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Muslim LAw

Kinds of Marriage (Muslim Law)

MEANING

Muslim Marriage or Nikah is held as a legal civil contract between a man and a woman carried out on the basis of ijab-o-qabool. Ijab is a proposal from one party and Qubool is acceptance from other.  According to Sharia law, this contract is considered as integral to a religiously valid Islamic marriage that legalises sexual relation between man and woman to produce children. The contract is never permanent and can be broken at the will of husband and wife.

1.Sahih (Valid )

 Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance.

Legal Effect of a Valid Marriage

i)                The co habitation of the parties becomes lawful and not immoral;

ii)              The children born to a lawfully wedded couple are legitimate and can inherit accordingly;

iii)            For the couple itself, mutual rights of inheritance arise;

iv)             The wife can claim dower and has a right to maintenance and simultaneously the obligation to observe Iddat is bestowed upon her;

v)  Prohibited relations are created due to the marriage;

vi)             The legal identity or status of a Muslim woman does not blend in with her husband’s identity after marriage; and

vii)           The parties have rights to regulate the movements of each other but they can not refrain each other from maintaining a relationship with their respective families or visits to then.

2.Batil Secondly, there is a “Batil” (void) marriage. 

Under such a marriage, no rights or obligations exist between the parties. Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:

• Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male. Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.

• The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.

• Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.

Legal Effects of a Void Marriage

No mutual rights or obligations are created for the parties in this union. The children born to such a couple are deemed illegitimate and the wife has no rights to dower or maintenance. The parties can actually marry any one they wish for this marriage does not exist in law or in fact.

Munsh v, Mst. Alam Bibii AIR 1932 Lah. 280 the court observed that due to non-adherence of a condition there is a permanent or perpetual marriage, which is void marriage.

Spouses are free to separate from each other at any time without obtaining a divorce or the wife may contact another marriage lawfully. Some of the essential social and legal implications of void marriage are:

  • The marriage is void from the very first day of the marriage i.e. void ab initio even if the marriage is consummated.
  • Right to maintenance after divorce is lost in case of a void marriage.
  • The children born out of this marriage do not have a right to inheritance.

3.Fasid – Thirdly, there is a “Fasid” (irregular) marriage,

 which is middle way out. This is also no marriage, but can be regularized in certain conditions. Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:

• There is an absence of witnesses.

• A woman who is already married.

• A woman who is still observing the idda period.

• A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.

• A man may not marry at the same time two sisters or a mother and her daughter.

• A man who already has four wives may not validly marry a fifth.

• A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyah.

• A Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.

• According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.

• According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful and the children are legitimate and can inherit the properties of their parents. Mutual rights of inheritance do not arise. After consummation only, can the wife claim dower. The wife does not have to observe Iddat if the marriage is not consummated.

In Ata Mohammed. Saiqul Bibi, 1910 8 ALJ 953, the court observed that when a marriage is temporarilyimpedimental and not completely restricted it is considered as merely irregular of fasid and not void marriage. Because this marriage has several aspects involved and various points of view. The social and legal implication of irregular marriage depends upon that the marriage is consummated or not.

Muta marriage

Muta which refers to as pleasure ,is a temporary marriage which happens for a fixed period of time ,this kind of marriage was prevalent in Arabia and such a marriage is not recognized by any school of Muslim law in India ,it is only recognized by the Itha Asar Shia School ,however the practice and institution of Muta marriage is completely obsolete in India .

The Shia Law recognizes two kinds of marriage, namely

 (1) permanent, and

 (2) muta (literally means enjoyment or use) or temporary. The fundamental difference between the two is that in the former the term is not specified while in the later it is. Sunnis do not recognize such marriage. ‘Muta Marriage is an ancient Arabian custom.

A shia male may contract a muta marriage with kitabia woman (professing Muslim, Christian or

Jewish religion) or even with a woman who is fire-worshiper but not with a woman following

any other religion. But a shia woman may not contract a muta marriage with a non-Muslim.

A Shia male can contract any number of muta marriages. All the requisite formalities of

marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is

essential to the validity of muta marriage that:-

(1) the period of cohabitation should be fixed ( a day, a month, year , years) and that

The essentials of Muta marriage are:- 

(1) The period of cohabitation should be fixed. 

(2) Dower should be fixed.

 (3) If dower specified, term not specified, it could amount to permanent or regular marriage. 

(4) If the term fixed dower is not specified, it amounts to void marriage.

Effects of Muta marriage : 

1. Parties have no right to mutual inheritance 

2. Muta wife is not entitled for maintenance – But if in their contract it is so mentioned then husband is bound to pay or she may file Petition under Sec.125 of Cr.P.C. 

3. If marriage is not consummated, the wife is entitled for half of the dower. Also if the wife leaves husband before the contracted period, she is still entitled for a proportionate dower. 

4. When marriage is consummated, the wife is required to undergo an idda of three months 

5. In muta, husband has the right to refuse procreation Children of muta treated as the legitimate and inherit property of mother only.

 6. Children of muta are treated as the legitimate and inherited property of the mother only.
7. Muta comes to an end after expiry of term, if the husband wants to end it early then by mutual consent , he can do so by making a gift of the remaining term.

Conclusion

Marriage under Muslim law is considered a devotional act. The main purpose of marriage is to create a family which is considered a fundamental unit of society. The Prophet Muhammad has also said Marriage is my tradition and anyone who does not want to marry is not from amongst me. Also, Muslim law treats marriage as a civil contract, all the legal obligations of a contract like a proposal, acceptance, free consent and consideration are followed for a valid marriage. Marriage is classified based on its validity.

SPECIAL MARRIAGE ACT 1954

Under the present legal system of India, citizens have a choice between their respective religion-based and community-specific marriage laws on the one hand and, on the other hand, the general and common law of civil marriages. The Special Marriage Act is a central piece of legislation made to validate and register inter religious and inter-caste marriages in India. It allows two individuals to solemnize their marriage through a civil contract. No religious formalities are needed to be carried out under the Act.Under the present legal system of India, citizens have a choice between their respective.

In a revolutionary event, HS Maine Act III authorized dissenters to choose their matrimonial partner and legalized their marriage under the Civil Marriage Law of 1872. Society did not approve of the Act and opposed its enactment. Additionally, the incompetence of the Civil Marriage Law created the Special Marriage Act of 1872. They could marry without any religious ceremonies or converting their religion. After that, the Parliament came up with a special Act that ensured the dissenters marrying under the ambit of the Act would be safeguarded by providing the following legal provisions:

  1. A specialized form of marriage.
  2. Compulsory registration of marriages.
  3. Procedure for Divorce.

A marriage under the Special Marriage Act, 1954 allows people from two different religious backgrounds to come together in the bond of marriage. The Special Marriage Act, 1954, lays down the procedure for both solemnization and registration of marriage, where either the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs.

The Act completely transformed the outlook of society on inter-caste and inter-faith marriages in the following manner:

Applicability

The Act, unlike other marriage acts, takes citizens of India into its ambit, irrespective of their religion and caste. Hence, any individual desirous of marrying another individual could get married under the said Act.

Rites and Ceremonies

The Act perceives marriage as a civil contract, so there are no rites and ceremonies performed. The court marriage gets performed under the act.

Essential Conditions of Marriage under Special Marriage Act

The Act observes the procedure of court marriage for any marriage under the said Act. The various provisions of the Act in this regard are:

Prerequisites for valid Marriage

Section 4 of the Act lays down the conditions for a marriage to be valid under the Act. These are:

No living spouse

The Act mandates that, at the time of marriage, neither party should have a living spouse. Hence, their first marriage has to get revoked either through divorce, their spouse’s death, or any other manner that ends the marriage.

Valid Consent

Essentially, the parties should be able to give valid consent. Neither of them should be of unsound mind or liable to get a recurring insanity act. Even if not insane, unfit for marriage, or have an inability to procreate, children render them unfit for marriage under this section.

Age

Any male who is 21 years of age or female who is 18 could marry as per the Act.

Fall within degrees of Prohibited Relationship

The parties must not fall within the prohibited relationship degrees. Where the custom allows such marriage, the act would not bar it. Any couple wishing to avail the fruits of this Act is required to issue a notice in writing to the “Marriage Officer” of the district where at least one of the parties to the marriage has been residing for the last thirty days. The marriage is generally scheduled within three months from the date of issue of notice. The notice so received will be published in the office of the Marriage Officer by displaying it in a conspicuous place. A copy of the same must also be attached to a “Marriage Notice Book,” which could be inspected by anyone.

Any objections to the marriage, with respect to age, capacity to consent, incest, etc, may be addressed to the marriage officer within 30 days of the publication of the notice. In case of any objections, the Marriage Officer is mandated to conduct an inquiry into its validity within a window of 30 days, during which the marriage cannot be solemnized.  If the Marriage Officer discovers that the objection is valid and decides against the marriage of the concerned parties, the bride or groom may appeal to the district court within thirty days of such refusal. If all the concerned objections are dealt with, the bride, groom, and any three witnesses need to sign a declaration in the presence of the Marriage Officer, who would then countersign it. In the absence of any objections, the marriage will be solemnized upon the cessation of the objection period.

Power of Enquiry

In receiving an objection, marriage officers are granted the following rights: 

  1. Summoning and enforcing witnesses’ attendance.
  2. Examining the witnesses on oath.
  3. Demanding documents to produce.
  4. Demanding the evidence on affidavits.
  5. Issue of commissions for the witness scrutiny.

