Jogesh Chandra Chaudhuri Law College

Students’ Union
30, Prince Anwar Shah Road, Kolkata, 70003
Email: [email protected] Phone: 9831948661 / 9831464712

• By the Students • Of the Students • For the Students

2nd Semester family law-ii

INITIATED BY
ABHRAJIT ROYCHOWDHURY
(SECRETARY, OFFICE AND ADMISTRATION)

ARRANGED BY
UTSA PODDER
(SECRETARY, ACADEMIC AFFAIRS)

PUBLISHED BY

ARKA KUMAR NAG NEIL BASU

CHAIRPERSON GENERAL SECRETARY

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 MUSLIM LAW
Q. Discuss the different sources of Muslim Law.

THE PRIMARY SOURCES

1) QURAN

The term “Quran” has its roots in the Arabic word ‘Qurra’ and refers to ‘the reading’ or ‘what ought to be
read’. The first revelation (Wahi) came to the Prophet in 609 A.D. They continued for about 23 years.
These revelations were the messages of God made by Angel Gabriel. These revelations were given out
then to the people through the preaching of the Prophet.

These delivered messages were remembered and some were reduced to writings on animal skin, palm
leaves, etc. After the Prophet’s death, theses were collected, assembled and then systematically
presented under the authority of the third Caliph, Osman. The first version is said to have been in the
custody of the Prophet’s wife and Osman’ daughter, Umme Hafsa. There were other versions, too, but
either they were not accepted or they were suppressed.

SALIENT FEATURES OF QURAN

1) Divine Origin: The religious book has a divine origin. It is believed that these were the words of
God himself and the Prophet mere uttered these words. Thus, it is unchangeable and its authority is
beyond reproach. The Quran is the Al-furqan, the one that shows the truth from falsehood and the right
from the wrong.

2) First Source: It is the first and fundamental source of Muslim law and Islamic principles. It is
ultimate source of laws.

3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There are 6237 ayats in 114
chapters, each called ‘Sura’. The holy book is arranged topic wise with respective titles. The first chapter
praises the almighty God. Other chapters include, surat-un-nisa (chapter relating to women), surat-ul-
noor (rules relating to home-life) and surat-ul-talaq (the rules relating to divorce).

4) Mixture of religion, law and morality: It is believed that the verses relating to law were revealed
at Medina while the ones relating to religion and mortality were revealed at Mecca. In some places in the
book, all three can’t be separated at all. Thus, the whole of Quran cannot be source of a law, instead we
refer to the 200 odd law-making ayats scattered all over the book as the basic source of Muslim Law.

5) Different forms of legal rules: It has many categories, the ones that remove social evils like child
infanticide, gambling etc, and the ones that create specifics so as to solve daily life legal problems as well
as providing for the basis of juristic interpretations or inferences.

6) Unchangeable: The Quran can be in no way altered or changed, thus, even the courts of law have
no authority to change the apparent meaning of the verses as it does not have an earthly origin. 7)

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Incompleteness: In the 200 odd verses of law in the Quran, only 80 or so deal with the personal law.
Hence, we say that it is not a complete code of Muslim personal law; it only lays down the basic principles.

Further, on many an issue, the Quran is silent.

With the spread of Islam, the necessity arose to explain and supplement the Quran so as to deal with the
new problems of a growing Islamic society.

2) SUNNA OR AHADIS: TRADITIONS OF THE PROPHET

In the pre-Islam Arabia, Sunna meant an ancient and continuous usage that has been established in the
society. Sunna literally means the “trodden path”. Sunna or Ahadis means the traditions of the Prophet.
It means that whatever the Prophet said or did without the reference to God is his tradition. The Prophets
acts and words are believed to have been inspired by God and thus are treated as internal revelations.
Thus, tradition is another source of law in the language of the Prophet. So wherever the Quran is silent,
the Sunna /Ahadis were referred to.

WHAT CONSTITUTED SUNNA OR AHADIS?

Everything the Prophet did or said as well as his silence was taken to be a rule under authority except
when he used to give the revelations of God.

i) Sunnat-ul-Qaul: refers the words spoken by the Prophet.

ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet.

iii) Sunnat-ul-Taqrir: by his silence, the Prophet gave an implied approval to pre-islamic customs,
practices and questions.

Sunna must be differentiated from Hadith. While the latter is a story or occurrence of an incident, sunna
refers to the law that was derived of such conduct of the Prophet.

NARRATORS OF THE TRADITIONS

The traditions noticed by competent and qualified person were treated as authoritative if they were found
to be reliable. The competence was judged by the mental understanding, power of retention, righteous
conduct of a person and on the basis of whether he was a Muslim or not.

i) Companions of the Prophet: The Muslims who lived with the Prophet during his lifetime and were
close to him are called the Companions. Their testimonies are the most reliable ones.

ii) Successors of the Companions: The Muslims who came in contact with the Companions of the
Prophet are called the Successors. They stand second in reliability.

iii) Successors of successors: The Muslims who were in constant companionship of the Successors
come last in the line.
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The further a narrator from the Prophet, the lesser authority is given to his narration.

KINDS OF TRADITION
i) Ahadis-i-Mutwatir are the universally accepted traditions. There is no doubt as to their certainty
and have been narrated by many people. All sects of Islam follow them.

ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the companions of the
Prophet and have found mass acceptance. It is the source of law for a majority and not all.

iii) Ahadis-i-Ahad are the isolated traditions that have not been followed regularly or by many.
Generally, the acceptance and practice is a localised one.

Traditions were passed on from generation to generation and soon became the practice. They were not
written or systematically arranged initially. Muvatta is regarded the first systematic collection even though
a few efforts were made before. The number of traditions is staggering, for example,Masnad has about
80,000 traditions collected and written in it.

DRAWBACKS

Some of the traditions have a doubtful origin and some are even contradictory to each other. There are
no uniform or certain rules on certain issues. Mixture of law and religious or moral principles makes the
extraction of the actual law a rather tedious task. Traditions derive authority from the writers, with the
death of successors and others; this means could no longer be practised. In addition, the Shias followed
only those traditions that came from the Prophet’s family.

The importance and role of traditions is immense but another source of law was needed to deal with the
expanding Islamic Society.

3) IJMA: UNANIMOUS DECISIONS OF THE JURISTS

Ijma means the opinion of the learned. When persons knowledgeable in law would agree upon a point,
such consensual opinion was referred to as Ijma. Thus, Ijma is the unanimous decision of jurists for a
particular question with reference to that age or communal legislation. It is through the tradition of the
Prophet that Ijma derives its validity and authority as a source of law. The Prophet is believed to have said
that, ‘God will not allow his people to agree on an error’. The Hanafi doctrine of law changing along with
times found support in the Maliki view that new facts require new decisions.

FORMATION OF IJMA

Whenever law needed a new principle, the jurists used to give a consensual opinion so as to enable a
solution. To be a jurist or Mujtahid, it was essential that a person was a Muslim with adequate knowledge
of law and was competent to form logical deducements. Ijtihad refers to the process of creating law
through consensus on the basis of ‘exercise of one’s reasoning so as to create a new rule of law’. The Ijma
had to be justified with references to the principles given in the Quran or the tradition as well as public
policy, interest of the community and equity. The Mujtahtids are the recognized interpreters of law.
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KINDS OF IJMA

i) Ijma of the Companions: the consensual opinion of the Companions is believed to be most
authoritative and accurate. It cannot be overruled or modified by subsequent Ijmas.
ii) Ijma of the Jurists: the opinion of learned scholars was believed to be the next best Ijma after the
Ijma of the Companions.

iii) Ijma of the People: At times, the mass acceptance of a principle as law was also accepted.
Nevertheless, it is of little consequence with respect to core issues and principles of the Islam.

As can be seen, the authority of Ijma depends upon the capabilities of the people participating in its
formation.

IMPORTANCE

A major chunk of the fiqh or actual Muslim law came through Ijma. It explained the Quran and traditions
in terms of actual applicability as well as laid down new principles of law so as to help the society to cope
up with growth and progress. It was through Ijma that the real opportunities for interpretation of the
hereto rigid Quran and Traditions came up. It is even referred to as the ‘living tradition’ at times.

DEFECTS

The Ijma lead to various reading and versions or interpretation of the Quran, Sunna, custom etc. As a
result, different sub-sects were formed. The choice of unanimous opinion or majority opinion is another
bone of contention. The Ijma of the jurists and the people could be overruled at any time; thus, they were
not able to contribute substantially to certainty in law. With the spread of Islam and lack of a well-
established communication network, obtaining consensus of all the jurists was a major problem. Again
the stock of learned and accepted scholars ran short of the requirement and by 10th century, the Ijma
had to be abandoned.

4) QIYAS: ANALOGICAL DEDUCTION

Qiyas refers to ‘measurement’ in the Arabic language. It also refers to comparing a thing in relation to a
standard or ‘to establish an analogy’. Some have described it as the analogical deduction from the reason
of a text to a case not actually covered by its language. In simple words, it is a method of comparing a
problem in present times to a similar problem for which the solution is provided in the texts.

It is a weak Ijtihad, one’s own exertions to find a solution through reason. But it is more important and
powerful than a mere rai or opinion of a jurist.

First, a similar problem with a solution is found and the reasoning behind it was taken so as to establish a
common cause. Then solution to the present problem is directly deduced from the texts in form of a law
derived. Here, the spirit or the implied meaning of the text is taken into consideration.

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Unanimous consensus between those deducting was not essential. The only requirements are that the
person deducing is a Mujtahid and he deduces the law from a text of Quran, Traditions or Ijma.

QIYAS AND ISIHSAN: Istihsan means juristic equity, thus, it is a conclusion of law based on the jurist’s
sense of justice or equity rather than any text. It is recognized only under Hanafi Law.

QIYAS AND ISTIDLAL: Istidlal refers to inferring one thing from another. Here only an inference is drawn
and analogy is not established. This rule of interpretation is accepted only in Maliki and Shafei schools.
NOTE: There exist differences in all schools and sects regarding the Primary sources. For example the Shia
Sect doesn’t recognise the Qiyas as a source of law but recognising traditions of the Prophet’s family only
along with the conduct of the Imams.

Fatwas are not a source of law but they have contributed a fair bit in the improvement and expansion of
law

THE SECONDARY SOURCES

1) URF OR TAAMUL: CUSTOM

Before Islam, customary law governed Arabia. Then the Prophet abolished most of them, as they were un-
Islamic and bad. Some customs, however, were continued due to the Prophet’s silent approval. Some
were even included in his traditions. Otherwise, some customs survived due to their incorporation in the
Ijma.

IMPORTANCE

It is not a formal source, yet, in the absence of rule of law in the texts of the primary sources, the customary
practices are regarded as law. The British Courts in India held that a custom would prevail over a written
text provided that the custom was ancient and invariable.

PRESENT POSITION

The Shariat act, 1937 has abolished most of the customs. Section 2 lists ten matters including inheritance,
marriage, divorce, wakf and, maintenance wherein customs and usages cannot be applied anymore.
Customs are still applicable to Muslims with regard to agricultural lands, charities and religious
endowments. Even in matters of wills, adoptionand legacies, the customary law will apply unless a Muslim
expressly states that the Shariat should regulate them.

