MOHAMMEDAN LAW
No |
Particulars |
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UNIT - I |
1 |
Development of Islamic law : Advent of islam and development of muslim law |
2 |
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3 |
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4 |
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5 |
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6 |
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7 |
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8 |
Muta Marriage |
9 |
Sources of Islamic law customary practices and state regulation Polygamy, child marriage. |
10 |
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11 |
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12 |
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UNIT - II |
14 |
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15 |
Guardian ship, succession, child and family legitimacy, custody |
16 |
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UNIT - III |
17 |
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18 |
Indian divorce Act 1869 (Amended Act) nullity of marriage Bar to Matrimonial relief. |
19 |
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20 |
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21 |
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UNIT - IV |
22 |
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23 |
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24 |
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25 |
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26 |
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27 |
Distribution of property under Indian succession Act of 1925 of Christians parsis and jews |
28 |
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29 |
Parsis intestate succession and non parsis intestate sucession |
30 |
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31 |
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32 |
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UNIT - V |
33 |
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34 |
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35 |
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36 |
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37 |
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38 |
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39 |
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40 |
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41 |
Powers and its functions |
42 |
Need for uniform civil code Article 44 of Indian Constitution |
UNIT - I
We have already examined the difference between Islamic religion and the positive Muslim law. In so far as Islamic religion is concerned, it may be said that it was completely established at the time of prophet's death. The present Muslim law is therefore, the outcome of several political and administrative developments in Arabian society. Historical development of Muslim law may be divided into five periods discussed in brief as under.
Ist STAGE (622-632 AD)
The first stage in the development of Muslim law begins with 622 A.D and ends with 632 A.D. this period is called the legislative period. As mentioned earlier, the first message of God came to the prophet in 609 A.D at Mecca. Since then, the divine messages were communicated to him from time to time and he used to convey them to the people at Mecca. The prophet's first task at Mecca was to make them believed the existence of one god. In 622 A.D prophet Mohammad went ot medina where the messages of God already revealed at Mecca. In median prophet generally laid down the principles to regulate the conduct of the people.
Most of the Law-making revelations were made between 622 A.D and 632 A.D divine messages or the revelations, whether explaining the concept of god or laying down rules of positive law were collected and contained in the holy book Quran. We have seen that the messages from god came to the prophet only on those occasions when he used to be inspired with divine power. Rest of the time prophet lives the life of a normal human being. Sayings or the doings of the prophet without divine inspiration were also followed by the people as his precepts or traditions. Laws, which were not available in the direct words of God were formulated through the traditions of the prophet. Thus we see that the last ten years before the death of the prophet, were very important from the point of view of the legislation of Muslim law.
IInd STAGE (632-661 AD)
This is called the period of first four Caliphs of Islam. During his life, prophet Mohammad had been an absolute authority on law and religion. He was spiritual as well as the administrative head of the Muslim state. After his death, the question arose at who would be the successor of the prophet. Majority of the people agreed that there should be an election for his successor. Accordingly, an election was held in which Abu Bakr was elected. Thus Abu Bakr became the first Caliph and headed the community of the Muslims and he died in 634 A.D and after Omar was elected as the Second Caliph. Omar was the chief for ten years, and was assassinated in 644 A.D. after him; Osman became the third Caliph through election. After him Ali, who was the husband of the prophet's daughter Fatima, was elected and he became the fourth Caliph. Ali too was killed in 661 A.D. These first four caliphs are known as the rightly guided caliphs because they had the privilege of being very close companions of the prophet.
One of the notable features of this period is that all the divine messages were collected, arranged subject-wise and written to give a final shape. This collection is known as the holy book Quran. The first collection of Quran was by Zaid during the rule of Abu Baker. But subsequently this collection was found to be incorrect and contradictory at many places. Osman the 3rd Caliph asked Zaid once again to revise the holy book and correct it. The earlier version of Quran was, however destroyed by him. Thus, the only important feature of this period is that traditions of the prophet were strictly followed.
IIIrd STAGE (661-900 A.D)
Ali, the fourth and the last of the rightly guided Caliphs had two sons, Hasan and Hussain. After the death of Ali, Hasan was made the Caliph. But Hasan was a saint and did not like to involve himself in administration. He voluntarily resigned din favour of Muavia of the Umaiyad family Thus Muavia became the next Caliph of the Muslim world. From him started the ummaiyad dynasty. Two noticeable events happened during his reign. Following the principle of succession muavia son Yezid became the next head of Muslim empire. In 750 A.D the Umaiyad's dynasty was captured by Abbasids who were the descendants of the prophet's uncle Abbas. Abbasids made their capital at Baghdad and proclaimed also the religious or spiritual headship of the Muslim empire.
The Umaiyad rules as heads of the Muslim state did nothing remarkable for the development of law. Similarly, as rulers the Abbasids too did not contribute to the development of law. In such a situation a theoretical formulation of law on the basis of those two texts was the only alternative. One method was to obtain a law through the consensus opinion of the jurists. Another method was to deduce a law directly from the texts of Quran or traditions by establishing similarity between the situations enumerat3d in the texts and the situation for which the law was then required.
IVth STAGE (900-1924 A.D)
This period in the Islamic legal history begins with the establishment of the four Sunni Schools and extend up to 1924 A.D.The Abbasids ruled for five centuries and were overthrown by the Mongols in 1258 A.D.For sometime, the sunni community remained without any caliph. In 1261 A.D Abdul Kasim Ahmed was made the caliph with his capital at Cairo. This dynasty has been in power for more than two centuries. A notable feature of the caliphate in this dynasty was that caliphs had no administrative powers. In the beginning of the sixteenth century, however the ottoman ruler selim I was invited to head the community. The caliphate was transferred to Selim I by a deed of assignment; in 1571 A.D. thus the caliphate passed to the ottomans and Constantinople became the Dar-ul-Khilafat.
Form the point of view of the development of Muslim law, this period is no significant at all because at this stage further exposition of law had stopped. The reason is that after the death of the founders of the four Sunni schools, no scholar of their eminence and learning was available who could propound new theories of law. The scholar of this period have, however, written exhaustive commentaries on the law already laid down by the jurists of their respective schools. Those scholars, being lower in rank, could not five independent judgments on a point of law; but they could give their opinions as an explanation or commentary on what had already been laid down.
Vth STAGE (1924A.D to Present day)
With the abolition of caliphate in 1924 A.D began the modern period of Islamic law. This period still continues. After 1924 there is no caliph as a religious head to administer and execute the traditional law of Islam. This situation has been tackled by theoretically separating Islamic law from the religion. Without any competent authority to execute it, the Islamic religion became the moral code of conduct whereas the Muslim law with the sanction of the state was viewed juridically. It is however evident that juridical exposition of Muslim law has largely been influenced by the science of law in European countries. Another significant point to note is that formerly all aspects of human conduct were regulated by traditional Islamic laws but subject after subject was gradually excluded from the purview of the traditional Islamic law.
Before establishment of the British rule in India, the Moghul Emperors applied Muslim law as law of the land and all matters, whether pertaining to family status or crime or revenue, were governed by Muslim law. The British Government had changed this system by enacting several Acts which applied to Muslims and non-Muslims alike in the non-personal matters. It may be said therefore, that in India the modern period begins with the establishment of the British courts. A noticeable feature of the Anglo-Indian courts was that they did not apply Muslim law in each and every affair of the Muslims. Matters relating to the family status e.g. marriage, dower, divorce, gift, will, inheritance, etc. were continued to be governed by the Muslim personal law. But other affairs of non-religious or non-personal nature were regulated by Act of Parliament. The Indian Penal Code, Criminal Procedure Code, Civil Procedure Code, contract Act, Transfer of property Act etc. were applicable to everyone in India whether he was Muslim or a non-Muslim.
After independence the same set up has been adopted and is being followed. The shariat Act of 1937 clearly established this situation by laying down that except questions relating to agricultural land in all question regarding intestate or testamentary succession, or any other provision of personal law, the rule of decision, in cases where the parties are Muslims, shall be the Muslim personal law. But just two years after the shariat Act the dissolution of Muslim Marriages Act 1939 was enacted by the parliament which has made revolutionary changes in the law of divorce. Several other enactments have been passed by the legislature which lay down rules of Muslim personal law. But most of them either re-establish or clarify the provisions of traditional Muslim law. Except the dissolution of Muslim marriages Act 1939 and to some extent the Muslim women (protection of Rights on Divorce) Act 1986 there has been no legislative enactment for modification of the principles of Muslim law. However within their own limits the courts have boldly attempted on several occasions to rationalize or otherwise explain the rules of Muslim personal law.
Sunni and Shia Sects
Prophet Mohammad was the universally acclaimed head of the Islamic Commonwealth. He was absolute authority on law as well as the Chief administrator of the whole body of Muslims. After his death, the immediate problem was to find out his successor. A great majority of Muslims suggested that there should be an election for the successor of the Prophet. This view was advocated by Ayesha Begum,. The youngest wife of the Prophet. It was argued by that since Prophet exercised absolute command over the Islamic community, his successor too should be a person who could control the Muslims. This required the confidence of the people and therefore election was the only method to choose the successor. This section of the Muslim-society pleaded for election as a method of finding out the successor of the Prophet also because the Prophet himself had suggested election. The Prophet's suggestions or saying are called his traditions (Sunnat). They relied on this tradition of the Prophet. Accordingly, an election was held in which Abu Bakr, who was father of Ayesha Begum, was elected and became the first Caliph. This group of Muslims, with its leader Abu Bakr, formed the Sunni sect of Islam. They assumed the name Ahle-SUnnar-wal-Jamat which means people of the 'tradition and assembly'. They are popularly known as Sunnis.
But there were Muslims (although in minority) who did not agree to the principal of election. That group emphasized upon the spiritual headship of the Prophet rather than his administrative control. This minority group was represented by Fatima, daughter of the Prophet. Their contention was that the Prophet's successor should be a spiritual leader of the community as Prophet himself was. They argued that this quality comes through the nobility of blood. Therefore, a person who is related a Prophet Mohammad through blood or belongs to his family, should be regarded as the most competent person to succeed him. Thus, the group of Fatima rejected the election and relied upon the principle of succession. Consequently Ali, who was son-in-law of the Prophet (Fatima's husband) and was also his cousin, was nominated as the first Imam by this group of Muslims. They dissociated themselves from the majority and constituted a separate sect called Shia (literal meaning 'faction'). Thus we see that the split which divides the Muslims into two sects Shia and Sunni was due to the difference of opinions among the Muslims as to how to find out the successor of the Prophet. Therefore, division of Islam originated with political questions who but subsequently it resulted in the separation on legal principles as well.
These two sects formed two major schools of the Muslim law. Later on, the Sunnis further splitted into several sub-sects in themselves, each sect representing a distinct school of Sunni Law. There was a similar split also among the Shias. The chart below gives a clear picture of the different schools of Muslim law.
Muslims
I. The Sunni Schools
As discussed elsewhere, during the third stage of the development of Muslim law (661-900 AD), the rules contributed nothing to the development of law. Those ambitious kings were interested in the expansion of their empire rather than the development of Muslim law. But the individual jurists did not sit idle. On their personal level they concentrated themselves to the further expansion of Muslim law by giving juridical interpretations of Quran and the traditions. This personal study by the jurists gave rise to different opinions about any given rule of law because of the differences in their approach as to the source of that law. Each jurist having his own interpretation, had followers and they constituted a distinct or separate school. In this manner, the Sunni sect was divided further into four important schools. But, the principles of these four schools are substantially the same and they differ from each other merely in matters of detail. Besides these four schools, there had been certain other 'personal schools' of the Sunni Muslims. But, by 1300 A.D, only foru schools, discussed below, were given recognition.
1. The Hanifi School
This school of the Sunni Muslims is named after its founder Abu Hanifa and is the most popular school of Muslim law. Abu Hanifa was an eminent scholar of his time and was widely known for his outstanding logical reasoning and technical legal thought. He was appointed as Qazi but he refused to accept the post in the fear that he would be required to give judgments against his conscience.
Characteristics of this school may now be summarized in the following lines. Out of a large number of traditions, the Hanafi school recognizes only those traditions which have passed through the severe test regarding their originality. Those traditions which are not authentic, are not to be accepted as law. Abu Hanifa is said to have relied upon eighteen traditions only. On the other hand Qiyas and Ijma as sources of law, has been given prominence under this school. Several important principles of Hanafi law were obtained through Qiyas. As regards Ijma; this school does not confine to the Ijma of the Companions. According to Hanafi School Ijma may be formed by the jurists of any age and amy be used as a source of a law.
2. The Maliki School
This school was established by Malik-ibn-Anas of Medina. He was a great scholar and is regarded to be an authority on traditions. Imam Mohammad who was the Hanafi jurists, was Malik's favourite student. Unlike Hanafis this school emphasizes the importance of traditions as a 'source of law'. It recognizes the traditions of the Companions, and of successors of the Companions. According to Maliki School, as far as possible, the new rules should be obtained exclusively from the traditions. If it is not possible then only Qiyas and Ijma may be taken into consideration. But this school recognizes Ijma of only such jurists who lived in Medina.
3. The Shafei School
Founder of this School, Ash Shafei was an eminent scholar of Islamic jurisprudence. He was a upli of Malik-ibn-Anas ans was related to the prophet. He developed his doctrines at Baghdad and Cairo. Ash Shafei also relied upon the traditions of the Prophet. But his reliance on the traditions was more critical than that of Malik. He examined the traditions in the light of legal reasoning and logic in order to get a very balanced and systematic rule of law. Throughout his life he endeavoured to systematize the traditions.
4. The Hanbali School
The fourth and the latest school of the Sunni sect was established by Ibn Hanbal. He studied under several scholars of eminence, including Ash Shafei. His peculiar feature was that he rigidly adhered to the traditions of the Prophet. It is therefore said that Hanbal was traditionist rather than a jurist. He relied so much upon the traditions that other sources of law namely Ijma and Qiyas were neglaected by him. He recognized Ijma only of the Companions of the Prophet. Under this school therefore, is no scope for private judgments and human reasoning. The result is that the soctrines fo this school are rigid and uncompromising. Because of this, Ibn Hanbal and his followers were always regarded as reactionaries and were harassed by the authorities from time to time.
II. The Shia Schools
As discussed earlier, Ali was acknowledged to be the first Imam by the Shia community. He was accepted as the temporal as well as the spiritual head of the community, after the death of Ali, his two sons Hasan and Hussain became the second and the third Imam respectively. After Hussain's death, his son Zain-ul Abdeen succeeded as the fourth Imam. Upto this stage the Shia community remained united by afterwards there had been divisions and sub-divisions of this sect. Zain-ul Abdeen had two sons, Zyad and Muhammad Baqir. First split took place after the death of Zain-ul-Abdeen when some of the Shias acknowledge Zyed as their Imam but the majority followed Muhammad Baqir. The followers fo Zyad formed a separate sect called Zaydis whereas Muhammad Baqir was accepted as the fifth Imam by the majority. This was the first division of Shia sect. After Mohammad Baquir's death his son Jafar Sadiq there took place the second split in the Shia community. He had two sons Ismail and Musa Kazim. Here again, one group recognized Ismail (the elder son) as the seventh Imam. Followers of Ismail were called Ismailis and constituted the second school of Shia sect.
"The main reason of the differences among the Shia sect and sub-sects lies not so much on the interpretation of the law as upon the doctrinal points. A brief account of these schools and sub-schools follows :
1. The Ithna Asharia School
This school is also called as Imamia school. Majority of Shias are Ithna Asharia. The followers of this school believe that starting from Ali there had been twelve Imams who possessed spiritual powers. Everything that comes from the Imam is taken to be a law. It is believed that the twelfth Imam who disappeared when he was still a child, would reappear in future. A characteristic feature of Ithna Asharia School is that this is the only school in the Muslim world which recognizes "Muta" or a temporary marriage. This school is further divided into two sub-sects, (1) Akhbari and the (2) Usuli. Akhbaris are very orthodox because they follow rigidly the traditions of Imams. Usulis, on the other hand, interpret the texts of Quran with reference to the practical problems of day to day life. The Ithna Asharias are found in Iran Iraq, Lebnon, Palistan and India. Shari-ul-Islam is an authoritative book of this school.
2. The Ismailia School
For some reasons Jafar Sadiq disinherited, his eldest son Ismail. The majority of Shias therefore did not accept him as their Imam. But there were some Shias, although in minority, who acknowledge Ismail as the seventh Imam. The followers of Ismail are called Ismailias or the Seveners because according to them there had been only seven Imams the Seventh being Ismail. They believe that from him (Ismail) descended a series of concealed Imams whose secret emissaries were constantly on the watch for a chance of striking at some weak point in the large ill-cemented empire of orthodox Islam. The Ismailias therefore, hold that Imams subsequent of Ismail are still alive but they have concealed their existence. In India, they consist of two main groups (i) Khojas and Bohras. Khojas were originally Hindus. Bohras re also Ismailias and they separated from the other groups during the Fatimid regime. Both of them are commercial communities from the very beginning. Ismailias are found in the Central Asia, Syria, India and Pakistan etc. ismailias of Bombay are either Khojas or Bohras. Daimul-Islam is an authoritative work on Ismailias doctrines.
3. The Zyadis School
As pointed out earlier, the founder of this school was Zyad, one of the sonsof the fourth Imam, the Zyadis were the first to defect from the general body of Shia Muslims. One of the peculiar features of this school is that its doctrines incorporate some of the Sunni principles as well. The followers of this school are not found in India; they are mostly in Yemen.
There were certain doubts in the minds of Indian Muslims regarding the application of Muslim personal law to Muslims. To confirm the policy of the British Government and to remove their doubts the shariat Act had to be enacted by the Central Legislature in 1937. At resent the application of Muslim personal law is generally regulated by this enactment. Provision of this Act regarding the application of Muslim personal law is summarized as under:-
Section 2 kop the Sahriat Act provides that in a case whereas both the parties are Muslims the rule for decision shall be Muslim law if the case involves any of the following matters:
1) Intestate succession
2) Special property of the females,
3) Marriage
4) Dissolution of marriage
5) Dower,
6) Guardianship,
7) Gift,
8) Trust and trust properties,
9) Wakf.
It is therefore clear that in respect of the above mentioned matters, if both the parties to a case are Muslims the courts shall apply only the muslin personal law and nothing else. A custom or usage contrary to Muslim law cannot be applied now It is significant to note that the words rule for decision shall be Muslim law in suction 2 of the Act are mandatory meaning thereby that the court are not only empowered but also bound to administer only Muslim personal law in the situation mentioned therein.
In the cases involving adoption will and legacies the court have no authority to apply ;Muslim law under section 2 of the Act beaus these subjects are not included in the said section. But section 3 of the shariat Act, provides that courts may apply the rules of Muslim law in cases of adoption, will and legacies provided a Muslim expressly declares that he wants to be governed by Muslim law also in respect of these matters in addition to the aforesaid ten matters. On this point the relevant provisions of Section 3 of the Shariat Act are given below.
Section 3 (1) any person who satisfies the prescribed authority-
(a) That he is a Muslim and,
(b) That he is competent to contract within the meaning of Section 11 of Indian Contract Act 1872 and
(c) That he is a resident of a territory to which this Act extends.
May by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section and thereafter the provision of section 2 shall apply to the decadent and all his minor children and their descendants as if in addition to the matters enumerated therein, adoption will and legacies were also specified.
It is therefore clear that since adoption wills and legacies are not mentioned in section 2, the court will not apply Muslim law to all the Muslims in these three matters unless they desire to be governed by Muslim law also in these matters. This desire must be expressed through a declaration to that effect. Procedure for such a declaration has been laid down in section 3(2) and section 4 of this Act. It may be noted that the effect of such a declaration is that not only the declaring but also his children and all the descendants shall be governed by Muslim law in these three additional subjects. On the other hand if there is no such declaration by a Muslim the courts are not bound to apply Muslim personal law on; these matters and they may freely apply customs and usages or the local enactments, if any.
Section 6 of the Shariat Act repeals certain provision of those earlier enactments which gave authority to the courts to apply Muslim law before the commencement of the Shariat Act. For example, Section 26 of Bombay Regulation Act 1827 Section 16 of the madras civil court Act, 1873 Section 3 of Oudh law Act. 1876 section 5 of Punjab law act 1872 and central province law act 1875 have been repealed and are now not in force. But two points must be noted regarding the repeal of this provision.
1. The whole of the above mention act have not been repealed by section 6 of shariat act. Therefore except the repealed section other provision of these act are still enforceable with there own limitation.
2. The provision which have been repealed were such provision which authorized the court to apply custom is usage to the Muslims. At present therefore all customs and usage contrary to Muslim personal law, have been abolished and cannot be applied on matters enumerated in the shariat act.
Although in most system of the world, the individual has the freedom to marry or to remain celebrate, marriage is regarded all over the world as a social institution. Whether considered as a sacrament or as a contract, marriage, apart from giving rise to certain mutual rights and obligations, confers the status of husband and wife on the parties, and of legitimacy of their children
Definition of Marriage
Marriage according to the Mohammedan law is not a sacrament but a civil contract. All the right and obligation it creates arise immediately and are not dependent on any condition precedent such as the payment of dower by husband to a wife.
The fundamental concept of individual liberty and responsibility, which is a corner-stone of Muslim Jurisprudence, is incorporated in the institution of marriage. In Muslim law, marriage depends upon the free will of the parties concerned, so does its dissolution, though the wife's will in these regard is subordinate to that of the husband, Muslim Jurisprudence confers on the husband almost absolute power of divorcing his wife, but devise like freedom to the wife, and consequently, the wife can obtain divorce only when the husband agrees to her proposal. It is in this context that Schacht observed: Marriage is a contract of civil law and it shows trace of having developed out of purchase of bride, the bridegroom concludes contract with Legal guardian of bride and he undertakes to pay the dower.
Capacity to marry
Under Muslim law, every male, who is of sound mind, and who has attained the age of puberty, is competent to contract a marriage. The presumption is that, a minor attains the age of the puberty on the completion of the age of 15 years. This provision should be read subject to the provisions of the child marriage Restraint Act 1929, which makes it an offence of the child marriage of any male, who has not completed the age 21 and allows the marriage of girls who have attained the age of 18 years. However, there are minor variations among different schools. Except the maliki and the Shafi schools, the two other schools of Sunni, and all the schools of the Shias, confer capacity to marry a girl who has attained puberty and who is of sound mind. A girl, who has not attained puberty, or who is not of sound mind, can be contracted into marriage by her guardian. The shafie take the view that the girl even though major, cannot marry without the consent of the guardian. But our Courts have dissented from these view, and held that a Shafie or a Maliki major girl, has capacity to marry her. Thus it is submitted that under Muslim, law in modern India, a girl who has attained the age of 18 has the capacity to contract her marriage without the consent of the guardian.
A marriage is valid (Sahih) if it is recognized by the courts as lawful. Following conditions must be fulfilled in a valid Muslim marriage -
1) The parties to the marriage i.e. husband and wife, must be competent.
2) The consent of the parties, or of their guardians, must be a free consent.
3) The required formalities are duly completed, and
4) There must not be any prohibition or impediment in contracting the marriage.
We may now discuss these essential conditions in detail -
I. Competence of the parties
At the time of marriage, both the parties i.e. the boy and the girl, must be competent to enter into the contract of marriage. The parties are competent if they are -
a) of the age of puberty
b) of sound mind, and
c) Muslims.
a) Age of puberty
For purposes of marriage, dower and divorce, the age of majority under Muslim law is not eighteen years. In respect of these matters the age of majority is considered to be equal to the age of puberty. Age of puberty is an age at which a person is supposed to acquire the sexual competency. This competency may be ascertained on the basis of the physical features of the boy and the girl. According to Hedaya, the earliest possible age of puberty with respect to a boy, is twelve years, and with respect to a girl, nine years. But, this cannot be treated as absolute rule regarding the age of marriage because sexual competency, as evidenced by physical features, depends upon several factors and may vary from person to person. It is therefore difficult to ascertain this age by the physical appearance. Keeping in view the practical difficulty of ascertaining the age of puberty by physical features, the courts have presumed that the age of puberty is acquired on the completion of fifteen years. In Mst. Atika Bagum v. Mohd Ibrahim, the Privy Council has laid down a clear law about the age of puberty in following words :
"According to Mohammedan law a girl becomes major on the happening of either of the two events : (i) the completion of her 15th year or (ii) on her attainment of a state of puberty at an earlier period".
The same rule may be applicable in respect of the age of a boy. Thus, it may be said that in the absence of any evidence to the contrary, a Muslim is presumed to have attained puberty at the age of fifteen years.