Registration of Valid Marriage

  • The procedure of registration begins when the pirates submit the duly signed application to the Marriage Officer.
  • He then releases a public notice after thirty days.
  • Any objections to such a marriage shall get heard within these thirty days.
  • After that, fulfilling all the necessary conditions of section 15, he might enter the certificate of the marriage in the Marriage Certificate Book in the prescribed manner.
  • Then this certificate should be signed by the parties to the marriage and any three witnesses.

Void Marriages

The marriages solemnized under the said act would be rendered void if any of the conditions laid down in Section 6 are left. Either party to the marriage could file a petition for declaring the marriage void.

According to Section 24, the impotence of the respondent could also be the ground for rendering the marriage void.

Voidable Marriages

As per Section 25, marriage under the said act would be rendered voidable under the following situations:

Non-consummation of Marriage

If the respondent refuses to consummate the marriage, the CourtourtCourtrt could grant decree upon the fulfilment of the following conditions:

  1. Petitioner did not know respondents’ conditions at the time of marriage.
  2. Initiation of proceedings within a year of marriage.
  3. Lack of marital intercourse since the revelation of respondent’s condition.

Divorce under Special Marriage Act

Grounds for Divorce

Under Section 27, the Act laid specific common grounds for the petitioner filing the divorce irrespective of religion. These are:

  1. Adultery
  2. Desertion for a minimum of two years
  3. Respondent subject to imprisonment for a minimum of seven years
  4. Cruelty
  5. Unsound Mind
  6. Venereal Disease
  7. Leprosy
  8. Presumption of Death
  9. Responded husband guilty of rape or outraging women’s modesty

It must be noted that the Court might not entertain the petition if a minimum of one year has not passed since marriage registration. However, in some instances where the petition is subject to ultimate hardships, the court would accept the petition.

Divorce by Mutual Consent

The parties who have agreed to a mutual divorce could file a petition under Section 28 of the said Act. They could move the application to the District Court stating that they have been living separately for more than one year and have discovered that they could not live in the matrimonial ties anymore.

Citations: Lata Singh Vs State of U.P. & Another, AIR 2006 SC 2522.

  • The Honorable Supreme Court held that the writ petition under Article 32 of the Constitution was maintainable for quashing the Session Trial under Section 366 & 368 of the Indian Penal Code, 1860.
  • The court observed that the marriage between the Petitioner and Brahma Nand Gupta was valid.
  • The Court further observed that everyone has the right to marry and a definite right to choose their life partner under the ambit of Article 21 of the Constitution. This fundamental right of any citizen cannot be violated at the instance of another person.
  • In the present case, the petitioner wanted to quash the petition filed by her enraged brother because the petitioner underwent an inter caste marriage. Hence, the Apex Court ruled that the petitioner being 24 years of age, is major and in a position to chose her matrimonial partner.
  • SHAFIN JAHAN v. ASOKAN K.M (A.I.R 2018 SC 357) case, where a Hindu women named Hidaya convert herself to Islam religion, upon this her father criticized that she had been �indoctrinated’ into embracing Islam and alsoa victim of a movement to convert Hindu women to another religion and fear to transfer them to other country. It was consenting marriage between two and her conversion to Islamwas of her own choice and will. Taking in to the account, we can conclude that the subject matter here is no tone religion tall. But it is one of the women’s freedom of choice and religion, human rights and also to protect personal freedom.
  • Benefits of the verdict:
  • It would decrease the cases of conversion for marriage, as the delay under the special marriage Act 1954 was forcing many couples to marry by converting. It shall remove hindrances to inter-faith and inter-caste marriages, and thus could promote ideals of secularism and egalitarianism. It shall provide relief to interfaith couples from being targeted by vigilante groups.

Divorce Vs Judicial Separation

DivorceJudicial Separation
It could be filed only after the lapse of one year from marriageCould be filed at any time post marriage
Double step judgementSingle-step judgement
Dissolution of marriageProvisional termination of a marriage
No probability of conciliationProbability of conciliation
Remarriage is allowed after the decree for divorce is passedCould not remarry after the decree for judicial separation is passed.
It happens after the Judicial separationIs ground for divorce
Parties must live in an adulterous relationshipA single event of adultery is enough for taking judicial separation.

Difference between the Hindu Marriage Act and Special Marriage Act

The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends to all Indian citizens.

The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu Marriage Act allows for an already solemnized marriage to be registered. It does not provide for Registrar for solemnization of a marriage. Parties to the marriage must apply to the Registrar in whose jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party to the marriage has resided for at least six months immediately before the date of marriage. Both parties must appear with their parents or guardians or other witnesses before the Registrar within one month from the date of marriage. There is a provision for the Registrar, and subsequently, the District Registrar concerned to condone delay for up to five years.

The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the citizens of India and all Indian nationals in foreign countries with a special form of marriage, regardless of the religion or faith practiced by either party. The Special Marriage Act provides for marriage solemnization as well as registration by a marriage officer. The parties to the intended marriage must notify the marriage officer in whose jurisdiction at least one of the parties has resided for at least 30 days prior to the date of the notice. It should be put in his office at some conspicuous place. If either party lives in another Marriage Officer’s area, a copy of the notice for similar publication should be sent to him. If no objections are received, the marriage may be solemnized after the expiry of a month from the date of publication of the notice The Marriage Officer has to inquire into them if any objections are received and make a decision either to solemnize the marriage or to refuse it. Registration will be made after the marriage has been solemnized.

Amount of Maintenance

The maintenance amount shall be purely the Court’s discretion. The court shall take due account of the following factors in deciding the amount of maintenance, namely: 

  • The position and status of the parties; 
  • The fair preference of the claimant; 
  • If the claimant resides separately, whether the claimant is justified in doing so; 
  • The value of the claimant’s estate and any income derived from that property or from the claimant’s own income or from any other source.

CONCLUSION:

Inter-standing marriage segment with respect to the Special Marriage Act. In India, marriage is considered as a sacred, divine, and was called the holy union. It’s a basic piece of our way of life. India is a large nation, and thereafter people from different religions and cultures live here. Thus the Parliament approved the Special Marriage Act of 1954 for individuals of India and for every single Indian national of outside nations, irrespective of rank or religion. The one of a kind aspect of the Special Marriage Act of 1954 is that any marriage solemnized in any other manner under any other law, Indian or nonnative, between any two persons may be enlisted under the Act, With the enactment of a competent version of the Special Marriage Act, the individuals would marry the person of their choice irrespective of their caste, community, religion or societal taboo. Keeping in mind the outrage of the community, the Special marriage Marriage intended to protect the couple to all possible extents.

The Act laid provisions for the valid marriage, void marriage, voidable marriage, procedure for registration, grounds for divorce, maintenance, the status of the children and remarriage. The objective was to provide a uniform code that could lessen the disparity running deep in the society and eating it up like termite.

WAQF

Meaning :

When Muslim a person, who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah, is called waqf.

Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of dedicated property is taken away from the person making waqf and transferred and detained by God. 

One omer Ibnal – Khattab on getting land in khyber went to the prophet and enterating him sid “O Messenger of Allah” i have got land ion Khyber than which i have obtained more valuable property, what does thou advise me.  The prophet said if you likest make the property itself inalienab;e and given the profits from it to the charity.  Hence Omer donated this land as Waqf for poor, relatives, slaves, travellers and guests.  Thsi Waqf constituted by oer is condidered to be the first qaqf of the Islam.

Definition of Waqf:

Imam Abu Hanifa

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.

It is observed in M Kazim v A Asghar Ali 1931 The term ‘wakf literally means ‘detention or stoppage and the legal meaning of wakf according to accepted doctrine of the Hanafi School is the extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefit of mankind. Sec. 2 Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable. In India Waqf property vests in ownership of God.Court held that the purpose of the Waqf must be religious, pious or chritable, the dedication of property must be permanent and the usefruit must be utilized for the good of mankind.

  1. Property vests in God:

Waqf is that the ownership of property dedicated for the waqf cvests in God.  the creation of a Waqf is essentially based on a legal fiction, the fiction being that the property vests in God in perpetuity but income from the property is permitted to be utilized for certain specified purpose, which under the
Muslim Law recognised as Pious or religion.

  1. Waqf must be permenant

A Muslim waqf ,must be created for an unlimited operiod.  It must be expressly or impliedly reserved for the poor or for any other purpose recognised by muslaman law as religious, pious or charitable puropse ofa a permant.

  1. Waqf myst be irrevocable. Once constituted validly it cannot be revoked.

ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:

1. Permanent dedication: 

The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won’t be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.

2. Competency of the Waqif:

Who Can Create a Waqf? : 

The person who constitutes the waqf of his properties is called the

‘founder of waqf or, Waqif. The waqif must be a competent person at the time of dedicating the property in waqf. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.

As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane or minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam.

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property or not. A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction. Amount of property: a person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.

 

CREATION OF WAKF

Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares the dedication of his property for Wakf. This can also be done while the person is on death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.

2. By will – when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by will but now it has been approved.

3. By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

KINDS OF WAQFS:

They are three kinds:

  1. Public
  2. Quasi Public
  3. Private

Categories of waqf from the perspective of its purpose:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children and their off- spring. However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.

• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy. Examples of beneficiaries include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and universities. This is meant to help financially-challenged individuals an

communities.

• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar to waqf khayri, though waqf al-sabil is usually used to establish and construct the public utility (mosques, power plants, water supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at times of

emergency or unexpected events that negatively influence the livelihood and well-being of a community of people. For example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf istithmari: the waqf assets are intended for investment. Such assets are managed to produce income that will be used in constructing and reconstructing waqf properties.

• Waqf mubashar: the waqf assets are used to generate services to the benefit of some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc

LEGAL CONSEQUENCES OF WAKF

Once a wakf is complete, the following are the consequences –

1. Dedication to God – The property vests in God in the sense that nobody can claim

ownership of it. In Md. Ismail vs Thakur Sabir Ali , SC held that even in wakf alal aulad,

the property is dedicated to God and only the usufructs are used by the descendants.

2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The

wakif cannot get his property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the

property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified

time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the

wakf of a house built on a land leased for a fixed term was invalid.

4.Inalienable – Since Wakf property belongs to God, no human being can alienate it for

himself or any other person. It cannot be sold or given away to anybody.

5. Pious or charitable use – The usufructs of the wakf property can only be used for pious

and charitable purpose. It can also be used for descendants in case of a private wakf.

6.Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the

property. He cannot claim any benefits from that property.

7. Power of court’s inspection – The courts have the power to inspect the functioning or

management of the wakf property. Misuse of the property of usufructs is a criminal

offence as per Wakf Act.1995.

According to Imam Mohammad, however, a wakf is not complete unless there is declaration coupled with:

  1. Appointment of mutawalli, and
  2. Delivery of possession.

In India, the view of Abu Yusuf is followed and views of Imam Mohammad, is not adopted. Under Shia Law no doubt, delivery of possession to the first person in whose favour the xoakf has been created is essential.

Long User.-Where land has for long been used as a wakf proof of express dedication is not necessary, and the legal dedication will be inferred.

Madras High Court in NR. Abdul Azeez v. £. Sundaresa Chettiar AIR 1993, Madras. 169.

 it was held that it is a fundamental principle of the Muslim Law of Wakf that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God.

Mohd. Ismail Faruqui v. Union of India AIR, 1994 SC 605.

(Ayodhya case) the Supreme Court has observed that where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque. Hence the view that once a consecrated mosque, it remains always a place of worship as a mosque was not the Mohammedans Law of India as

The Mutawalli –

He is a manager of Wakf property.The person who manages the waqf property.  Weather the female or male can be act as a Mutawalli.

Md. Zaimubuddin  Vs. Moiden 1989 JT (11) SC 563, the sc court held that a woman can be appointed as mutawalli.Mutawalli is not a trustee in English sense he is a more like a manager but those duties are having a trustee similar duties.  If any waqf oproperty wrongfully deprives a beneficiary of the profits of the waqf property, he is liable to pay interest on the amount like trustee U/S 23 of Trust Act so trusteeship of the Mutwalli is known as tawliyat.  The person of non Muslim are also can be apoointed.

1) Appointment by :

 i) Founder i.e Wakif ii) Mutawalli’s power iii) Court’s power iv) Appointment by congregations 

2) Who may be Mutawalli – a Major and sound minded person can be a Mutawalli. – minor can be a Mutawalli in case of hereditary Mutawalli – female can also hold part of Mutawalli. 

3) Nature of Mutawalli– he is a manager and not trustee as property vests in God. 

4) Remuneration of Mutawalli, Officers and servants of Wakf – is made through wakfnama,  Mumtaz Vs AG AIR 1936 if the court can fix an amouont of remuneration exeeding 1/10 of the total income of the waqf.  It an honorary but not a right.

Powers of mutawalli – 

i. He has the power of manage and administration of wakf properties.

 – Power to utilize property for the purpose of wakf. 

– He can sue for possession of property.

– Md. Usuf V. Md. Sadiq 1933 Lah 501 – a Wakf deed provided for the sale of wakf property and to construct and to maintain a rest-house from the sale proceeds at Mecca. Court held that Mutawalli is having right to do so. 

ii) Alienation with the permission of the court for —For sale, mortgage / exchange. An alienation without permission is voidable.

 ii) Mutawalli’s power of granting lease- not for more than 3 years if it is agricultural land and for more than 1 year if it is non agricultural land.

 iii) Power of taking debt – no power of incurring debt

 iv) Power to file suit- after Wakf Act 1945, the power to file suit vests in Wakf board under whose supervision Mutawalli have to work. 

7 Removal of Mutawalli : – Founder has no power to remove Mutawalli unless such power is reserved in Wakf deed. 

-Court may remove on the ground of misfeasance, brach of trust/ unfitness/ any other reason. -A Mutawalli even if protect by Wakfnama can also be removed by court to consider interest of Wakf. 

-Thus a Mutawalli who is insolvent/ neglects to perform his duties, claims adversely to wakf property can be removed by court.

-Procedure for removing Mutawalli is by way of a suit in District Court.

1. By court –

1. if he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs

Mahmood Hasan , SC held that using wakf money to buy property in wife’s name is such breach

of trust as is sufficient ground for removal of mutawalli.

4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli

from his office under the conditions mentioned therein.

3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not

reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.

DIFFERENCE BETWEEN WAQF AND TRUST

Both, in waqf as well as in trusts, the property is detained and its usufruct is utilised for religious or charitable purposes. But, a waqf under Muslim personal law may be distinguished from a trust at least on following matters:

(1) A waqf may be constituted only for those purposes which are recognised as religious, pious or charitable in Islam whereas, a trust may be constituted for any lawful object.

(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the founder of a trust may himself be a beneficiary.

(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the powers of a trustee.

(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may also be revoked under certain conditions. Because of the above mentioned differences between waqf and a trust, the Indian Trust, Act, 1882, is not applicable to Muslim waqf sin so far as the nature and operation of waqfs is concerned. But, for purposes of instituting any suit in the cases of irregularities and mismanagement of waqf property, a waqf has been regarded as a ‘trust’ within the meaning of Section 92 of the Civil Procedure Code, 1908.

However it must be noted that the Indian Trusts Act is applicable also to Muslims. Therefore, if a Muslim wants to settle his properties in a trust he may do so under this Act instead of creating waqf under Muslim personal law

WAQF

Meaning :

When Muslim a person, who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah, is called waqf.

Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of dedicated property is taken away from the person making waqf and transferred and detained by God. 

One omer Ibnal – Khattab on getting land in khyber went to the prophet and enterating him sid “O Messenger of Allah” i have got land ion Khyber than which i have obtained more valuable property, what does thou advise me.  The prophet said if you likest make the property itself inalienab;e and given the profits from it to the charity.  Hence Omer donated this land as Waqf for poor, relatives, slaves, travellers and guests.  Thsi Waqf constituted by oer is condidered to be the first qaqf of the Islam.

Definition of Waqf:

Imam Abu Hanifa

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.

It is observed in M Kazim v A Asghar Ali 1931 The term ‘wakf literally means ‘detention or stoppage and the legal meaning of wakf according to accepted doctrine of the Hanafi School is the extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefit of mankind. Sec. 2 Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable. In India Waqf property vests in ownership of God.Court held that the purpose of the Waqf must be religious, pious or chritable, the dedication of property must be permanent and the usefruit must be utilized for the good of mankind.

  1. Property vests in God:

Waqf is that the ownership of property dedicated for the waqf cvests in God.  the creation of a Waqf is essentially based on a legal fiction, the fiction being that the property vests in God in perpetuity but income from the property is permitted to be utilized for certain specified purpose, which under the
Muslim Law recognised as Pious or religion.

  1. Waqf must be permenant

A Muslim waqf ,must be created for an unlimited operiod.  It must be expressly or impliedly reserved for the poor or for any other purpose recognised by muslaman law as religious, pious or charitable puropse ofa a permant.

  1. Waqf myst be irrevocable. Once constituted validly it cannot be revoked.

ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:

1. Permanent dedication: 

The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won’t be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.

2. Competency of the Waqif:

Who Can Create a Waqf? : 

The person who constitutes the waqf of his properties is called the

‘founder of waqf or, Waqif. The waqif must be a competent person at the time of dedicating the property in waqf. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.

As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane or minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam.

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property or not. A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction. Amount of property: a person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.

 

CREATION OF WAKF

Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares the dedication of his property for Wakf. This can also be done while the person is on death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.

2. By will – when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by will but now it has been approved.

3. By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

KINDS OF WAQFS:

They are three kinds:

  1. Public
  2. Quasi Public
  3. Private

Categories of waqf from the perspective of its purpose:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children and their off- spring. However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.

• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy. Examples of beneficiaries include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and universities. This is meant to help financially-challenged individuals an

communities.

• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar to waqf khayri, though waqf al-sabil is usually used to establish and construct the public utility (mosques, power plants, water supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at times of

emergency or unexpected events that negatively influence the livelihood and well-being of a community of people. For example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf istithmari: the waqf assets are intended for investment. Such assets are managed to produce income that will be used in constructing and reconstructing waqf properties.