Additionally, the Shariat Act is not applicable to the state of Jammu and Kashmir. Thus, the rules of Muslim
law there are subjected to customs and usages.

2) JUDICIAL DECISIONS

The Privy Council decided many a case related to Muslim law. These cases continue to have a binding force
on all the High courts and the lower courts of India and a persuasive value in the Supreme Court of India.
This box of precedents will lose its binding force only if the Supreme Court overrules a particular decision.
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Elsewhere, an opinion seems to be forming that judges are now making the law the way the early Muslim
jurists did.

Judgments of a superior Court are an authority for the lower courts. Plus the judgments of the higher court
become the law of the land and thus are binding on all the lower courts. This is called the principle of
Precedents. Law of pre-emption, validity of gifts to minor wife, additional grounds of dissolution of
marriage and even interest on unpaid dower are few of the fields where courts have stepped in with new
interpretations or discretion on the basis of justice, equity and good conscience to develop the law further.
Many a times, legislations have overruled or negated the rules; they are still a source of law.

3) LEGISLATIONS
God is the Supreme legislator as per Islam. Thus, sometimes, legislative modifications are also treated as
encroachment. Still, there are a few acts that modify or lay down principles of Muslim law and serve as a
source of law for the courts with respect to the content covered by them.
a) The MussalmanWaqf Validating Act, 1913 – It merely re-established the validity of family-wakfs.

b) The Child Marriage Restraint Act- It makes the marriage of a boy under 21 years of age and a girl under
18 years a ‘child marriage’ and punishable without affecting the validity of it.

c) The Muslim Personal Law (Shariat) Application Act, 1937 – It reiterated the Muslim Stand that custom
couldn’t be an independent source of Muslim law all the time

d) Dissolution of Muslim Marriage Act, 1939 – It provided rights to judicial divorce under the grounds
mentioned in it to women who traditionally had no independent right to seek divorce.

e) Muslim Women (protection of Rights on Divorce) Act, 1986 – The issues of maintenance after divorce,
maintenance during idddat are dealt with comprehensively.

f) Punjab and Haryana’s Muslim in Muslim Shrine’s Act, 1942.: There are other Acts too which deal with
Muslim personal Law. Some lay down the procedure rather than altering substantive rules of Muslim
personal Law. Acts like the following replaced or restricted the application of those personal law
principles with reference to the Act’s objectives and aims:

a) The Caste Disabilities Removal Act, 1850 changed the laws of the pre-existing rights of converts;

b) The Indian Evidence Act, 1872 changes the traditional outlook on legitimacy via Section 112;

c) The Indian Majority Act, 1875differed on its definition of majority; and

d) The Dowries Prohibition Act, 1961

Similarly, alternate legislation available to all religions have made its impact felt on the Muslim personal
law. For example, a couple that marries under the Special Marriage Act, 1954 will be regulated by this Act
for matters concerning the martial life and not by the personal laws of the party. The inheritance and
intestate succession of the spouse or heirs will also be governed under the Indian Succession Act, 1925. It
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does not matter whether the persons getting married under this law are from the same religion or sect or
not.

Q. Discuss the various Schools of Muslim Law and point out their differences.

INTRODUCTION:-There are two main schools of Muslim Law the Sunni and the Shia. In India the majority
of the Muslims are of Sunnis and hence it is presumed that the parties to a suit are Sunnis unless proved
otherwise.

Shia law has been applied to Shia since the decision of the Privy Council in Rajah DeedarHossein v/s Ranee
Zuhor-oon-Nissa-1841. The division between the Sunnis and the Shias originated in the dispute
concerning the question of Imamat or the spiritual Leadership of Islam.

Schools of Muslim Law:-After the death of Prophet the question arose who would be his successor. On
this point the Muslim community was divided into two factions. The Shiasadvocated that the office should
go by the right of succession and thus Imamati.e. headship should be confined to Prophet’s own family as
his prophet. Whereas on the other hand the Sunnis advocated the principle of election by the Jamat and
chose out their Imam by means of votes.

The majority of Muslims suggested that there should be election to choose successor of the Prophet. This
group was led by the youngest wife of the Prophet. Thus the difference between the two lies in political
events.

Mohammadans

1 Sunni 2 Shia 3 Motazila

1.1 Hanafis 2.1 Ithna-Asharia or Imamia (2.1.1) Akhbari (2.1.2) Usuli

1.2 Malikis 2.2 Ismailiyas—(2.2.1) Khoja (2.2.2) Bohra

1.3 Shafeis 2.3 Zaidais

1.4 Hanbalis

SUNNI SUB-SCHOOLS:

(i) Hanafi: This school is the most famous school of Sunni Law. Abu Hanifa was the founder of this school,
he recognizedQiyas, urf, Ijma.

(ii)Maliki: It was founded by Malik, leaned more upon traditions. He was not different from Hanifa’s.

(iii) Shafei: Imam Shafie was the founder of this school. He was the founder of doctrine of Qiyas based
upon Quran, Ahadis or Ijma.

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(iv) Hanbali:- It was founded by IbnHanbal who stressed on traditions and allowed very narrow margin
to the doctrine of analogy.

SHIA SUB SCHOOLS: -

I)AthanaAsharia School:- This school is very orthodox. The supporter of this school is the followers of
twelve Imams and regards them.

II) Ismailia School: - The sixth Imam Jafar-us-Sadiq had two sons 1. Ismail and 2.Musa-ul-kazim. The
followers of this school called Ismailas.

III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar was the founder of this school.

CONCLUSION: - Where it is not alleged not shown that the parties are Shias, there is a presumption that
they are sunnies, to which sect the great majority of Mohammedans of this country belong. Shia law is
also the law of the land. In India Shia law has been applied to Shia since the decision of the Privy Council.

DIFFERENCE BETWEEN SHIA & SUNNI SCHOOL

Shia School Sunni School

Muta or temporary Marriage is recognized. Muta marriage is not recognized.

Father and grand- father are recognized as legal Father and father’s father how high-so-ever, brothers
guardians for marriage. other paternal relations, mother are also recognized legal
guardians for marriage.

The minimum amount for dower is not fixed. 10 dirhams is the minimum amount of dower is fixed.

Talaq must be pronounced orally in Arabic Talaq may be oral or in writing.

language.

Divorce under compulsion or Divorce under compulsion or threat or intoxication or jest

threat or intoxication is void. is not void.

The mother is entitled to the custody of boy up-to She is entitled to the custody of the boy up-to seven years
two years and of a girl up-to seven years. and of a girl until she attains puberty.

It is not obligatory to maintain the father if he is It is obligatory to maintain even if he is able to earn
able to earn. himself.

Without delivery of possession of the property the Mere declaration is enough for a valid wakf.
wakf is invalid.

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 A gift of undivided share in the property is valid A gift of undivided share in the property is invalid if it is
provided it is capable of partition. undivided and incapables of portion.

A person can be queath one third of his estate The consent of the heirs is essential in case of legacy in
without the consent of the other heirs. favour of an heir.

There are only two classes of heirs namely sharers There are three classes of heirs:-
and residuary. a. sharers b. Residuary.

c. Distant kindred.

Q. Essentials of a valid marriage under Muslim Law. Marriage among Mohammedans is not sacrament
but purely a civil contract discuss. What do you mean by option of Puberty?

Essentials of Valid Muslim Marriage

For a valid Islamic marriage, the following conditions must be satisfied:

1. The parties must have the capacity to marry 2.
There must be a clear proposal and acceptance.
3. Free consent
4. No Legal disability

1. Capacity to marry
Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage. Puberty
means the age at which a person becomes adult (capable of performing sexual intercourse and
procreation of children). A person is presumed to have attained the age of puberty on the completion of
15 years. So the boy and girl who has attained puberty can validly contract a marriage.A marriage under
Muslim law is perfectly valid if the parties have attained puberty and satisfied all other conditions specified
by the law.

According to the child marriage restraint act 1929, a marriage of male below 21years of age and female
below 18 years of age is child marriage. The act prohibits such marriage. The Act prescribes that for a valid
marriage the minimum age for male is 21 and female is 18. The parties who are violating the provisions of
Child Marriage Restraint Act are liable to be punished. Thus if two Muslims marry before attaining the age
prescribed under the child marriage restraint Act they are liable to be punished. However the marriage
between two Muslims who have attained puberty is valid though they have violated the provisions of
Child Marriage Restraint Act.

2. Proposal and Acceptance

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Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at the same
meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made at one
meeting and acceptance made at another meeting does not make a valid Muslim marriage. Neither writing
nor any religious ceremony is essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims
who are of sound mind and have attained puberty or one male and two female witnesses who are sane,
adult and Muslim. Absence of witnesses does not render marriage void but make it void able.

Under the Shia law witnesses are not necessary at the time of marriage.

The proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced
into writing, the document is called ‘Nikahnama or Kabin-nama.

The proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal
by or on behalf of female witnesses, who must be sane and adult Muslim.

3. Free consent

Free consent of the parties is absolutely necessary for a valid marriage.If there is no free consent a Muslim
marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of sound mind and has
attained puberty is void; if it is brought about without his consent The marriage of a girl who has attained
puberty and is of sound mind would be void if her consent is not obtained. When the consent to the
marriage has been obtained by force or fraud, the marriage will be invalid, unless it is ratified. When a
marriage was consummated against the will of the women, the marriage is void. The person who has been
defrauded can repudiate the marriage.

Lunatics and minors who has not attained puberty may be validly contracted by their respective guardians.
A minor is incompetent to give valid consent. The right to contract a minor in marriage belongs
successively to the following persons:

i) Father
ii) Paternal Grand Father (h.h.s-How high so ever)
iii) Brother and other male relations on the fathers side
iv) Mother
v) The maternal uncle or aunt and other maternal relations.

Under the Shia law only the father and the paternal grandfather are recognized as guardian for
contracting marriage of a minor.

If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a nearer
guardian is present and available and such nearer guardian does not give consent to the marriage, the
marriage is void. But if the parties ratify it after attaining puberty, it will be valid. However if the nearer

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 guardian be absent at such a distance as precludes him from acting, the marriage contracted by the
remoter is also lawful.

Khair-ul-Balgh (Option of Puberty)

When a minor has been contracted in marriage by the father or father’s father, the contract of marriage
is valid and binding and it cannot be annulled by the minor on attaining puberty. But if a marriage is
contracted for a minor by any guardian other than the father or father’s father, the minor has the right to
repudiate such marriage on majority. This right is called Khair-ul-Balgh which means Option of Puberty.

When a minor wife’s right of repudiation should be exercised within a reasonable time after attaining
puberty and failing which would result in the loss of such right. The right is lost if she after having attained
puberty permits the marriage to be consummated.If the consummation was without her consent the right
of repudiation will not be lost.

The dissolution of Muslim marriage act 1939 has considerably modified the law of option of puberty. Prior
to the Act the marriage is contracted for a minor girl by the father or grandfather, the minor has no right
to repudiate such marriage on majority. But according to sec2 (7) of the act if the marriage is contracted
for a minor girl by the father or grandfather can also obtain a decree for divorce from the court if the
following conditions are satisfied.

