Legum Baccalaureus (LLB) - Family Law - 2 (MUSLIM LAW AND OTHER PERSONAL LAWS) 2nd Semester Syllabus Short Notes

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Muslim Law and Other Personal Laws)

 PAPER – II:

Unit-I: Origin and development of Muslim Law - Sources of Muslim Law - Schools of Muslim Law - Difference between the Sunni and Shia Schools – Sub schools of Sunni Law - Operation and application of Muslim Law - Conversion to Islam - Effects of conversion - Law of Marriage, nature of Muslim Marriage - Essential requirements of valid Marriage - Kinds of Marriages – distinction between void, irregular and valid marriage - Dower (Mahr) - Origin, nature and importance of dower, object of dower and classification of dower – The muslim women (Protection of rights on marriage) Act,2019.

 

Unit-II: Divorce - Classification of divorce - different modes of Talaq – Legal consequences of divorce - Validity of Triple Talaq: Judicial Interpretation and Legislative Response in India - Dissolution of Muslim Marriage Act, 1939 - Amendment to the Dissolution of Muslim marriage Act, 1939. Maintenance, Principles of maintenance, Persons entitled to maintenance - The Muslim Women (Protection of Rights on Divorce) Act, 1986 - Effect of conversion on maintenance and difference between Shia and Sunni Law.

 

Unit-III: Parentage - Maternity and Paternity - Legitimacy and acknowledgment - Guardianship - Meaning - Kinds of guardianship - Removal of guardian - Difference between Shia and Sunni Law. Gift - Definition of Gift - Requisites of valid gift - Gift formalities - Revocation of gift - Kinds of gift. Wills - Meaning of Will - Requisites of valid Will - Revocation of Will - Distinction between Will and Gift - Difference between Shia and Sunni Law.

 

Unit-IV: Waqf _ Definition - Essentials of Waqf - Kinds of Waqf – Creation of Waqf - - Revocation of Waqf - Salient features of the Waqf Act, 1995 – Mutawalli - Who can be Mutawalli - Powers and duties of Mutawalli - Removal of Mutawalli and Management of Waqf property. Succession - Application of the property of a deceased Muslim - Legal position of heirs as representatives - Administration - Waqf Tribunals and Jurisdiction.

 

Unit-V: Special Marriage Act, 1954 - -Salient features of Indian Divorce Act -

Domicile - Maintenance to dependents/ Spouses - Intestate succession of Christians under the Indian Succession Act,1925.

 

 FAMILY LAW – 2 SYLLABUS SHORT NOTES

(MUSLIM LAW AND OTHER PERSONAL LAWS)

 

UNIT – 1

Origin and development of Muslim Law

Muslim Law, also known as Islamic Law or Shariah, originated in the 7th century CE in the Arabian Peninsula, where the Prophet Muhammad received revelations from God that were recorded in the holy book of Islam, the Quran. Over the centuries, Muslim scholars and jurists developed a sophisticated legal system based on the Quran and the teachings and practices of the Prophet Muhammad, known as the Sunnah.

The development of Muslim Law was influenced by a variety of factors, including the customs and practices of the Arabian Peninsula before the advent of Islam, as well as the legal systems of other civilizations, including the Roman and Byzantine empires. Muslim scholars also drew on the works of Greek philosophers, particularly Aristotle, in their legal reasoning.

During the early centuries of Islam, Muslim scholars developed four main schools of Islamic Law, known as the Hanafi, Maliki, Shafi'i, and Hanbali schools. Each school has its own approach to interpreting the Quran and Sunnah and its own set of legal principles and rules.

Muslim Law has continued to evolve over the centuries, with new legal issues and challenges arising as Muslim communities spread throughout the world. Today, Muslim scholars and jurists continue to interpret and apply Islamic Law to contemporary issues, such as human rights, gender equality, and modern forms of finance and commerce.

 

Sources of Muslim Law

The sources of Muslim Law, also known as Islamic Law or Shariah, include:

1.       Quran: The Quran is the holy book of Islam, believed by Muslims to be the words of God as revealed to the Prophet Muhammad. It is the primary source of Islamic Law and contains moral and legal guidance for Muslims.

2.       Sunnah: The Sunnah refers to the actions and teachings of the Prophet Muhammad, as recorded in the Hadith, which is a collection of sayings and actions of the Prophet. The Sunnah provides guidance for Muslims on various aspects of their lives, including religious practices and legal matters.

3.       Ijma: Ijma refers to the consensus of Muslim scholars on a particular legal issue. It is considered a valid source of Islamic Law, as it reflects the collective wisdom of the Muslim community.

4.       Qiyas: Qiyas is the process of analogical reasoning, whereby legal rulings are derived from the Quran, Sunnah, and Ijma by analogy to existing laws and precedents.

5.       Ijtihad: Ijtihad is the process of independent legal reasoning by Muslim scholars, based on the Quran, Sunnah, and other sources of Islamic Law. It is considered an important source of Islamic Law, particularly in cases where the Quran and Sunnah do not provide clear guidance.

These sources of Islamic Law have been developed and refined over centuries by Muslim scholars and jurists, and continue to be the basis for legal rulings in Muslim societies around the world.

 

Schools of Muslim Law

The schools of Muslim Law, also known as Islamic jurisprudence or fiqh, are the four main schools (sunni) of thought that have emerged from the early Islamic period. They are:

1.       Hanafi School: The Hanafi School was founded by Abu Hanifa (d. 767 CE) and is the oldest and most widely followed school of Islamic Law. It is predominant in the Indian subcontinent, parts of Central Asia, Turkey, and the Balkans.

2.       Maliki School: The Maliki School was founded by Malik ibn Anas (d. 795 CE) and is predominant in North and West Africa, as well as some parts of the Middle East.

3.       Shafi'i School: The Shafi'i School was founded by Muhammad ibn Idris al-Shafi'i (d. 820 CE) and is predominant in Indonesia, Malaysia, and other parts of Southeast Asia, as well as parts of the Middle East.

4.       Hanbali School: The Hanbali School was founded by Ahmad ibn Hanbal (d. 855 CE) and is predominant in Saudi Arabia and other parts of the Arabian Peninsula.

Apart from these four Sunni schools, there is also the Shia school of Muslim law:

5.       Ja'fari School (Ja'farism): Followed by the Twelver Shia Muslims, particularly in Iran and parts of Iraq. It is named after Imam Ja'far al-Sadiq (702–765 CE) and has distinct legal principles and interpretations compared to the Sunni schools.

Each school of Islamic Law has its own approach to interpreting the Quran and Sunnah, as well as its own set of legal principles and rules. However, there is a significant overlap in their legal opinions, and they share a common goal of interpreting and applying Islamic Law to the changing needs of Muslim societies.

 

Difference between the Sunni and Shia Schools

Sunni and Shia are two main branches of Islam, each with their own schools of Islamic Law. Here are some differences between Sunni and Shia schools of Islamic Law:

1.       Leadership: The main difference between Sunni and Shia schools is the question of leadership after the death of the Prophet Muhammad. Sunnis believe that the first four Caliphs (Abu Bakr, Umar, Uthman, and Ali) were rightly guided and that the caliphate should be determined by the consensus of the Muslim community. Shias, on the other hand, believe that leadership should have remained within the family of the Prophet Muhammad, and that the Prophet's cousin and son-in-law, Ali, was the rightful successor.

2.       Sources of Islamic Law: While both Sunni and Shia schools recognize the Quran and Sunnah as primary sources of Islamic Law, they differ in their interpretation of them. Shias give more importance to the Hadith (sayings and actions of the Prophet and his family), while Sunnis place greater emphasis on consensus (ijma) and analogical reasoning (qiyas).

3.       Legal Practices: Sunni and Shia schools also differ in some of their legal practices. For example, Shias practice temporary marriage (mut'a), while Sunnis consider it forbidden. Shias also place greater emphasis on mourning and commemoration of the martyrdom of Imam Hussain, the Prophet's grandson, while Sunnis do not have the same tradition.

4.       Prayer Practices: Sunni and Shia schools have some differences in their prayer practices. For example, Shias combine the noon and afternoon prayers, as well as the evening and night prayers, while Sunnis pray them separately. Shias also place greater emphasis on prostration on earth (sajdah al-turbah), which involves prostrating on a piece of clay or stone, while Sunnis do not have this practice.

It is important to note that these differences are primarily in matters of interpretation and legal practice, and that Sunnis and Shias share the same fundamental beliefs and practices of Islam. Both Sunni and Shia schools of Islamic Law have their own scholars, legal codes, and traditions, and Muslims from both branches continue to coexist and interact in various parts of the world.

 

Sub schools of Sunni Law

The Sunni School of Islamic Law has several sub-schools, also known as madhhabs, which differ in their interpretation of Islamic Law. The four main sub-schools are:

1.       Hanafi School: The Hanafi School was founded by Abu Hanifa (d. 767 CE) and is the oldest and most widely followed sub-school of Islamic Law. It is predominant in the Indian subcontinent, parts of Central Asia, Turkey, and the Balkans.

2.       Maliki School: The Maliki School was founded by Malik ibn Anas (d. 795 CE) and is predominant in North and West Africa, as well as some parts of the Middle East.

3.       Shafi'i School: The Shafi'i School was founded by Muhammad ibn Idris al-Shafi'i (d. 820 CE) and is predominant in Indonesia, Malaysia, and other parts of Southeast Asia, as well as parts of the Middle East.

