MUSLIM LAW

Notes for Competitive Exams

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 Sources and school of Muslim law

Family law is a set of laws which are framed in relation to matters such as marriage,
divorce inheritance, succession, adoption, minority and guardianship. the laws
relating to such matters in India are governed through different types of personal law
namely, Hindu law[ regulating all Hindus including Jain, Buddhist and Sikhs] Muslim
law, Christian law, Parsi law and a special law comprising of special Marriage Act.

Who is a Muslim?
Muslim is a person whose faith is in Islam. Islam means submission to the will of God.
In Islam it is believed that Allah is one and Muhammad is his messenger.
Thus it can be said that a person who believes in one God and the prophet hood of
Muhammad is a Muslim.

The Shariat Act 1937

Application of Muslim personal law is regulated by the Shariat Act 1937
Section 2 of the act provides that in case of both the parties are Muslim; the rule for
decision shall be Muslim personal law if the case involves any of the following matters
a) intestate succession
b) special property of females
c) Marriage
d) dissolution of marriage
e) Maintenance
f) Dower
g) Guardianship
h) Gift
i) trust and trust properties
j) Wakf

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History

✓ Muslim law is divine law as opposed to manmade law which is passed by

legislatures.
✓ Muslims believe in ones of god unlike Hindus which believe in plurality of gods.
✓ Muslims believe that Mohammed was the last prophet sent by god (Allah) and
Quran is the only revealed book of Allah.
✓ Prophet Mohammed
✓ Born in 571 A.D., father died at Medina before Mohammed’s birth.
✓ Raised by his mother till the age of 6, after his mother died his grandfather
Abdual Muttalib took care of him.
✓ Prophet at the age of 35 married Kadija and had six children. (2 sons and
daughters), the sons died during infancy.
✓ One of Prophet daughter (Fatima) married Ali (prophets’ cousin)
✓ At age 40 when the Prophet Mohammed was meditating in a cave called ‘Hira’
he received his first revelation (Wahi) or we can call it ‘message of god’.
✓ First of his followers who believed him were Kadija, Waraqa (a blind scholar)
and his father in law Abu-Bakr followed by Umar (2nd caliph) and Usman (3rd
caliph)
✓ He also faced opposition; Abu lahab (uncle of prophet and son of Abdul
Muttalib) persecuted him and humiliated him. He was abused and dragged by
his hair from the temple of Mecca.
✓ Later the Prophet with his followers fled to Medina in 622Ad. This marked the
start of a new era called ‘Hijrah’ (migration) because at medina the prophet the
prophet formed a political group called ‘Unna’
✓ Later after a war between the supporters of Mohammed and the opposers,
Mohammed emerged triumphant and finally became the ruler for state which
grew to be the empire of Abrbia in ten years and gradually many tribes joined
his empire.
✓ He died at the age of 63 till then he remained the supreme ruler of the huge
empire of Arabia.
• After Prophet Mohammed (Shia vs. Sunni)
✓ After the death of Prophet Mohammed the question as to who would be the new
successor as the ruler of Arabia arose.

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✓ Prophet did not leave an heir and the closes to him at that time was Ali, his son
in law, friend and cousin.
✓ Two groups were formed which were formed which were on political basis
rather than religious bais.

✓ Group one wanted Ali to be the successor – Shias

✓ Group two wanted an election – Sunnis

✓ Sunnis held the election and Abu Bakr (father in law of prophet, father of
Kadija) was elected as their leader and became the 1st Caliph.
✓ (caliph is the chief Muslim religious and civil ruler who is considered as the
successor of Mohammed)
✓ All swore allegiance to Abu Bakr, but Abu Bakr was assassinated in 2 years after
hi election.
✓ Umar became the 2nd caliph (ruled for 10 years the he was also assassinated)
✓ Usman became the 3rd caliph (ruled for 12 years and then Assassinated)
✓ Ali finally elected as the 4th caliph (ruled for 5 years and he was also
murdered in a battle in 661 A.D)
✓ This bloodshed over all the years led to more differences between shias and
sunnis.
✓ After Alli, his elder son Hasna became the 5TH caliph but later resigned in favor
of Mouvia (leader chosen by Sunnis) but even after resigning he was
assassinated.
✓ After Hasan was murdered Ali’s younger son Hussain was regarded by the
Shias as their religious leader (not political just religious)
✓ But Hussain was also murdered by the forces of Yazid (Son of Mouvia)
✓ By this time the differences between Shias and Sunnis became very wide and
almost irreparable.
✓ Muharram is observed to remember the death of Hussain in the battle of
Karbala in 680 A.D.
✓ After that the power was held in the hands of Sunnis, Mouvia introduced
hereditary succession rule and founded the Umayyad Dynasty and the religious
kingdom became a Dynastic rule.

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 ✓ Later after many caliphs and change of dynasties the caliphate was finally
abolished in 1924 by the National Assembly of Ankara (Angola)

Sources of Muslim law

SOURCES OF
MUSLIM LAW

Primary sources Secondary sources

Sunnah
Quran or Ijma Qiyas
Hadith

Justice,
Customs Judicial equity and
Legislations
(Urf) precedents good
conscience

Formal Sources (primary)

1. The Quran (Koran)

• Derived from the Arabic word ‘Quarra’ which means ‘to read’
• The Qur'an is the first and most important source of Islamic law. Believed to
be the direct word of God as revealed to Muhammad through angel Gabriel in
form of messages (wahi) over 23 years in Mecca and Medina, the scripture

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 specifies the moral, philosophical, social, political and economic basis on
which a society should be constructed.
• Quran is basis of Muslim law, around 6000 verses out of which 200 deal with
legal principles such as marriage, matrimonial remedies, maintenance,
acknowledgement of paternity, transfer of property, gifts, wills, inheritance
etc.

2. The Sunnah (Sunnat and hadis)-

• Meaning ‘sunnah’ means practice ,‘hadis’ means utterance
• Second source of Muslim law and are supplementary to Quran.

• The term sunnah literally means some kind of practice, precedent or path of
action. In Muslim law means the deeds and practices of Prophet. But sunnah
not only includes the traditions of the Prophet, but also of his companions,
Successors etc. Hadis are the utterances, occurrences or sayings of Prophet
✓ whatever the prophet said in words- ‘Sunnat-ul-qaul’
✓ whatever he did-‘Sunnat-ul-fail’
✓ Whatever he allowed to be done without actually saying it (tacitly)- ‘Sunnat-
ul-tuqrir’

3. Ijmaa [ unanimous thinking]

• It means consensus or opinion of jurists (Mujtahids) on any point of law in

absence of any rule laid down in Quran or Sunnah.

• The literary meaning of ijma is unanimous thinking of agreement among the

followers of disciples of prophets in a particular age or on a particular question
of law, religion and personal matters. Therefore whatever was considered good
for the entire society and the community was laid down as principles and Ijma
includes the principle of Living that has been unanimously accepted by the
entire society.
• This source has been validated by both the Quran and the prophet (Via sunnat)

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4. Qiyas (reasoning) (shias don’t recognize it)
• It is called analogical deductions. If there is any problem on which Quran,
Sunnah or Ijma are silent then the analogical deductions are applied to
ascertain the law
• It is Collection of rules and principles deductible by the methods of analogy
and interpretation from the Quran Sunnat and Ijmaa. Shias believe that if the
scope of law has to be widened it should be only done by imam and no one else.

Informal Sources (Secondary)

5. Customs and usages having force of law. –

• Custom was never formally recognized as a source of law by Muslim jurist but
occasionally referred as a supplementary law. Muslim law includes many rules
of Pre Islamic customary law. Customs do not command any spiritual authority
like Ijma. Custom hold the same rank as in absence of Expressed text.

6. Judicial Decision-
• The Muslim law has been supplemented on many points by judicial decisions.
on some points of judicial decisions have modified the pure Muslim law for
example under the pure Muslim law no interest was allowed on a Dower but in
Hamira Bibi Vs Zubaida Bibi, the privy Council allowed interest on Dower

7. Legislation
• Though most of Muslim law is not codified but some of it is codified like. Shariat
Act, 1937 Dissolution of Muslim marriage act, 1939 etc. The Muslim Women
(Protection of Rights on Divorce) ACT, 1985

8. Justice Equity and good conscience.

• Under Muslim law principle of justice equity and good conscience can also be
regarded as one of the source. Abu Hanifa, the founder of the Hanifi sect,
expounded the principle that rule of law based on analogy could be set aside at
the option of the judge on the liberal construction. whenever there is a conflict
of opinion and there is no specific role to guide the court, the court follows that
opinion which is more in accordance with justice, equity and good conscience

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 SCHOOLS OF MUSLIM LAW

Two Major Schools – Sunni and Shia sects

• Main difference – Shias reject all traditions or words of any jurists which were
handed down by anyone other than Ali (Successor of prophet), therefore they are
called Shia –t –i- Ali or ‘Fraction of Ali’
• Sunnis consider the traditions and also Decisions of the lmams and the general
body of knowledge given by jurists which supplement the rules of the quran.
• The division between the Sunni and Shia sects happened due to dispute
concerning the question of succession after the death of Prophet.
• Sunni sect: This sect advocated for method of election for determining the
successor of Prophet This view was advocated by Ayesha Begum, the youngest
wife of Prophet.
• Elections were held and Abu Bakr was elected. He became the first Caliph.
• Shia sect: Minority believed that elections are not the suitable method and it
emphasized on the spiritual leadership of Prophet. They argued that quality
comes from nobility of blood and hence principle of succession should be adopted
rather than principle of election.
• This view was advocated by Fatima, the daughter of Prophet. Consequently Ali
was appointed as first Imam.
• Motazila sect: They are defectors from Shia sect. However, they do not
associate themselves with any of the above two sects. It emerged in 9th Century
A.D. as was established by Ata-al-Ghazzal.
• This division later resulted in separation of legal principles as well.

Two major Schools of Shia

• Ithana Asharia [two sects- Akhbari and Usuli]

• Ismaili [khojas and bhoras]
• Zyadis school

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Four Major School of Sunnis:

• Hanafi [Founder- Imam Abu Hanifa]

• Shafei [Founder- Ash Shaefi]
• Maliki [Founder- Imam Malik-Ibn-Anas]
• Hanbali [Founder- Ibn Hanbal]

Schools of
Muslim Law

Sunni Schools Shia School

The Hanafi School The Ithna Asharia School or

[founder- Imam Abu Imamia School [Divided
Hanifa] into two sub-sects Akhbari
and Usuli
The Maliki School
[founder- Imam
Malik-ibn-Anas] The Ismailia School [They
consists of two major groups
The Shafei School Khojas and Bobrus]
[founder- Ash
Shafei]

The Hanabali School

[founder- Ibn The Zyadis School
Hanbal]

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 Marriage (Nikah) under Muslim Law

Nature of Muslim marriage

• Under Muslim law marriage is a civil contract for legalization of intercourse and
for legitimization of children.
• Justice Mahmood said that Muslim Marriage is not a sacrament but purely
civil contract.
• Abdul Raheem has termed marriage in the nature of ‘Ibadat’ [devotional
act] and ‘muamlat ‘[dealings among men].
• As far as the social aspect of marriage is concerned Nikah is a well-established
social institution which confers a dignified status upon a woman
• Marriage is also considered a religious duty. It is the sunnah of the Prophet.
According to Prophet Muhammad ‘marriage is my sunna’. “Who so ever keep
away from it is not from me”.