• The marriage took place before the age of fifteen years

• She repudiated the marriage before attaining the age of eighteen years:

• The marriage has not been consummated

4. No Legal disability

Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions
can be classified into two classes:

• Absolute Prohibition

• Relative prohibition

A) Absolute Prohibition
1) Prohibited degrees of relationship

Under the Muslim law marriage between persons who come within the blood relationship, or certain other
relationship is prohibited. The prohibited relationships are the following:

(a) Consanguinity : Consanguinity means blood relationship and a prohibits a man from marrying the
following females

1. His mother or grandmother (however high so ever)

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2. His daughter or granddaughter (how low so ever)
3. His sister whether full blood half blood or uterine blood
4. His niece or great niece (how low so ever)
5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever)

A marriage with a woman who comes within the relationship of consanguinity is absolutely void. Children
born out of that wed-lock are illegitimate.

(b) Affinity: A man is prohibited from marrying certain female relatives due to nearness of relationship. A
man is prohibited from marrying

1. His wife's mother grandmother (however high so ever)

2. His wife's daughter or granddaughter (how low so ever)
3. His father's wife or paternal grandfather's wife (how high so ever)
4. Wife of one's own son or son's son or daughter's son (how low so ever)

A marriage with a woman comes within the relationship by affinity is void.

(c) Fosterage: It means the milk relationship. When a child is breast-fed/suckled by a woman other than
its own mother, she becomes the foster mother of the child. A man is prohibited from marrying certain
persons having foster relationship. According to Shia jurists’ fosterage includes the same limits of
relationship prohibitive to marriage as consanguinity. A man may not marry the following females:

1. His foster-mother or grandmother (however high so ever)

2.His foster-sister (daughter of foster mother)

However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the general
rule of prohibition on the ground of fosterage and a valid marriage may be contracted with:

1.Sister’s foster mother, or

2.Foster'-sister’s mother, or
3.Foster-son’s sister, or 4.Foster-brother's
sister.

The Shia jurists refuse to recognize the exception permitted by the Sunnis. The above mentioned
prohibitions on account of 'consanguinity', 'affinity' or 'Fosterage' are absolute and the marriages
contracted in contravention of these rules are void.

2) Polyandry: Polyandry means marrying more than one husband. Polyandry is a form of polygamy in
which a woman is having more than one husband at the same time. Under Muslim law Polyandry is
prohibited and a married woman cannot marry second time so long as the first marriage subsists and the
husband is alive. If a woman violated this prohibition and contracted a second marriage, the marriage is
void and the woman is liable to be punished for bigamy under section 494 of the Indian Penal Code.
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B) Relative prohibition

Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and marriage
in violation of such relative prohibitions will only be irregular and not void and at the moment when the
irregularity is removed the prohibition ends and the marriage becomes valid. The following are the relative
prohibitions.

1) Unlawful conjunction: A man is prohibited from marrying two wives at the same time if they are
related to each other by consanguinity, affinity or fosterage, which they could not have lawfully
intermarried with each other if they had been of different sexes. Thus a Muslim cannot marry his wife’s
sister while the wife is alive. But he can make the marriage valid by marrying his wife’s sister after the
death or divorce of his first wife. Marriage with two such wives is an Unlawful conjunction. Under Sunni
law a marriage in violation of the rule of unlawful conjunction is not void but only irregular. However
under Shia law, a marriage in violation of the rule of unlawful conjunction is void. Under the Shia Law, a
Muslim may marry his wife's aunt, but he cannot marry his wife's niece without her permission

2) Marrying a fifth wife (Polygamy) :Muslim law permits polygamy (Marrying more than one wife )
with a restriction of maximum four wives. So a Musalman can have four wives at the same time. If he
marries a fifth wife when he has already four, the marriage is not void, but merely irregular. But the fifth
marriage can be made valid after the death or divorce of any one of the four wives of his earlier marriages.
Under the Shia law marriage with the fifth wife is void.

In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act,
1954, can marry a second wife during the lifetime of his spouse.

3) Absence of proper witnesses: A marriage must be contracted within the presence of proper and
competent witnesses. Under the Sunni law at least two male or one male and two female witnesses must
be present to testify that the contract was properly entered into between the parties. The witnesses must
be of sound mind, adult and Muslim. A marriage without witnesses is irregular. Under the Shia law the
presence of witnesses is not necessary. The marriage is contracted by the spouses themselves or their
guardians in private are held valid. The absence of witnesses does not render the marriage void but only
invalid.

4) Differences of religion (Marriage with non-Muslim): The law with regard to marriage with a
nonMuslimis different under Sunni law and Shia law. Under Sunni law a male can marry a Muslim female
or a Kitabia (a person who believes in a revealed religion possessing a Divine Book viz Christianity and
Judaism). A Sunni Muslim male can validly marry a Jews or Christian female. But he cannot marry an
idolatress or a fire-worshiper. A marriage, with an idolatress or a fire worshiper is merely irregular and
not void.

A Muslim woman cannot marry a Kitabia /non-Muslim man. A marriage of a Muslim female with a
nonMuslim male, whether he is a Christian, or a Jew or an idolater or a Fire-Worshiper is not void but
irregular. According to Mullah, a marriage between a Muslim woman and Non-Muslim male is irregular.

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But according to Fyzee, such a marriage is totally void.

Under Shia Law a marriage with a non-Muslim is void. Both the spouses are required to be Muslims. The
marriage of Sunni male with a Shia female is void. A marriage of a Muslim female with a non-Muslim male,
whether he be a Christian, or a Jew or an idolater or a Fire-Worshiper is void under Shia Law.

In India a marriage between a Muslim and a non-Muslim can only take place under The Special Marriage
Act, 1954.If a Muslim male marries and registers under the Special Marriage Act, 1954, he cannot marry
a second wife during the subsistence of the first marriage.

A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolater
or a Fire-Worshiper is void under Shia Law.

5) Marriage during IDDAT: Under Muslim law, a woman who is undergoing iddat is prohibited from
marrying during that period. Iddat is the period during which it is incumbent upon a woman, whose
marriage has been dissolved by divorce or death of her husband to remain in seclusion, and to abstain
from marrying another husband. The purpose behind that is to ascertain whether she is pregnant by
earlier husband, so as to avoid confusion of the parentage of the child.

The period of Iddat is prescribed as under:

1.In case termination marriage by divorce- three lunar months or three menstrual courses

2.In case of widow- 4 months and 10 days

3.In case the woman is pregnant - till the delivery

Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a
marriage with a woman who is undergoing Iddat is void.

Marriage among Mohammedans is not sacrament but purely a civil contract

There are divergence of opinion with regard to the nature of Muslim marriage. Some jurists are of the
opinion that Muslim marriage is purely a civil contract while others say it is a religious sacrament in nature.

Marriage under Muslim law has similar characteristics as a contract. For instance:

• As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other so is
the contract. Moreover, there can be no marriage without free consent and such consent
shouldn’t be obtained by means of fraud, coercion or undue influence.

• Just as in case of contract, entered into by a guardian, on attaining majority, so can a marriage
contract in Muslim law, be set aside by a minor on attaining the age of puberty.

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 • The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement
which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. As is
the case with a contract.

• The terms of a marriage contract may also be altered within legal limits to suit individual cases.
• Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also
provision for the breach of marriage contract.

Justice Mahmood observed:“Marriage among Muhammedans is not a sacrament, but purely a civil
contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet
the Muhammedan law doesn’t positively prescribe any service peculiar to the occasion.”

He described that Muslim marriage was dependent upon declaration or proposal of the one and the
consent or the acceptance of the other of the contracting parties.

From the above observation Justice Mahmood couldn’t be held to have taken the view that marriage is
nothing but purely a civil contract. As per him the dower in the Muslim marriage shouldn’t be confused
with consideration in context of civil contract.

In a lucid and erudite judgment PareedPillay, J. of the Kerala High Court, in Adam v. Mammad, has set
out the salient feature of Islamic law of marriage. In the case before him, he held that where the girl’s
father had given his consent, and the daughter had withheld hers, no valid marriage had taken place. Here
the judge cited J. Mahmood’s classic dicta in Abdul qadir’s case, and upheld that for the validity of a
marriage, consent is must.

In Yusuf v. Sowramma, there is a popular misconception by J. V.R. Krishna Iyer that no religious
significance or social solemnity attach to Muslim marriage and it is mere a civil contract. The learned judge
doesn’t put forward any definite argument and hasn’t gone through the principles of Shariah it is said.

Though sacramental nature of marriage is considered as an orthodox view but it is also supported by the
Judiciary. Anis Begum v. Mohammad Istafa, is a leading case on the point where C.J Sir Shah Sulaiman
has tried to put a more balanced view of the Muslim marriage by holding it both a civil contract and a
religious sacrament. Taking religious aspect into account Muslim marriage is a devotional act (ibadat). The
Prophet is reported to have said that marriage is essential for every physically fit Muslim who could afford
it.

Muslim marriage is not merely a contract because:

• unlike civil contract, it cannot be made contingent on future event; and

• Unlike civil contracts, it cannot be for a limited time (mutamarriage is an exception).

• Unlike civil contract, the analogy, of lien cannot be applied to a marriage contract. Secondly, the
contract of sale of goods may be cancelled by unpaid seller. He may resell the goods by rescinding

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 such contract, whereas in a contract of marriage, the wife is not entitledto divorce her husband
or to remain with a third person if a part of his dower remain unpaid.

As per Dr.Jung:“Marriage though essentially a contract is also a devotional act, its objects are rights of
enjoyment and procreation of children and regulation of social life in the interest of society.”

CONCLUSION
On the basis of Juristic opinion we can easily conclude, that marriage is simply a civil contract under Muslim
Law. It fulfills all the conditions of a contract-proposal and acceptance, free consent and consideration.

But from the religious angle, Muslim marriage is a devotional act. Marriage is not devoid of all religious
and spiritual values. Along with its secular aspect it also partakes the elements of a sacred union of two
soul’s means for spiritual ends.

In Quran and Hadith spouses are strictly enjoined to love and honour each other. Enjoyment and
showering love and affection by each one has been called a noble act. Marriage under Islam is sacrament
keeping the view of Quranic injunction and traditions.

In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil contract nor a
sacrament. It is devoid of none but the blending of the two.

Q. Distinguish between void and irregular marriage.

In Muslim law, marriages are of three kinds:

(i) Sahih i.e., true, which is a completed valid contract;

(ii) Batil i.e., bad in its foundation, and one which is a completely void agreement; and

(iii) Fasid, i.e., irregular, or one which is good in its foundation, but unlawful in its attributes. In the
batil and fasid kinds of marriages, there are no mutual rights of inheritance between husband and wife.

• 1. A marriage which is not valid may be either void or irregular.

• 2. A void marriage is one which is unlawful in itself, the prohibition against the marriage being
perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity,
affinity, or fosterage, is void, the prohibition against marriage with such a woman being perpetual
and absolute.(a) (Women within the prohibited degree are called Mooharim or Mehram.

