ASIAN LAW COLLEGE, NOIDA

Family Law II (Muslim Law)

(Study Material)

Programme Outcomes

POs.1. Critical Thinking: Explore and explain the substantial & procedural laws in which they
are made/drafted and how students think and understand the legislative setup.

POs.2. Effective Communication: Ability to learn the art of communicating and demonstrating
their oral advocacy skills. Projecting the facts in a way suitable to the client and power to
convince on legal reasoning forms the essence of communication in courts of law.

POs.3. Social Interaction: Interpret and analyze the legal and social problems and work
towards finding solutions to the problems by application of laws and regulations.

POs.4. Effective Citizenship: Inculcate values of Rights and Duties, and transfer these values to
real-life through legal and judicial process for promoting community welfare.

POs.5. Ethics: Apply ethical principles and commit to legal professional ethics, responsibilities
and norms of the established legal practices.

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POs.6. Environment and Sustainability: Understand the impact of the professional, legal
solutions in societal and environmental contexts and demonstrate the knowledge of and need for
sustainable development.

POs.7. Life-long Learning: Recognize the need for and have the preparation and ability to
engage in independent and life-long learning in the broader context of legal change.

Pedagogy: The pedagogy would be the combination of the following techniques: -

● Lectures
● Presentations
● Classroom Activities
● Discussions, Questions & Answers
● Case Study
● Tests

Course Objective:
To enable the students to understand the importance and relevance of the Muslim Laws
and various acts that encompasses the domain of family law with special reference to
Muslim Laws only. The objective is also to enhance the students’ awareness and the
applicability of Muslim Laws in India including the provision of Criminal Procedure
Code, 1973 (Sec. 125) with reference to Muslim Maintenance cases.

Course Outcome:
Students will be able to understand the importance and relevance of the Muslim Laws
and various acts that encompasses the domain of family law with special reference to
Muslim Laws only. The objective is also to enhance the students’ awareness and the
applicability of Muslim Laws in India.

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 Unit 1
Introduction to Muslim Law

Muslim law is known to be originated from the divine and not like the man-made laws that are
passed by the lawmakers and are governed by the principles of modern systems of law. Islam
signifies submission to the will of God and means peace, purity, salvation, and obedience.
Muslims believe that there is only one god, Allah.

The traditional Islamic law or Islam's legal system is well known as Sharia; it is an Arabic word
which in the literal sense is referred to as the way. Sharia is originated from Allah and that is the
reason that Muslims consider it as holy. Muslims considered it a word of god' which regulate and
evaluate human conduct. The Sharia is also derived from Prophet Mohammed's principles and by
some of the Muslim legal scholars who interpreted his teachings. It is said that Islamic
jurisprudence is also something that goes back to the lifetime of Mohammed. For Muslims, the
Quran' is the only disclosed book of Allah.

Muslim Law is a commandment of God and the sovereign in the Muslim states and it is his
(Muslims) duty to follow it literally.

Islam means peace by submission and obedience to the will and commandments of God and
those who accept Islam are called Muslim, meaning, those who have accepted the message of
peace by the submission of God. Islam basically means “submission to god”.
The 5 essentials of being a Muslim is (Pillars of Islam):
a. Shahada
b. Namaz (5 Daily Prayers)

c. Sawm (Fasting)

d. Zakaat (Charity)

e. Hajj (Holy Pilgrimage)

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Who is a Muslim
By Conversion
By birth
a. Both parents are belonging to Muslim religion.

b. One of the parent is belongs to Muslim religion the other one is belongs to any other
religion but upbringing is done as a Muslim.

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 Unit II
Sources of Muslim Laws

Islamic law talked about man's duties rather than his rights. In the religious sense Islam means submission
to the will of god' & in secular sense Islam means the establishment of peace.

Sources
Sources of Muslim law is classified into three categories that is primary sources, secondary sources and
modern sources.
Fundamental Sources
It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin).
Manifest revelation is communication which is made by angel Gabriel under the direction of god
to Mohammad in the very words of god. Quran is composed of manifest revelations.

Primary sources are those on which Muslim law relied on. These sources are the foundation of
Muslim law. Primary sources of Muslim law are:

1. Quran
2. Sunnah

1. Quran
Muslim law is founded upon Quran which is believed by the them to have existed from
eternity, subsisting in very essence of god. The Quran is, Al-furqan i.e., one showing truth
from falsehood and right from wrong. The word Quran which is the ‘divine communication'
and revelation to the prophet of Islam is the first source of Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The
Islamic religion and Islamic society owes its birth to the word of Quran. It is a paramount
source of Muslim law in point of importance because it contains the very word of god and it

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 is foundation upon which the very structure of Islam rests Quran regulates individual; social,
secular, and spiritual life of Muslims.

It contains the very words of god as communicated to Prophet Mohammad through angel
Gabriel. It was given to the world in fragmentary forms, extending over a period of 23 years.
It originally had for its objects repealing objectionable customs, such as, usury, unlimited
polygamy and gambling, etc., and effecting social reforms, such as raising the legal status of
women and equitable division of the matters of inheritance and succession.

The Quran was compiled by Hazrat Usman, the third Caliph.

The Quran can be no way altered or changed, thus, even the courts of law have no authority
to change the apparent meaning of the verses as it does have an earthly origin. This view was
held in Aga Mohammad Jaffer v. Koolsom Beebee (1895). But whenever the Quran was
silent on any particular matter, guidance was taken from the ‘sunnah'.

2. Sunnah
The word sunnah means the trodden path & as this meaning shows it denotes some kind of
practices and precedent.

Internal revelation is opinions of the prophet which is delivered from time to time on questions
that happened to be raised before him. Sunna means the model behavior of the prophet. The
narrations of what the prophet said, did or tacitly allowed is called hadees or traditions. The
traditions, however, were not reduced to writing during lifetime of Mohammad. They have been
preserved as traditions handed down from generation to generation by authorized persons. The
importance of hadith as an important source of Muslim law has been laid down in the Quran
itself.

Kinds of Traditions: The Traditions Are of Two Kinds:

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1. Sunnat
2. Ahadis

These two have been classified into the following three classes on the basis of mode or manner
in which it has actually originated:

Sunnat-ul-fail i.e., Traditions about which prophet did himself.

Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.
Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.

The three class of Hadees:

Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as
absolutely authentic. In such hadis the chain is complete.
Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the
character of universal propriety.
Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.
Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots
of Islamic law.

Secondary Sources
1. Ijma
The ijma' , or consensus amongst Muslim jurists on a particular legal issue, constitutes
the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that
legitimize ijma' as a source of legislation. Muhammad himself said:
• "My followers will never agree upon an error or what is wrong",
• "God's hand is with the entire community".

In history, it has been the most important factor in defining the meaning of the other
sources and thus in formulating the doctrine and practice of the Muslim community. This
is so because ijma' represents the unanimous agreement of Muslims on a regulation or

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 law at any given time. There are various views on ijma' among Muslims. Sunni jurists
consider ijma' as a source, in matters of legislation, as important as the Qur'an and
Sunnah. Shiite jurists, however, consider ijma' as source of secondary importance, and a
source that is, unlike the Qur'an and Sunnah, not free from error.

2. Qiyas
Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence.
Shiites do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal
deduction according to which the jurist, confronted with an unprecedented case, bases his
or her argument on the logic used in the Qur'an and Sunnah. Qiyas must not be based on
arbitrary judgment, but rather be firmly rooted in the primary sources.

Supporters of qiyas will often point to passages in the Qur'an that describe an application
of a similar process by past Islamic communities. According to Hadith, Muhammad said:
"Where there is no revealed injunction, I will judge amongst you according to reason."
Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma,
or consensus, amongst Muhammad's companions.

The success and expansion of Islam brought it into contact with different cultures,
societies and traditions, such as those of Byzantines and Persians. With such contact, new
problems emerged for Islamic law to tackle. Moreover, there was a significant distance
between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic
state. Thus far off jurists had to find novel Islamic solutions without the close supervision
of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of
qiyas was abused by the rulers. The Abbasids, who succeeded the Ummayads defined it
more strictly, in an attempt to apply it more consistently.

The general principle behind the process of qiyas is based on the understanding that every
legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the
cause of an injunction can be deduced from the primary sources, then analogical
deduction can be applied to cases with similar causes. For example, wine is prohibited in

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 Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all
intoxicants are forbidden.

The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an
important practitioner of qiyas, elevated qiyas to a position of great significance in
Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and
Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond
suitably to emerging problems, he based his judgments, like other jurists, on the explicit
meanings of primary texts (the Qur'an and sunnah). But, he also considered the "spirit" of
Islamic teachings, as well as the whether the ruling would be in the interest of the
objectives of Islam. Such rulings were based on public interest and the welfare of the
Muslim community.

Modern Sources
1. Ijtihad
2. Istihsan
3. Al Maslah Al Mursala
4. Taqlid
5. Customs
6. Legislations

Books:
Sahih Bukhari- Iman Bukhari
Sahin Muslim- Iman Muslim
Abu Sunnan- Imaam Daud
Termizee- Imaan Termiz
Hasanad- Imam Hanbal
Muwatta- Imam Malik

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 UNIT 3
Schools of Muslim Law

Schools of Muslim Law

Schools of Islamic Legal Thought, also Known as Madhahib in Arabic, emerged due to the
independent interpretation of the general principles of the Quran and sunnah by various
prominent scholars over the centuries. Each school was designated under the name of its
founding scholar. All these schools were established very early in Islamic history. The purpose
of each school was basically to interpret the general principles of the Quran and sunnah
concerning specific cases and this was done by the eminent scholars. Many of them were under
each school of Islamic thought and contributed largely in forms of writings and books in which
they in a different way interpreted the Quran and sunnah and attributed their writings to sharia.
The purpose of introducing Madhahib is because even today Muslims around the world follow
different traditions as per their understanding and learning of various schools. Distinct variations
in forms of practices within Islam exist in which each school of thought is associated in its way.

There are three main schools of thought under which various new schools developed over
centuries:
1. Sunni
2. Shia
These main schools of Muslim law developed after the death of the prophet when the question of
carrying on his saying and traditions came. Each of these schools had a different understanding
of how to spread the prophet’s words. The Sunni advocated Imamat to be based upon election.
On the other hand, the Shia advocates believed for Imamat to be based upon the prophet’s
family. Whereas the motazila school soon became non-existent and only its historical perspective
remained.
Schools developed under Sunni were-

1. Hanafi School ( 699 AD – 767 AD)

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The founder of this school was Imam Abu Hanifa. He had two most important disciples – Abu
Yusuf and Imam Muhammad. In India, mostly Muslims follow Hanafi school. This school was
followed in China, Pakistan, Afghanistan, Turkey as well. Among the entire Muslim population
around the world, the followers of this school are one third. They followed a simple
methodology and were amongst the most popular and prevalent schools. They did not rely much
on the prophet’s hadiths until they were proved to be true beyond a reasonable doubt. They relied
very much on Qiyas. They even extended Ijma and gave preference to Isthiasan. This school was
believed to be stricter than other schools in lifting traditions. Also, in the application of the law,
Abu Hanifa believed that it is important to rely on usages and local authorities.

▪ Maliki School (711 AD – 795 AD)

The founder of this school was Imam Malik. They were followers of the hadiths however only
the ones that were authentic or adequate even if they were not correct as per the parameters laid
down. People of Madina also followed a certain way of Islam, this way was also followed by the
Maliki School. They accepted the practices of the people of Madina and the sayings of the
companions of the prophet.
They followed Qiyas only when the Quran or Sunnat were silent on that particular matter. Also
followed as per the “ Public Interest” –Al-masalih, al- mursalah. Pupils of Iman Malik were
Imam Muhan and Imam Shafi. This school was popularly followed in North Africa, Morocco,
Spain, Algeria, Tanzania, etc.

▪ Shafi School ( 767 AD – 820 AD)

The founder was Imam Muhammad ibn Idris Ash-Shafi who was also a disciple of the Maliki
School. They followed all four sources. They rejected public interest methodology followed by
the Maliki school and were also not in favor of Isthiasan. Shafi was the first person to collect “
Sources of Law”. Their teachings were popular in Lebanon, Syria, Egypt, and some parts of Iraq,
Pakistan, Iran, Yaman, and India as well.

▪ Hanbali School (780 AD – 855 AD)

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Ibn Hanbali was the founder of the Hanbali School of Islamic Jurisprudence. They were strict
regarding the traditions of the Prophet and strictly confirmed to the Principle of Hadiths. Their
methodology depended on Quran, Ijma, and Sunnat. They followed Qiyas only when they
believed it to be necessary. They were dominant in Saudi Arabia mostly.

Schools developed under Shia were-

1. Ithna Ashri School

The founders of this school are twelve Imams, thus the Arabic Term Itna Ashris means
Twelvers. They are followed in Syria, Lebanon, and Pakistan. The majority of the Shias follow
this school. In India also this school is followed by Muslims residing in Lucknow, Murshidabad,
and Deccan, Kashmir.

2. Ismaili School
The school of Ismailis accepted only seven Imams and were hence known as the ‘Seveners’.
Their origin could be traced to Egypt. There consist two groups of them viz, (1) the Kohojas or
Eastern Isamilis who were believed to be followers of Aga Khan who was the 49th Imam in the
line of the prophet, and (2) Western Ismailis popularly called as Bohoras who were divided
among the Sulaymanis and Daudis. They prevailed in Central Asia, East Africa, Arabia,
Pakistan, Syria, and Iran.

3. Zaidiya School
Imam Zaidi founded this school. They believed that Imam should be based on election, so the
succession in this school is through the election. They believe Imam to be above and considered
as a ‘right guide’. The Zaidis were followed in the South of Arabia, mostly in Yemen.

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 Unit 4
Application of the Act, 1937

Section 2 of the Muslim Personal Law (Shariat) Act, 1937 talks about the application of Personal
Law to Muslims. The provision reads as “Notwithstanding any customs or usage to the contrary,
in all questions (save questions relating to agricultural land) regarding intestate succession,
special property of females, including personal property inherited or obtained under contract or
gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq,
illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust
properties, and wakfs (other than charities and charitable institutions and charitable and religious
endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim
Personal Law (Shariat).” The provision thus covers ten subject matters within its umbrella which
are:

▪ Intestate succession;

▪ Dissolution of marriage that also includes all kinds of divorce as well namely talaq, illa,
zihar, lian, khula, and mubarat;
▪ Maintenance;

▪ Dower;

▪ The special property of the females;

▪ Marriage;

▪ Guardianship;

▪ Gift;

▪ Trust, and its associated properties; and

▪ Wakf.

Section 3 just like Section 2 of the Act categorically excludes females to make a declaration
regarding obtaining benefits from agricultural land. The provision reads as,
(1) Any person who satisfies the prescribed authority

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 (a) that he is a Muslim, and
(b) that he is competent to contract within the meaning of section 11 of the Indian
Contract
Act, 1872 (9 of 1872), and
(c) that he is a resident of [the territories to which this Act extends],
may by a declaration in the prescribed form and filed before the prescribed authority declare that
he desires to obtain the benefit of [the provisions of this section], and thereafter the provisions of
Section 2 shall apply to the declarant and all his minor children and their descendants as if in
addition to the matters enumerated therein adoption, wills and legacies were also specified.

(2) Where the prescribed authority refuses to accept a declaration under sub-section (1), the
person desiring to make the same may appeal to such officer as the State Government may, by
general or special order, appoint in this behalf, and such officer may, if he is satisfied that the
appellant is entitled to make the declaration, order the prescribed authority to accept the same.”

Section 3 of the Act talks about the power to make a declaration. Now, in order to use this
power, a person should satisfy three criteria provided by this provision, which are;
▪ The person has to be a Muslim;

▪ The person is competent (under the meaning of the term provided in Section 11 of the
Indian Contract Act, 1872) to enter into a contract; and
▪ The person is a resident of India.

The point to be noted in this provision is that all the provided parameters need to be abided by in
order to exercise the power vested under Section 3 of the Muslim Personal Law (Shariat) Act,
1937. As we have discussed as to who can avail the power, it is important to understand the
consequence that comes with the usage of this power. Section 3 acts as a tool for ensuring
mobility of Section 2 of this Act. The Section provides that an individual after abiding by the
prerequisites of the provision can declare his desire to acquire the benefit of the provision
followed by which Section 2 will be applicable to the declarant of such benefit along with all his
minor children and their descendants.

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Section 3 also covers a few subjects that Section 2 has not talked about. They include wills,
legacies, and adoption. By doing so, the provision provides discretion for the courts to apply
Muslim Law in such subjects only if a Muslim declares that he wants to be ruled by the
provisions of the Shariat Act, 1937 as he will be for the rest of the ten subjected provided under
Section 2 of the Act. Such a declaration should be made in a prescribed form before the
prescribed authority and will be governed by the procedure provided under Section 3(2), and
Section 4 of the Shariat Act, 1937. As Section 3 provides the power to make a declaration, to a
Muslim to be governed by the Muslim Law, in absence of such declaration, the provision
provides an implied power to the courts to not be bound by such law while deciding a matter
ruled by Section 2, and 3 in dispute.