Object of marriage

Object of marriage is twofold

1. Legalization of sexual relationship between husband and wife; and
2. Legalization of generations [children]
• Because marriage is considered a contract there are no ceremonies as such for
marriage in Muslim law, only the conditions for a valid contract of marriage
have to be fulfilled.

Essentials of valid marriage

a) The parties must have capacity to contract marriage

b) Consent of the parties or their guardian must be free
c) There should be a proposal & There should acceptance of proposal
d) There should be no prohibitions/impediments to the marriage.
e) Consideration

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1. Capacity to Contract marriage
• Any Muslim with sound mind who has attained the age of puberty has a
capacity to marry. Persons who are not of sound mind or who have not attained
puberty can be married by their guardians. [Jabr]

• Age of puberty- Privy council in Atika Begum versus Mohammed

Ibrahim, laid down that a girl become major on happening of either of the two
events:-
1. completion of 15th year or,
2. attainment of puberty at an early period
• This requirement may be applied to boys also.

2. Consent of the parties

• Consent of the parties to the marriage must be free. It was e vitiated by force,
fraud or any compulsion.
• If the parties are sane and adult then their own consent is required. if the parties
are minor then the consent of the guardian is required.[Jabr]
• If the consent is obtained by compulsion the marriage is void under all schools of
Muslim law except Hanafi School. In Hanafi school such marriage is valid.

3. Proposal and Acceptance

• The proposal (ijab) and Acceptance (qubul) should be there for a valid Muslim
nikah.
• Offer and acceptance must be in oral or writing.
• Proposal and acceptance should be expressed in one meeting.
• Proposal and acceptance should be without ambiguities and should be made by
the parties themselves or by other on their behalf.
• An assurance to marry in future does not constitute a proposal.
• There should be two male witnesses/one male and two female
witnesses- In Shia law a presence of witness is not required. A marriage
without a witness is also valid. In Sunni Law a marriage without a witness is
irregular [fasid].
• Void, Voidable and Irregular marriage

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4. There should be no prohibitions/impediments to the marriage
• In Muslim law: A valid marriage is ‘sahih’, A Void marriage is ‘batil’, An Irregular
marriage is ‘Fasid’
• Absolute impediments [Batil Marriage- A void marriage]
• Following are the impediments to marriage which will render the marriage as
void. (Batil), they create what we call Absolute Incapacity or Prohibition.
1. Polyandry
• A married woman cannot contract another marriage while her husband is alive
and the marriage is subsisting. Such marriage is void.
2. Consanguinity: [ with in family]
• The bar of consanguinity renders a marriage void. The following are the
prohibited relationships of consanguinity, viz., a man cannot marry his:
a. Ascendants, e. G., mother or grandmother, how high so ever;
b. Descendants, e.g., daughter or grand-daughter, how low so ever;
c. His sister, whether full, consanguine or uterine;
d. His niece or great niece, how low so ever;
e. His aunt or great aunt, how high so ever, whether paternal or maternal.
3. Affinity: [relationship by marriage]
• Marriage is also prohibited on ground of affinity. Thus, a man cannot marry:
a. His wife’s mother, or grandmother, grandmother, how high so ever;
b. His wife’s daughter or grand-daughter, how low so ever, if his marriage with his
wife is consummated.
c. His father’s wife or any other ascendant’s wife; and
d. His sons or any other lineal descendant’s wife.

4. Fosterage
• Fosterage means when a woman other than its own mother has suckled a child
under the age of two years, the woman becomes the foster-mother of the child. A
man may not, for instance, marry his foster-mother or her daughter, or his foster
sister.

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Relative impediments [Fasid Marriage]

• In Muslim law irregular marriage is because of lack of some formality, or the

existence of some impediment which can be made good. Meaning that the
irregularity can be removed and the marriage can be made sahih. A fasid
marriage is a marriage i.e. With the process of removing irregularity, all of these
conditions create Relative incapacity to marry which render the marriage invalid
only so long as the cause which creates the bar exist.

• Shia law does not recognize irregular marriage; the marriage in presence of these
prohibitions under Shia law is either valid or void.
1. Unlawful conjunction: - Muslim is prohibited to have to wife at the time if
these two wife’s are related to each other by consanguinity, affinity or fosterage.
Is that if they had been of different sexes, they could not have inter married.
• Solution - (by divorcing the wife who is the obstacle)

2. Marriage with fifth wife: - Muslim can marry lawfully with four weeks at a
time. He is prohibited to marry the fifth wife. Marriage with fifth wife is irregular
in Sunni law and void in Shia law
• Solution - (by divorcing one of the 4 wives)
1. Marriage with a non Muslim: a Muslim male can contact a marriage with a
kitabiya female but cannot marry a non Muslim for a non Kitabiya female.
Marriage against this provision is irregular in Sunni law. Marriage With a non
Muslim is void under Shia law
• Solution - (conversion of religion, women can adopt Islam, Christianity or Jewish
religion but man has to adopt Islam)

Inter religious marriage may be summarized as follows

Muslim male [of any sect] and Muslim female [of any sect] valid marriage
Sunni male and kitabiya female valid
marriage
Sunni male and non Muslim and non kitabia female irregular
marriage
Shia male non Muslim female void marriage
Muslim female and non Muslim male void marriage

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2. Marriage without witness: - In Sunni law a marriage without to competent
Muslim is irregular. In Shia law the presence of witness is not necessary and
therefore a marriage without witness is valid
• Solution - (By acknowledgement before witnesses)
3. Marriage during iddat: in Sunni law marriage with a woman observing iddat
is irregular. In shia law of marriage with the woman observing iddat is void
• Solution - (by expiration of iddat period)

Legal effects of irregular marriage

• An irregular marriage may be terminated by either party, if the termination is

before consummation it has no legal effect.
• But if the termination is after consummation, then:
1) Wife is entitled to dower, prompt or specified, whichever is lower.
2) She is bound to observe iddat for three courses.
3) Children born out of such marriage are legitimate
• In both the cases of irregular marriage (consummated or not consummated) no
legal rights of inheritance are created between the parties.

Effects of a Legal Muslim Marriage

1) Sexual intercourse becomes lawful and the children born of the union are
legitimate.
2) The wife becomes entitled to her dower (mahr).
3) The wife becomes entitled to maintenance.
4) Mutual rights of inheritance are established.
5) The prohibitions regarding marriage due to the rules of affinity come into
operation.
6) The wife is not entitled to remarry after the death of her husband, or after the
dissolution of marriage, without observing iddat.
7) A woman does not change her status on marriage. She remains subject to her own
pre-marital school of law. Neither the husband nor the wife acquires any interest
in the property of the other by reason of marriage.

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 Muta marriage

• The word ‘Muta means’ ‘enjoyment’

• Muta marriage is a temporary union of male and female for a specified time and
for payment of consideration.
• This type of marriage is almost obsolete in India and only certain schools
acknowledge it is a valid marriage like Ithna Ashari Shia.

Essentials of a Muta marriage

1) The parties must have attained the age of puberty, must be of sound mind.
2) Consent of both the parties must be free
3) Formalities of a regular marriage are necessary.
4) Parties must not be within any of prohibited relationship.
5) Form; There should be a contract containing declaration and acceptance.
6) Subject, i.e., a man may contract a Muta with a woman professing the
Mahomedan, Christian or Jewish religion or even with a fire-worshipper (ex.
Zorastrians), but not with a woman following any other religion. A man may
contract Muta marriage with any number of women.
A Shia woman, however, cannot contract a Muta with a non-Muslim. Relations
prohibited by affinity are also unlawful in such marriage;
7) Term, which means that the period of cohabitation should be fixed, which may
be a day, a month, a year or a term of years; and
8)Dower.
• When the term and the dower are fixed, the contract is valid. If, however, the
term is fixed but the dower is not specified, the contract is void. Further, if the
dower is specified and the term is not fixed, the contract, though void as muta
may operate as a ‘permanent’ marriage.
• Right of Inheritance does not create any rights of inheritance between man and
woman but children born out of this marriage are legitimate and can inherit
from both parents.
• A muta marriage is dissolved ipso facto my expiry of the term.

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 • Before the end of term, the husband may, at his will, put an end to the contract
by ‘making a gift of the term’ to the wife which is called ‘hiba-i-muddat’. The
wife’s consent is not required for such termination.
• If the Muta marriage is consummated, the wife is entitled for full dower amount,
but if the marriage is not consummated the wife is entitled to half of the dower
amount. If the women leaves before the end of the ‘term’ husband can deduct can
deduct a proportionate part of the dower.

Legal effects of Muta marriage

• Cohabitation is lawful, children are legitimate and are entitled to inherit

properties of both the parents.
• A Muta husband and wife have no mutual right of inheritance.
• Muta wife is not entitled to get maintenance under Shia law but she may get
maintenance under Code of Criminal Procedure Section 125 of Cr.P.C.
• If consummation takes place wife is required to observe iddat of two monthly
courses. If marriage is dissolved by death of husband then period of iddat is four
months and ten days.
• There is no divorce in Muta marriage. The marriage ends by death of parties or
on expiry of specified period or where husband leaves the wife before expiry of
term.
• If marriage is consummated the wife is entitled to get full dower, if marriage is
not consummated the wife is entitled to get half dower.

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 Iddat

Introduction

• Iddah or Iddat is an Arabic term which means period of waiting and is observed
by Muslim women. It is a period of chastity which a Muslim woman is bound to
observe after the dissolution of her marriage due to the death of her husband or
by divorce before she can lawfully marry again. The reason behind observing
iddat period is to ascertain whether the woman is pregnant or not and to
acknowledge the certainty of paternity.
• This is period of prohibition applied married women. The prohibition is for
remarriage. Reason for this prohibition is to ascertain whether the women are
pregnant for avoiding future confusion of paternity.
• It is observed when marriage of women is dissolved which can be via Death of
husband or by Divorce.

Period of Iddat

1. Death:
• If the woman is pregnant, the period of iddat is until delivery or 4 months and
10 days whichever is longer.

2. Divorce:
(i) If a woman is subject the menstruation, the period of iddat upon divorce
is three courses.
(ii) If the woman is not subject to menstruation, it is three lunar months.
(iii) If the woman is pregnant at the times of divorce, the iddat lasts until
delivery whether it is less or more than three months. (The muslim
women (protection of Rights on Divorce) Act, 1986, Also adds
termination of pregnancy as end of iddat period)

Commencement of Iddat Period

If the marriage is dissolved by death, the period commences from the date of death;
in case of divorce, it commences from the date of divorce.

• If the information of husband’s death or divorce does not reach the wife until
after the expiration of the period of iddat, then she is not bound to observe
iddat.