The requirement of the age of puberty is essential not only because of competency for consummation, but also because it is considered to be the age at which the parties can give their own consent for the marriage. After attaining fifteen years, a person becomes mature enough to give consent for his or her marriage no consent of the guardian is necessary to validate the marriage.
b) Soundness of Mind
At the time of the marriage, both the parties must be of sound mind. Persons of unsound mind have no capacity to enter into the contract of marriage because their own consent for the marriage is no consent in the eyes of law Unsoundness of mind is of two kinds, idiocy and lunacy. Idiocy refers to an abnormal state of mind in which a person is completely incapable to knowing the legal consequences of his activities. Such persons are called idiots and cannot marry. Lunacy is a mental disease which may be cured. Such persons are called lunatics and they also have no understanding but sometimes they may behave like sane persons. The period during which a lunatic behaves like a sane person with normal understanding, is called 'lucid interval'. Marriage by a lunatic during 'lucid interval', is a valid marriage.
c) Religion of the parties
As the marriage is to be governed by the rules of Muslim law, both the parties have a right to marry a Muslim, irrespective of sect or the sub-sect. Where both the parties are Muslims but they belong to different sects (e.g. one is Shia and the other is Sunni), the marriage is inter-sect marriage. Inter-sect marriages are perfectly valid. Thus marriage of a Shia boy with a Sunni girl is valid. Similarly, the marriage of Hanafi boy with a girl belonging of Shafie or the Ithna Asharia sect is also lawful. Under Muslim law so long as the religion of both the parties is Islam, the validity of their marriage is not affected by any difference in the sect or sub-sect. if the religion of the parties is different i.e. where one party is a Muslim but the other is a non-Muslim, their marriage becomes an inter-religious marriage.
II. Free Consent of the Parties
Consent is an essential element in a Muslim-marriage. Where the parties to the marriage are sane and adult, it is their own consent which is required. But if any one of them is either minor or an insane, then the consent on his or her behalf must be given by the guardian. For a valid marriage a consent somehow obtained, is not sufficient. The consent of the parties or of their guardians must be a free consent. If the consent has not been given volunatarily and is not free, it is no consent at all. A consent is not free if it is given under compulsion, fraud or mistake of fact.
Compulsion
When the consent for a marriage is obtained by application of force, under threats, coercion or any other compulsion, it is not free and it cannot be said that such a person has intended to what he or she has consented. Under all schools of Muslim law except Hanafi if the consent of the parties or of their guardians has been obtained under any compulsion, the marriage is void.
Hanafi Law. - Under Hanafi law, even if the consent has been given under compulsion, the marriage is valid. This peculiar Hanafi rule may not appeal to a reasonable prudent man but its authority is not doubtful. It is based on the following tradition : "Apostle of God said, 'there are three things which whether done in joke or earnest, shall be considered as serious and effectual; one, marriages, the second, divorce and the third taking back".
Shia Law.- It must be noted that the legality of a marriage under compulsion, is an exceptional rule peculiar only to Hanafis; under other schools of Sunni sect and also under the Shia law such a marriage is void.
Fraud
Fraud is committed where there has been a dishonest concealment of certain relevant facts or a false statement in obtaining the consent for a marriage. If the consent has been obtained by playing fraud, the marriage is voidable at the option of the party defrauded. That is to say, when such a defrauded person comes to know that fraud was committed in the marriage, he or she may either accept the marriage as lawful or reject it altogether. Where the marriage is invalidated by rejection, it becomes void. On the other hand, if such a person thinks that there is no harm in being decived, he or she may approve the marriage expressly or impliedly; the marriage then continues to be lawful.
Mistake of Fact
Two persons are said to consent when they agree upon the same thing in the same sense. If at the time of marriage both the parties, or their guardians, are under a mistake of fact relevant to their marriage, there is no consent and the marriage is void. For example, if there is a mistake as to the identity of the girl to whom the offer has been intended, the marriage is void because there is no formation of a lawful contract.
III. Formalities in the Marriage
Under Muslim law, religious ceremonies or rites are not necessary to validate the marriage. According to Ameer Ali, a Mahommedan marriage requires no particular or formal rites (sacrament) to constitute it valid in law. Under Muslim law the only essential formalities are that the offer and the acceptance are made at the same sitting. These legal formalities must necessarily be fulfilled to constitute a valid marriage.
Offer and Acceptance
Offer (Ijab) signifies willingness of a person to contract a marriage with the other. The offer is in the form of declaration and is generally made from the side of the boy or his guardian. The offer for the marriage must also be accepted by the girl or her guardian. Acceptance (Qabool) is made by girl or her guardian. No specific words are prescribed for an offer and acceptance, but they must indicate expressly a clear intention of the parties (or of their guardians) to marry. The offer and the acceptance should not be of uncertain or doubtful nature.
Oral or Written
The offer and the acceptance may either be oral or in writing. That is to say, the offer of the acceptance may be through words to mouth or may be reduced to writing. Where it is in writing, it is called Kabinnamah which is an important documentary evidence of the marriage.
Reciprocity
Offer and the acceptance must be reciprocal to each other. That is to say, the acceptance must be exactly for the proposal and nothing else. If the acceptance is conditional or with modifications, it is no acceptance of the proposal. Where a man says, "I offer to marry you on Rs. 1,000 as dower" and the acceptance is given by the woman as, "yes, I accept the marriage on Rs.2,000 as dower", there is no reciprocity in the offer and acceptance and the marriage is void.
Presence of Witnesses
The offer and the acceptance must be made in presence of two competenct witnesses. Any male Muslim who is of sound mind and has attained puberty, can act as a witness. But, if two male Muslims are not available, one male together with two adult female Muslims of sound mind, may fulfil this legal requirement. However, on this logic, four females are not regarded as competent witnesses in the marriage. It is not necessary that two persons are specifically asked to act as witnesses, it is sufficient if they were present in the marriage and have heard and understood the offer and acceptance. A marriage without witness or the incomnpetent witnesses, is irregular (fasid).
Registration of Muslim-Marriage
Under Muslim personal law, registration of marriage is not necessary. However, the States of Punjab, Bengal (& Bihar), Assam and Orissa have enacted laws in 1876, 1935 and 1949 respectively for the registration of Muslim marriages and divorce in their territories. The purpose of registration in these enactments is to make the 'proof' of a marriage or divorce easier and authentic. But under these enactments, the registration of Muslim-marriage or divorce is not compulsory. It is only optional. The validity of marriages or divorce is not affected if they have not been registered.
IV. Absence of Prohibitions
In a valid marriage, there must not exist any of the prohibitions laid down under Muslim personal law. Prohibitions in the marriage are impediments or restrictions upon the right of a person to contract a marriage. Since marriage is also a social institution in islam, the Muslim law requites that contract of marriage must not be against the interests of the society. Law therefore, prohibits the marriage between certain persons or being contracted under certain circumstances. Prohibitions in Muslim-marriage are of two kinds: (i) the absolute prohibitions and (ii) the relative prohibitions.
Absolute Prohibitions
Absolute Prohibitions in the marriage are mandatory in nature. A marriage contracted in violation of any of the absolute prohibitions is null and void under all the schools of Muslim law. For a void marriage, therefore, there must be absence of prohibited relationship between the parties. There is an absolute prohibition for a Muslim to marry a person who is within his or her 'prohibited relationship'. Two persons are said to be within 'prohibited relationship' if they are related to each other by (1) consanguinity, (2) affinity, or (3) fosterage.
(1) Consanguinity (Relation by blood).
Under consanguinity or blood-relationship, a Muslim cannot marry with any of his (or her) following relations.
a) One's own ascendant or descendent, how highsoever.
b) Descendants of one's father and (or) mother how lowsoever.
c) Brothers or sisters of one's ascendants how highsoever.
One's own ascendant or descendents; ascendants how highsoever and descendants how lowsoever.
Father and mother of a person are his (her) ascendants. Ascendants of higher degree from the side of father are father's father, fathers' fathers's father, etc., how highsoever. Similarly, ascendants of higher degree from the side of mother are mother's mother and mother's mother's mother etc., how highsoever. A Muslim is prohibited to marry with any of his (her) ascendants how highsoever. That is to say, a man is prohibited to marry his mother mother's mother etc. of any higher degree. A woman is prohibited to marry fathers's father etc. of any higher degree.
Sons and daughters of a person are his (her) descendants. Descendants of lower degree are sons's son or daughter's son etc. how lowsoever. A Muslim is prohibited to marry also with any of his (her) descendants how lowsoever. Thus, a man cannot marry his daughter, daughter's daughter (or son's daughters etc), in any lower degree. Similarly, a woman cannot marry her son son's sons (or daughter's son) etc. in any lower degree.
(2) Affinity (Relation by marriage)
Affinity means nearness. It is created through marriage. On the basis of affinity one cannot marry with any of the following relations.
A man is prohibited to marry his wife's mother or wife's mother's mother of any higher degree. A woman is prohibited to marry her husband's father or husband's father's father of any higher degree.
A man is also prohibited to marry his wife's daughter or wife's grand daughter how lowsoever. Similarly, a woman cannot marry her husband's son or husband's great grand son. How lowsoever.
Note - A man can marry the descendant of his wife if his own marriage with the wife has not been consummated.
(3) Fosterage (Relation by Milk)
Where a child, under the age of two years, has sucked the ilk of any woman (other than its own mother) such a woman is called the foster-mother of that child. Although there is no blood-relationship between that woman and the child yet, she is treated as the real mother of that child for purposes of prohibitions in the marriage. The reason behind this rule is that breast-feeding to any child, necessary for child's life and development, is regarded as the act of giving birth to that child.
Any one who is prohibited on the ground of consanguinity and affinity is also prohibited by reason of fosterage. For example, a man is prohibited to marry his foster-mother, foster-mother's daughter etc. but there are certain exceptional foster relations with whom a marriage is not prohibited under Sunni law. For example, under Sunni law there is no prohibition in marrying sister's foster-mother, foster-sister's mother, foster-brother's sister etc.
Note - The prohibition on the ground of fosterage has almost become outdated because in most of the families of Indian Muslims, this relationship is now not in practice.
According to Sunni law the marriage may be classified into three categories:-
1) Valid (Sahiah),
2) Void (Batil),
3) Irregular Fasid).
Under the Shia law, irregular marriages are not recognized. A marriage according to Shia law, may be classified into following categories
1) Valid (Sahiah),
2) Void (Batil),
3) Temporary (Muta).
However, it is submitted that, although the common practice is to regard valid, void are irregular as the three kinds of Muslim-marriage yet, it may be noted that it is erroneous to cell them as different kinds of marriage. As a matter of fact, the only kind of Muslim-marriage which is accepted to be perfectly lawful and 'correct' is the valid (Sahih) marriage. A marriage which has been contracted in violation of any of the essential legal conditions, is no marriage at all; therefore it does not constitute any separate category as 'void marriage'. Similarly, a marriage in which there is some irregularity, is an incomplete marriage which becomes perfectly valid as soon as the particular irregularity is removed. Initially every marriage is contracted to be a valid marriage. If there is any fundamental legal defect in it, the marriage becomes void. If the defect is I the nature of mere irregularity, the marriage is rendered irregular. However, the 'temporary marriage' (Muta), under Shia law, may certainly be regarded as a distinct kind of marriage.
Valid (Sahih) Marriage
Under all the schools of Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditions prescribed under the law. That is t say, a marriage is valid only where:-
1) The parties are competent;
2) The consent of the parties, or of their guardians, is free;
3) The offer and acceptance has been made according to law; and
4) There is no prohibition for marriage between the parties.
Legal Effects of a valid marriage have already been discussed in the preceding lines.
Void (Batil) Marriage
A void marriage is no marriage at all. It exists neither in fact nor in law; it is an illegal union. Following marriages are void:-
1) Marriage in violation of absolute prohibitions, that is to say, a marriage in which the parties are within the prohibited relationship on the ground of consanguinity or affinity or fosterage.
2) Marriage with any lawfully married woman (polyandy being strictly prohibited in Islam).
Shia law - Under Shia Law, in addition to the above-mentioned situations, following marriages are also void:-
1) Marriage against the prohibition of unlawful conjunction;
2) Marriage with the fifth wife;
3) Marriage during pilgrimage;
4) Marriage with any non-Muslim; and
5) Marriage with a woman undergoing Iddat.
A marriage which is void ab initio, is a radically illegal union from the very beginning; it does not create any conjugal right or obligation between the parties. The cohabitation is unlawful and the children are illegitimate. The husband and wife do not get mutual rights of inheritance. The wife is neither entitled to the dower nor maintenance under Muslim law. As a void marriage is no marriage at all, the parties are free to contract another marriage lawfully.
Irregular (Fasid) Marriage
Irregular marriages are recognized only under the Sunni law. The irregular marriage is an incomplete marriage. If there is any illegality in a marriage which may be removed, the marriage is irregular. As soon as that illegality or irregularity is removed, such marriage becomes perfectly valid. A marriage contracted in violation of any of the relative prohibitions, is regarded as irregular marriage because relative prohibitions are merely temporary which may be removed afterwards. Following marriages are regarded as irregular marriages:-
1) Marriage against the rule of unlawful conjunction.
2) Marriage with the fifth wife.
3) Marriage without two competent witnesses.
4) Marriage with a woman who is neither Muslim nor Kitabia.
5) Marriage with a woman undergoing Iddat.
The sources of Muslim law may be studied as under:
a. Ancient source
b. Custom
c. Modern sources
Ancient sources
The following four are accepter as the Ancient sources of Muslim law,
1. Holy Quran
2. Sunnah
3. Ijmaa
4. Khyas
All the schools of Muslim law accepted the first two are primary sources and they contain the direct revelations received by Prophet Mohammed. The direct manifests revelations are those vouchsafed to the prophet by Archanges Gabries, under the direction of God, and consist of the very words of God, or hints and such knowledge as occurred in the mind of the prophet through the inspiration of God. Other are the internal revelations consist of the opinions of the prophet embodied in the form of ratiocination, and delivered from time to time on questions raised before him.
1. Holy Quran
The word Quran is derived from the Arabic word Qurra and properly signifies the reading or that which ought to be read. It is believed that Quran is of divine origin and was revealed to Prophet Mohammad for the benefit of mankind. Quran is the first source of Muslim law in point of time as well as in importance.
Muslim believes in the divine origin of their Holy book which according to their belief was revealed to the prophet by Gabriel, is Holy Quran. It containing about 6666 verses the Holy Quran is the fundamental source of Muslim law. Out of a total of some 6666 verses of the Koran not more then 200 verses deal with rules and principle of law. Of these 200 verses, only 80 verses relate to family law and the rest deal with state and polity. It is a book which shows the right path to human being, which distinguishes truth from falsehood, and right from wrong. The contents of the Holy Quran have very much spiritual value, since the Holy Quran is of divine origin, It is postulated that Muslim law cannot be changed or modified by any human agency , scholar or any of the man made government through any law.
We have seen that Quran is such a source of Muslim law which has came directly from God. It was revealed to the prophet for the social-religious reform of the Arabian society of that time and therefore we may fine solutions to almost all the problems of that society. But the religion of Islam spread so rapidly that within ;a short period the Islamic society became a big Islamic commonwealth. It was obvious that in such a progressive society new problem arose day by day.
2. The Sunna
The term Sunna literally means a path a procedure a way of action i.e. some kind of practice and precedent. In Muslim law, the term has come to mean the utterances, deeds and the practices of the prophet. It also includes the unspoken approval of a course of conduct. The Sunna must; be distinguished from the hadis; the latter term is applied to the story of a particular instance or occurrence, while the former is the rule of law deduced from the instance or occurrence, i.e. the practice of the prophet or his model behavior. The Sunna differs from the Koran inasmuch as the Koran is said tom contain the very words of God, While the Sunna embodies the practices, the deeds the actions and the approvals of the Prophet.
All the preaching and the practices of the prophet formed part of Sunna. What the prophet said what he did and also his silence in a question put before him, was all taken to be authoritative and become a precedent.
The preaching and precepts could become an authoritative source of law when come competent and qualified person called Narrator, had narrated it. In other words, the Narrator used to testify that he heard the prophet saying it, or seen him doing it or has seen his silence over that matter. It this narration was found to be reliable, it became Sunna. As the narration of a tradition amounted to the creation of a news rule of law, the Narrator was required to be a qualified person.
Kind of Traditions
Recognition and acceptance of a tradition as a source of law depends upon its authority and its authority depends upon proof given by the Narrators. From the point of view of their authority and acceptance in the society, traditions may be classified as under:
i) Ahadis-i-Mutwatir (Universally accepted Traditions):-
They are the traditions which have continuously been narrated by indefinite number of persons. They are most authoritative because there is no doubt in their genuineness and certainty. These traditions have universal acceptance and are followed by all the sects of Islam.
ii) Ahadis-i-Mashhoor (popular Traditions):-
Traditions, which have been narrated by some companion of the prophet but subsequently accepted by majority of the people, are called Ahadis-i-Mashhoor or the well known traditions. These traditions are not accepted unanimously by all Muslims but a great majority has always recognized them as a source of law.
iii) Ahadis-i-Ahad (Isolated Traditions):-
Isolated traditions have neither been continuously followed by majority of the people. Only a certain section of the society has accepted them as source of law. Where the authenticity of any narration was doubtful it was followed for some time only by few persons. Such traditions are called isolated traditions because their acceptance and recognition is localized one.
3. IJMAA
It was equally binding on the people to act on a principle which had been established by agreement among highly qualified legal scholars of any generation. This was supported by the Hanafi doctrine that the provisions of law must change with the changing times and of the Malikis that new facts require new decisions. The validity of ijmaa, as containing a binding precedent, is based upon a hadis of the Prophet which says that God will not allow His people to agree on an error. Ijmaa thus became a source of law. Ijmaa is, however, to be distinguished from mere novelty or heresy for which the name is Bidat. Ijmaa was a feature of all the schools of all the schools of Sunni law and the rules deduced by ijmaa are equally valid and binding in each school. Some Western writers have derisively described ijmaa as a means of "Muslims shape Islam" instead of Islam shaping Muslims: As a matter of fact without ijmaa which is responsible for a mast body of principles, the rules of Islamic law as contained in the Koran would have been extremely sparse. Authority for ijmaa is said to emanate form a verse of the Koran. This has prompted another non-Muslim writer to say that "the write of the Quran runs by ijmaa".
The importance of the Ijma as a source of Muslim law is undoubtedly great. Many rules of Muslim law cannot but be explained by reference to the jurists. In the words of Danial Latifi, "The principle of Ijma was given an overriding authority and was made the final and conclusive argument on everything, by the early schools of Muslim law. Ijma was regarded a s authoritative not only for discerning the fright at present and in the future but also for establishing the past. It was Ijma that determined what the Sunna of the Korna. In the final analysis, both the sunna was authenticated by Ijma".
4. Qiyas (Analogical Deduction):-
In the Arabic language Qiyas means measurement. IN other words it means measuring or comparing a thing in relation to a standard, or to establish an analogy. If there was any problem before the society on which the texts were silent then qiyas was applied to get6 the law. It was a method of comparing the problem of society with a similar problem for which solution was given in the texts.
In obtaining a law through Qiyas, following method was applied by the jurists:
a) A similarity was established between the new problem and an identical problem given in the text. For establishing similarity, reason or the sense behind a text was taken into account rather than the meaning of its apparent words.
b) After establishing the analogy the solution of the problem given in the text was applied to the new problem. Thus, the required law was directly deduced from the texts of Quran or Sunna or the Ijma. It is significant to note that in this method new principles were not formulated.
CUSTOM
The Prophet himself did not abrogate all the customs of the pre-Islamic Arabia; on the contrary, he retained in their original form many Arabian customs which did not conflict with the basic tenets of Islam. A tradition runs thus: "Virtues of the pre-Islamic period are to be retained in Islam". The Prophet went further, and based many rules of Muslim law on the then existing customs. This trend was continued by the Caliphs. In the then present submission what appears to have happened is this ; most of the Muslim jurists accepted custom as supplementary to the sacred law though they did not admit that a custom derogatory to the sacred law could prevail over it. Thus, if the text was silent or indifferent on a particular point, custom could be the basis of rule of law.
Abdul Rahim aptly observed: "Customs, generally as a source of law, are spoken of as having the force of the Ijmaa and their validity is based on the same texts as the validity of the latter. It is laid down in the Hedaya that custom holds the same rank as the Ijma in the absence of an express text, and in another place in the same book custom is spoken of as being the arbiter of analogy.
In the initial and formative stages of Islam, it was not possible to f formulate comprehensive code of law and, therefore, the Prophet and the Companions let many matters to be determined by custom. For instance, remuneration of foster mother and compensation for civil wrong was specifically left by the Koran to be regulated by the general usage. Similarly, succession to the officer of mutawalli, in case the settler has not laid down a scheme of succession, is governed by usage.
In modern India, the rule laid down by the Privy Council that custom, if otherwise valid, overrides the rule of Shariat is still a valid proposition, though after the Shariat Act, 1937, custom has become an insignificant aspect of Muslim law.
MODERN SOURCES
It is not customary to talk of modern sources of Muslim law, since the Muslim jurists admit of no modification of their law by any earthly agency. But the fact of the matter is that Muslim law has undergone modifications throughout the period of British rule. The vehicles of these modifications have been three;
a) Doctrine of equity, justice and good conscience
b) Precedent
c) Legislation
The first two have proved to be very effective modes of change, while the role of the last has been peripheral.
a) EQUITY, JUSTICE AND GOOD CONSCIENCE
In its modern version, the doctrine of equity, justice and good conscience is essentially a product of the British administration of justice in India. Its earliest form is found in the Letters Patent of Gorge I of the year 1726 which enjoined upon the courts to give judgments "according to justice and right". Then, it came to mean the English notions of justice and right as understood by English lawyers. The Regulations of 1781 laid down that in cases, for which no specific directions had been laid down; the adalat was to act according to "equity, justice and good conscience". Thus, was introduced the doctrine of equity, justice and good conscience which was interpreted to mean the application of rules of English law as modified to suit the Indian conditions and circumstances. This led to the opening of an area where the rules of Muslim law were blended with the rules of English law; or where areas of English law were superimposed on the rules of Muslim law. By this process, several rules of Muslim law were modified and brought at par with the changed social conditions in India and with the English notions of equity and justice. For instance, the Muslim law of pardanashin lady, of guardianship, of divorce, of wakf, etc. have undergone considerable modifications.
b) Precedent
The common law doctrine of precedent has never been a part of Muslim law; the decisions of Kazi never constituted a precedent in the English law sense. The nearest approach to this doctrine in Muslim law are fatawa, opinions of the jurists, which have great persuasive force. The fatawa possess not merely moral sanctions but also legal authority. The mufti whose function was to search out the law applicable in a given case, was supposed to look after the interest of the people not merely in this world but in the world hereafter. Thus, a fatawa pronounced by a mufti or a scholar, had great authority as well as sanctity, yet the kazi was not bound by it. It was discretionary for him to follow the fatawa, or if he thought it fit in his judgment, he could ignore it and render an independent decision.
During the British period, the English courts were enjoined under statutes and regulations to ascertain and administer the personal law of the Muslim in matters relating to marriage, dower, divorce, inheritance, etc. They tried their best to do so. In most cases, they were successful, but at times they were not. Some rules of Muslim law were interpreted by them in their own light, trained as they were in the common law traditions. In this process, some rules of English law got blended with rules of Muslim law, and some rules of Muslim law got modified. Undoubtedly, some modifications were justified.
c) Legislation.
During the British period, it was the proclaimed policy of the foreign rulers not to interfere with the personal law of Indians. The result was an Danial Latifi puts it, that under the British imperialist rule in India, Muslim law suffered, both from the apathy and indifference of the rulers based on their political exigencies, and from the artificially buttressed orthodoxy of the ulama. Obviously, legislative modifications of Muslim law have been very few. Some were adopted to strengthen Muslim law. Thus, the Shariat Act 1937, was passed with a view to making Muslim law applicable to the Muslims in those matters where they were governed by a different law. Similarly, the Mussalman Wakf Validating Act, 1913 was passed to validate the wakf for alal aulad.
An other important Legislations are Caste Disabilities Removal Act, Child Marriage Restraint Act, Special Marriage Act, Wakf Validity Act, Guardian & Wards Act, Dissolution of Muslim Marriage Act, etc,
Introduction
Pre-emption (Shufa) is a right. Under this right owner of an immovable property is entitled to repurchase an adjacent property which has been sold to some one else. Exercising this right, the owner of an immovable property can compel the purchaser of his adjacent property to sell it to him at the same price at which it was purchased by the said purchaser. In other words, it is the preferential right of the owner of an immovable property, to acquire an adjacent property. The person who claims this right, is called a pre-emptor or Shufee. For example, A and B are owners of their houses which are adjacent to each other. B sells his house of C, who may be a stranger of A. Under this right, A who is a pre-emptor can legally repurchase that house from C at the same price at which B sold it to C. In this manner, the right of pre-emption would enable A to avoid C from being his permanent neighbour. As a matter of fact, an apprehended inconvenience which may be caused by a stranger, has been the very basis of this right. The origin of the law on pre-emption may be traced back to the traditions of the prophet. The prophet is reported to have said.
"A neighbor has a right, superior to that of a stranger, in the lands adjacent to his own".
In India, pre-emption was introduced by the Moghul rules. Under the Muslim legal system, Muslim law was enforced throughout this country and had become the common law. As a part of Muslim law, the right of pre-emption was universally applicable and, the right was available both to Muslims and the Hindus. It may be noted that Muslim law makes no difference between Muslims and non-Muslims in respect of the application of this right. The Muslim law of pre-emption was easily adopted by the non-Muslims of this country because it favoured their coparcenary system and village life. In the courts of time, customs f pre-emption developed among the Hindus who accepted it for reasons of practical inconveniences and expediency.