● Shayara Bano v. Union of India (2017)

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 Unit 5
Marriage under Muslim Law
Marriage is an institution which legalizes the sexual relations between man and woman so as to
preserve the human species, the growth of descent, promotion of love and union between the
parties and the mutual help to earn livelihood'. It is allowed between two persons of different sex
to whose mutual cohabitation there is no natural or legal bar or prohibition. Marriage, whether
considered as a sacrament or as a contract, apart from giving rise to certain mutual rights and
obligations, confers the status of husband and wife on the parties, and of legitimacy on the
children of marriage. The most remarkable feature of Muslim jurisprudence is that the Muslims
considered marriage a civil contract even at the beginning of the development of their juristic
thought but to the extent in which the Hindus and Christians call their marriage as sacrament, a
permanent union, the Muslim marriage too may be called an ibadat (devotional act).

MARRIAGE
The exclusiveness of the Muslim marriage and divorce rules has made an interesting topic for
discussions among legal luminaries and among the social scientists. Some of the characteristics
of Muslim marriage are unlike those of the Hindu Marriage. A Muslim marriage or Nikah as it is
called in Arabic, has fixed and rigid rules which had been laid down by the Prophet (SAW).

According to dictionary of Islam is as: "The celebration of the marriage contract (Urs), Persian
(Shadi), marriage is enjoined upon every Muslim, and celibacy is frequently condemned by
Mohammed and "Nikah" is defined as: "A word which, in its literal sense signifies conjunctions,
but which is in the language of law implies the marriage contract".

Other definitions:
According to Tayyab Ji : "Marriage brings about a relation based on and arising from a
permanent contract for intercours,e and procreation of children, between a man and woman,
those are after being married, become husband and wife".

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Dr. Jung is of opinion that: "Marriage though essentially a contract is also a devotional act; its
object are right of enjoyment and procreation of children and 71 regulation of social life in the
interest of society.''

Similary in view of Abdur Rahim: "The Mohammadan jurists regard the institution of marriage
as partaking both of the nature of ibadat or devotional act and in Muamalat or dealings among
men".'

Essentials of Marriage:
1. Offer (Ijab) and acceptance (Qubul)
2. Competent parties
3. No legal disability According to Muslim law, it is absolutely necessary that man or someone
on his behalf and the woman or someone on her behalf should agree in the marriage at one
meeting and the agreement should be witnessed by two adult witnesses.
4. Witnesses
5. Same Meeting

Legal Aspect: Juristically speaking marriage is a contract and not a sacrament. The judgement
given by justice Mahmood, the first Indian judge of the Allahabad High Court in Abdul Kadir v.
Salima'', is one of those classic pronouncements which has acquired so great reputation that even
its obiter dicta carries the legal sanctity of ratio decidendi. Two divergent opinions come out of
those two decisions regarding this issue. The first one regards a Muslim marriage as purely a
civil contract and not a sacrament, while the later one considers the marriage in Muslim law, as
not only a civil contract but also as a religious sacrament.

Anis Begum Case- Marriage under Muslim Law is a Sacrament.

Hafizunnisa Case- Marriage under Muslim Law is neither a contract nor a sacrament, rather, it
is a sacrosanct.

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Classification of marriages under Muslim Marriage
In Mohammedan culture, has always been considered as a social necessity. There are several
kinds of marriage under Islamic law. Marriage in Islam is considered to be a social contract. The
husband and the wife and their respective families enter into an agreement whereby the
husband’s family pays an amount of money called the (mehr) to the girl and her family and in
return, the girl agrees to marry the boy. Therefore, this is a social arrangement which is called
nikah in Islam.

Classification of Marriage under Muslim Law There are two sects of Muslims all over the world
divided by their beliefs and traditions, viz. Sunni Muslims and Shia Muslims. Marriages in both
the sects are conducted in different ways with different traditions and customs and because of
which there are several forms of marriage under Islamic law. Moreover, as aforementioned,
Islamic marriages are social contracts and legally binding upon the parties. Hence, since this is a
contract, it is classified accordingly.

The classification of marriages under Muslim laws are:

1. Sahih Nikah (Valid Marriage)
2. Batil Nikah (Void Marriage)
3. Fasid Nikah (Irregular Marriage)

1. Sahih Marriage
There are certain social and legal implications of a valid marriage which can be enlisted
hereunder as follows:

∙ The spouses become legally married owing to which they can legally consummate their
marriage.
∙ Due to the marriage, the parties acquire the rights of inheritance over the properties which can
be inherited.
∙ Although, the Muslim law does not allow maintenance to the fie in case of a divorce because it
is believed that the dower paid at the time of marriage is sufficient for her well-being.

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Nevertheless, the Supreme Court has made it clear that after a valid marriage, the wife has to
right to alimony and maintenance for her and the children.
∙ The right to maintenance is an independent right beside the right to receive the promised
dower.
∙ The spouses have to be loyal and faithful to each other. However, a Muslim man is allowed to
commit polygamy, so it is only the wife who needs to be loyal to the man after the marriage.
∙ The Quran allows a man to reprimand or chastise his wife by reasonable means if the wife is
disobedient or disloyal towards him.
∙ The kids, if any, who are born due to the consummation of a sahih marriage are considered to
be legitimate children.
∙ In case of the wife being a widow or being divorced by her husband, she is obliged under the
Muslim law to perform the ritual of Iddat under which the wife cannot remarry any other person
before a period of 90 days from the date of death of the husband expires. This is to ensure that
the woman was not pregnant at the time of the husband’s death. Batil Nikah (Void Marriage)
According to the Indian Contract Act, 1872, an agreement which is not legally enforceable is a
void agreement.

2. Batil Marriage
The following are certain situations in which a Muslim marriage is void:

1. When a marriage takes place between persons who are absolutely incapable.
2. When a person marries to the wife of another man when the marriage of the lady was
subsisting.
3. Marrying more than four wives. In such a case, the fifth marriage and so on becomes void.
4. Marriage with a Non-Muslim.
5. In Tanjela Bibi v. Bajrul Sheikh, the court held that a marriage with a woman who is pregnant
from before the marriage is void. The above-mentioned list is mere examples and not an
exhaustive list of void marriages.

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The essential social and legal implications of void marriage are:
∙ The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the
marriage is consummated.
∙ A void marriage does entitle the parties to any legal right or bestow any legal duties upon
them.
∙ If the marriage turns out to be void, the right to receive maintenance after divorce is lost.
∙ The kids, if any, born from the consummation of a void marriage are considered illegitimate
and have not right of succession or inheritance.
∙ The spouses do not require to obtain a decree of divorce in case of void marriages. They can
simply part without any legal formalities.

3. Fasid Nikah
(Irregular Marriage) In Ata Mohammed. v. Saiqul Bibi, it was observed that when a marriage is
temporarily prohibited and not certainly restricted it is merely irregular or fasid and not void. An
irregular marriage has several aspects involved and various points of view. Irregular marriages
exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void
marriage.

These implications are:

∙ Unless the marriage is consummated, the wife has no right to receive dower from the husband
in the case, he divorces her.
∙ The wife is not bound to follow the rule of iddat, i.e. prohibition from remarriage within 3
months of divorce if the marriage is not consummated.
∙ The wife has no right to claim maintenance from the husband during the iddat period of three
months.
∙ If the irregular marriage is consummated and results in the birth of children, the children will
be considered legitimate and shall have all rights of inheritance of properties.

Muta Marriage

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Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims and not Sunni sect
of Muslims. To understand this marriage, it is essential to know the background of this marriage.
Most of the Arabian countries such as Abu Dhabi, Dubai, etc. have Shia sect of Muslims. The
people usually called the Sheikhs were involved in the business of oil-producing, refining and
exporting. Due to business agreements, they were required to travel far places and stay there for
several days or even months. During this period, the Sheikhs required to fulfil their sexual needs
and desires but, however, Islam does not allow cohabitation with any woman other than a
person’s own wife. Therefore, the Sheikhs used to marry the women for a temporary period till
they were in that town and at the time of leaving, they get divorced and the dower was paid as
the consideration for marrying.

This concept of marriage was recognized in Muslim personal law by the Shia sect and is called
Muta marriage. Muta marriage is a temporary marriage between a Shia Muslim man and a
woman of Islam, Jew or Christian religion for a fixed period of time and in return of the payment
of a fixed amount of dower at the time of divorce. The time period and the dower must be
informed and accepted by the bride as well. This marriage is not followed in Sunni Muslims
which consider marriage to be a permanent union and not a temporary affair.

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 Unit 6
Mahr

In pre-Islamic Arabia, when the institution of marriage as we know it today was not developed,
many forms of sexual relationships existed. Some were hardly better than prostitution. Men, after
despoiling their wives, often turned them out, helpless and without any means. Under this
background, Islam tried to provide just treatment for wives. In Muslim Law, a husband can
divorce his wife at his whim, and to ensure that the woman is not left helpless and without any
means, the concept of Mahr was brought in. It forces the husband to pay a certain amount to the
wife either at the time of marriage or at the time of dissolution of marriage. This amount acts as a
security to the wife in case she is turned out by the husband or in her old age.

Definition – As per Tyabji, Mahr is a sum that becomes payable by the husband to the wife on
marriage either by agreement between the parties or by operation of law. It may either be prompt
(Mu ajjal) or deferred (Mu wajjal).
According to Amir Ali, Mahr is a consideration that belongs absolutely to the wife.

In Saburunnessa v. Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is like a
contract where wife is the property and Mahr is the price or consideration. However, it is also
true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.

Importance of Mahr

Marriage in Muslim Law provides absolute power to the husband to divorce his wife. It also
allows the husband to have multiple wives. This often results in a desperate situation for women

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because they are left with no means to support themselves. Mahr mitigates this issue to a certain
extent. Therefore, Mahr is very important for balancing the rights of the husband and wife. Mahr
is an absolute requirement of Muslim marriage and so, even if Mahr is not specified at the time
of marriage, the law will presume it by virtue of the contract of marriage itself. Even if a woman
stipulates to forgo the Mahr, her declaration will be invalid.

In Abdul Kadir v. Salima AIR 1980, J Mahmood has observed that the marriage contract is
easily dissoluble and the freedom of divorce and of polygamy to a husband places the power in
the hands of the husband, which the Muslim law intends to restrain by the mechanism of Mahr.
Thus, the right of a wife to her Mahr is a fundamental feature of the marriage contract.

Thus, Mahr serves the following purposes –

1. to impose an obligation on the husband as a mark of respect to the wife.
2. to place a check on the power of the husband to divorce and polygamy.
3. to provide for the subsistence of the wife in the event she is divorced by the husband.

● Important Case Law- Humaira Bibi v. Zubaida Bibi

Nature of Mahr

Mahr is an essential requirement of Muslim marriage. Thus, it is obligatory for the husband to
pay Mahr to the wife upon marriage. A wife has an unrestricted right to demand Mahr from her
husband. In Abdul Kadir v. Salima AIR 1980, J Mahmood observed that Mahr may be
regarded as a consideration for connubial intercourse by way of analogy to the contract for sale.
It provides the woman with the right to resist the husband until Mahr is paid. This right is akin to
the right of lien of a vendor upon sold goods while they remain in his possession and so long as
the price for the goods has not been paid.

In Smt Nasra Begum v. Rizwan Ali AIR 1980, it was held that right to dower precedes
cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.

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The right of a wife to her dower puts her in a similar position as that of other creditors. Just like
other creditors, she must be paid out of the property of the husband. Thus, it can be said that
Mahr is a kind of debt upon the husband incurred in marriage. However, at the same time,
payment of Mahr is not a charge upon the estate of the husband, unless an agreement is made to
that effect. The interest that a wife has over the property of her husband in lieu of dower debt is
limited to existing lawful possession towards herself enjoyment only. It does not give her the
right to alienate the property. After the death of the husband, she can sue the heirs for the dower
but the heirs are not personally liable for it. They are liable only to the extent of their share in the
inherited property.

A dower can also be secured by an agreement just like any other debt. In Syed Sabir Hussain v.
Farzand Hussain, a father stood surety for payment of dower by his minor son. After his death,
his estate was held liable for the payment of his son’s dower.

Legal Consequences of Mahr (Rights of wife in case of non-payment of Mahr)

1. Dower is like a debt and the husband is liable to pay it to the wife before the consummation of
marriage. Until it is paid, the wife has a right to resist cohabitation with the husband.
2. If the wife is in possession of husband’s property, she has a right to retain it until dower is
paid. She does not get a title to the property and does not get a right to alienate it.
3. Wife can sue heirs of the husband for payment of dower.
4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to
divorce or due to death.
5. Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her
heirs can demand it.
6. If dower has not been agreed upon at the time of marriage, courts can decide the amount of
dower by taking the financial status of the husband, age of the wife, cost of living, and
property of the wife, into consideration.

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Kinds of Mahr

Mahr is of two kinds – Specified (Mahr-i-Musamma) and Customary or Proper (Mahr-i-Misl)

Specified Dower means the dower that has been agreed upon by the parties at the time of
marriage. Such a dower can be settled before marriage, at the time of marriage, or even after the
marriage. In case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed
by the guardian is binding upon the boy and after attaining puberty or majority, he cannot take
the plea that he was not a party to it.

A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but
he cannot settle for less than 10 dhirams in Sunni Law. Shia law has no minimum. For those
Muslims who are so poor that they cannot even pay 10 dhirams, they can teach the wife Quran in
lieu of paying Mahr.

Specified dower can further be divided into two categories – Prompt (Muajjal) and Deferred
(Muwajjal).

Muajjal – As the names suggest, Muajjal dower means that the dower is payable immediately
upon the marriage.

Right of wife over husband’s property

Dower ranks as debt and the wife is entitled, along with other creditors, to have it satisfied on the
death of husband out of his estate. Her debt, however, is no greater than any other unsecured
creditor except that if she is lawfully in possession of the husband’s property, she is entitled to
that possession until she is able to satisfy her debt by the rents or issues accruing out of the
property. She is also entitled to possession against the heirs of the husband until her dower is
satisfied.

Limitations on right of retention

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This right arises only after the death of the husband or after divorce. During the course of
marriage, a wife does not have any right to retain the property. She should have obtained the
possession lawfully. Right to retention is not analogous to mortgage. Thus, she does not get title
to the property in case dower is not paid. Further, if the property is mortgaged, the wife cannot
retain possession against the mortgagee.

Wife cannot alienate the property. She has to satisfy the dower only though the rents or other
issues accruing from the property.

In a leading case of Maina Bibi v. Chaudhary Vakil Ahmad 1924, one Moinuddin died
leaving his widow Miana Bibi and some property. The respondents instituted a suit against the
widow for immediate possession of the property. However, the widow claimed that she had the
right to possession until her dower was paid. It was held that the respondents could have the
possession of their share of the property after paying the dower to the widow. The respondents
did not pay and the widow continued possession. Later, the widow sold the property. The deed
showed that the widow tried to convey an absolute title to the property. The respondents again
filed the suit claiming that the widow did not have the right to transfer property because she only
had a right to retain and did not have any right to title for herself. It was held by the privy council
that a widow has the right to retain the possession of the property acquired peacefully and
lawfully until she is paid her dower. Further, she has no right to alienate the property by sale,
mortgage, gift, or otherwise.

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 Unit 7
Divorce under Muslim Law

Dissolution of Marriage
1. By death of Parties

2. By act of Parties

i) Judicial Divorce
a) Under Dissolution of Muslim Marriage Act, 1939

ii) Extra Judicial Divorce

a) By Husband

i) Talaq
♦ Talaq-ul- Sunnat (Ahsan and Hasan)

♦ Talaq-ul-Biddat (Triple Talaq)

ii) Ila
iii) Zihar
b) By Mutual Consent

i) Khula
ii) Mubarat
c) By Wife

i) Talaq-e-tafweez
ii) Lian
iii) Fashk

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Talaq-ul-sunnat

a. Ahsan: Hedaya brands it as the most laudable divorce, where the husband repudiates his wife
by a single pronouncement in a period of tuhr (purity, i.e., when the wife is free from her
menstrual courses), during which he has not had intercourse with her, and then leaves her to the
observance of iddat. The divorce remains revocable during the iddat, and the parties retain the
right of inheritance. (Most Approved)

b. Hasan: In talak hasan, the husband successively pronounces divorce three times during
consecutive periods of purity (tuhr). It is, therefore, "a divorce upon a divorce", where the first
and second pronouncements are revoked and followed by a third, only then talak becomes
irrevocable. It is also essential that no intercourse should have taken place during that particular
period of purity in which the pronouncement has been made. Where the wife is not subject to
menstrual courses, an interval of 30 days is required between each successive repudiation.
(Approved)
Quran 2:239

Talak-When becomes irrevocable:

(ii) Talak ahsan becomes irrevocable on the completion of the period of iddat.
(iii) Talak hasan comes into force on the very point when the third pronouncement
is made. Iddat factor has no influence on it.
(iv) (iii) Talak-ul-Biddat of both typestriple or single also becomes irrevocable
right on pronouncement.
(v) (iv)In case of unconsummated marriage talak becomes irrevocable right on
pronouncement.
(vi) (v) A written talak comes into effect from the moment of its execution, unless
it is ambiguous.
Quran – 2: 236

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In Rahema Khatoon v. Iqtidar-Uddin the husband, on entering the room of the wife on the
very first day of the marriage called her 'a wife in name only. The court refused to accept it as an
Ila in absence of a clear intention. Ila is not in practice in India. Zihar (injurious comparison):
Zihar signifies a husband comparison of his wife with his mother or any female relation within
the prohibited degrees. In Zihar, the usual phrase is "thou art to me as the back of my mother.
The uttering of Zihar does not by itself dissolve the marriages its legal effects are that sexual
intercourse between them becomes unlawful till he has expiated himself by performing penance,
and two, the wife can claim judicial separation or even a regular divorce if he continues to
behave irresponsibly in this fashion.