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 • If the marriage is dissolved by death, observance of iddat by the wife is
compulsory whether there has been consummation or not. However, in case of
divorce, Iddat is compulsory only when the marriage is consummated.
• A marriage with a woman undergoing iddat is irregular.

Right and Duties during Iddat

(i) The husband is bound to maintain the wife during the period of iddat.
(ii) The wife cannot marry another person until completion of her iddat, and if
the husband has four wives including the divorced one, he cannot marry a
fifth wife until the completion of the divorced wife’s Iddat.
(iii) The wife is entitled to deferred dower, and if the prompt dower has not been
paid, it becomes immediately payable.
(iv) In the event of death of either party before the expiration of the iddat period,
the other is entitled to inherit from him or her in the capacity of wife or
husband, as the case may be,
If the divorce has not become irrevocable before the death of the deceased.
(v) If the divorce is pronounced in death-illness, and the husband dies before
the completion of wife’s iddat. The wife in entitled to inherit from him, even
if the divorce has become irrevocable prior to his death, unless the divorce
has been affected without her consent.

Rules of Iddat

Certain things are forbidden to muslim women during the period of iddat. In Muslim
Personal Law, the term ‘Haraam’ is used for strictly prohibited things such as –

• It is Haraam upon a woman to indulge into the activities of beautifying

herself through makeups or any other ways during iddat.
• She is forbidden to wear silken clothes or other gaudy dresses. No particular
colour is specified to wear during this period like black or white or any such,
just a simple and plain clothing would suffice.
• She is not allowed to leave house till the completion of iddat period unless
there is some emergency like requirement of basic needs or medical illness
to such extent that it is not possible to arrange for a house-call by a
physician.
• She is obliged to mourn for her husband by praying to Allah (God) and
supplicating Allah-Subhanahu for her husband and for herself.
• There is no restriction of seeing the moon or the mirror as some people in
the name of islam try to enforce these restraints.

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 Dower (Mahr) – Muslim Law

• Dower is a sum of money or other property promised by the husband to be paid

or delivered to the wife in consideration of marriage and even where no dower
is expressly fixed, the law confers the right of dower upon the wife as necessary
effect of marriage. (Justice Mahmood in Abdul Kadir v. Salima)
• It is neither a consideration nor a gift to the wife. It is a token of respect towards
wife or an acknowledgment of dignity of wife.
• It also provides a subsistence to wife after dissolution of marriage so that she
may not become helpless

Classification of
dower

Unspecified dower
Specified dower (Mahr-i- (Mabr-i-Mish) or
Musamma) Proper dower or
Customary dower

Deferred
Prompt (Muajjal)
(Mumajjal)

Specified Dower

• The amount is decided usually at the time of marriage, in case of minor

husband, his father has the power to make the contract of dower on behalf of
him. It is of two types.

1. Prompt Dower- Prompt dower is payable immediately after the marriage if

demanded by the wife. She may demand the same at any time before or after
consummation.
• So long as the prompt dower remains unpaid, the wife may refuse to live with
the husband as a wife. Non-payment of prompt dower is also a complete
defence in a suit for restitution of conjugal rights filed before consummation. If

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 however, the suit is filed after consummation, the court, while decreeing
restitution would make it conditional on the payment of prompt dower.

2. Deferred Dower-
• Mahr which is payable on the dissolution of marriage by death or divorce
or on the happenings of a specified event is known as deferred dower. (If
marriage is dissolved by death of husband, dower is given from property of
husband)
• Where it is not fixed at the time of marriage whether the dower is to be prompt
or deferred, then, according to the Shia law, the rule is to regard the whole as
prompt. According to the Sunni law, part is regarded as prompt and part as
deferred.
• On the dissolution of the marriage, the wife is entitled to the immediate
payment of the whole unpaid dower if the marriage was consummated; if the
marriage was not consummated; then she is entitled to only half the specified
dower.
• If dower is not paid to the wife and she dies then her heirs could file a suit for
the payment of the dower within 3 Years.

Unspecified Dower (Proper Dower)

• When the amount of the dower has not been settled or even when there is
an express stipulation at the time of the marriage that the wife will not claim
any dower, the wife is still entitled to proper or customary dower. The amount
is fixed at the discretion of the court. Is however, guided by the following
considerations.
1. The social position of the bribe’s father’s family;
2. Her own personal qualification. ‘age, beauty, fortune, understanding and
virtue’ must be taken into consideration;
3. The amount fixed upon her female paternal relations, e.g. sisters or paternal
aunts, who are considered to be her equals;
4. The social position of the husband
5. Customs and traditions prevalent.

Amount of Dower

• If it is fixed, it cannot be less than the minimum laid down by the law, which is
10 dirhams in case of Hanafi law and 3 dirhams in case of Maliki law.
• Under The Shia law, no minimum amount is prescribed. Under the Shia law,
the proper dower can never exceed 500 dirhams ( the dower fixed for prophet’s
daughter Fatima)
• Dower Amount can be increased but cannot be decreased by the husband after
marriage.

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Remission of Dower

• The wife may remit the dower wholly or partially, for remitting the dower the
following conditions should be fulfilled
a. There should be free consent of wife ( no distress, force or pressure)
b. The wife should have attained puberty. ( She may or may not be Over 18 years
old)

THE DISSOLUTION OF MARRIAGE

• Divorce is the dissolution of marriage by the act of the parties. It may be given
by the husband or the wife.

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DIVORCE AT THE INSTANCE OF HUSBAND

• Muslim law gives the husband absolute authority to terminate the marriage
without any reason. Muslim husband can divorce was his wife through
the talaq, ila, zihar.

TALAQ

• Talaq is Arabic word which means ‘to release’. It means repudiation of

marriage by husband
• Muslim husband has unrestricted right to pronounce Talaq without any
reason.
• In Islam Talaq is permitted only when wife by her conduct or by her words does
injury to husband or happens to be in impious.
• Talaq can be revocable [talaq- i- rajaee] or irrevocable [talaq- e-bain]

Conditions of Valid Talaq

1. Capacity: Every Muslim husband of sound mind, who has attained the
age of puberty, is competent to pronounce talaq.
2. Free consent: consent of the husband pronouncing Talaq must be free
consent. But, under Hanafi law Talaq pronounced under compulsion,
coercion, and, fraud and voluntary intoxication is valid.
3. Formalities: following are the formalities
a) In Sunni law Talaq must be oral or in writing
b) In Shia law Talaq must be pronounced orally except where the
husband is unable to speak.
c) No specific words are prescribed in Sunni of however words used must be
clear and unambiguous.
d) Shia law requires the use of specific Arabic words in pronouncing
talaq.
e) In Sunni law Talaq need not be made in the presence of witness.
f) Shia law Talaq must be pronounced in the presence of two witness

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 g) The presence of wife is not necessary at the time of pronouncing talaq.
For the validity of Talaq notice to wife is also not necessary.

Kinds of talaq
1. Talaq ul Sunnat [ revocable talaq]
a. Talaq ahasan [ most proper]
b. Talaq Hasan [ proper]
2. Talaq ul biddat [ Irrevocable talaq]

1. Talaq ul Sunnat :-
• It is regarded as the approved form of talaq. It is based on Prophet Muhammad
tradition[ sunna], therefore it is called Talaq ul Sunnat
• It is also called revocable Talaq because there is a possibility of Reconciliation
and compromise between husband and wife
• This mode of Talaq is recognized by both Shia and Sunni
• It is pronounced in either in Ahsan or Hasan form.
a. Talaq Ahsan
• It is also called the most proper form of Talaq because there is a possibility
of revocation of Talaq and evil words of Talaq are found only once.
• In this form of Talaq husband is required to make a single pronouncement of
Talaq during Tuhr of the wife. [Tuhr is a period between two
menstruation].
• After this pronouncement the wife is required to observe iddat for 3 months
courses. During the period of iddat there should be no revocation of Talaq.
Cohabitation with wife is implied revocation
• When the period of iddat expires and the husband does not revoke the talaq
becomes final and irrevocable.
b. Talab Hasan
• There are 3 pronouncements of talaq made during successive tuhr.
• Husband makes a single pronouncement of Talaq in the period of Tuhr
• In the next tuhr, there is another pronouncement of talaq
• First and second pronouncement of Talaq may be revoked by husband

22
• If no revocation is made after first and second pronouncement then the
husband has to make a third pronouncement in the tuhr. It becomes irrevocable
as soon as third pronouncement is made
• There must be abstinence from sexual intercourse until the 3rd pronouncement.

2. Talaq ul biddat
• Biddat came from the word biddah [ innovation] which means that this form
of Talaq was devised later
• This form of Talaq is for instant divorce. It is an irrevocable form of divorce
• If the husband utters the word ‘ talaq’ 3 times [ orally in written or in
electronic form] then he would have legally divorced the wife.
• It is banned and most of the Islamic nations of the world and in India it was
only recognized by Sunni School.
• It is the disapproved form of talaq. The Talaq becomes effective as soon as the
words are pronounced and there is no possibility of reconciliation
• Under Shia law this is not recognized
• In this form of Talaq husband makes three pronouncements during the period
of purity[tuhr]
• It is also commonly known as triple talaq
• Shayara Bano vs Union of India 2017 Supreme Court of India declared the
practice of triple Talaq as unconstitutional. It was held that this form of Talaq
is manifestly arbitrary in the sense that the marital tie can be broken
capriciously and whimsically by Muslim man without any attempt at
reconciliation so as to save it. This form of Talaq must therefore be held to be
violative of fundamental rights contained under Article 14 of the Constitution
of India. The court held that triple Talaq is not fundamental to Islam
• The Parliament has enacted the Muslim women[ protection of rights on
marriage] Act 2019, make instant triple Talaq a cognizable offence,
attracting up to three years of imprisonment with a fine

3. Ila
• Ila is a constructive divorce by husband.
• In ila husband takes vow not to have sexual intercourse with the wife and
followed by vow there is no consummation for the period of 4 months.