• 3. An irregular marriage is one which is not unlawful in itself, but unlawful “For something else,”
as where the prohibition is temporary or relative, or when the irregularity arises from an
accidental circumstances, such as the absence of witnesses. Thus, the following marriages are
irregular, namely–

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 1. a marriage contracted without witnesses

2. a marriage with a fifth wife by a person having four wives

3. a marriage with a woman undergoing iddat

4. a marriage prohibited by reason of difference of religion

5. a marriage with a woman so related to the wife that if one of them had been a male, they could
not have lawfully intermarried.
• The reason why the aforesaid marriages are irregular, and not void, is that in case (a) the
irregularity arisen from an accidental circumstances ; in clause (b) the objection may be removed
by the man divorcing one of his four wives ; in clause (c) the impediment ceases on the expiration
of the period of iddat ; in clause (d) the objection may be removed by the wife becoming in convert
to the Muslim, Christian or Jewish religion, or the husband adopting the Muslim faith ; and in
clause (e) the objection may be removed by the man divorcing the wife who constitutes the
obstacle ; thus, if a man who has already married one sister marries another, he may divorce the
first, and make the second lawful to himself.

• Shia Law:The Shia law does not recognize the distinction between irregular and void marriages.
According to that law a marriage is either valid or void. Marriages that are irregular under the
Sunni Law are void under the Shia Law.

Q. Explain different forms of talaaq. What are the consequences of divorce? Distinguish between khula
and mubarat.

Introduction:-Among almost all the nations of antiquity divorce was regarded as a natural corollary or
marital rights. The provisions of divorce were recognized in all religions Islam is perhaps the first religion
in the world which has expressly recognized the termination of marriage by way of divorce. In England it
was introduced 100 years back. In India it was allowed only by Hindu Marriage Act 1955 amongst the
Hindu community. Before passing this act divorce was not recognized by Hindu Law.

Before ShamimAra v/s State of U.P.-2002, a Muslim husband had unlimited power of effecting
Talaq without assigning any reason. But in ShamimAra’s case the Supreme Court held that the talaqmust
be for a reasonable cause and there must be preceded by an attempt of reconciliation between her
husband and the wife by two arbiters one chosen by the wife and the other by the husband.

Different forms & Modes of divorce under Muslim Law

1.Capacity for Pronouncing Talaq:-The only and only essential condition for pronouncing Talaq by a
Muslim husband is that he must have attain the age of puberty and must be of sound mind at that time.
In view of the position of Muslim Law it cannot be said that Talaqnamah was not sufficient to dissolve the
marital relations. Refer case Abdul Wahid v/s Raisa Bi-2007.
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 In another case of MohamadSiddiqu Ali v/s Mustt. Fatima Rashid-2007, it was held by the court
that mere pronouncement of Talaq orally or in writing is not sufficient to terminate the marriage. The
factum of the Talaq should be proved by the independent witnesses.

In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court held that the conclusion that in view
of the statement in the written statement about an alleged divorce 30 years back by utterance of the
words talaq, talaq, talaq three times is sufficient in law is not sustainable. A mere pleas in the written
statement of a divorce having been pronounced sometimes in the past cannot by itself be treated as
effectuating Talaq.

2. Talaq-ul- Sunnat: This form of Talaq is revocable hence it is regarded as approved form of Talaq. This
form of Talaq was approved by the Prophet both Shia and Sunni schools recognise this form. It has two
parts:-
i) Talaq Ahsan: - This consists of a single pronouncement of divorce made during a tuhr followed by
abstinence from sexual intercourse for the period of Iddat. The main requirements of a Talaq Ahsan
are:-

a) Formula of Talaq must be pronounced only once by the husband.

b) If the marriage has been consummated the pronouncement must be made during the period of her
purity. (Tuhr). After such pronouncement the husband should abstain from sexual intercourse during
the period of purity and Iddat.

c) When the wife is not subject to menstruation the pronouncement may be made even after sexual
intercourse.

The above form of divorce is regarded as the best form because there is a chance of reconciliation between
the parties.

ii) TalaqHasan: - This consists of three pronouncements made during successive tuhrsthe period of purity
no intercourse taking place during any of these three tuhrs. The chief requirements of Talaq
Hasan are:-

i) There must be three successive pronouncements of the formula of divorce.

ii)In the case of a menstruating wife the first pronouncement should be made during a period of tuhr or
purity the second during the next tuhr and third during the succeeding tuhr.

iii) In the case of a non-menstruating wife, the pronouncement should be made during the successive
30 days. iv) No sexual intercourse should take place during these three periods of tuhr.

This is also proper form of Talaq but less proper than talaq Ahsan, This Talaq is revocable before the third
pronouncement but becomes irrevocable immediately after the third pronouncement.

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2. Talaq-ul-Biddat or Talaq-i-Biddat: - It is sinful form of divorce recognized only under Sunni Law. It is the
irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of law. It consists the
following two modes: - i) Three pronouncements made during single tuhr either in one sentence e.g. “I
divorce thee, I divorce thee, I divorce thee. Ii) A single pronouncement made during a tuhr clearly
indicating an intention irrevocable to dissolve the marriage e.g. .divorce thee irrevocably.” Talaq-
ulBiddatformisrecognized only in Sunni Law and not in ShiaLaw.

When They Become Irrevocable

1. Talaq-ul-Sunnat:-Talaq Ahsan:- it becomes irrevocably on the expiry of the period of iddat.

2. TalaqHasan:-It becomes irrevocable on the third pronouncement irrespective of Iddat.

3. Talaq-ul-Biddat:-It becomes irrevocable immediately when it is pronounced irrespective of Iddat.

In Marium v. Md. ShamsiAlam, the wife left her husband’s place and went to her parent’s house because
she found that the husband was negligent to her health. When the husband went to take her back, she
refused to go with him. The husband became agitated and in anger he uttered Talaq three times in one
breath. But later on, realising his mistake, he revoked the Talaq within the period of Iddat.

It was held by the Allahabad High Court that although the word “Talaq” was uttered thrice, but since they
were pronounced in one breath it is to be interpreted as one single pronouncement. It was observed by
the court that in this case the Talaq was in the Ahsan form which was revocable. As the husband expressly
revoked the Talaq before the Iddat he cannot be said to have intended the divorce seriously.

The marriage was, therefore, not dissolved and the wife had to accompany the husband. In this case the
court has interpreted the rules of Muslim law liberally in order to discourage hasty and unconsidered
divorces.

It is significant to note that in the recent years Talaq-ul-Biddat has become a subject of criticism among
the jurists and the Indian Courts have attempted to discourage it. In RahmatUllah v. State of U.P., the
Allahabad High Court has observed that an irrevocable Talaq (Talaq-e-Biddat) is unlawful because this kind
of Talaqis against the dictates of the Holy Quran and is also against the provisions of the Constitution of
India.

Consequences arising from Talaq

1. Marriage - Parties are entitled to contract another marriage. If the marriage was consummated
the wife has to wait until the period of iddat is over, otherwise, she may remarry immediately. If
the marriage was consummated and if the husband had four wives at the time of divorce, he can
take another wife after the period of iddat.

2. Dower - Dower becomes payable immediately if the marriage was consummated, otherwise, the
wife is entitled to half of the amount specified in dower. If no amount is specified, she is entitled

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 to 3 articles of dress. Where the marriage is dissolved due to apostasy of the wife, she is entitled
to whole of the dower if the marriage has been consummated.

3. Inheritance - Mutual rights of inheritance cease after the divorce becomes irrevocable.

4. Cohabitation - Cohabitation becomes unlawful after the divorce has become irrevocable and
children from such intercourse are illegitimate and cannot be legitimated by acknowledgment as
held in In Saiyyad Rashid Ahmad vsAnisaKhatoon 1932.

5. Remarriage - Remarriage between the divorced couple is not possible until

1. the wife observes iddat

2. after iddat she lawfully marries another man

3. this intervening marriage is consummated

4. the new husband pronounces divorce or dies

5. the wife again observes iddat

A marriage done without the fulfillment of the above is irregular, not void. But mere cohabitation after
an irrevocable divorce is void.
6.Maintenance - The wife becomes entitled to maintenance during the period of iddat but not during
the iddat of death.

DISTINCTION BETWEEN KHULA AND MUBARAT

1. Khula is a “redemption” of the contract of marriage while mubarat is a “mutual release”

from the marriage tie.
2. In Khula the offer is made by the wife and its acceptance is made by the husband where
as in mubaratany of the two may make an offer and the other accepts it.
3. In khula, a “consideration” passes from wife to the husband. In mubarat the question of
consideration does not arise.
4. In khula the aversion is on the side of the wife while in mubaratthere is a mutual aversion.

Q. Define Hiba or Gift. Essentials of a valid gift. How can a gift be revoked and which gifts are irrevocable.
Define Marzulmaut.

The word Hiba literally means, the donation of a thing from which the donee may derive a benefit. It must
be immediate and complete. The most essential element of Hiba is the declaration, "I have given".

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As per Hedaya,Hiba is defined technically as, "unconditional transfer of property, made immediately and
without any exchange or consideration, by one person to another and accepted by or on behalf of the
latter".

According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without
any return.

The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

Essential Elements of a Gift

Since Muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an
acceptance (qabul), and transfer (qabza). In SmtHussenabivsHusensabHasan AIR 1989 Kar, a grandfather
made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren.
However, no express of implied acceptance was made by a major grandson. Karnataka HC held that since
the three elements of the gift were not present in the case of the major grandchild, the gift was not valid.
It was valid in regards to the minor grandchildren.

Thus, the following are the essentials of a valid gift -

1. A declaration by the donor - There must be a clear and unambiguous intention of the donor to
make a gift.

2. Acceptance by the donee - A gift is void if the donee has not given his acceptance. Legal guardian
may accept on behalf of a minor.
3. Delivery of possession by the donor and taking of the possession by the donee. In Muslim law
the term possession means only such possession as the nature of the subject is capable of. Thus,
the real test of the delivery of possession is to see who - whether the donor or the donee - reaps
the benefits of the property. If the donor is reaping the benefit then the delivery is not done and
the gift is invalid.

The following are the conditions which must be satisfied for a valid gift.

1. Parties - There must be two parties to a gift transaction - the donor and the donee.
Conditions for Donor - (Who can give)

1. Must have attained the age of majority - Governed by Indian Majority Act 1875.

2. Must be of sound mind and have understanding of the transaction.

3. Must be free of any fraudulent or coercive advice as well as undue influence.

4. Must have ownership over the property to be transferred by way of gift.

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 A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a
pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not
conducted by coercion or undue influence is on the donee.

Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended
to defraud the creditors.

Conditions for Donee (who can receive)

1. Any person capable of holding property, which includes a juristic person, may be the donee of a
gift. A Muslim may also make a lawful gift to a non-Muslim.

2. Donee must be in existence at the time of giving the gift. In case of a minor or lunatic, the
possession must be given to the legal guardian otherwise the gift is void.

3. Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid
provided that the donee is in being when the interest opens out for heirs.

2. Conditions for Gift (What can be gifted) -

1. Anything over which dominion or right of property may be exercised.

2. Anything which may be reduced to possession.

3. Anything which exists either as a specific entity or as an enforceable right.

4. Anything which comes within the meaning of the word mal.

Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn,
means the absolute right of ownership of the property which is heritable and is unlimited in point of time,
while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable.
The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that gift of usufructs is valid in Muslim law
and that the gift of corpus is subject to any such limitations imposed due to usufructs being gifted to
someone else. It further held that gift of life interest is valid and it doesn't automatically enlarge into gift
of corpus. This ruling is applicable to both Shia and Sunni.’