According to Ameer Ali the intention of the husband must be to show disrespect to the wife. Shia
Law requires presence of two witnesses to testify the Zihar. It seems Zihar was practised to
dissolve Muta marriage which admits no other forms of talak. Zihar is also out of vogue, 'these
words do not naturally come to Muslims in India.

By the wife Talak-e-Tafwid (delegated divorce) Baillie defines it as follows: "As a man may in
person repudiate his wife, so he may commit the power of repudiating her to herself or to a third
party." That is, the husband may delegate the power of divorce to his wife. He may do so at the
time of marriage contract or at any time when he so likes. This doctrine is peculiar to the Muslim
Law and has no parallel in other systems.

Khula (redemption): If the mutual relationship between the husband and wife is not good, the
wife, if she so desires, may seek a Khula divorce, e.g. by relinquishing her claim to the dower. It,
however, entirely depends upon the husband to accept the consideration of dower and to grant
the divorce. A husband may similarly propose a Khula divorce; the wife may accept or refuse it.
If she accepts, it means that she has relinquished the right to get dower from her husband. Khula
may be for any consideration-dower, money, property, etc. Wife's failure to pay the
consideration agreed upon in a Khula divorce does not invalidate the divorce, so as to enable the
husband to sue for restitution of conjugal rights, but only entitles him (a) to claim the release of
dower, or (b) to sue for any money or property due under the agreement.

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Mubarat (mutual freeing): When the divorce is effected by mutual consent of the husband and
wife, it is known as mubarat at (i.e. freeing one another mutually). The word mubarat 'at or
mubara'at indicates the freeing of each other (from the marriage tie) by mutual agreement. As
Fyzee puts it, while in Khula the request proceeds from the wife to be released and the husband
agrees for certain consideration, usually the mahr, in mubarat at apparently both are happy at the
prospects of being rid of each other. No formal form is insisted on for mubarat'at by the Sunnis.

By Judicial Process: Lian (mutual imprecation): The wife is entitled to sue for a divorce on the
ground that her husband has falsely charged her with adultery. At the hearing of the suit, the
husband had two alternatives: i) he may retract (withdraw) the charge before the end of the trial,
in which case the wife could not get a divorce, or (ii) to persist in his attitude, whereby he will be
required to accuse his wife on oath. This is followed by oaths of innocency made by the wife.
After these "mutual imprecations", the court dissolves the marriage. The husband and wife both
must be sane adults; the charge must be false, i.e. one not proved to be true; the wife must file a
regular suit for the dissolution of marriage making the false charge the ground for seeking
divorce.
In Nurjahan Bibi v. Mohd. Kazim Ali whereon husband bringing a false charge on wife (lian)
the court granted the wife the decree for dissolution of marriage under Section 2(ix) of the
Dissolution of Muslim Marriages Act, 1939, it was observed by Bhattacharya, J., that the
doctrine of lian had not become obsolete. Faskh (judicial annulment): Faskh means annulment. It
refers to the power of Kazi (in India, law court) to annul a marriage on the application of the
wife. The law of faskh is founded upon Koran and Tradition, "If a woman be prejudiced by a
marriage, let it be broken off (Bukhari). In India, such judicial annulments are governed by
Section 2 of the Dissolution of Muslim Marriages Act, 1939.

Prior to the Act, the Muslim women should apply for dissolution of marriage under the doctrine
of faskh on 4 grounds:
(i) The marriage was irregular,
(ii) (ii) in exercise of the right of option - Khyar-ul-Bulugh,
(iii) (iii) the marriage was within the prohibited degrees of relationship.

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 (iv) (iv) Post-marriage conversion of the parties to Islam. Two more grounds could
be added: Impotency of the husband and lian.

In K.C. Moyin v. Nafeesa the court had held that under no circumstances could a Muslim woman
unilaterally repudiate a marriage by faskh, it had no legal sanction without seeking the
intervention of the court.

Dissolution of Muslim Marriage Act, 1939 Before passing of the act of 1939, a Muslim woman
could apply for dissolution of marriage on three grounds:
i) impotency of the husband;
ii) lian (false charge of adultery),
iii) repudiation of marriage by the wife.

The provisions of Section 2 may be given retrospective effect. Grounds of divorce: A woman
married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage
on any one or more of the following grounds, namely:
1. that the whereabouts of the husband have not been known for a period of four
years;
2. that the husband has neglected or has failed to provide for her maintenance for
a period of two years;
3. that the husband has been sentenced to imprisonment for a period of seven
years or upwards;
4. that the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;
5. that the husband was impotent at the time of the marriage and continues to be
so;
6. that the husband has been insane for a period of two years or, is suffering from
leprosy or a virulent venereal disease;

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 7. that she, having been given in marriage by her father or other guardian before
she attained the age of fifteen years, repudiated the marriage before attaining
the age of eighteen years; provided that the marriage has not been
consummated;
8. that the husband treats her with cruelty, that is to say,- (a) habitually assaults
her or makes her life miserable by cruelty of conduct even if such conduct
does not amount to physical ill-treatment, or (b) associates with women of evil
repute or leads an infamous life, or (c) attempts to force her to lead an
immoral life, or (d) disposes of her property or prevents her in exercising her
legal rights over it, or (e) obstructs her in the observance of her religious
profession or practice, or (f) if he has more wives than one, does not treat her
equitably in accordance with the injunctions of the Quran; ix) on any other
ground which is recognized as valid for the dissolution of marriages under
Muslim law.
9. On any other ground

In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of
impotency. The husband made an application before the court seeking an order for proving his
potency. The court allowed him to prove his potency. If the husband has been insane for a period
of two years or is suffering from leprosy or a virulent venereal disease: The husband's insanity
must be for two or more years immediately preceding the presentation of the suit. But this act
does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be
white or black or cause the skin to wither away. It may be curable or incurable. Venereal disease
is a disease of the sex organs.

The genuineness of belief in the new faith is immaterial and even when a convert does not
practice the new faith, he will continue to be a Muslim. But it is necessary that the conversion
should be bona fide, honest, and should not be pretended colorable or dishonest. In Skinner v.
Orde, a Christian woman was cohabiting with a married Christian man. With a view to
legalizing their living together as husband and wife, both of them underwent a ceremony of

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conversion to Islam. After conversion, they married. Later on, when the question of validity of
this marriage arose, the Privy Council held that the marriage was null and void on the ground
that conversion was not bona fide. Moreover, it was a fraud upon the law, since the parties
underwent the ceremony of conversion with a view to eluding their personal law. The reason
behind such conversions was either to claim divorce on the ground of apostasy, or to take
advantage of the Muslim law provision which permits polygamy. It is happening that Hindu or
Christian who wants to take a second wife and who has no ground available to divorce his first
wife, converts to Islam and takes another wife. Since Muslim law permits polygamy, such a
person cannot be prosecuted for bigamy, and his former spouse has to put up with such situation.
Thus, in the matter of Ram Kumari, a Hindu married woman adopted Islam and assuming that
this meant automatic dissolution of her marriage, took a second husband. She was prosecuted
and convicted for bigamy.

In Sarla Mudgal v. Union of India, the Supreme Court of India, while interpreting the scope
and extent of Section 494 of the Indian Penal Code, made the following observations: ‘.....that
the second marriage of a Hindu husband after conversion to Islam, without having his first
marriage dissolved under law, would be invalid. The second marriage would be void in terms of
the provisions of Section 494 I.P.C. and the apostate husband would be guilty of the offence
under Section 494 I.P.C.” in Lily Thomas v, Union of India, G.C.Ghosh and Smt. Sushmita
Ghosh were married according to Hindu rites on 10th May 1984. Both were living happily at
Delhi. In June 1992, the husband married a second wife. For legalizing the second marriage, he
embraced Islam. He, in fact married one divorcee named Ms. Vanita Gupta having two children.
The husband told his first wife that she should agree to her divorce; otherwise, she will have to
put up with the second wife. He insisted his wife on several occasions to get a divorce by mutual
agreement; otherwise, she (Sushmita Ghosh) would be compelled to live with his second wife
(Vanita Gupta).

The husband converted to Islam solely for the purpose of re-marrying and was having no real
faith in Islam. He changed his name as Mohd. Karim Ghazi. He does not practice the Muslim
rites as prescribed nor has he changed his name or religion and other official documents. Smt.
Sushmita Ghosh approached a Woman Organization Kalyani, which came to her rescue and filed

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petition in the Supreme Court on behalf of Smt. Sushmita Ghosh. The question before the
Supreme Court was where a nonMuslim gets converted to the Muslim faith without any real
change or belief and merely with a view to avoid an earlier marriage or to enter into a second
marriage, whether the marriage entered into by him after conversion would be void.

The Supreme Court held that, conversion of the husband to Islam was illegal, and he cannot be
regarded as Muslim so as to legalize his second marriage during the subsistence of the first. The
husband was held guilty of the offence of bigamy punishable u/S. 494 I.P.C. and Sec. 17 of the
Hindu Marriage Act; because mere conversion does not automatically dissolve his first marriage.
Before advent of Islam, the husband can pronounce talak at any time and for any number of
times. They could also revoke it by taking the women back and resuming marital connection and
again pronounce talak as many times as they preferred. After advent of Islam, the prophet
Mohammad showed his dislike to it. Prophet regarded it to be the most hateful before the
Almighty god of all permitted things; for it prevents happiness and interfered with the proper
bringing up of children. Islam put a check upon the arbitrary powers of the husband. Now, after
third pronouncement, the marriage dissolves irrevocably and it is hot possible to revoke easily.
An effective check placed by Islam on frequent divorce and remarriage was that, in case of
irrevocable separation, it is essential for remarriage that the wife should marry another man, and
this marriage should be consummated before divorce, and the wife should observe iddat period.

This was a measure which rendered separation rarer. After passing of the Dissolution of Muslim
Marriage Act, 1939, the position of Muslim women is improved. This is the most progressive
enactments passed by the legislature. Now she can release from an unhappy marital tie on
various grounds recognized by Islam and also by legislation, through judicial process. Thus, with
these changes, the position of Muslim women is improved. These are welcome changes which
are desirable in the present day society. Effects of divorce Whatever be the mode, a divorce
operates as a complete severance of the matrimonial relationship between husband and wife.
After completion of every form of divorce, the marriage is dissolved and the parties cease to be
husband and wife. Effects or the legal consequences of a divorce are the following:

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(1) Cohabitation becomes illegal: Cohabitation between the husband and wife becomes unlawful
after completion of the divorce.
(2) Iddat: The wife is required to observe an Iddat of three lunar months after the divorce or, if
pregnant, till the delivery of the child. However, if the divorce takes place before consummation,
the wife need not observe Iddat.
(3) Maintenance during Iddat: During the period of Iddat, the divorced wife is entitled to be
maintained by her former husband. Maintenance of divorced wife is now governed by the
Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this Act to the former
husband is liable to maintain the divorced wife only upto the period of Iddat.
(4) Right to Contract another Marriage: Both the parties are free to contract another marriage
with other persons. Thus, husband can marry another woman immediately after the divorce. But
a divorced wife cannot marry another husband before the expiry of the period of Iddat. If their
marriage had dissolved before the consummation, the wife is also free to contract another
marriage immediately after the divorce. However, if the husband has four wives at a time and
one of them has been divorced, the husband too cannot contract another marriage during the
Iddat of the divorced wife.
(5) Dower: The unpaid dower becomes immediately payable to the divorced wife. Whether the
dower is prompt or Deferred, the divorced wife is entitled to it immediately after the divorce. If
the marriage was consummated, she is entitled to the full amount of her Specified Dower; if the
divorce takes place before consummation then she is entitled to only half of the Specified Dower.
Where dower was not specified, she is entitled to Proper Dower; but if divorce takes place before
consummation, she is entitled to get only some presents. It is to be noted that Section 5 of the
Dissolution of Muslim Marriages Act, 1939, provides that the Act does not affect, in any
manner, the right to dower which a married woman may have under Muslim law on the
dissolution of her marriage. Therefore, where a wife seeks a judicial divorce under this Act her
right to claim dower is not lost; she is entitled to dower in accordance with the rules of Muslim
personal law.
(6) Remarriage between the Divorced Couple: After completion of divorce, the parties cease to
be husband and wife. There is no restriction in their re-marriage with other persons. But, there is
some restriction in the re-marriage of the divorced couple. Muslim law prescribes certain special
rules for the re-marriage between divorced husband and wife.

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These special rules are given below:

(a) The re-marriage of the divorced couple must be a fresh contract of marriage with
all the essential formalities including fresh dower. If the divorced couple resumes
cohabitation without contracting a fresh marriage, their union would be unlawful.
(b) The divorced couple cannot remarry even by a fresh contract without adopting the
following special procedure:
(i) After completion of divorce the divorced wife observes the required Iddat.
When Iddat is completed, the divorced wife contracts a valid marriage with
another person. This marriage with the other person should not be merely a
formality. It must be consummated.

(ii) The marriage with such other person dissolves. The husband either voluntarily
divorces the wife or is himself dead and the wife observes Iddat.

(iii) Now, after the expiry of this Iddat, the wife may lawfully remarry the former
husband.

Thus, we find that for a lawful remarriage between the divorced couples, two conditions are
necessary: First, there must be a fresh contract of marriage between them and secondly the
prescribed ‘special procedure’ must be followed. If there is fresh contract but special procedure
has not been followed, the marriage is irregular. But, if there is no fresh contract, the marriage is
void. That is to say, if there is mere resumption of cohabitation there is no re-marriage and the
union is void.

Mutual Rights of Inheritance Ceases: Upon the completion of a divorce i.e. when it becomes
irrevocable, the mutual rights of inheritance between the spouse cease. That is to say, if husband
dies after the divorce, the wife is not entitled to inherit his properties. In the same manner, if the

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wife dies, the husband cannot inherit her properties. But, if the divorce was pronounced during
the husband’s death-illness (Marz-ul-Maut), this general rule is not applicable.

Important Case Law: Sarla Mudgal v. Union of India

Maintenance during Subsistence of Marriage

Under Muslim law, a husband is obliged to maintain his wife and family, and the term
maintenance signifies the amount he is liable to pay for the same. The term used for maintenance
under Muslim Law is is called nafaqa and it comprehends food, raiment and lodging, The wife is
entitled to maintenance from husband, despite the fact that she has means to maintain herself. In
addition to this, the marriage contract may stipulate payment of special allowances by the
husband, and in presence of these, it becomes the obligation of the husband to pay these to the
wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc. This can be claimed
as a right.

The Three sources from which these rights emanate are:

1. Muslim Personal Law.
2. Section 125, CrPC.
3. The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Maintenance of Divorcees under Muslim Law

Maintenance under, CrPC- Before and After 1973:

Initially, it was provided in the CrPC(earlier under section 488) that only a wife is entitled to
maintenance by husband. It was claimed by the husbands that once dissolution takes place, a
woman ceases to be a wife and hence is not longer entitled to maintenance.

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Looking at this loophole, an amendment was made in 1973, wherein under section 125, a
divorcee was entitled to maintenance till the time she remarries. Being secular in nature, this
provision applies to all women, including Muslim women.

Conflict of Muslim Personal Law with section 125 of CrPC:

Under Muslim Personal Law, a woman is entitled to maintenance only till the end of the Iddat
period. Iddat is the period when co-habitation of the parties end, on the expiry of iddat the
spouses will stand divorced. The period of iddat consists of three menstrual cycles or three lunar
months , in case of pregnant women , the iddat period would extend up to the time of delivery.
Hence, we can see a direct conflict, since CrPC does not recognize iddat period and maintenance
goes beyond the same.

In Mohammed Haneefa v. Mariam Bi the Court stated that in case of a clash between personal
law and CrPC, the former shall prevail. This position was seconded by the Supreme Court in
Saira Bano v A.M Abdul Gafoor.