Definition:-
Mulla defines pre-emption in the following words :
'The right of Shufa or pre-emption, is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person".
In Gobind Dayanl v. Inayat Ullah, Mohmood, J. defined pre-emption in the following words :
"Pre-emption is a right which the owner of certain immovable property, possesses as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person".
Essential Elements of Pre-emption:
On the basis of the definitions given above, the ingredients of the right of pre-emption may be stated as under:
i) Pre-emption is a right which is available to the owner of an immovable property.
ii) Under this right, the owner of an immovable property can claim his substitution in place of the buyer of an immovable property which is adjacent to the property of claimant (pre-emptor).
iii) The claimant of this right is entitled to re-purchase that adjacent property at the same price and on same conditions on which it was purchased by the buyer.
iv) The right of pre-emption is in the form of a special privilege which is available for quiet enjoyment of an immovable property.
v) Being a proprietary right, it can be enforced against any purchaser irrespective of religion, caste or creed.
Special Enactments - Under special enactments, the law of pre-emption is applicable to Muslims as well as to non-Muslims of the areas where such enactments are in force. Special Acts which regulate the law of pre-emption are:
a) Punjab Pre-emption Act 1913 (as amended in 1960 and applicable to Haryana and part of Delhi).
b) Agra Pre-emption Act 1922, and the Oudh Laws Act 1876, enforceable in Uttar Pradesh.
c) Bhopal Pre-emption Act 1934, and the Reqa State Pre-emption Act 1948, in Madhya Pradesh, and
d) Rajasthan Pre-emption Act 1966.
It is to be noted that under these enactments, the right of pre-emption is applicable to Muslims and the non-Muslims alike, therefore, in these places pre-emption is a territorial law rather than a part of Muslim personal law. The statutory law of pre-emption, as given in these enactments may be different from the pre-emption under Muslim law. The result is that Muslim law of pre-emption may not be applicable even to Muslims of these territories except under a custom. In other words, unless there is any local custom under which Muslim law of pre-emption is being applied to the Muslims of these areas, they too are subject to statutory law and they cannot claim the right under personal law.
Who can Pre-empt?
Once it is established that the law of pre-emption is applicable to person (on the ground of equity, custom or statute) he may exercise this right. A person who is entitled to claim this right, is called a pre-emptor. Under Muslim law, pre-emptors are classified into three categories, given below, in the order of merit.
1) The Co-sharers (Shafi-i-sharik)
The persons who are entitled to inherit the properties of a common ancestor are called co-sharers. Where the vendor and pre-emptor are co-sharer, the pre-emptor is called a shafi-i-sharik and has the preferential right of pre-emption against any other class of pre-emptors. For example, brothers or two sisters are the co-sharers. If one of them sells his or her house, the other is entitled to claim pre-emption. Co-sharers are given preference against other categories of pre-emptors because they are common blood-relations i.e. related to each other on the ground of consanguinity. Therefore, if one co-sharer sells his share of property, his nearest blood-relation would be the person worst affected by substitution of a stranger. However, since the list of blood-relations may be very large, the category of consanguine (blood) relations entitled to claim preferential right of pre-emption must not be unreasonable. In Atma Prakash v. State of Haryana, the Supreme Court held that if the classification of pre-emptors on the ground of consanguinity is 'unreasonable' the classification is unconstitutional. It is submitted that so sharer as a class of pre-emptors, as such, has not been declared unconstitutional. Recently, in Krishna v. State of Haryana, the Supreme Court has held tht right of pre-emption to co-sharers is valid and it is not violative of Articles, 14,15 and 16 of the Constitution.
2) The Participators in Immunities (Shafi-i-khalit)
Where two or more persons enjoy a common privilege e.g. a common right of way or, drainage or any other common right to use a property, they are participators in immunities. Upon the sale of the house by any one of such persons, the other participator is entitled to pre-emption. Thus, in the easement of discharge of water, the dominant tenement holder as well as the servient tenement holder, both as shafi-i-khalit.
In Bhau Ram v. Baij Nath, the Supreme Court has held that participation in certain appendages e.g. a common entrance to the property or a common stair case, was a reasonable ground for the claim of pre-emption. However, pre-emption on the basis of participation exists only in the easements of way and water on private lands. It does not extend to any other easement such as easement of air and light. In Aziz Ahmad v. Nazir Ahmad, the branches of a tree overhanged the land of a neighvour. Upon the sale of the land, the owner of the tree claimed pre-emption as a shafi-i-khalit. It was held by the court that owner of the tree was not a pre-emptor on the ground of participation. It may be noted that participators in the use of government water e.g. rivers and tanks or government lands, are not shafi-i-khalit.
3) The owners of Adjacent Properties (Shafi-i-jar).
The neighbous, who are owners of immovable properties, constitute a class of pre-emptors on the basis of vicinage. There is vicinage if two properties are adjacent to each other. Only the owners of properties may be pre-emptors, not their tenants. Moreover, the right of pre-emption on this ground exists only in respect of houses, gardens and small lands. Pre-emption on the ground of vicinage does not exist in respect of large estate e.g. Zamindaris or Villages.
However, as discussed earlier, after the Bhau Ram's case in 1962, the claim of pre-emption only on the ground of vicinage has now been declared to be unconstitutional. This means to suggest that claim of pre-emption only on the ground that pre-emptor is owner of a property which is adjacent to the property sold, is not valid. In A. Razak Sajan Saheb's case stated in the preceding lines, the Supreme Court, reiterating its earlier decisions held that claim of pre-emption only one the ground of 'vicinage' or, being 'co-sharer' is now unconstitutional.
Introduction
The impulse to do charity and to dedicate property for charitable, spiritual, pious and religious purposes is common to all human beings all over the world. A wakf under Muslim law is essentially a religious and pious obligation though provision is sometimes also made for charities and for the benefit of oneself, one's children and descendants.
The following tradition is considered to be the basis on which the law of wakfs has been developed; One Omer Ibn al-Khattab on getting lands in Khyber went to the prophet and entreat him said, O Messenger of Allah I have got land in Khyber than which in have obtained more valuable property what does thou advice me? The prophet whereupon spoke thus: If thou likes make the property itself inalienable laid down that the property would not be sold, or given away in gift or inherited. He directed that out of the income of the property, charity should be given to the needy and the relatives, slaves should be entertained. The following utterance of the prophet is often quoted and is considered the briefest definition of a waqf.
In India, there are about one lakh waqfs valued at more than a hundred crore of rupees. Instances of the mismanagement of wakfs are numerous; the in competency and corruption of the mutawallis is appalling and abysmal; more often than not the properties of the wakfs are squandered away.
Definition of waqfs
Literal meaning of the word waqf is detention. In the language of law, waqf means detention of a property so that its produce or income may always be available for religious or charitable purposes. When a waqf is created the property is detained or is tied up for ever and thereafter becomes non-transferable.
Section 2(1) of the Musslaman Waqf validating Act 1913 defines waqf as : " Waqf means the permanent dedication by a person professing mussalman faith of any property, for any purpose recognized by the Mussalman law as religious, pious or charitable.
Characteristic Features of Waqf:
1) Perpetuity: In a waqf, the property is settled permanently so that its usufruct is always available for an indefinite period. There cannot be waqf for a limited period.
2) Non-Transferability: When a waqf is created the property vests in the implied ownership of God.
3) Irrevocability: Once it is created, the waqf cannot be revoked. As the property is deemed to vest in God the waqif cannot revoke it subsequently.
4) Absoluteness: The settlement of the property in waqf is unconditional and absolute. A conditional or contingent waqf is void.
5) Religious or Charitable use of usufruct: The produce and benefits of the waqf property are utilized only for such proposes which are recognized as religious, pious or charitable under Muslim law.
Essentials of a valid Waqf
The essential conditions for a valid waqf are given below;
1) There must be a permanent dedication:-
Waqf is a transfer of ownership transfer is made in such a manner that after constitution of the waqf, the substance or corpus of the property must be detained. In order to detain the property it is dedicated to God. As the ownership of the property is vested in God, the corpus is detained forever and usufruct is utilized continuously for its objects.
By permanent dedication the waqf becomes irrevocable. One a waqf has lawfully been constituted, it cannot be revoked. In the creation of waqf it is implied that since the ownership of the property is presumed to vest immediately in God, the settlement is irrevocable.
Another important feature of permanent dedication is that the dedication is absolute and unconditional. There cannot be any waqf subject to any condition or contingency. It is clear that the existence of a waqf must not depend upon any uncertain future event. Similarly where the deed of waqf provided that it would come into existence only if a specified person dies issueless, it was held that as its creation depended upon an uncertain event the waqf was void.
2) Competency of the Waqif: Who can make a Waqf?
Every Muslim who is of sound mind and has attained the age of majority has capacity to constitute a waqf. In other words, as regards capacity of a Muslim for making a waqf. 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 person is void. The waqif must also be adult. For purposes of making waqfs the age of majority is eighteen years.
Waqf is and institution of Muslim personal law; therefore, the dedicator is generally a Muslim. But a non-Muslim can also constitute a valid waqf. Accordingly, 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. Statutory provisions in the Waqf Validating Act 1913 and also in the Waqf Act 1954 contain the expression professing Islam. This may be liberally interpreted to include any non-Muslim having faith also in the principles of Islam.
Capacity alone is not sufficient. The waqif must also possess the right to make the waqf. When a waqf is constituted there is a permanent transfer of ownership of the property. Therefore the settler must be owner of the property dedicated.
A pardanashin lady is that lady who generally lives in seclusion and does not move in public. A pardanashin lady may be a competent waqif. Such a lady is competent to make waqf of her properties provided she possesses the required capacity and right.
The waqif must apply his independent mind in dedicating a property. That is to say the waqf must have been made with free consent of its found. Where it is proved that waqf was constituted under compulsion, undue influence coercion, force ect.
3) The subject-matter must be a transferable property:
Any property, whether movable or immovable tangible or intangible may be the subject matter of a waqf. But the earlier Muslim jurists had given conflicting opinions regarding the nature of the waqf property. Muslim jurists agreed that besides lands following properties were also the subject of a waqf;
i) Cattle's
ii) Implements of husbandry
iii) Quran for public reading in the mosques and
iv) Other movable articles not necessarily consumed in the using.
Before the Waqf validating Act 1913 all most all High courts held that essentially only the immovable properties could be dedicated in waqf; but those movables could also be subject-matter which was accessories to the dedicated immovable property. After 1913 the courts in India have followed the definition of waqf given in the waqf validating Act. Under section 2(1) of this Act, any property may be dedicated in waqf. According it has been held that a valid waqf may be constituted of the following properties;
1) Government promissory note.
2) Money in cash
3) Offerings in a shrine or dargah
4) Proprietary rights held as a grove holder
5) Shares in a company and Government securities.
Following kinds of property cannot be subject-matter of a waqf:-
i) A dower-debt
ii) Right to recover money from debtor under a simple money decree.
iii) Right of a usufructuary mortgagees.
4) The object of the waqf must be religious pious or charitable under Muslim law.
The purpose for which a waqf is constituted is called its object. The object of a waqf must be religious pious or charitable. Under Muslim law, a waqf is constituted for getting spiritual or religious benefits. Therefore a waqf may be created for any object which is recognized in Islam as religious pious, or charitable. The object of a waqf must not be un-Islamic
The following objects have been recognized as lawful for the creation of a valid waqf:
1) Construction or maintenance of mosque and Imambara and provision for the conduct of worship or religious prayers
2) Keeping Tazias during the month of Muharram and provision for camels and Duldul for the religious procession
3) Burning lamps in mosques and maintenance of Khankah
4) Construction of a free boarding house for pilgrims at Mecca
5) A shrine or tomb of any per or Fakir or a holy person which has been given profound respect by the public.
6) Reading Quran in public or private places.
7) Celebrating the birth of Ali the fourth caliph and son-in-law of the prophet.
8) Construction and maintenance of schools and colleges and providing for the teachers therein
9) Works of general utility such as bridges drains wells, tanks, burying grounds hospitals
10) Distribution of money to the poor and help for the poor to enable them to go on a holy pilgrimage.
11) A feast for the community or a feast in honor of a saint.
12) Provision for residence of founder's brother and his descendants in the waqf property.
13) Provision for the maintenance and support wholly or partially of waqif's family, children or descendants.
5) The formalities required to constitute the waqf must be duly completed.
Muslim law does not prescribe any special formality for the creation of waqf. It may be made orally or in writing. Writing is not necessary even if the property dedicated is immovable property of high valuation. A waqf of an immovable property worth several thousand rupees may be lawfully constituted by an oral declaration. If it is fully established that a dedicator has intended to make a waqf its form is immaterial. It may be noted that even he use of the word waqf is not necessary. A waqf-deed has intended to create waqf.
Is mosque a juristic person:-
In Maula Bux v. Hafizuddin, the Lahore High Court held that a mosque is a juristic person. But in N|Masjid Shahid Ganj case, the Privy Council held that a suit could not be brought by or against a mosque in its name, as it was not an artificial person in the eyes of law. However, the question whether a mosque may be regarded as a "juristic person" was left open.
Graveyard (qabristan, takia and dargah)
Public and private graveyards:-
Under Muslim law, dedication of property may be made for a qabristan or graveyard. If dedication is complete, a wakf will come into existence. Like Mosque, a graveyard may be:
1. a public graveyard
2. Private graveyard.
A graveyard is private when its use is confined to burial of corpses of the founder, his children, descendants and relatives, in such a qabristan, no person who does not belong to the family of the founder is permitted to bury his dead. A public graveyard is one open for the burial of any Muslim. It can happen that by long usage a private burial place may become a public burial place.
In Md, S. Labhia v. Hanifa, the Supreme Court observed: "once a quabristan has been held to be a public graveyard then it vests in the public and constitutes a wakf, and it cannot be divested by non-user but will always continue to be so". Similarly, if a burial ground is mentioned either in the revenue records or historical papers as public graveyard, then it will be a conclusive proof of that fact. A graveyard once created continues to be so even when there remains no trace of dead, not even the bones.
Dargah:-
In India "dargah" means a shrine, i.e., a tomb of a Muslim saint. It is mostly used as a place of religious prayer. It appears that an endowment to a dargah is not mentioned among the religious and charitable objects, nor is it mentioned in connection with wakfs. In Persian, the term "Dargah" means "the way out, a court before a place or great housed: a large bench or a place for reclining upon, a mosque".
In India, it is an established meaning of dargah that it is a shrine or tomb of a saint; such a tomb is respectively referred to as the portal to the spiritual place of the saint. It generally includes a group of buildings of which the tomb is the nucleus. So much so that it has come to be established that dedication of property can be made to a dargah and a wakf can be constituted.
Takia:-
The word "takia" literally means a "resting place". Among the Muslims a burial ground is sometimes called a takia. Sometimes a takia is only a place of assembly in a village and is devoid of all religious connotations. Sometimes it is platform in Muslim graveyard where prayers re offered.
Khanqah:-
A khanqah is religious institution analogous to Hindu. A khanqah is founded by a holy man in a place where esoteric teaching acquires a certain fame and sanctity,. A khanqah may come into existence by long usage or by dedication. Then it becomes a wakf.
Sajjadanashin:-
The religious head of a khanqah is called sajjadanashin. Literally the word means the one who sits at the head of a prayer-carpet. In the words of Ameer Ail, "The sajjadanashin is not only a mutawalli but also a spiritual preceptor. He is the curator of the durgah where his ancestors lie buried, and in him is supposed to continue the spiritual line. The dargahs are the tombs of celebrated dervishes, who, in their life time, were regarded as saints.
Sometimes the offices of mutawalli and sajjadanashin are combined. The office of mutawalli is a secular office, while that of a sajjadanashin essentially a religious office. The sajjadanashin performs certain religious functions. In some daragah and Khanqah, the sajjadanashin is entitled to a share in the offerings made at the tomb. This is a right attached to the office and each successive incumbent is entitled to receive his share as long as he holds the office.
Imambara:-
The imambara is essentially a Shia religious institution. It is a private apartment set apart for the performance of certain ceremonies at Moharram and other occasions. It is a private apartment, and not public worship, like a mosque, it is meant to be used by the owner and members of his family, though public may be admitted with the permission of the owner. It may be an object of a valid private wakf. It may be established by evidence that a particular imambara is public wakf.
Mutawalli:-
Under the Mohammedan law the moment a wakf is created all rights of property belonging to the wakf; the property is not vested in him, and is not a trustee in the technical sense. He is merely a superintendent or manager.
Appointment of mutawalli:-
1) The founder of the wakf has power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
2) If any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office of mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed
a) By the founder of the wakf
b) By the executor
c) If there be in executor, the mutawalli for the time appoint a mutawalli to the provisions of sec.
205 below appoint a successor on his death-bed;
d) If no such appointment is made, the Court may appoint a mutawalli. In making the appointment
the Court will have regard to the following rules:-
i) The Court should not disregard the directions of the founder except for the manifest benefit of
the endowment.
ii) The Court should not appoint a stranger, so long as there is any member of the founder's family
in existence qualified to hold the office.
iii) Where there is a contest between a lineal descendant of the founder and one who is not a lineal
descendant, the Court is not bound to appoint the lineal descendant, but has discretion in the
matter, and ma in the exercise of that discretion appoint the other claimant to be mutawalli.
Who may be appointed mutawalli:-
1. Subject to the provisions of sub-sec.
2. The founder of a wakf may appoint himself or his children and descendants or any other person, even a female or a non-Mohammedan, to be mutawalli of wakf property.
Where a female can be mutawalli depends upon the nature of the wakf. In Shahar Banoo v. Aga Md., the Privy Council held that there is no legal prohibition against a woman holding the office of mutawalli.
But where the mutawlli has to perform religious duties or spiritual functions which cannot be performed by a female, e.g., the duties of a sajjadanashin or khatib or mujavar of a dargah, or an imam in mosque, a female is not competent to hold the office of mutawalli, and cannot be appointed as such. Similar remarks apply to non-Mohammedans. The duties of a manager of a graveyard are secular and can be performed by a female.
Power of Mutawalli:-
A mutawlli has the power of management and administration of wakf properties. Since the properties. Since the properties vest in him, in those cases where they are not in his possession, he can sue for possession. He has full power of utilizing the wakf property for the purpose for which the wakf has been created..
Alienation with the permission of the court:-
It is now well-settled that mutawalli can alienate the wakf properties with the prior sanction of the court. Thus, if a mutawalli wants to sell, mortgage or exchange the wakf properties, he must obtain prior permission of the court. There is some controversy among the High Courts as to whether for obtaining permission of the court for alienating the property a suit has to be filed or whether this can be done by putting in an application under the Trustees Act, 1866.
Mutawalli's power of granting lease:-
Ordinarily, a mutawlli cannot grant a lease of the wakf property for more than three years if it is agricultural land, and more than one year if it is non-agricultural property. A lease for linger duration may be granted if the wakf-deed specifically permits him to do so. Leases for longer periods may be given with the prior permission of the court. The court has power to sanction leases in the interest of wakf, even if the wakf-deed specifically prohibits a mutawalli to do so.
Power of taking debt:-
A mutawalli has no power of incurring a debt. A person who advances loan to a mutawalli for carrying out the purposes of the wakf properties. He cannot claim to be indemnified out of the wakf funds. A decree passed against the mutawalli will not be binding against wakf properties, unless it specifically says so.
Power to file a suite:-
Before the coming into force of the Wakf Act, 1945, the mutawalli could file a suit relating to a wakf, but after the coming into force of the Act, the power to file is vested in the wakf Board under whose supervision mutawallis have to work.
Removal of Mutawalli:-
Once a wakf comes into existence and a mutawalli is appointed, the founder has no power of removing him unless such a power has been specifically reserved in the wakf deed.
The Court has power to remove a mutawalli. A court may remove a mutawalli on the ground of misfeasance, breach of trust or for his unfitness, or for any valid reason. The court's power of removal is unfettered, and it can remove mutawalli even if the settler has specifically lain down that the mutawalli should be removed. It is because the foremost duty of the court is to consider the interest of the wakf. Thus, a mutawalli who is insolvent, or who neglects to perform his duties as laid down in the wakf deed, or who claims adversely to wakf propertied can be removed by the court.
Procedure for removing a mutwalli is by way of a suit in the District Court.
A mutawalli appointed by the committee under the Religious Endowment Act, 1863 is not a mutawalli under Muslim law, and therefore, can be removed by the committee.
Introduction
Before the advent of Islam in Arabia, a marriage was generally contracted by purchasing the girl from her guardian. A man who wanted to marry a girl used to approach her guardian and after giving some money or property to him, used to take the girl with him as his wife. Such a marriage was almost a sale of the girl by guardian. The money or property given by husband to the guardian was 'compensation' or 'price' of the girl, and was known as Mahr. This type of marriage was known as Ball-marriage. Another kind of marriage was also very common in those days, was known as Beena-marriage. In the Beena-marriage, the man used to approach the girl directly, gave her some money or property, and lived with her. The wife did not accompany the husband. The money or property given by husband to the wife was a 'gift for the marriage' and was called Sadaq; the wife was wife called Sadeeqa (girl-friend). A common feature in both the forms of marriages was that the husband has to pay something for his marriage. In the Ball-marriage, he had to pay to the guardian of the girl, whereas in the Beena, he had to pay to the girl herself.
When Islam was promulgated and the Prophet prescribed definite form of marriage (Nikah), he retained the practice of payment of 'something' by the husband. But he completely changed the idea behind this practice by abolishing the evils in both the forms of marriages. He declared that in every, marriage the husband is under an obligation to pay 'something' to the wife and not to her guardian. Secondly, this payment to the wife is neither a 'gift for marriage' nor 'price of the girl'. In Islam, the Mahr is that amount or property which the husband has to pay to the wife as a mark of respect towards her. Marriage under Islam confers a respectable status to a woman, and it is necessary that something is given to her in order to acknowledge her dignity.
Definition of Dower
Mahr or dower is that sum of money or property which a Muslim wife is entitled to get from her husband on marriage as a token of respect towards herself.
Justice Mahmood in Abdul Kadir v. Salima, defines dower in the following words:
"Dower under the Muhammadan law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage and even where no dower is expressly fixed, the law confers the right of dower upon the wife as necessary effect of marriage".
Concept of Dower
The Islamic concept of dower is that it is that money or property which a husband must pay to the wife to acknowledge her dignity as his wife. Dower is neither a consideration (bride-price) in the marriage-contract not a gift to the wife to allow intercourse with her.
Mulla dower is consideration of the marriage contract. The Calcutta High Court has also observed that Muslim-marriage is like a contract of sale in which the wife is the property and dower is the rice for this property. These opinions are based on the argument that a Muslim marriage being a civil contract, there must be some consideration in this contract.
Classification of Dower
The basis of the classification of dower under Muslim law is : (a) whether it has been fixed by parties or is fixed by operation of law, and (b) whether the dower may be claimed by wife and time or only upon the dissolution f marriage. If the dower has not been specified by the parties at the time of marriage, it is called Un-specified or Proper Dower. Proper Dower is fixed by the court of law. But generally the amount is specified by the parties themselves at the time of marriage contract. Such dower is therefore, called Specified Dower. If the dower is specified, it may either by prompt or Deferred or partly Prompt and partly Deferred. A Prompt Dower may be demanded by the wife and time after the marriage. Deferred Dower can be demanded by her upon the dissolution of marriage. The chart given below gives a clear picture of the various kinds of dower.
Unspecified or Proper Dower (Mahri-i-Misl)
When the dower is unspecified in a marriage, the wife is entitled to get the Proper Dower which is fixed by courts of law. Dower is an integral part of every Muslim-marriage and it must be specified by the parties themselves either negligently or intentionally, a proper sum of pmoney or property is settled in their marriage by operation of law. In Hamia Bibi v. Zubaida Bibi, the Privy Council observed :
"Dower is an essential incident under Mussalman law to the status of marriage; to such an extent this is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles".
In Marina Jatoi v.Nuruddin Jatoi, a Sunni Muslim from Pakistan married a Christian lady in England, and their marriage was registered by the Registrar. No dower was settled in the marriage. The husband divorced the wife y pronouncing Talaq whereupon the wife claimed dower. Held : It was held by the Supreme Court of Pakistan that the marriage was a Muslim-marriage in which the husband was competent to pronounce Talaq. But at the same time the wife to was entitled to get the Proper Dower if it was not specified at the time of marriage. It is evident therefore, that dower is an obligation upon the husband and the extent of this obligation is determined by contract between husband and wife. But if there is no such contract of the marriage is performed on express condition that wife would not claim any dower, the wife is even then entitled to Proper Dower.
There is no definite amount which may be regarded as a Proper Dower in all the cases. The amount of Proper Dower varies from case to case. But the principles, on the basis of which the Proper Dower is ascertained, are definite. While fixing the Proper Dower, following principles of law are taken into consideration:
i) The personal qualifications of the wife,
ii) The social position of the wife's father,
iii) The custom or the tradition which prevails in the wife's paternal family in respect of the amount of dower. That is to say, the examples of dower which had been fixed in the earlier marriages either of her sisters or her father's sisters.