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 • Under Ithna Asharia School of Shia Law does not operate as divorce without
the order of the court
4. Zihar
• It is an inchoate form of divorce.
• In Zihar husband compares his wife with the woman within the prohibited
relationship that is mother or sister etc. After such comparison the husband
does not cohabit with the wife for a period of four months. The marriage does
not dissolve after the completion of 4 months. the wife has the following rights:-
a) She may seek judicial divorce from court
b) She may seek restitution of conjugal rights from the court
• If the husband wants to revoke zihar by resuming cohabitation within the said
period of four months, the wife cannot seek is judicial divorce
• However cohabitation with the wife who had been compared to a prohibited
relationship is sinful and she can compel the husband to perform penance[
apology] such as- freeing a slave, or for fasting for 2 months or feeding 60
poor person etc

Divorce at the instance of wife

• Divorce by Muslim wife is only possible in the following three situations
1. where husband delegates the right to Talaq to wife[ Talaq e tafweez]
2. divorce by mutual consent [ Khula and Mubarat]
3. Dissolution of marriage under The Dissolution Of Muslim Marriage Act
1939

1. Talaq e Tafweez
• ‘Tafweez’ means delegation or representation
• Instead of pronouncing talaq himself he may give the right to his wife or the
husband may appoint an agent or representatives on his behalf and that agent
would pronounce talaq to the husband's wife and the marriage would stand
dissolved. The agent can be his second or third wife which he can send her to se
talaq to his otherwise on his behalf.
• The delegation may be unconditional or subject to some conditions

24
 • General practice is to delegate the power to wife is upon husband's failure to
fulfill certain conditions

2. Khula
• Khula and Mubarat are form of divorce by mutual consent
• It is divorce by wife with the consent of the husband on payment of something
to him.
• ‘Khula’ means to ‘lay down’. In law it means laying down by husband of his
rights and authority over his wife.
• In khula an offer is made by the wife to the husband to release her from
matrimonial ties. The offer must be accepted by the husband. Until the offer is
not accepted the divorce is not completed and in the meantime it can be
removed by the wife. Once accepted it becomes an irrevocable talaq.
• Under Sunni law presence of witness is not necessary while under Shia law
Khula must be made in presence of two competent witness

3. Mubarat
• In Mubarat both the parties are equally desirous of separation and often a be
made from either husband or wife
• In Mubarat no party is legally required to compensate the other.
• The offer of Mubarat may proceed from the wife or it may proceed from the
husband but once accepted the dissolution is complete and it
operates irrevocable form of talaq.

Judicial Talaq
1. Lian
• It means imprecation [curse].
• When the husband charges his wife of adultery and the charges are false the
wife is entitled to claim divorce on this ground. she must file a regular suit for
dissolution of her marriage in the court
• Conditions

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 1. A husband who is adult and of sound mind charges his wife who is also adult
and of sound mind with adultery or denies the paternity of a child.
2. Such charge is false and also could not be proved by the husband in the court
3. Such false charge of adultery does not ipso facto dissolve the marriage; it only
gives an opportunity to the wife to move to the court to dissolve the marriage.
4. There should be a proper suit in the court and the marriage dissolves only
through the decree of court
5. Dissolution is irrevocable.

2. Fask
• Fask is a judicial divorce by the order of the court of law. On the application of
wife if the marriage is found to be harmful to her.

The dissolution of Muslim Marriage Act 1939

• Section 2 of the act provides the grounds on which divorce under the act can
be claimed by the wife.
• Following are the ground
1. The husband is missing for 4 years
2. Husband's failure to maintain the wife for two years
3. Imprisonment of husband for 7 years
4. Husband's failure to perform marital obligation for 3 years
5. Husband impotency
6. Husband's insanity, leprosy for general disease
7. Option of puberty to wife - having been given in marriage by her father or
another guardian before she attained the age of 15 years, repudiated the
marriage before attaining the age of 18 years, provided that the marriage has
not been consummated.[Khyar-ul-Bulugh]
• Mustafa v. Smt. Khursida 2005 The Hon’ble Court held that the
option of puberty is a right given to the minor which will act as a blanket
against the marriage contracted by their guardians without their
consent. The only thing that has to be proved is that the parties were
married before attaining the age of 15 years and the right of option of
puberty was exercised before attaining the age of 18 years.
8. cruelty by husband

26
 9. Any other ground which is recognized as valid for for the dissolution of
marriage under Muslim law

Effect of Apostasy on Marriage

• Section 4 of the dissolution of Muslim marriage act 1939 deal with this aspect
• If a Muslim husband renounces Islam, the marriage is dissolved immediately.
This act does not apply to apostasy by husband
• If Muslim wife renounces Islam, the marriage is not dissolved automatically. If
the wife wants she can obtain a decree of divorce under any of the ground
specified under the act.

MAINTENANCE OF MUSLIM WIFE

• Muslim law does not properly defines maintenance, It meaning has been
imported from Hindu law which provides that- “in all cases, provisions for
food, clothing, residence education and medical treatment; in the
cases of unmarried daughter, Also the reasonable expense of her marriage.
• In the Muslim law of maintenance may be discussed from the point of view of
person entitled to maintenance such are
1. wife
2. Children
3. parents and grandparents
4. other relations

Maintenance of wife
• In Muslim law, wife right of maintenance by her husband is absolute and it
arrives is out of the status.
• It is the obligation of husband to support her even if wife has her own means of
support
• Wife claim of maintenance is preferred over young children's because the wife
is considered the root [Asl] And child is considered as a branch [Fara]

27
 • Wife is entitled to claim maintenance from her husband only when the
marriage is valid. If the marriage is irregular and void there is no obligation of
maintenance
• The husband's duty to maintain the wife commences only from the date when
the wife attends puberty and not before that.
• A wife also has the right to be maintained under section 125 of code of criminal
procedure code. The remedy under the code is for quick and immediate relief
without going into question of entitlement of personal law.

• The husband's obligation to maintain his wife exists so long as the wife remains
faithful to him and was all his reasonable order. However a wife can seek
maintenance even if she disobeys her husband, if:
1. The husband keeps a concubine
2. The husband is guilty of committing cruelty towards his wife
3. The marriage cannot be consummated owing to his illness, malformation; his
absence from her without her prior permission or husband has a still not
attained age of puberty.
• A wife also has the right to be maintained under section 125 of code of criminal
procedure code. The remedy under the code is for quick and immediate relief
without going into question of entitlement of personal law.
Prenuptial Agreement
• If the wife has made conditions before the contract of marriage, that in certain
conditions she would be entitled to live separately and can claim maintenance
against the husband.
• the conditions could be that the husband will not ill treat her, or take a second
wife or keep concubine
• The wife is also entitled to a special allowance called kharch e pandan if it is
stipulated in prenuptial agreement [Ali Akbar vs. Mst Fatima 1929] -
rupees 25 monthly as kharcha a pandan was given.

Maintenance of divorced wife

• A divorce women is entitled to claim maintenance under following provisions
1. Muslim personal law
2. Section 125 of code of criminal procedure

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 3. The Muslim women[ protection of right on divorce] act 1986

1. Maintenance of divorced women under Muslim personal law

• Under Muslim personal law a divorce wife can claim maintenance from
her former husband only for the period during which she observes
iddat. Husband's liability extends only up to the period of iddat.
• Maintenance of divorced Muslim women is now governed under the Muslim
women[ protection of rights on divorce] Act 1986

2. Maintenance of divorced women under code of criminal procedure

• A Judicial Magistrate First Class can order a person to make monthly allowance
for maintenance of the following people if code get proof of neglect of the person
with sufficient means who is refusing to maintain:
1. Wife, unable to maintain her self
2. Legitimate or illegitimate minor child[ married and unmarried both] unable to
maintain itself
3. Legitimate or a legitimate major child with physical or mental injury due to
which he/ she is[ married daughter not included]
4. Father or mother unable to maintain himself or herself

• Monthly allowance can be any amount as magistrate thinks fit

• Until the proceeding under section 125 and court can also order interim
maintenance during the preceding and also the expense for the proceeding.[
should be given under 60 days of from the date of service of notice]
• Section 125 is secular provision governing maintenance laws across all personal
laws.
• A wife cannot claim maintenance in case she is living in adultery or she without
any sufficient reason and refuses to live with her husband. If she remarries,
after the date of a divorce she cannot claim any such maintenance. On any of
these grounds, a husband may apply for cancellation of any such order of
maintenance
• If husband and wife are living separately by mutual consent even in that
situation voice is not entitled to claim any such maintenance.

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• Section 125 also extends the right of Muslim woman to receive maintenance
from her husband. Under the Muslim law, a Muslim wife must be provided
maintenance only for the period of iddat and not beyond it. Section 125 however
extends its provisions to Muslim women extending their right to maintenance
up to remarriage.

• Maintenance under code of criminal procedure is governed by section 125. In

it the term wife includes ‘ divorced wife’ who has not remarried
• Bai Tahira versus Ali Hussain 1979 Supreme Court held that divorced
Muslim wife is entitled to maintenance even if she has already received the
whole amount due under her personal laws
• Section 125 is independent of any personal law and it is of secular nature. It
was held in Mohammed Ahmed Khan vs. Shah Bano Begum 1985 that
section 125 of CrPC applies to divorce Muslim woman unless she remarries.
• In Mohammed Ahmed Khan vs. Shah Bano Begum 1985 Supreme
Court held that there is no conflict between section 125 and Muslim personal
law. The court observed that Muslim personal law limits the liability of husband
to maintain the divorced wife till the period of iddat
✓ If the divorced wife is able to maintain herself the husband's liability expires
after the period of iddat if the divorced wife is unable to maintain herself she is
entitled to take recourse to Section 125 of code of criminal procedure.
✓ This case was widely discussed and also criticized by some section of people
because they felt that provision of maintenance beyond the period of iddat even
in CrPC is unislamic

3. The Muslim Women [Protection of Right On Divorce] Act 1986

• The act is the outcome of Shah Bano Begum Case. The legislature tried to
negate the law laid down by the Supreme Court.
• Section 3(1)(b) of the act provide that the divorced women is entitled to a
reasonable and fair amount of maintenance for herself during the period of
iddat from her former husband
• If the divorced women remain unmarried after iddat entitled to get
maintenance from her such relatives who would inherit her property is upon
her death

30
 • Section 4(2) provide that in absence of any person relative or if relative is
not able to maintain then the liabilities upon the Waqf Board to maintain
• Section 5 provides that on the date of first hearing if the divorced woman and
her husband declared by affidavit that they would prefer to be governed by
provisions of section 125- 128 of the code of criminal procedure then the case
will be decided as per the code
• This act created a lot of confusion and was very vague law which was enacted
just for securing votes of Muslim community for the next election. the confusion
and the problems created by this legislation was called a little by the supreme
court in
• Daniel latifi vs. Union of India 2001
✓ Constitutionality of the Muslim Women [Protection of Right On
Divorce] Act 1986 Act was also challenged in the case Supreme Court upheld
the constitutional validity of the act and held the following
✓ The liability of Muslim husband towards the divorced wife to maintain her is
not confined to iddat period. It extends to the whole life of a divorced
wife unless she marries again. He has to make arrangement within the period
of iddat for wife maintenance.
✓ So the maintenance would also account for after the iddat period but husband
must arrange it before the end of iddat.
✓ The act is not in contravention of article 14, 15 and 21 of the Constitution of
India.

Maintenance of children
• Father is bound to maintain his son till he attains the majority and daughter
till she gets married[ father is also liable to maintain major Son if he is a lunatic
or mentally or physically disabled and not in condition to maintain himself]
• Father is not bound to maintain children if they refused to live with him
without any reasonable cause
• There has no obligation to maintain his illegitimate child under Muslim law[
but he is liable under section 125 of CRPC]

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• Mother has very little obligation to maintain a child, only in hanafi law if her
husband is poor and she is rich she has liability to maintain the child but she
can still recover the money from her husband when he is in a condition to pay

GIFT [HIBA]

• Gift is called ‘Hiba’ in Muslim law.