4.       Hanbali School: The Hanbali School was founded by Ahmad ibn Hanbal (d. 855 CE) and is predominant in Saudi Arabia and other parts of the Arabian Peninsula.

In addition to these four main sub-schools, there are also some smaller sub-schools that have emerged from these main schools. For example, the Zahiri School was a sub-school of the Shafi'i School, and the Thawri School was a sub-school of the Hanafi School. These smaller sub-schools have not had as much influence as the four main sub-schools, but they are still studied and followed by some scholars and practitioners of Islamic Law.

 

 

Operation and application of Muslim Law

The operation and application of Muslim Law, also known as Islamic Law or Shariah, varies depending on the country and region. Here are some general principles and practices related to the operation and application of Muslim Law:

1.       Primary Sources: The primary sources of Islamic Law are the Quran and Sunnah (the sayings, actions, and tacit approvals of the Prophet Muhammad). Islamic Law is derived from these two sources, as well as from secondary sources such as the consensus of the scholars (ijma) and analogical reasoning (qiyas).

2.       Legal Scholars: Islamic Law is interpreted and applied by legal scholars who have specialized knowledge of the Quran, Hadith, and other Islamic texts. These scholars are known as muftis, and their opinions and rulings are known as fatwas.

3.       Court System: Some Muslim-majority countries have a separate court system for Islamic Law, known as a Shariah court. In these courts, Islamic Law is applied to cases involving family law, inheritance, and other matters that fall under the purview of Shariah.

4.       Family Law: Islamic Law has specific rules and regulations regarding family matters such as marriage, divorce, custody, and inheritance. These rules are applied in different ways depending on the school of Islamic Law and the country or region.

5.       Criminal Law: Islamic Law has a criminal justice system that includes penalties for crimes such as theft, adultery, and murder. These penalties include fines, imprisonment, and in some cases, corporal punishment.

6.       Application in Non-Muslim Countries: In non-Muslim countries, Islamic Law may be applied in some cases through arbitration and mediation. This is typically done by Islamic legal scholars who are trained in the legal systems of both Muslim and non-Muslim countries.

It is important to note that the application of Islamic Law can vary widely depending on the country, region, and cultural context. While some aspects of Islamic Law are widely practiced and accepted, others are subject to debate and interpretation, and there is significant variation in how Islamic Law is applied in different parts of the world.

 

Conversion to Islam

Conversion to Islam refers to the process of becoming a Muslim by making a declaration of faith (Shahada) in the presence of witnesses. The Shahada is a simple statement that affirms the belief in the oneness of God (Allah) and the prophethood of Muhammad. The Shahada is as follows:

"La ilaha illa Allah, Muhammadur rasoolu Allah"

(There is no god but Allah, and Muhammad is the messenger of Allah)

The act of converting to Islam is a personal decision and is not forced upon anyone. In fact, Islamic teachings emphasize that there should be no coercion or compulsion in matters of religion, as stated in the Quran:

"There is no compulsion in religion. The right way is now distinct from the wrong way." (Quran 2:256)

When someone decides to convert to Islam, they may seek guidance from a Muslim friend or community member, or they may approach a local mosque or Islamic center. The process of conversion typically involves learning about Islamic beliefs and practices, and may also involve taking an oath of allegiance to the Muslim community.

After declaring the Shahada, the new Muslim is considered to be a part of the worldwide Muslim community (Ummah). They may be given a Muslim name, and may also receive guidance and support from the community in their journey to learn more about Islam and live according to its teachings.

Conversion to Islam is considered to be a significant spiritual and personal milestone for the individual, and it is also seen as a positive development for the larger Muslim community. However, it is important to note that conversion to Islam is not a prerequisite for acceptance by God or for leading a moral and ethical life. Ultimately, what matters most in Islam is one's sincere faith and good deeds, regardless of their background or religious affiliation.

 

Effects of conversion

Conversion to Islam can have a number of effects on the individual, their relationships, and their community. Here are some potential effects of conversion:

1.       Personal Transformation: Conversion to Islam can be a deeply transformative experience, as it involves a new worldview, belief system, and way of life. The individual may experience a renewed sense of purpose and meaning, and may be motivated to live according to the teachings of Islam.

2.       Community and Social Support: Conversion to Islam often involves joining a new community of Muslims who can offer support, guidance, and friendship. This community can help the new Muslim learn about Islam and its practices, and can also provide a sense of belonging and connection.

3.       Changes in Lifestyle: Islam has specific teachings about how to live one's life, including guidelines for prayer, diet, dress, and social interactions. As a result, conversion to Islam can involve significant changes in lifestyle and behavior.

4.       Family Relationships: Conversion to Islam can also affect family relationships, particularly if the individual comes from a non-Muslim background. Some family members may be supportive of the new Muslim's decision, while others may be critical or resistant.

5.       Interfaith Relations: Conversion to Islam can also affect relationships with people of other faiths. In some cases, conversion may lead to greater understanding and respect between people of different faiths, while in other cases it may lead to conflict or tension.

6.       Perceptions of Islam: Conversion to Islam can also affect perceptions of Islam and Muslims, both within the individual's own community and in the broader society. The individual may be seen as a representative of Islam and may face stereotypes and misconceptions about the religion and its followers.

It is important to note that the effects of conversion can vary widely depending on the individual's personal circumstances and the social and cultural context in which they live. Ultimately, the decision to convert to Islam is a personal one that should be based on a sincere desire to embrace the teachings of Islam and live a life of faith, compassion, and service.

 

Law of Marriage, nature of Muslim Marriage

The law of marriage in Islam is a central aspect of Muslim family law, and governs the relationships between spouses and their rights and obligations towards one another. Muslim marriage is considered to be a legal contract (Nikah) between two consenting individuals, and is based on the principles of mutual respect, love, and partnership.

The nature of Muslim marriage is characterized by a number of key features:

1.       Consent: One of the essential elements of Muslim marriage is the requirement for the bride and groom to provide their free and informed consent to the marriage. The consent of both parties is necessary for the validity of the marriage contract.

2.       Public Declaration: The marriage contract must be publicly declared, typically in the presence of witnesses and an officiant, who recites the terms of the contract and ensures that both parties understand and agree to them.

3.       Mahr: The marriage contract also includes the payment of a dowry or Mahr by the groom to the bride, which serves as a symbol of the husband's commitment to provide for his wife and honor her.

4.       Rights and Obligations: Muslim marriage imposes certain rights and obligations on both the husband and wife. For example, the husband is required to provide financial support to his wife and family, while the wife is expected to manage the household and care for the children.

5.       Monogamy: Muslim marriage is typically monogamous, meaning that a man can only be married to one woman at a time. However, Islamic law does permit men to have up to four wives in certain circumstances, such as when the husband can provide for multiple wives and treat them fairly.

Overall, the nature of Muslim marriage is characterized by an emphasis on mutual respect, partnership, and commitment. The marriage contract is seen as a binding legal agreement that outlines the rights and obligations of both parties, and serves as a foundation for building a strong and fulfilling relationship.

 

Essential requirements of valid Marriage

In Islamic law, a valid marriage must meet certain essential requirements in order to be considered legally binding. These requirements include:

1.       Consent: Both parties to the marriage must provide their free and informed consent to the marriage. This means that they must understand the nature of the marriage contract and agree to its terms without any undue influence or coercion.

2.       Capacity: Both parties must have the legal and mental capacity to enter into the marriage contract. This means that they must be of legal age, be sane and mentally capable, and not be under any legal disability that would prevent them from entering into the marriage contract.

3.       Offer and Acceptance: The marriage contract must involve an offer and acceptance between the parties. This means that the groom must offer to marry the bride, and the bride must accept the offer in the presence of witnesses and an officiant.

4.       Presence of Witnesses: The marriage contract must be witnessed by two adult Muslim witnesses who are of sound mind and understand the nature of the contract. The witnesses must be present at the time of the offer and acceptance, and must attest to the fact that the parties freely and willingly entered into the contract.

5.       Mahr: The marriage contract must include the payment of a dowry or Mahr by the groom to the bride, which serves as a symbol of the husband's commitment to provide for his wife and honor her.

6.       Legal Formalities: The marriage contract must comply with any legal formalities required by the local laws and customs of the jurisdiction in which the marriage is taking place. For example, in some countries, a marriage license or registration may be required in order for the marriage to be considered legally valid.

Overall, these essential requirements of a valid marriage serve to ensure that the marriage contract is entered into voluntarily, with full understanding and consent by both parties, and that it complies with the legal and cultural norms of the society in which it is taking place.

 

Kinds of Marriages

In Islamic law, there are several types of marriages that are recognized, each with their own specific requirements and conditions. Some of the most common kinds of marriages include:

1.       Valid Marriage (Sahih): This is a marriage that meets all the essential requirements of a valid marriage, including the consent of both parties, capacity, offer and acceptance, presence of witnesses, Mahr, and legal formalities. A valid marriage creates a legally binding relationship between the husband and wife, and establishes their rights and obligations towards each other.

2.       Void Marriage (Batil): This is a marriage that does not meet one or more of the essential requirements of a valid marriage, such as where one or both parties lack the legal capacity to enter into the marriage, or where the marriage is entered into under duress or coercion. A void marriage is considered to be invalid from the beginning, and does not create any legal rights or obligations between the parties.