According to Hedaya, while considering the examples of dower in the wife's paternal family, regard must be paid to the age, beauty, fortune, understanding and the virtue of the wife so that the comparison is between the equals. It may be noted that while ascertaining the Proper Dower, the amount of dower fixed in the marriage of wife's mother or other girls of her mother's family is not considered. Similarly, the status and means of the husband is also not taken into account. In determining the amount of such dower, the custom which prevails in wife's paternal family is an important consideration, therefore, the Proper Dower is sometimes also called as Customary Dower.
Shia Law - Under Shia law, the Proper Dower must not exceed 500 Dirhams. That is to say, the maximum limit of a Proper Dower which may be fixed according to Shia law is 500 Dirhams.
It is said that 500 Dirhams was the amount of dower which was fixed in the marriage of Fatima, the Prophet's daughter. Since then, it has been a practice among the Shias to regard 500Dirhams as Mahr supported by tradition of the Prophet (Mahr-i-Sunnat). According to Shia law, therefore, the dower is of three kinds (i) Mahr-i-Misl, (ii)Mahr-i-Musamma and (iii) Mahr-i-Sunnat (500Dirhams).
Specified Dower (Mahr-i-Musamma)
The common practice is to settle the amount of dower at the time of the marriage. He sum of money or any property which is fixed as dower, is called Specified Dower (Mahr-i-Musamma). Dower may be specified before the marriage contract, at the time of the marriage, or even after the completion of the marriage. A dower may be settled either orally or may be specified in a written agreement (Mahr-nama); sometimes the amount is simply referred in the contract of marriage.
Enforcement of the Right to Dower
The right to dower is an inherent right of every Muslim wife. But, unless this right is effectively enforced, it is of no use to her. Under Muslim law, following means of enforcement of the right to dower are available to a wife (or widow) :-
1) Refusal of conjugal rights
If the marriage has not been consummated and the dower is prompt, the wife may refuse to give her company to the husband till he pays her Prompt Dower. In other words, before consummation f the marriage, the wife is entitled to deny cohabitation to the husband till he gives her prompt Dower on demand. It is t be noted that under Muslim law a husband has right to cohabit with his wife and she cannot refuse the same without any reasonable excuse. But non-payment of Prompt Dower before consummation, is a lawful justification for the wife of refuse cohabitation. A Muslim-wife can refuse to live with her husband and refuse to him the sexual intercourse so long as the Prompt Dower is not paid to her. In Nasra Begam v. Rizwan Ali, the Allahabad High Court held that the right to dower comes into existence before cohabitation and Prompt Dower may be demanded even before the cohabitation. The wife can refuse to live with her husband and admit him to sexual intercourse so long as Prompt Dower is not paid t her. The court held further that in a suit for restitution of conjugal rights by the husband, the non-payment of Prompt Dower before consummation is a complete defence and the suit must fail.
Where the wife is minor or insane, her guardian can refuse to allow the husband to take his wife with him till the prompt Dower has been paid. If the minor wife is already in the custody of her husband, such guardian can take her back on the ground of non-payment of Prompt Dower.
But, where the consummation has taken place even once, the wife's right to refuse consummation is lost. If the marriage has already been consummated, the husband's suit for restitution of conjugal right will not fail of the ground of non-payment of Prompt Dower. However, the court has a discretion, even in such a case, to pass a decree for restitution of conjugal rights subject to the condition of payment of Prompt Dower. In Anis Begum v. Muhammad Istafa Wali Khan, the facts were that in the marriage of Anis Begum and MD. Istafa, the Prompt Dower was Rs. 15,000. The husband and wife lived together for some time and a daughter was born to them. Later on, Anis Begum left the house f her husband and refused to come back till her Prompt Dower was satisfied. Md. Istafa, the husband, filed a suit for the restitution of conjugal rights. It was held by Sulaiman, C.J., that there was no absolute right in a husband to claim conjugal rights unconditionally. The courts have a discretion to make the decree of restitution of conjugal rights conditional on payment of wife's unpaid Prompt Dower even where the marriage has already been consummated. Accordingly, the decree for restitution of conjugal right was passed in favour of the husband subject to his payment of Rs. 15,000/-.
2) Enforcement of Dower as debt
Where the marriage has been consummated, the wife cannot enforce her claim by refusing conjugal rights to the husband. In such a situation the wife can recover her unpaid dower by maintaining an action in a court of law. We have already seen that an unpaid dower is an actionable claim of the wife, and she may realize it from husband in the same manner as a creditor recovers his loan. Therefore, when the husband is alive and the dower remains unpaid, the wife may enforce her claim by maintaining suit against the husband for recovery of the unpaid dower.
If the husband dies, the widow is entitled to recover the amount by filing a suit against the legal heirs of the deceased husband. But the legal heirs of the husband are not personally liable to pay the dower. The dower is a debt against the estate of the deceased husband which is inherited by heirs. As the legal heirs inherit the properties according to their respective shares, they are liable for payment of the dower only to the extent to which they are entitled to get the properties of the deceased. For example, if the unpaid dower is Rs.6,000 and a legal heir's share in the property is 1/6, then he is liable to pay only Rs. 1,000 to the widow.
3) Widow's Right to Retention
After the death of husband the most effective method of enforcement of dower is the exercise of 'right of retention'. A widow, whose dower remains unpaid, has a right to retain the properties of the husband till her dower debt is satisfied. This right is termed as the right of retention in lieu of unpaid dower and it is available. To a window, whether there is any agreement between the parties for this rights or not. Under this right if a wife has taken possession of her husband's properties lawfully (with free consent of the husband) in lieu of unpaid dower, then she is entitled to retain that possession after the death of her husband, until her dower is paid out of the properties retained by her. This right is exercised against the creditors, if any, of her deceased husband, and his legal heirs. The legal heirs of the husband cannot get possession (and benefit of the properties of the deceased until they make payments towards unpaid dower in proportion of their respective shares. Thus, this be said to be a coercive method of recovery of unpaid dower from husband's legal heirs.
UNIT - II
Apostasy means renouncing or giving up one's religion. Before 1939 if either of the party to a marriage renounced Islam, the marriage dissolved immediately whether the renunciation of Islam was by husband or by the wife. But after the commencement of the Dissolution of Muslim Marriages Act, 1939 law on this point has been modified by Section 4 of this Act. The present law relating to the effects of apostasy by husband or wife, may be summarized as under :
1) Apostasy by Husband: If a Muslim husband renounces Islam the marriage dissolves immediately. Section 4 of the Dissolution of Muslim Marriages Act, 1939, does not apply to apostasy by a husband. The result is that apostasy by the husband is still governed by the old law under which renunciation of Islam by the husband operates as immediate dissolution of the marriage.
Where a Muslim husband converts to another religion (say Christianity), his marriage is immediately dissolved and the wife ceases to be a Muslim wife of that husband. As such, the wife is not governed by Muslim law and is free to marry another person (immediately) without waiting for the Iddat period.
2) Apostasy by wife : If a Muslim wife renounces Islam, the marriage is not dissolved. In other words, the apostasy by a Muslim wife does not operate as immediate dissolution of the marriage. She continues to be a wife married under Muslim law. 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.
3) Exception : The provision given in (2) above, does not apply if the wife was not a Muslim by birth. That is to say, where the wife was a converted Muslim at the time of her marriage, and such converted Muslim wife renounces Islam and again embraces her original religion, then the marriage dissolves immediately. Thus, an apostasy by a converted Muslim wife results in the immediate dissolution of her marriage.
Note : Section 4 of the Act has no retrospective operation. Therefore, apostasy by a wife before 1939 dissolved the Marriage immediately i.e. as soon as she renounced Islam.
Who is a Muslim?
A Muslim is a person whose religion is Islam. The Arbic word 'Islam' means submission to the will of God. Legally, Islam is a religion in which it is believed that, (i) God (Allah) is one and only one, and (ii) Muhammad is his messenger (Rasool). The word 'Muslim' is derived from Island and signifies a person who adopts the faith of island. From the point of view of the court of law, the only requirement for being a Muslim is the belief in one God and the prophethood of Mudammad. This belief is the minimum requirement for recognising a person as a Muslim. If a person does not believe in this fundamental principal of Islam, the courts cannot treat him as Muslim. On the other hand, if he has faith in the above mentioned principle but does not follow the culture or practices of Islam, he is legally a Muslim. But, it is difficult to say whether a person is Muslim or not only on the basis of his faith in Islam because this is essentially a matter of feelings of heart. Therefore, the courts have laid down objective and ascertainable grounds for establishing whether a person is Muslim or not. According to courts, a person may be Muslim either by birth or through conversion.
1) Muslim by Birth :
A person whose both the parents were Muslims at the time of his birth is regarded to be a Muslim by birth. According to Hedaya, even if one of the parents of a person was a Muslim, he may be treated as Muslim. But in India, the courts have held that where only one of the parents of a child is Muslim the child is to be regarded as Muslim only when it is proved that he has been brought up as a Muslim. A child whose mother was a Muslim but father was a Hindu, was brought up as a Hindu. It was held by the court that such a child is Hindu although his mother was a Muslim. A person who is Muslim by birth continues to be a Muslim unless on attaining majority, he renounces Islam i.e. changes his religion of birth. Changing religion of birth and adopting another religion of one's own choice is called conversion. But the Muslim by birth must renounce Islam himself by a public declaration. No one has right to condemn a person with Muslim name as non-Muslim until and unless he or she renounces Islam as religion by his or her own pronouncement publicly.
2) Rules relating to conversion to Islam
Any person of any religion who is of sound mind and has attained the age of majority, can become the following of Islam after renouncing his original religion. By adopting Island an non-Muslim becomes a Muslim and the rules of Muslim personal law begin to apply on him immediately. A non-Muslim who adopts Islam after giving up his original religion is generally known as a 'converted Muslim'. Conversion of Islam may take place in two way : (i) A person may publicly declare that he has renounced his original religion and is now professing Island and believes that there is one God (Allah) and that Muhammad is His messenger. (ii) The second method of conversion is through ceremonies prescribed in the religion of Islam itself. The ceremonies are, however, simple. The non-Muslim would go to a mosque where the Imam may ask him to read a Kalema and give him a Muslim name, whereupon that person becomes a Muslim. In both the methods of conversion we find that the essential requirement is that the non-Muslim now professes or believes in the principles of Islam. But, as there is no objective test for one's sincerity in a faith, it is difficult to ascertain the genuineness of one's belief in Islam. It is just possible that a person converts to Islam not because he actually his faith in it but because of any other reason e.g. he wants certain benefits under Muslim law. For example, any non-Muslim may convert to Islam not because of his actual faith but only to get benefit of marrying with four wives which is not allowed under his personal law and is allowed under Muslim law. Therefore, in case where the conversion is only to illegal legalise an act under Muslim law which is illegal under any other law, the converted person cannot be regarded as Muslim even if he says that he is professing Islam. In Skinner v. Orde, the facts were that a Christian widow used to live and cohabit with a Christian male who had already a wife living. Cohabitation of person with any woman other than his wife is illegal. To legalise their cohabitation they converted to Islam and became Muslims because under Muslim law a person can have four wives at a time. It was held by the Privy Council that such a conversion was not bona fide because its purpose was to commit fraud upon Muslim law.
In Sarla Mudgal v. Union of India, a Hindu-Husband converted to Islam and thereafter contracted marriage with a Muslim girl without divorcing his first Hindu wife. The Supreme Court held that the conversion was mala fide and declared the second marriage void. The Supreme Court held further that such marriage amounts to bigamy punishable under section 494 of the Indian Penal Code. Giving reasons, the Apex Court observed:
"Since it is not the object of Islam nor is the intention of the enlightened Muslim Community that Hindu husbands should be encouraged to become Muslims merely for purpose of evading their own personal laws by marrying again, the Courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam, the right to marry again without having his existing marriage dissolved in accordance with law.
Introduction:
Law prescribes certain age-limit before which a person is said to be a minor. A minor has no capacity to understand the legal consequences of his or her activities. The legal position of a person who has not attained the age so prescribed, is called minority. The legal position of a person who has attained that age, is called the age of majority. Under Muslim law, the age of majority is regulated by two systems : (1) the classical Muslim law and (2) the statutory law. Under the classical Muslim law, a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is fifteen years. But, as already discussed, fifteen years is the age of majority only for marriage, dower and divorce. Thus, for purposes of marriage, dower and divorce, a Muslim who has not attained the age of puberty is called a minor. Statutory rules which regulate the age of majority of the Muslims, are given below :
a) For purposes other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act, 1875. Under this Act the age of majority is eighteen years. A Muslim who has not attained the age of eighteen years, is a minor in respect of all matters except marriage, dower and divorce.
b) Where a Muslim is within the supervision of a guardian appointed by court of law, or is a Muslim whose property has been under the supervision of Court of Wards, the age of majority for such Muslim is twenty-one years. Therefore, except in matters of marriage, dower and divorce.
c) For purposes of marriage, dower and divorce, a Muslim becomes adult after attaining the age of puberty (fifteen years). But for filing a suit in a court of law, the minimum age is eighteen years (not fifteen years) even if the suit may relate to marriage, dower and divorce. The result is that a Muslim, under the age of eighteen years is minor and cannot file any suit relating to his or her marriage, dower and divorce without the 'next friend'.
Classification of Guardians
Muslim law recognizes following kinds of guardians:
1) Natural or legal guardian,
2) Testamentary guardian,
3) Guardian appointed by Court or statutory guardian, and
4) Defacto guardian.
Natural Guardians:
Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognized as the natural guardian of his child under all the schools of Muslim law. The father's right to act as guardian of the minor is an independent right, and is given to him under the substantive law of Islam. Natural guardian is also called Dejure or the legal guardian. As stated above, only father is the natural or legal guardian of his child. But in the absence of father, the father's executor may also act as legal guardian, executor is a person who is appointed by father or grandfather to act as guardian of his minor child on his minor child on his behalf. In the absence of father or his executor, paternal grandfather or paternal grandfather's executor acts as legal guardian. Thus, the natural (or legal) guardians of a minor, in order of priority, are as under:
i) Father,
ii) Executor of father,
iii) Paternal Grandfather,
iv) Executor of paternal-grandfather.
Under Muslim law, in the absence of any of the above mentioned persons, no body else is recognized as the natural or legal guardian of a minor.
Shia Law : According to Shia law, in the absence of father only paternal grandfather may act as natural or legal guardian. Father's father is known as peternal-grandfather. Thus, in presence of paternal grandfather, the father's executor has no right to act as legal guardian of a child.
Testamentary Guardians :
Testamentary Guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appointment of a testamentary guardian but, as is obvious, such a testamentary guardian must be competent to act as guardian. That is to say, he should be adult and sane person. A non-Muslim and a female may also be appointed as a testamentary guardian.
Shia law : A non-Muslim cannot be appointed as testamentary guardian.
Guardians Appointed by Court :
In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the protection of the minor's person or property or for both. The appointment of guardians by court is governed by the Guardians and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. In India, the courts appoint the guardians for minor's person or property under this Statute. Therefore, such guardians are also called Statutory Guardians. It may be noted that no provision has been made under this Act for the guardianship for marriage. The result is that except the guardians for marriage, the guardians for a Muslim minor's person or property may be appointed by a court of law. In such cases, there may be a conflict between Muslim personal law and the Guardians and Wards Act. In cases of such a conflict, provisions of the Guardians the Wards Act will prevail over the provisions of Muslim personal law. Court here means court of the District Judge.
The courts are empowered to appoint the guardians for a minor upon an application. Such application may be made by any of the following persons:
i) Any person desirous of being or claiming to be the guardian of the minor, or
ii) Any relative or friend of the minor, or
iii) The Collector of the district in which the minor generally resides.
If the court is satisfied that it is for the welfare of the minor that an order should be made, then it may make an order
a) Appointing a guardian of minor's person or property, or both, or
b) Declaring a person to be such a guardian.
De-facto Guardians
A de facto guardian is a person who is neither a legal guardian nor a testamentary or statutory guardian, but has himself assumed the custody and care of a child. According to Tyabji a de facto guardian means an unauthorized person who, as a matter of facto (defacto), has custody of the person of a minor or of his property. It may be said that a defacto guardians is a person having no authority for the guardianship but under the circumstances has taken the responsibility to act as the guardian of a minor.
POWERS AND FUNCTIONS OF GUARDIANS
The powers and functions of the guardians in respects of minor's property and for marriage are different. Therefore, the powers and functions of the guardians are discussed in the following lines separately in respect of (i) the person of a minor, (ii) the property of a minor, and (iii) the marriage of a minor.
Guardianship of the 'Person'
Guardianship of the minor's person means an overall supervision of the minor's personality. It means care and welfare of the child including the liability to maintain it. It is more than simply the custody of the child upto a certain age. Under Muslim law, 'guardianship of the minor's person' is called Willayat-e-nafs and the 'custody of the minor' is called Hizanat. They are sometimes taken to mean the same thing. But, under Muslim law, there two aspects of the guardianship are different and are governed by district rules. The guardianship of the child's person means overall supervision of the child during its minority. Father (or his executor) or in his absence, the paternal grandfather, being the natural guardian, are incharge of the minor's person. One the other hand 'custody of the child' (Hizanat) simply means a physical possession (custody) of the child upto a certain age. Although mother is not natural guardian under Muslim law, but she has a right to the custody of her child till the child attains a specific age. But, father or the paternal grandfather has a control over the person of the minor during the whole period of minority.
Mother's Right of Custody (Hizanat) of the Child
Under all the schools of Muslim law, the general rule is that mother is entitled to the custody (Hizanat) or the physical possession of her child upto a certain age. This rule is based on the presumption that on account of her peculiar relationship with the child, she is obviously the best person to give that natural love and affection which a child requires during its infancy including its dependence for feeding. Nature itself has given to the mother the custody of her child's embryo even before it comes in the worldly existence.
Where the child is a son, the mother is entitled to his custody till he attains the age of seven years. Where the child is a daughter the mother's right to the custody continues till the daughter attains puberty (fifteen years).
It may be noted that mother is entitled to the custody of her child (under the age of seven years or below puberty, as the case may be) even if she has been divorced by the husband or has become widow provided she remains unmarried.
In S. Rehan Fatima v. Syed Bdinuddin Perviz, the dispute was regarding the custody of a child aged three years six months. The Andhra Pradesh High Court held that under Muslim law, the mother's right to the custody of her child continues even after the dissolution of her marriage by Talaq. The court observed further that in absence of any other alternate arrangement, under the Guardians and Wards Act too her right to the custody of child continues even after the divorce.
Father's Right of Custody (Hizanat) of a child
Father is entitled to the custody at the following two stages of the child's minority:-
a) In respect of a minor boy under the age of seven years, and a girl under puberty, the father is entitled to the custody of the child only in the absence (or disqualification) of mother and other female relations of the child.
b) In respect of a boy over the age of seven years and an unmarried girl over the age of puberty (fifteen years) the father is entitled to the custody of the child as a natural guardian till the child becomes adult, i.e. attains the age of eighteen years.
The minority of a child for purposes of its custody by father is divided in two stages. The first stage of minority is upto the age of seven years in the case of male child, and upto puberty where the child is female. The second stage begins after the age of seven years till the age of eighteen years in case of a male, and after puberty upto eighteen years in the case of a female child, provided she remains unmarried. During the first stage, the custody primarily belongs to the mother and the during the second stage it belongs to the father. Thus, father is entitled to the custody of a minor child in two circumstances:
First, where the child is within the age limit, in which mother or female relations are legally authorized to have the custody, but they are either disqualified or not available.
Second, after the age limit beyond which the mother or other female relations have no right to the custody of a child.
Guardianship for marriage
Marriage of a boy or a girl under the age of puberty, is not valid unless it is contracted by a marriage-guardian. A 'marriage-guardian' is a person who, under Muslim law, is authorized to contract the marriage of a minor. This authority is termed as 'guardianship for marriage' (Wilayat-e-Nikah or Wilayat-e-Jadar). Guardianship for marriage is different type of guardianship and must be distinguished from the guardianship of the person or the guardianship of the property. A person appointed as guardian of the person or the property of a minor does not become a guardian also for contracting the marriage. The provisions of the Guardians and Wards Act, 1890, apply only to the guardianship for the marriage. Therefore, the guardianship for the marriage is governed only by the pure Muslim law. A marriage-guardian is required to contract only a minor's marriage, but also that of an insane boy or girl of any age.
Who are the Marriage-Guardians?
The following persons, in the order of priority, are entitled to act as guardians for the marriage of a minor :
1) Father;
2) Paternal grand-father, how high soever;
3) Brother or other male members of the father's family, one after the other in the line of agnatic heirs;
4) Mother;
5) Maternal relations, such as maternal uncle (Mama) or maternal aunt (Mausi) and other maternal relations within prohibited degrees, and in absence of the maternal kindreds,
6) The Kazi or the Court.
Shia Law - According to Shia law, the only guardians for the marriage are (1) father and (2) the paternal grandfather.
Guardianship of the property
Legal guardians of the minor's property
Under Muslim personal law, the following persons, in the order of preference, are recognized as the legal guardians of a minor's property.
1) Father;
2) Executor appointed by father under a will;
3) Paternal grandfather;
4) Executor appointed by paternal grandfather under a will.
The guardianship of a minor's property belongs primarily to the father who is a natural guardian. After his death it belongs to the executor appointed by the father under a will. Such an executor, under the authority of the father's will, acts as a legal guardian of the minor's property.
Powers of the Legal Guardians:-
The guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with his own, and subject to the provisions of the Guardians and Wards Act, 1890, he may do all reasonable and proper acts for the realization, protection or benefit of the minor's property. The powers of a legal guardian to deal with the properties of a minor depend upon the nature of the property i.e. whether the property is movable or immovable. It also depends upon the nature of the transfer of property by such guardian i.e. whether it is a sale, mortgage or lease etc. It may be noted that under Muslim law, the guardian's power to transfer the movable property of the minor is wider. In respect of an immovable property, the legal guardian has a very limited right of transfer.
Transfer of Immovable Property by Legal Guardians
Keeping in view the Muslim personal law and also the provisions of the Guardians and Wards Act, 1890, the courts in India have laid down specific rules relating to guardian's powers over the minor's immovable properties, are given below.
Sale - A legal guardian has no authority to sell the immovable properties of his ward. But, in the following exceptional circumstances the legal guardian is authorized to sell the immovable properties of the minor.
1) Whereby sale, the guardian can get double the value of the property.
2) Where the sale is absolutely necessary for the maintenance of the minor i.e. there is neither any movable property nor any other alternative for the livelihood of the minor.
3) Where the sale is necessary for the satisfaction of a debt incurred by the deceased from whom the minor inherited the property.
4) Where there are some general provisions in the will of the testator such as the payment of legacies, which cannot be complied with without sale of the property.
5) Where the property ceases to be a beneficial property, i.e. its expenses such as taxes or its maintenance charges, exceed the income.
6) Where the property is in the hands of an usurper (who has wrongfully assumed its possession) and the guardian has a reasonable belief that the property cannot be recovered from such person.
7) Where the property is decaying or is being destroyed, or there is an imminent danger of its being lost.
Mortgage - The legal guardian's right to mortgage the minor's properties is the same as that for a sale. A guardian is not authorized to mortgage his ward's properties except in the interest of the minor or in the interest of the property itself.
Lease - The guardian's power to grant lease of the minor's property is also subject to condition that it must be for the advantage of the minor or is otherwise urgently required. The legal guardian is, therefore, authorized to lease out the property only if it is for the benefit of the ward. However, it is submitted, the guardian's power to lease out the minor's property does not extend beyond ,the minority of the ward, therefore, the lease must be for a term not exceeding the minority.
Maintenance means provisions for fooding, lodging and other essential requirements for the livelihood. 'Duty to maintain' is an obligation under which a person is legally bound to provide fooding, lodging, clothings etc. to another person. In the pre-Islamic Arabia, there was no obligation on the part of the parents to maintain their children. Similarly, the children were also not bound to maintain their aged and infirm parents. After the advent of Islam the Prophet declared that birth of a child imposes an obligation on the father to maintain his children so long as they are unable to support themselves. Maintenance of old and infirm parents by the children is also made obligatory in Islam. As regards duty to maintain, two significant principles of Islamic concept of maintenance must be taken into account. First, Islam permits only those persons (except wife) to be maintained by others who are bound to depend on others, either because of immaturity (or old age) or because they have no means to support themselves. A person is entitled to be maintained by others only in the extreme situation when there is no alternative except begging and depending on alms (begging) for one's livelihood. It is a corresponding duty of every able-bodied and well-to-do person to provide other so that they may not be compelled to live by begging. Secondly, the obligation to maintain, and to bear the burden of fooding and lodging etc., of others, is reasonably restricted in Islam. The Islamic principle is that a person should not be allowed to suffer any monetary loss in maintaining others. In other words, maintenance of a person, except that of a wife, is to be provided out of the properties of the person who is being maintained, whether that person be infant or adult.