• Waqf mubashar: the waqf assets are used to generate services to the benefit of some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc

LEGAL CONSEQUENCES OF WAKF

Once a wakf is complete, the following are the consequences –

1. Dedication to God – The property vests in God in the sense that nobody can claim

ownership of it. In Md. Ismail vs Thakur Sabir Ali , SC held that even in wakf alal aulad,

the property is dedicated to God and only the usufructs are used by the descendants.

2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The

wakif cannot get his property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the

property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified

time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the

wakf of a house built on a land leased for a fixed term was invalid.

4.Inalienable – Since Wakf property belongs to God, no human being can alienate it for

himself or any other person. It cannot be sold or given away to anybody.

5. Pious or charitable use – The usufructs of the wakf property can only be used for pious

and charitable purpose. It can also be used for descendants in case of a private wakf.

6.Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the

property. He cannot claim any benefits from that property.

7. Power of court’s inspection – The courts have the power to inspect the functioning or

management of the wakf property. Misuse of the property of usufructs is a criminal

offence as per Wakf Act.1995.

According to Imam Mohammad, however, a wakf is not complete unless there is declaration coupled with:

  1. Appointment of mutawalli, and
  2. Delivery of possession.

In India, the view of Abu Yusuf is followed and views of Imam Mohammad, is not adopted. Under Shia Law no doubt, delivery of possession to the first person in whose favour the xoakf has been created is essential.

Long User.-Where land has for long been used as a wakf proof of express dedication is not necessary, and the legal dedication will be inferred.

Madras High Court in NR. Abdul Azeez v. £. Sundaresa Chettiar AIR 1993, Madras. 169.

 it was held that it is a fundamental principle of the Muslim Law of Wakf that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God.

Mohd. Ismail Faruqui v. Union of India AIR, 1994 SC 605.

(Ayodhya case) the Supreme Court has observed that where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque. Hence the view that once a consecrated mosque, it remains always a place of worship as a mosque was not the Mohammedans Law of India as

The Mutawalli –

He is a manager of Wakf property.The person who manages the waqf property.  Weather the female or male can be act as a Mutawalli.

Md. Zaimubuddin  Vs. Moiden 1989 JT (11) SC 563, the sc court held that a woman can be appointed as mutawalli.Mutawalli is not a trustee in English sense he is a more like a manager but those duties are having a trustee similar duties.  If any waqf oproperty wrongfully deprives a beneficiary of the profits of the waqf property, he is liable to pay interest on the amount like trustee U/S 23 of Trust Act so trusteeship of the Mutwalli is known as tawliyat.  The person of non Muslim are also can be apoointed.

1) Appointment by :

 i) Founder i.e Wakif ii) Mutawalli’s power iii) Court’s power iv) Appointment by congregations 

2) Who may be Mutawalli – a Major and sound minded person can be a Mutawalli. – minor can be a Mutawalli in case of hereditary Mutawalli – female can also hold part of Mutawalli. 

3) Nature of Mutawalli– he is a manager and not trustee as property vests in God. 

4) Remuneration of Mutawalli, Officers and servants of Wakf – is made through wakfnama,  Mumtaz Vs AG AIR 1936 if the court can fix an amouont of remuneration exeeding 1/10 of the total income of the waqf.  It an honorary but not a right.

Powers of mutawalli – 

i. He has the power of manage and administration of wakf properties.

 – Power to utilize property for the purpose of wakf. 

– He can sue for possession of property.

– Md. Usuf V. Md. Sadiq 1933 Lah 501 – a Wakf deed provided for the sale of wakf property and to construct and to maintain a rest-house from the sale proceeds at Mecca. Court held that Mutawalli is having right to do so. 

ii) Alienation with the permission of the court for —For sale, mortgage / exchange. An alienation without permission is voidable.

 ii) Mutawalli’s power of granting lease- not for more than 3 years if it is agricultural land and for more than 1 year if it is non agricultural land.

 iii) Power of taking debt – no power of incurring debt

 iv) Power to file suit- after Wakf Act 1945, the power to file suit vests in Wakf board under whose supervision Mutawalli have to work. 

7 Removal of Mutawalli : – Founder has no power to remove Mutawalli unless such power is reserved in Wakf deed. 

-Court may remove on the ground of misfeasance, brach of trust/ unfitness/ any other reason. -A Mutawalli even if protect by Wakfnama can also be removed by court to consider interest of Wakf. 

-Thus a Mutawalli who is insolvent/ neglects to perform his duties, claims adversely to wakf property can be removed by court.

-Procedure for removing Mutawalli is by way of a suit in District Court.

1. By court –

1. if he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs

Mahmood Hasan , SC held that using wakf money to buy property in wife’s name is such breach

of trust as is sufficient ground for removal of mutawalli.

4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli

from his office under the conditions mentioned therein.

3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not

reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.

DIFFERENCE BETWEEN WAQF AND TRUST

Both, in waqf as well as in trusts, the property is detained and its usufruct is utilised for religious or charitable purposes. But, a waqf under Muslim personal law may be distinguished from a trust at least on following matters:

(1) A waqf may be constituted only for those purposes which are recognised as religious, pious or charitable in Islam whereas, a trust may be constituted for any lawful object.

(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the founder of a trust may himself be a beneficiary.

(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the powers of a trustee.

(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may also be revoked under certain conditions. Because of the above mentioned differences between waqf and a trust, the Indian Trust, Act, 1882, is not applicable to Muslim waqf sin so far as the nature and operation of waqfs is concerned. But, for purposes of instituting any suit in the cases of irregularities and mismanagement of waqf property, a waqf has been regarded as a ‘trust’ within the meaning of Section 92 of the Civil Procedure Code, 1908.

However it must be noted that the Indian Trusts Act is applicable also to Muslims. Therefore, if a Muslim wants to settle his properties in a trust he may do so under this Act instead of creating waqf under Muslim personal law

WILL

Will is a legal declaration of transfer of property by a person to another after his death. According to Section 2(h) of Indian Succession Act, 1925, “will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. Under Muslim Law, a will executed by a Mussalman is called ‘Wasiyat’. The person who executes a Will is known as legator or testator(Al-Musi) and the person in whose favour the Will is executed is called legatee or testatrix(AL-Musa Lahu). The property, wealth substance or use fruit of a thing about which a will is made is termed as bequest or Musa-be-hi. The famous Muslim Jurist Ameer Ali was of the opinion that Will is a divine institution because its exercise is regulated by the Holy Quran. A Muslim can make a Will in favour of any person but only to the extent of one-third of the total property and if the property is given more than that in the Will then the consent of the legal heirs is compulsory. Mazhar Hussain Vs  Bodha Bibi  (1898 21 ALL 91 P.C) Court held that a will of suicide is valid, when made in contemplation of taking poison, but before poison actually been taken onus of proving that will written after swallowing poison rests on party impugning with. 

ESSENTIALS OF A VALID WILL

Under Muslim Law, a valid will is that which is having certain essentials 

1.The person making a Will i.e., legator must be competent to make a will

2.The legatee shall be capable to taking the endowment.

3.The property which is given by legator must be bequeathable property.

4.There must be free consent of legator and legatee.

5.The legator should have testamentary rights over the property.

Objective

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.

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.

WHO CAN MAKE A WILL

(competent of the legato)

1. He must be a Muslim

2. Soundness of Mind

3. Age of majority

4. Consent of Legator

LEGATEE AND HIS COMPETENCE

(To whom Will can be made?)

1. Must be a person in existence

2. Child in the womb of mother (unborn persons)

3. Murderer of Legator-

4. Consent of Legatee.

5. Non Muslim

6. Charity

7. Pre-deased testator

8. Joint Legatee

FORMALITIES OF WILL

Under Muslim Law, there is no any expressed formalities for the execution of the Will. In validating a Will, the intention of legator plays a significant role. Such intention of legator must be explicit, unequivocal and clear in nature. A will can be made orally or in writing or by any other proper gesture.

ORAL WILL

A simple oral declaration is also regarded as a valid Will. It is not necessary or abiding to follow a certain process or procedure in order to constitute a Will. But the burden to validate such a Will is very brawny.

WRITTEN WILL :

A will can be written also and for a written Will no specific form is described. A written Will is valid though it is not signed by legator or attested by the witnesses. If a document possesses the important characteristics of a Will then it will be considered as a valid Will.

THE SUBJECT MATTER OF A WILL

Any kind of corporeal or property whether it is movable or immovable can be considered as the subject matter of a Will. But there are two conditions when a legator can bequest his property in a Will-

1. When he is the owner of the property at the time of his death.

2. Such property must be transferable.

In certain matter, a property endowed under a Will may or may not exist at the time of execution of Will but it is compulsory that such endowment must be in ownership of the legator at time of his death.

RijiaBibi v Md Abdul Kachem (AIR 2013 Gau 34), held that the Will executed was void as it was not consented by the heirs and all the claimants would have their rights determined in accordance with the law of Inheritance.

A Muslim cannot discard through will more than 1/3 of the net assets inside the wake of allowing (assembly) for the duties and memorial provider charges of the deceased benefactor (beneath both Hanafi Law and Shia regulation).

The relaxation of the 2/3 provide must be made accessible for appropriation among the beneficiaries. However, to pass on the 1/3 provided, the Muslim needs to collect the assent of alternate beneficiaries. 

Gulam Md v GulamIiussain, AIR 1932 PC 81 held for this case that property for beneficiaries without the assent of various beneficiaries is invalid. If the amount so transferred as felt by the testator is more than enough, as a consequence reduces it, this process is called abatement of legacy.