This caused a lot of dilemma in the legislature. To resolve this dilemma, Section 127(3) (b)was
added under which that if a divorced woman receives an amount due to customary or personal
laws of the community, the magistrate can cancel any order for maintenance in her favour.

Judicial Decisions interpreting the Scope of Section 127:

It was held in Bai Tahira vs Ali Hussain Fissalli that payment of "illusory sums" focused
around the Muslim personal laws ought to be considered to diminish the measure of maintenance
payable by the spouse, however that does not acquit the spouse from the liability in light of the
fact that each lady independent of her religion is entitled to maintenance. The divorced wife has
this right except from when the aggregate payment stipulated by custom is pretty much sufficient
to substitute the maintenance.

An extra requirement was included by the Apex court in Fuzlunbi v. K Khader Vali. The sum
focused around Muslim law must be pretty much identical to the month by month maintenance

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to the divorcee, required till her remarriage or demise, with a specific end goal to substitute the
maintenance.

The Supreme Court expressed in Zohara Khatoon v. Mohd. Ibrahim that the expression "wife"
in S.125 and S.127 of CrPC incorporates Muslim ladies who get separated by method for Talaq
or under the Dissolution of Muslim Marriage Act,1939. Therefore, the conflict between Muslim
Personal Law and CrPC still continued, and section 127 was not sufficient to satisfy the Muslim
community who opposed section 125 as a detriment to their personal laws.

Mohd Ahmad Khan v. Shah Bano Begum or the Shah Bano Case:
In the present case, a 62-year-old woman was divorced and subsequently denied maintenance.
She had not remarried. On moving the court of the Judicial Magistrate at Indore under section
125 of the CrPC, and claiming maintenance of Rs 500 per month, she was awarded a
maintenance of Rs 25 per month from the husband. Aggrieved by the low amount, she filed a
revision petition before the Madhya Pradesh High Court, which entitled her to a maintenance of
Rs 179.20 per month. The husband appealed against this order before the Supreme Court, his
main contention being that since the dissolution had taken place, she ceased to be his wife and
under Muslim law, he was not obliged to pay her maintenance. Also, since he had paid the dower
amount during the Iddat period, the wife was not entitled to any maintenance.

The Supreme Court dismissed the appeal and upheld the decision of the High Court. The
Supreme Court explained this judgment by saying that, even if there is a conflict, section 125 of
CrPC is a secular law, and hence, applies to all women, irrespective of their religion. It further
stated that CrPC shall prevail over Muslim Personal Law in case of a conflict.

Developments Post Shah Bano Case:

The Rajeev Gandhi government, coming under pressure from Islamist groups decided to nullify
the judgment, and in a effort to do the same, it passed The Muslim Women (Protection Of Rights
On Divorce) Act, 1986.This act became one of the most controversial legislations enacted. The
relevant provisions of this act are sections 3(1)(a) and 4(1), which stated that the former husband

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must provide “a reasonable and fair provision” and maintenance within the period of iddat and,
that in case she is unable to maintain herself after the period of iddat, she can claim maintenance
from her relatives and if they cannot pay , then she can claim from the Wakf Board as per
S.4(2),respectively.

In this case, a writ was filed under Article 32 challenging the constitutional validity of the Act.

In this case the constitutional validity of the Act was upheld and an interpretation of the
provisions of the Act was provided. The court concluded that, one, the Act does not violate
Articles 14, 15 and 21 and hence, is not ultra vires.

The court made the following interpretations.

Firstly, interpreting the meaning of the term “within” used under section 3(1)(a) of the Act read
with the terms terms fair and reasonable, the court arrived at the conclusion that the maintenance,
being fair and reasonable, should exceed the iddat period but must be made within the iddat
period. Such maintenance made during iddat period should be for her entire future, that is the
time after the expiration of iddat period as well. The liability of the husband, therefore, is not
limited to the iddat period. Therefore, this Act is not in contravention of section 125 of CrPC.

Effects of Daniel Latifi Judgment:

Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the
husband’s liability to maintain his wife doesn’t end with the iddat period. However, it explained
this principle, not as contravening the Act which was enacted as a result of the Shah Bano case,
as a commentary on that Act.

Also, the Act is consistent with section 125 of the CrPC and hence, there is no scope for conflict.
Hence, the position of law is that, the provisions of the Act basically emanate from principles set
forth in the Shah Bano case. The same has not been changed till now, and continues to govern
matters related to maintenance of Muslim women after dissolution of marriage.

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The Present position

The principle has been seconded by the Supreme Court once again in Iqbal Bano V/s. State of
U.P. In the case the court reiterated the position that divorced women are entitled for
maintenance beyond the Iddat period and stated that provisions of the Act do not contravene
Article 14, 15 & 21 of the Indian Constitution.

The court further observed that “right under Section 125 of Cr. P.C. extinguishes only when she
receives “fair or reasonable” settlement u/Sec. 3 of the Muslim Women Act. The wife will be
entitled to receive maintenance u/Sec. 125 of Cr.P.C. until the husband fulfils his obligation
u/Sec. 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.

Chapter 8
Wills

Concept of will under Muslim Law

A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes
disposition of his property to take effect after his death.”

Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or

advantage or in a gratuity to take effect on the death of the testator.”

The distinguishing feature of a Will is that it becomes effective after the death of the testator and
it is revocable.

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Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property
bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any
manner whatsoever in the legator's power of enjoyment of the property including its disposal or
transfer (in that case the Will becomes revoked).

Object and Significance of Wills

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of
members of family and other relatives where they cannot be properly provided for by the law of
inheritance.
At the same time the prophet has declared that the power should not be exercised to the injury of
the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would
reduce their shares and would consequently induce a breach of the ties of kindred.

Thus the policy of the Muslim law is to permit a man to give away the whole of his property by
gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will
with the course of the devolution of property according to the laws of inheritance. A Will offers
to the testator the means of correcting to a certain extent the law of succession, and enabling
some of those relatives who are excluded from inheritance to obtain a share in his property, and
recognizing the services rendered to him by a stranger.

Formality of a Will

As a general rule, no formality is required for making a Will.

No writing is necessary to make a Will valid, and no particular form, even verbal declaration is
necessary so long as the intention of the testator is sufficiently ascertained.

Where the Will is reduced to writing it is called a ‘Wasiyatnama.’ If it is in writing it need not be
signed. It does not require attestation and if it is attested there is no need to get it registered.

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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.

In case, a Will is oral, the intention of the testator should be sufficiently ascertained. In
comparison to a Will in writing which is easier to prove, the burden to prove an oral Will is
heavy.

Requisites of a Valid Will

• The testator (legator) must he competent to make the Will.

• The legatee (testatrix) must be competent to take the legacy or bequest.
• The subject (property) of bequest must be a valid one.
• The bequest must be within the limits imposed on the testamentary power of a Muslim.

Testator and his Competence (Who can make Will)

Every major Muslim (above 18 years) of sound mind can make a Will.
The age of majority is governed by the Indian Majority Act, 1875, under which, a person attains
majority on completion of 18 years (or on completion of 21 years, if he is under supervision of
Courts of Wards).

Thus, the testator must be of 18 or 21 years, as the case may he, at the time of execution of the
Will.

At the time of execution of a Will (i.e. when it is being made), the testator must be of sound
mind.
Under Muslim law, the legator must have a perfectly ‘disposing mind’ i.e. the legator must be
capable of knowing fully the legal consequences of his activities not only for a brief period when
the declaration was made, but much after that.

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A Will that is executed in apprehension of death is valid, but under the Shia law, if a person
executes any Will after attempting to commit suicide, the Will is void.

A minor is incompetent to make a Will (such a Will is void) but a Will made by minor may
subsequently be validated by his ratification on attaining majority.

A Will procured by undue influence, coercion or fraud is not valid, and the court takes great care
in admitting the Will of a pardanashin lady.

Thus, a Will must be executed by a legator with his free consent.

The legator must be a Muslim “at the time of making or execution of the Will.” A Will operates
only after the death of the legator; before his death, it is simply a mere declaration on the basis of
which the legatee may get the property in future.

If a Will has been executed by a Muslim who ceases to be a Muslim at the time of his death, the
Will is valid under Muslim law.

Also, the Will is governed by the rules of that school of Muslim law to which the legator
belonged at the time of execution of the Will. For example, if the legator was a Shia Muslim at
the time when he wrote the Will, only Shia law of Will is made applicable.

Legatee and his Competence (To whom Will can be made)

Any person capable 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.

Legatee (including a child in its mother's womb) must be in existence at the time of making of
the Will. Thus, a bequest to a person unborn person is void.

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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 e.g. to an idol in Hindu temple, because idol
worship is opposed to Islam.

No one can be made the beneficial owner of shares against his will. Therefore, the title to the
subject of bequest can only be completed with the express or implied consent of the legatee after
the death of the testator. The legatee has the right to disclaim.

A person who has caused the death of the legator cannot be a competent legatee. A Will operates
only after the death of a legator, therefore, a greedy and impatient legatee may cause the legator's
death to get properties immediately. However, it is also immaterial whether the legatee knew
about him being a beneficiary under the Will or not.

Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed by will; the property must be
capable of being transferred; and, the property must he in existence at the time of testator's death,
it is not necessary that it should be in existence at the time of making of Will.

Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject-
matter of a Will.

In order to be a valid bequest the grant in the bequeathed property must be complete or absolute.
A bequest has to be unconditional. If any condition is attached, say the legatee shall not alienate
the subject of legacy, the condition is void and the bequest is effective without condition.

Likewise, a bequest in futuro is void, and so does a contingent bequest. However, an alternative
bequest of property (i.e. to one or failing him to the other person) is valid. Thus, when the

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testator willed that his son if existing at the time of his death will take the bequest, if not in
existence his son’s son will, and failing both it will go to a charity, was held valid

Creating of ‘life estate’ is not permissible under Sunni law; the bequest of a life estate in favour
of a person would operate as if it is an absolute grant.

Under Shia law , however, the bequest of a life estate in favour of one and a vested remainder to
another after his death is valid.

Testamentary Power and its Limits (Bequeathable One-Third)

A Muslim does not possess an unlimited power of making disposition by Will.
There are two-fold restrictions on the power of a Muslim to dispose of his property by Will,
which are in respect of the person in whose favour the bequest is made, and as to the extent to
which he can dispose of his property. This is obvious, because the object behind this restriction
is to protect the interests of the testator’s heirs.

No Muslim can make a bequest of more than one-third of his net assets after payment of funeral
charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is
essential (Sunni and Shia laws).

A bequest of entire property to one heir to the exclusion of other heirs is void. Where the heirs
refuse to give their consent, the bequest would be valid only to the extent of one-third of the
property and the rest of the twothirds would go by intestate succession.

In respect of bequest of one-third to an heir, the consent of other heirs is required in Sunni law,
but not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both.
The above rule of bequeathable one-third will not apply to a case where the testator has no heir.
The right of Government to take the estate of an heirless person will not, in any way, restrict the
right of a person to make a disposition of his property as he likes. Thus Government is no heir to
an heirless person.

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A bequest made for pious purposes is valid to the extent or one-third of the property, both under
Sunni as well as Shia law. The ‘1/3rd 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
Succession Act, 1925.

Consent of Heirs
Consent by heirs under Sunni law, shall be given only after death of the testator, while in Shia it
may be before or after the death of the testator. Consent must be definitive, whether express or
implied by positive conduct, and mere silence on the part of an heir will not amount to implied
consent.

The attestation of the Will by the heirs and acquiescence in the legatee taking possession of the
property has been held to be sufficient consent. In cases where only some of the heirs give their
consent the shares of those consenting will be bound, and the legacy in excess is payable out of
the consenting heir’s share. The consent of heirs who are insolvent has been held effective in
validating a bequest. Consent once given cannot be later rescinded. Similarly, consent cannot be
given after an heir has previously repudiated it.

Bequest to Heirs and Non-heirs

Where the testator makes a bequest to heir as well as non-heir by the same legacy, in absence of
the consent of heirs, the legacy will not be invalid in its entirety but will take effect with respect
to non-heirs. The rule is that as far as possible, the Will, will be given the maximum effect that it
is capable of.
Revocation of Will
Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may
revoke, during his life-time, any Will made by him expressly or impliedly.

Thus, if he sells, makes gift of the subject of bequest or deals with the same in any other manner
like constructing a house on the piece of land bequeathed earlier, would implied revocation.

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For example, where the testator gives land to his friend under a Will but a year later gifts the
same to his daughter, the bequest in favour of the friend is automatically revoked.

Where a testator makes a Will, and by a subsequent Will gives the same property to someone
else, the prior bequest is revoked. But a subsequent bequest (though of the same property) to
another person in the same Will does not operate as a revocation of prior bequest, and the
property will be divided between the two legatees in equal shares.

It is not necessary that for revoking an earlier will, another will must be made. 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.

Death of Legatee before Operation of Will (Lapse of Legacy)

Under Sunni law where before the Will can operate, the legatee dies, the bequest will lapse and
the property bequeathed would remain 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. However, if the testator even after the
death of the legatee does not revoke the Will, on the date of operation of the Will, the benefit
under it will pass to the heirs of the legatee.

Rateable Abatement
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-third, or
in other words, the bequest abates rateably. The above rule applies in Sunni law only.

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 Unit 9
Gift

One of the briefest but most famous sayings of the Prophet is Tahadun Tahabua (exchange gifts,
for it increases mutual love). For more than 14 centuries, exchanging gifts has become a noble
tradition among Muslims all over the world. Law of hiba has this tradition as its starting point.
And Muslim jurists have evolved a very refined system of hiba law. But to translate hiba as a gift
would not be correct, as done, because in the English language there is no exact equivalent word
for hiba.

Unlike “gift” whose meaning is much more wider, “the word hiba” is a narrow and well defined
legal concept (meaning) the immediate and unqualified transfer of the corpus of the
property without any return” - Fyzee.

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DEFENATION OF “HIBA”

Abdur Rahim “A transfer of a determinate property (mal) without an exchange. Juristically, it is

treated as consisting of proposal or offer on the part of the donor to give a thing and of
acceptance of it by the done. Until acceptance, the gift has no operation.”

Mulla “Gift is a transfer of property, made immediately, and without any exchange, by one
person to another, and accepted by or on behalf of the latter.”

THREE ESSENTIALS OF A VALID "HIBA"

The following are the three essentials of a valid hiber,
1. declaration of hiba by the donor,
2. acceptance of hiba, expressly or impliedly, by or on behalf of the donee; and
3. delivery of possession of the subject-matter of hiba to the donee.

1. Declaration
Intention (niya) is a necessary component of every action in Islamic law, be it Ibadat (religious
matters) or Muamalat (worldly matters). An oral declaration may validly create a hiba. It is not
necessary that a written hiba namah (gift deed) must be executed. No registration is necessary if
hiba is made of even immovable property like land or house if it is through oral declaration.
Registration of declaration is not mandatory. Registration does not confer any special or
preferential status on the registered hiba. If someone claims to have received a land through an
oral hiba, while another person counterclaims to have received the hiba of the same land through
a written hiba which he got registered, then if the first person is unable to prove the oral hiba to
him, the second hiba with registration would take effect. But if the first done could prove the
validity of the oral hiba, then the second hiba of the same property effected through the
registration could not override the first oral hiba. (Shaik Avula Mastan v. Shaik Abid, 2006
SCC Online AP 890)

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In Hafeeza Bibi v. Sk. Farid 2011 SCC 654, the Supreme Court overruled the judgments of
various High Courts and settled the controversy regarding oral and written gift. It was held that
merely because the gif is reduced to writing instead of making it orally, such writing not
becoming the formal instrument of the gift, registration is not necessary. Form is immaterial and
cannot become the substance of the gift.

2. Acceptance of hiba
The donee must accept the gift. This acceptance may be express or implied i.e.
by conduct. The gift to minor can be accepted by his guardian on his behalf.

3. Delivery of possession
When the donor makes a declaration of gift and the donee accepts, then the possession of the
thing gifted should be given to the donee. Such delivery of possession may be actual or
constructive.

Exceptions-

 Donor and donee reside in the same house.

 Gift by husband to wife and vice-e-versa.
 Gift by father or mother to child or by guardian to ward
 Gift to donee already in possession

WHO CAN MAKE GIFT (DONOR)

Every Muslim male or female who is a major and sane may make a gift provided he or she is not
subject to any force or fraud.

IN WHOSE FAVOUR (DONEE)

A gift may be made in favour of the following:

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 1. Any living person who is capable of holding property: -Thus, strictly speaking a gift to an
unborn person is invalid. Take the example of A who makes a gift to B, and after B's
death, to his male heirs. B has got no male heirs time of the gift. The gift is invalid.

2. Child in the womb: -A gift to an unborn person may be made provided the child is born
within six months from the date of the gift because in that are presumed that the child
was actually existing as a distinct entity in the womb.

3. Unborn person: - A gift of a limited interest in the usufruct of property (arial) may be
made to an unborn person provided that the person is in existence when the interest opens
out for him. Thus, if a life interest is granted to A and thereafter to B, it is sufficient if B
is in existence at the death of A, not with-standing the fact that at the time of making the
gift B was non-existent.