In Rahim BuxvsMohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at
the time of making the gift.

Gift of an indivisible property can be made to more than one persons.

3. Extent of Donors right to gift - General rule is that a donor’s right to gift is unrestricted. In
RaneeKhajoorunissavsMstRoushanJahan 1876, it was recognized by the Privy Council that a donor may
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gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one
exception that the right of gift of a person on death bed (Marzulmaut) is restricted in following ways - He
cannot gift more than one third of his property and he cannot gift it to any of his heirs.

REVOCATION OF A GIFT AND WHICH GIFTS ARE IRREVOCABLE

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a
well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The
Muslim law-givers have approached the subject of revocability of gift from several angles.

From one aspect, they hold that all gifts except those which are made by one spouse to another, or to a
person related to the donor within the degrees or prohibited relationship, are revocable.

The Hedaya gives the reasons thus: “The object of a gift to a stranger is a return for it is custom to send
presents to a person of high rank that he may protect the donor; to a person of inferior rank that the
donor may obtain his services; and to person of equal rank that the donor may obtain an equivalent and
such being the case it follows that the donor has the power of annulment, so long as the object of the
deed is not answered, since a gift is capable of annulment”.

Their texts of Muslim law to lay down a long list of gifts which are irrevocable. The contents of the list
differ from school to school, and the Shias and the Sunnis have the usual differences. The Muslim lawgivers
also classify gifts from the point of view of revocability under the following two heads:

(i) Revocation of gifts before the delivery of possession, and (ii)

Revocation of gifts after the delivery of possession.

(i) Revocation of gifts before the delivery of possession:

Under Muslim law, all gifts are revocable before the delivery of possession is given to the donee. Thus, P
makes a gift of his motor-car to Q by a gift deed. No delivery of possession has been made to Q. P revokes
the gift.
The revocation is valid. In this case, it will not make any difference that the gift is made to a spouse, or to
a person related to the donor within the degrees of prohibited relationship. The fact of the matter is that
under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those
cases where possession has not been transferred the gift is incomplete, and whether or not it is revoked,
it will not be valid till the delivery of possession is made to the donee.

The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not
want to complete it by the delivery of possession. For the revocation of such gifts, no order of the court is
necessary. Fyzee rightly says that this is a case of inchoate gift and it is not proper to apply the term
revocation to such a gift.

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(ii) Revocation after the delivery of possession:

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient
to revoke a gift. Till a decree of the court is passed revoking the gift, the donee is entitled to use the
property in any manner; he can also alienate it.

It seems that: (a) all gifts after the delivery of possession can be revoked with the consent of the donee,
and that (b) otherwise (in those cases where gifts are revocable) revocation can be made only by a decree
of the court.

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

According to the Hanafi School, with the exception of the following cases, a gift can be revoked even
after the delivery of possession;

(i) When a gift is made by one spouse to another,

(ii) When the donor and the donee are related within the prohibited degrees,

(iii) When the donee or the donor is dead,

(iv) When the subject-matter of the gift is no longer in the possession of the donee, i.e., when he had
disposed it off by sale, gift or otherwise or, where he had consumed it, or where it had been lost or
destroyed,

(v) When the value of the subject-matter has increased,

(vi) When the identity of the subject-matter of the gift has been completely lost, just as wheat, the
subject-matter of gift, is converted into flour,

(vii) When the donor has received something in return (iwaz), and

(viii) When the object of gift is to receive religious or spiritual benefit or merit, such as sadaqa.

MARZ UL MAUT

Marz-ulMaut or gifts made by a Muslim on his death bed. Generally the trend among Muslims earlier was
not to make a will or ‘Wasiyat’. Hence Islamic law thought it prudent to lay down a set of laws regarding
disposal of property when a Muslim was on his death bed. This is referred to as Marz-ul- Maut.

As per Islamic personal law a gift made at a time when there is reasonable apprehension of death of the
testator will be distributed as per the canons of the Shariat. This is called death bed gifts and is valid only
if the testator dies after executing a will. As per the Shariat there are 2 restriction imposed on this gift on
the death bed. They are

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a) There can be no disqualification of an heir or successor

b) The net value of the property that can be disposed should not be greater than 1/3rd of the total value
of the assets.

The Shariat law is inviolable, except with the consent of the heirs. Thus on his own no Muslim can disown
any heir while making a will during Marz-ul-Maut.

Some reasonable restrictions are imposed by the Shariat on Marz-ul- Maut. These are

a) There should be genuine apprehension of death due to an illness. In case a person does not die,
the will made will be null and void.

b) Mere apprehension of death due to old age is not a ground for Marz-ulMaut. Thus a man dying
from natural causes due to old age does not come under the purview of this law.

Marz-ul-Maut does not come under the purview of gifts and is not subject to gift tax. This was upheld by
a bench of the Supreme Court of India in Commissioner of Gift Tax vs. Abdul Karim Mohd on 10 July
1991 (1991 SCR(2)846).

The Shariat and Marz-ul-Maut is further amplified in Section 191 of Indian Succession Act 1925 and
section 129 of the TP Act.

Q. What do you mean by conditional gift under Muslim law? Explain Mushaa. Explain the cause where
actual deliver of possession by the donor to the donee is not required.

Gift with a condition

A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness,
the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not
sell it or B will sell it only to C, the condition is void and B takes full rights of the house.

Mushaa (Hibabilmushaa)

Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid
under all schools but there is no unanimity of opinion amongst different schools about gift of undivided
share in a property that is divisible. In Shafai and IthnaAsharia laws it is valid if the donor withdraws his
control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is
separated and delivered to the donee.

Illustration -
A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share
of the house to D in gift.

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A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and IthnaAhsharia law, A can give his
undivided share of the wheat to D if he withdraws control over it but under Hanafi law, A cannot do so
unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D.

In case of KashimHussainvs Sharif Unnisa 1883, A gifted his house to B along with the right to use a
staircase, which was being used by C as well. This gift was held valid because staircase is indivisible.

Exceptions in delivery of possession

The following are the cases where deliver of possession by the donor to the donee is not required -

1. Gift by a father to his minor or lunatic son. In MohdHesabuddinvsMohd. Hesaruddin AIR 1984,
the donee was looking after the donor, his mother while other sons were neglecting her. The
donor gifted the land to the donee and the donee subsequently changed the name on the land
records. It was held that it was a valid gift even though there was no delivery of land.

2. When the donor and the donee reside in the same house which is to be gifted. In such a case,
departure of the donor from the house is not required.

3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had
a real and bona fide intention of making the gift.

4. Gift by one co-sharer to other. Bona fide intention to gift is required.

5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the
delivery of the rest may be inferred.

6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if
the physical possession is impossible. Such gift may be completed by mutation of names and
transfer of rents and incomes.

7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be
affected by change in ownership records and by a request to the tenant to attorn the donee.

8. Incorporeal rights - The gift may be completed by any appropriate method of transferring all the
control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt.
promissory note may be affected by endorsement and delivery to the donee.

9. Where the donee is in possession - Where the donee is already in possession of the property,
delivery is not required. However, if the property is in adverse possession of the donee, the gift is
not valid unless either the donor recovers the possession and delivers it to donee or does all that
is in his power to let the donee take the possession.

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Q. Define wakf. What are the valid objects of wakf? Explain private and public wakf. Can a nonMuslim
create any wakf?
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazimvs A Asghar Ali AIR
1932. Technically, it means a dedication of some specific property for a pious purpose or secession of
pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention of a specific thing
that is in the ownership of the wakif or appropriator, and the devotion of its profits or usufructs to charity,
the poor, or other good objects, in the manner of areeat or commodate loan. Wakf Act 1954 defines Wakf
as, "Wakf means the permanent dedication by a person professing the Islam, of any movable or
immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable."

Essentials of a valid Wakf

Permanent Dedication of any property - There are actually three aspects in this requirement. There must
be a dedication, the dedication must be permanent, and the dedication can be of the property. There is
no prescribed form of dedication. It can be written or oral but it must be clear to convey the intention of
dedication. According to Abu Yusuf, whose word is followed in India, mere declaration of dedication is
sufficient for completion of Wakf. Neither delivery of possession or appointment of Mutawalli is
necessary.

The dedication must be permanent. A temporary dedication such as for a period of 10 yrs or until death
of someone is invalid.

The subject of Wakf can be any tangible property (mal) which can used without being consumed. In Abdul
Sakurvs Abu Bakkar 1930, it was held that there are no restrictions as long as the property can be used
without being consumed and thus, a valid Wakf can be created not only of immovable property but also
of movable property such as shares of a company or even money. Some subjects that Hanafi law
recognizes are immovable property, accessories to immovable property, or books.

The subject of the Wakf must be in the ownership of the dedicator, wakif. One cannot dedicate someone
else's property.

2. By a Muslim - A Wakf can only be created by a Muslim. Further, the person must have attained
the age of majority as per Indian Majority Act and should be of sound mind.

3. For any purpose recognized by Muslim Law - The purpose is also called the object of Wakf and it
can be any purpose recognized as religious, pious, or charitable, as per Muslim Law. It is not necessary
that a person must name a specific purpose. He can also declare that the property may be used for any
welfare works permitted by Shariat.

In Zulfiqar Ali vsNabiBux, the settlers of a Wakf provided that the income of certain shops was to be
applied firstly to the upkeep of the mosque and then the residue, if any, to the remuneration of the
mutawalli. It was held to be valid however, it was also pointed out that if a provision of remuneration was
created before the upkeep of the mosque, it would have been invalid.

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The following are some of the objects that have been held valid in several cases - Mosques and provisions
of Imam to conduct worship, celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of
Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an idgah, grant to colleges and
professors to teach in colleges, bridges and caravan sarais.
In KunhamuttyvsAhmanMusaliar AIR 1935, Madras HC held that if there are no alms, the performing of
ceremonies for the benefit of the departed soul is not a valid object.

Some other invalid objects are - building or maintaining temple or church, providing for the rich
exclusively, objects which are uncertain.

Shia Law - Besides the above requirements, Shia law imposes some more requirements for a valid Wakf.
There are -

1. Delivery of possession to the first person in whose favour the Wakf has been created is essential.

2. Dedication must be absolute and unconditional.

3. The property must be completely taken away from the wakif. It means that the wakif cannot keep
or reserve any benefit or interest, or even the usufructs of the dedicated property.

VALID OBJECTS OF WAKF

An essential for the validity of wakf is that the dedication should be for a purpose recognized as religious,
pious or charitable, under Musalman Kaw.

On basis of decided cases and the text of eminent Mohammedan Jurists, certain objects which had been
declared to be valid objects of wakf are:-

1. Mosque and provisions for Imamas to conduct worship.

2. Celebrating the birth of Ali Murtaza

3. Repairs of Imambaras.

4. Maintenance of Khankahs.

5. Reading the Koran in public places and also at private houses.

6. Maintenance of poor relations and dependant.

7. Payment of money to Fakirs.

8. Grant to an Idgah.

9. Grant to the college and provisions for professors to teach in colleges.

10. Bridges and Caravan Sarais.

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11. Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage
to Mecca.

12. Keeping Tazias in the month of Moharram, and provisions for camels and Duldul for religious
processions during Moharram.