Shia law chooses the process of abatement of legacy through the preferential method, whereas the Sunni law, the abatement is made in a rateable manner.

EXCEPTION TO THE RULE OF ONE-THIRD

◦Since the rightful claims of the heirs should not be disturbed, it derives its origin from Hadith. There are majorly two exceptions:

◦1. An heirless (legal Heir) person can bequest the whole property.

◦2. Where the heirs themselves agree to bequest more than one-third of the property

SHIA LAWSSUNNI LAWS
Bequest to an heir is valid only if it is one-third.Bequest to an heir is invalid even if it is one-third.
Consent of the heirs must be given before or after the death of the testator.In order to pass property more than 1/3 to any other person through of the testator, consent of the heirs is necessary to be taken after the death of the testator.
Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 10 months of date of declaration of will.Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 6 months of date of declaration of will.

Difference

SHIA LAWSSUNNI LAWS
A will by the testator who later commits suicide is invalid.A will by the testator, when written or declared in his all senses, who later commits suicide is valid.
Legacy must be accepted before or after the death of the testator.Legacy must be accepted after the death of the testator.
Legatee committing murder or causing death of the testator intentionally cannot claim the property of the testator, but if accidently or negligently then he can claim the legacy.Legatee committing murder or causing death of the testator cannot claim the property of the testator later.
If the legatee dies before testator the legacy lapses if he dies without any heir or the testator himself revokes the Will.If the party in whose favor the Will is transferred dies before the testator, the legacy is lapsed.

Difference

GiftWill
QuantumA man can give away his whole property during his lifetime.Only one-third of the net estate can be bequeathed.
BeneficiaryA gift inter vivos can be made in favour of any person without any restriction (except during marz-ul-maut).For bequeathing more than one-third of the property to any person, consent of heirs is mandatory.
Existence of PropertyProperty gifted must be in existence at the time of making the gift.The property may or may not be in existence at the time of execution of the will but it must be existing at the time of the death of the legator.
Transfer of PropertyUnder gift, the immediate and absolute transfer of property takes place.A transfer of property comes into effect only after the death of the legator.
Delivery of PossessionImmediate delivery of possession must take place as soon as the donor declares the gift and the donee accept the same.Since property devolves on the legatee only after the death of the legator so no question of delivery of possession arises.
RevocationOnce a gift is made, a mere declaration to revoke it by the donor is not sufficient. A revocation can only take place either by the consent of the donee or by the intervention of the court.A bequest may be revoked by the legator any time after executing it and before his death either impliedly or expressly or by a subsequent will.

Wilayat / Guardianship

The sources of law of guardianship and custody are certain verses in the Quran and a few Ahadis. The Quran, the Ahadis, 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. under Muslim law as a 1. Guardian ship, 2. custody, and 3. De facto guardianship

Who is minor

It is defined as a minor means who has not completed the age of 18 years. A minor is assumed to have no capacity to protect his or her own interests. Law thus, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorized underneath the law to guard the person or property of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and according to Section 3 of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor.

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

 The term ‘Guardianship’ (wilayat) indicates the guardianship of a minor. A minor is one who has not accomplished the majority age.  Majority and puberty are in the Muslim law indeed the very same. Puberty is attained at the age of fifteen years. In any case, presently the Muslims are controlled by the Indian Majority Act, 1875, apart from issues related to marriage, dower, and divorce for protecting the minor’s property.

Guardians and wards Act 1890

 Sec.4 (2) defines “a person having the care of the person of a minor, or his property or of both his person and his property.”

 Sec. 4 (3) defines Wards means “a minor for whose person or property or both there is a guardian. 

What is Guardianship?

A guardian means a person who has completed the age of 18 and is taking proper care of a minor and his property as well as his own. Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same thing. But underneath Muslim law, these two aspects of guardianship are different and are governed by different laws.

The guardianship of a child means the overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a physical possession (custody) of the child at a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

Muslim law recognizes three kinds of guardianship, namely

  1. Guardianship of the person

 2. Guardianship of the property

 3. Guardianship of marriage

Guardianship of person

Legal Guardian (Wilayat – e – mal)

  1. Legal Guardian (Dejure)

 2. Guardian appointed by the court. (Certified)

 3. De-facto guardian

4.. Guardianship of marriage (Jabar)

A Muslim law, guardians fall under the following three categories, they are :

1. Natural or Legal Guardian

 A natural guardian is one that encompasses a right to regulate and supervise the activities of a minor. Father is recognized as the natural guardian of his kid underneath all the schools of Muslim law. The father’s right to act as guardian of a minor is an independent right and is given to him underneath the substantive law of Islam. As long as the father is alive he is the sole and supreme guardian of his children. In Muslim law, the mother is not a natural guardian even of her minor illegitimate children but she is entitled to their custody.

A natural guardian is additionally known as a legal guardian. But within the absence of the father, the father’s executor might also act as a legal guardian. The executor could be one who is appointed by the father or grandfather to act as the guardian of his minor kid on his behalf.

Among the Sunnis, the father is the natural guardian of the minor children. after the death of the father, the guardianship passes to the executor. Shia, after the death of the father, the guardianship belongs to the grandfather, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather.

2. Testamentary Guardians

 A testamentary guardian may be one that is appointed as guardian of a minor beneath a will. Only the father or, in his absence, paternal grandfather has the right to appoint a testamentary guardian. Among Shias, the father’s appointment of a testamentary guardian is valid only if the grandfather is not alive.

 Among both Shias and Sunnis the mothers have no power of appointing testamentary guardians for their children. It is only in two cases :

  1. The mother can appoint the testamentary guardian and that is When she has been appointed as the general executrix by the will of the children’s father.
  2. She can appoint an executor in respect of her own property which will devolve after the death of her children.

 Practically, no distinction exists between the powers of a natural and testamentary guardian. It seems that the Muslim law-givers first lay down the power of an executor or testamentary guardian and then state that the natural guardian has the same powers. The Muslim law-givers also approach the subject from the point of view of the needs of the minor. After classifying the acts, they state which acts can be performed by whom.

 These acts may be divided into the following three points:

 a. Acts that are beneficial or advantageous to the minor

 b. Acts which are absolutely injurious to the minor

 c. Acts which are mid-way between the two.

 As to the activities falling under the first category any person whether a guardian or not, in whose care the child is, can perform those acts. Under this category fall such acts, as acceptance of gifts and alms. If the minor is of the age discretion he himself can perform them.

The facts which are absolutely injurious to the minor, such as emancipating a slave, or divorcing a wife, no person is empowered to do on behalf of the minor. As to the acts under the third category, such as the sale or hire of the property for profit, they can be done only by the father, grandfather, or the executor.

POWERS OF GUARDIAN UNDER NATURAL AND TESTAMENTARY: –

Whatever powers are having the testamentary guardians and then state that the natural guardians have the same powers.

  1. Power of alienation

The guardian is allowed to dispose of the minors immovable properly only in exceptional cases.  It is clear that the sale of movable property is justified one for the necessity of the minor but on the basis of the conservation. In Meethiyan v. Md. Kunj AIR 1996 SC1003 – the father as a natural Guardian has the right to sell property minor but the sale by a mother who is not a legal Guardian nor testamentary Guardian, sale void.

2. Power to grant lease:

Ameer Ali takes view that the executor may give on lease the minors’ s property if there need to do so, and if it is advantageous to the minor, may be pledgee the goods and movable property of the minor if it is necessary for the maintenance of the minor. In case of need, a Guardian also has the power to pledge the goods or movable property but not for long period. In Zeebuniss v. Danaghar (1936)49 Mad 942, the court said that a guardian of the minor has the power to lease out the minor’s property if
it is for the benefit of a minor, but he cannot give leases of the minor’s property extending beyond the period of minority of the child.

3. Power to carry on business: Guardian must carry out business like an ordinarily prudent man and has the power to enter into partnerships on behalf of minors. The Fatawai Alamgiri empowers an executor to invest a minor’s property in partnership and he may enter into partnership with others. In Jaffer v. Standard Bank Ltd. 1929 PC 130, the Privy Council held that though the guardian had the power to enter into partnership on behalf of the minor, the minor’s liability was only to the extent to which he had shared in the partnership, in no case minor is personally liable.

4. Power to incur debts and enter into contracts:

The Guardian of a minor has the power to incur debts on behalf of the minor if there is an urgent need for it. In case of any necessity of minor and debt contracted without any necessity is not binding on the minor.

5. Power to make partition

The guardian power of partitions qualified one.  In case a guardian is appointed by the court with the general power to deal will all matters of the minor then the guardian has the power to effect a partition, if all are minors, the partition is invalid but if some of them are minor and some are adults, then if the adults are present, the executor can separate their share from the share of the minors and hand it over to them and retain the share of the minors with himself. But in no case the guardian should separate the shares of each minor as it is unlawful, the whole partition will result in invalidity.

6. Any other powers as per requirement :

The Bombay and Allahabad High Courts hold the opinion that the guardian has the power to assert a right of pre-emption on behalf of the minor or to refuse or accept an offer of a share in pursuance of such right and the minor will be bound by such act, if done in good faith. The de jure guardian i.e. legal guardian has the power to acknowledge debts on behalf of the minor.