• Unconditional transfer of ownership in an existing property, immediately and
without any consideration
• In gift the transfer of property by act of the parties and not a transfer which take
place by operation of law
• Chapter VII of transfer of property act does not apply to Hiba. The formalities
of Hiba are different from that of gift made by a non Muslim
• A Muslim can devolve his property in various ways. Muslim law permits the
transfer of property inter vivos (gift) or through testamentary dispositions
(will).
• A disposition inter vivos is unrestricted as to quantum and a Muslim is allowed
to give away his entire property during his lifetime by gift, but only one-third of
the total property can be bequeathed by will.
• A Muslim can gift any property self acquired, ancestral, movable immovable,
corporeal, incorporeal.
• Gift may be conditional or unconditional
• Muslim law though has a distinction for the gift. It differentiates between the
corpus (ayan) and usufruct (maufi) of the gift.
• Corpus is the main body of gift, usufruct is ‘ the right to enjoy the use and
advantages of another’s property’
• There can be condition over usufruct but not on the corpus.
• Nawab umjab ally khan v. Mohumadee begum ( privy council.1867 )
✓ Nawab of awadh endorsed in the name of his son government promissory notes
worth rs. 7, 35,000 and the same were handed over to his son.
✓ But there was a condition that whatever income of interest comes out of those
notes the nawab would have right over that income for religious and charitable
endowments during his lifetime.

32
 ✓ Here this gift and conditions is held to be valid because there is no condition
over the corpus (promissory notes) but the conditions are only on the interest
of the corpus.

Conditions of valid gift

Since Muslim law views the law of Gift as a part of the law of contract, there must be
an offer (izab), an acceptance (qabul), and transfer (qabza).

1- Donor’s declaration ( with real and bonafide intention)

2- Donee’s acceptance ( express or implied, done by himself or on
his behalf)
3- Delivery of subject matter of gift ( actual or constructive)

Donor’s declaration
• Declaration signifies the intention of the transfer to make a gift. Person
declaring is called a donor
• The person in whose favour the gift is made is called done.
• Hiba may be oral or in writing. Writing is not necessary whether the property
is movable or immovable. Md. Hesabuddin v Md. Hesaruddin,
1983 where the gift was made by a Muslim Woman and was not written on a
stamp paper, Gauhati High Court held that the gift was valid.
• The gift made under Muslim in writing is known as hibanama. It need not to
be in stamp paper, attested or registered. In the case of Kamarunnissa Bibi
vs. Hussaini Bibi 1880 A openly declared a gift of certain landed property
to B in presence of large gathering. When B accepted the gift and A handed over
the possession of the said property to B, the gift was completed. It was held that
oral gift was valid and need not to be registered.
• Declaration must be in clear and unambiguous words. Ambiguous declaration
is void.
• Declaration of gift must be made voluntarily and with free consent. Hussaina
Bai vs. Zohra Bai 1960, a pardanashin lady coerced to sign a gift deed which
she believed would not take effect until her death. She had no opportunity to
take advice from others. It was held by the court that woman had signed the gift
deed under compulsion and it was not voluntary act of her. So the gift made was
declared by court as void.

33
 • For a valid hiba the donor must be an adult, Muslim and sound mind
• Donor must also have capacity to make the gift.
• Capacity to make gift
✓ Muslim ( male or female)
✓ Major (18+,21+( if under a certifies guardian), rule of puberty doesn’t
apply here)
✓ Sound mind

Donee’s Acceptance

• Under Muslim law gift is a contract therefore there must be proposal

(declaration) and acceptance (Qabul). It’s a bialateral transaction which will not
be effective until and unless other party accepts it. Even if gift is made through
registered instrument it requires acceptance of donee.

• The acceptance of gift must be made before the death of the donor
• A child in mother's womb is a competent donee provided his won a lie within
six months from the date of Hiba
• Muslim men can make a hiba in favor of a non Muslim
• The donee may be a juristic person. He may be a person of unsound mind
also. If he is a person of unsound mind the gift must be accepted by his guardian

Delivery of possession
• Gift is complete only after delivery of possession. The gift takes effect from the
date on which the possession of the property is delivered to the donee and not
from the date when the declaration was made.
• The delivery of possession may be:
a. Actual delivery of possession
b. Constructive delivery of possession
✓ Actual delivery of possession- In case the subject matter of the gift can be
physically handed over to the donee it is being known as actual delivery of
possession. The actual delivery of possession is possible in case the gifts are of
tangible and movable property.

34
 ✓ Constructive delivery of possession- Constructive delivery of possession
is sufficient to constitute a valid gift in the following two situations:
• Where the Property is intangible, i.e. it cannot be perceived through senses.
• Where the property is tangible, but it’s actual or physical delivery is not
possible.
• In case donor handed over the keys of the house which was subject matter of
gift it will be construe that constructive delivery of possession is made and the
gift will be completed.

• delivery of possession is not needed in the following circumstances

1. where the donor and donee live jointly in the gifted house
2. gift by husband to wife or by wife to husband
3. Gift by guardian to word
4. gift of property already imposition of donee

• Though it is not mandatory in muslim law to make the transaction of gift in

writing, but it is not prohibited also, gifts can be made orally or in writing under
muslim law.

General rules regarding gift

• If gift is not made with bona fide intention and is made with fraudulent
intention to defraud creditors then the qazi can declare it void.
• A gift in contemplation of death (causa mortis) or death bed gift (marz-ul-
maut) is partly a gift and partly a bequest and has to adhere to the conditions.
• Of bequest i.e. not more than 1/3rd property can be given without consent of
heirs.
• Gift to unborn person is void, unless the person is in womb of the mother and
is born within 6 months, though a trust can be created in favor of an unborn
person.
• Actionable claims can be gifted

KINDS OF GIFTS
• There are several variations of Hiba:
1. Hiba bil Iwaz
2. Hiba ba Shart ul Iwaz

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 3. Sadkah
4. Ariyat

✓ Hiba- il-iwaz

• ‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba Bil Iwaz means a
gift for consideration already received. It is thus a transaction made up of
two mutual or reciprocal gifts between two persons. One gift from a donor
to the donee and one from donee to the donor.

• For example, A makes a gift of a cow to S and later B makes a gift of a house
to A. If B says that the house was given to him by A by way of return of
exchange, then both are irrevocable.
• So a Hiba Bil Iwaz is a gift for consideration and in reality, it is a sale. Thus,
registration of the gift is necessary and the delivery of possession is not
essential and the prohibition against Mushaa does not exist.

✓ Hiba-ba-shartul-iwaz
• ‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a ‘gift made with
a stipulation for return’. Unlike in Hiba bil Iwaz, the payment of consideration
is postponed. Since the payment of consideration is not immediate the delivery
of possession is essential. The transaction becomes final immediately upon
delivery. When the consideration is paid, it assumes the character of a sale It
has the following requisites –

• Delivery of possession is necessary.

• It is revocable until the Iwaz is paid.
• It becomes irrevocable after the payment of Iwaz.
• Transaction when completed by payment of Iwaz, assumes the character of a
sale.

• Ariya (Tamlik al manafe), only usufruct is transferred and

• Sadqah the gift is made by the Muslim with the object of acquiring religious
merit

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Doctrine of Mushaa

• The word ‘Mushaa’ has an Arabic origination which literally

means ‘confusion’. Under Islamic law, Mushaa denotes an undivided share in
joint property. It is, therefore, a co-owned or joint property. If one of the several
owners of such property makes a gift of his own share, there may arise
confusion in regard to what part of the property is to be given to the donee.
• To circumvent such confusion, the Hanafi Jurists have developed the doctrine
of Mushaa. Gift of Mushaa i.e. gift of a share in the co-owned property is invalid
without the partition and actual delivery of that part of the property to the
donee. If the co-owned property is not capable of partition, the doctrine of
Mushaa is impertinent. A Mushaa or undivided property is of two kinds:
1. Mushaa Indivisible
• It includes the property in which the partition is not possible. The doctrine of
Mushaa is not applicable where the property constituting the subject-matter of
the gift is indivisible. All the schools of Islamic law accept the view that a gift of
Mushaa indivisible is valid without partition and the actual delivery of
possession.
• For example, a staircase, a cinema hall, a bathing ghat etc. comprises
indivisible Mushaa properties.
2. Mushaa Divisible
• Mushaa divisible is the property which is capable of division without affecting
its value or character. If the subject-matter of a Hiba is Mushaa divisible, the
doctrine of Mushaa is applied and the gift is valid only if the specific share which
has been gifted, is separated by the donor and is actually given to the donee.
However, a gift without partition and the actual delivery of possession is merely
irregular and not void ab initio.
• For example, a co-owned piece of land or a garden or a house is a.
• Shia law does not recognize the principle of Mushaa. According to Shia law, a
gift of a share of divisible joint property is valid even if it is made without
partition

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Revocation of gifts

• The Muslim Law givers also classify revocation of gifts under the following two
heads:
1. Revocation of gifts before the delivery of possession, and
2. Revocation of gifts after the delivery of possession

1. Revocation of gifts before the delivery of possession:-

• All gifts are revocable before the delivery of possession is given to the donee.
For such revocation, no orders of the court are necessary. As discussed above
that under Muslim law, no Hiba is complete till the delivery of the possession is
made, and therefore, in all those cases where possession has not been given to
the donee, the gift is incomplete and whether it is revoked or not, it will not be
valid till the delivery of possession is made to the donee.
2. Revocation after the delivery of possession
• In this situation, a Hiba can be revoked in either of the following ways:
1. With the consent of the donee
2. By a decree of the court.
• Mere declaration of revocation by the donor or filing a suit in the court or any
other action is not enough to revoke a gift. The donee is entitled to use the
property in any manner until a decree is passed by the court revoking the gift.

• The revocation of gift is the personal right of the donor and a gift cannot be
revoked by his/her heirs after his/her death. A gift can also not be revoked after
the death of the donee.

According to Hanafi School, a gift can be revoked even after the

delivery of possession:

• When the gift is made by one spouse to another.

• When the donor and the donee are related within the prohibited degrees.
• When the donee or the donor is dead.

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• When the subject matter not gift is no longer in possession of the donee it means
that he may had disposed it off by sale, gift or where he had consumed it or
where it has been lost or destroyed.
• When the value of the subject matter has increased.
• When the value of the subject matter is completely lost.
• When the donor has received something in return.
• When the object of the gift is to receive religious or spiritual benefits or merit
such as sadaqa.

The Shia law of revocation of gifts differs from Sunni law in the
following respects:-

• Gift can be revoked by mere declaration on the part of the donor without any
proceedings in a court of law.
• A gift made to a spouse is revocable.
• A gift made to the relation whether within the prohibited degrees or not is
revocable.

Guardianship – Muslim law

• The term guardianship (Wilayat) denotes the guardianship of a minor. The

Quran is a basic of the law relating to concept of guardianship. Muslim law
makes a difference between guardian of the person and the guardian of the
property and guardian for the purpose of marriage (Wilayat-ulnikah) In case of
minors.

Who is minor?

• A minor is one who has not attained the age of majority. Puberty and majority
presumed to have been attained on the completion of 15 years. But now the
Muslims in India are governed by the Indian Majority Act 1875. Except in
the matters of marriage, divorce and Mehr.