13. Celebrating the death anniversary of the settler and of the members of the family.

14. Performance of ceremonies known as Kadam Sharif.

15. The construction of a Cobat or free boarding house for pilgrims at Mecca.

16. Performing the annual Fateha of the members of his family.

17. A Durgahor or shrine of a Pir which has long been held in veneration by the public.

The following are not recognized as valid objects of wakf, by the Musalman law.

1. Objects prohibited by Islam, e.g. erecting or maintaining a church or temple.

2. A wakf for the perairs of the waqifs secular property is invalid according to Shea law.

3. Providing for the rich exclusively.

4. Objects which are uncertain.

5. A direction to spend a certain sum of money for feasting CutchiMemons every on the anniversary of
the anniversary of the settler’s death is not valid.

PRIVATE AND PUBLIC WAKF

A Wakf can be classified into two types - Public and Private. As the name suggests, a public Wakf is for the
general religious and charitable purposes while a private Wakf is for the creators own family and
descendants and is technically called Wakfalalaulad. It was earlier considered that to constitute a valid
wakf there must be a complete dedication of the property to God and thus private wakf was not at all
possible. However, this view is not tenable now and a private wakf can be created subject to certain
limitation after Wakf Validating Act 1913. This acts allows a private wakf to be created for one's
descendants provided that the ultimate benefits are reserved for charity. Muslim Law treats both public
and private wakfs alike. Both types of wakf are created in perpetuity and the property becomes
inalienable.

Wakf al alaulad (can a wakf be created for one's family?)

Wakf on one's children and thereafter on the poor is a valid wakf according to all the Muslim Schools of
Jurisprudence. This is because, under the Mohammedan Law, the word charity has a much wider meaning
and includes provisions made for one's own children and descendants. Charity to one's kith and kin is a
high act of merit and a provision for one's family or descendants, to prevent their falling into indigence, is
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also an act of charity. The special features of wakf-alal-aulad is that only the members of the wakif’s family
should be supported out of the income and revenue of the wakf property. Like other wakfs, wakfalal-aulad
is governed by Muhammedan Law, which makes no distinction between the wakfs either in point of
sanctity or the legal incidents that follow on their creation. Wakfalalaulad is, in the eye of the law, Divine
property and when the rights of the wakif are extinguished, it becomes the property of God and the
advantage accrues to his creatures. Like the public wakf, a wakf-alal-aulad can under no circumstances
fail, and when the line of descendant becomes extinct, the entire corpus goes to charity.

The institution of private wakf is traced to the prophet himself who created a benefaction for the
support of his daughter and her descendants and, in fact, placed it in the same category as a dedication
to a mosque.
Thus, it is clear that a wakf can be created for one's own family. However, the ultimate benefit must be
for some purpose which is recognized as pious, religious or charitable by Islam.

Quasi-public Wakf: Sometimes a third kind of wakf is also identified. In a Quasi-public wakf, the primary
object of which is partly to provide for the benefit of particular individuals or class of individuals which
may be the settler's family, and partly to public, so they are partly public and partly private.

Q. Who is a mutawalli? What are the powers and duties of a mutawalli?

Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He
is only a superintendent whose job is the see that the usufructs of the property are being utilized for valid
purpose as desired by the wakif. He has to see that the intended beneficiaries are indeed getting the
benefits. Thus, he only has a limited control over the usufructs.
In Ahmad Arifvs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli has no power to sell,
mortgage, or lease wakf property without prior permission of the court or unless that power is explicitly
provided to the mutawalli in wakfnama.

Who can be a mutawalli- A person who is a major, of sound mind, and who is capable of performing the
functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any
religion can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot
be appointed.

In ShaharBanovs Aga Mohammad 1907, Privy Council held that there is no legal restriction on a woman
becoming a mutawalli if the duties of the wakf do not involve religious activities.

Who can appoint a mutawalli - Generally, the wakif appoints a mutawalli. He can also appoint himself as
a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and
the wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf
remains valid, it has to be administered by the beneficiaries. The wakif also has the power to lay down the

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rules to appoint a mutawalli. The following is the order in which the power to nominate the mutawalli
transfers if the earlier one fails -

1. founder

2. executor of founder

3. mutawalli on his death bed

4. the court, which should follow the guidelines -

1. It should not disregard the directions of the settler but public interest must be given
more importance.

2. Preference should be given to the family member of the wakif instead of utter stranger.

Powers of a mutawalli - Being the manager of the wakf, he is in charge of the usufructs of the property.
He has the following rights -
1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of
the wakf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries
are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he cannot sell
the property. However, the wakif may give such rights to the mutawalli by explicitly mentioning
them in wakfnama.

2. He can get a right to sell or borrow money by taking permission from the court upon appropriate
grounds or if there is an urgent necessity.

3. He is competent to file a suit to protect the interests of the wakf.

4. He can lease the property for agricultural purpose for less than three years and for nonagricultural
purpose for less than one year. He can exceed the term by permission of the court.

5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can
apply to the court to get an increase.

Where a Mutawalli has leased wakf property for a longer term without the sanction of the Court, the Court
has power to sanction the lease retrospectively, if it is satisfied that the transaction is for the benefit of
the wakf. (ZafarbhaiGuljarbhai v. ChhaganlalAditram, 43 Bom. L.R. 854)

Abdul Rahim v. Narayan Das Aurora, (1923) 50 I.A. 84: The Court removed a Mutawalli for unauthorisedly
managing a wakf property, and appointed a new Mutawalli. The new Mutawalli thereafter sued to recover
possession of the wakf property from the mortgagee.

Masjid Shahidganj v. ShiromaniGurudwaraPrabandhak Committee, (1940) 67 I.A. 251: In 1722, a mosque

was built by X and dedicated as a wakf. Mutawallis were appointed, and they took possession of the

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mosque. After about 60 years, the mosque fell into disuse, and came into the possession of a Sikh
Gurudwara, which continued the possession till 1935. In 1935, a suit was filed by some Muslims against
the Sikh Gurudwara, claiming possession of the mosque and the right of worship in it.

It was held that the mosque, having been possessed by the Sikh Gurudwara adversely to the wakf for more
than 12 years, the Muslims’ right to possession for the purpose of the wakf had come to end under Art.
144 of the Limitation Act and their title become extinct under S. 28 of that Act.

Q. Discuss the nature and meaning of will. What are the essentials of a valid Muslim will? Who can make
a will? What are the formalities necessary for a valid will? Bequeathable One-third

Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other
meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general,
a will means a document containing the desire, regarding how a person wants to utilize or divide his
property, after he is dead. According to section 2(h) of Indian Succession Act 1925, Will is the legal
declaration of the intention of a testator with respect to his property which he desires to be carried into
effect after his death.

For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a
means to change the course of inheritance to certain extent and to recognize the value of those relatives
who are excluded from inheritance or strangers who might have helped him in life or in last moments.
Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the
injury of the lawful heirs.

Essentials of a valid Muslim will

1. Competency of the testator (who can make the will):Any Muslim, including a man or a woman,
who is major and is of sound mind can make a will. Regarding wills, the age of majority is governed
by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after
he attains majority. A person of unsound mind is not competent to make a will and a will made
by such a person is invalid. A will made by a person while of sound mind, who later becomes of
unsound mind, becomes invalid.

In Abdul Manan Khan VsMirtuza Khan AIR 1991, Patna HC held that any Muhammedan having a
sound mind and not a minor may make a valid will to dispose off the property. So far as a deed is
concerned, no formality or a particular form is required in law for the purpose of creating a valid
will. An unequivocal expression by the testator serves the purpose.
Will of a person committing suicide - Under Sunni Law the will of a person committing suicide is
valid. Under Shia law, a will made by the person who has done any act towards committing suicide
is invalid but if the will is made before doing of any act towards committing suicide, it is valid.

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 2. Competency of the legatee:Any person capable of holding property may be the legatee under a
will. Thus, sex, age, creed, or religion are no bar. However, no one can be made the beneficial
owner of the shares against his will, therefore, to complete the transfer, the legatee must give his
express or implied consent to accepting the legacy.

An institution can be a legatee.

A non-Muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam.

In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was
an accident, he can be a legatee otherwise not.

Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is
considered to be in existence and is a valid legatee. In Shia law, the period is 10 months, which is
the maximum period of gestation.

Bequest for a charitable object is valid.

3. Validity of the subject of will - To be able to will a property, it must be -

1. Capable of being transferred.

2. In existence at the time of testator's death even if it is not in existence at the time of
making will. Thus, a bequest cannot be made of anything that is to be performed or
produced in future.

3. In the ownership of the testator.

A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is
void. However, a bequest with a condition that derogates from its completeness is valid and will take
effect as if the condition did not exist. For example, a grant is made to X for his life and then it is stipulated
to go to Y after death of X. In this case, X will get the grant completely and Y will get nothing. Thus, a
bequest of life estate is not valid either under Shia or Sunni Law.

4.Extent of power of will - The testamentary power of a Muslim is limited in two ways –

Limitations as regards to person - The general rule is laid down in Ghulam Mohammad
vsGhulamHussain 1932 by Allahbad HC, that a bequest in favour of an heir is not valid unless the
other heirs consent to the bequest after the death of the testator. Whether a person is an heir or not
is determined at the time of testator's death.

Under Shia law, a testator may bequest an heir as long as it does not exceed one third of his property
and no consent of other heirs is required. In HussainiBegamvs Mohammad Mehdi 1927, it was held
that if all the property was bequested to one heir and other were not given anything, the bequest was
void in its entirety.
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 Limitations as regard to the amount (Bequeathable One-third) - The general principle is that a
Muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and
debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the
testator. In Shia law, such consent can be taken either before or after the death. Another exception
is that if the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless
person

Formalities of Wills: -- Muslim law requires no specific formalities for creation of a will. It may be made in
writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and
attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the
testator should be clear and unequivocal.

Construction of Will: - A Muslim will is to be construed in accordance with the rules of construction of the
will as laid down in Muslim Law. Will is a document created by any person during his life time, which
operates after his death. The contents of the will arc to be implemented to fulfil the intention or desire of
the testator after his death. Sometimes, the contents may not be clear. In such a case, it may be
interpreted as per the option of the heirs.

For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B without
any specification. Then, the heirs have to make necessary arrangement.

Revocation of Will: - A Muslim will or any part thereof may be revoked by the testator at any time before
his death. The revocation may be express (oral or in writing) or implied. A will may be expressly revoked
by tearing it off or by burning it. Any act, which results in the extinction of the subject matter or proprietary
rights of the testator will impliedly revoke the will. For instance, if the testator transfers the same property
by sale or gift subsequently to another. It amounts to implied revocation.

Q. What are the Restrictions on Muslim Bequests under Muslim Law?

1. Bequest to an Heir:
Sunni Law: A bequest in favour of an heir is invalid, unless the other heirs consent to it after the testator’s
death. Consent, once given, cannot be rescinded. If only some of the heirs consent, the shares of those
consenting will be bound, and the legacy in excess is payable out of their shares. The consent need not be
express; it may also be signified by conduct showing a fixed and unequivocal intention.

Thus, attestation of the will, acquiescence in the legatee taking possession of the property bequeathed
and collecting rents would be sufficient. In determining whether a person is or is not an heir, regard is to
be had, not to the time of the execution of the will, but to the time of the testator’s death.