4. Juristic persons: -Gifts may be made validly to such juristic persons as mosques, dargahs,
and charitable institutions like schools.

5. Non-Muslims:-A gift may be made to a non-Muslim. The gift property will be subject to
the personal law of the donee, once he gets possession of it.

6. Two or more persons: - Where a gift is made to two or more donees without dividing the
property, its validity is governed by the provisions of the doctrine of musha.

WHAT MAY BE GIVEN IN GIFT

All mal or forms of property over which control may be exercised are proper subjects of gift.
These include all mal, whether ancestral or self-acquired, movable or immovable, corporeal or
incorporeal. A corporeal thing means that which exists in material form; for example, money,
house, land, etc.; whereas, incorporeal property means that which does not exist in material form;
for example, debts, chose in action, a right to receive a specified share that may be made by
pilgrims at a shrine, an insurance policy notwithstanding the fact that the money does not exist

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and is to be realized in future, equity of redemption, government promissory notes, negotiable
instruments, etc.

MODE OF CREATION OF GIFT

No particular mode is required for the creation of gift in Muslim Law. It can be oral or written.
Under the Muslim Law, writing is not essential to the validity of a gift either of movable or
of immovable property. Sections 122 to 129 of the Transfer of Property Act, 1882, deal with
gifts. By Section 123 of this Act it is provided that a gift of immovable property must be affected
by a registered instrument signed by the donor and attested by at least two witnesses, and that a
gift of movable property may be affected either by a registered instrument signed as aforesaid or
by delivery. But the provisions of Section 123 do not apply to Muslim gifts. Section 129 of the
Transfer of Property Act states, inter alia, that nothing in the chapter shall be deemed to affect
any rule of Mohammedan Law.

Under Section 17 of the Registration Act, gift of immovable property worth over Rs. 100/- is
required to be by registered instrument. Mohammedan law permits oral gift of immovable
property, irrespective of value of the property.

Hence S. 123 of the T.P. Act about the requirement of Registered Instrument does not apply to
gifts covered by Mohammedan Law. Nevertheless Section 17 of the Registration Act applies to
gifts dealt with in Mohammedan law gift is granted not orally but in writing and if relates to
immovable worth Rs. 100/- or above, the document is compulsorily registrable. A gift under the
Muslim Law is to be effected in the manner prescribed the Muslim Law. If the formalities
prescribed by that law are complied with the gift is valid even though it is not effected by a
registered instrument a though, where effected by an instrument, the instrument is not attested
but the formalities are not complied with, the gift is not valid even though it may have been
affected in the manner prescribed by Section 123 of the Transfer of Property Act.

GIFT DURING DEATH ILLNESS (MARZ UAL MAUT- DONATION

MORTIS CAUSA)

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If the donor is suffering from death-illness or marz-ul-maut, such a gift is called donation mortis
causa. Strictly, it is neither exactly a gift, nor exactly a legacy (will), but a mixture of both.
In order to constitute the death-illness, it is essential that:
1. The illness must cause the death of the ill person;
2. The illness must create apprehension of death in the mind of the deceased, and
3. There must be some external symptoms of a serious illness.

A gift made during marz-ul-maut cannot take effect beyond one-third of the estate of the donor,
after paying funeral expenses and debts, unless the heirs give their consent after the donor's
death. Nor such a gift can take effect if made in favour an heir, unless the other heirs give their
consent, after the donor's death. A gift in death-illness takes place only when the donor dies.
Such a gift is subject to all the conditions necessary for the validity of a simple gift, including
delivery of possession by the donor to the donee.

GIFT OF MUSHA
Musha has been defined as an undivided share in an immovable or movable property, which is
divisible. Musha in law denotes the mixing up of the proprietary rights of more than one person
in a thing where each coowner has a right until the partition of the property. As delivery of
possession is one of the essentials of a valid gift, thus the possession to be delivered must be
separate and exclusive.

Hence the gift of an undivided share in a thing capable of division is void. According to Shafi‟i
and Shiite view, however, the gift of musha is valid, provided the donor, after withdrawing his
control from the subject matter of the gift, delivers it to the donee.

Musha may be of two type- joint properties which are indivisible, and those which
are divisible.

1. Where property is indivisible – A gift may be validly made of an

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undivided share in a property which is incapable of being divided, or where
the property can be used to better advantage in an undivided condition. Eg.-
a staircase, small house and small bath etc.
2. Where property is divisible:- The gift of musha of a property which is capable of being
divided is irregular but not void. Subsequent division and delivery of possession renders the gift
as valid.

A. a partner in a firm, makes a gift of his share of the partnership assets to B. The gift is not
valid unless the share is divided off and handed over to B. There are six exceptions to this
general rule.

Exception I: Where the gift is made by one co-heir to another. For exam Muslim woman dies
leaving a mother, a son and a daughter as her only pie." The mother may make a valid gift of her
undivided share in the inheritance to the son, or the daughter, or jointly to the son and daughter.

Exception II: Where the gift is of a share in a Zamindari or taluka. — For instance A, B and C
are co-sharers in a Zamindari. Each share is separately assessed by the government and has a
separate number in the Collector's book, and the proprietor of each share is entitled to collect a
definite share of rents from the Zamindari. A makes a gift of his share to Z without a partition of
the Zamindari. The gift is valid for it is not a gift strictly of musha, the share being definite and
marked off from the rest of the property.

Exception III: When the gift is to two or more persons. — X makes a gift of a house to A and B
in equal shares as tenants-in-common. The property is not divided off although their shares are
clearly defined; possession of their specific shares is not given to A and B. The gift is valid.

Exception IV: Where the gift is of a share in freehold property in a large commercial town. Thus,
where A who owns a house in Bombay makes a gift of a third of the house to B, the gift is valid
because the property is situated in a large commercial town. Exception V: Where the gift is of
shares in a land (or real estate) company.

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Exception VI: Where a property is gifted out absolutely to a person with the condition that he
shall make certain periodical payments out of the recurring income of the property, such
payments are not governed by the doctrine of musha.

REVOCATION OF GIFT
According to Muslim law, all voluntary transactions are revocable; hence, gifts may also be
revoked. There is, however, a difference between completed and incomplete gifts, i.e. after or
before the delivery of possession.

1. Before delivery. - A gift may be revoked by the donor at any time before delivery of
possession but not after delivery. The reason that the gift is no gift before delivery of
possession and hence, the rules relating to gifts do not apply over it.
2. After delivery. - When a gift is made and the subject-matter of the gift is duly transferred
to the possession of the donee, its revocation is only possible by the intervention of the
court of law, or by the consent of the donee; a mere declaration on the part of the donor is
not enough.

Only the donor has the right to revoke a gift, not his heirs after his death. It is the donor whose
law will apply to revocation and not that of the donee. The following completed gift cannot be
revoked even with the consent the done or intervention of the court:
1. Where is made by the husband to his wife or vice versa,
2. Where the donor and donee are related to one another within the propitiated degrees by
consanguinity;
3. Where the donor or donee dies;
4. Where the thing given is destroyed or lost;
5. Where the thing given has passed out of the donee's possession by sale gift
or otherwise;
6. Where the thing given has increased in value;
7. Where the thing given is so changed that it cannot be identified (for

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example, when wheat is grinded into flour);
8. Where the donor has received a return (ewaz) for the gift;
9. Where the motive behind the gift is religious or spiritual, for in this case the
gift amounts to sadaqa.

The Shia law differs from Hanafi law in the following particulars:
1. A gift to any blood relation, whether within the prohibited degrees or not, is
irrevocable after delivery of possession;
2. A gift from a husband to his wife, or from a wife to her husband, is
according to better opinion, revocable.
3. A gift may be revoked by a mere declaration on the part of the donar without
any proceedings in court.

LIFE ESTATE AND LIFE INTEREST

Distinction between life estate and life interest -Tyabji explains the difference between a life
estate and life interest through the following dialogue (condensed by the author) between a
layman and an Arab lawyer, whom he consults regarding the disposition of his property
consisting of an orchard and camel.

Fyzee clarifies this further: "Estate" is a term of art in English law and has a definite meaning in
its technical sense. A "life estate" implies the transfer of the corpus of the property to a certain
person with certain limitations as to its use and alienations. In this technical sense of the term, a
life estate was declared by the Privy Council in the Sardar Nawazish Ali Khan v. Sardar Ali
Raza Khan, 1948 SCC Online PC 17 to be unknown to Muhammadan law as administered in
India, but life interests were well known and would be created. Before coming to that subject, we
may revise the difference between corpus (ayn) and usufruct (manafi); both can be the subjects
of gift.

The ayn is the substance of a thing; for example, a plot of land, a house, a camel or a book.
Manafi (singular, manafaa) is literally the profits or produce. It means not the thing itself but its

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use, benefit, produce or profits; for example, the right to reside in a house, the right to fish in the
pond, the right to take the produce, fruits of a garden, the recurring income of partnership,
dividends on shares, interests on government loans or stock.

Life interest
In Muslim law, therefore, both the corpus (wyn) and usufruct (munifi) of a property can be the
subject matter of gift. A gift of the usufruct for a definite period is called life interest. Life
interest may be created in the following ways:
1. By family waqfs
2. By will
3. By the rule in the Umjad Ali Khan case
4. By the rule in the Ashraf Khan case
5. By the Nawazish Ali Khan case
6. By family settlements

1. By family waqfs.- A makes a waqf of his property for the benefit of his children and
descendants, and on the extinction of the line of his lineal descendants, to a school. The
children and descendants will have a life interest in the property generation after
generation.
2. By will. A life interest can be created by "will". Thus, if a life interest is given by will to
A for life and thereafter to B, the life interest in favour of A is valid.
3. By the rule in the “Umjad Ali Khan case”.The point in issue in this case was: Whether a
real transfer of property by a donor in his lifetime under the Muslim law reserving not the
dominion over the corpus of the property, nor any share of dominion over the corpus, but
simply stipulating for and obtaining a rights to the recurring produce during his lifetime,
is an incomplete gift by the Muslim law? Their Lordships of the Privy Council held both
the gift and the condition a valid. This is a life interest.
4. By the rule in the “Ashraf Khan case” - The decisions of the Privy Council in Hameeda
v. Dublin", Abdul Gafur v. Nizamuddin, and some of the High Courts in India have
expressed the opinion that life interest is nothing more than a gift with condition. If the

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 condition is repugnant to the gift, the condition is void and the gift is valid. Thus, it was
held that if A gave B a life interest in a certain property, B took it absolutely. (Amjad
Khan v. Ashraf Khan, 1929 SCC Online Cal 224: (1959-51
5. By the “Nawazish Ali Khan case” The propositions of law laid down by the Privy
Council in this case are:
(a) That Muslim law makes no distinction between real and personal property nor does it
recognize the splitting up of ownership of land into estates.
(b) That there is a clear distinction between the corpus of the property and its usufruct:
(c) That interests for a limited duration can, therefore, be lawfully made. (Sardar
Nawazish Ali Khan v. Sardar Ali Raza Khan, 1948 SCC Online PC 17)
6. By family settlements.-An agreement settling disputes between par ties of a family and
which also involves a transaction for consideration is called "family settlement". Life
interest may be created by such agreements.

Shiite law of life interests

The scope of life interest is somewhat broader in Shiite law, which recognize its following three
forms:
1. Umra, the grant of usufruct for life.
2. Sukna, the right to reside in a house for life.
3. Ruqba, the right to lake usufruct for a fixed period.

Following are the essentials of a life interest in Shiite law:

1. Delivery of possession to the life-tenant.
2. Existence of the grantee. When there are many grants, succeeding grantees should be in
existence at the time when their interest being.
3. The subject matter of life interest should be such as may be used with being consumed in the
process.

The grantor is free to revoke a life-grant at any time before his death where it is for a religious
purpose or for an indeterminate period.

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GIFT FOR CONSIDERATION (HIBA-BIL-IWAZ). — Hiba means gift and iwaz means
consideration. Hiba-bil-iwaz means gift for consideration already received. As it has been
already mentioned in the beginning that gift is a "a transfer of property without consideration".
This hiba-bil-iwaz departs from the original definition. Hiba-bil-iwaz is a transaction, made up
for two mutual or reciprocal gifts between two persons. One gift was from the donor to the donee
and the other from donee to the donor. The gift and the return gift are separate and independent
transactions which together make up hiba-bil-iwaz.

Hiba-bil-iwaz in India.- Hiba-bil-iwaz was introduced in India as a device for effecting a gift of
mushaa in a property capable of division. A hiba bil-iwaz in India is a gift for consideration (hiba
is a transfer of property without consideration). It is in reality a sale and has all the incidents and
conditions of a sale. Registration is necessary in case of hiba-bil-iwaz as in case of a sale. So the
delivery of possession is not essential for a complete transfer and prohibition against mushaa
does not exist.

Requisites of a valid hiba-bil-iwaz.-

(1) Actual payment of consideration on the part of the donee is necessary. In
Khajuooroonissa v. Raushan Jehar, their Lordships of the Privy Council said
"undoubtedly the adequacy of consideration is not the question. A consideration may be
perfectly valid which is wholly inadequate in amount when compared with the thing
given. Some of the case have gone so far as to say that even a gift of a ring may be a
sufficient consideration, but whatever is amount, it must be actually and bona fide paid.,
(2) A bona fide intention on the part of the donor to divest himself in possession of the
property and to confer it upon the donee.

HIBA-BA-SHARTUL-IWAZ.-„”Shart‟ means stipulation, Hiba-ba-shartul iwaz means a gift

made with stipulation (Shart), for a return. Unlike Hiba-bil iwaz, in a Hiba-ba-shartul-iwaz, the
payment of consideration postponed. As. The consideration is not immediate; the delivery of
possession is essential. The transaction becomes final immediately on the delivery of possession.

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When the consideration is paid, it assumes the character of sale and is subject to pre-emption
(shufa) Further as in case of a sale, either party can return the subject of sale for a defect.

Thus it contains the following features:

i. As in the case of hiba, so in this case, delivery of possession is necessary.
ii. It is revocable until the iwaz (Return) is paid.
iii. It becomes irrevocable on the payment of iwaz.
iv. The transaction when completed by payment of iwaz, partakes of the
character of sale.

❖ Sadqa
❖ Pin Money

Unit 9
Pre-Emption

The law of pre-emption is based upon the text of Muslim Law and it is a well-founded doctrine
in India. It was unknown in India till the advent of Moghal rule. In the words of Mulla, “The
right of shufa or pre-emption is a right which the owner of an immovable property possesses to
acquire by purchase another immovable property which has been sold to another person”. The
foundation of the right of pre-emption is the human desire to avoid the inconvenience and
disturbance which is likely to be caused by the introduction of a stranger into the land. The
Muslim law of pre-emption is to be looked at in the light of the Muslim law of succession. Under
Muslim law, death of a person results in the division of his property into fractions. If an heir is
allowed to dispose of his share without offering it to other co-heirs, then it is likely to lead to the
introduction of strangers into a part of the estate with resultant difficulties and inconveniences.

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ORIGIN OF "SHUFA" LIES IN THE SAYINGS OF THE PROPHET
▪ "A neighbour has a right, superior to that of a stranger, in the lands adjacent to his own."
▪ "The right of shufa holds in a partner who has not divided off and taken separately his
share."
▪ "The neighbour of a house and the neighbour of land has a superior right to those lands,
and if he be absent, the seller must wait for his return; provided, however, that they both
(reside) participate in the same road."

According to the tradition of the Prophet, it is morally objectionable, though not unlawful t sell
property without offering it to the pre-emptor who is either a neighbour, participator in
appendages of the property or its co sharer. Muslim jurists differed in interpreting these
traditions and evolved different categories of persons who may claim the right of pre-emption.

DEFINITION OF "SHUFA"
Mulla “The right of Shufa or pre-emption is a right which the owner of an
immovable property possesses to acquire by purchase another immovable property which has
been sold to another person.”

“… a right which the owner of certain immovable property possesses, as such, for the quiet
enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary
possession of certain other Mahmood J immovable property, not his own, on such terms as those
on which such latter immovable property is sold to another person.” (Govind Dayal v.
Inaytullah,
ILR 7 All 775)

MEANING OF "SHUFA": HOW IT EMERGES?

Shufa means conjunction that is adjacent. It is an Anglo-Muhammedan term which literally
means adding. It is a right to acquire by compulsory purchase, in certain cases, immovable
property in preference to all other persons. It is a right which the owner of immovable property

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possesses to acquire by purchase another immovable property which has been sold to another
person.

For example, when A, an owner of land, has B, the owner of the adjacent land, then it is the legal
duty of A to offer it first to B if he decides to sell his land. And only when B shows no interest to
buying it, then alone can A sell it to an outsider C. Where A sold the land to C without first
offering it to B, then B has a right of pre-emption against C and can dispossess him after paying
the same price which C paid to A. If the price appears inflated with a motive to defeat or
discourage B, the pre-emption right holder, then the court may sit in judgment and may
rationalise the price.
The idea behind this type of pre-emption is to dislodge a stranger from disturbing the tranquillity
of the neighbourhood. In a multi-ethnic society, this right assumes greater importance and
relevance.