39
 • According to Section three of the Indian Majority Act, 1875, someone
domiciled in the Republic of India who is below the age of eighteen years, is
a minor.

Subject matter Guardianship

Guardianship in Muslim law is for three things,

1. Guardian of minor person,
2. Guardian for minor’s property and
3. Guardian for minor’s marriage (called wali) Guardianship in marriage
(jabar): Marriage is often contracted on behalf of the minors by the
guardian. the father can impose status of marriage on his minor children.
This power of imposition is named 'jabar', the abstract right of guardianship
(wilayat) and therefore the guardian so empowered is understood as 'Wali'.
• Guardianship in all three aspects is with father and after him the
grandfather.
• Under the Muslim Personal law, a father enjoys a more dominant position for
both custody and guardianship.
• The mother can get custody of the child but she is not considered the natural
guardian of the child.

Custody v. Guardianship

(a) Custody is granted specifically as a matrimonial relief to a parent who seeks

such custody, whereas guardianship exists at law.
(b) A guardian need not be a custodian; or a custodian, a guardian of the child
(c) Custody could be for a short duration or for a specific purpose but
guardianship is more permanent in nature.]
• Custody might not be with father but guardianship is always with the Father in
Muslim law.
• Under the Shia law, a mother’s right to the custody of the minor children, i.e.,
Hizanat extends until a son is two years old, and till the daughter attains the
age of seven.

40
 • Under the Hanafi (Sunni) law, a mother is entitled to the custody of her son
till he reaches the age of seven, and in case of daughter, till she attains
puberty.
• The mother’s right continues, even if she is divorced from the father of the child,
unless she remarries, in which case the custody belongs the father.
• This, however, is not a rigid rule and the court can deviate, if the welfare of the
child so demands.
• In Irfan Ahmad Shaikh v. Mumtaz ( AIR 1999 BOM 25 )
• Custody of a female child was given to the mother. The mother’s marriage with
the child’s father was dissolved and she remarried a person who was not within
the prohibited degree of relationship to the child. The court nonetheless gave
custody to the mother the child had also expressed a desire to remain with the
mother.
• Even though as a natural guardian, the father may have prima facie right to the
minor’s custody, this may be negated, if the infant’s welfare lies in keeping him
with the mother – Abdul Kalam v. Akhtari Bini (AIR 1988)

Muslim law recognizes the following kind of guardianship:

1. A natural or legal guardian

2. Testamentary guardian

3. Guardian appointed by courts or statutory guardian

4. De-facto guardian

1. Natural or Legal Guardian

Natural guardian is a one that encompasses a right to regulate and supervise the activities
of a minor. Father is recognized as the natural guardian of his kid underneath all the
schools of Muslim law. The father’s right to act as guardian of a minor is an independent
right and is given to him underneath the substantive law of Islam.

41
A natural guardian is additionally known as a legal guardian. But within the absence of
the father, the father’s executor might also act as a legal guardian. The executor could be
one who is appointed by the father or grandfather to act as the guardian of his minor kid
on his behalf.
Thus, the natural guardian of a minor in order of priority are as follows:
1. Father
2. Executor of father
3. Paternal grandfather
4. The executor of Paternal grandfather
Under Muslim law within the absence of any of the above-mentioned persons, no one
else is recognized as the natural guardian of a minor.

Shia Law

Within the absence of father only paternal grandfather could act as a legal guardian. In
the presence of paternal grandfather, the father’s executor has no right to act as legal
guardian of a child.

2. Testamentary Guardians

A testamentary guardian may be a one that is appointed as guardian of a minor beneath

a will. Only father or, in his absence, paternal grandfather has the right to appoint a
testamentary guardian.
A non-Muslim and a feminine might also be appointed as a testamentary guardian.

Shia Law

A non- Muslim cannot be chosen as a testamentary guardian.

3. Guardians appointed by Court

In case of the absence of a natural and legal document guardian, the court is authorized
to appoint a guardian for the aim of the minor’s person or property or for both. The
appointment of a guardian by the court is ruled by the Guardianship and Wards Act,
1890 which is applicable to all the Indians irrespective of their religion. Such guardians
are also called Statutory Guardian.

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4. De-facto Guardians

A de-facto guardian is a person who is neither a legal guardian nor a testamentary

guardian or statutory guardian, but has himself assumed the custody and care of a child.
According to Tyabji a de-facto guardian means that an unauthorized person who, as a
matter of fact, has custody of the person of a minor or his property. A de facto guardian
could be a person having no authority for the guardianship however underneath the
circumstances has taken the responsibility to act as the guardian of a minor.

Testamentary Guardian

• Father has full right to appoint testamentary guardian, after father the
Executor has the right and after him the Grandfather.
• Mother has no right to appoint the Testamentary Guardian except
1. When she is appointed as the executrix by the child’s father in his will
2. It is about her own property which will devolve after her death to her children

Illegitimate Children

• The father has no right over the illegitimate children and he is not the guardian
of illegitimate children, even the mother is also just a custodian of the
illegitimate children and not the guardian. (Gohar Begam vs Suggi Alias
Nazma Begam And Others 1960

Concept of Muhrim:

• The custody of a Muslim child cannot be given to a person who is not muhrim.
• Muhrim means a person who is in relation to the child and is within the
prohibited degree of relations with the child. i.e., any person who unfit to marry
the child.

Powers of the Guardian

• Can sell the movable property for minor’s essential necessities like food,
clothing or nursing.

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 • Can alienate immovable property only in exceptional circumstance and
fraudulent transactions are voidable at the instance of the minor.
• Can lease the property for benefit or needs of minor, but the duration of the
lease can’t be more than the duration of minority.
• Can carry on the business of the minor but likes a prudent man would have
carried the business.
• In emergency can also procure debt on behalf of minor, if there was no
necessity and debt was taken it would not be binding on the minor.
• Where, there is a conflict in the application of the provision of personal law,
and the Guardians and Wards act, 1890 the latter will prevail- Poolakkal
Ayissakutty v. P.A. Samad ( AIR 2005 Ker 68 )

WAQF- MUSLIM LAW

• The literal meaning of the word waqf is ‘detention’. In the legal context, waqf
means detention of a property so that its produce or income may always be
available for religious or charitable purposes. When a waqf is created, the
property is detained or, is ‘tied up’ forever and thereafter becomes non-
transferable.
• Section 2(1) in The MussalmanWakf Validating Act, 1913
“Wakf” means the permanent dedication by a person professing the Mussalman
faith of any property for any purpose recognized by the Mussalman law as
religious, pious or charitable.
• In waqf property is vested in implied ownership of God. The property becomes
non-transferable. Once waqf is created it cannot be revoked. A conditional or
contingent waqf is void.
• “As defined by Abu Yusuf, waqf has three main elements. They are-
1. Ownership of God
2. The extinction of the founder’s right
3. The benefit of mankind
• Waqf can be constituted of both movable and immovable property. Every
Muslim who is of sound mind and age of majority can constitute waqf.
• The creator of waqf must be owner of the property dedicated.

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 • In waqf property is settled permanently so that its usufruct is always available
for an indefinite period. Waqf cannot be for a limited period.
• When a property is declared ‘wakf’ the original user is divested of it and the
property rests in Almighty God.
• Any major person with sound mind can be a Waqif (founder of waqf)
• Following cannot be a subject matter of waqf
• (1) A dower-debt;
• (2) Right to recover money from debtor under simple money decree;
• (3) Right of a usufructuary mortgagee
• A waqf can be created through a deed in writing or orally. A written deed of
endowment is called a Wakfnama.

Essentials/Characteristics of a Wakf

1. Property vests in god – Once the dedication of the property is made to the
wakf, the ownership of the wakf is transferred to god. [Md. Ismalia vs.
Thakur Sabif Ali, 1962 SC 1722] .
2. Wakf must be Permanent – A Muslim wakf must be created for an
unlimited period. In short, perpetuity is an essential feature of a wakf.
3. Wakf must be Irrevocable – The irrevocability is another characteristic
feature of a wakf. Once constituted validly, a wakf cannot be revoked. If in a
wakfnama a condition is stipulated that the wakif reserves to him the right of
revoking the wakf or the wakf will stand revoked on the happening of any event,
then such a wakf is void. [Asoobai vs. Noorbai, (1906) 8 Bom LR 18]
4. Wakf properties are Inalienable – Once a property is dedicated to the god,
they can’t be alienated. However this rule is not absolute and in some
circumstances, it is permissible that a mutawalli may alienate the wakf
properties, a mutawalli may sell or grant a lease of the wakf properties with the
prior permission of the court. When a wakfnama allows selling wakf properties
in some circumstances, then the mutawalli has the power to alienate wakf
properties in those circumstances.
5. The founder of waqf must be a competent person
6. The subject matter must be a transferable property
7. The object must be religious, pious and charitable

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 8. The formalities required must be duly completed.

Modes of Creation of Wakf

• Muslim law does not prescribe any specific way of creating a Wakf. If the
essential elements as described above are fulfilled, a Wakf is created.
Though it can be said that a Wakf is usually created in the following ways-
1. By an act of living person (inter vivos) - when a person declares the
dedication of his property for Wakf. This can also be done while the person
is on death bed (marj-ul-maut), in which case, he cannot dedicate more than
1/3 of his property for Wakf.
2. By will- when a person leaves a will in which he dedicates his property after
his death. Earlier it was thought that Shia cannot create Wak by will but now
it has been approved.
3. By Usage- When a property has been in use for the charitable or religious
purpose for time immemorial, it is deemed to belong to Wakf. No
declaration is necessary and Wakf is inferred.

Types of Waqfs

1. Public- wells, bridges, roads etc.

2. Private- Waqfs for benefit of private person also called wakf-ul-aaulad (ex.
imambara)
3. Semi-public- Waqfs for benefit of a class of person.

Categories of waqf from the perspective of its purpose:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children
and their offspring. However, these beneficiaries cannot sell or dispose of the
property subject-matter of waqf.
• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy.
Examples of beneficiaries include the poor and the needy. Waqf khayri is typically
used to finance mosques, shelters, schools, and universities. This is meant to help
financially-challenged individuals and communities.

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• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar
to waqf khayri, though waqf al-sabil is usually used to establish and construct the
public utility (mosques, power plants, water supplies, graveyards, schools, etc).
• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at
times of emergency or unexpected events that negatively influence the livelihood
and well-being of a community of people. For example, waqf may be assigned to
the satisfaction of specific needs such as medication for sick people who are unable
to pay medication expenses and education of poor children. Waqf al-awaridh may
also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf-istithmari: the waqf assets are intended for investment. Such assets are
managed to produce income that will be used in constructing and reconstructing
waqf properties.
• Waqf-mubashar: the waqf assets are used to generate services to the benefit of
some charity recipients or other beneficiaries. Examples of such assets include
schools, utilities, etc

Subject Matter of Waqf

• Subjects of wakfs could be land properties like gardens, fields etc. Religious
institutions can also be subject to waqf like Dargah, Graveyard, Imambara
(private place for certain ceremonies), Khangah (a place for religious
instructions and devotional exercise), mosque, Takia (a resting place).
• Later other movable properties were also made subject matter of waqfs like
load-bearing animals, agricultural instruments, Koran for reading in a masjid,
movable properties, horses, swords.
• Basically, anything non-perishable by use can be a subject of waqf.