Persons Entitled to Maintenance
Under Muslim law, a person may have the right to be maintained by the other on the basis of : (a) the marriage, and (b) the blood-relationship. Wife is entitled to be maintained by her husband because of marriage and her right is absolute; the husband is bound to maintain the wife whether she is necessitous or not. The second category of persons entitled to maintenance, are the blood-relations which include young children and necessitous parents and other relations within the prohibited degree. In this manner, under Muslim law the following persons are entitled to maintenance :
1) Wife,
2) Young children,
3) The necessitous parents, and
4) Other necessitous relations within the prohibited degrees.
Maintenance of the wife
Under Muslim law, the wife's right to be maintained by her husband is absolute. The right arises out of her status. It is legal obligation of every husband to maintain his wife even if the wife may have her own means to support herself and even if the husband has no means to provide her maintenance. A Muslim wife's right to be maintained by her husband gets priority over the right of maintenance of all other persons. It is interesting to note that in maintenance, the wife is preferred even over the young children because wife is considered to be the source or root (asl) and a child is the offspring or a branch (fara). Wife's right of maintenance is regulated by Muslim personal law and also by the statutory provisions of the Criminal Procedure Code, 1973 (Sections 125-128).
Conditions for the Wife's Right of Maintenance
It is implied in every contract of marriage that husband would maintain his wife throughout her life. Wife's right to claim maintenance from her husband is an independent right. This right does not depend on any separate agreement for maintenance. The husband is bound to maintain her even if there is no agreement. The wife's right exists whether she is Muslim or a non-Muslim, rich or poor, of sound health or invalid, young or old.
However, the wife's right to maintenance is subject to following conditions:
1) Under Muslim law, the wife is entitled to maintenance from her husband only where the marriage is valid (sahih). If the marriage is void (batil) or irregular (fasid), the husband is under no obligation to maintain the wife.
2) The husband's duty to maintain commences only from the date when the wife attains puberty (fifteen years) and not before that. Where a wife is too young for sexual intercourse and lives with her parents, she has no right to claim maintenance.
3) Although a Muslim wife's right to be maintained by her husband is an absolute right yet, she must be faithful and obedient to him in respect of all the matrimonial affairs. In other words, the right to be maintained by husband is subject to wife's corresponding obligation to be faithful and obedient to her husband. Section 125(4) of the Criminal Procedure Code, 1973 provides that no wife shall be entitled to receive any maintenance from her husband if she is living in adultery. If the wife herself does not discharge her own matrimonial duties, she has no right to claim maintenance from her husband. For example, if she does not allow her society to the husband and refuses cohabitation without any excuse, she is not entitled to maintenance. Similarly, if she refuses to obey the reasonable orders of the husband or lives separately.
It is significant to note that a Muslim wife's right to maintenance is determined not only under her personal law but also under the Criminal Procedure Code, claim of maintenance are to be examined not only under Muslim personal law but also under the Criminal Procedure Code. Claim of a wife for the maintenance under this Act is an independent statutory right and is not effected 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. But at the same time a Muslim husband has legal right to contract a second marriage. As such, if a wife lives separately only on the ground of husband's second marriage, the husband too is entitled to file a suit for restitution of conjugal rights under his personal law. Apparently, there appears to be a conflict between the Muslim personal law and the provisions of the Criminal Procedure Code on the point of wife's claim of maintenance whose husband has contracted a second marriage.
In Begum Subanu alias Saira Banu v. A.M. Abdul 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. In this case, the husband married a second wife whereupon the first wife left the house and lived separately. Living separately, she claimed maintenance under Section 125 of the Criminal Procedure Code 1973. Elaborating the provisions of the Explanation of the Section 125(3) of the Criminal Procedure Code, the Supreme Court held that from the point of view of a neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her husband's matrimonial life is another wife permitted under (personal) law to be married and not a mistress. The court observed that the 'Explanation has to be construed from the point of view of the injury to matrimonial rights of the wife and not with respect to the husband's right to marry again.
Inter-relationship between Personal Law and Cr.P.C
As regards the inter-relationship of personal law and the Criminal Procedure Code, it is submitted that the legal remedy available to a wife under Section 125 of the Criminal Procedure Code is meant only to provide, for the time being, a quick and immediate relief to a needy and aggrieved wife without going into the question of the entitlement under her personal law. Ultimately the question is to be settled by civil court under personal law.
Maintenance of the widow
The wife's right to claim maintenance from husband ceases as soon as her husband dies. After the husband's death the widow is not entitled to maintenance even during her period of Iddat. Husband's liability to maintain his wife is his personal liability which comes to an end upon his death. She is neither entitled to be maintained by relatives of her husband, nor out of her husband's properties. Section 125, does not include 'widow' in the term 'wife' therefore, a widow has no right to claim maintenance also under the Criminal Procedure Code, 1973. In Aga Mohammad Jaffer v. Koolsoom Bibi, the Privy Council observed that under Muslim personal law, a widow is not entitled to get maintenance out of the properties of her deceased husband even during her Iddat.
Maintenance of the Children
Father is the legal guardian of his children. Therefore, it is the father who is primarily responsible for the maintenance of his male and female children. Under Muslim law, a father is under an obligation to maintain his son till the son attains puberty. Under the Criminal Procedure Code, 1973, a son is entitled to claim maintenance upto the age of eighteen years. But the father is not bound to maintain his adult son unless such a son is infirm or disabled and is unable t maintain himself. Moreover if a minor son does not live with the father without any reasonable justification, the father is under no obligation to maintain him. A minor son cannot claim maintenance from his father for a separate living without any just cause.
Under Muslim law, the father is liable to maintain his daughter till she gets married. But, an unmarried daughter who does not live with her father, has no right to claim maintenance unless the circumstances justify her separate living. The father is liable to provide maintenance also to his widowed or divorced daughter if she is unable to maintain himself.
However, if the father has no means to provide maintenance to his children, the mother is liable to maintain them if she is in easy circumstances. Where the mother too is unable to maintain them, the responsibility is shifted to the paternal grandfather.
UNIT - III
Under Muslim personal law as applied in India, 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 period or, if pregnant, till delivery of the child. The former husband's liability extends only up to the period of Iddat ; not beyond that. For the claim of maintenance under Muslim personal law the wife has to file a civil suit against her former husband.
Where the husband pronounces Talaq in the absence of wife, she is required to observe the Iddat from the date on which she gets the notice of her divorce. Accordingly, where divorce is pronounced in her absence, the wife is entitled to be maintained from the date on which she came to know of her divorce. Thus, where a husband served a notice of divorce on his wife, the wife was entitled to maintenance from the date on which she received the notice, although the notice mentioned an earlier date as the date of pronouncement of Talaq. In Mohammed Ali v. Fareedunnissa Begum, the marriage was contracted in 1950, and a son was born to the couple, but, thereafter, the husband neglected the wife and refused to maintain her. The trial court passed a decree in her favour. The wife was informed by written notices from the husband that she had been divorced by him on the night of their wedding. The first notice was served on 12.5.1960. The husband's plea was that as the wife has been divorced on the very first night, he was under no obligation to maintain her. It was held by the court that when a Talaq is pronounced through notice, the wife is required to observe "Iddat of divorce" from the date on which the notice is served on her. The wife was therefore, entitled to maintenance during the period of Iddat which began from the date of the first notice i.e. 12.5.1960. The court further observed that the wife was not entitled to maintenance form the earlier date of divorce i.e. 1950. Under Muslim law a divorced wife cannot claim her pas maintenance unless the claim is for the arrears of maintenance under any specific agreement.
Muslim law does not prescribe any maximum or minimum amount to be given during Iddat of the divorced wife. The court is competent to fix any amount keeping in view the socio-economic status of the husband and wife.
With such copious a law of divorce, there was probably no place for any notion of matrimonial causes in Muslim law. In Muslim law, the term "matrimonial cause" in the sense in which it is known to English law, did not exist. This seems to be reason that his Muslim law-givers and the ext book writers discuss the subject of this Chapter under the caption, "Divorce" or "Dissolution of Marriage".
Unlike Hindu law, death dissolves a marriage under Muslim law. But on the death of her husband, a Muslim wife cannot re-marry before the completion of the period of iddat.
The relief's available are:
1) Dissolution of marriage
2) Restitution of conjugal rights and
3) Declaratory suits and annulment of marriage.
1) Dissolution of Marriage.
In Muslim law, dissolution of marriage takes place either on the death of either party to the marriage, or the instance of one of the parties, or both the parties.
In Muslim law, divorce may be studied under the following three heads:
a) Unilateral divorce;
i) At the instance of the husband
ii) At the instance of the wife
b) Divorce by mutual consent
c) Judicial divorce.
In the former two cases, no decree of court or intervention of any other person, body, or authority is required. Divorce in both these cases is essentially the private act of either one party or both the parties.
Unilateral Divorce
At the instance of the husband: Talak
When the husband exercises the right of pronouncing divorce on his wife, technically, this is known as talak. The most remarkable feature of the Muslim law of talak is that all the schools of the Sunnis and the Shias recognize it; they differ only in some details. The absolute power of a Muslim husband of divorcing his wife unilaterally, without any cause, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to t he court, and even in the absence of the wife, is recognized in modern India.
Express Divorce and its Forms:-
When clear and unequivocal words, such as "I have divorced thee" are uttered, the divorce is express. The express talak falls into two categories:
i) Talak-ul-sunna
ii) Talak-ul-badai or talak-ul-bidaat or talak-ul-bida
The talak-ul-sunna has two forms:
a) ashan
b) hasan
The former is most approved and the latter is approved.
The talak-ul-badai also has two forms:
a) the triple divorce or three declaration at one time
b) One irrevocable declaration.
The basic distinction between the talak-ul-sunna, and talak-ul-badai, is, that in the former case the pronouncement of divorce is revocable while in the latter, it is irrevocable. This seems to be the reason why the talak-ul-suuna is considered to be approved divorce, and the telak-ul-badai as unapproved.
Ashan Talak:- the ashan talak consists of a single pronouncement of divorce made in a period of tuhr, or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period of iddat. The requirement that pronouncement of talak should be made during a period of tuhr applies only to oral divorce; it does not apply to talak in writing.
The advantage of this form is that divorce can be revoked at any time before the completion of the period of idda; that hasty, thoughtless, divorces can be prevented, the revocation may be affected expressly or impliedly. Thus, if before the completion of the period of idda, the husband resumes cohabitation with his wife, or when he says to her, "I have retained thee", the divorce is revoked. Resumption of sexual intercourse before the completion of idda also results in the revocation of divorce.
Hasan talak: - in the hasna talak, the husband is required to pronounce the formula of talak three times during three successive tuhr. If the wife has crossed the age of menstruation, then the pronouncement of talak may be made after the interval of a moth or thirty days between the successive pronouncements. When the last pronouncement is made, the talak becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during that period of tuhr. For instance, W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talak on her. This is first pronouncement. Thereafter, H resumes sexual intercourse with W, or revokes the pronouncement by express words. Then, again, when the wife gets the next period of purity, and before he indulges in sexual intercourse, H makes a pronouncement of divorce on her. This is second pronouncement. H again revokes it. Again, when the wife enters her third period of purity and before and any intercourse takes place, H makes pronouncements of divorce. This is third pronouncement. The moment H utters the third pronouncement, the marriage stands dissolved irrevocably, irrespective of idda.
Talak-ul-bidda:-
The Talak-ul-bidda came into vogue during the second century of Islam. Ameer Ali depicts the historical background thus:
The talak-ul-bidda has two forms;
i) the triple declaration of talak made in a period of purity, either in one sentence, such as, I divorce thee triply or thrice" or in there sentences, such as "I divorce thee, I divorce thee, I divorce thee", the moment pronouncement is made, marriage stands dissolved irrevocably.
ii) The other form of talak-ul-bidda constitutes a single irrevocable pronouncement of divorce made in a period of purity or even otherwise. This also results in the irrevocable dissolution of marriage. The triple pronouncement is not an essential part of the talak-ul-bidda; if the intention is clear, the divorce will take place, thus, if a husband says to his wife, "I had divorced thee in talak-ul-bidds form", that is enough, and an irrevocable divorce results.
Implied and Contingent Divorce
Sometimes the words used in the pronouncement of talak are not clear, for instance, when a husband says to his wife, " I give up all relations and would have no connection of any sort with you or, I have released thee from being my wife"; in such cases divorce will be implied if the intention to divorce is roved.
When a husband pronounces divorce so as to take effect on the happening of a future event, the talak is known a contingent, and it becomes effective on the happening of the event.
In Bashchoo v. Bismillah, that husband gave an undertaking in writhing that he would pay her the amount of maintenance within the specified period, and that, if he defaulted in making the payment, it would operate as talak. On the husband's failure to pay the amount within the stipulated period, the court held that the writing took effect as a valid talak. But even among the Sunnis the repudiation cannot be qualified with an option. Thus, if a husband says to his wife, "I have divorced thee but I reserve to myself an option for three days". The talak will be valid, but option will be void.
Delegation of power to divorce:-
Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked.
An agreement made, whether before or after marriage, by which it is provided that the wife should be at liberty to divorce herself in specified contingencies is valid, if the conditions are of a reasonable nature and are not opposed to the policy of the Mohammedan law. When such an agreement is made, the wife may, at any time after the happening of any of the contingencies, repudiate herself in the exercise of the power, and a divorce will then take effect to the same extent as if a talak has bee pronounced by the husband.
The Constructive Divorce:-
Two forms of constructive divorce in Muslims law are
1) Ila:-
Divorce by Ila is a species of constructive divorce which is effected by abstinence from sexual intercourse for the period of not less than four months pursuant to a vow. According to Shafei law, the fulfillment of such a vow does not per se operate as divorce, but gives the wife the right to demand a judicial divorce.
2) Zihar:-
Zihar is a form of inchoate divorce. If the husband compares his wife to his mother or any other female within prohibited degrees the wife has a right to apply for a judicial divorce. A case of Zihar are unknown in India and in has been doubted by text book writers whether the wife's right under zihar would be enforced by Courts in India. But the law of zihar has now received statutory recognition in sec. 2 of the Shariat Act, 1937.
Formalities of Talak:-
Talak may be oral or writing
1) Oral Talak:-
Thus, the words like these, "Thou art divorced", or "I have divorced thee", are enough, and will result in the dissolution of marriage. When the words clearly denote talak, the intention of the husband is inconsequential. Thus, when a man says to his wife, "I have divorced you, either in her presence, or in her absence, it means that the man has divorced his wife.
In the words used in the pronouncement of talak are not clear or are ambiguous, then the proof of intention is necessary. Thus, if works like, "Thou art my cousin, my uncle's daughter, if thou goest", or, "I give up all relations and will have no connection of any sort with you" are used, the proof of intention to divorce is necessary. It is not necessary that the talak should be pronounced in the presence of the wife; nor is a notice of divorce required.
2) Talak in writing:-
As has been stated earlier, the Sunnis recognize written talak which may be in two forms : manifest talak, and unusual talak. When the talaknama the writing of talak is properly written so as to be legible and clearly indicating to whom and by whom it is addressed, it is the customary form. This is known as manifest talak. It may be executed in the presence of the kazi, the wife's father, or any other relations or witnesses. If the talaknama is not subscribed in the aforesaid manner, it is called unusual, and the intention to divorce has to be proved.
By Mutual Consent
1) A marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. Dissolution of marriage by agreement may take the form of khula or mubarat.
2) "A divorce by Khoola is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release form the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mahr(dower) and other rights, or make any other agreement for the benefit of the husband". Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.
A mubara'at divorce like khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called khula. When the aversion is mutual, a both the sides desire a separation, the transaction is called mubara'at. The offer in a mubara'at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a talak-i-bain as in the case of khula.
The Muslim law- givers also provided for the dissolution of marriage by a decree of the court. It is called turkaf, literally, separation.
When he neglects to perform the duties which the law imposes on him as obligations resulting form marriage, or when he fails to fulfill the engagements voluntarily entered into at the time of the matrimonial contract, she has the right of preferring a complaint before the Kazi or judge and demanding a divorce from the court. Whatever are the Koranic injection and the traditions, what has happened in India may be summed up in the words of Krishana Iyer, J., "Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet of the Holy Koran laid down and the same misconception vitiates the law dealing with the wife's right to divorce".
Before the Dissolution of Muslim Marriage Act, 1939, Indian Courts granted a decree of divorce to the wife only on two grounds lian (mutual imprecation) and apostasy.
After Dissolution of Muslim Marriage Act, 1939, contains certain fault grounds. Theory of divorce has been discovered in Muslim law. We would discuss these grounds under the two heads;
1) Fault grounds of divorce
2) Breakdown of marriage as a ground of divorce.
1) Fault Grounds:-
The wife may obtain a decree of divorce on anyone of the grounds specified in the Act by filling a suit in the lowest civil Court;
i) The whereabouts of the husband are not known for a periods of four years,
ii) The failure of the husband to provide maintenance to the wife for a period of two years of more,
iii) The husband being sentenced to a term of imprisonment for a period of seven years or more,
iv) The husband's failure without reasonable cause to perform marital obligations,
v) Impotency, leprosy, and venereal disease of the husband,
vi) Insanity of the husband,
vii) The repudiation of marriage by the wife,
viii) Cruelty of the husband.
Four years absence of the husband:-
If the whereabouts of the husband are not known to the wife for a period of four years or more, the wife is entitled to a decree of divorce. But such a decree will not take effect for a period of six months from the date of such decree, and if the husband appears, either in person or though an agent within that periods and satisfies the court that he is prepared to perform his conjugal duties; the court must set aside the decree.
Two years' failure to provide maintenance:-
If the husband has failed or neglected to provide maintenance to the wife for a period of two years or more, the wife is entitled to a decree of divorce. The inability of the husband to maintain his wife, or the failure to maintain her is on account of his poverty, failing health, loss of work, imprisonment or any other cause whatever, is no basis for refusing the wife's decree for divorce, unless her conduct has been such as to disentitle her to maintenance under Muslim law. Where the wife is living separate form her husband on account of his failure to pay her prompt dower, and the husband does not provide her maintenance for a period of two years, the wife is entitled to a decree of divorce. Similarly, a wife, who is living separate from her husband on account of his taking a second wife and to whom no maintenance has been provided by the husband for a period of two years or more is entitled to a decree of divorce, it is no defense that the wife is rich.
Seven years' imprisonment of the husband:-
The wife is entitled to a decree of divorce if the husband has been sentenced to imprisonment for a term of seven years or more, but a decree can be passed on the this ground only if the sentence has become final.
Failure to perform marital obligations:-
On the failure of the husband to perform marital obligations without any reasonable cause for a period of three years or more, the wife is entitled to obtain a decree for the dissolution of her marriage. The failure, it is submitted, relates to the basic matrimonial obligation.
Impotence of the husband:-
Now the wife is entitled to a decree of divorce , if the husband was impotent at the time of marriage and continued to be so till the filing of the suit; but, before passing a decree in the suit, the court is bound, on the application of the husband, but not otherwise, to make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent and if the husband so satisfies the court within that period, no decree can be made in the suit.
Insanity, leprosy and venereal disease:-
The Act does not spell out whether the provision relates to post-marriage or pre-marriage insanity. It also does not specify that insanity must be continuous and incurable. It is possible to take the view that insanity under the Act has the same meaning as was given to it before the coming into force of the Act. Similarly, leprosy is a ground for a decree of divorce. Leprosy is without qualifications. Even the duration of leprosy is not stated. It would, therefore, appear that it may be of any duration, and may be of any type; it need not be virulent or incurable. The wife can also file a suit for divorce on the ground that the husband is suffering form virulent venereal disease, it would appear that under the Act, the venereal disease, it would appear that under that Act, the venereal disease need not be in a communicable form, that the only requirement is threat the disease should be in a virulent form. Even if the disease has been contracted from the wife, the wife will be entitled to a divorce.
Repudiation of marriage by the wife:-
The wife is entitled to file a suit for the dissolution of her marriage on the grounds that she was given in marriage by her father or grandfather or any other guardian, before she attained the age fifteen that the marriage had not bee consummated, and that she had repudiated the marriage before she attained the age of eighteen.
Cruelty:-
The wife is entitled to a decree of divorce if her husband treats her with cruelty, that is to say:
1) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment.
In Siddique v. Amina, it was established that husband had administered his wife some drug causing miscarriage. He also physically tortured her. It was a clear case of cruelty. It is submitted that this definition will include all cases to physical and mental cruelty of the modern matrimonial law.
2) The husband associated with women of evil repute or leads an infamous life.
3) The husband attempts to force her to lead and immoral life.
4) The husband disposes of her property or prevents her form exercising her legal rights over it. in Zubaida v. Sarda Shaha, the Lahore High Court opined that the clause was not happily worded. Abdul Rahman, J. observed : "It is not easy to say whether it was only meant to convey a person who had bee in the habit of selling his wife's property for own selfish ends or also converts the single act of a person who sells or assigns his wife's property of any value, however insignificant, and not for his own advantage, but, say, for the purpose of procuring medicine for his ailing wife when he did not have the means to buy it himself out of his own money.
5) The husband obstructs her in the observances of her religious profession or practice. It is submitted that the clause will apply even when the wife is a non-Muslim. This clause came in for interpretation before the Kerala High Court. Krishna Iyer J. said that the religious practices, the obstruction of which amounts to statutory cruelty under Section 2(vii) (e). Dissolution of Muslim Marriage Act are " those observances, the performance of which makes a man or woman Muslim and departure from which deserves to be castigated as un-Islamic-not deviation from every inconsequential though orthodox, ritual or mode of life.
6) The Koran enjoins that a man should take more than one wife only when he can treat them all equitably, otherwise, he should be satisfied with one. Thus, it is submitted, that if a husband fails to treat is wives equitably, and then anyone of them or all of them may sue for divorce under this clause. The inequitable treatment may be gross or mild. Umatul-Hafiz v. Talib Husain, is a case which is clearly covered under this clause. A husband went abroad leaving behind two wives in India. He provided maintenances for one wife from there, but ignored the other. The court held that the other wife was entitled to divorce under this clause.
Lian or imprecation:-
In the Muslim law of modern India, the wife is entitled to sue for a dissolution of marriage on the ground that the husband has falsely charged her with adultery. It should be noted that the charge of adultery by itself, does not lead to the dissolution of marriage; a decree of the court dissolving the marriage is necessary. The court will pass a decree if the charge of adultery by itself, does not lead to the dissolution of marriage; a decree of the court dissolving the marriage is necessary. The court will pass a decree if the charge of adultery is false; no decree will be passed if the charge is proved to be true.
Apostasy:-
Renunciation of Islam or conversion of a Muslim to some other religion, is called apostasy from Islam. Apostasy may be express or implied. When a Muslim says, "I renounce Islam", or "I do not believe in God and the Prophet Muhammad", the apostasy is express, when a Muslim uses grossly disrespectful language towards the prophet or the Koran the apostasy is implied.
Breakdown of Marriage as a Ground of Divorce:-
In 1945, the Lahore High Court held that a wife is not entitled to a decree of divorce on the ground of incompatibility of temperaments or her hatred for her husband. In 1971, Krishna Iyer j. of the Kerala High Court said ; "Daily trivial differences get dissolved in the course of time and may be treated as the teething troubles of early matrimonial adjustment. While the stream of life, lived in married mutuality, may wash away smaller peddles, what is to happen if intransigent incompatibility of minds breaks up the flow of the stream? In such a situation, we have a breakdown of the marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce".
Thus, now we have the following two breakdown grounds of divorce;
1) Non-payment of maintenance by the husband, irrespective of the fact whether the failure has resulted on account of the conduct of the wife.
2) When there is "total irreconcilability between the spouses", or, if we may use the term communist and non-communist, the marriage has broken down irretrievably or beyond the possibility of repair.
Maintenance means provisions for fooding, lodging and other essential requirements for the livelihood. Duty to maintain is an obligation under which a person is legally bound to provide fooding, lodging clothing etc. to another person. In the pre-Islamic there was no obligation on the part of the parents to maintain their children. After the advent of Islam maintenance of old and infirm parents by children is also made obligatory in Islam. The Islamic principle is that a person should not be allowed to suffer any monetary loss in maintaining others. In other words maintenance of a person, except that of a wife, is to be provided out of the properties of the person who is being maintained, whither that person be infant or adult. This is so because under Islam the property ;is basically an individual property, there is no concept of any joint family property. However, the case of the wife is an exception. The wife is entitled to be maintained by her husband even if she has enough property to maintain herself. It may be noted that taken together, the two basic principles of Islamic law of maintenance may appear to be contradictory to each other.
Persons Entitled to Maintenance
Under Muslim law a person may have the right to be maintained by the other on the basis of (a) the marriage and (b) the blood-relationship. In this manner, under Muslim law the following persons are entitled to the maintenance;
1) Wife
2) Young children,
3) The necessitous parents and,
4) Other necessitous relations within the prohibited degrees.
Maintenance of a divorced Muslim woman may be discussed under the following heads:
a) Muslim personal law
b) Section 125 Criminal Procedure Code 1973 and
c) The Muslim women (protection of Rights on Divorce) Act 1986
A) MAINTENANCE OF DIVORCED WOMAN UNDER MUSLIM PERSONAL LAW.