Hanafi law recognises three categories:

1) a co-sharer in the property sold,
2) a participator in the amenities and appendages of the property, and
3) a neighbour owning an adjoining immovable property. Shia law restricts pre-emption to
co-owners in the undivided property and that too when their number is two. Shafi'i law
recognises pre-emption only among co-sharers.

Both Shia and Shafi'i law do not recognise pre-emption on the ground of vicinage or on the
ground of participation in appendages.

ADVENT OF "SHUFA" IN INDIA

Their Lordship of the Privy Council in Digamber Singh v. Ahmad 42 IA 18(1915), all have
described the origin of the right of pre-emption in the following words:
“Pre-emption in village communities in India had its origin in the Muslim law and was
apparently unknown in India before the time of the Mughal rulers. With time, customs of pre-
emption grew up and were adopted among village communities. The law of pre-emption was

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mainly introduced and given effect to by the Muslim judges who were bound to administer
Muslim law during the Mughal period. Under their administration it became, and remained for
centuries, the common law of the country, and was applied universally both to Muslims and
Hindus because in this respect the Muslim law makes no distinction between persons of different
races and creeds. In British India, rights to pre-emption had in some provinces been given effect
to by various Acts, and by contract between the sharers in a village. But in all cases the object
was, and still is, to prevent strangers to a village from becoming sharers in the village, or in a
property, where such intrusion by a stranger may be injurious to that society.”

BASIC CHARACTERISTICS OF PRE-EMPTION

The main essentials of the pre-emption are:
1. Pre-emption is the right which the owner of certain immovable property possesses to
obtain another immovable property not his own.
2. The right is obtained in substitution of the buyer (who has already purchased the other
immovable property).
3. The right of proprietary possession is obtained on the same terms in which that other
immovable property is sold to the purchaser.
4. The right is given by the law for the quite enjoyment of property.

When Does the Right arise?

The right of pre-emption arises only in case of sale and only when the sale is complete. It does
not arise in case of transfer of property by way of gift, sadaqa waqf, bequest or inheritance etc.
The right exist till the date when the decree is passed by the court.

The question whether the right of pre-emption exists before the actual sale of the property
concerned, was answered in the negative by Justice Mitter of Calcutta High Court in Sk.
Kudratullah v. Mohini Mohan Saha (1869) 4 Beng LR 134, again, the question whether the
sale of the property which is subject to the right of pre-emption passed on full ownership to the
purchaser, was answered Justice Mitten in the affirmative.

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On the basis of these two above stated findings, Justice Mitter concluded that the right of pre-
emption is nothing but the mere right of repurchase. Sixteen years after the Calcutta High Court
judgment come, Justice Mahmood in an Allahabad high Court judgment - Govind Dayal v.
Inaytullah, ILR 7 All 775 clarified the real nature of the right of pre-emption. Since then, his
findings form the basis of the law of pre-emption and accepted by the Privy Council and the
Supreme Court.

Justice Mahmood edited two ahadith (traditions):

It is not lawful fir any one lo sell till lie informs his coparcener (neighbour) who may take on
leave it as die wishes and if he was sold without such information, the coparcener has a
preferential right to the share (Aini).

Pre-emption exists in all joint properties, whether land, or house, or grove. It is not proper for
him (owner) to sell till he has offered it to his coparcener, who may take it or reject it; and if the
vendor Mils to do this, his coparcener has the preferential right to it until he is informed
(Muslim).

It is perfectly clear from the above traditions that the very concept of pre-emption necessarily
involves the existence of the right before sale. Discussing the nature of the right, Justice
Mahmood said that on the basis of Hedaya, sale is not the cause of pre-emption, it is the situation
of the properties in question; at the same time, the right to enforce the pre-emptor's right comes
into being after the sale. This means that neither the sale of every property nor the sale to every
other person would give rise to the right. As explained later, the right arises only in certain
situations. Any action by pre-emptor before actual sale is premature.

Thus, the law of pre-emption creates a legal servitude running with the land. Sale is not the real
cause of pre-emption. The real cause is the situation of the properties in question. The right
comes into being after the sale which clearly shows the intention to dispose of the property. The
right exists, therefore, independently of and antecedent to the sale.

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It is a kind of preferential right: The right of pre-emption is a kind of preferential right which the
owner of an immovable property possesses to acquire by purchase another immovable property
adjacent to his own immovable property which has been sold to another person for the quiet
enjoyment of his immovable property.

It is a right of Substitution: The right of pre-emption is not a right to repurchase, but it is a right
of substitution, entitling the pre-emptor to stand in the shoes of the purchaser. This view has been
adopted by the Supreme Court of India in Bishan Singh v. Khazan Singh, AIR 1959 SC 838
where Justice Subba Rao summarised the rules of pre-emption thus:
1. The right of pre-emption is not right to the thing sold but a right to the offer of a thing
about to be sold. This right is called the primary or inherent right.
2. The pre-emptor has a secondary right or a remedial right to follow the thing sold.
3. It is a right of substitution but not of re-purchase, i.e., the pre-emptor takes the entire
bargain and steps into the shoes of the original vendee.
4. It is a right to acquire the whole of the property sold and not a share of the property sold.
5. Preference being the essence of the right, the plaintiff must have a superior right to that of
the vendee or the person substituted in his place.
6. The right being a very weak right, it can be defeated by all legitimate methods, such as
the vendee allowing the claimant of a superior or equal right being substituted in his place.

The statement that “it is not a right to repurchase” must be understood in its context. It means it
is not a case of any repurchase, but a particular subsequent purchase under certain circumstances
which compel the fresh buyer to resell. The requisites are:
1. The pre-emptor must be the owner of immovable property in the neighbourhood of the
property sold;
2. There must be a sale of certain property not his own;
3. The pre-emptor must stand in certain relationship to the vendor in respect of the property
sold.

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About the nature of this right as to whether it is a personal right or an incident of property, there
was a divergence of views between some High Courts. According to Calcutta and Bombay High
Courts, it was a right to repurchase from the buyer, while Allahabad High Court held it to be an
incident of property. The Supreme Court has accepted the latter interpretation ― it is an incident
annexed to the property (Mohd. Ismail v. Abdul Rashid 1955 SCC Online All 149). Although
it is essentially a right in rem, from the time it arises up to the time of the decree, it is restricted
as a personal sight, which is neither heritable nor transferable. (Audh Bihari Singh v. Gajadhar
Jaipuria, AIR 1954 SC 147).

Utility of Pre-emption
Describing the utility of the right of pre-emption, Justice Mahmood further observed that this
right, no doubt, operates as a restriction to the free sale of property, thus diminishing its market
value, but its utility outweighs its drawbacks. Even in countries like Germany, a similar right was
enforceable. And if this was the case in a country where distinctions of caste and creed do not
exist, it seems that this right must not be lightly dealt within a country like India, where the
difference of caste, religion, etc. presents quite the opposite state of things. This discussion
brings us to an inevitable question: Whether the law of pre-emption infringes the fundamental
right to hold and dispose of property, guaranteed under Article 19(1)(f) of the Constitution?

CONSTITUTIONALITY OF PRE-EMPTION

Before the 44th Constitutional Amendment Act 1978

Before the Forty-Forth Constitutional Amendment in 1978, there was Article 19 (1) (f) in the
Indian Constitution. Article 19 (1) (f) provided that all citizens had a fundamental right to
acquire, hold and dispose of property. Clause (5) of this Article provided that reasonable
restrictions may be imposed on this right in the interest of the general public.

The High Counts of Rajasthan, Madhya Hutt and Hyderabad head held that pre-emption on the
ground of vicinage (ownership adjoining immovableproperty) was void after the advent of the
Constitution, being an unreasonable restriction on the right to acquire and dispose of properly

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under Article 19(1)(f), but pre-emption as between co-shares (shefi-i-sharik) or owners of
dominant and servient tenements (shafi-i-khalif) was saved by the reasonable restriction of
clause (5) of the article.9 Then came two decisions of the Supreme Court upholding the above
view.

In Bhau Ram v Baij Nath Singh 1962 SC 1476, the Supreme Court held the custom of pre-
emption by vicinage, through a liability attached to property, operated as a restriction on the right
to dispose of property: not being in public interest, this restriction was not reasonable; moreover,
it divided society on the basis of caste and religion which is prohibited by Article 15 of the
Constitution. The same view was maintained in Sant Ram v. Labh Singh 1965 SC 314. The
decisions affected only the vicinage type, the co-sharer type custom was unaffected; it had
already been recognised in AudhBehari Singh v. Gajadhar Jaipuria AIR 1954 SC.

After the 44th Constitutional Amendment Act 1978

The 44th Constitutional Amendment Act 1978 abolished Article 19(1)(f), therefore, after this
Amendment right of pre-emption on the ground of vicinage has been revived. By the
Constitution (44th Amendment) Act, 1978, the fundamental right to property enshrined in Article
19(1)(f) as well as Article 31 has been taken away from Part III of the Constitution and reduced
to a simple constitutional right subject to "law" under Article 300-A. In this changed status, it is
only of academic value to discuss the pros and cons of the decisions referred to above. However,
the moot point that may still be raised is ― Can a State agency like the judiciary be used to
implement customary rule (of preemption by vicinage) that requires discrimination on the ground
of caste or religion emphatically prohibited by Article 15(1)? Our answer is in the negative. With
the heralding of the 21st century, we have surely arrived at a point of time when the Supreme
Court's pronouncement relating to pre-emption can be said to be perfectly compatible with the
mood of the society.

However, the above discussion has lost much of its relevance now: in A.Razzaque Sajunsaheb
Bagwan v. Ibrahim Haji Mohd. Husain (1998) 8 SCC 83, the right of pre-emption was
claimed on the ground of being shafi-i-jar (vicinage), having property adjoining to the suit house.

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The Supreme Court held that the law of pre-emption based on vicinage was void and
unconstitutional. The claim was disallowed.

APPLICATION OF THE LAW OF PRE-EMPTION IN INDIA

The Privy Council in Digamber Singh v Amhad (1915) 37 All 129 (PC) held that there are four
grounds on which a claim for pre-emption may be based in India. These are:
I. By Muslim Law
II. By By Custom
III. By Statutes
IV. By Contract
By Muslim Law:
Where there is no custom or statute relation to pre-emption, the right may be claimed under
Muslim Law when both vendor and vendee are Muslims. The law of pre-emption is applied to
Muslims throughout India as a master of justice, equity and good conscience, except in the State
of hat. There the court refused to apply it on the ground that it imposed unwarranted restrictions
upon the liberty to transfer property. In Bombay lol, it was held that pre-emption placed a clog
upon the freedom of Saleunder the Transfer of Property Act and the Indian Contract Act.

By Custom:
In the absence of any statutory law of pre-emption, the right may be claimed on the basis of
custom, if any. By custom, the law of pre-emption is also applied to Hindus in certain localities,
like Bihar. If the custom is in variance with the Muslim law of pre-emption, the custom will
prevail. Thus, where a custom does not require strict compliance with the formality of talab-i-
ish-had, it would not be obligatory on the pre-emptor to observe it as a condition precedent to the
enforcement of such a right.
Pre-emption has become the customary law even among the Hindus.Thus, the customary right to
pre-emption exists among the Hindus of Bihar (this entire discussion should be taken as
regulated by the latest decision of the Supreme Court); Sylhet; parts of Maharashtra and Gujarat,
such as Surat, Godhra and

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Ahmedabad; parts of U.P., such as Banaras, Muzaffarnagar, and Saharanpur; Delhi and Bengal.
However, the right of pre-emption is extended to Hindus only after being established.
The burden of proving a custom lies on the person who establishes it. Where, however, its
existence is generally known and judicially recognised, it need not be proved afresh. A custom to
be judicially recognised must be ancient and invariable.

By statute:
By statute, the law of pre-emption is applied in the following regions:
Punjab Punjab Pre-emption Act, 1913
Oudh Oudh Laws Act, 1876
Agra Agra Pre-emption Act, 1922
C.P. C.P. Land Revenue Act, 1917 (S. 151)
Berar Berar Land Revenue Code, 1928 (Ss. 176 to 178)
Hyderabad ZabtaShikmidaran (Paras. 12 and 14)

By Contract:
Right of pre-emption may also arise in certain cases by contract between sharers in certain
villages.
Contracts of pre-emption are found noted in the wajib-ul-arz of various villages, especially in
Uttar Pradesh. The pre-emption in such cases is governed by the terms of the contract. If the
contract is limited to the period of settlement, for example, the right would not be enforceable
after the expiry of that period. It is immaterial whether the terms of the contract are in
consonance with the provisions of Muslim law of pre-emption. The terms of the contract will
have an overriding effect.

THREE TYPES OF PRE-EMPTION

The right of pre-emption is available to owners of pre-emptive tenements only,that is, any of the
following three types of ownerships:
1. Shafi-i-Sharik (Pre-emption on the basis of co-sharership)
2. Shafi-i-Khalit (Pre-emption on the basis of participator in immunities and appendages)

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3. Shafi-i-Jaar (Pre-emption on the basis of neighbourhood or vicinage)

Shafi-i-Sharik
A sharik (co-sharer) is co-owner of an undivided share in the property. Ifhis other co-owner sells
his share to someone without first offering it to his cosharer, then the co-owner has a right to
claim it back from the outsider. Nothing except sale will bring to life the right of pre-emption.
So, lease or mortgage will not attract pre-emption.
Under Shia law, this pre-emption can be claimed only when the number of co-sharers is two.
Abdur Rahim says:
The reason why this right is allowed is that the introduction of a stranger is likely to give rise to
dissensions and inconveniences, and the principle on which

it is based is that each co-sharer having a right in every particle of the property, one co-sharer
selling his share would thereby affect the enjoyment of his share by the other co-owner and this
he cannot do without his consent.19 Similar is the justification for Shafi-i-Khalit.

Shafi-i-Khalit
Such a pre-emptor is called participator in immunities (for example, exemption from some
liability to which others are subject; entitlement to live in a judge's colony where only retired
judges are entitled to live) and appendages (a small addition to a larger colony, a privilege to live
in some exclusive area of a etc.). The right of way enjoyed since long on the land belonging to
play person.

There are three ways in which a person may be considered to be a Shafi-iKhalit:

1. he may be the owner of a dominant heritage;
2. he may be the owner of a servient heritage:
3. the property sold as also the property of the pre-emptor may be a dominant heritage to a
third person's property.

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What is dominant and servient heritage? ― A owns a house which hesells to B. M owns a house
towards the north of A's house and is entitled to a right of way through that house. Nowns a
house towards the south of A house, separated from A's house by a partition wall, and having a
right of support from that wall. Both M and N claim pre-emption of the house to B. Here Mis a
participator in the appendages, while N is merely a neighbour, for the right of collateral support
is not an appendage. M is, therefore, entitled to pre-emption in preference to N. It is immaterial
that M's right of way has not been perfected by prescription under the Easements Act.
In the above example, the house owned by M is a dominant heritage and the pre-empted house is
a servient heritage, for M has the right of way through it. M would still remain a "participator" in
the appendages if the pre-empted property were the dominant heritage and his property the
servient heritage.

In Bhau Ram v. BaijNath Singh and Sant Ram v. Labh Singh the Supreme Court has held the
right of pre-emption valid when based on certain appendages like common staircases, common
entrance, etc.

Shafi-i-Jaar

The owner or neighbour of adjoining immovable property. (This, however, must now be read
subject to the decision of the Supreme Court in the Bhau Ram case24 holding pre-emption on the
ground of vicinage as unconstitutional.)
The right of pre-emption on the ground of the vicinage does not extend tothe estate of large
magnitude but is confined to houses, gardens, and smallpieces of land.

If there is more than one pre-emptor belonging to different categories, the first category or class
excludes the second, and the second excludes the third. But if the claim be made by two or more
persons belonging to the same class, they are entitled to equal shares of the pre-empted property
on tendering their respective quotas of the purchase money.

Illustration

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A mansion is situated in a street which is not a public thoroughfare and belongs to two persons,
one of whom sells his share. The right of pre-emption belongs in the first place to the other
partner in the mansion. If he surrenders his right, it belongs to the inhabitants of the street
equally, without any distinction between those who are contiguous and those who are not so. If
they all surrender the right, it belongs to the owner of any house immediately contiguous to the
house in question, even though not abutting on the private street.

Exceptions. ― There may be cases in which one person is considered to be co-sharer with the
vendor in a closer and more intimate sense than another, and is on that ground allowed
precedence. There may also be cases in which a person who shares with the vendor the whole of
a certain easement may have priority over one whose participation is less complete.