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Shia Law: Under the Shia law, a testator may leave a legacy to an heir, so long as it does not exceed
onethird of his estate. Such a legacy is valid without the consent of the other heirs. Moreover, the consent
of the heirs may be given either before or after the death of the testator.

If a bequest is made to an heir and also to a stranger, the bequest to the heir, even if it is less than a third,
is not valid without the consent of the other heirs while that with respect to the portion of the stranger is
valid without such consent, provided the portion bequeathed to him does not exceed onethird of
testator’s estate; otherwise, the consent of the heirs is necessary for the validity of such a bequest.
(Mahomed v. Aulia, (1920) I.L.R. 42 All. 467)

2. Bequest to an Unborn Person: Under the Sunni law a bequest to an unborn person is void. But
the bequest to a child en-vantresa mere (i.e., in its mother’s womb) is valid, provided the child is born
within six months of the will.

Shia Law: Under the Shia law, a bequest to a child in the womb is valid, if it is born in the longest period
of gestation, i.e., ten lunar months. It is not necessary, as under Sunni law that the child must be born
within six months of the date of the will.

3. Bequest to the Testator’s Murderer: A bequest to a person, who causes the death of the testator,
whether intentionally or accidentally, is void under Sunni law.

Shia Law: Under the Shia Law, a legatee, who causes the death of the testator, is disentitled to take the
legacy, only if he caused the death intentionally, but not if it was by accident.

4. Bequest of More than One-Third of Testator’s Property: A Muslim cannot dispose of by will more
than one-third of his property. The remaining two-thirds goes to the heirs by succession. Bequests in
excess of the legal third cannot take effect and will abate proportionately, if the heirs do not consent to
the excess taking effect after the death of the testator.

Difference between Bequest to an Heir and to a Non-Heir: A bequest to an heir is not valid even to the
extent of the legal third, unless the other heirs consent to the bequest after the testator’s death, whereas
a bequest to a non-heir is valid to the extent of the legal third, even without the consent of the heirs.

5. Creation of Unknown Estates: A Muslim cannot create, by will, an estate repugnant to his law.
Bequests in futuro or contingent bequests are void according to Muslim law. An alternative bequest, i.e.,
a bequest to A or В is valid, and A will take the property if he is living at the time of the testator’s death;
but if he predeceases the testator and В survives him. В will be entitled to the property. (AdvocateGeneral
v. Jimbabai, I.L.R. (1917) 41 Bom. 181)

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Q. Define Dower. What are its kinds? Discuss the nature and legal significance of Dower in Muslim Law.
(2013) Distinguish between (i) prompt and deferred dower (ii) specified and unspecified dower.

INTRODUCTION: - As it is evident from Quran, “if you separate yourself from your wives, send them away
with generosity, it is not permitted to you to appropriate the goods you have once given them.”

Thus the custom originated in ancient times with the payment which husbands often made to their wives
as means of support in their old age or when turned out by them. Mehr in the baal form of marriage was
also recognized by the prophet to ameliorate the position of wife in Islam and it was combined with sadaq,
so that it became a settlement or a provision for the wife. According to K.P.Sexena, “Dower is a sum of
money or any property promised by the husband to be paid o delivered to the wife as a mark of respect
for the surrender of her person after the marriage contract but generally said to be consideration for
marriage.”

DEFINITION:-Dower or mehr is a sum that becomes payable by the husband to the wife on marriage either
by agreement between the parties or by the operation of law. It may either be prompt or deferred.
According to Wilson, “dower is a consideration for the surrender of person by the wife. It is the technical
Anglo Mohammedan term for its equivalent ‘Mehr’ in Arabic. According to Amir Ali, “Dower is a
consideration which belongs absolutely to the wife.” Mulla said, “Dower is a sum of money or other
property which the wife is entitled to receive from the husband in consideration of the marriage.”

KINDS OF DOWER: - Dower may be divided into two kinds:-

1. Specified dower: -This kind of dower is further divided into a)Promptdowerb)deferred dower.

2. Customary Dower.

I)SPECIFIED DOWER: - If the amount of dower is stated in the marriage contract, it is called the specified
dower. Dower is settled by the parties to the marriage either before the marriage or at the time of the
marriage or even after the marriage. If the parties to the marriage attained the age of puberty and are of
sound mind they are competent to settle themselves the amount of dower. Guardian can settle the
amount of dower provided that at the time of settlement of dower the boy is still minor or lunatic.
Specified dower is again sub divided into:-

Prompt dower: - It is payable immediately after marriage on demand, a wife can refuse to enter into
conjugal domicile of husband until the payment of the prompt dower. 2. Prompt dower does not become
deferred after consummation of marriage. 3. It is only on the payment of the prompt dower the husband
entitled to enforce the conjugal rights.4. Prompt dower is payable on demand.

Deferred dower:-It is payable on dissolution of marriage either by death or divorce. 2. The wife is not
entitled to demand payment of deferred dower. 3. The widow may relinquish her dower at the time of
her husband’s funeral by the recital of a formula. 4. The interest of the wife in the deferred dower is a
vested one and not a contingent one.

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2. Customary Dover: - When the amount of the dower is not fixed in the marriage contract or even if the
marriage has been contracted on the condition that she should not claim any dower, the wife is entitled
to proper dower. The amount of proper dower is settled by female members of the father’s family such
as her father’s sisters.

Determination of Proper Dower: - the proper dower is regulated with reference to the following factors:-

I) Personal qualification of wife, her age, beauty, fortune, understanding and virtue.

Ii) Social position of her father’s family.

Iii) Dower given to her female paternal relations.

IV) Economic condition of her husband.

v) Circumstances of the time.

There is no limit to the maximum amount of proper dower under the Sunni Law but under theshia law the
proper dower should not exceed the 500 dhirams. This amount was fixed in theMarriage of Fatima the
Prophet daughter. In the shia Muslims it is therefore considered a point ofHonour not stipulate for a sum
higher than the sum of dower fixed by the Prophet for hisDaughter Fatima.

Legal Significance of Dower in Muslim Law:-The following are the legal significance of Dower in Muslim
Law:-

1. The reason of its significance lies in the protection that it imparts to the wife against the arbitrary
exercise of the power of divorce by the husband.

2. Dower is a right of the wife is fundamental feature of marriage contract and has a pivotal place in the
domestic relation affecting the mutual rights.

3. According to Muslim Law on the dissolution of marriage the wife can claim her dower money. It may
be higher or it may be low depends upon on the source of income of the husband.

4. Legislature has given the power to make law providing that, the court will not be bound to award the
amount of dower according to marriage deed (Sec. Of Oudh Law Act.1876). but only such sum as shall
be reasonable with reference to the means of husband and the Iddatof the wife as held in a case of
AdulRehman v/s Inayati Bibi-1931.

5. Another Significance of Dower is to place a check on the capricious use of divorce on the part of
husband.

6. To impose an obligation on the husband as a mark of respect of the wife.

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7. To provide for her subsistence after the dissolution of her marriage so that she may not become
helpless after the death of the husband or termination of marriage by divorce.

Who can change Mehr (power to increase or decrease the amount of dower once fixed)

A husband can increase the amount of debt at any time, though he cannot decrease it. A wife can remit
the dower wholly or partially. The remission of Mahr by wife is calledHibe e Mahr.
However, she should have attained puberty to do so. She does not have to be a major to relinquish Mahr,
only attaining puberty is sufficient. The remission made by the wife should be with free consent. Thus, in
Shah BanovsIftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by husband and
thought that only way to win him back was to waive Mahr, her remission of Mahr was considered without
her consent and was not binding on her.

Difference between prompt and deferred dower:

I. As to payment::Prompt dower is payable immediately after the marriage. Whereas Deferred

dower is payable only after the dissolution of the marriage.

II. As to demand: Prompt dower is only payable on the demand of the wife. Whereas In deferred
dower the wife is not entitled to demand it unless agreed.

III. As to wife's right to realise: The wife is entitled to realize the prompt dower at any time. Whereas
Deferred dower is payable only when it becomes due.

IV. As to conjugal rights: The right of restitution of conjugal right arises only after its payment.
Whereas In deferred dower there is no question restitution of conjugal rights.

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 Divorce Act, 1869
Q. What are the grounds of dissolution of marriage under Divorce Act, 1869? Can an adulterer be made
a co-respondent in a divorce petition?

Section 10 of this Act has been amended by the Indian Divorce (Amendment) Act 2001 which came into
force on 03-10-2001. According to the amended provision of section 10(1) any marriage solemnized
whether before or after the commencement of the said Amendment Act may on a petition presented to
the District Court by the husband or the wife be dissolved on the ground that since the solemnization of
the marriage – the respondent, :-

1. Has committed adultery

2. Has ceased to be Christian by conversion to another religion

3. Has been incurably of unsound mind for a continuous period of not less than 2 years immediately
before the presentment of the petition.

4. Has been suffering from a virulent and incurable form of leprosy for a minimum period of 2 years
immediately preceding the presentment of the petition.

5. Has been suffering from a venereal disease in a communicable form for a minimum period of 2
years immediately preceding the presentment of the petition.

6. Has not been heard of being alive for a period of 7 years or more by those persons who should
have naturally heard of the respondent if the respondent had been alive.

7. Has willfully refused to consummate the marriage and thus, the marriage has not been
consummated.

8. Has failed to comply with the decree of ‘restitution of conjugal rights’ for a period of 2 years or
more, after the passing of the decree against the respondent.

9. Has deserted the petitioner for at least 2 years immediately preceding the presentment of the
petition.

10. Has treated the petitioner with such ‘cruelty’ that may have caused reasonable apprehension in
the mind of the petitioner that it would be harmful for the petitioner to live with the respondent.

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The amended provision of section 10(2) is only applicable in case of wife as the petitioner of the dissolution
of marriage.

According to Section 10(2), a wife is entitled to the presentment of the petition for dissolution of her
marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of –

• Rape

• Sodomy

• Bestiality

The definition of ‘adultery‘ insection 497 of IPC refers only to male offenders.
The fact that section 10 of the Amendment Act authorizes a husband (as petitioner) to present a petition
for dissolution of his marriage on the ground of adultery by his wife (respondent) is sufficient to show that
the term ‘adultery‘ has been used in a wider sense in section 10 of this Act than under section 497 of the
IPC.

Illustration:

• Where a wife alleged sodomy and beastly behavior with her by her husband against her consent
and the allegation was not challenged by the husband, wife would be entitled to dissolution of
her marriage.

(Mrs. Anni J. Thomas vs. Thomas Koshy, AIR 1997)

• Where it was proved that the wife was living with the co-respondent in one room accommodation
for more than 7 months, it was held that the act alone was enough to prove that they were living
in adultery within the scope of Section 10.

Section 11 Adulterer to be co-respondent:

(Grounds for which the petitioner-husband may be excused from making the alleged adulterer a
corespondent in the petition)

Section 11 states that when a husband presents a petition under section 11 he shall make the alleged
adulterer (the other man) a co-respondent, as the respondent being his own wife, to the said petition
unless he is excused from doing so on one of the following grounds – to be allowed by the Court :

1. That the respondent (wife) is leading the life of a prostitute, hence the petitioner does not know
with whom the adultery has been committed.

