the person must marry within a certain period of time, it is a conditional gift. Under Indian law,
a conditional gift is valid, provided that the condition is not illegal, impossible or vague. If the
condition is illegal or impossible to fulfill, the gift will be deemed void. If the condition is vague or
uncertain, the court may interpret it to determine its validity. In case the condition is fulfilled, the
gift will become absolute and the beneficiary will be entitled to the property. If the condition is not
fulfilled, the gift will fail and the property will be distributed according to the other provisions of
the will or as per the applicable laws of inheritance. It is important to note that a testator cannot
impose conditions that are against public policy or morality. For example, a condition that requires
a beneficiary to commit a crime or engage in immoral behavior would be deemed void.

Kinds of Legacies
In Indian testamentary succession, a legacy is a gift of personal property made by a testator in a will.
A legacy can take different forms depending on the nature of the gift and the conditions attached to
it. The Indian Succession Act, 1925, and the Transfer of Property Act, 1882, provide for different
kinds of legacies. The following are the different kinds of legacies in Indian testamentary succession:
1. General legacy: A general legacy is a gift of a specific sum of money or a particular item of
personal property, such as a car or jewellery. The beneficiary of a general legacy is entitled
to receive the specific amount or item of property from the estate of the testator, regardless
of whether the estate has sufficient funds to pay all other debts and liabilities.
2. Specific legacy: A specific legacy is a gift of a particular item of personal property, such as
a painting or a piece of furniture. The beneficiary of a specific legacy is entitled to receive
the specific item of property from the estate of the testator, provided that the property is
in the possession of the testator at the time of his or her death.
3. Residuary legacy: A residuary legacy is a gift of the residue of the estate, after all debts,
liabilities, and other legacies have been paid. The beneficiary of a residuary legacy is entitled
to receive the remaining property of the estate that has not been distributed to other
beneficiaries.
4. Demonstrative legacy: A demonstrative legacy is a gift of a specific sum of money or
property, which is to be paid out of a particular source or fund, such as a bank account or an
insurance policy. The beneficiary of a demonstrative legacy is entitled to receive the specific
sum of money or property from the identified source or fund.
5. Vested legacy: A vested legacy is a gift of property that is immediately effective and certain,
and which gives the beneficiary an absolute right to the property. The beneficiary of a vested
legacy is entitled to receive the property immediately upon the death of the testator, subject
to any conditions or restrictions imposed by the testator.
6. Contingent legacy: A contingent legacy is a gift of property that is subject to a condition or
contingency that must be fulfilled before the beneficiary can receive the property. For
example, a testator may leave a contingent legacy to a grandchild, subject to the condition
that the grandchild must attain a certain age before receiving the gift.

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Residuary Legatees, Lapsing of Legacies
In Indian testamentary succession, a residuary legatee is a person who receives the residue of the
testator's estate after all the debts, liabilities, and other legacies have been satisfied. A residuary
legacy is created by the testator in his or her will, and the residuary legatee is entitled to all the
property that is not specifically gifted to other beneficiaries in the will.

For example, suppose a testator has three children and decides to leave a specific legacy of Rs. 10
lakhs to each of them, but the total value of his estate is Rs. 50 lakhs. In this case, the testator can
create a residuary legacy of Rs. 20 lakh and designate a residuary legatee to receive it. The residuary
legatee will receive the remaining Rs. 20 lakhs after the specific legacies of Rs. 30 lakhs have been
distributed to the three children.

It is important to note that if a specific legacy fails, it may lapse and become part of the residuary
estate. This happens when the beneficiary predeceases the testator or is otherwise unable to receive
the gift. In such cases, the specific legacy lapses and becomes part of the residuary estate, which is
then distributed to the residuary legatee.

For example, suppose a testator leaves a specific legacy of a painting to his brother. However, the
brother dies before the testator, and the testator does not change his will before his death. In this
case, the specific legacy of the painting will lapse, and the painting will become part of the residuary
estate, which will be distributed to the residuary legatee designated by the testator.