Rights and Duties of guardian:

  • Duty to support:
  • Duty to file suits
  • Duty to arrange the marriage of the ward
  • Duty of the father to take charge
  • Duty of the guardian not to use the ward’s property
  • Duty to take proper care
  • Duty to maintain proper accounts
  • Duty to seek an opinion from the court.

3. Guardians appointed by the Court

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

 According to this act, the power of appointing or declaring any person as guardian is conferred on the district court. The district court may appoint any person as the guardian of the minor as well as his property whenever it considers it necessary for the welfare of the minor, taking into consideration the age, sex, wishes of the child as well the wishes of the parents. Such guardians are also called Statutory Guardian.

4. De-facto Guardians(Fazioli)

 A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian but has himself assumed the custody and care of a child.

 According to Tyabji an l and de-facto guardian means an unauthorized person who, as a matter of fact, has custody of the person of a minor or his property.

 A de facto guardian could be a person having no authority for the guardianship however underneath the circumstances has taken the responsibility to act as the guardian of a minor. In Md. Amin v. Vakil Ahmad (1920) 47 Cal 713, the brother of the minor had entered into a family arrangement on behalf of a minor. It was held that the minor is not bound by such partition.

Powers of the De-facto guardian

 De-facto guardian has no power to transfer any right or interest in minors’ immovable property.  If the de-facto guardian had violated this rule the transaction will be traded as void ab-intio.  Power to alienate the property for satisfying the debts or legacies of the deceased.

5. Guardianship in marriage (Jabar)
Marriage is often contracted on behalf of the minors by the guardian. the father can impose the status of marriage on his minor children. This power of imposition is named ‘Jabar’, the abstract right of guardianship (wilayat), and therefore the guardian so empowered is understood as ‘Wali’.

Guardianship of the property

If a minor owns the movable or immovable property, a guardian is required to manage the property of the minor. The Muslim prescribed certain person in an order of preference who can be the guardian of a minor’s property as per Muslim law as follows:

Legal Guardian
The person who is entitled in the order mentioned below to be the guardian of the property belongs to the minor are:

  1. The father
  2. Father’s executer
  3. Paternal grandfather
  4. Paternal grandfather’s executor.

It may be said that the substantive law of Muslim does not recognize any other relative such as mother, uncle and brother as the legal guardian of the child. Only the father or father’s father may appoint them or any other person for the purpose of taking care of the minor’s property.

Except for the father and father’s father, no other person is entitled even not a mother is legally entitled to appoint by will, any person as the executor of the minor’s property.

2. CUSTODY

Under Muslim Law custody can be called Hizanat, the mother has the right of custody and care of children during the period laid down in Muslim Law. The mother’s right is slowly recognized in the interest of children. under Muslim Law considers the right of Hizanat as no more than the right of rearing of the children, it terminates at an early age of the child, a distinction between son and daughter. Under Muslim, Law guardians are entitled to the physical (tahwil) and upbringing (parvarish) of the minor.

According to Radd-ulMuhatar, “the right of a mother to the custody of her child is re-established whether she be a Mosalman or a Kitabia or a majoosia, even though she be separated from her husband. But she should not be an apostate”. Since Muslim law considers the right of Hizanat as no more than the right of rearing of the children, it terminates at an early age of the child. In this regard, Muslim law makes a distinction between the son and the daughter.

To Son:

Hanafi, Shafi’s and Hanabalis School mother right of hizanat is 7 years, Maliki’s school son continues till the child attains the age of puberty. after the completion of this age /attains puberty father is entitled to the custody of his son.

Shia’s mother is entitled to the custody of her son until he is weaned.(completed the age of 2 years, then the father is entitled to custody of his son.

2. Daughter:

Hanafi School mother custody of her daughter till the age of puberty. Maliki’s, Shafi’s, and Hanbali school the mother’s right of custody over her daughters continues till they are married.

In Shia’s particularly Ithana Ashari School mother has the right to custody of her Daughter till they attain the age of seven years.

in all the schools of Muslim Law, the mother has the right to the custody of her married daughter below the age of puberty in preference to the husband. The mother has the right of custody of her children up to the ages are specified in each school, irrespective of illegitimate/legitimate.

Applicability of Muslim personal law (Shariat) to custody matters

 The Guardians and Wards Act, 1890, is the enactment that regulates and governs the law relating to the appointment and declaration of guardians; duties, rights, and liabilities of guardians, and all laws relating to the Guardian and Ward.

  As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority.

  As it is well known that the age of majority for a person in India has been defined under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”. Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years.

 The question that emerges is whether the Muslim personal law (Shariat) would also be applicable to a proceeding under the Guardianship Act.

 As stated earlier Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed. He said the legal proposition was amply dealt with by the Hon’ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act. If a Court does not keep that in view it would be acting illegally and with material irregularity”.

 The Hon’ble Court further reiterated that in consonance with section 2 of the Majority act which states that its provisions do not impact on matters of marriage, dower, divorce, and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.

CONCLUSION

Guardianship under Muslim Law is an essential part of the personal laws of people and with the passage of time, it has been codified by way of legislation. The Guardians and Wards Act is the legislation passed by the Parliament that deals with the laws and processes related to guardianship in India.

Acknowledgment

Parentage

Parentage is generally used for a legal relationship which the child has with the parents.These legal relationships are associated with certain rights and duties such as rights of inheritance, maintenance, and guardianship.

Parentage by in two ways

1.By birth (regular, irregular )

2.By acknowledgement  (maternity and paternity) 

Allah has not made for a man two hearts in his interior. And he has not made your wives whom you declare unlawful your mothers. And he has not made your adopted sons your [true] sons. That is [merely] your saying by your mouths, but Allah says the truth, and He guides to the [right] way. Muslim law recognizes the institution of “ikrar” or “acknowledgement”.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.

Fazilatunnissa  Vs  Kamarunissa  (AIR 1904 9 cal.  W N 352) 

Court held that the doctrine of acknowledgement is an integral portion of the Muslim law.

It receives full recognition.

It can be made either express or implied.

Maternity in Muslim Law

In Muslim law, maternity of a child is established in the woman who gives birth to the child, irrespective of the fact whether she is married or unmarried or child is outcome of adultery (Zina).

Under Sunni law:

The woman who is giving birth to a child will be his/her mother irrespective of whether the birth was the result of a valid marriage or adultery (Zina). Rashid Ahmed Vs. Anisa Khatun, AIR 1932 PC 25 court held that the child acknowledged was the issue of marriage between the divorced persons. the husband had repudiated the marriage in talai-ul-bidaa and no intermediate marriage and divorce of the woman took place. thus, the marriage was void. The child is entitled to inherit from his/her mother. So it can be said that under Sunni Law, an illegitimate child has his/her maternity in the woman who gave birth.

Under Shia law:

The child who is born out of lawful marriage only that woman will be his/ her mother. So only birth is not sufficient to establish maternity under Shia law, it has to be also proved that the birth was a result of a lawful marriage. All other outcome will be treated as illegitimate child. So the illegitimate child under Shia law can inherit neither from father or mother.

Paternity in Muslim Law

In Muslim law, paternity of a child is established in a man only when the child is a legitimate child i.e. the father-child relationship is entirely based on the lawfulness of marriage between both the parents. So it can be said that a child will be legitimate only when the marriage is a valid.

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.

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-

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.

Basic Principles of Acknowledgement

1. Express or implied acknowledgement

2.Age of the Acknowledgement

3.The child of others

4.Offspring of Zina

5.Legal marriage possible between parents of the child acknowledged

6.Person acknowledged should confirm acknowledgement

7.Competency of the Acknowledgement

Rights created by getting acknowledgement of paternity. 

It is valid acknowledgement of a paternity is made, the following rights are:

1.It rises a presumption of valid marriage between the acknowledgment and the mother of the person acknowledged.

2.The acknowledgement and the acknowledged person have mutual rights of inheritance.

3.The mutual rights of inheritance also arise between the acknowledgement and the mother of the acknowledged person.

4.It also has some benefits to establishing paternity for the mother the father and the child.

Child rights

Fathers name both the certificates. Legal record of the identity of the both parents. Information on family medical history if needed for the purpose of the child’s medical treatment Emotional benefits of knowing both parents. Health or life insurance from either parents, if available.

Gestation

As per Indian evidence Act

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. This section raises a legal presumption for the legitimacy of a child under two circumstances:

1.When the child is born during the continuance of valid marriage.

2.With 280 days of the dissolution of marriage, provided the mother remains unmarried. 

The fact that the child is born between these two periods as contemplated above, is considered to be conclusive proof of legitimacy. Muslim Law and Indian Evidence Act there is a window whereby the presumption of legitimacy of a child can be denied.

CONCLUSION

The acknowledgement of paternity under Muslim Law is in the nature of a declaration by the father that a child is his legitimate offspring. It is not a process of legitimation of an illegitimate child in Sadik Hussain Vs. Husain Ali (1916) 43 IA 212 The Privy Council observed that no statement made by one man that another who is proved to be illigimate but where no proof of that kind is given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate child of the person, who makes the statement, provided his legitimacy is possible. The Acknowledgement of paternity may be expressed or implied.

Nafqah / Maintenance

Maintenance under Muslim Law known as ‘Nafqah’ means amount spent by a man on his family to provide for food, shelter, clothing, lodging and other essential requirements for livelihood. A Muslim husband has obligation to maintain his wife during the subsistence of marriage. A husband is require to maintain his wife irrespective of his financial condition.