Illustrations
1. A group of houses belonging to different owners are situated on a street. In the same
group of houses, there is a house belonging to two persons, one of whom sells his share
in it. The right of pre-emption belongs first to the partner in the house, then to the owners
of the group of houses, and then to the people in the street, who are all alike. If all these
give up their rights, it belongs to the neighbour behind the mansion who has a door
opening into another street, and who is therefore simply a neighbour and got a
participator in the appendages (Wilson).
2. If, in the above illustration, there be another private street leading from the first-
mentioned street and a house in it is sold, the right of pre-emption belongs to the
inhabitants of this inner street because they are more socially intermixed with it than the
people of other streets. But if a house in the outer street is sold, the right of pre- emption
belongs to the people of inner as well as to those of the outer street, for the intermixture
of b both in the right of way is equal (Wilson).
3. If there be two houses on opposite sides of a public street and one of them is sold, there is
no pre-emption except for the adjoining neighbour (Wilson).
4. If there is a small channel or canal from which several gardens are watered and some of
them are sold, the owners of all the gardens are pre-emptors without any distinction
between those who are and those who are not adjoining (Wilson).

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Benami transactions. ― A secret purchase of shares in a village in the name of another (benami)
does not constitute the real purchaser co-sharer for the purpose of pre-emption so as to enable
him to defeat an otherwise bona fide purchaser who has no notice of the previous secret sale.

CHARACTERISTICS OF SALE GIVING RISE TO PRE-EMPTION

The right of pre-emption docs not arise out of gin, charity bequest. It must be a sale where
1. there must be an exchange of immovable property for money of property; and
2. there must be an actual transfer of ownership from the vendor to the vendee.

The right of pre-emption does not arise in the following cases:

1. a contract to sell at a future time:
2. a sale with reservation (to either vendor or vendee) of an option of repudiation;
3. a lease, even in perpetuity.

As sale alone gives rise to the right of pre-emption, it is important that the exact point of time
when the sale is said to be complete is known. According to an Allahabad decision of 1894,30 a
sale is complete where the price is paid and possession is delivered. It is immaterial that it does
not amount to sale under the Transfer of Property Act.

The Privy Council, however, held in Sitaram Bhaurao Deshmukh v. Jiaul Hasan 1921 SCC
Online PC 42 that the intention of the parties must be considered in each case to decide which
system of law is to be applied. This view has been rejected by the Supreme Court in Ram Saran
Lall v. Domini Kuer AIR 1961 SC. The facts of the case were these―P executed a sale deed of
a house on 31 January 1946 in favour of D and presented it for registration on the same day. On
hearing of the sale, RS made a talab-e-muwathabat (the first demand) on 2 February 1946. The
deed was copied out in the Registrar's books on 9 February 1946. RS filed a suit for pre-emption.
D resisted the suit on the ground that the sale was completed only on 9 February 1946, and not
earlier. Therefore, the demand was made prematurely. The Supreme Court (by 3 to 2) held that
the demand was made prematurely and must fail.33 Thus, the requirements of the Transfer of
Property Act (TP Act), Sections 54 and 61, must be completed where so required. Earlier also, in

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Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi AIR 1960, the
Supreme Court had held that a transfer of property had to be in compliance with the TP Act only
where so required by it, and Muslim law or any other personal law of transfer of property could
not override the statute. "The right of pre-emption is a weak right... the courts would not go out
of their way to help the pre-emptor. It is neither illegal nor fraudulent for par ties to a transfer to
avoid and defeat a claim for pre-emption by all legitimate means."

Whether transfer in lieu of dower is sale? ― In Fida Ali v. Muzaffar Ali ILR (1883) 5 All 65,
the Allahabad High Court held that such a transfer is sale, provided it is in satisfaction of a
previous obligation.
Later on, in Ghulam Abbas v. Razia Begam AIR 1951 ALL, a Full Bench of the Allahabad
High Court took the view that transfer in lieu of dower amounts to sale. On the other hand, the
Oudh Chief Court held it to be a hibabil-ewaz.

Fyzee opines that the Oudh view "appears to be more in consonance with justice".

No right of pre-emption in transfers other than sale. ― The right does not arise in the following
types of property transfers, whether for consideration or no consideration.
1. Gifts (no consideration)
2. Sadaqa (no consideration)
3. Waqf (no consideration)
4. Inheritance (no consideration)
5. Bequest (no consideration)
6. Lease, even though in perpetuity (for consideration)
7. Mortgage (for consideration)
8. Conditional sale (for consideration)

The waqif has no right of pre-emption on behalf of the waqf property; nor can God, as the
ultimate sovereign and owner of property, claim pre-emption on behalf of the foundation. The
conception of God being impleaded as a party in a claim before a Qazi is so foreign to Muslims

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that Muslim jurists have rarely discussed whether a suit can be filed on behalf of God Almighty.
(Girraj Kunwar v. Irfan Ali, AIR 1952 All 686).

Sale of leasehold interest in the land does not give rise to the right of pre-emption as held by the
Supreme Court in Munni Lal v. Bishwanath Prasad (AIR 1968 SC 450). There must be full
ownership in the land pre-empted and the pre-emptor also must have full ownership to maintain
a suit for pre-emption, because reciprocity is the basis of the Muslim law of pre-emption.

DIFFERENCE OF RELIGION
Difference in religion of buyer, seller and pre-emptor. If all parties are Muslims, there is no
problem and the law of pre-emption will be applicable. But it cannot be applied in the following
cases (consequently, no pre-emption).

1. If all the parties are 1lindus, and there is absence of a relevant custom
2. If the vendor and vendee are Hindus, but the pre-emptor is a Muslim.
3.If the pre-emptor is a Hindu, and the vendor and vender are Muslims
4.If the vendee is a Muslim, and the pre-emptor and vendor are Hindus.
5.If the vendor is a Muslim, and the pre-emptor and vendee are Hindus.

This is so because Muslim law is a personal law and not the common law of the land, and the
rights and obligations must be reciprocal.

Difference of schools
1.If both the parties belong to one and the same school, the rules of that particular school apply.

2.If the vendor is a Shiite and the pre-emptor a Sunnite, then Shia law shall apply according to
Allahabad High Court, and Sunni law according to Calcutta High Court.

3.If the vendor is Sunni and pre-emptor Shia, Shia law will apply. This is so because the right of
pre-emption must have a reciprocal duty towards the vendor, i.e. if in future the present pre-

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emptor sells the property, the present vendor may opt to pre-empt―at that time he must be
entitled to do so. Now, since with Shia vendor Shia law applies, the Sunni pre-emptor in the
above example will lose; thus, there is absence of reciprocity. (Reciprocity means A should be
allowed to pre-empt the sale by B only if B could also pre-empt the sale by A.)

Illustrations
A. A, a Sunni, sells his land to B, a Sunni. His neighbour C, a Shia, sues for pre-emption on
the ground of vicinage. Pre-emption will not be allowed. Shia law which is applicable in
this case does not recognise pre-emption on the ground of vicinage.

B. A, a Shia, sells his land to B. C, a Sunni neighbour, claims pre-emption on the ground of
vicinage. In this case, pre-emption should not be allowed according to Allahabad High
Court view which recognises Shia school in this case. Pre-emption will be allowed by
Calcutta High Court, but this view does not hold good now after the Supreme Court
verdict striking down pre-emption on the basis of vicinage as unconstitutional.

Can a person be compelled to bear an obligation without a corresponding right?

Fyzee approves this principle of Muslim law of reciprocity. ― "In India, all religions are treated
with equality, and, therefore, in this branch of the law the principle of reciprocity should be
logically applied. Hence, on general principles, it would be unfair to apply the law of pre-emptor
and a create rights in favour of persons who would not be subject to corresponding obligations."

FORMALITIES TO BE FOLLOWED STRICTLY TO CLAIM “SHUFA”

There are three necessary steps known as the three demands, for claiming Shufa.

The first demand (“Talab-I-Mowasibat")

On receiving information of the sale, the pre-emptor must immediately delay his intention to
assert his right (messiah literally means "to jump"). The idea is of a person jumping from his seat
as though startled by news of the sale).

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The haste in which this demand is to be made is highlighted by the Heday where it says that if a
pre-emptor receives the information of sale by letter, and the information is contained in the
beginning of the letter, and he reads on v, the end without making his demand, the right is lost,
(This, however, www not be taken literally, it is only an example). The law simply requires
extreme promptness.

A delay of 12 hours was held in an Allahabad case to be too long. So alasa delay of 24 hours was
considered too long by the Nagpur High CourtCalcutta case is typical: the pre-emptor, on
hearing of the sale, entered thinghouse, opened a chest and took out a sum of money to pay to the
buyer), andthen made the first demand, he was denied the right to pre-empt because of delay.

No witnesses are necessary, nor any particular language or form, for making this demand.
The pre-emptor cannot make a delay by taking the plea that he had reasonto believe the real price
should be much lower than that notified to him.

Being a feeble right, "as it is the de-seizing of another of his property merely in order to prevent
apprehended inconveniences" (Hedaya, p 550), the formalities must be strictly observed.
(Mulla). The Allahabad High Court has held that it being a weak right, any legitimate device is
sufficient to defeat it. The law is that time demand should be made in a reasonable time. What
time is reasonable, is a question which is to be answered on the facts of each case. (Rajendra
Kumar v. Rameshwar Das Mittal, AIR 1981 All 391) The requirements of talab were abolished
by a government notification of 1927 in the former Jaipur State.

The second demand ("Talab-i-ishad")

The pre-emptor must, with the least practicable delay, make a second demand. either personally
or through an agent. He must 1) refer to his first demand, 2 do so in the presence of two
witnesses, and 3) in the presence of either the vendor(if he is in possession) or the purchaser or
on the premises.

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There is no definite form for making this demand. The pre-emptor may n well say. "such a
person has bought such a house of which I am the pre. emptor: I have already claimed my
privilege of shufa and now again claim it be you therefore witness thereof."
It is permissible to combine the first two demands, provided the pre-emptor Assembles two
witnesses and makes the demands in the presence of the vendor Vendee, or on the premises.
Talab-i-ishad may be made by letter also.

The third demand (“Talab-i-Tamlik")

The third demand, or speaking more precisely, a legal action, is only necessary when the first
two demands fail. Such a suit must be filed within one year of de purchaser taking possession of
the property if it is corporeal; or within one year of the registration of the instrument of sale, if
incorporeal. (Limitation Act Art. 10).
The legal suit claiming pre-emption should be in regard to the whole of property; a claim to a
part of the estate sold is not allowed.

SUBJECT-MATTER OF PRE-EMPTION
Only landed property, including houses, land or garden, may be pre-empted. A zamindari may
also be pre-empted by a co-sharer holding a demarcated share at the zamindari. Musha
(undivided share in joint property capable of division) may be pre-empted by a co-owner.

LEGAL EFFECTS OF PRE-EMPTION

1.When the claim of pre-emption is complete, the pre-emptor steps in the shoes of buyer.
2.If the sale has been completed when the claim to the right of pre-emption is enforced, the
original buyer becomes the new seller and the pre-emptor, the new buyer.
3.The pre-emptor does not become liable for any contingent charges incurred by the buyer, such
as brokerage or agency.
4.The buyer is entitled to receive or retain the rents and profits of the land during the interval
between the date of its sale to himself and its transfer to the pre-emptor.

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5.As the pre-emptor takes the property from the buyer, and not the seller, the buyer must always
be a party to the suit. But after the pre-emptor has taken possession of the land, there is no need
of seller.

LOSS OF PRE-EMPTION RIGHT

The right of pre-emption is lost in the following three ways:
1. omission to claim, waiver, or excessive delay in demanding it,
2. death of pre-emptor before enforcement; and
3. forfeiture of right.

1.Omission to claim or waiver. ― A person entitled to pre-empt loses this right if he expressly or
impliedly waived it (for example if he says, “I have made void the shufa", or, "have caused it to
drop"), or omits to assert immediately his right.

2.Death of pre-emptor. ― Under Hanafi law, the right of pre-emption is extinguished where the
pre-emptor dies before enforcing it by suit, even if he made the two demands.

Under Shafi'i and Shiite law, however, the right to pre-empt devolves upon the pre-emptor's heirs
in the proportion of their right of inheritance."

3.Forfeiture of right. ― The right of pre-emption is forfeited if:

a) the pre-emptor releases it for a consideration; or
b) tries to dispose of the subject of pre-emption to a stranger; or
c) partition is made of a property in respect of which the right of pre-emption can only be
claimed by coparceners; or
d)there is some statutory disability with the pre-emptor as regards the purchase of land in
question is concerned.

For example, a Punjabi buys a land in Nagaland where land cannot be purchased by a non-Naga.

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 Unit 10
Guardianship and Legitimacy
The Holy Quran considers female infanticide and believes that those who involve in such a crime
shall be punished on the day of judgment. In several other verses the Quran provides for
adoption, parentage and guardianship.

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According to Islamic law, minority ceases when the boy or the girl attains puberty that is also
called ‘bulugh’ in Urdu. And the child can decide to marry and there can be no intervention for
the same. In the Hanafi and Shia Muslims, it is assumed that the child attains majority at the age
of fifteen.

It differs from the Indian Majority Act after the completion of the eighteenth year of the child
then he/she becomes an adult. And once in the instance where the marriage has been conducted
by arrangement between the parents of the major boy and girl and has been misrepresented or
concealed in any way then the status of the marriage shall be invalid.

This has been similarly held in the case of Sayid Mohaddin v. Katijabai. On the other hand, the
marriage of a minor child shall be permitted by the parent or the guardian. This power is given to
the parents or the guardian because it is expected of them to act in the interest of the child. There
obviously exists a trust relationship between the minor child and the parent. But the relationship
between the guardian and the child is fiduciary in nature. This is to ensure that the minor child is
not acting unfavourably to their own interest.

Therefore, assuming that the minor child is incapable to maintain himself there is need for
resorting to the appointment of a guardian who shall be an adult and shall be capable to make
decisions on behalf and in the interest of the minor child be it a girl or a boy.

Abdur Rahim defines guardianship as:

A right to control the movement and actions of a person who, owing to mental defects, is unable
to take care of himself and to manage his own affairs: for example, an infant, an idiot, a lunatic.
It extends to the custody of the person and the power to deal with the property of the ward."

Concept of guardianship in Islam

In pre-Islamic Arabia, the properties of minors were looked after by guardians taken from among

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the members of the family. In the absence of any code of conduct, misappropriation and
embezzlement was rampant. This necessitated the introduction of most stringent rules for the
protection of minors in the Islamic legal system.

According to Ameer Ali, the Koran is full with denunciation against the gross malpractices
prevalent in Arabia of those days.
"Restore to the orphans," says the Koran, "when they come of age, their substance (property); do
not substitute bad or good (that is, take not what ye find of value among their effects to your own
use and give them worse in its place), nor devour their substance by adding it to your own, for
this is an enormous crime”.

The Koran forbade the waste of the property of wards by their guardians, and directed that the
guardians may take a reasonable and moderate gratuity for their labour, but not more.

Let him who is rich abstain entirely from the orphan’s estate". It also lays down that "when ye
deliver unto your wards their property,call witnesses thereof in their presence. Surely they who
devour the possession of orphans unjustly shall swallow fire hereafter".

Since the law of guardianship, as we have seen is mainly based on Koran, there is little room for
differences between the Shia and Sunni Schools in this branch of Muslim jurisprudence.

"A remarkable feature of Muslim Law of guardianship and custody', according to Paras Diwan is
that, on the one hand, detailed rules have been laid down for the guardianship of a minor's
property, while on the other, there are very few rules relating to the guardianship of a minor's
person. This is so because they regarded the latter as more of a matter of custody than of
guardianship. The rules regarding the minor's custody have been laid down in great detail. In this
lies their foresightedness that in an essentially patriarchal society, they could lay down that the
custody of children of tender years belonged to the mother.

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Thus, a clear distinction is maintained between guardianship and custody-a distinction which
could be established in English law only after a protracted struggle extending over almost two
centuries, and that too, by legislation (Guardianship of Minors Act, 1971). It is unfortunate that
in the early days of administration of Muslim Law during the British Raj, some textbook writers
and judges could not decipher the distinction. On the one side, undue prominence was given to
the paternal right, on the other, the mother was dubbed as guardian of tender age...the Koran, the
hadees and other authorities on Muslim Law emphatically speak of the guardianship of the
property of the minor, the guardianship of the person is a mere inference.

Appointment of guardian
Under Muslim Law, no formal appointment by any authority is necessary for a competent person
to act as guardian. The only consideration is, whether he is competent and entitled to be a
guardian
.
According to Muslim Law, a person who has attained the age of 18 years, and who is sane, can
act as guardian.