3.       Irregular Marriage (Fasid): This is a marriage that is entered into with some defect or irregularity, such as where the Mahr is not specified, or where the witnesses are not present. An irregular marriage is still considered to be valid, but it may be subject to certain legal restrictions or conditions.

4.       Temporary Marriage (Mut'ah): This is a type of marriage that is contracted for a fixed period of time, typically for a few hours, days, or months. Temporary marriage is allowed under certain circumstances, such as when the parties are traveling and need temporary companionship, but it is generally not recognized in many Muslim societies.

5.       Misyar Marriage: This is a type of marriage that is entered into with the understanding that the wife will not live with the husband on a permanent basis, but will maintain a separate household. Misyar marriage is allowed under certain conditions, but it is controversial and not widely recognized in many Muslim societies.

Overall, these different kinds of marriages reflect the diversity and complexity of Islamic family law, and the various social, cultural, and legal contexts in which Muslim marriages take place.

 

distinction between void, irregular and valid marriage

In Islamic law, there are three main categories of marriages: void, irregular, and valid. These categories are based on whether the marriage contract meets the essential requirements for a valid marriage. Here is a brief overview of the distinction between these three types of marriages:

1.       Void Marriage (Batil): A void marriage is one that is considered to be invalid from the beginning because it does not meet one or more of the essential requirements for a valid marriage. For example, if one of the parties lacks the legal capacity to enter into the marriage contract, such as being underage or mentally incompetent, the marriage would be considered void. Other reasons that may render a marriage void include where the marriage is entered into under duress, coercion, or fraud, or where the parties are closely related to each other in a prohibited degree. A void marriage does not create any legal rights or obligations between the parties.

2.       Irregular Marriage (Fasid): An irregular marriage is one that is entered into with some defect or irregularity that does not render it completely void, but may affect its validity or require some legal correction. For example, if the marriage contract is missing some essential element, such as the specification of the Mahr (dowry), the marriage would be considered irregular. While the marriage is still considered valid, it may be subject to certain legal restrictions or conditions until the defect is corrected. An irregular marriage creates legal rights and obligations between the parties, but those rights and obligations may be affected by the defect in the marriage contract.

3.       Valid Marriage (Sahih): A valid marriage is one that meets all the essential requirements for a valid marriage, including the capacity and consent of both parties, offer and acceptance, presence of witnesses, specification of the Mahr, and compliance with any legal formalities required by the local laws and customs. A valid marriage creates a legally binding relationship between the husband and wife, and establishes their rights and obligations towards each other.

In summary, the distinction between void, irregular, and valid marriages in Islamic law is based on the extent to which the marriage contract meets the essential requirements for a valid marriage. While a void marriage is considered completely invalid, an irregular marriage is still valid but subject to certain legal restrictions or conditions, while a valid marriage creates a legally binding relationship between the parties with full rights and obligations.

 

Dower (Mahr)

In Islamic law, the dower (Mahr) is a financial gift that is given by the husband to the wife as a condition of the marriage contract. It is an essential element of a valid marriage, and the amount and form of the dower must be agreed upon by both parties at the time of the marriage contract.

The dower serves several important functions in Islamic marriage law. First, it is a sign of the husband's commitment to the marriage and his willingness to provide for the wife. Second, it serves as a form of financial security for the wife, as she is entitled to keep the dower whether or not the marriage ends in divorce or the death of the husband. Third, the dower can also serve as a way to prevent the husband from divorcing the wife arbitrarily, as he would be required to pay the full amount of the dower if he were to initiate divorce proceedings.

The amount and form of the dower can vary depending on the circumstances of the marriage and the agreement of the parties. In some cases, the dower may be a sum of money or other property that is paid to the wife at the time of the marriage contract. In other cases, the dower may be deferred or payable in installments over a period of time. The parties may also agree to a symbolic or nominal dower amount, or to waive the dower altogether.

It is important to note that the dower is a right of the wife, and she cannot be compelled to relinquish or reduce it without her consent. The dower is also separate from other forms of financial support or maintenance that the husband may be required to provide to the wife during the marriage, such as housing, food, and clothing. Overall, the dower is an important element of Islamic marriage law that reflects the rights and obligations of both parties in the marriage contract.

 

Origin, nature and importance of dower, object of dower and classification of dower

The dower (Mahr) is an important element of Islamic marriage law that has its origin in the teachings of the Quran and the Sunnah of the Prophet Muhammad. Here is a brief overview of the nature, importance, and classification of dower:

1.       Nature and Importance of Dower: The dower is a financial gift that is given by the husband to the wife as a condition of the marriage contract. It serves several important functions, such as demonstrating the husband's commitment to the marriage, providing financial security for the wife, and preventing arbitrary divorce by the husband. The dower is considered an essential element of a valid marriage, and the amount and form of the dower must be agreed upon by both parties at the time of the marriage contract.

2.       Object of Dower: The main object of the dower is to provide financial security for the wife in the event of divorce or the death of the husband. The dower is a form of property that is owned by the wife, and she has the right to demand the full amount of the dower at any time, even if the marriage is still ongoing. In addition, the dower can also serve as a way to prevent arbitrary divorce by the husband, as he would be required to pay the full amount of the dower if he were to initiate divorce proceedings.

3.       Classification of Dower: In Islamic law, there are three main types of dower:

·         Prompt Dower (Mu'ajjal): This is a dower that is payable immediately upon the completion of the marriage contract. It can be in the form of money, property, or services, and is usually paid in full at the time of the marriage contract.

·         Deferred Dower (Mu'akhkhar): This is a dower that is deferred or postponed until a specified later time, such as the death of the husband or the occurrence of a specified event. It can also be paid in installments over a period of time, and may be subject to interest or other conditions.

·         Specified Dower (Mithl): This is a dower that is specified in advance by the husband and accepted by the wife. It can be in the form of money, property, or services, and can be paid immediately or deferred to a later time.

Overall, the dower is an important aspect of Islamic marriage law that reflects the rights and obligations of both parties in the marriage contract. It provides financial security for the wife, and serves as a way to prevent arbitrary divorce by the husband. The classification of dower allows for flexibility in the amount and form of the dower, and reflects the diverse circumstances and needs of different marriages.

 

 

The Muslim women (Protection of rights on marriage) Act,2019.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 is an Indian law that was enacted to provide protection to Muslim women in India against the practice of instant divorce (talaq-e-biddat) by their husbands. The law was passed by the Indian parliament in July 2019 and received Presidential assent on August 1, 2019.

The key provisions of the Act are as follows:

1.       Definition of Talaq-e-Biddat: The Act defines talaq-e-biddat as any form of divorce pronounced by a Muslim husband that is instantaneous and irrevocable, and which is pronounced in one sitting or by any means such as electronic communication.

2.       Criminalization of Talaq-e-Biddat: The Act makes talaq-e-biddat a criminal offence, punishable with imprisonment for a term that may extend up to three years, along with a fine.

3.       Prohibition on Talaq-e-Biddat: The Act prohibits the practice of talaq-e-biddat and declares it to be void and illegal.

4.       Protection of Women's Rights: The Act provides for various safeguards to protect the rights of Muslim women, including the right to maintenance and custody of their children. It also allows women who have been given talaq-e-biddat to seek custody of their minor children.

5.       Bail Provision: The Act provides for bail to the accused husband if the magistrate is satisfied that the reasons for granting bail are reasonable.

The Muslim Women (Protection of Rights on Marriage) Act, 2019 has been widely welcomed as a positive step towards protecting the rights of Muslim women in India. It aims to prevent the arbitrary and instant divorce of Muslim women and provide them with legal recourse in case of such divorces.

 

UNIT – 2

Divorce

Divorce is the legal dissolution of a marriage by a court or other competent body. In Muslim law, divorce is known as talaq. A husband may pronounce talaq and unilaterally dissolve the marriage without the consent of his wife.

It is important to note that divorce in Islam is not encouraged and should only be resorted to as a last resort. Efforts should be made by both spouses to reconcile their differences and save their marriage.

 

Classification of divorce

In Muslim law, divorce (talaq) can be classified into two broad categories: revocable (Raj'i) divorce and irrevocable (Ba'in) divorce.

1.       Revocable (Raj'i) divorce: This is a temporary and revocable divorce. It can be initiated by the husband by pronouncing talaq in any form. If the husband and wife reconcile during the iddat period (a period of waiting that follows the pronouncement of talaq), the divorce is automatically revoked, and the couple can resume their marriage without the need for a new nikah (marriage contract). If the iddat period expires without reconciliation, the divorce becomes irrevocable.

2.       Irrevocable (Ba'in) divorce: This is a permanent and irrevocable divorce. It can be initiated by the husband by pronouncing talaq-e-ba'in, which is an irrevocable form of talaq that cannot be revoked. Once a divorce is irrevocable, the couple cannot reconcile without going through a new nikah.

There are three types of talaq recognized in Muslim law:

1.       Talaq-e-Ahsan: This is the most approved form of talaq. It involves a single pronouncement of divorce during the wife's period of purity (tuhr), followed by a period of abstinence (iddat) of three menstrual cycles. If the husband and wife reconcile during the iddat period, the divorce is automatically revoked. If not, the divorce becomes final at the end of the iddat period.