Mutawalli

• Mutawalli is a person who manages the waqf, he has no rights to transfer waqf
property to anyone, and he is just the administrator.
• Any person who is a major, of sound mind can be appointed as Muatawlli

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 • He is only a superintendent whose job is the see that the usufructs of the
property are being utilized for valid purpose as desired by the wakif. He has to
see that the intended beneficiaries are indeed getting the benefits. Thus, he only
has limited control over the usufructs.
• In Ahmad Arif vs Wealth Tax Commissioner, SC held that a mutawalli
has no power to sell, mortgage, or lease wakf property without prior permission
of the Court or unless that power is explicitly provided to the mutawalli in
wakfnama.

Who can be a mutawalli

• A person who is a major, of sound mind, and who is capable of performing the
functions of the wakf as desired by the wakif can be appointed as a mutawalli.
A male or female of any religion can be appointed. If religious duties are a part
of the wakf, then a female or a non-muslim cannot be appointed.
• In Shahar Bano vs Aga Mohammad, Privy Council held that there is no
legal restriction on a woman becoming a mutawalli if the duties of the wakf do
not involve religious activities.

WHO CAN APPOINT A MUTAWALLI

• According to the general rule, the founder of the waqf appoints at the time of
the creation of the waqf. But, in case a waqf is created without the appointment
of a mutawalli then the following persons are eligible to appoint the Mutawaali:

1. The executor of the founder;

2. The mutawalli on his death-bed;
3. The Court

Powers and Duties of Mutawalli

Being the manager of the wakf, he is in charge of the usufruct of the property. He has
the following rights –

• He has the authority to use the usufructs to the best interest of the wakf. He is
authorized to take all reasonable actions in good faith to ensure that the end
beneficiaries are able to enjoy all the benefits from the wakf. As he is not the
owner of the property, therefore he is barred from selling the property.

48
 • He can take authorization from the court to sell or borrow money by showing
the existence of appropriate grounds or the existence of urgency.
• He can file a suit to protect the interests of the wakf.
• He also has the power to lease the property for the agricultural purpose for less
than three years and for the non-agricultural purpose for less than one year. He
can get the term extended with due permission from the court.
• He is entitled to remuneration as provided by the wakif. If the remuneration is
too small, he can apply to the court for getting it enhanced.

REMOVAL OF MUTAWALLI

1. By the Court– Once a mutawalli is appointed, he cannot be removed by the

waqif. But the mutawalli can be removed by the Court only on following
grounds.

a) If He denies the waqf character of the property and sets up an adverse

title to it in himself.
b) He although having sufficient funds neglects to repair the waqf premises
and allows them to fall into despair;
c) He causes damage or loss to the waqf property or commits a breach of
trust knowingly and intentionally.
d) The mutawalli is rendered insolvent.
2. By the Wakf Board– According to section 64 of the Wakf Act, 1995, the Wakf
Board has the authority to remove the mutawalli from his office under the
conditions mentioned therein.
3. By the Wakif – There are different views related to this concept. According
to Abu Yusuf, even if the wakif has not reserved a right to remove the mutawalli
in the wakf deed he can, nevertheless, remove the mutawalli. However, Imam
Mohammed differs on this and believes that unless there is a reservation, the
wakif cannot do so.

Difference between wafq and trust

• Both in waqf as well as in trusts, the property is detained and its usufruct is
utilized for religious or charitable purposes.

49
• But, a waqf under Muslim personal law may be distinguished from a trust at
least o the following matters:
1. A waqf may be constituted only for those purposes which are recognized as
religious, pious or charitable in Islam whereas, a trust may be constituted
for any lawful object.
2. Except under Hanafi law, the founder of a waqf cannot reserve any benefit
for himself, but the founder of a trust may himself be a beneficiary.
3. The powers of a mutawalli (manager of the wafi (manager of the waqf-
property) are very limited as compared to the powers of a trustee.
4. A waqf is generally perpetual and irrevocable, whereas, a trust need not be
perpetual and may also be revoked under certain conditions.
• Because of the above-mentioned differences between waqf and trust, the Indian
Trust, Act, 1882, is not applicable to Muslim waqf in so far as the nature and
operation of waqfs are concerned. But, for purposes of instituting any suit in
the cases of irregularities and mismanagement of waqf property, a waqf has
been regarded as a ‘trust’ within the meaning of Section 92 of the Civil
Procedure Code, 1908.
• However, it must be noted that the Indian Trusts Act is applicable also to
Muslims. Therefore, if a Muslim wants to settle his properties in a trust he may
do so under this Act instead of creating waqf under Muslim person law.

Testamentary Succession (Will) - Muslim law

• Meaning of Testate Succession

• In some cases, a person leaves behind a Will, which specifies property
distribution after their death. In such cases, the Will controls succession.
• When succession takes place in this manner, it is known as testamentary
succession.
• Conventionally, a Will, also called ‘testament’ is an implement which enables a
person to dispose of his own property to someone whom he wants to give after
his death. A Will comes into effect only after the death of the person who created

50
 the Will. A Will is a legal declaration of transfer of property by a person after
his death.
• In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person
who executes the Will is called ‘legator’ or ‘testator’ and the person in whose
favor the Will is made is known as ‘legatee’ or ‘testatrix’.
• No formality, No writing, Even no words are necessary as long as the intention
of the testator is sufficiently ascertained, though the burden of proof is heavy
when the will is not written.
• If the will is in Writing, It is called ‘Wasiyatnama’
• Instructions of the testator written on a plain paper, or in the form of a letter,
that in clear cut terms provide for distribution of his property after his death
would constitute a valid Will.
• The Prophet has declared that the power of making a will should not be
exercised to the injury of the lawful heirs. If you make the will in favour of an
heir then it would be an injury to the heir who was supposed to get the favour
through laws of inheritance. So there are rules in regards to the will

One Third Rule

• The general rule under Muslim personal laws in India (Shariat) is that Muslim
may, be his will, dispose only up to one-third of his property which is left
after payment of funeral expenses and debts without the consent of his heirs.

Essentials of a valid Will

1. The legator must be competent to make a Will.

2. The legatee must be capable of taking such endowment.

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3. The property which is endowed by the legator must be a bequeath able
property.

1. The testator must be competent to make the Will.

a) Major (18+ or 21 + if he is under supervision of court of wards).
b) Will made by minor is void, though if he ratifies the will after he becomes a
major then it is valid.
c) Sound mind at the time of making the will should have a ‘disposing mind’ i.e.,
he should understand properly the consequences of what he is doing.
d) Will made under apprehension of death is a valid will.
e) Shia law- A will made after attempt to suicide is a void will.
f) Will made under undue influence, coercion or fraud is not valid.

2. The legatee must be competent to take the legacy or bequest.

• Any person of holding property (Muslim, non-Muslim, insane, minor, a child
in its mother’s womb, etc.) may be the legatee under a will. Thus, sex, age, creed
or religion is no bar to the taking of a bequest.
• A bequest to a person unborn person is valid. ( if child born within 6 monts
( Sunni) 10 months ( Shia) )
• A bequest may be validly made for the benefit of ‘juristic person’ or an
institution (but it should not be an institution that promotes a religion other
than the Muslim religion viz. Hindu temple, Christian church etc.).
• A bequest for the benefit of a religious or charitable object is valid. It is unlawful
to make a bequest to benefit an object opposed to Islam.
• A person who has caused the death of the legato cannot be a competent legatee.
• Joint Legatees- If no specific share of any of them has been mentioned, the
property is divided equally amongst all the legatees.
• The legatee has the right to disclaim the bequest.

3. The subject (property) of bequest must be a valid one (Qualitative

requisite).
• The testator must be owner of the property to be disposed by will;

52
 • It can be movable or immovable, corporeal or incorporeal property
• The property must be capable of being transferred;
• The property must he in existence at the time of the time of testator’s death,
it is not necessary that it hold be in existence at the time of making of will.
• The bequest should be unconditional, if there is a condition the bequest will
exist and the condition only will be void.
• Alternative bequest is valid ( given to son, if son not alive then give to wife,
if wife not alive give to charity, this is valid)
✓ The bequest must be within the limits imposed on the testamentary
power of a Muslim (Quantitative requisite).
• One Third Rule applies, two third estate will devolve via intestate succession (
unless there is consent of other heirs)
• The ‘1/3 rd limit’ rule will not apply if a Muslim marries under the Special
Marriage Act, 1954 because then he has all the powers of a testator under the
Indian has all the powers of a testator under the Indian Succession Act, 1925.
• Bequest of entire property to one heir to the exclusion of other heirs is void.

Rules of Chronological Priority/Preferential distribution (Shia Law)

• According to Shia law, if several bequests are made through a Will, priority
would be determined by the order in which they are mentioned or by the point
of time. Thus, legacies take effect in order of preference.
• The legatee mentioned first in the will gets his share as mentioned under the
will. After giving his share, the remaining goes to the second legatee. If there
still remains something, it goes to the third and as soon as the one-third
property is exhausted, the distribution is stopped and the next legatee does not
get anything.
• Thus, here a legatee either gets his share or gets some share or gets nothing at
all.

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Rule of Rateable Abatement (Sunni Law)

• Where a bequest of more than one-third of property is made to two or more

persons and the heirs do not give their consent, the shares are reduced
proportionately to bring it down to one-thrid , or in other words. The bequest
abates rateably. The above rule applies in Sunni law only.

Revocation of will

• A Muslim testator may revoke, during his life-time; any will made by him
expressly or impliedly.
• Implied Revocation: If the testator sells, makes gift of the subject of bequest
or deals with the same in any other manner,
• A will can be revoked by a simple and clear declaration to that effect or by a
formal deed of cancellation or revocation of will. Not necessary that a new will
must be made to revoke to earlier one
• Death of legatee: Under Sunni law where before the will can operate, the
legatee dies, the bequest will lapse and the property bequeathed would remain

54
 with the testator and on his death will go to his heirs in absence of any other
disposition by him.
• Under Shia law, the legacy will lapse only if the legatee dies without leaving an
heir or if the testator, after the death of the legatee, revokes the Will.

Intestate Succession- Muslim Law

• Succession refers to the transmission of the property of an ancestor upon his

death, to the rightful heir. Where the inheritance of property is carried out
according to the Will of the deceased, it is called testamentary succession. In
some cases, the deceased dies without leaving a will, and hence the succession
is executed according to the general rules. This is called Intestate succession
• When a Muslim dies there are four duties which need to be performed.
1. Pay funeral and burial expenses.
2. Paying debts of the deceased.
3. Determine the value/ will of the deceased (which can only be a maximum of one
third of the property).
4. Distribute the remainder of estate and property to relatives of thd
deceased according to Muslim law of inheritance.