A guardian may also be appointed under the Guardians and Wards Act, 1890. The application for
the appointment may be made not only by a person desirous of being, or claiming to be the
guardian of the minor but also by any relative or friend of the minor, and in some cases by the
Collector. Reading in between the lines of Section 17 of the Guardians and Wards Act, 1890, it
may be very well inferred that even though the Court is empowered to appoint a guardian, the
application of Muslim Law of Guardianship has been by and large preserved in the Act, which
provides:

1. In appointing or declaring the guardian of a minor, the Court shall, subject to the
provisions
of this section, be guided by what consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor..."In appointing the guardian, the
Court shall consider:

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 (i) the welfare of the minor,
(ii) age, sex and religion of the minor,
(iii) character and capacity of the proposed guardian, and his nearness of kin to the minor,
(iv) the wishes, if any, of a deceased parent,
(v) any existing or previous relations of the proposed guardian with the minor or his property,
and
(vi) preference of the minor, if he is old enough to form an intelligent preference.

The Guardians and Wards Act, 1890 defines a guardian as a person having the care of the person
or his property or of both his person and his property'. The individual who has by law the right
and duty of giving a boy or girl in marriage may also be said to have the care of the person for
that limited purpose; he is called walia species of wilaya. But there is no mention of disposal in
marriage in any part of the Act, and nothing to indicate that it was intended to replace the
persons who, under the traditional law have been assigned the right to give a minor in marriage.

Thus guardianship (wilaya) may be of the person, of property and in marriage. The Koran is the
basis of the law relating to guardianship and therefore differences between Sunni and Shia
Schools are relatively less.

Age of majority
Muslim Law:15 years-marriage, dower and divorce,
18 years-guardianship and all other matters.

Indian Law: 18 years-Indian Majority Act, 1875,

21 years Guardians and Wards Act, 1890.

That is, any Muslim of 18 years of age (or above) can act as a guardian of a minor Muslim; but if
formal appointment by the Court under the law (Guardians and Wards Act, 1890) is sought, then
he must be of 21 years at least, for a minor cannot act as a guardian of a minor (Section 21).

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Kinds of guardians
Guardians may be classified into three categories natural, testamentary and court-appointed. De
facto guardian-a fizuli, is out of vogue in the modern Muslim Law. Father is the natural guardian
of the legitimate children, though the term natural guardian is not used in Muslim Law. He has
no right of guardianship over the illegitimate children, not even after the death of the mother,
unless the court appoints him. The mother is not a natural guardian of her children, legitimate or
illegitimate neither during the lifetime of the husband nor after his death. Thus father is the sole
guardian. He controls the education, upbringing and religious inculcation of the child as a
supremo. After his death, guardianship passes on to his executor under Sunni Law and to the
grandfather according to the Sharia Law.

A testamentary guardian is a person appointed as guardian by the natural guardian by testament

or will. The father, his executor and then the grandfather, in that order have the power to appoint
a testamentary guardian under the Sunni system. The Shia father cannot appoint a testamentary
guardian if the grandfather is alive; the latter acquires the power only on the father's death, and
the executor is out of picture. The mother is totally deprived by both schools, but she can become
a testamentary guardian by appointment. For this, she must necessarily be a Muslim under the

The court-appointed guardian takes place when no natural guardian is available and testamentary
guardian has also not been designated. Previously the Kazi was authorised by the traditional law
to appoint a guardian. But now under the Guardians and Wards Act, 1890, that power is
abrogated; for all guardians for minors, irrespective of any religion, can be appointed only under
this law.

The District Court exercises this power. As stated earlier, Section 17 requires the court to make
the appointment consistently with the law to which the minor is subject, i.e., the minor's personal
law.

Muslim Law recognises three kinds of guardianship, namely:

(a) Guardianship of person.

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(b) Guardianship of property.
(c) Guardianship in marriage.

A. Guardianship Of Person
In Indian Law three periods of guardianship of minors are relevant. Under the Muslim Law a
minor is a person under 15 years, while under the Indian Majority Act he is one under 18 years;
and if he is under the supervision of the Court of Wards, his minority terminates at 21. Under the
Muslim Law 'minors' between the ages of 15 and 18 can act independently of any guardian in
marriage, dower and divorce. A Muslim wife of 16 may sue for divorce without the intervention
of a guardian.

Guardianship of the person of the minor belongs to the following, in the order they are
mentioned below:
(1) Mother is entitled to the custody (Hizanat) of Hanafi Law
(a) A male child till 7 years,
(b) A female child till puberty, which is either 15 or 18 years.
Shia Law
(a) A male child till 2 years
(b) A female child till 7 years.

The mother is, of all persons, the best entitled to the custody of her infant child during marriage
and after separation from her husband, unless she be an apostate, or wicked or unworthy to be
trusted."

Here it must be clearly understood that there is a vast difference between mother's right of
custody (Hizanat) and father's right to be the legal guardian of his minor children. Explaining
this difference, it was observed by the Privy Council in Imambandi v. Mutsaddi that under
Muslim Law "the mother is entitled only to the custody of the person of her minor child up to a
certain age according to the sex of the child. But, she is not the natural guardian, the father alone,
or, if he be dead, his executor (under the Sunni Law) is the legal guardian".

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From the above Tyabji concludes that where the husband and wife are living together, the child
must stay with them, and the husband cannot take the childaway with him; nor can the mother,
even during the period that she is entitled to the custody of the child, take it away without the
permission of the father.

The father's supervision over the child continues in spite of the child being under the care of
female relations, because, the burden of providing maintenance to the child rests exclusively on
the father. The mother's right of custody is not lost merely by her being divorced. But where she
marries a second husband, the custody of children normally belongs to her former husband." The
fact that wife stayed separately from her husband, because of some dispute, does not destroy her
entitlement to the custody of her children. In this case the husband and wife were living
separately in Madras itself, on account of some property dispute. They had four children of
different ages ranging from 10 months to 7 years. All the four were living with the mother. The
husband married a second wife, but soon divorced her by khula. One day the husband forcibly
removed one daughter of 5 years and the son aged 10 months. The wife sued for the custody of
both the children. The Madras High Court held that the wife was entitled to the custody of the
children and her staying apart from the husband did not constitute any substantial
disqualification.

According to Mulla, mother is entitled to custody (hizanat) of her male child until he has
completed the age of seven years and of her female child until she has attained puberty. The right
continues though she is divorced by father of the child, unless she marries a second husband, in
which case the custody belongs to the father. Approving this principle, the High Court of Kerala
held in Yusuf v. Sakeena that where the facts of the case reveal that the paramount interest of
the children will be better served if they are allowed the custody of their mother, the application
of the mother would be accepted. In the facts of this case the Court found that the mother was
looking after the educational interests of the minor children in better way than the father.

Even in such a case, the father would not be denied the right of visitation. For exercise of such
right he would have to seek permission from the lower court. And the Allahabad High Court had

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also held that the fact that the mother was a divorcee and had no source of income would not by
itself be a ground to refuse her the custody of her minor daughter. In this case the mother had
already applied for maintenance under Section 125 CrPC on the ground that she had no source of
income. The Court said this did not mean that the Court would overlook the welfare of the
children. It was convinced that the children would have better mental development in being with
their mother than with the father, especially when they are young girls. According to Bombay
High Court there is no absolute bar on giving custody of a child to its mother if she remarries.

As regards the mother or a female guardian, marriage to a person not related to the child within
the prohibited degrees are a bar to guardianship (hizanat). The ground for this rule seems to be
the apprehension that if she marries a stranger she would not be able to devote the same care to
the child in the home of the stranger a gair-mahram. The paternal uncle is a mahram by
consanguinity, so a marriage with him would not attract the disqualification. But is this rule
absolute? The courts are not unanimous about it. Paras Diwan has mentioned the cases in which
Sindh, Lahore and Madras High Courts have held that where the law was definite the Court
could not disregard it in the interest of the child. On the other hand, Oudh Chief Court,
Allahabad, Calcutta, Jammu and Kashmir and Andhra Pradesh High Courts have held that the
prohibition was relative and could be waived in the interest of the child. The Jammu and
Kashmir High Court has held though a Muslim mother may lose her preferential right of hizanat
by her marriage with a gair-mahram, she may still be appointed a guardian by the Court in the
interest of the child, for such marriage does not disqualify her for a judicial appointment, if
otherwise found suitable, the welfare of the child being of paramount importance.

Keeping this fact in view that a child born in India assumes father's religion, it is interesting to
note the effect of religion on mother's right to custody. In Skinner v. Order, an infant daughter of
a Christian father and the issue of a Christian marriage was brought up by her mother a Christian.

The Christian father died. Meanwhile, the mother embraced Islam and married another Christian,
who also embraced Islam. The daughter, after attaining the age of 14 years, showed her
willingness to become a Muslim. However, the relations of the deceased Christian husband
objected over the manner in which the girl was brought up and requested the Court to remove her

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from the custody of her mother, and placed under a Christian guardian. The Court in India
accepted the request of girl's relatives. On appeal the Privy Council confirmed the Court's
decision and observed:
"It would be very easy, of course, for a mother, under such circumstances, to procure from a
young daughter the expression of a wish to remain with her and to become a Muhammadan like
her, rather than continue a Christian... Their Lordships are, therefore, of opinion, that the Order,
insofar as it removed the Ward from her mother and stepfather, and placed her under a Christian
Guardian, was right."

An unmarried Hanafi mother of an illegitimate child made an application under Section 491 of
the Code of Criminal Procedure for the recovery of the child from the respondent. It was held by
the Supreme Court that under Muslim Law the mother of an illegitimate female infant child is
entitled to its custody.

Nevertheless, before making the order for the custody of the child, the Court is called upon to
consider its welfare. The Supreme Court observed: “The child Anjum is the illegitimate daughter
the appellant who is a Muslim woman. The child was at the date of the application less than six
years old now she is just over seven years old. The appellant stated in her affidavit that the
respondent was in the keeping of a man and this the respondent has not denied. It is not the
respondent's case that she is a married woman leading a respectable life. In fact, she admits that
she allowed Trivedi to live in her flat with the appellant as his mistress and took money from him
for 'lodging and boarding charges. Trivedi has sworn an affidavit acknowledging the paternity of
the child and undertaking to bring her up properly as his own child.

Under Muhammadan Law which applies to this case, the appellant is entitled to the custody of
Anjum who is her illegitimate daughter, no matter who the father of Anjum is. The respondent
has no legal right whatsoever to the custody of the child. Her refusal to make over the child to
the appellant therefore resulted in an illegal detention of the child within the meaning of Section
491 CrPC. This position is clearly recognised in the English cases concerning writs of habeas
corpus for the production of infants.

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Before making the order, the Court is certainly called upon to consider the welfare of the infant
concerned. Now there is no reason to think that it is in the interest of the child Anjum to keep her
with the respondent.

Both parties belong to the community of singing girls. The atmosphere in the home of either is
the same. The appellant as the mother can be expected to take better care of the child than the
respondent. We have not been able to find a single reason how the interests of the child would be
better served if she was left in the custody of the respondent and not with the appellant.”

In a very recent case the court has re-emphasised the right of the children, the welfare of the
minor in the complex modern scenario of the present day society. Personal rights of either of the
parties cannot be permitted to override the welfare of the children - Md. Riazuddin Ahmed v.
Ms Farida Begum. In this case the appellant father had divorced the respondent and claimed
custody of son (14 years) and daughter (16 years). The single judge had personally heard in his
chamber and talked to the four persons. Now the husband had expressed desire to remarry the
respondent; to which she had flatly refused. The children were already living with the mother
and refused to go to the father. The learned judge gave the custody to the mother.

❖ Gita Hari Haran Case

Legitimacy
Parentage is the relation of parents to their children. The parentage includes maternity and
paternity.

Maternity is the legal relationship between the mother and the child. Paternity is the legal
relationship between the father and the child.

How Maternity is Established in Muslim Law

Under Sunni Law, the maternity of a child is established in the woman who gives birth to the
child irrespective of whether the birth was the result of a valid marriage or adultery (Zina). But

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under Shia Law, only birth is not sufficient to establish maternity. It has to be also proved that
the birth was a result of a lawful marriage. So we can say under Sunni Law, an illegitimate child
has his maternity in the woman who gave birth, and the child is entitled to inherit from mother
alone.

But under Shia Law, an illegitimate child has neither maternity in the woman who gave birth nor
paternity in the father. So in Shia Law, the illegitimate child can inherit neither from father or
mother.

How Paternity is Established in Muslim Law

Paternity of a child can only be established by marriage between his or her parents. The marriage
may be valid or be irregular. But it does not become void. Paternity is established in the husband
of the mother of a child.

Paternity is established in a person said to be a father by proof or legal presumption that the child
was begotten by him on a woman who was at the time of conception his lawful wife and was in
good faith and reasonably believed by him to be such or whose marriage being valid.

An issue of void marriage has neither paternity nor maternity under Shia Law.

Legitimacy in Muslim Law

A person born in lawful marriage is said to be the legitimate child of the spouses. So the main
point in case of the legitimacy of a child is the marriage between his or her parents.

Special notes regarding the Presumption of Legitimacy

1. A child born within six months after the marriage: the child is illegitimate unless the father
acknowledges the child.
2. A child born after six months from the date of marriage is presumed to be legitimate.
3. A child born after the dissolution of marriage is legitimate-

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 a. Under Shia Law, if born within 10 months.
b. Under Hanafi Law, if born within 2 years.
c. Under Shefai and Maliki, if born within 4 years.

Legitimacy When Conclusively Presumed

According to section 112 of the Indian Evidence Act, if a child is born during the marriage or
within 280 days after the dissolution of marriage, the child shall be presumed to be the legitimate
child of the spouses.

The Evidence Act supersedes the rule of Muslim law. The question arises whether the provision
of the Indian Evidence Act supersedes the provisions of Muslim law. Opinions are divided, but
the balance of authority remains in favour of the Indian Evidence Act.
Acknowledgement in Muslim Law
Muslim law does not recognise the institute of adoption, which is recognised by other systems.

Muslim law recognises the institution of ‘IKRAS’ (acknowledgement) where the paternity of a
child, which means his legitimate decent from his father, cannot be proved by establishing a
marriage between his parents at the time of conception of birth.

Muslim law recognises acknowledgement as a method whereby such marriage and legitimate
decent can be established as a matter of substantive law for the purpose of inheritance.

Mohammed Allahdad Khan v. Mohammed Ismail Khan (1887)

Justice Mehmood held that where marriage cannot be proved by direct evidence and no
legitimacy be established, Muslim law prescribes a means whereby the marriage and legitimacy
may be established as a matter of substantive law, and that is acknowledgement of paternity.

Acknowledgement under Muslim law is a rule of Substantive Law and not a rule of evidence. It
means it is not a presumption under the Evidence Act.

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It confers the status of son-ship and rights to succeed. A child whose illegitimacy is proved by
reason of the union between the parents not being lawful; such a child cannot be proved by
acknowledgement.

Necessity of Acknowledgement of Legitimacy

When there is direct proof of marriage and a child born out from such marriage, the question of
acknowledgement does not arise because, in such cases, the legitimacy is ipso facto established.

If there is no such direct proof of legitimacy, then legitimacy may be proved by indirect proof,
which is called acknowledgement.

Note: Acknowledgement is made by the father only not the mother. In other words, the doctrine
applies only to cases of uncertainty about legitimacy. Acknowledgement is made on the
assumption of a lawful union of the parents and the acknowledged child.

Basic Principles of Acknowledgement

1. Express or implied acknowledgement

It is not necessary that an acknowledgement should be express. It may also be implied. The
acknowledgement may be of a son or daughter, but it must be made by the father only. The
acknowledgement of the child must not be casual.

Muhammad Ali Khan v. Muhammad Ibrahim Khan 1929 PC

The father made the acknowledgement of the child in a casual manner. He never intended that
his acknowledgement should have serious effects. It was held by the Privy Council that the act of
the father is not sufficient to confer the status of legitimacy.

4. Age of the Acknowledger

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The age of the parties must be such that it is possible that they may be father and son. According
to Bailie, the acknowledger must be at least 12.5 years older than the person acknowledged.

5. The child of others

The child who is acknowledged must not be known as a child of another.

6. Offspring of Zina

An offspring of Zina is one who is born either without marriage or a mother who was the married
wife of another or of void marriage.

When the man has committed Zina with a woman, and she has delivered a son, such a son cannot
be acknowledged. So the acknowledgement must be of the child who is offspring of a legal
marriage.

7. Legal marriage possible between parents of the child acknowledged

The acknowledger and the mother of the child must have been lawfully joined in marriage at the
time when the child was begotten. It is essential to show that lawful marriage is possible between
the acknowledger and the mother of child. And the child is not the fruit of an adulterous
intercourse.

Similarly, if it is definitely proved that no marriage took place between the parties, the issue will
be illegitimate, and the acknowledgement will be ineffective.

8. Person acknowledged should confirm acknowledgement

The child, if adult, must confirm the acknowledgement.

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 9. Competency of the Acknowledger

The acknowledger must be competent to make a contract, which means he must be major and of
sound mind.

Effects of Acknowledgement
Acknowledgement produces all the legal effect of a natural paternity and vests in the child the
right of inheriting from the acknowledger.

In the case of wife, which means the mother of an acknowledged son, it has the effect of giving
her the status of legal wife and hence the right of maintenance and inheritance.

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