2.       Talaq-e-Hasan: This is a less approved form of talaq. It involves three successive pronouncements of divorce during three successive periods of purity, with a period of reconciliation (ruju) between each pronouncement. If the husband and wife reconcile during the ruju period, the divorce is revoked. If not, the divorce becomes final after the third pronouncement.

3.       Talaq-e-Biddat: This is the most disapproved form of talaq. It involves an instantaneous and irrevocable divorce pronounced by the husband in one sitting or by any other means, such as electronic communication. The Supreme Court of India has declared this form of talaq to be unconstitutional and void.

Divorce can also be classified based on the reasons for divorce. In Muslim law, there are two types of divorce based on the reasons for divorce:

1.       Khula: This is a form of divorce initiated by the wife. It occurs when the wife seeks a divorce from her husband due to a valid reason, such as cruelty or non-support. The husband can grant the khula, or a judge can decree it.

2.       Mubarat: This is a mutual divorce initiated by both the husband and wife. It occurs when both parties agree to end their marriage due to irreconcilable differences. The consent of both parties is required for a mubarat divorce to be valid.

 

different modes of Talaq

In Muslim law, there are three modes of Talaq (divorce) recognized:

1.       Talaq-e-Ahsan: This is the most approved form of talaq. It involves a single pronouncement of divorce during the wife's period of purity (tuhr), followed by a period of abstinence (iddat) of three menstrual cycles. If the husband and wife reconcile during the iddat period, the divorce is automatically revoked. If not, the divorce becomes final at the end of the iddat period.

2.       Talaq-e-Hasan: This is a less approved form of talaq. It involves three successive pronouncements of divorce during three successive periods of purity, with a period of reconciliation (ruju) between each pronouncement. If the husband and wife reconcile during the ruju period, the divorce is revoked. If not, the divorce becomes final after the third pronouncement.

3.       Talaq-e-Biddat: This is the most disapproved form of talaq. It involves an instantaneous and irrevocable divorce pronounced by the husband in one sitting or by any other means, such as electronic communication. The Supreme Court of India has declared this form of talaq to be unconstitutional and void.

It is important to note that talaq should not be taken lightly and should only be resorted to as a last resort. Efforts should be made by both spouses to reconcile their differences and save their marriage.

 

Legal consequences of divorce

In Muslim law, divorce has several legal consequences for the parties involved. Some of the important legal consequences of divorce are:

1.       Termination of Marriage: The most significant legal consequence of divorce is the termination of the marriage. After the divorce, the husband and wife are no longer considered to be married to each other, and they are free to marry other people.

2.       Dissolution of Conjugal Rights: After the divorce, the husband and wife lose their conjugal rights over each other. They are no longer obliged to live together, and they are not entitled to any marital benefits, such as maintenance or inheritance.

3.       Iddat: After the divorce, the wife is entitled to a period of waiting called the iddat, during which she cannot marry another man. The duration of the iddat depends on the mode of divorce and the reason for divorce. During the iddat period, the husband is required to provide for the wife's maintenance.

4.       Return of Dower: The husband is required to return the dower (mahr) to the wife after the divorce. The dower may be paid in full or in installments, depending on the terms of the marriage contract.

5.       Custody of Children: After the divorce, the custody of minor children is usually awarded to the mother. However, the father has the right to visitation and access to the children.

6.       Property Rights: After the divorce, the parties are entitled to their respective shares in the joint property. The share of each party depends on various factors, such as the mode of divorce, the duration of the marriage, and the contribution of each party to the acquisition of the property.

It is important to note that the legal consequences of divorce may vary depending on the particular circumstances of each case. It is advisable to consult a competent lawyer to understand the legal implications of divorce in a specific situation.

 

 

 

Validity of Triple Talaq: Judicial Interpretation and Legislative Response in India

The validity of Triple Talaq (also known as Talaq-e-Biddat) has been a subject of controversy and debate in India for many years. Triple Talaq is a practice under Muslim personal law where a husband can divorce his wife by pronouncing Talaq three times in one sitting, without the need for any valid reason or judicial intervention.

In August 2017, the Supreme Court of India declared Triple Talaq to be unconstitutional and void, and held that it does not have the force of law. The court held that Triple Talaq violates the fundamental rights of Muslim women, including the right to equality, dignity, and non-discrimination.

The court also observed that Triple Talaq is not an essential religious practice under Islam, and it is not protected under Article 25 of the Constitution, which guarantees the right to freedom of religion. The court further noted that Triple Talaq is contrary to the principles of gender justice and equality, and it perpetuates the subordinate status of women in society.

Following the Supreme Court's decision, the Indian government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalizes Triple Talaq and makes it a punishable offense. The Act provides for imprisonment of up to three years and a fine for a husband who pronounces Triple Talaq. The Act also makes the pronouncement of Triple Talaq void and illegal, and it provides for the payment of maintenance to the wife and custody of minor children.

The legislative response to Triple Talaq has been criticized by some Muslim groups, who argue that it is an interference with their personal laws and religious practices. However, many women's rights groups have welcomed the Supreme Court's decision and the enactment of the Act, as it provides much-needed protection to Muslim women who are vulnerable to arbitrary and unilateral divorce by their husbands.

In conclusion, the validity of Triple Talaq has been a contentious issue in India, and it has been the subject of intense debate and litigation. The Supreme Court's decision and the legislative response have sought to protect the rights of Muslim women and promote gender justice and equality in society.

 

Dissolution of Muslim Marriage Act, 1939

The Dissolution of Muslim Marriages Act, 1939 is an Indian law that provides for the dissolution of Muslim marriages on certain specified grounds. The Act was passed to address the issue of Muslim women who were unable to obtain a divorce due to the restrictions imposed by the Muslim personal law.

Under the Act, a Muslim woman is entitled to seek the dissolution of her marriage on any one of the following grounds:

1.       The husband has been missing for a period of four years.

2.       The husband has failed to provide maintenance to the wife for a period of two years.

3.       The husband has been sentenced to imprisonment for a period of seven years or more.

4.       The husband has been impotent since the time of marriage.

5.       The husband has been insane for a period of two years or more.

6.       The husband has been cruel to the wife.

7.       The husband has married another woman.

The Act provides that a woman seeking the dissolution of her marriage must apply to the court and prove the grounds on which she seeks the dissolution. The court may grant the dissolution of the marriage if it is satisfied that the grounds have been established.

The Act also provides for certain safeguards for the wife, such as the right to maintenance during the period of the legal proceedings and the right to custody of minor children.

The Dissolution of Muslim Marriages Act, 1939 has been criticized by some Muslim groups for interfering with Muslim personal law and for being inconsistent with the Islamic law. However, it has been welcomed by women's rights groups for providing Muslim women with an avenue for seeking the dissolution of their marriage on specified grounds, and for addressing the issue of arbitrary and unilateral divorce by the husband.

 

Amendment to the Dissolution of Muslim marriage Act, 1939

The Dissolution of Muslim Marriages Act, 1939 was amended by the Muslim Women (Protection of Rights on Divorce) Act, 1986. The aim of the amendment was to address the issues faced by Muslim women in India who were being divorced by their husbands through the practice of "triple talaq," which is the instant and irrevocable divorce pronounced by a Muslim husband by saying the word "talaq" thrice.

The 1986 Act inserted Section 3A into the Dissolution of Muslim Marriages Act, which provides that if a Muslim husband pronounces talaq, the divorce will not be effective until the husband has followed the procedure laid down in the law for giving notice of the pronouncement to the relevant authorities and also to his wife. This notice must be given within seven days of the pronouncement of talaq.

The 1986 Act also introduced provisions for the payment of maintenance by the husband to the wife and for the custody of minor children. Under Section 3(1) of the Act, the wife is entitled to maintenance from her husband during the iddat period (the period of waiting after divorce). The Act also provides that the husband must pay a reasonable and fair amount of maintenance to his wife and minor children after the iddat period has ended.

In addition, the 1986 Act also introduced provisions for the settlement of disputes relating to the custody of minor children. Under Section 6 of the Act, the court is required to make an order for the custody and maintenance of minor children after considering the welfare of the children.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 has been the subject of debate and criticism, with some Muslim groups arguing that it interferes with Muslim personal law and is not consistent with Islamic law. However, the Act has been welcomed by women's rights groups as an important step towards protecting the rights of Muslim women in India.

 

Maintenance, Principles of maintenance, Persons entitled to maintenance

Maintenance is the legal obligation of one person to provide financial support to another person who is unable to support themselves. In the context of Muslim law, maintenance refers to the financial support that a husband is required to provide to his wife and children.

The principles of maintenance in Muslim law are based on the concept of nafaqah, which means the right to be maintained. Under this principle, the husband has an obligation to provide maintenance to his wife and children, while the wife has no such obligation.

Persons entitled to maintenance under Muslim law include:

1.       Wife: The husband is obligated to provide maintenance to his wife during the subsistence of the marriage. The amount of maintenance will depend on the financial position of the husband and the needs of the wife.

2.       Children: The father is obligated to provide maintenance to his children, including sons until they attain puberty, and daughters until they are married or until they attain puberty, whichever is earlier.

3.       Divorced wife: A divorced wife is entitled to maintenance during the iddat period, which is the period of waiting after divorce. The amount of maintenance will depend on the financial position of the husband and the needs of the wife.

4.       Parents: In certain cases, parents may be entitled to maintenance from their children if they are unable to support themselves.