In Muslim Intestate Succession:

• The Islamic law divides heirs into 7 classes, 3 principal classes and 4 subsidiary
classes. The principal classes are:

1. Quranic heirs or Sharers or dhawul-furud

2. Agnatic heirs or Residuaries or asabat
3. Uterine heirs or Distant kindred or dhawul-arham

• The subsidiary classes are:

1. Successor by contract
2. Acknowledged kinsman

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3. Sole legatee
4. Escheat

1. Sharers (mentioned in Quran)

• There are total 12 sheets, 8 females 4 males in Sunni law [(1) Husband, (2) Wife,
(3) Daughter, (4) Daughter of a son (or son's son or son's son and so on), (5) Father,
(6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full
sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.]
• There are 9 Sharers in Shia law. 6 female, 3 males.
2. Residuary Agnate heirs or residuaries come into the picture only when after
dividing the heritable estate between the Quranic heirs, there is still some estate
left. This residue estate goes to the residuaries. All the residuaries are related to the
deceased through males only. [Agnates: A person who is descended from the
same male relation. For e.g.: son, son’s son, son’s son’s son, etc.]
3. Distant Kindred. Only in the absence of sharers and residuaries, the heritable
estate of the deceased is inherited by the uterine heirs or the distant kindred. In
this class of heirs, all those relations who do not fit in the above classes are
included. Meaning thereby, the female agnates and the cognates are placed in this
class. (No such category in shias)[Cognates: A person who is related to the
deceased through a female relation. For eg. Daughter’s son, mother’s father, etc]
4. Escheat: On failure of all the heirs, the property of a Shia Muslim escheats to the
government

General principles of inheritance

Following are the general principles followed while under Islamic law:

1. Nature of Property: The property of the deceased becomes heritable only after
the payment of funeral expenses, debts, and legacies. The remaining property,
whether movable or immovable, is heritable. Muslim law does not differentiate
between corpus or usufruct, corporeal or incorporeal property. There is no concept
of ‘joint family property’ and ‘separate property’.

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2. No birthright: The Islamic inheritance can only be availed upon the death of an
ancestor. A person cannot be an heir of a living person. The right of inheritance,
thus, is not a birthright. Until the death of an ancestor, an heir apparent is a mere
spes successionis (chance of succession).
3. The Doctrine of Representation/ Rule of Exclusion: Doctrine of
representation refers to the principle of representation of a pre-deceased father by
his son for the purpose of inheritance of the property of the pre-deceased father’s
father. However, this doctrine is not recognized under Islamic law. The nearer
heir excludes the remoter one in Muslim law. This means that if two people
claim the inheritance, it will be determined according to the degree of closeness to
the deceased.

• This rule is applicable to shares, reliquaries and also distant kindred.

• Thus, the father would exclude the paternal grandfather, and a son would exclude
a son’s son.

S’S

• Secondly, and heir who is related to the deceased through another person, would
be excluded in presence of the one through whom he or she is related to the
deceased through the father and if the fathers present, they would be excluded in
his presence. Mother is an exception to the rule of exclusion. Presence of mother
would not exclude brother/ sister relations

S1 S2

• Thirdly Full blood would exclude half blood relations but uterine blood
relations would not be excluded

4. Rights of females: Muslim does not create any distinction between the rights of
men and women. On the death of their ancestor, nothing can prevent both girl and

57
 boy child to become the legal heirs of inheritable property. However, it is generally
found that the quantum of the share of a female heir is half of that of the male heirs.
The reason behind this is that under the Muslim law a female shall upon marriage
receive mehr and maintenance from her husband whereas males will have only the
property of the ancestors for inheritance. Also, males have the duty of maintaining
their wife and children.
5. Widow’s right to succession: Under Muslim law, no widow is excluded from
the succession. A childless Muslim widow is entitled to one-fourth of the property
of the deceased husband, after meeting his funeral and legal expenses and debts.
However, a widow who has children or grandchildren is entitled to one-eighth of
the deceased husband's property. If a Muslim man marries during an illness and
subsequently dies of that medical condition without brief recovery or
consummating the marriage, his widow has no right of inheritance. But if her ailing
husband divorces her and afterwards, he dies from that illness, the widow's right
to a share of inheritance continues until she remarries.

6. Child in the womb: A child in the womb is considered to be a living person

provided that he is born alive. Hence, a child in the womb can inherit the property
of the deceased.
7. Marriage under the Special Marriage Act, 1954: Where a Muslim contracts
his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for
purposes of inheritance. Accordingly, after the death of such a Muslim his (or her)
properties do not devolve under Muslim law of inheritance. The inheritance of the
properties of such Muslims is governed by the provisions of the Indian Succession
Act, 1925 and Muslim law of inheritance is not applicable.

• Doctrine of aul (increase) –

In case, the total sum of the specific shares allotted to various shares exceeds the
unity then the doctrine of increase (Aul) comes into the application and the specific
share of each sharer is reduced in a proportionate manner. The proportionate share
reduces in the following manner.

1. By reducing the shares to a common denominator.

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 2. By increasing the denominator to make it equal to the sum of the numerators
allowing the numerators to stand as they are

• Doctrine of radd (Return) –

After the division of shares, the total allotted shares is less than 1, and there is no
residuary to inherit the residue, then the residue reverts back to the sharers in the
same proportion of their shares. The only exception to this rule is that the wife or
husband is not entitled to receive the return in the presence of an heir. This is the
doctrine of radd or doctrine of return.

Disqualification to Inherit

Apostasy:

• A person who changes into a different faith than Islam or an apostate is not entitled
to inherit the property of a deceased Muslim under Islamic law. This rule has
been removed for converts by Caste Disabilities Removal Act 1850. In India, an
apostate is entitled to inherit the property of a deceased Muslim, but his
descendants are not entitled to inherit.
• Illustration: If you are born a Muslim and you convert to Hidusim then you can
still inherit your Muslim father’s property. But,
• If your father was a Hindu and he converted to a Muslim and you are still a Hindu
then you can’t inherit your Muslim father’s property.

Illegitimate Child

• Under Sunni law an illegitimate child is deemed to be related to its mother, and
inherits from her and her relations but does not inherit form the father or any of
his relations.
• Under Shia law, an illegitimate child does not inherit from any of the parents nor
from any on their relatives.

The Succession of murdered deceased:

• If the person who is supposed to inherit has killed the person from whom he is
inheriting is disqualified, If he kills accidentally then he is not disqualified.
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• In Sunnis- It doesn’t matter what the intention was or if it was an accident, if he
killed he disqualified

Daughter is excluded in some areas because of customary practices or

special statutes.

• Gujas and bakarwal communities- daughter are always excluded

• In Jammu and Kashmir, in some communities a daughter can succeed only in
absence of all male agnates of the deceased, while in others she can inherit only if
she is a ‘ Khananshin’

Rule of primogeniture-

• Elder son will get preference in some things (applies to certain Muslims as customs
or under special statute.)
• Watan Act, 1886 (Bombay), The Oudh Estates Act, 1869 follows the rules of
primogeniture for devolution of taluqdari properties and exclude daughter.

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Sl. Sharers Normal Normal Conditions under which the normal share is This Column sets out:
No. Share of Share of inherited
(A) Shares of Sharers as varied by special circumstances
One two or
(B) Conditions under which sharers succeed as
more
Residuaries.
collectively

1 FATHER 1/6 -- When there is an agnatic descendant When there is no agnatic descendant the father inherits as
a residuary.

2 TRUE 1/6 -- When there is an agnatic descendant & no father When there is an agnatic descendant the true grand father
GRANDFATHER or nearer true grandfather inherits as a residuary, provided there is no father or
nearer true grandfather.

3 HUSBAND 1/4 -- When there is an agnatic descendant ½ When no agnatic descendant

4 WIFE 1/8 1/8 When there is an agnatic descendant ¼ When no agnatic descendant

5 MOTHER 1/6 -- (a) When there is an agnatic descendant or

1/3 When no agnatic descendant and not more than one
sibling (if any); but if there is a combination of mother
(b) When there are two or more siblings,
with wife or husband and the father then only 1/3 of what
whether full, consanguine or uterine.
remains after deducting the spouse’s share.

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Sl. Sharers Normal Normal Conditions under which the normal share is This Column sets out:
No. Share of Share of inherited
(A) Shares of Sharers as varied by special circumstances
One two or
(B) Conditions under which sharers succeed as
more
Residuaries.
collectively

6 TRUE GRAND 1/6 1/6 a) Maternal-When no mother, and no

MOTHER nearer true grandmother either paternal
or maternal.
b) Paternal-When no mother, no father, no
nearer true grandmother either paternal
or maternal, and no intermediate true
grandfather.

7 DAUGHTER 1/2 2/3 When no Son With the son the becomes a residuary

8 SONS DAUGHTER 1/2 2/3 When no (1) Son, (2) Daughter (3) Higher When there is only one daughter, or higher son’s daughter
Son’s Son, (4) Higher Son’s daughter, or (5) but no (1) Son, (2) Higher Son’s Son, or (3) Equal Son’s
h.l.s
Equal Son’s son Son, the daughter or higher son’s daughter will take ½
and the son’s daughter h.l.s., (whether one or more) will
take 1/6, 2/3,1/2 (with and equal son’s son the becomes a
residuary

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Sl. Sharers Normal Normal Conditions under which the normal share is This Column sets out:
No. Share of Share of inherited
(A) Shares of Sharers as varied by special circumstances
One two or
(B) Conditions under which sharers succeed as
more
Residuaries.
collectively

(i) Son’s Daughter 1/2 2/3 When no (1) Son, (2) Daughter or (3) Son’s When there is only one daughter, the son’s daughter
son (whether one or more) will take 1/6, if there be no son or
son’s son. With the son’s son she becomes a residuary.

(ii) Son’s Son’s 1/2 2/3 When no (1) Son, (2) Daughter (3) Son’s Son, (4) When there is only one daughter or son’s daughter, the
Daughter Son’s daughter, or (5) Son’s son’s son. son’s son’s daughter (whether one or more) will take 1/6,
if there be no (1) Son (2) Son’s son. (3)Son’s son’s son.
With the Son’s son’s she becomes a residuary.

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Sl. Sharers Normal Normal Conditions under which the normal share is This Column sets out:
No. Share of Share of inherited
(A) Shares of Sharers as varied by special circumstances
One two or
(B) Conditions under which sharers succeed as
more
Residuaries.
collectively

9 UTERINE 1/6 1/3 When no (1) Child, (2) Child of a son h.l.s.,
BROTHER OR (3) Father of (4) True Grandfather.
SISTER

10 FULL SISTER 1/2 2/3 When no (1) Child, (2) Child of a son h.l.s., With the full brother she becomes a residuary
(3) Father (4) True Grandfather, or (5) Full
Brother.

10 CONSANGUINE 1/2 2/3 When no (1) Child, (2) Child of a son h.l.s., But if there is only one full sister and she succeeds as a
SISTER (3) Father (4) True Grandfather (5) Full sharer, the consanguine sister (Whether one or more will
Brother (6) Full Sister, or (7) Consanguine take 1/6, provided she is not otherwise excluded from
Brother. inheritance. With the consanguine brother she becomes
a residuary.

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DREAM.
BELIEVE.
DO.
REPEAT.

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