The Quran provides for the maintenance of a divorced wife in the following words:
For the divorced woman let there be a provision in kindness; this is an obligation for those who are mindful of God.
A divorced woman is entitled to claim maintenance form her former husband under the Muslim personal law. If she wants to enforce her claim under personal law, she has to file a civil suit against her former husband. However under Muslim personal law as applied in India, a divorced wife can claim maintenance from the former husband only for the 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 extends only up to the period of Iddat; not beyond that.
It is to be noted that where the husband pronounces Talaq in the absence of the wife, she is required to observe the Iddat form the date on which she gets the notice of her divorce. Thus where a husband served a notice of divorce on his wife, the wife was entitled to maintenance from the date on which she received the notice, although the notice mentioned an earlier date as the date of pronouncement of Talaq.
B) MAINTENANCE OF DIVORCED MUSLIM WOMAN UNDER CRIMINAL PROCEDURE CODE.
Under section 125 of the criminal procedure code, 1973 the term wife includes a divorced wife. This enactment is applicable to all the persons in India irrespective of caste and creed. Therefore, section 125 is applicable to a divorced Muslim wife. It may be noted that the term divorced wife includes also that Muslim wife who has obtained a decree for dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939. As stated earlier, under Muslim personal law , the husband's liability to maintain his divorced wife terminates after the expiry of Iddat even if she remains unmarried. But under the Criminal Procedure code, divorced wife is entitled to be maintained by her former husband beyond the period of Iddat provided she remains unmarried.
However a divorced 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 divorce form her husband, has voluntarily surrendered her right to maintenance.
Under provision 127(3) (b) may be interpreted to mean that a divorced Muslim ;wife is not entitled to maintenance if she has obtained her dower and the maintenance during her Iddat. But in Bai Tahira v. Ali Hussain, the Supreme Court held that a divorced Muslim wife is entitled to maintenance even if she has already received the whole amount due to her under her personal law.
In Mohd. Ahmad Khan v. Shah Bano Begum, 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 purposes of section 125 and is entitled to maintenance from he former husband.
FACT: Mohd. Ahmad Khan married shah Bano in 1932. Two sons and three daughters were born to them. In 1975 Mohd. Ahmad drove away his wife Shah Bano out of the matrimonial home. Thereupon she filed a petition under section 125 of the Criminal Procedure code in the court of Judicial Magistrate, Indore asking for maintenance at the rate of Rs. 500 per month. In November 1978 Mohd. Ahmad Khan divorced his wife Shah Bano pronouncing; irrevocable Talaq. After her divorce Shah Bano did not remarry. In defense to Shah Bano's petition for her maintenance, Mohd. Ahmed Khan took the plea that since she ceased to be his wife after Talaq, he has no obligation to maintain her. As regards the maintenance during Iddat and the payment of dower, his contention was that he had already paid the required maintenance to her at the rate of Rs 200 per month for about two years and that he had deposited Rs 3,000 in the court by way of dower. However the magistrate directed Mohd. Ahmad Khan to pay a nominal amount of Rs. 25 per month to his divorced wife Shah Bano. Against this order of the Magistrate Shah Bano filed a revision application; in Madhya Pradesh High Court praying for the enhancement of maintenance allowance. The High Court enhanced the maintenance rate to Rs. 179.20 per month. Mohd. Ahmad Khan preferred an appeal to the Supreme Court.
Supreme Court held that section 125 (1) of the Criminal Procedure Code which defines wife as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. The court observed that the right available under Section 125 is a statutory right and remains unaffected and also overrides the ;provisions of personal law if there be any conflict between the two. However the court observed that there is no conflict between section 125 and rules of Muslim law as regards the husband's liability to maintain ;his divorce wife. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses his wife who is unable to maintain herself.
It is significant to note that the supreme court's judgment in the Shah Bano's case had been a much debated verdict in the recent time. A section of the Muslim community in India opposed this verdict as being against the Shariat and alleged that maintenance to a divorced wife beyond the period of Iddat is un-Islamic. Whereas the others groups of community favored this judgment, the spate of arguments of the two groups in support of their stand and also the socio-political developments. However, conceding to the demands of a section of the Muslim community the parliament enacted Muslim women (Protection of Right on Divorce) Act 1986.
The Muslim Womamen (Protection of Rights on Divorce) Act, 1986 is the outcome of the controversy that usurped the attention of the Muslim community all over India after the Shah Bano Begum's case. Besides other provisions, this Act was enacted to negative the law laid down in Shah Bano's case, in so far as divorced Muslim woman's claim of maintenance beyond Iddat, is concerned. The Act extends to the whole of India and makes provisions for the maintenance of the divorced Muslim woman during and after the period of Iddat and also for enforcing her claim to unpaid dower and other exclusive properties.
THE WIFE
The Muslim husbands' obligation to maintain his wife arises in the following two circumstances:
a) on account of status arising out of a valid marriage
b) On account of pre-nuptial agreement entered into between the parties to the marriage or between the parents in case both the parties and one of them is a minor.
Obligation arising out of Status
A Muslim husband is bound to maintain his wife even if she is rich, i.e., has means of her own, and notwithstanding that the husband is without any means. In the words of Schacht: "The maintenance of the wife comprises food, clothing and lodging, i.e., a separate house or at least a separate room which can be licked, for the well-to-do also a servant; she is not obliged to bear any part of the expenses of the matrimonial establishment".
A Muslim husband is bound to maintain his wife of a valid (sahih) marriage, and not the wife of void or irregular marriage. Only in one case he is bound to maintain the wife of an irregular marriage, viz., when the marriage is irregular for want of witness.
a. However, it is immaterial that the wife is rich or poor, Muslim or non-Muslim, young or old, enjoyed or unenjoyed.
b. In Muslim law, the obligation to maintain a wife does not commence on marriage, if the wife has not attained puberty. It commences on the attainment of puberty by the wife.
c. The husband's obligation to maintain his wife exists only so long as the wife remains faithful to him and obeys all his reasonable orders.
d. A wife does not lose her right to maintenance, if :-
1) She refuses access to him on some lawful grounds, such as when the husband keeps a concubine, or is guilty of cruelty towards her (wife), or
2) Marriage cannot be consummated owing to:-
i) Husband having not attained puberty
ii) His absence from her without her prior permission
iii) His illness
iv) Malformation.
DIVORCED WIFE'S RIGHT TO MAINTENACE AND DOWER
When the marriage is dissolved by death, the wife is not entitled to maintenance during the period of idda.
When a marriage is dissolved by divorce, to wife is entitled to maintenance during the period of idda. If the divorce is not communicated to the wide even after the expiry of the period of idda, she is entitled to maintenance till it is communicated to her. The Shais and Shafis lay down that the wife is not entitled to maintenance even during the period of idda, if the marriage is dissolved in the irrevocable form. They, however, admit that if the irrevocable divorce is pronounced during the period of pregnancy, the wife is entitled to maintenance until delivery.
WIFE'S AND CHILDREN'S MAINTENANCE
Section 3 of the Act provides;
1) A reasonable and fair provision and maintenance to be made and paid to her within the idda period by her former husband. This is nothing new. Traditionally accepted view is that a Muslim divorced woman is entitled to maintenance during the period of idda. She has to be maintained during this period by the husband and she is also to be provided with some lump sum amount as well as the balance of her unpaid dower. However, one should note that the word is "within". And not "during". [Sec 3(1)(2)]
Relevant Provisions of the Muslim Women Act, 1986
1) Maintenance During the Iddat - The divorced woman is entitled to a reasonable and fair amount of maintenance for herself during the Iddat period from her former husband.
2) 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 of 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.
Section 4(1) of the Act provides that where the Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law, to pay a reasonable amount to her.
Where the divorced woman has children, the Magistrate shall order on such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her.
Section 4(2) provides that where a divorced woman who is unable to maintain herself, has no relatives as mentioned above or, where such relatives (or any one of them) have no enough means to pay maintenance, the Magistrate may, by order, direct the State Waqf Board (established under the Waqf Act, 1954 or under any law for the time being in force in the State) to pay such maintenance as determined by him or, as the case may be, to pay the shares of such relatives who are unable to pay at such periods as her may specify in his order.
It is significant to note that under the Muslim Women Act, 1986, the Waqf Board may be made liable to maintain a divorced Muslim woman only where she has no parents, children or other relatives or, where such persons are unable to maintain her. Therefore the normal procedure is that order for maintenance be issued first to the above-mentioned persons under Section 4(1) and on this being unable to maintain her, ultimately to the Waqf Board under Section 4(2). But in Secretary Tamil Nadu Waqf Board v. Syed Fatima Nachi, the Supreme Court has held that where the circumstances suggest that relatives mentioned above are unable to maintain the divorced woman, she is entitled to plead and prove in ne proceeding, the inability of these relations by directing her claim against Waqf-Board in the first instance. The Court observed that she is not required to proceed first against her each relative successively 'in order to obtain negative orders justificatory to the last resort' and then finally to initiate proceeding against Waqf Board.
"Within" The Period of Idda
Section 3(1)(a) of the Act lays down that the husband has to make a reasonable and fair provision and maintenance for the divorced wife "within" the period o idda. What is the meaning of the word "within"? Does it specify the duration which only the wife is entitled for maintenance? Or, does it qualify the period within which the husband must make reasonable and fair provision and maintenance for the wife? That the word "within" means the period within which the husband must discharge his obligation is evident form the tenor of the provision. Broadly, the duration of idda is three months. If the husband fails in his obligation, then the wife or her authorized agent may make an application to the Magistrate, and the Magistrate must ordinarily decide the application "within" a period of one month.
The Act provides a time frame within which the husband is required to make precision and maintenance for his wife. It has to be done within the idda period. In other words, divorced wife is entitled to have a reasonable and fair provision and maintenance to be made and paid to her within the idda period by her former husband. Under section 3(3), where under the Magistrate is required to pass an order for maintenance, there is no limitation on him that he should limit his order for the duration of idda. The objective criterion laid down by Parliament, i.e., the Magistrate should take into consideration the needs of the divorced woman would undoubtedly indicate that the future needs of the divorced woman are required to be taken into consideration. The future needs would, by no stretch of imagination, means her past needs during the iddat period. As an application under section 3(2) may also be filed by the divorced wife after the iddat period it the husband fails to provide a reasonable and fair provision and maintenance within the iddat period there was no necessity to provide that the Magistrate should consider the needs of the divorced woman because that application is most likely to come for determination before the Magistrate after the iddat period is over.
1) A fair and reasonable amount of maintenance has to be provided by the husband to the wife during the period of Idda.
2) A fair and reasonable provision is to made by the husband for the divorced wife after the period of Idda.
Incidentally Danial Latifi challenged the constitutional validity of the Act in Danial Latifi v. Union of India. The Supreme Court agreed with the views expressed by the Gujarat, Bombay and Kerala High Courts upheld the constitutional validity of the Act by saying that it is not anti-woman. The Court has held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife and this reasonable and fair provision also includes maintenance during the periods of iddat. Further reasonable and fair provision has to be made for the period of iddat and also for the period which extends beyond the iddat period. Still further the Court has held that liability of a Muslim husband towards his divorced wife arising under section 3(1)(a) of the Act to pay maintenance is not confined t o iddat period.
Under section 4, a divorced Muslim woman who has not remarried and who is unable to maintain herself after iddat period can proceed against her relatives who are liable to maintain her in proportion to the propertied which they inherit on her death. In case such relations are not able to pay maintenance the State Wakf Board established under the Act are liable to pay such maintenance.
Divorced wife living in adultery
The Kerala High Court has taken the view that a divorce Muslim woman is entitled to maintenance during idda and thereafter also. In M. Skavi v, T.V. Safia, the question before the court was whether a divorced woman living in adultery was entitled to maintenance under section 3 of the Act? Holding that she is entitled to maintenance the court said that the Act no where says that divorced woman who is living in adultery will not be entitled to provision and maintenance, and one should not read something in the Act which is not here, the court added that "it is not proper to refuse maintenance to divorced woman on the ground that it is an unjust burden to maintain a woman leading an adulterous life. Moreover, a divorced woman being not a married woman cannot commit adultery.
Fair and rasonablr provision andmaintenance
It should be notice that section 3 of the Act speaks of "provision and maintenance", while section 4 talks only of maintenance. The two expressions in the former section have been used specifically to widen the scope of protection to divorced woman. The word "provision" indicates that something has to be provided in advance for meeting the needs of the divorced wife.
If husband fails to provide her with the provision and maintenance, on ate application of the divorced wife, the Magistrate will pass an order for the same. While passing the order the Magistrate has to be satisfied the:
i) her husband has sufficient means
ii) Has failed or neglected to make or pay her provision and maintenance.
After taking into consideration the aforesaid facts, he can pass an order directing the husband to make provision and maintenance to the divorced wife as he may determine fit and proper having regard to :-
a) the needs if the divorced woman
b) the standard of life enjoyed by her during her marriage
c) The means of her former husband.
After quoting dictionary meaning and from the Supreme Court decision in Metal Box Company v. Worker, Rao J. said, "The word 'provision', thus, means an amount set to meet a known liability, the amount of which cannot be decided with accuracy. The known liability under section 3(1)(a) of a husband is to provide for the future needs of the divorced Muslim woman. The amount is not capable of being decided with substantial accuracy. The word "provision" is surely different and distinct from the word "maintenance" due to the Muslim divorced woman for the iddat period". On the other hand, maintenance means the act of providing means of support for someone.
Thus, the Gujarat and Kerala High Court and Rao, J. of the Andhra Pradesh High Court take the view that;
a) a reasonable and fair amount of maintenance has to be paid by a husband to his divorced wife during the period of idda;
b) A reasonable and fair provision and maintenance is to be made by the husband for his divorced wife after idda till she remains unmarried.
c) Both the above have to make during the period of idda.
Maintenance from other relations ans wakf boad
Section 4 lays down that notwithstanding anything contained in section 3, a divorced woman is entitled to file an application for maintenance from her relatives or Wakf Board, if she is not in a position to maintain herself and if she has not been able to obtain any fair and reasonable maintenance form her husband. For the application of section 4, the following two requirements should be satisfied;
a) she is not able to maintain herself after the idda period-an application may be made at any time after the idda period, even after 10 or 20 years
b) She had not remarried after the idda period.
Some thought that after idda period, the obligation is only on her relations, and thereafter on the Wakf Board and therefore the husband had no obligation to provide maintenance to her after idda period. It was overlooked that section 3 takes care of husband's obligation. The husband is required to provide for fair and reasonable provision and maintenance for the divorced wife within idda period. But, may be, he is too poor, or may be, whatever was provided by him is not enough or has been exhausted, and the wife has been rendered destitute. In such a case she can take recourse to the provisions of section 4.
Section 4 contemplates a situation where the divorced woman is not in a position to maintain herself after receiving maintenance in lump sum form her husband or provision which was found to be reasonable and fair at the time of divorce, but is no longer sufficient to maintain her. In such a case she is entitled to file an application for maintenance and get it from her relatives, such as her children or her parents. If they are not in a position to pay it, then she may claim it from the Wakf Board.
In Tripura Board of Wakf v. Tahera Khatoon, the Magistrate directed State Wakf Board to pay maintenance to the divorced woman as if was mentioned on the record that her relations do not have enough means to pay maintenance.
In our submission on reading section 3 and section 4 together it is abundantly clear the\at Parliament wanted to protect full the divorced woman so that she does not become destitute or is not thrown on the streets without roof over her head and without any means for sustaining herself.
UNIT IV
Introduction
A Succession Certificate is a certificate granted by the Court with respect to any debt or security, to which a person is entitled as a result of succession to another man's property. The use of Succession Certificate is that it facilitates the collection of debts on such succession. Generally after the death of the testator there may be, scramble among the relatives for the collection of the debts. The Succession Certificate gives protection to the debtors of the deceased against the multiple claims of the debt by different relatives. The Court grants the Succession Certificate to the right person interested in the estate of the deceased person. The Succession Certificate has alone the authority to collect the debts.
Will is a gratuitous transfer of ownership but, it takes effect only after the death of the transferor. A gift takes effect immediately after its completion whereas, a will operates only after the death of the transferor. The result is that in a gift , the transferee get the property as soon as its legal formalities are completed but under a will the transferee get nothing before the death of transferor.
Will signify the last desire of a person regarding the distribution of its properties after his death. Accordingly in all the system of law rules have been made to honour the last desire of a person regarding the devolution of his property. Devolution of property means transmission of property. In a will too the property passes on to the person in whose favour the will is made.
But a will in not govern by the provision of transfer of property act. 1882. the transfer of property act regulated only those transfers which are made between living person. The transfer under a will take places after death of transferor. Where a person dies after making any will the devolution of his property after his death is to be govern by his personal law i.e. will by a Hindu is govern by Hindu law , and will by a Muslim govern by Muslim law.
According the Tyabji, Will means a legal declaration of the intention of a Muslim with respect to his property, which he desire to carried into effect after his death.
According to Baillie, Wills is a device for conferring a right of property in a specific things or in a profit or advantage , in the manner of gratuity . Postponed till after the death the testator.
Will is gratuitous transfer of ownership in a property which takes effects after the death of a testator. In other words a will signifies the last desire of a person for the distribution of his property after his death. After the death of a person if it is found that he has made a will in favour of a person then the property specify under the will is given to that person.
ESSENTIAL OF WILL :
Under Muslim law following essential condition are necessary for a valid will.
1. The legator and the legatee must be competent
2. Their must be a free consent.
3. Formalities must be completed.
4. The property must be bequeathing able property.
5. The legator must possessor the testamentary right.
Death-bed gift and acknowledgement:
Death-Bed-Gift. :
Gift made by Muslim during death illness (" Marz-Ul-Maut ") are regarded as a will. Where a Muslim make any gift of his property while on this death-bed the legal effects of the transaction or not a Hiba but of will. There are two aspect of a gift made during death illness in its formation it is a pure gift but in its legal consequences it is a will. Describing at the nature of a gift during death ill ness Buckley.L.J observed that it is a gift of amphibious nature, not exactly a gift nor a exactly a legacy but part taking of nature of both . The doctrine of death-bed gift is based on the donor state of mind at the time of the transfer. When a person make a gift during death illness, he intents to distributes his properties according to his own scheme giving up all the hopes for his life. A person suffering from mortal diseased believed, beyond reasonable doubt that he would die very soon. With this apprehension in the mind he attempts to give away his property. The result is that although the transfer is inter vivo but idea behind that such transfer is that it is likely to take places only after the donors death. Thought a gift a Muslim donor on his death-bed may transfer his properties without any ristrinction of its quantity although in its effects the transaction is a will.
This may frustrate the very purpose of one third rule in respect of Muslim wills.
Accordingly in order to prevent the evasion of restriction on the testimatory capacity of a Muslim , a death-bed gift is interpreted as a will.
A Gift during death illness is pure HIBA., In its formation but after the donors death it operate like a will. Therefore the essential conditions for a gift during death illness are :
1. There is a valid on complete gift.
2. This gift is made during death-illness of donor.
1. The only difference between simple gift and death-bed gift is that if a gift is made by a donor during his death-illness the gift is testamentary. If it is made normally the gift is inter-vivo, i.e. pure hiba. Those in acceptance and the actual constructive delivery of possession. In brief the gift must be valid in all respect according to the provision of Muslim personal law.
2. Death illness is an illness which ultimately in the death of a person. However there must also be a reasonable apprehension in the mind of that person he would die on account of that illness. In other words any deceased or ailment may be regarded as death illness if a person suffering from its believed that there are not chance of his survival. It is to be noted that crucial test for death bed gift is the subjective of death in the mind of donor. According to Tyabji, for establishing the existing of death illness following condition are necessary.
a ) the illness must have caused death.
b ) their must have been proximate danger of death..
c) Some degree of subjective of apprehension of death in the mind of sick
Person.
d ) some external indicia , chief among which are inability to attend to
ordinary avocations.
There cannot be any objective criteria for determining the existence of death illness. If a diseased causes the death and the donor thought its highly probable that his illness would soon end fatally, it is death illness. Whether an illness is mortal illness or not is a question of fact and each case must be examined in the light of evidence produced before the court. It has been held by the Allahabad High court that boils or carbuncle for long continuance for over an year, may not cause apprehension of death, therefore, it cannot be regarded as; death-illness. Similarly asthma, lingering consumption and sudden bursting of blood-vessels have not been regarded as death-illness. But a rapid consumption tumor in the stomach and tuberculosis of the last stage have been held to be death-illness. A serious case of pneumonia was held to be a death-illness.
Legal consequences of death bed gifts
Gifts made during mortal disease have testamentary effects. That is to say, although the transaction may be constituted as a gift but, it would be interpreted like a will. In its operation, such a gift is governed by the Muslim law of will. Accordingly, where the done is a stranger or non-heir, he cannot get more than one-third of total assets without consent of the donor's legal heirs. Where donee is one of the legal heirs of the donor, the consent of the remaining; legal heirs is ;necessary even though the property given is less than one-third. However if the donor is a shia Muslim, a gift during death-illness is valid up to one-third even if the donee is an heir of the donor. To conclude, in; the words of Wilson;
A gift made in mortal sickness is so far regarded as a bequest that it cannot operate on more than one-third of the testator's net assets unless with ;the consent of all the heirs nor in favour of one heir without the consent of all heirs.
Introduction:
Succession to the properties of a deceased person may either be testamentary or intestate. The testamentary succession is called a legacy and takes place under a Will. Intestate succession is called inheritance under which the legal heirs of the deceased succeed to his properties in well defined shares fixed under the law. Upon the death of a Muslim, his properties are, in the first instance, utilized for payment of his funeral expenses, Government dues; and his unpaid debts. In the second instance, the remaining property is succeeded by the legatees, if any under the law of wills. After making these payments, the residue or the remaining property is called the heritable property. In the last instance, this heritable property is given to the legal heirs of the deceased so that they may inherit it in their respective shares. The quantum of the property to be inherited; by each legal heir and also the term and conditions under which they get their respective shares, is governed by the Muslim law of inheritance.
Under Muslim law, every kind of property may be a heritable property. For purposes of inheritance Muslim law does not make any distinction between corpus and usufruct or between movable and immovable, or; corporeal and incorporeal property. Under English law, there is some difference in the inheritance of movable and immovable property. But under Muslim law there is no such distinction any property which was in the ownership of the deceased at the moment of his death may be the subject-matter of inheritance.
Inheritance opens only after the death of a Muslim. No person may be an heir of a living person. Therefore, unless a person dies, his heirs have no interest in his properties. Unlike Hindu law, the Muslim law or inheritance dies not; recognize the concept of right by birth. Under Muslim law, an heir does not possess any right at all before the death of an ancestor. It is only the death of a Muslim which gives the right of inheritance to his legal heirs. As a matter of fact, unless a person; dies, his relatives are not his legal heirs; they are simply his heir-apparent and have merely a chance of succession
Classification of heirs:
The legal heirs kof a Sunni Muslim are classified into following categories:
A) The Principal Classes
The following three classes of heirs may ;be termed as principal classes of legal heirs. The heirs included in any of the following classes are related to the porosities by blood except the husband and widow who are related through marriage.
1) Sharers or Quranic Heirs:
Sharers are those; heirs who are entitled to get a prescribed share from the heritable property. The sharers and their respective shares in the property of a deceased are given in Quran. The sharers are therefore also called as Quranic heirs. In the distribution of property, the sharers get preference over the other class of heirs, therefore, first of all the respective share is allotted to each sharer. It may be noted that sharers are those heirs whose respective shares are given in quran; therefore, their shares cannot be altered by any human effort.
2) Residuary or Agnatic Heirs
Residuary are those heirs who inherit only the residue of the property after allotment of; respective shares to the sharers. Obviously, the Residuary have not specific share of their own. The residue may differ from case to case. If there are no sharers, the whole is inherited by the Residuary. Residuary heirs are also termed as Agnatic heirs because they inherit through male relations.
3) Distant Kindred or Uterine Heirs
All those persons who are related to porosities through blood but could not be included as heirs in the class of sharers or of Reliquaries are called distant kindred. If a porosities has neither sharers not Reliquaries are inherited by his Distant Kindred. Distant Kindred's cannot inherit in presence of any sharer or residuary the heirs included in this class are also termed as uterine heir.
B) SUBSIDIARY CLASSES
Besides the above mentioned three classes of heirs, there are four more categories of legal heirs. The heirs included in any of the following classes are called subsidiary heirs and inherit only in exceptional cases;
1) Successor by contract
2) Acknowledged kinsman
3) Universal legatee,
4) The State.
THE SHARERS; CLASS I HEIRS
The sharers their respective shares and the conditions under which they inherit, is given in brief in the list given below. It is to be noted that the relations mentioned in; the list are relations of the porosities e.g. widow means widow of lathes propositus or child means child of the porosities.