The principles of maintenance are based on the concept of fairness and equity. The amount of maintenance will depend on the financial position of the husband and the needs of the wife and children. In determining the amount of maintenance, the court will take into account various factors such as the income and assets of the husband, the standard of living enjoyed by the parties during the marriage, and the needs of the wife and children.

 

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

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is an Indian law that provides protection to Muslim women in the event of divorce. The act was enacted by the Indian Parliament in response to a Supreme Court ruling that declared the practice of instant triple talaq (talaq-e-biddat) unconstitutional.

The key provisions of the Act are as follows:

1.       Mahr: The Act mandates that a Muslim husband must pay an amount of money or property to his wife at the time of marriage or at the time of divorce. This payment is known as Mahr, and it is intended to provide financial security to the wife. The Act also provides that the Mahr is the property of the wife and cannot be taken away by the husband.

2.       Maintenance: The Act provides that a Muslim husband must provide maintenance to his wife after divorce, including during the iddat period. The amount of maintenance will depend on the financial position of the husband and the needs of the wife.

3.       Dower: The Act provides that a Muslim wife is entitled to retain her dower, which is a payment made by the husband to the wife at the time of marriage.

4.       Custody of children: The Act provides that the custody of children after divorce should be with the mother, unless the welfare of the child requires otherwise.

5.       Settlement: The Act encourages the parties to settle their disputes amicably through negotiation, and provides for the appointment of a conciliatory body to assist in the settlement of disputes.

The Act was intended to provide greater protection to Muslim women in the event of divorce and to bring the law in line with the constitutional guarantees of equality and non-discrimination. However, the Act has also been criticized for not going far enough in providing adequate protection to Muslim women, particularly in cases of triple talaq.

 

Effect of conversion on maintenance and difference between Shia and Sunni Law

In Sunni law, if a woman converts to Islam, her right to maintenance from her non-Muslim husband ceases. However, if the husband converts to Islam, his obligation to provide maintenance to his wife continues.

On the other hand, in Shia law, if a woman converts to Islam, her right to maintenance from her non-Muslim husband does not cease automatically. The Shia law requires the husband to either provide maintenance to his converted wife or divorce her.

In both Sunni and Shia law, if a Muslim husband divorces his wife, he is required to provide her with maintenance during the iddat period. The amount of maintenance will depend on the financial position of the husband and the needs of the wife.

It should be noted that the law regarding maintenance is subject to interpretation by the courts and can vary based on the specific circumstances of each case.

Overall, the effect of conversion on maintenance in Muslim law can be different based on the specific school of law followed (Sunni or Shia) and the specific circumstances of the case.

 

UNIT – 3

Parentage

Parentage in Muslim law refers to the legal relationship between a child and their parents. In Muslim law, the parentage of a child is determined based on two main principles:

1.       The presumption of legitimacy: In Muslim law, there is a presumption that a child born to a married couple is legitimate, meaning that the child is considered to be the biological child of the husband.

·         The principle of paternity: In cases where the legitimacy of a child is in question, the paternity of the child is determined based on the principle of paternity. Under this principle, paternity can be established through a number of means, including: Marriage, Acknowledgement and DNA testing.

It should be noted that in Muslim law, the mother of a child is always known and acknowledged, whereas the paternity of the child may need to be established through one of the above means.

Overall, parentage is an important concept in Muslim law as it determines the legal rights and obligations of parents towards their children, including issues related to custody, maintenance, and inheritance.

 

Maternity and Paternity

In Muslim law, maternity and paternity are important concepts that determine the legal relationship between a child and their biological parents.

Maternity:

Maternity refers to the legal relationship between a child and their biological mother. In Muslim law, the mother of a child is always known and acknowledged, regardless of whether the child was born within or outside of a valid marriage. This is because the mother carries and gives birth to the child, making her identity and relationship to the child clear and undisputed.

Paternity:

Paternity refers to the legal relationship between a child and their biological father. In Muslim law, paternity can be established through a number of means, including:

·         Marriage: If the child is born within a valid marriage, the husband is presumed to be the father of the child.

·         Acknowledgement: If the father acknowledges the child as his own, either orally or in writing, paternity can be established.

·         DNA testing: If there is doubt about the paternity of the child, DNA testing can be used to establish paternity.

In cases where paternity cannot be established, the child is considered to be of unknown paternity and is not entitled to inherit from the father's estate.

Overall, maternity and paternity are important concepts in Muslim law as they determine the legal rights and obligations of parents towards their children, including issues related to custody, maintenance, and inheritance.

 

Legitimacy and acknowledgment

In Muslim law, legitimacy and acknowledgment are two related concepts that determine the legal relationship between a child and their parents.

Legitimacy:

Legitimacy refers to the status of a child who is born within a valid marriage. A child who is born to a married couple is presumed to be legitimate, meaning that the child is considered to be the biological child of the husband. This presumption of legitimacy can only be challenged through proof of impotence, non-access, or other grounds specified by Islamic law.

Acknowledgment:

Acknowledgment is the process by which a father formally acknowledges his paternity of a child, either orally or in writing. Acknowledgment can be used to establish paternity and is often done through a written document known as a "Kitab al-Iqrar," which is a formal admission of paternity. Acknowledgment can also be done through other means, such as recognizing the child publicly, treating the child as one's own, or providing financial support to the child.

Acknowledgment is important in cases where the child is born outside of a valid marriage, as it can establish the child's legal relationship to their father and confer certain rights, such as inheritance rights.

 

Guardianship

In Muslim law, guardianship refers to the legal responsibility and authority for the care and well-being of a person who is unable to take care of themselves, such as a minor child or an incapacitated adult.

There are different types of guardianships in Muslim law, including:

1.       Guardian of the person: This type of guardian is responsible for the physical care and upbringing of a minor child, including providing food, shelter, education, and medical care. The father is the natural guardian of his minor children, followed by the paternal grandfather, and then the mother. In the absence of these relatives, the court may appoint a guardian.

2.       Guardian of the property: This type of guardian is responsible for managing the assets and finances of a minor child or an incapacitated adult. The father is the natural guardian of his minor children's property, but if the father is not present or has passed away, the court may appoint a guardian.

3.       Testamentary guardian: A person may nominate a guardian for their minor children in their will. The court may appoint this person as the guardian if the nominated person is suitable and willing to take on the responsibility.

4.       Guardian appointed by the court: In cases where there is no natural or testamentary guardian, or the appointed guardian is unable or unwilling to take on the responsibility, the court may appoint a suitable person as the guardian.

Guardianship is an important concept in Muslim law as it ensures that the rights and interests of vulnerable individuals, such as minor children and incapacitated adults, are protected and that their care and well-being are provided for.

 

Removal of guardian

In Muslim law, a guardian may be removed from their position under certain circumstances. The following are some of the grounds for the removal of a guardian:

1.       Incompetence: If a guardian is found to be incompetent or unfit to perform their duties, they may be removed from their position.

2.       Misconduct: If a guardian engages in any conduct that is detrimental to the well-being or interests of the ward, they may be removed from their position.

3.       Neglect: If a guardian fails to properly care for and provide for the ward's needs, they may be removed from their position.

4.       Conflict of interest: If a guardian has a conflict of interest with the ward, they may be removed from their position.

5.       Death or incapacity: If a guardian dies or becomes incapacitated, they will automatically be removed from their position.

The process for the removal of a guardian varies depending on the circumstances and the applicable laws in the jurisdiction. In some cases, the court may initiate the removal process, while in other cases, it may be initiated by the ward or a concerned party. The court will generally consider the evidence and hear from all parties before making a decision on whether to remove the guardian.

 

Aspect of Guardianship	Sunni Law	Shia Law
Guardians for Marriage	Besides father and true grandfather, other relatives can be guardians.	Only father and true grandfather can be guardians.
Validity of Marriage by Guardians	Marriage by other guardians can be repudiated after attaining majority.	Marriage is wholly ineffective until expressly ratified.
Mother's Guardianship	Mother is guardian of son up to 7 years and daughter up to puberty.	Mother is guardian of son up to 2 years and daughter up to 7 years.
Succession of Guardianship	Father is natural guardian, and after his death, guardianship passes to executor.	Father is natural guardian, and after his death, guardianship passes to grandfather if alive.

Difference between Shia and Sunni Law.

Definition of Gift

In Islamic law, a gift is called "hibah". It is a transfer of property made voluntarily by one person to another, without any consideration or payment in return. In other words, a gift is a transfer of ownership of property from the donor to the donee, without any exchange of money or goods.

Under Islamic law, a gift must be made voluntarily, without any coercion or compulsion. The donor must have the intention to give the gift and the donee must accept it. The gift must also be made in the present tense, meaning that it cannot be given for a future date or event.

A gift can take many forms, including cash, property, or other assets. It can also be conditional or unconditional, revocable or irrevocable, and can be given to an individual or to a group of people.

In Islamic law, a gift is considered a virtuous act and is encouraged as a means of strengthening social ties and promoting goodwill between individuals and communities. However, there are also rules and restrictions surrounding gifts, such as the requirement that the gift should not be excessive or harmful to the donor's interests.

 

Requisites of valid gift

In Islamic law, a gift (hibah) is a transfer of ownership of property from the donor to the donee, without any exchange of money or goods. To be considered a valid gift, certain requisites must be met, including:

1.       The gift must be made voluntarily: The donor must make the gift out of their own free will and without any coercion or duress.