According to Ameer Ali’s Mohammedan law, the right of the Muslim wife to maintenance is subject to the condition that she is not ‘refractory’ or does not refuse to live with her husband without reasonable cause. Under Muslim law, maintenance is known as “Nafqah” which means what a man spends on his family.

Requirements for claim of maintenance:

  • Inability of person to maintain himself/herself
  • Failure or neglect by the person/ obligation
  • Person must be related
  • Statutory obligation to maintain 

When maintenance can be claimed

During the subsistence of marriage

During the pendency of the any matrimonial relief

After obtaining decree of divorce.

Applicability

  1. Wife

2. Children- Both boy and girl

3. Parents and Grandparents and

4. Any other relatives

  1. Wife:

The right to maintenance of a Muslim woman is absolute and not conditional on whether she can maintain herself or not.

Hence all the Muslim women earning or not earning are eligible for the right to maintenance which is contrary to most of the other religious acts where only dependent women are eligible for the maintenance.

It is the duty and liability of the husband to provide adequate maintenance to his wife in all the circumstances irrespective of his financial condition

Muslim women cannot applicable for maintenance

1.She has not attained puberty.

2.She has abandoned her husband and marital duties with sufficient reason.

3.Where she elopes with some other man.

4.In a case where she disobeys the reasonable commands of her husband.

The refusal of the wife to perform her matrimonial obligation towards husband and her claim of maintenance is to be examined not only under Muslim personal law but also under the Criminal Procedure Code. The claim of wife for the maintenance under this act is an independent statutory right not affected by her personal law. A Muslim wife, who lives separately due to her husband’s second marriage, is entitled to claim maintenance allowance under the provisions of Criminal Procedure Code, 1973.

In Begum Subanu alias Saira Banu v. A.M Abdool Gafoor, the Supreme Court held that irrespective of a Muslim husband’s right to contract a second marriage, his first wife would be entitled to claim maintenance. A Muslim wife, whose husband neglects to maintain her without any lawful justification, is entitled to file a suit for maintenance in a civil court under her personal law. She is also entitled to enforce her right under the CrPc 1973. Where a Muslim wife is in urgent need, she may apply for an order of maintenance under section 125 of the Criminal Procedure Code; 1973. A magistrate of the first class may then order the husband to provide monthly allowance not exceeding five hundred rupees, for the maintenance of his wife.

Maintenance of the divorced woman

It can be discussed under the following heads:-

  1. Muslim personal law

2. Section 125 Criminal Procedure Code 1973 and

3. The Muslim Women (Protection of Rights on Divorce) Act,1986

A divorced wife can claim maintenance from the former husband only for that period during which she is observing her Iddat. The duration of Iddat on divorce is three menstruation periods or, if pregnant, till delivery of the child. The former husband’s liability extends only up to the period of iddat, not beyond that.

The term ‘wife’ includes a ‘divorced wife’. Section 125 is applicable also to a divorced Muslim wife. Section 127(3) provides that the order of maintenance in favour of a divorced wife shall be cancelled, and such woman shall not be entitled to maintenance under the following circumstances:

  1. Where the divorced woman has remarried

2. Where such woman has received the whole sum due to her on divorce under any customary or personal law, and

3. Where the woman, after obtaining a divorce from her husband, has voluntarily surrendered the right to maintenance.

In Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, the Supreme Court reiterated its stand and held that a divorced Muslim woman, so long as she has not remarried, is a wife for the purpose of section 125, and is entitled to maintenance from her former husband.

Maintenance after the Iddat:

The divorced woman who remains unmarried after the Iddat, and is unable to maintain herself, is entitled to get maintenance from her such relatives who would inherit her properties upon her death. In the absence of any such relatives or, where they have no sufficient means, then ultimately the liability to maintain her is cast upon the Waqf Board of the state in which she resides.

The Muslim Women (Protection of Rights on Divorce) Act,1986 has now made the operation of section 125-128 of the Criminal Procedure Code optional in respect of Muslim woman. The first landmark judgment that deals with Muslim personal law was the 1986 judgment in Shah Bano Begum v. Md. Ahmed.

In this case, the apex court held that Muslim women have a right to maintenance under Section 125 of the Cr.P.C even if the Quran or their personal laws have provided for an alternate remedy. The same ratio was upheld by the apex court in Daniel Latifi v. Union of Inia.

Recently, in the leading case of Shayara Bano v. Union of India, the apex court held the system of instantaneous divorce by the utterance of the word ‘talaq’ thrice orally unconstitutional because the right to instantaneous divorce is only with the men and not women.

Further, the system is arbitrary and hence, violative of Article 14. Therefore, the judiciary has assisted in the development of Muslim personal law.

In Danial Latifi and others v. Union Of India AIR 2001 SSC 958 all the writ petitioners challenging the constitutional validity of the Muslim Women Act 1986 were clubbed together in this P.I.L. under article 32 of the constitution. The writ petition was dismissed by the Supreme Court challenging the validity of Muslim Women Act 1986. The Court upheld the validity of the Act.

In A. Yousuf v. Sowramma it was held by the court that whatever the cause may be the wife is entitled to a decree for the dissolution of her marriage if the husband fails to maintain her for a period of two years, even though the wife may have contributed towards the failure of the maintenance by her husband.

Children- Both boy and girl

Muslim Father is under the obligation to maintain his legitimate child until he attains the puberty age. Under Muslim Law, the father has to maintain his son only until he attains majority. While he has to maintain his daughter until her marriage and till the time she goes to her husband’s home. Under the law, the father is not under a duty to maintain the illegitimate child. Thus after perusing the above-mentioned facts, it can be easily concluded that the maintenance provisions of Muslim Law are different from other personal laws and are very unique.

Parents and Grandparents

It is obligatory upon a man to provide maintenance for his father, mother and grandfather and grandmother if they happen to be in circumstances necessitating it.  The fact that they may belong to different religions makes no difference. Except his wife, children, parents, grand-children and grandparents, a man are not obliged to maintain other relations belonging to other religions

The parents have the next position in the right of maintenance after the children. The liability to maintain parents rests only on the children and is not shared by anyone else. As between the parents the mother is entitled to preference over the father. Shia Law – the right of the two parents is equal. So also the right of the parents and children are equal. Maintenance must in each case be divided equally. But the parents are preferred to grandparents.

       Parents and children are jointly liable for a person’s maintenance. Thus, if a man has both father and a son who are not poor, the liability falls equally upon them. The grand-children of a person would not be liable to maintain if there is a husband, children or parents who would be under a duty to maintain, even though they may be entitled to daughter or the father must maintain. Thus, if a man has a daughter or father and a son’s son, the daughter or the father must maintain. The son’s son would not be bound to maintain even though he is entitled to inherit. As in the case of sons, the liability of all grand-children would be equal. law – maintenance is due from all the descendents together but they are not equal in all respects.

The obligation is on the nearest. If there is equality in the degree of relationship, the obligation is in the person who will be heirs. There is, however, a difference in opinion as to whether the liability is joint or only in proportion to shares in inheritance. If both the ascendants and descendants are alive, the latter would be primarily liable irrespective of the distance of degree of relationship.

Quantum of Maintenance

The quantum of maintenance is not prescribed under any personal law. The court decides the quantum on the basis of the financial condition of husband and wife and any other circumstances relevant to the case. The Shia Law decides the quantum of maintenance by taking into consideration the requirements of the wife. The Shafei Law determines the quantum of maintenance by the post of the husband. Thus, the basis of determination of quantum of maintenance is different for different sub-castes of Muslims.

Conclusion

The whole concept of maintenance is to protect the rights of wife and protect her a dignified life and even after dissolution of marriage the husband is in the liability to provide maintenance to his wife if she is not able to maintain herself. It is not only provided to the wife but also to children parents grandparents and grandchildren and other relation by blood. The amount of maintenance depends on the financial position of the person who is bound to provide maintenance. Under Muslim law women are considered be as compared to men. It is believed that they are not able to maintain herself on her so it is the liability of the husband to provide maintenance to wife in all conditions even if she is capable of maintaining herself. As per the rule except for the only wife and minor children The Other relations Which are which are not entitled for maintenance. But each Muslim is bound to provide maintenance for the ancestors and the descendants . And he’s also entitled to obtain maintenance from their as well provided that the person who has provides maintenance and should not be poor.

DIFFERENCE BETWEEN SUNNIS AND SHIAS

Sunni LawShia Law
OriginThe Sunnis are the successor of the prophet.Shia are descendants of the prophet, Ali and is the leader of Divine Right.
Marriage1.Presence of Two witnesses are required at the time of marriage.(two male witnesses).
2. Marriages are divided into valid, invalid  and irregular(voidable) marriages.
3. There is a long list of other guardians for the purpose of marriage besides the father and grandfather , who can act as Wali-ul-nikha, they being father, father’s father how high soever, brother, other paternal relations, mother, maternal uncle,etc.,		1.Presence of two witnesses are not required at the time of marriage.
2.Marriages are either valid or void.