I) Husband
i)The husband get ½ if there is no (a) child or (b) child of son how low soever
ii) the husband gets ¼ if there is (a) child, (b) child of son
II) Widow
1) The widow gets ¼ if there is no (a) child or (b) child of son how low so ever
2) The widow gets 1/8 if she is with (a) child or (b) child of son how low so ever
3) If the propositus had left more than one widow, all the widows share equally out of the ¼ or 1/8 share, as the case may be
Relations by Blood
III). Father
(1) Father without ;(a) child of (b) child of son how low so ever is treated as Residuary i.e. ceases to be a Quranic heir and is entitled to get the residue after allotment of shares to other Quranic heirs.
(2) Father together with (a) child, or (b) child of son how low so ever gets 1/6 In other words, in absence of children the father becomes a Residuary whereas in presence of the children his share is 1/6.
IV) True Grandfather
(1) True grandfather is entitled to inherit only in; the absence of father. That is to say,, it the propositus dies leaving behind both father and a true grandfather, the true grandfather cannot inherit.
(2) If there is no father, the true grandfather inherits like a father. That is to say, if there is no father, the true grandfather would become Residuary in the absence of children. But in presence of the children a true grandfather gets 1/6.
V) Mother
(1) The share of mother is 1/3 in the absence of:
(a) child, or
(b) child of a son how low so ever
(c) two full brothers
(d) two full sisters,
(e) One brother plus one sister, whither full, consanguine or uterine.
In other words if together with mother there are none of the above mentioned relations, her share is 1/3
(2) The share of mother is 1/6 in the presence of:
(a) child
(b) child of son how low so ever
(c) two full sisters
(d) two full brothers,
(e) one brother plus one sister whether full, consanguine or uterine
VI) True Grandmother
(1) The true grand mother inherits only where she is not excluded by the presence of any of the relation given below.
(2) If not excluded the share of true grandmother is 1/6 whether she is one or more than one. The or more grandmothers gets 1/6 jointly
(3) A maternal grandmother is excluded from inheritance in the presence of;
(a) mother,
(b) a nearer maternal or paternal true grandmother.
(4) A paternal grandmother is excluded from inheritance in the presence of:
(a) mother
(b) father
(c) a near true grandmother whether maternal or paternal.
VII) Daughter
(1) The share of one daughter is 1/2a
(2) If there are two or more daughter, the share is 2/3 to be divided equally among them.
(3) Daughter together with son, is treated as agnatic heir i.e. inherits as Residuary
VIII) Son's Daughter
(1) The son's daughter inherits only in the absence of;
(a) two or more daughters
(b) son,
(c) higher son's son
(d) Two or more higher son's daughter.
In other words the son's daughter is entirely excluded from inheritance in presence of the above relation.
(2) In the absence of above relation the son's daughter gets 1/2a if single and 2/3 if more than one.
(3) If son's daughter is together with one daughter the share of son's daughter is 1/6 whether such son's daughter is single or more. For example, if there is a daughter and two son's daughter the share of son's daughter would be 1/6 which would be divided equally among them i.e. each son's daughter would get 1/12
(4) Son's daughter together with son's son is treated as agnatic heir i.e. inherits as Residuary.
IX) Full Sister
(1) The share of one full sister is ½
(2) The share of two or more sisters is 2/3 to be divided equally among them.
(3) If full sister is together with full brother she become an agnatic heir and inherits as Residuary
(4) A full sister is excluded from inheritance in the presence of:
(a) child
(b) child of son how low soever
(c) father
(d) Father's; father.
X) Consanguine-Sister
(1) The share of one consanguine sister is ½
(2) The share of two or more consanguine sisters is 2/3 to be divided equally among them
(3) With one full-sister the share of consanguine sister is 1/6 whether single or more
(4) The consanguine sister is excluded from inheritance in the presence of:
(a) child, or
(b) child of son how low so ever
(c) father, or
(d) father's father
(e) two full sisters,
(f) One full brother
(5) With consanguine brother the consanguine sister becomes agnatic heir and inherits as Residuary.
XI) Uterine Brother
The share and the condition under which an uterine sister inherits a property is the same as that of uterine brother. That is to say:
(1) The share of one uterine sister is 1/6
(2) If there are two or more uterine sister their share is 1/3 to be divided equally among them.
(3) Uterine sister is excluded from inheritance in the presence of (a) child (b) child of a son, (c) father (d) father's father.
Shia law of inheritance
Classification of Heirs
Under the shia law a person may become the legal heir of a propositus either because of his relationship through marriage or because of ;relationship through blood. Thus the heirs may be either (a) heirs by marriage or (b) heirs by consanguinity.
Heirs by Marriage.
The heirs related to the propositus by marriage are husband or wife marriage is regarded as a special cause for heir ship
Heirs by consanguinity
The heirs by consanguinity have been divided into following three classes:
Class I
This class includes-
(i) Parents
(ii) The children and other lineal and descendant how low soever
Class II
This class includes-
(i) grandparents how high soever
(ii) brother and sister
(iii) descendants how low soever.
Class III
Under this class are included-
(i) the paternal, and
(ii) maternal uncles and aunts of the propositus and of his parents and grandparents how high soever and also their descendants how low soever
Respective Shares of the heirs
1. Husband
i) Without children or lineal descendants, the husbands share is ½.
ii) With children or lineal descendants the husband share is ¼
2. Widow
i) without children or lineal descendants the widow's share is ¼
ii) with children or lineal descendants the widow's share is 1/8
iii) A childless widow gets her ¼ share only out of the movable properties of the deceased husband
3. Mother
i) In the absence of (a) child or lineal descendant or (b) two or more full or consanguine brothers or (c) one such brother and two such sisters or (d) four such sisters with father the share of mother is 1/3
ii) In the presence of (a)child or lineal descendants (b) two or more full or consanguine brother (c) one such brother and two such sister or (d) four such sisters with the father the share of mother is1/6.
4. Father
(1) without children or lineal descendant the father inherits as Residuary
(2) with children the father's share is 1/6
5. Daughter
(1) share of single daughter is ½
(2) share of two or more daughters is 2/3 to be inherited collectively.
(3) In the presence of son, the daughter becomes Residuary.
6. Full sister
(1) the share of a single full sister is ½ and that of two or more full sisters is 2/3
(2) the full sister gets the above-mentioned share in absence of (a) parents (b) lineal descendant (c) full brother and (d) father's father
(3) in the presence of (a) full brother (b) father's father, the full sister inherits but as a Residuary.
7. Consanguine Sister
(1) the share of a single consanguine sister is ½ and that of two or more consanguine sisters is 2/3
(2) the above share is inherited by consanguine sister in the absence of (a) parent (b) lineal descendant (c) full brother (d) full sister (e) consanguine brother and (f) father's father
(3) in the presence of (ad) consanguine brother (b) father's father the consanguine sister inherits as Residuary.
8. Uterine brother
(1) the share of one uterine brother is 1/6 and that of two or more uterine brothers is 1/3
(2) the above share is inherited by uterine brother in the absence of (a) children or lineal descendants, and (b) parents.
9. Uterine Sister
Same as Uterine brother
Evolution of Indian succession Act
Succession in Indian was earlier regulated by the Indian Succession Act, 1865. This Act was based mainly on English Law, and subject to certain exceptions, constituted the law in force in British India, applicable to all classes of testamentary and intestate succession. However, the exceptions were so extensive, that all natives of India were excluded there under, so, in 1870, the Hindu Wills Act was passed. The Act provided that certain portions of the Indian Succession Act would apply to all wills and codicils made by Hindus also. Later, in 1881, the Probate and Administration Act was passes, and this act was also made applicable to both Hindus and Muslims.
The Indian succession Act, 1925, consolidated the earlier Act of 1865, the Hindu Wills Act, the Probate and Administration Act and also the Parsi Intestate Succession Act. The Preamble to the Act indicates that the Act is intended to consolidate the law applicable to intestate and testamentary succession. To a great extent, it embodies the rules of English Law. As regards matters not covered by this Act, Hindus are governed by the Hindu Succession Act and Mohammedans by their personal law.
Effects of succession certificate:-
1) The Succession Certificate acts as a shield to the debtor from too many claims.
2) After the payment of the debt to the Succession Certificate holder if some other person turns out to be the right person to collect the debt, it will not affect the debtor in any way. His liability is over as soon as the debt is paid to the holder of the Succession Certificate.
3) The Succession Certificate raises conclusive presumption that the holder is the legally authorized person to collect the debts due to the deceased.
4) If the debtor refuses to pay the debt to the holder of the Succession Certificate, then he is liable to pay the debts with interest.
5) The Succession Certificate is not a proof for the existence of debt or for receipt of money.
What constitutes domicile
The term "domicile" is not defined in the Act. The domicile of a person is the place where he has his "true, fixed, permanent home therefore, essential to constitute domicile
1) Residence
2) Intention of making it a home of the party
It follows therefore that domicile may be acquired by residence; but residence at a place does not necessarily make it a place of domicile, inasmuch as mere residence, without any intention of making it the permanent home, would not be sufficient.
Domicile thus means the country which is taken to be a man's permanent home, for the purpose of determining his civil status. It is thus to be distinguished form 'allegiance', which determines a person's political status. As regards the duration of the residence, no hard and fast rule has been laid down by the Courts.
Importance of domicile
The importance of domicile in the law of succession is due to the rule of private international law that while rights over immoveable properties are governed by the law of the country where such properties are situated, succession to moveable is governed by the law of the country where the person had his domicile at t he time of his death. This universal rule is adopted in s.5 of the Indian Succession Act.
Kinds of domicile
There are three kinds of domicile
a) Domicile of origin ( or domicile by birth): Ss. 6-8
b) Domicile by choice: Ss. 9-13
c) Domicile by operation of law: Ss. 14-18
a) DOMICILE OF ORINGIN (Ss. 6-8)
Domicile of origin is a legal tie which binds a person at the moment of his birth to a given system of law. It is a settled principle that no man can be without a domicile, and the law attributes a domicile to every child as soon as he is born. The domicile which a person acquires at the time of his birth is known as his domicile of origin or domicile by birth.
The domicile of origin of a child depends on whether such child is born legitimate or illegitimated or posthumous, and is as follows:
Legitimate Child (S.7)
The domicile of origin of a legitimate child is in the country in which his gather was domiciled at the time of his birth.
Illustration: at the time of the birth of A, his gather was domiciled in England, A's domiciled of origin is in England, whatever may be the country in which he was born.
Illegitimate Child (S.8)
The domicile of origin of an illegitimate child is in the country in which his mother was domiciled at the time of his birth
. Thus, a mother whose domicile is in England gives birth to an illegitimate child in India. The domicile of origin of the child is English.
Posthumous Child (S.7)
The domicile of origin of a posthumous child is in the country in which his gather was domiciled at the time of the father's death.
It may be noted, that under English Law, the rule is different. There, a posthumous child gets the domicile of the mother at the time of the child's birth.
b) DOMICLE OF CHOICE( Ss. 9-13)
Domicile of choice is the domicile which a person of full age and sound mind acquires by a voluntary choice. A person acquires a domicile of choice when he resides in a country, with the intention of residing there permanently or indefinitely.
Thus, two factors are necessary for acquiring a new domicile.
1) By fixed habitation (S.10)
A man acquires a new domicile by taking up his fixed habitation a country which is not that of his domicile of origin. However, a man is not to be deemed to have taken up his fixed habitation in India, merely by reason of his residing there
i) In the civil, military, naval, or air force service of Government
ii) In the exercise of any profession or calling
2) By special mode( Ss. 9& 11-13)
Any person may acquire a domicile in India by making and deposition in the appropriate office in India a declaration in writing under his hand of his desire to acquire such domicile. However, a person should have been a resident I India for one year immediately preceding the time of his making such declaration.
But a person who is appointed by the Government of one country to be ambassador, consul or other representative in another country, does not acquire a domicile in the latter country, by reason only of residing there in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with that person as part of his family, or as a servant.
c) DOMICILE BY OPERATION OF LAW (Ss. 14-18)
Domicile by operation of law or domicile of dependence means the domicile of dependent persons,, whose domicile is dependent on , and changes with , the domicile of some other person. The three categories of persons whose domicile is ascertained in this manner under the Indian Succession Act are minors, married women and insane persons.
Minors (Ss. 14& 17)
A minor cannot acquire a new domicile, but his domicile follows the domicile of his parent from whom he derived his domicile of origin.
However, the minor's domicile does not change with that of his parent I the following three cases, namely
a) if he is married or
b) if he holds any government office or employment or
c) If he has set himself up in any distinct business, with the consent of his parent.
Married women (Ss. 15 & 16)
By marriage, a woman in India acquires the domicile of her husband and as ling as she is married to him, it follows the domicile of her husband, and she automatically changes her domicile whenever her husband changes his. In other words, a married woman is deemed incapable o having an independent domicile of her own.
However, there are two exceptions to the above rule, and in the following two cases, the wife's domicile does not follow that of her husband,
1) when they are separated by the sentence of competent Court
2) if the husband is undergoing a sentence of transportation
Insane persons (LUNATICS) (S.18)
An insane person, like a minor, cannot acquire a new domicile, except by following the domicile of another person under whose care he is. Thus, if the lunatic is a minor, his domicile will change with that of his parent; if she is a married woman, with that of her husband.
INTESTACY (S.30)
A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. (S.30)
Illustrations:-
1) A has left no will. He has died intestate in respect of the whole of his property.
2) A has left a will whereby he has appointed B as his executor, but the will contains no other provisions. A has died intestate in respect of the distribution of his property
3) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property.
4) A has bequeathed Rs. 1000 to B and Rs. 1000 to the eldest son of C and has made no other bequest. He dies, leaving a sum of Rs. 2000 and no other property. C died before A without having ever has a son .A has died intestate in respect of the distribution of Rs. 1000.
(Ss.31-49)
Section 31 to 49 lay down certain rules for distribution of property of intestates other than Parsis.
Where the intestate has left;
Window [W] only - she tales everything. [W=1]
The property of an intestate primarily devolves upon the wife or husband or his kindred; but a widow will not get her husband's property, if by a valid contract made before her marriage, she has been excluded from the distributive share of her husband's estate. (S. 32)
It may be noted that (under S. 36) a husband surviving his wife has the same rights in respect6 of her property, if she dies intestate, as a widow has in respect of the husband's property, if he dies intestate. Thus, if the deceased intestate is a female, in the rules that follow, the word "widower" is to be substituted in place of the word "window".
Rules of distribution (ss. 36-48)
1) Rules of distribution among lineal descendants (ss. 36-40)
If the intestate has left a widow, her share is first to be deducted. The balance will devolve as per the following rules.
a) If the intestate has left a child or children only- the child takes the whole of it, or if more than one, the children divide equally among themselves (S. 37)
Thus, if A dies, leaving three children, B, C and D, and no children of any predeceased children. After the widow's share is given to the widow, the balance two-thirds would be equally divided between B, C and D. of course, in case A's wife had died before him, B, C and D a would divide the entire estate in equal proportions.
b) Of the intestate does not leave a child behind him, but leaves behind a grandchild, the grandchild takes the whole of the property, and if more then one, the grandchildren get equal shares in the property. Here again, it is presumed that here is no descendent of a deceased grandchild.
Illus. A has three children, and no more, John, Mary and Henry. They all die before A, Johan leaving two children, Mary three and Henry four. Afterwards, A dies intestate, leaving these nine grandchildren and no descendant of any deceased grandchild. Each of his grandchildren will have one-ninth.
c) The same rule applies if deceased left only great-grandchildren or remoter lineal descendants, grandchild or grand-children or great-grandchildren. The division among them has to be per capita.
d) If, however the lineal descendants are not in the same degree, the division has to be per stripes.
Illus A had three children, John, Mary and Henry. John died leaving four children, and Mary died, leaving one and Henry alone survived the father. On the death of A intestate, one-third is allotted to Henry, one-third to John's four children, and the remaining one-third to Mary's one child.
2) Rules of distribution among kindred (ss. 41-48)
If the intestate has left a widow, her share, balance will then devolve as follows:
a) If the intestate's father is living- he takes the other half (S. 42) so, if the intestate leaves behind him only a widow and his gather, the shares will be: widow = ½; Father = ½.
b) Jif, however, the intestate's father is dead- the mother and brothers and sisters of the intestate succeed equally; but the children of a deceased brother or sister represent the parent, and take the share which their parent would have taken, if alive. (S.43).
Illus- A dies intestate, survived by his mother and two brothers of full blood, John and Henry and a sister Mary, who is the daughter of his mother, but not of his father. The mother tales one-fourth, each brother tales one-fourth, and Mary, the sister of half blood, takes one-fourth.
c) So also, if the father of the intestate and his brothers and sisters are dead, but have left lineal descendants, such descendants and the mother tale the property in equal shares.
Illus- A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary and two children of George, a deceased brother of half blood who was the son of his father, but not of his mother. The mother tales one-fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them.
d) If only the intestate's mother is alive- the mother takes the whole. (S.46)
e) If there is no father, no mother, no lineal descendants- the brothers and sisters of the intestate divide equally. (S.47)
f) If the intestate has left none of the above relatives- the property goes in equal shares to those relatives who are in the nearest degree of kindred to the intestate.
Illus- A, the intestate, has left a grandfather and a grandmother, and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.
Definition of probate (S.2)
'Probate' means the copy of a will certifies under the seal of a competent Court with a grant of administration to the estate of the testator. (S.2)
Probate-
a probate is a document issued under the seal of the Court and under the signature of proper official, certifying that the original will was proved o a certain date, and to that is attached a certified copy of the will both together form the probate. A probate is only conclusive as to the appointment of the will. It does not confer upon the executor any title to property; it only perfects his title to it.
To whom probate can be granted (ss. 222,)
S. 222 provide that a probate can be granted only to an executor appointed by the will. The appointment may be express or spelt out by necessary implication.
To whom it cannot be granted (s.223)
Probate cannot be granted to
a) a minor
b) a person of unsound mind or
c) to any association of individuals,
Unless it is a company which satisfies the conditions prescribed by the rules to be made by the State Government in this behalf.
Effect of grant of probate (Ss. 272 & 273)
Probate of a will establishes the will form the death of the testator, and renders valid all intermediate acts of the executor as such. (S. 227).
There are four important consequences of a grant of probate these are;
a) The grant of a probate is conclusive evidence of the testamentary capacity of the testator, as to the factum and validity of the will, and the finding of the probate Court as to due execution of the will is conclusive.
b) Probate is conclusive as to the genuineness of the will and appointment of the executors. It is not conclusive as to the domicile of the deceased, although such a question may have arisen in the probate proceedings. A will is either good or bad against the whole world.
c) Once probate is granted, no suit will lie for a declaration that the testator was not of sound mind.
d) Probate is conclusive as to the representative title of the executor against the debtors of the deceased and gives complete indemnity to them. (S.273).
1) power to sue (Ss. 305-306)
a) He has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased had when living. (S. 305)
b) all rights of action of, or against the deceased, survive to or against the executor or administrator, except a course of action for
i) defamation
ii) assault as defined in the Indian Penal Code
iii) personal injuries no t causing the death of the person and
iv) The case where after the death of the party, the relief sought could not be enjoyed or the granting of it would be nugatory.
2) Power to dispose of property (S.307)
An executor or administrator has power to dispose of the property of the deceased in such manner as he thinks fit.
Illus- i) the deceased has made a specific bequest of part of is property. The executor, not having assented to the bequests, sells the subject of it. The sale is valid.
3) Power to spend (S. 308)
An executor or administrator may incur expenditure on any act necessary for the proper care and management of the estate, or with sanction of the High Court, on any religious, charitable and other objects and on the improvement of the estate.
DUTIES OF AN EXECUTOR (Ss. 316-330)
An executor has the following four important duties:
1) He has to provide funds for the performance of the funeral of the deceased suitable to his condition, if there is sufficient property. (S.316)
2) he must :-
i) within six months of the grant of probate or letters of administration, or within such further time as the Court may appoint, exhibit an inventory containing a full and true estimate of all the property I possession and all credits and debts owing to him in the capacity as an executor administrator and
ii) Must, within one year of the grant, or such further time as the Court may allow, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been disposed of.
3) He ahs to collect, with reasonable diligence, the property of the deceased and the debts due to him. (S.319)
4) he can make disbursements as under :-
a) Funeral expenses, according to the position of the deceased, death-bed charges, fees for medical attendance, and charges for board and lodging for one month before his death. (S.320)
b) Then, expenses of obtaining probate or letters of administration and costs incurred in these proceedings.
c) Wages for service rendered to the deceased within 3months before his death by any labourer, artisan, or domestic servant. (S.322)
d) Other debts of the deceased, but, no creditor is to be preferred to another. All debts that the executor knows of are to be discharged equally and ratably; if he departs from this rule, he would be personally liable. (S. 323).
UNIT V
Will and codicils (Ss.57-62; 66-69)
A will is defined (by S. 2(h) of the Act) as the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.
In Halsbury's Law of England, a will is defined as "the declaration in a prescribed manner of the intention of the person making it, with regard to matters which he wishes to take effect upon or after his death.
ESSENTIAL CHARACTERISTICS OF A WILL
The following are the four essential characteristics of a will
a) Legal declaration- the documents purporting to be a will or testament, must be legal, i.e. in conformity with the provisions as regards execution and attestation, as laid down in section 63 of the Act, and must be made by a person competent to make it. A minor is legally incompetent to make a will, and a will by a minor is not a legal declaration.
b) The declaration should relate to the property of the testator which he wants to dispose of. If the declaration contains no reference to the disposal of the property, but merely appoints a manger to manage the property, or gives merely an authority to his widow to adopt, it is not a will.
c) Thirdly, the declaration as regards the disposal of the property of the testator must be intended to take effect after his death. If the declaration is not to that effect, or if the declaration seeks to effectuate the intention of the writer immediately, i.e. during his life-time, then it is a not a will.
d) Revocability- the essence of every will is that it is revocable during the life-time of the testator.
5.2 KINDS OF WILLS
The Act mentions only two kinds of wills- a privileged will and an unprivileged will. These are dealt with in Ss. 65 and 66, to be discussed later.
However, wills can also be classified under other categories, and it can be said that there are nine kinds of wills as under:
1) Privileged Will-
Under the Indian Succession Act, all wills are broadly classified into two categories, privileged wills and unprivileged wills.
Under S. 65, privileged wills are those made by
a) a solider employed in an expedition or engaged in actual warfare or
b) an airman employed in an expedition or engaged in actual warfare or
c) any mariner being at sea Provided he has completed eighteen years of age.
The following six rules are to be noted as regards execution of privileged wills:
i) The testator may write such a will wholly in his own handwriting in such a case, it need not be signed by him or attested by witnesses.
ii) The will may be written, wholly or in part, by another person, and singed by the testator. In such cases, attestation by witnesses is to necessary.
iii) Even if the will written, wholly or in part, by another person, but is not singed by the testator, it is valid, provided it was written under the testator's directions or if he recognized it as his will.
iv) If the soldier, airman or mariner had given written instructions to prepare his will, but died before it could be so prepared, such written instructions are to be considered as a valid will made by him.
v) Even verbal instructions for preparing a will would amount to a valid will made by such a person, provided that-
a) the verbal instructions were given in the presence of two witness;
b) such instructions have been reduced to writing in his lifetime; and
c) He has died before the formal will could be prepared and executed.
In such cases, it is not necessary that the verbal instructions should be reduced to writing in his presence or be read over to him.
vi) Lastly, such a will can be made by the soldier, airman or mariner by an oral declaration of his intentions before two witnesses present at the same time. However, such an oral will automatically becomes null and void at the expiry of one month after such a person, being still alive, has ceased to be entitled t make a privileged will.
2) Unprivileged Will-
All other mention above wills is called unprivileged wills, and requires the prescribed formalities to be complied with.
EXECUTION OF UNPRIVILIEGED WILLS
As regards unprivileged wills i.e. all wills made by persons other than soldiers, airmen and mariners referred to above, the following three conditions must be satisfied:
i) Signature- either the testator must sing or affix his mark to the will, or the will must be signed by some other person in the testator's presences and under his directions.
ii) Intention behind signature- such signature or mark must be so placed that it appears that it was intended to give effect to the writing as a will
iii) Attestation- the will must be attested by at least two witnesses as under:
a) Each witness must have seen the testator sign or seen some other person song the will in the testator's presence and under his directions
OR
Each witness must have received from the testator a personal acknowledgement of his signature or of the signature of such other person.
b) Each witness must sing the will in the presence of the testator, although they need not sign in the presence of each other.
3) Nuncupative or oral will-
An oral will is one which has been declared by the person making it in the presence of witnesses. The act does to provide for the making of such wills, except in the case the number of such witnesses has been specified and the other conditions have been laid down.
4) Holograph will-
This is a will written in the testator's own hand. Such a will is included in the definition of an unprivileged will under the Act. The fact that the testator has written the will in his own hand-writing would also go to show that he was fully aware and conscious of making such a will.
5) In officious will-
An inofficious will is a will which is not in keeping with the testator's natural affection and moral duty, as where a testator bequeaths all his property to a stranger, to the complete exclusion of his wife, his children, and other relatives. Such a will is a perfectly legal will.
6) Mutual wills-
Two persons are said to make mutual wills when they confer reciprocal benefits upon each other under their will. In other words, a mutual will is one of two wills made by two persons, giving each other similar rights in each other's property, as when A bequeaths all this property to B, and B makes a will giving all his property to A.