2.       The gift must be irrevocable: Once the gift is given and accepted by the donee, it cannot be taken back by the donor.

3.       The gift must be made by a competent donor: The donor must be an adult of sound mind and must have the legal capacity to give away their property.

4.       The gift must be accepted by the donee: The donee must accept the gift willingly and without any coercion.

5.       The subject matter of the gift must be capable of transfer: The gift must be something that is capable of being transferred from the donor to the donee.

6.       The gift must be unconditional: The gift must be given without any conditions or expectations of anything in return.

7.       The gift must be given in the present tense: The gift must be given immediately and not at some future date.

8.       The gift must be delivered: The donor must physically deliver the gift to the donee or make arrangements for the gift to be delivered to the donee.

These requisites are important to ensure that the gift is valid under Islamic law and that it is made in accordance with the principles of justice and fairness.

 

Gift formalities

In Islamic law, certain formalities must be followed in order for a gift (hibah) to be considered valid. These formalities include:

1.       Declaration of the gift: The donor must make a clear declaration of the gift, indicating their intention to transfer ownership of the property to the donee.

2.       Acceptance of the gift: The donee must accept the gift willingly and without any coercion. Acceptance can be made orally or in writing.

3.       Delivery of the gift: The donor must physically deliver the gift to the donee or make arrangements for the gift to be delivered to the donee. If the gift is in the form of immovable property, such as land or a building, then the transfer must be made through a registered document.

4.       Transfer of possession: The donee must take possession of the gift, and must be able to exercise complete control over it.

5.       Intention to transfer ownership: The donor must have the intention to transfer ownership of the property to the donee, without any expectation of anything in return.

These formalities are important to ensure that the gift is valid and that it is not merely a transaction in disguise. If these formalities are not followed, then the gift may be considered invalid under Islamic law.

 

 

 

 

 

Revocation of gift

In Islamic law, a gift (hibah) can be revoked by the donor under certain circumstances. The following are the ways in which a gift can be revoked:

1.       Revocation by the donor: The donor can revoke the gift at any time before it is accepted by the donee. Once the gift has been accepted by the donee, it cannot be revoked by the donor.

2.       Revocation by the court: If the donor can prove that the gift was made under duress, coercion, fraud, mistake, or misrepresentation, then the court may revoke the gift.

3.       Revocation by the donee: The donee can also revoke the gift, but only in certain circumstances. For example, if the gift was conditional upon the occurrence of a certain event, and that event does not occur, then the donee can revoke the gift.

It is important to note that once a gift is accepted by the donee, it cannot be revoked by the donor, unless there are exceptional circumstances. The donee has complete ownership and control over the gift, and can dispose of it as they wish.

 

Kinds of gift

In Islamic law, gifts and wills are considered two separate legal instruments. Here are the kinds of gifts and wills in Islamic law:

Kinds of Gifts:

1.       Hiba: This is an unconditional gift given by the donor to the donee, without any expectation of anything in return.

2.       Hiba-bil-iwaz: This is a gift given by the donor to the donee, with a condition that the donee will give something in return.

3.       Hiba-ba-shart-ul-iwaz: This is a gift given by the donor to the donee, with a condition that the donee will give something in return, and that the return gift will be of a specific nature or value.

4.       Hiba-ba-shart-ul-wasl: This is a gift given by the donor to the donee, with a condition that the donee will return the gift if the donor requires it back.

 

 

Meaning of Will

In Islamic law, a will is known as "wasiyyah". It is a legal instrument that allows a Muslim to dispose of their property and assets after their death, according to their wishes. A will is considered a voluntary and revocable act, and it must be made while the person making the will is of sound mind and has the legal capacity to do so.

A Muslim can use a will to distribute their assets and property to their heirs or other beneficiaries, as long as it is not contrary to Islamic law. However, the amount that can be disposed of through a will is limited to one-third of the total estate, as the remaining two-thirds must be distributed according to the Islamic law of inheritance.

The purpose of a will is to ensure that a person's assets are distributed according to their wishes and that their heirs are provided for after their death. It is also a way for a Muslim to fulfill their religious obligations and earn reward from Allah by providing for those in need or supporting charitable causes through their will.

 

Requisites of valid Will

The following are the requisites of a valid will (wasiyyah) in Islamic law:

1.       Capacity: The person making the will (testator) must be of sound mind and must have reached the age of majority (puberty).

2.       Intention: The testator must have the intention to make a will and must make it voluntarily, without coercion or undue influence from others.

3.       Declaration: The will must be declared in clear and unambiguous terms. The testator must clearly state their wishes regarding the distribution of their assets and property after their death.

4.       Witnesses: The will must be witnessed by two adult Muslim witnesses who are of sound mind and are not beneficiaries of the will. The witnesses must also sign the will in the presence of the testator and each other.

5.       Formality: The will must be in writing, either by hand or by some mechanical means, and it must be signed by the testator.

6.       Compliance with Islamic law: The will must not be contrary to Islamic law. The testator cannot disinherit an heir who is entitled to a share of the estate under Islamic law, and the distribution of assets through the will cannot exceed one-third of the total estate.

7.       Revocable: The will is revocable at any time during the lifetime of the testator, as long as they have the legal capacity to do so.

 

Revocation of Will

In Islamic law, a will (wasiyyah) is revocable by the testator (the person who made the will) at any time during their lifetime, as long as they have the legal capacity to do so. The revocation can be express or implied.

An express revocation occurs when the testator clearly and explicitly revokes the will in writing or orally. The revocation must be made with the same formalities as the original will.

An implied revocation occurs when the testator destroys the will or makes a new will that is inconsistent with the old one. For example, if the testator makes a new will that distributes their assets differently, the old will is automatically revoked.

It is important to note that if the testator destroys the will with the intention of revoking it, but does not make a new will or dispose of their property before their death, their property will be distributed according to the rules of Islamic inheritance. This means that the property will be distributed among the heirs in accordance with their shares as prescribed by Islamic law.

 

Distinction between Will and Gift

There are several differences between a will and a gift:

1.       Timing: A will takes effect only after the death of the testator, whereas a gift takes effect immediately.

2.       Revocability: A will can be revoked by the testator at any time during their lifetime, whereas a gift cannot be revoked once it has been completed.

3.       Formalities: A will must be executed with certain formalities, such as being in writing and signed by the testator and witnesses, whereas a gift can be made orally or in writing and does not require witnesses.

4.       Purpose: A will is primarily used to distribute property after death, whereas a gift is usually made to transfer property during the lifetime of the donor.

5.       Tax implications: Gifts may have tax implications, whereas wills generally do not.

Overall, a will is a legal document that outlines the distribution of a person's property after their death, while a gift is a voluntary transfer of property during the donor's lifetime.

 

Difference between Shia and Sunni Law

Aspect	Sunni Law	Shia Law
Will (Wasiyyah)	Allowed, but cannot exceed 1/3 of the estate after funeral expenses and debts.	Allowed, and can be up to 1/3 or more, but with conditions and limitations.
Gift (Hiba)	Permitted, subject to certain conditions.	Permitted, with emphasis on conditions and intention.
Revocation of Gift	Generally revocable unless completed delivery has taken place.	Generally revocable unless completed delivery has taken place.
Deceased's Right to Gift	Deceased's heirs have the right to challenge gifts that exceed the donor's capacity.	Deceased's heirs have the right to challenge gifts that exceed the donor's capacity.

 

UNIT - 4

Waqf

Waqf, also known as a charitable endowment, is a concept in Islamic law where a property or assets are dedicated for a religious or charitable purpose in perpetuity. Under the concept of waqf, the property or assets are considered to be permanently removed from the ownership of the donor and instead become a trust, with the income generated from the trust being used to support the designated religious or charitable purposes.

In waqf, the property or assets are not owned by any individual or organization, but rather are held in trust for the designated religious or charitable purposes. The trustee of the waqf is responsible for managing the assets and ensuring that the income generated is used for the intended purposes. Waqf can be used for a variety of charitable purposes, such as providing for the poor, supporting religious institutions, or funding education and research. It is considered to be a key mechanism for promoting charitable giving and supporting religious and charitable institutions in Islamic societies.

 

Essentials of Waqf

The essentials of waqf, or charitable endowment, in Islamic law are as follows:

1.       Dedicated property: The property or assets that are being donated must be dedicated exclusively for charitable or religious purposes.

2.       Donor's intention: The donor must have a clear intention to dedicate the property or assets for charitable or religious purposes, and must make this intention clear at the time of donation.

3.       Perpetuity: The waqf must be perpetual, meaning that the assets cannot be sold or disposed of and must be used exclusively for the intended charitable or religious purposes in perpetuity.

4.       Trustee: A trustee must be appointed to manage the waqf and ensure that the income generated from the property or assets is used for the intended purposes.

5.       Beneficiary: The beneficiaries of the waqf must be specified at the time of donation and must be exclusively for charitable or religious purposes.

6.       Registration: Depending on the jurisdiction, waqf may need to be registered with the appropriate legal authorities.

These are the key essentials of waqf in Islamic law, and adherence to these requirements is necessary for a waqf to be considered valid and enforceable. Waqf is an important mechanism for promoting charitable giving and supporting religious and charitable institutions in Islamic societies.

 

Kinds of Waqf

There are several types of waqf, or charitable endowment, in Islamic law. The most common types are:

1.       Waqf al-khayri: This is a general waqf that is created for charitable purposes, such as providing for the poor, supporting educational institutions, or funding public works.