3. Under Shia law only the father and grandfather can act as legal guardians. i.e., Wali-ul-nikah for the purpose of marriage, other being regarded as fuzuli or unauthorized persons.
Dower1.10 dirhams the minimum amount of dower.
2. There is no upper limit of dower.
3. There is no agreement between parties, the rule is to regard part as prompt and a part deferred the proportion of each being determined with due regard custom, status of the parties and the amount of dower settled.		1.it does not fix any minimum limit of dower.
2. 500 Dirhams as proper dower.presumption of 500 dirhams as the maximum in case there is no stipulation.
3. There is no stipulation, at the time of marriage whether dower is to be prompt or deferred the whole of it is presumed as prompt.
Divorce1.Marriage can be canceled on the ground of inequality between the two parties amongest Sunnis
.2. Hold two years as the period of gestation.
3. Talaq may be oral or in writing.
4.Talak – ul- biddat is recognized.
5. Two witnesses are not required in the presence of talaq.
6. If the words of divoce in jest, in a state of voluntary intoxication or under compulsion of the rests of a serious nature.		1. Marriage cannot be canceled on the ground of inequality between the parties.
2.Hold ten months as the longest period of gestation.
3. Talaq must be pronounced orally in Arabic language, talaq in writing does not affect.
4. Not recognized.   
5. Two witnesses are required in the presence of talaq.
6. Divorce under compulsion or threats or in intoxication is void.
MaternityMaternity of the child, under sunni law, is established in the woman who gave birth to the child whether by fornication or by valid marriage.A child born of fornication is deemed to have no mother at all and the maternity of a child born to a woman who was validly married before conception is established in the woman.
GuardianshipMother has entitles to the custody of the boy upto seven years and a girl until she attains puberty.Mother is entitled to the custody of boy to two years and a girl upto 7 years.
MaintenanceThe liability of maintenance is shared equally by his children. The burden is shared according to the means and ability of each.
Wills1. Consent of the heirs is essential to validate a bequeth.




2.The Legacy lapse, in case of the legatee’s death in the lifetime of the testator.		1.a person is an absolute owner of the one-third of his estate and can bequeath that one-thri without the consent of the other heirs.if the legacy exceeds one-third it is not valid even under the shia law unless the other heirs consent thereto.
2.In case of the legatee’s death in the lifetime of the testator, the legacy passes to his heirs unless it is revoked by the testator.
GiftA gift of undivided share in the property is invalid if it is incapable of partition.A gift of undivided share in the property is valid provided, it is capable of partition.
Inheritance1.There are three classes of heirs namely1.sharers2.residuaries3.distant kindred2. The doctrine of primogeniture is not recognized.

1.There are two classes of heirs namely1.Shares and 2. Residuaries.
2.The doctrine of primogeniture is recognized ie., the eldest son gets the deceased father’s garment, the signer-ring, the sword and the quran.
Waqf1.Waqf inter vivos is completed by a mere declaration of an endowment by the owner.
2.The settler may provide for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property .
1.A waqf is invlid unless accompanied by delivery of possession .The mere declaration of endowment is not enough.
2. A provision for the payment of personal debts of the waqf is not permissible and will make the wakf invalid.

APOSTASY

Apostasy is derived from the Greek word apostasies, which means defection. To aid, Apostasy is the abandonment of belief or faithlessness. On conversion to Islam, converts, no matter what their previous religion may have been, must be taken, at that moment, to have renounced their former religion and personal law, and to have substituted, in its place, the Muslim religion and so much of the personal law as necessarily flows from that religion.

Apostasy is called ridda in Islamic literature. An apostate is called murtad, which means ‘one who turns back’ from Islam. A person born to a Muslim parent who later rejects Islam is called a murtad fitri, and a person who converted to Islam and later rejects the religion is called a murtad milli. 

Effect of apostasy on marriage 

Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by one of the married pair would have been treated as dissolution of marriage with effect immediately, without:the decree of a judge; or being a repudiation of marriage, whether the conversion was before or after consummation. After passing the Act in 1939, it resulted in section 4 of the Act.

Regarding apostasy the Prophet said – “the entire estate of a male apostate descends to his Muslim heirs whether it was acquired before or after apostasy. Similarly, in the case of a female apostate, her entire property whether acquired before or after apostasy goes to her Muslim heirs”.

Apostasy by husband 

Apostasy from Islam from Muslim husband will have immediate effects of dissolution of marriage. Section 4 of the Dissolution of Marriage Act, 1939 does not apply to apostasy by the husband. The result is that apostasy of the husband is still governed by old law under which the renunciation from Islam by a husband will result in complete and immediate dissolution of marriage. 

Apostasy by wife 

The conversion of a married Muslim woman to a faith other than Islam does not by itself operate to dissolve her marriage. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the dissolution of her marriage on any of the grounds specified in Section 2 of the Act.1937.

DOWER/ MAHR

Mahr or Dower could be a total of cash or different property to be paid or delivered to the wife. it’s either fixed or unspecified however in either case, the law confers a compulsory right of Mahr or Dower on wife. The Mahr (Dower) belongs to wife and she can deal with it in the manner she likes it and neither her husband nor husband’s relations nor even her relations can dictate her in matter of using the Mahr money or property. No doubt, Mahr was originally analogous to sale price,but since the inception of Islam, it is hardly correct to regard it as the price of sexual intercourse.

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. In pre-Islamic Arbia, Sadqua was a gift to wife but Mahr was paid to the wife’s father and could therefore, be regarded as sale-price

Mahr or Dower has to be given to wife however she is vested with discretion to remit it. Mahr is non-refundable even after divorce (unless she remits it at her sole discretion) and it becomes the property of wife in perpetuity. Payment of Mahr is mandatory even if marriage is not consummated. But in that case, Mahr is half of the amount of consideration. In a way, Mahr provides a check on the capricious exercise by the husband of his almost unlimited power of divorce.
Mahr amount : Differes from one sect to another like under Hanafi Law – 10 Dirhams, Malaki Law – 3 Dirhams, hariya Law etc. The Mahr paid by Prophet for his favourite daughter Fatima, wife of Ali was 500 Dirhams. A dirham (derived from the Greek) is the name of Silver coin of 2.97 grams in weight. However, it would be a sad mistake to lay too great stress upon the monetary value of the Mahr amount. It is said that in the case of an extremely poor man, the Prophet requested him to teach the Quran to his wife. It is said in one Hedaya that the payment of Mahr is enjoined by the law merely as a token of respect for the woman. No maximum amount of dower is prescribed, even though the husband is not capable can fix higher amount of dower but his parents are not liable to pay the same in case he fails to pay. Mahrnama may be executed but is not necessary.

Types of Dower :

Specied dower (mahrul-musamma) : The Mahr is usually paid at the time of marriage but it can also paid after the marriage. Mahr paid by the father on behalf of his minor son is binding on the minor son on his majority.

There are two sub-types of Specified dower as – Prompt (muajjal) and deferred (muvajjal) Mahr
i. A technical term for Prompt is Muajjal and for Deferred is Muvajjal. The term Muajjal is derived from a root meaning ‘hasten’, ‘to proceed’ whereas the term Muvajjal is derived from the root meaning ‘delayed’ or ‘deferred.’
ii. The prompt dower is payable immediately after the marriage but the deferred Dower becomes payable either on the dissolution of the marriage or on the happening of a specified event. When dower is paid, it is usual to split it into two equal parts, one part is paid at once or on demand and the other on the death of the husband or on divorce or on the happening of some specified event. In Ithna Ashari Law, the presumption is that the whole of the dower is prompt but in Hanafi Law, the position is different.
iii. Ideally and usually, the whole Mahr is required to be promptly awarded but in earlier case, the Full Bench held that the usage (custom) of the wife’s family is the main consideration and in absence of proof of custom, the presumption is that one half is prompt. However, the proportion may be changed to suit particular cases.
iv. Wife can deny to perform conjugal rights if prompt dower is not paid and also the husband can’t restrict wife’s movement till the payment.
B. Unspecied or Proper dower (mahrul misal) :
The obligation to pay dower is a legal responsibility on the part of the husband and is not dependent upon any contract between the parties. Hence, the husband’s liable to pay Mahr even if it is not specified. The only question would be the quantum. If no Mahr is paid, wife will be entitled to receive the amount which is customary in the community or in
respective society or what is proper in each individual case. What is proper dower in each individual case will be determined as under –
i. With reference to the social position of her father’s family.
ii. Her own personal qualifications.
iii. Social position of the husband. But the means of husband are of little account.

iv. Her age, beauty, fortune, understanding and virtues

v. Mahr paid earlier in the family (i.e., Mahr paid for father, brother, uncle, sister etc.of the wife’s family).

Maina Bibi v. Vakil Ahmad (1924)52 IA 145 – In 1902, a possession suit was brought against Maina bibi who hold suit property to recover her dower amount, Court therein ordered to pay her dower amount first with interest. But till the payment she made gift of that property and the same is challenged in the present case. The Privy Council held that Mainabibi can’t transfer that property but she can only hold the property till the satisfaction of her dower amount.

Dower is a debt but not a secured debt, only a thing is that wife became first among other creditors. Wife/divorcee /widow can recover dower from husband or from his estate when he is dead. In case of her death, her hiers can also inherit the right to recover that dower.
Period of limitation to recover dower is — 1. 3 years from dissolution of marriage or death of husband 2. in case of right of retention, till the amount is satisfied.Suit for recovery of dower amount is maintainable under Sec.3 of the Muslim Women
(Protection on Divorce)Act, 1986 before the Magistrate.