Normally, a will is revoked by the marriage of its maker, but in case of mutual wills, the marriage of one of them does not revoke the will of the other.
7) Joint will-
In Halsbury, a joint will is defined as a will made by two testators, contained in a single document, duly executed by each testators, contained in a single document, duly executed by each testator and disposing of either their separate properties or their joint property. The most common example of such a will is one made by a husband and his wife, disposing of their property under one joint will.
In Theobald on Wills, a joint will is described as follows.
"Persons may make joint wills which are however revocable at any time byeither of them or by the survivor. A joint will may be made to take effect after the death of both the testators; such a will remains revocable during the joint lives by either, with notice to the other, but becomes irrevocable after the death of one of them, if the survivor takes advantage of the provisions made by the other".
8) Contingent or conditional will-
A will may be made contingent upon the happening of an event, so that if the event does not happen, the will has no effect. Thus, when a will contained the following clause, "should anything happen to me during my passage to Wales or during my stay" it was held to be a conditional will. Such a will takes effect only if the contingency happens; if the contingency does not happen, the will is not entitled to private. Similarly, a will may be made conditional on the assent of a third person, and such a will would be entitled to a probate only if such assent has been given.
9) Duplicate will-
A duplicate will is on of which two or more copies are made. If such a copy is signed by the testator, it can operate as the original will. Where a will is executed in duplicated, one of which the testator retains, while the other is deposited in the custody of another, then the destruction of the duplicate, which was in the testator's possession, revokes he will.
The rules relating to construction of wills can be discussed under the following seven heads:
1) General rules for construction of a will.
2) Construction of words : Ss. 74, 75, 83, 86-87, 90, 95, 99 100s
3) Errors : Ss. 80-81
4) Ambiguity : Ss. 80-81
5) Inconsistent clauses: Ss. 82, 84-85, 88.
6) Rules for construing bequests: Ss. 90-98.
7) Cumulative or non-cumulative bequests Ss. 101.
1) GENERAL RULES FOR CONSTRUCTION OF A WILL
There is one important general rule of construction. In construing a will, the Court must give effect to the intention of the testator. The intention is to be collected form the words of the will, taking the whole of the instrument together. All that the testator has written is not be its grammatical construction and ordinary connotation of the words used, with the assistance of such oral evidence of the surrounding circumstances, as is admissible, to place the Court in the position of the testator.
Whilst delivering the judgment, the Supreme Court laid down the following five guidelines to be observed when construing a will:
1) The rue intention of the testator has to be gathered, not by attaching importance to isolated expressions, but by reading the will as a whole with all its provisions, and ignoring none of them as redundant or contradictory.
2) The Court must look at the circumstances in which the testator makes his will, such as the estate of his property, of his family, and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted, rather than a construction which would have the effect of cutting down the clear meaning of the words used by the testator.
3) Further, where one of tow reasonable constructions would lead to inconsistency that should be discarded favor of a construction which does not create any such hiatus.
4) It is one of the cardinal principles of construction of wills that, to the extent it is legally possible, effect should be given to every disposition contained in the will,- unless the law prevents effect being given to it.
5) If there are two repugnant provisions conferring successive interests, if the interest created is valid, the subsequent interest cannot take effect. However, the Court will proceed to the farthest extent to avoid repugnancy- so that effect can be given, as far as possible, to every testamentary intention contained in t he will.
2) CONSTRUCTION OF WORDS
(Ss. 74-75, 83, 86-87, 90, 95, 99-100)
As regards construction of words and words and expressions used in a will the following eight rules are to be applied.
i) It is not necessary to use technical words; it is sufficient if the words used indicate the intention of the testator. (s. 74)
ii) for the purpose of determining questions as to what person or what property is denoted by any words used in a will, the Court must inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed, the circumstances of the testator and of his family, and into every fact, a knowledge of which may conduce to the right application of the words which the testator has used.
iii) General words may be understood in a restricted sense and vice-versa, if other words in the will show that such was the intention of testator (s. 83) , and the intention of the testator should not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.
iv) Unless a contrary intention appears, if the same words are used in different parts of the same will, they should be given the same meaning throughout the will.
Thus, where a testator had used would "children" I several clauses of the will, it was held that this word was used in its ordinary sense to mean sons as well as daughters. It would not be right to interpret it and daughters.
v) Words describing the property to be bequeathed must be deemed to refer to property answering the description at the time of the testator's death.
vi) Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, - unless if appears form the will that only a restricted interest was intended to be given to him. In other words, bequests without words of limitation refer to the whole interest of the testator.
vii) Words expressing relationship denote only legitimated relatives of person, and failing such, those reputed to be legitimate.
viii) Lastly, S 99 lays down the rules of construction of the following terms in a will:
1) The word "children" applies only to lineal descendents in the first degree.
2) The word "grandchildren" applies only to lineal descendents in the second degree.
3) The words "nephews" and "nieces" apply only to children of brothers and sisters.
4) The expressions "cousins" or "first cousins" or "cousins German" apply only to children of brother or of sisters of the father or mother of the person.
5) The words "second cousins" mean only the grand children of brothers or of sisters of the grandfather or grandmother of the person.
6) All words "issues" or "descendants" apply to all lineal descendents of the person.
7) All words which express a relationship also apply to a child in the womb, who is afterwards born alive.
3) ERRORS (Ss. 76-79)
Four rules relating to errors in will have bee laid down, as follows:
a) An error in the mane or description does to vitiate a legacy if the words sufficiently show what is meant.
A mistake in the name of legatee many be corrected by his description, and a mistake in the description of a legatee may be corrected by the name.
b) If a word which is material to the expression of meaning is omitted, it may be supplied by the context.
Illus- the testator gives a legacy of "five hundred" to his daughter A and a legacy of "five hundred rupees" to his daughter B. A will take a legacy of vie hundred rupees.
c) If the thing bequeathed can be sufficiently identified fro its description, but some parts of the description do not apply, such parts shall be rejected as erroneous, and the bequest shall take effect.
d) if a will mentions several circumstances as descriptive of the thing bequeathed, and there is any property of his in respect of which all those circumstances exist, the bequest is to be considered as limited to such property, and it is not lawful to reject any part of the description as erroneous because the testator had other property to which such part of the description does not apply.
4) AMBIGUITIES IN WILLS (Ss. 80-81)
PATENT AND LATENT AMBIGUITIES- ambiguity is of two kinds- patent and latent. Patent ambiguity is one which is clear on the very face of a document. Thus, A says in his will- "I give Rs. 2000, to ..." There is a blank here. No legatee is mentioned. This ambiguity is visible on the very face of the document. It is an instance of a patent ambiguity, which is dealt with by S. 81 of ht Act.
Latent ambiguity, on the other hand, is one in which words are used which, though unambiguous, are capable of being construed one way or the other. S. 80 deals with this kind of ambiguity.
The general rule is that parol (oral) evidence of the testator's intention is not admissible, unless there is a latent ambiguity, e.g., to explain a nick-name. but where a complete blank is left either for the name of the legatee or the amount of the legacy, no evidence will be allowed to fill in the blank. That is a patent ambiguity.
5) INCONSISTENT CLAUSES (Ss. 82, 84-85, 88)
Sometimes, a will contains inconsistent clauses. Ss 82, 84, 85 and 88 lay down the following three rules to be followed in such a case:
a) The meaning of a clause is to be collected form all parts of the entire instrument, construed with reference to one another.
In other words, every will has to be read as a whole, and meaning is to be gathered form the whole instrument, and not by a disjointed reading of the various clauses. This means that the true intention of the testator has to be gathered, not form isolated expressions in the will, but by reading the will as a whole.
b) Where a clause is susceptible of two meanings, one having effect and the other none, the former is to be preferred (S. 84). But no part of the will is to be rejected if a reasonable construction can be put upon it. (S. 85). Thus, an attempt should always be made to reconcile the apparent inconsistencies and contradictions in a will. However, if that is not possible, the general intention of the testator should be given effect to, even if it involves the rejection or transposition of a particular superfluous, or even misplaced, word.
c) Where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, it is the last which prevails.
6) RULES FOR CONSTRUNING BEQUESTS (Ss. 90-98)
The following are the nine rules of construction relating to bequest to heirs and representatives of the testator.
a) Words describing the property to be bequeathed are deemed to refer to property answering that description at the testator's death.
It is to be remembered that a will speaks for the date of the death of the testator, and not form the date of its execution. Therefore, a mere recital in the will of the existing property does not exclude future accretions to the property of the testator, which may take place after the date of the will.
b) A bequest of the estate includes property which the testator may have power to appoint by will to any object he may think proper. (S. 91)
In other words, a testator may include in his will, not only his own property, but also property over which he has a general power of appointment.
c) Where a power of appointment is given in a will by the testator for the benefit of certain objects and in certain proportion, and such power is not exercised,, the objects of the power will get the gift in equal shares.
d) Where a bequest is made to the 'heirs' or right heirs' , or 'relations' or nearest relations', or 'family', or 'kindred' or 'nearer of kin' or 'next of kin' of a particular person, without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed is to be distributed as if it had belonged to such person, and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property.
e) Where a bequest is made to the 'representatives' or 'legal representatives' or 'personal representatives' or 'executors' or 'administrators' of a particular person, and the class so designated forms the direct and independent object of the bequest,- the property bequeathed id to be distributed as if it had belonged to such person and he had died intestate in respect of it.
f) Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.
g) Where property is bequeathed with a bequest in the alternative to another person then, the first named legatee is entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person named in the second branch of the alternatives will take the legacy.
h) Where property is bequeathed and words are added which describe a class of person, but do not denote them as direct objects of a distinct gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.
i) Where a bequest is to a class of persons under a general description, only those to whom the description applies are entitled to take the legacy.
7) CUMULATIVE OR NON-CUMULATIVE BEQUESTS (S.101)
S. 101 deals with what are known as cumulative bequests. It deals with cases where the testator has twice bequeathed a legacy to the same person. In such cases, a question raised as to whether the legatee is entitled to both legacies, or only to one of them, i.e., whether the second legacy is to be regarded as merely a repetition of the prior bequest, or is to be construed as an additional bounty and cumulative to the former benefit.
A will is void if it is made under the circumstances mentioned in ss.59, 61, 66&89. Thus, the following four kinds of will are void:
1) Will by minor, lunatic, etc. (S. 59)
A will is void if made by
a) A minor
b) A person of unsound mind or
c) A deaf, dumb or bind person who does not know what he is doing by it.
In law, capacity to make a will is known as 'testaments factio'.
2) Will caused by fraud, coercion, etc. (S.61)
Likewise, a will is void if it is caused by fraud, coercion or by such importunity as takes away the free agency of the testator.
SCOPE OF S.61- as a will is one of the most solemn of all legal documents, where under a dead person entrusts the carrying out of his wishes to the living, it becomes absolutely imperative that such a document should have bee the result of this free volition. Therefore, S. 61 declares as void any will prompted by any factor which takes away the free agency of the testator.
In prabati v. Sheo Bali (A. I. R. 1926 Oudh 262), a testator was persuaded to deprive his wife of any share in his property on a misrepresentation made by his nephew that his wife was unfaithful, unchaste and did not care for him. As a result, the testator made a will bequeathing all his property to the nephew. The Court held that the will was invalid.
3) oral privileged will [S.66(h)]
if, after making privileged will by word of mouth, the testator lives for more than one month, after the testator has ceased to be entitled to make a privileged will, such oral privileged will becomes void.
4) uncertain will (S. 89)
A will is void also if it is uncertain, i.e., not expressive of any definite intention of the testator.
Illus- if a testator says, "I bequeath goods to A" or "I bequeath to A", or "I leave to A all the goods mentioned in the Schedule" and no Schedule is found , or "I bequeath 'money', 'what', 'oil or the like" without saying how much, this is void.
Under this section, a bequest may be void either because the objects are uncertain, or because the subject-matter of the bequest is uncertain. Thus, a will which does not express any definite intention is void. So also if there are two inconsistent wills of the testator, bearing the same date, then both the wills may be regarded as void.
Difference between a void will and a void bequest
At the very outset, it is important to distinguish between a void bequest and a void will. When a will is void, the entire will is inoperative and without effect, as if it was no made at all. No clause or part of the will is of any effect. However, at times, a will as a whole may be perfectly valid, although there are certain clauses in the will which cannot have any legal effect.
The following 11 kinds of bequests are void:
1) Bequest to an attesting witness (S. 67)
A gift or bequest made to a person who has attested the testator's will is void. Likewise, a gift or bequest is also void if made to the husband or ht wife of the person who has attested the will.
However, a legatee under a will does not lose his legacy by attesting a codicil which confirms the will.
2) Uncertain bequest (S.89)
A will or bequest not expressive of any definite intention is void for uncertainty.
3) Bequest to a non- existing person (S. 112)
Where a bequest is made to a person by a particular description, and there is no person in existence a time of the testator's death who answers the description, the bequest is void.
However, if property is bequeathed to a person described as standing in a particular degree of kindred to a specified indivisible, but his possession f that thing is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise, and if a person, answering that description is alive at the death of the testator, or comes into existence between that event and such later time, at such later time, the property will go to that person, to if he is dead, to his representatives.
4) Bequest to person not in existence at testator's death (S.113)
Where a bequest is made to a person who in not in existence at the time of the testator's death, subject to a prior bequest, the later bequest is void, unless it comprises the whole of the remaining interest of the testator in the thing which is bequeathed.
5) Bequest infringing the rule against perpetuity (S. 114)
S. 114 then deals with bequests which infringe the rule against perpetuity. Perpetuity has been defined as the creation "an inalienable and indestructible interest". In the secondary or artificial sense, it denotes an interest which will not vest till a remote period.
The rule against perpetuity lays down that no bequest is valid, if the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who must be in existence at the expiry of that period, and to whom, if he attains full age, the thing bequeathed if to belong.
6) Bequest void under Ss. 113 and 114 (S. 115)
S. 115 clarifies that a bequest to a class of persons with regard to some of whom it is inoperative by reason of ss. 113 and 114 is void in regards the whole class.
Illus- a fund is bequeathed to A for his life, and after his death to his children who shall attain the age of 25. A survives the testator, and has some children living at the testator's death. Each child of A living at the testator's death must attain the age of 25 within the limits allowed for a bequest. But A may have children after the testator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. the bequest to A's children, therefore, is inoperative as to any child born after the testator's death, and in regard to those who do to attain the age of 25 within 18 years after A's death,- but is operative in regard to the other children of A.
7) Bequest upon prior void bequest (S. 116)
Where by reason of any of the rules contained in sections 113 and 114, and bequest in favour of a person is void in regard to such person, any bequest in contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.
Illus- a fund is bequeathed to A for his life, and after his death to such of his son as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to a take effect after the bequest to such of the sons of A as shall first attain the age 25, which bequest is void under section 114. The bequest to B is also void.
8) Bequest with a direction for accumulation (S. 117)
If a direction is given by a testator to accumulate the income arising form the property which is bequeathed, for a period longer than 18 years from the death of the testator, such a direction is void to the extent to which the period during which the accumulation is directed exceeds such period. In such case, at the end of such period of eighteen years, the property and its income is to be disposed of as id the period during which accumulation was directed had elapsed.
Thus, what is laid down is that accumulation of income is allowed provided that it does not extend beyond the life-time of the testator and a maximum period of 18 years thereafter, So, a direction I a will to accumulate it, say, for 20 years after the testator's death, is not altogether void.
9) Bequest to religious or charitable uses in certain cases (S.118)
No person having a nephew niece or near relative can bequeath any property to religious or charitable uses, expect by a will, which is-
i) executed not less than months before his death and
ii) Deposited in some place provided by law fro safe custody within 6 months of its execution.
10) bequest upon an impossible condition (S. 126)
A bequest upon an impossible condition is void
illus-
i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
ii) A bequeaths Rs. 500 to B on condition that he hall marry A's daughter. A's daughter was dead at the date of the will. The bequest is void.
Legacies are of three kinds
1) General
2) Specific and
3) Demonstrative
1) General legacy (S.148)
The Act has not defined a general legacy. It is a legacy, not of any particular thing, but of something which is to be provided out of the general estate of the testator. It is always directed to be paid out of the general funds of the testator. Under S. 148, where property is bequeathed to several persons on succession, in the absence of any direction to the contrary, a general legacy has to be sold, and the proceeds invested in authorized securities.
2) Specific legacy (Ss. 142-147 &149)
Definition (S. 142)
Where a testator bequeaths to any person a specific part of this property which is distinguished from all parts of his property, the legacy is said to be specific.
Section 143 to 146 declare that the following four kinds of bequests are not specific bequests, viz-
a) Where a certain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities in which it is invested are described in the will.
b) Where a bequest is made in general terms of a certain amount of any kind of stock, the legacy Is not specific, merely because the testator was, at the date of his will, possessed of stock of the specified kind, to an equal or greater amount than the bequeathed.
c) A money legacy is not specific merely because the will directs its payment to be postponed until some part of the testator has bee reduced to a certain form or remitted to a certain place.
d) Where a will contains a bequest of a residue of the testator's property along with an enumeration of some items of property not previously bequeathed, the articles enumerated are not to be deemed to be specifically bequeathed.
Rules relating to specific legacies (Ss. 147, 149, 152, 167)
The following are the six rules governing specific legacies
1) where property is specifically bequeathed to two or more persons in succession, it should be retained in the form in which the testator left it, although it may be of such a nature that its value is continually deceasing.
2) In case of deficiency of assets, the specific legacy is not liable to abate with the general legacy, (S. 149)
Jin case of general legacies, the rule is that if the assets of the testator are not sufficient to pay all such general legacies in full, they abate pro rata. However, this rule does not apply to specific legacies; such legacies are not subject to abatement like general legacies.
3) however, if the assets are not sufficient to pay all the debts of the testator and the specific legacies, a proportionate abatement is to be made from the specific legacies (S. 330)
4) if the thing bequeathed does not belong to the testator at the testator's death, or has be converted into property of a different kind, the specific legacy is a deemed. (S. 152)
5) where the thing specifically bequeathed is the right to receive something of value from a third party, and the testator himself receives it, the bequest is adeemed.(S. 154)
6) a specific legatee takes the legacy subject to all encumbrances. (S. 167)
Difference between general and specific legacies
There are four points of distinction between general and specific legacies, as under :
1) in the case of general legacies, if the assets of the testator after payment of debts, necessary expenses, and specific legacies are not sufficient to pay all the general legacies in full, they abate proportionately. A specific legacy, so long as the specified thing is in the testator's possession, is not liable to abatement with the general legacies on a deficiency of assets. On the other hand, if the thing specifically bequeathed does not, at the time of his death, belong to the testator or the property is converted into property of another r kind, in other words, if the legacy is adeemed, the specific legatee will not be entitled to any recompense or satisfaction out of the general estate.
2) Again, in the case of a specific bequest to two or more persons in succession, the property specifically bequeathed should be retained in the same form, though it is of a wasting nature, and notwithstanding that there is a danger that one object of the testator's bounty will be defeated by the tenancy for life lasting as long as property ensures.
But if the property is not specifically bequeathed, but is a general bequest to two or more persons in succession, and if the property is of a wasting nature, it is to be converted into permanent property; in other words, it must be invested in authorized securities.
3) a specific legacy carries income or interest form the testator's death. A general legacy carries interest form the expiration of one year after the testator's death. (S. 351)
4) a specific legatee tales the bequest subject to all encumbrances existing at the death of the testator and is liable to a make good the amount of such encumbrances. (S. 167)
3) Demonstrative legacy (S. 150)
Definition (S. 150)
When a testator bequeaths a certain sum of money, or a certain quantity of any other commodity,- and refers to a particular fund or stock, so as to constitute for the same the primary fund or stock out of which payment is to be made- the legacy is said to be demonstrative.
Illus- a bequeaths to B, Rs. 1000 being part of a debt due to him from W. he also bequeaths to C Rs. 1000 to be paid out of the debt due to him form W. the legacy to B is specific, the legacy to C is demonstrative.
Difference between specific and demonstrative legacies
Where specified property is given to the legatee, the legacy is specific.
Where the legacy is directed to be paid out of the specified property, it is demonstrative.
The distinction between a specific legacy and a demonstrative legacy is important. A demonstrative legacy is, in its nature, a general legacy. The only distinction between a general legacy and a demonstrative legacy is that where a specific property is indicate out of which the legacy is payable, it becomes demonstrative legacy.
There are three more points of difference between a specific and a demonstrative legacy:
1) a specific legacy is to specific property or debt which is distinguished form all other parts of the testator's property, where as a demonstrative legacy is of a certain sum of money or a certain quantity of any other commodity which is directed to be paid out of a specific fund or stock.
2) In the case of specific legacy, the legatee is entitled to have only that specific property. If the property is lost or does not exist at the testator's death, the legatee gets nothing. In the case of a demonstrative legacy, if the specific fund or stock out of which it is directed to be paid, fails, the legatee is not deprived of his legacy, but is permitted to receive it out of the general assets.
3) A specific legacy is not liable to abate for the payment of the debts of the testator, when the assets are insufficient to pay the debts and the specific legacy; a demonstrative legacy, on the other hand, is liable to abate when it becomes a general legacy by reason of the failure of the fund out of which it is primarily payable.
Object-
The object of this chapter is to provide a summary procedure for the protection of the property of the deceased in cases of dispute as to succession. It is in the nature of an interlocutory proceeding, calling upon the court to determine who has the right to possession, pending the final determination of the right of the parties in a regular suit.
PROCUDURE FOR OBTAINING RELIEF AGAINST WRONGFUL POSSESSION (Ss. 192, 194, 201. 205- 210)
1) application by party aggrieved (Ss. 192 & 205)
if any person dies, leaving property, moveable or immoveable, any person claiming a right by succession thereto or to any portion thereof, may make an application to a the District judge of the district where any part of the property is found or situate, for relief,- either after actual possession has be taken by another person, or when forcible means f seizing possession are apprehended.
Any agent, relative or near friend, or the Court of Wards in cases within their cognizance, may, in the event of any minor, or any disqualified or absent person being entitled by succession to such property as aforesaid, make such an application for relief.
An application under this Chapter to the District judge must be made within six months of the death of the person whose property is claimed by right in succession.
2) procedure to be followed by the District Judge (Ss. 193, 194 & 201):-
a) the District Judge examines though applicant on oath, and may make such further inquiry as to whether there is sufficient ground for believing that the party in possession, or taking forcible means for seizing possession, has no lawful title, and that the applicant is really entitled to the property, and is likely to be materially prejudiced if left to the ordinary remedy of suit, and that the application is made bona fide
b) If satisfied that there is sufficient ground for believing, but not otherwise, the judge summons the party complained of , and gives notice of vacant or disturbed possession, by publication, and after expiry of a reasonable time, determines summarily the right to possession and delivers possession accordingly.
The Judge also has the power to appoint an officer to take an inventory of effects, and seal or otherwise secure the same upon being applied to for the purpose, without delay, whether the Judge has concluded the inquiry necessary for summoning the party complained of or not.
Vikram Singh v. Krishna Singh Jadev & others, A. I. R. 1979 M.P
The Madhya Pradesh High Court has held that the recoding of satisfaction on the grounds specified in S. 193 is a condition precedent to the issue of summons under S. 194. therefore, if the Court without recoding its satisfaction, order the issuance of summons, it would be acting contrary to the provisions of S. 194 of the act.
3) effect of a decision (S. 209)
The decision of the judge has no other effect than that of setting the actual possession; but for this purpose, it is declared to be final, and is not subject to any appeal or review : S. 209
The High Court has no power of revision over the proceedings of the district Court under this Chapter, except as provided herein. But,. Such an order must be a legal order, and so, a totally illegally proceeding or order would always be subject to are vision by the High Court. Where, however, the District Court ha exercised its power legally under this Chapter, hen however erroneous its procedure or unjust or improper its order, the High Court has no power of revision.
CURATOR (Ss. 196-197 & 200)
1) When appointed (S. 195)
If it appears, upon inquiry that danger is apprehended of the misappropriation or waste of the property before the summary proceeding can be determined, and that he delay in obtaining security form the party in possession is likely to expose the party out of possession t considerable risk, the District Judge may appoint one or more curators whose authority is to continue according to the terms of their appointments, and in no case beyond the determination of the summary proceeding and that confirmation or delivery of possession in consequence thereof S.195.
2) His powers (Ss. 196-197 & 200)
a) A curator has three powers: a) he has the power to take possession of , and manage, he property, and may take security to prevent misappropriation or waste thereof :S. 196
b) He can recover debts and rents, and all payments made to him are valid and have effect of discharging the person making them :S. 197
c) He may file and defend suits relating to the property of which he is curator : S. 200
3) His duties (Ss. 1919, 202 & 203)
The curator's duties are mainly two:
a) he has to give security, and the court may give him remuneration, not exceeding five per cent out of moveable property and a reasonable amount from the annual profits of immoveable property : (S. 198)
b) He has to file monthly accounts in abstract, and must on expiry of each period of three months, if his administration lasts so long, ad upon giving up the possession of the property, file a detailed account of his administration to the satisfaction of the District Judge.
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