2.       Waqf al-ahli: This is a waqf that is created for the benefit of the family or descendants of the waqif (the donor). It is usually created to provide for the maintenance and support of family members or to support family businesses.

3.       Waqf al-jibilliyah: This is a waqf that is created for the benefit of travelers, such as providing for the maintenance of roads, bridges, and other infrastructure.

4.       Waqf al-mushtarak: This is a waqf that is created by two or more donors, who share the responsibility for its management and maintenance.

5.       Waqf al-tijari: This is a waqf that is created for commercial or business purposes, such as financing a business venture or providing for the maintenance of a market.

6.       Waqf al-khariji: This is a waqf that is created for the benefit of non-Muslims, such as providing for the maintenance of public hospitals, schools, and other charitable institutions that benefit the wider community.

These are some of the common types of waqf in Islamic law, but there may be other types that are specific to certain regions or jurisdictions.

 

Creation of Waqf

The creation of Waqf involves the following steps:

1.       Declaration of Waqf: The first step in creating a Waqf is the declaration of the property as Waqf. This declaration can be made either orally or in writing. However, for immovable property, a written declaration is necessary.

2.       Donor: The person making the declaration is called the Waqif or donor. The donor must be of sound mind and have the legal capacity to make the declaration.

3.       Transfer of ownership: The Waqf property must be transferred from the ownership of the Waqif to the ownership of God, for the benefit of specific beneficiaries.

4.       Appointment of Mutawalli: A Mutawalli or manager is appointed to manage the Waqf property and ensure that its income is used for the benefit of the beneficiaries.

5.       Registration: The Waqf may be registered with the Waqf Board established under the Waqf Act, 1995. Registration is not mandatory, but it provides certain benefits such as legal recognition, tax exemptions, and government grants.

It is important to note that the creation of Waqf must be done in accordance with Islamic principles and legal requirements.

 

Revocation of Waqf

Once a waqf is created, it becomes a permanent dedication of property for the specified purposes and cannot be revoked except under certain circumstances as recognized under Muslim law. The ways in which a waqf can be revoked are:

1.       By agreement: The mutawalli (manager of the waqf) and the beneficiaries may agree to revoke the waqf. However, such agreement must be in accordance with the terms of the waqf deed and the Muslim law.

2.       By the donor: The donor may revoke the waqf during his lifetime if he reserves the right of revocation while creating the waqf.

3.       By a qadi (judge): A qadi may revoke a waqf if he finds that the waqf was created for an unlawful purpose, or if it violates the principles of Muslim law.

4.       By the beneficiaries: In some cases, the beneficiaries of the waqf may be allowed to revoke it if they are unanimous in their decision and if the waqf is no longer serving its intended purpose.

It is important to note that the rules regarding revocation of waqf may vary depending on the school of Muslim law followed.

 

Salient features of the Waqf Act, 1995

The Waqf Act, 1995 is a comprehensive legislation enacted by the Indian government to regulate the functioning of Waqfs in the country. Some of the salient features of the Waqf Act, 1995 are:

1.       Establishment of Central Waqf Council: The act provides for the establishment of a Central Waqf Council, which serves as the central coordinating agency for all Waqfs in India.

2.       State Waqf Boards: The act provides for the establishment of State Waqf Boards in every state, which are responsible for the administration and management of Waqfs within their respective jurisdictions.

3.       Registration of Waqfs: The act provides for the compulsory registration of all Waqfs with the respective State Waqf Boards.

4.       Powers of the Waqf Boards: The Waqf Boards are empowered to take legal action against encroachers, and to initiate measures for the recovery of Waqf properties that have been illegally occupied.

5.       Utilization of Waqf Funds: The act provides for the establishment of a Waqf Development Fund, which is utilized for the development of Waqf properties and for the welfare of the beneficiaries.

6.       Audit of Waqfs: The act provides for the audit of Waqfs by the State Governments, and also provides for the appointment of auditors by the Waqf Boards for the same purpose.

7.       Removal of Mutawallis: The act provides for the removal of Mutawallis (custodians of Waqf properties) in case of misconduct or mismanagement of Waqf properties.

8.       Powers of the Central Government: The Central Government has been given the power to issue directions to the Waqf Boards in the interest of the proper administration of Waqfs.

9.       Penalty: The act provides for penalty in case of violation of any provision of the act.

Overall, the Waqf Act, 1995 aims to ensure the proper management and utilization of Waqf properties in India, and to protect the interests of the beneficiaries of Waqfs.

 

Mutawalli

Mutawalli is a person appointed to manage and administer the properties of a Waqf. The mutawalli is responsible for the day-to-day management of the waqf property and ensuring that the property is used for the purpose for which it was intended. The mutawalli has to perform his duties in accordance with the provisions of the waqf deed and the directions of the waqif. He is also required to maintain proper accounts of the income and expenditure of the waqf property and submit these accounts to the concerned authorities. The mutawalli is appointed by the waqif or by the court in case of a dispute over the appointment. The mutawalli has to be a person of sound mind, major and sane.

 

 

 

 

Who can be Mutawalli

As per Muslim law, any person who is an adult, sane, and Muslim can be appointed as a mutawalli. However, the person appointed as a mutawalli should also have the necessary qualifications and experience to manage and administer the waqf property. In addition, the person should not have any disqualifications, such as being insolvent, convicted of any criminal offense, or declared to be of unsound mind by a competent court. The qualifications and eligibility criteria for appointment as a mutawalli may also be specified in the waqf deed or by the waqif.

 

Powers and duties of Mutawalli

The mutawalli is the person who manages and administers the waqf property and ensures that the income generated from the waqf property is used for the purposes specified by the waqif. The powers and duties of the mutawalli include:

1.       Management of Waqf Property: The mutawalli has the power to manage and administer the waqf property in accordance with the terms and conditions specified in the waqf deed.

2.       Protection of Waqf Property: The mutawalli is responsible for protecting the waqf property from any damage, destruction or misuse.

3.       Collection and Distribution of Income: The mutawalli has the power to collect the income generated from the waqf property and distribute it for the purposes specified by the waqif.

4.       Maintenance and Repair of Waqf Property: The mutawalli is responsible for maintaining and repairing the waqf property and ensuring that it is in good condition.

5.       Investment of Waqf Funds: The mutawalli may invest the funds of the waqf property in accordance with the terms and conditions specified in the waqf deed.

6.       Filing of Returns and Accounts: The mutawalli is required to maintain proper accounts of the waqf property and file annual returns with the Waqf Board.

7.       Appointment of Staff: The mutawalli may appoint staff for the management and administration of the waqf property.

8.       Filing of Suit: The mutawalli may file a suit in a court of law for the protection of the waqf property.

The mutawalli is a trustee of the waqf property and is expected to act in the best interests of the beneficiaries of the waqf property. The mutawalli is also subject to the supervision and control of the Waqf Board.

 

Removal of Mutawalli

In accordance with the Waqf Act, 1995, the following are the grounds for the removal of a Mutawalli:

1.       If the Mutawalli acts against the provisions of the Waqf deed, the Waqf Act, or any other law related to the administration of Waqf.

2.       If the Mutawalli is found to be of unsound mind by a competent court.

3.       If the Mutawalli is found to be insolvent or declared as an insolvent by a competent court.

4.       If the Mutawalli is found to be convicted of an offence involving moral turpitude or an offence punishable under the Indian Penal Code, 1860 or any other law for the time being in force.

5.       If the Mutawalli is found to be negligent in the performance of his duties or is guilty of misconduct.

The removal of a Mutawalli can be initiated by any person interested in the Waqf, the Waqf Board, or the State Government. The removal process involves a detailed inquiry into the grounds of removal, and the Mutawalli is given an opportunity to present his case before the removal order is passed.

 

Management of Waqf property

The management of Waqf property is usually carried out by the Mutawalli or the Waqif, or a board of Mutawallis appointed for that purpose. Their primary responsibility is to manage the Waqf property in accordance with the terms of the Waqf deed or the Waqf instrument and to ensure that the income generated from the Waqf property is used for the charitable purposes specified in the Waqf deed.

The management of Waqf property includes several tasks such as:

1.       Maintenance and repair of the Waqf property: The Mutawalli is responsible for maintaining and repairing the Waqf property to ensure that it is in good condition.

2.       Leasing and renting out Waqf property: The Mutawalli has the power to lease or rent out the Waqf property to generate income for the Waqf.

3.       Collecting rent and other income from Waqf property: The Mutawalli is responsible for collecting rent and other income generated from the Waqf property and using it for the charitable purposes specified in the Waqf deed.

4.       Investing Waqf funds: The Mutawalli has the power to invest the Waqf funds in safe and profitable ventures.

5.       Distribution of income generated from Waqf property: The Mutawalli is responsible for distributing the income generated from the Waqf property for the charitable purposes specified in the Waqf deed.

6.       Filing of accounts and returns: The Mutawalli is required to file accounts and returns with the Waqf Board or other regulatory authorities as per the provisions of the Waqf Act or other relevant laws.

The Waqf Board is the regulatory authority that oversees the management of Waqf properties in India. It is responsible for the registration of Waqfs, the appointment of Mutawallis, and the overall supervision and regulation of Waqf properties.