Intestate Succession Estate Distribution

The actual provision for estate distribution percentages in intestate succession acts of Hindu in India
are as follows:

1. Class I heirs: The property of a Hindu male dying intestate is distributed equally among his
Class I legal heirs, which includes his widow, sons, daughters, and mother. If the deceased is
a female, her property passes on to her Class I legal heirs, which includes her husband, sons,
daughters, and mother.
2. Class II heirs: If there are no Class I heirs, the property goes to Class II heirs, which include
the father, brothers, sisters, and their children. If there are no Class II heirs, the property
goes to agnates (related through males) and then to cognates (related through females).
3. Distribution among heirs: Each class of heirs is entitled to an equal share in the property. If
there are multiple heirs in a class, they share the property equally among themselves.
4. Predeceased heirs: If any Class I or Class II heir has predeceased the deceased, their share
in the property goes to their legal heirs.
5. No heirs: If the deceased has no legal heirs, the property goes to the government.
The actual estate distribution percentages provisions for intestate succession acts of Muslims in India
are based on Islamic law, which is governed by the Muslim Personal Law (Shariat) Application Act,
1937. The distribution of property under Muslim law is based on the concept of 'residuaries' which
means that after the shares of specific heirs have been distributed, the remaining property is
distributed among the residuaries. The estate distribution percentages provisions for intestate
succession acts of Muslims in India are as follows:
1. Share of the widow/husband: The widow/husband is entitled to one-fourth of the deceased's
property if the deceased has left behind children. If there are no children, the
widow/husband is entitled to one-half of the property.
2. Share of the children: The sons get double the share of the daughters. If there are no sons,
daughters are entitled to the property.
3. Share of the parents: If the deceased has no children, the property is divided equally between
the mother and father.
4. Share of other relatives: If there are no heirs in the above categories, the property is
distributed among other relatives according to the rules of the Shariah.
5. No heirs: If the deceased has no heirs, the property goes to the government.

The actual estate distribution percentages provisions for intestate succession acts of Christians in
India are governed by the Indian Succession Act, 1925. Under the Indian Succession Act, the
distribution of property is based on the concept of 'heirs' which includes both lineal and collateral

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heirs. The estate distribution percentages provisions for intestate succession acts of Christians in
India are as follows:
1. Share of the spouse: The spouse is entitled to one-third of the deceased's property if the
deceased has left behind children. If there are no children, the spouse is entitled to one-half
of the property.
2. Share of the children: The children are entitled to the remaining two-thirds of the property,
which is divided equally among them.
3. Share of other relatives: If there are no heirs in the above categories, the property is
distributed among other relatives according to the rules of the Indian Succession Act.
4. No heirs: If the deceased has no legal heirs, the property goes to the government.

The actual estate distribution percentages provisions for intestate succession acts of Parsis in India
are governed by the Indian Succession Act, 1925. However, there are certain specific provisions for
Parsis under the Parsi Intestate Succession Act, 1865. The distribution of property is based on the
concept of 'heirs' which includes both lineal and collateral heirs. The estate distribution percentages
provisions for intestate succession acts of Parsis in India are as follows:
1. Share of the spouse: The spouse is entitled to one-half of the deceased's property.
2. Share of the children: The children are entitled to the remaining one-half of the property,
which is divided equally among them.
3. Share of other relatives: If there are no heirs in the above categories, the property is
distributed among other relatives according to the rules of the Indian Succession Act.
4. No heirs: If the deceased has no legal heirs, the property goes to the government.

Disclaimer

The information contained in this document is provided for informational purposes only and should
not be relied upon as legal, business, or any other advice. The author makes no representations or
warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability
or availability with respect to the document or the information, acts, statutes, or related information
outcome contained in the document for any purpose. Any reliance you place on such information is
therefore strictly at your own risk.

In no event will the author be liable for any loss or damage including without limitation, indirect or
consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits
arising out of, or in connection with, the use of this document.

The author (Hemant Patil, GLC Mumbai Batch of 2025, [email protected]) reserves the right to
modify, add, or delete any information in this document at any time without prior notice. For
obtaining a recent & updated copy of this document, you can send the request with your clear &
accurate identification (Full Name, Contact, Institution etc).

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