 

Succession

Succession refers to the process by which a deceased person's property and assets are transferred to their legal heirs according to the law. In Muslim law, the law of succession is based on the principles of inheritance as laid down in the Quran and the Hadiths. The law of succession in Muslim law is different from the law of succession in other systems of law, such as Hindu law or the law of succession in the West.

The basic principles of the law of succession in Muslim law are:

1.       The right of inheritance is determined by the Quran and the Hadiths.

2.       The male heirs take precedence over the female heirs.

3.       The closer male relative takes precedence over the more distant male relative.

4.       The father takes precedence over the grandfather.

5.       The son takes precedence over the grandson.

6.       The husband takes precedence over the father.

7.       The mother takes precedence over the wife.

8.       In the absence of any of the above, the property goes to the agnates (male relatives through the father's line).

9.       If there are no agnates, the property goes to the cognates (relatives through the mother's line).

10.   If there are no relatives, the property goes to the state.

It is important to note that under Muslim law, a person cannot make a will disposing of more than one-third of their property. The remaining two-thirds must be distributed according to the principles of inheritance.

 

Application of the property of a deceased Muslim

The property of a deceased Muslim is distributed among his/her legal heirs according to the Islamic law of inheritance. This distribution is done based on the rules of Shariah, which specify the shares of each heir. The rules of Shariah apply to all Muslims, regardless of their sect.

The legal heirs of a deceased Muslim include his/her spouse, children, parents, and other close relatives, depending on the situation. The shares of each heir depend on a number of factors, such as the gender of the heirs, the presence of other heirs, and the presence of a will or testamentary disposition.

In general, the rules of Shariah give priority to the spouse and children of the deceased, with the spouse receiving a share of one-fourth or one-eighth of the property, depending on the presence of children and other factors. The children, in turn, receive the remaining shares of the property, with male children receiving double the share of female children.

If the deceased has no spouse or children, then the parents of the deceased may be entitled to a share of the property, followed by other close relatives, depending on the situation. If there are no legal heirs, then the property may pass to the state.

It is important to note that the rules of Shariah regarding inheritance can be complex, and may vary depending on the specific situation. It is advisable to consult with a knowledgeable Islamic scholar or legal expert when dealing with issues of inheritance under Islamic law.

 

 

 

Legal position of heirs as representatives

In Muslim Law, heirs are considered to be the representatives of the deceased. After the death of a Muslim, his/her property is divided among his/her heirs according to the rules of inheritance. Each heir receives a share of the property in accordance with his/her position in the hierarchy of heirs.

The legal position of heirs as representatives of the deceased is significant because it gives them the right to claim their share of the property. It also means that the heirs have a duty to manage the property inherited by them in a responsible manner.

Furthermore, the heirs are required to discharge the debts of the deceased to the extent of the property inherited by them. This means that if the deceased had any outstanding debts, the heirs are required to pay them from the property inherited by them.

The legal position of heirs as representatives of the deceased is an important aspect of Muslim Law, as it ensures that the property of the deceased is distributed in a fair and just manner among his/her heirs.

 

Administration - Waqf Tribunals and Jurisdiction.

In India, the administration of Waqf properties is carried out by Waqf Boards and Waqf Tribunals. The Waqf Tribunals are quasi-judicial bodies that have the power to settle disputes related to Waqf properties and to oversee the administration of these properties. The Waqf Tribunals are established under the Waqf Act, 1995.

The jurisdiction of the Waqf Tribunals includes the following:

1.       Adjudication of disputes related to Waqf properties

2.       Removal of Mutawallis or trustees of Waqf properties

3.       Approval of leases or transfers of Waqf properties

4.       Recovery of possession of Waqf properties

5.       Determination of the status of a property as a Waqf property

6.       Granting permission for the sale of Waqf properties

The Waqf Tribunals have the power to summon witnesses, to call for documents, and to make orders for the production of any relevant material. The orders of the Waqf Tribunals are enforceable as a decree of a civil court.

In addition to the Waqf Tribunals, the State Waqf Boards are also empowered to take legal action in cases of mismanagement or encroachment of Waqf properties. The State Waqf Boards can file cases in the civil court or in the Waqf Tribunal for the recovery of Waqf properties.

 

UNIT – 5

Special Marriage Act, 1954

The Special Marriage Act, 1954 is an Indian law that provides a special form of marriage for people of India and Indian nationals in foreign countries, irrespective of their religion, caste, or creed. The Act applies to the whole of India except the state of Jammu and Kashmir.

The Act provides for a civil form of marriage, which can be registered before a Marriage Officer appointed under the Act. The marriage can be solemnized between two individuals who are not related within the prohibited degrees of relationship, who are above the age of 18 years (for the groom) and 18 years (for the bride), who are capable of giving valid consent, and who are not already married.

The Act also provides for the procedure for registration of marriages solemnized under other personal laws. It also provides for the procedure for dissolution of marriage through a decree of divorce by a competent court.

The Special Marriage Act was enacted to provide for a secular form of marriage, which does not discriminate on the basis of religion, caste, or creed. It is a progressive law that has helped to bring about social change in India by promoting inter-caste and inter-religious marriages.

 

Salient features of Indian Divorce Act

The Indian Divorce Act is a legislation enacted by the Indian Parliament in 1869, which applies to Christians in India for matters relating to marriage and divorce. Some of the salient features of the Indian Divorce Act are:

1.       Grounds for Divorce: The Act provides for both fault-based and no-fault divorce. The grounds for divorce under the Act include adultery, cruelty, desertion for two years or more, conversion to another religion, unsoundness of mind, and incurable forms of leprosy and venereal disease.

2.       Jurisdiction: The District Court has jurisdiction over divorce petitions, and an appeal against its order can be made to the High Court.

3.       Maintenance: The Act provides for the maintenance of the spouse after divorce.

4.       Custody of Children: The Act provides for the custody, maintenance, and education of children after the dissolution of marriage.

5.       Remarriage: The Act permits remarriage of the divorced parties after the dissolution of the marriage.

6.       Void Marriages: The Act declares certain marriages void, such as those within prohibited degrees of relationship or if either party is already married.

7.       Property Rights: The Act provides for the division of property between the parties after the dissolution of the marriage.

8.       The Act also provides for the appointment of a marriage counselor by the court to help the parties reconcile their differences.

Overall, the Indian Divorce Act provides a comprehensive framework for Christian marriages and divorce in India.

 

Domicile

Domicile refers to a person's permanent home or place of residence. It is the place where a person has the intention to reside for an indefinite period and the place where the person has his/her most substantial connections. Domicile is important for various legal purposes, including for determining the jurisdiction of a court, the application of laws, and the rights and obligations of an individual. In India, the law of domicile is governed by the Domicile Act, 1956, which provides rules for acquiring and losing domicile. The act recognizes the concept of domicile of origin, domicile of choice, and domicile of dependence.

 

Maintenance to dependents/ Spouses

Maintenance is the legal obligation to provide financial support to a person who is unable to support themselves, typically a spouse, a child, or a dependent family member. The obligation to provide maintenance exists under various personal laws in India, including Muslim Law, Hindu Law, Christian Law, and the Indian Divorce Act.

Under Muslim Law, the concept of maintenance is known as "Nafaqah". A Muslim husband is obliged to provide maintenance to his wife during the subsistence of marriage, and a divorced wife is entitled to maintenance during her iddat period. Similarly, a father is responsible for providing maintenance to his children until they reach puberty, while a mother is responsible for providing maintenance to her children until they attain majority or are able to maintain themselves.

The amount of maintenance is decided by the court, taking into consideration the financial status of the person responsible for paying maintenance and the needs of the person entitled to receive it. The court may order a monthly or periodic payment of maintenance, and failure to pay maintenance can lead to legal consequences, including imprisonment.

Under the Indian Divorce Act, both the husband and wife have an obligation to maintain their children, and the court may order either spouse to pay maintenance to the other spouse in certain circumstances. In cases of divorce, the court may order the husband to provide a lump-sum settlement to the wife or a monthly or periodic payment of maintenance. The amount of maintenance is decided by the court, taking into consideration the financial status of the parties involved and the needs of the person entitled to receive maintenance.

Overall, the concept of maintenance is important in providing financial support to those who are unable to support themselves and ensuring their well-being.

 

Intestate succession of Christians under the Indian Succession Act,1925

The Indian Succession Act, 1925 governs the intestate succession of Christians in India. In case a Christian person dies without leaving a valid will, the distribution of their property and assets would be governed by the rules of intestate succession under the Act.

The Act provides that the property of a Christian person who dies intestate will devolve upon their legal heirs in the following manner:

1.       Class I heirs: The first right to inherit the property of the deceased person will be given to their Class I heirs, which include the spouse, children, and mother of the deceased person.

2.       Class II heirs: If there are no Class I heirs, the property will devolve upon the Class II heirs, which include the father, brothers, sisters, and their children.

3.       Other heirs: If there are no Class I or Class II heirs, the property will devolve upon the more remote heirs of the deceased person.

If there are multiple legal heirs in the same class, they will inherit the property in equal shares. However, if a legal heir predeceases the deceased person, their share of the property will pass on to their own legal heirs in the same manner.

It is important to note that the distribution of property under the Act is based on the principle of lineal descendants. This means that the property will pass to the legal heirs in the order of their proximity to the deceased person, starting from the Class I heirs.

In case there are no legal heirs of the deceased person, the property will escheat to the government.

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