2. That the alleged adulterer or adulteress is dead

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3. That the name of the alleged adulterer or adulteress is unknown to the petitioner although he has
made due efforts to discover it.

Q. Discuss the provisions relating to restitution of conjugal rights under divorce act. Discuss the
provisions relating to custody and maintenance of children under divorce act.

Section 32: Petition for Restitution of Conjugal Rights:

According to section 32 when either the husband or the wife has without reasonable excuse withdrawn
from the society of the other, the aggrieved party may apply by way of petition to the District Court for
“Restitution of Conjugal Rights”.

The Court on being satisfied of the truth of the statements made in such petition and finding no ground
for rejecting the petition and thereby refusing the relief sought – may decree the restitution of conjugal
rights accordingly.

Section 41 Power to make order as to custody of children:

According to section 41, in any suit as to obtain judicial separation, the Court may before making the
decree pass such interim order, it may make provisions in the decree that deem fit in respect of – the
custody, education of minor children, the marriage of whose parents is the subject matter of the suit.

The Court may if it thinks fit, direct such proceedings to be taken which will enable placing of such children
under the protection of such Court.

The section further provides that the application with respect to maintenance and education of the minor
children pending in the suit shall, as far as possible, be disposed off within 60 days from the date of notice
of the respondent.

Q. What are the grounds of nullity of marriage under Divorce Act? Who can file a petition for Nullity of
marriage under the Divorce Act, 1869? What is the status of children under annulled marriages?

Section 19 of the Act specifies 4 grounds, any of which may be availed by the husband or the wife to
present a petition for nullity or marriage.

The grounds are mentioned as follows:

1. Ground of impotency of the respondent at the time of the marriage and at the time of the
institution of the suit. Impotency is the inability to consummate the marriage and this inability
must exist both at the time of the marriage and at the time of the presentment of the petition.

This inability to consummate the marriage may be due to some mental disability or physical defect which
is incurable.

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2. The other ground is that the parties are within the prohibited degree of consanguinity or affinity.

3. Lunacy and idiocy of the respondent at the time of the marriage is the third ground.

4. The last ground is that the former marriage still subsists. In order to prove this at the time of the
marriage, the petitioner has to prove to the Court, until the same is satisfied, that the former
marriage was a valid marriage and was subsisting at the date when the marriage was solemnized.
This may be proved by showing that the former husband or wife was living at the time of the
marriage in question.

Finally section 19 provides that nothing in the section shall affect the jurisdiction of the District Court to
pass decree of nullity of marriage on the ground that the consent of either party was obtained by force or
fraud.

Section 18 Petition for decree of nullity:

Section 18 lays down that any husband or wife may present a petition to the District Court praying that
his or her marriage be declared null and void.

This section thus excludes the jurisdiction and authority of any other Tribunal or Court (other than the
District Court) including the Eulesiastical Tribunal (Church Court) from receiving a petition and declaring a
marriage to be null and void.
Section 21: Children of annulled marriage :

According to section 21 where a marriage is annulled on the ground that a former husband or wife was
living, but at the same time the Court framed the opinion that the subsequent marriage was contracted
in good faith and with full belief of the parties that the former husband or wife was dead or when a
marriage is annulled on the ground of insanity, children born before the decree is made, shall be specified
in the decree, such children shall be entitled to the estate of the parent who at the time of the marriage
was competent to contract.

Q. Discuss Divorce by Mutual Consent under Divorce Act, 1869.

Section 10-A. Dissolution of marriage by mutual consent. (1) Subject to the provisions of this act and the
rules made there-under, a petition for dissolution of marriage may be presented to the district court by
both the parties to a marriage together, whether such marriage was solemnised before or after the
commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living
separately for a period of two years or more, that they have not been able to live together and they have
mutually agreed that the marriage should be dissolved.

(2)On the motion of both the parties made not earlier than six months after the date of presentation of
the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after
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hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that
the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect
from the date of decree.]

Section 10 A (1) of the Divorce Act, 1869, amounted to "hostile discrimination" and reflected a bias against
the Christian community as Hindus and Parsis could file for divorce after a year of living separately.

It said the two-year minimum period violated Article 14 (non-discrimination) and Article 21 (right to life
and liberty) of the Constitution.

the provision for divorce by mutual consent in other statutes such as Section 28 of The Special Marriage
Act, 1954; Section 13-B of The Hindu Marriage Act, 1955; and Section 32 B of The Parsi Marriage and
Divorce Act, 1936, prescribe the statutory period of separation as one year.

"Consequently, it acts as oppression to the members of Christian community intending to seek divorce by
mutual consent. Only on the basis of religion there exists a hostile discrimination as only the Christians,
who are governed by the provisions 10 A (1) of the Divorce Act, require to observe separation for a period
of two years before applying for divorce by mutual consent," the petition said.

"However, members of other communities are required to observe separation for a period of one year
only before applying for divorce by mutual consent under similar provisions in other statutes."

In the Saumya Ann Thomas Vs Union of India, 2010, case, Kerala High Court had held that Section 10 A
(1) of the Divorce Act, 1869, was "unconstitutional" as it violated the fundamental rights to equality and
the right to life under Articles 14 and 21 of the Constitution.
Subsequently, in the Shiv Kumar Vs Union of India and Others (2014) case, Karnataka High Court had
agreed with the Kerala High Court decision in the Saumya Ann Thomas case.

Q. What are the grounds of judicial separation under Divorce Act, 1869? What is the difference between
divorce and judicial separation? What do you mean by Alimony Pendente lite under the Divorce Act
1869?

Section 22 Bar to decree for divorce a mensa-et-toro but judicial separation obtainable by husband or
wife :

At the outset it may be mentioned that the term ‘mensa – et – toro‘ is used in modern statutes to signify
judicial separation, that is, when the marriage relation is suspended and the duties and obligations are
modified although matrimonial bonds remain intact. When the marriage relation is suspended, the
divorce is said to be limited.

The divorce is absolute only when the marriage is completely dissolved.

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Section 22 explicitly lays down that no decree shall be made for a divorce a mensa-et-toro on grounds
other than adultery, cruelty or desertion for a period not less than 2 years.

According to this section, either the husband or the wife may obtain a decree of judicial separation on the
following grounds –

• Adultery

• Cruelty

• Desertion for a period of 2 years or more

Section 23 Application for separation made by petition :

Section 23 states that application for judicial separation takes place on the following grounds –

• Adultery

• Cruelty

• Desertion without any reasonable excuse for 2 years or more –

May be made by either the husband or the wife by petition to the District Court.

The Court, on being satisfied of the truth of the statements made in such petition and that there being no
legal ground for rejecting the application, may decree judicial separation accordingly.

Thus, a husband or wife may apply for judicial separation on any of the above grounds.

DIVORCE VS. JUDICIAL SEPARATION

A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does not. However, it is
more than a husband and wife living apart. A Decree of Judicial Separation can be sought on one of the
five facts that are available for divorce but it is not necessary to prove that the marriage has irretrievably
broken down.

In Divorce there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one
Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to
remarry. The Court is able to make the range of financial orders that are available on Divorce, save for
Pension Sharing or Pension Attachment Orders.

The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce upon a Will. The
spouse can no longer take any benefit under the Will unless there is a new Will specifically stating they
are to do so.

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Petitions for Judicial Separation are very rare but there may be reasons for a party seeking this rather than
a Divorce, such as one or both of them having religious beliefs or the parties not having been married for
the requisite one year required for a Divorce.

Section 36 Alimony Pendente Lite:

Section 36 states that in any suit under this Act, whether instituted by the husband or the wife, and
whether or not she has obtained an order of protection – vide section 27 to 31, the wife may present a
petition for expenses of the proceedings, alimony pendente lite, that is, alimony pending the suit.

Such petition shall be served on the husband and the Court on being satisfied of the truth of the
statements, may make such order on the husband for the payment to the wife – of the expenses of the
proceedings and the alimony pending the suit – as it may seem fit.

Section 36 further provides that the petition for expenses of the proceedings and alimony pending the
suit, shall as far as possible, be disposed of within 60 days of service of such petition on the husband.

Permanent Alimony

Section 37: Power to order permanent alimony. —Where a decree of dissolution of the marriage or a
decree of judicial separation is obtained by the wife, the District Court may order that the husband shall],
to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money
for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the
husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper
instrument to be executed by all necessary parties. Power to order monthly or weekly payments. —In
every such case the Court may make an order on the husband for payment to the wife of such monthly or
weekly sums for her maintenance and support as the Court may think reasonable: Provided that if the
husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the
Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of
the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court
seems fit.

Indian Succession Act, 1925

Q. Define Succession certificate and discuss its essential features. Who can grant succession certificate?

A succession certificate is issued by a civil court to the legal heirs of a deceased person. If a person dies
without leaving a will, a succession certificate can be granted by the court to realise the debts and
securities of the deceased. It establishes the authenticity of the heirs and gives them the authority to have
securities and other assets transferred in their names as well as inherit debts. It is issued as per the
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applicable laws of inheritance on an application made by a beneficiary to a court of competent jurisdiction.
A succession certificate is necessary, but not always sufficient, to release the assets of the deceased. For
these, a death certificate, letter of administration and no-objection certificates will be needed.

372 Application for certificate. —

(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified
by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908)
for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following
particulars, namely:—

(a) The time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within
the local limits of the jurisdiction of the Judge to whom the application is made, then the property of
the deceased within those limits;

(c) The family or other near relatives of the deceased and their respective residences;

(d) The right in which the petitioner claims;

(e) The absence of any impediment under section 370 or under any other provision of this Act or any other
enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) The debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or
does not believe to be true, that person shall be deemed to have committed an offence under section 198
of the Indian Penal Code, 1860 (45 of 1860).

[(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased
creditor or in respect of portions thereof.]

No Addition yet Extension of Succession Certificate:

Section 376 of the Act provides that the succession certificate can be extended in respect of any debt or
security not originally specified therein and if such extension is ordered, it shall have the same effect as if
the debt or security to which the succession certificate is extended had been originally specified. The
District Judge can extend a succession certificate only on the application of the holder of a succession
certificate and not of any other person.

Grant of Succession Certificate- Certain Restrictions:

Under the following circumstances, no succession certificate can be granted.

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 i)under section 370 (1) of the Act, as to any debt or security to which a right is required to be
established by probate or letters of administration; ii) that too, if sections 212 of the Act applies; iii) if
section 213 of the Act applies;

iv) that is to say that where law requires probates or letters of administration as mandatory to
establish right to property as in the cases of Parsis, Jews, East Indians, Europeans and Americans.

v) Provided that nothing will prevent as to granting a succession certificate to any person entitle to
the effects of a deceased Indian Christian or any part thereto pertaining to any debt or security,
that the right can be established by letters of administration.

Effect of Succession Certificate: To know the effect of succession certificate, it is apt to see section 381 of
the Act. The succession certificate simply affords protection to the parties paying debts. It is thus cleat
that there is absolutely no adjudication of title of the deceased.

CASE-LAW:

In the case of MuthiavsRamnatham, 1918 MWN 242, it was held that the grant of certificate gives to the
grantee a title to recover the debt due to the deceased, and payment to the grantee is a good discharge
of the debt.'' In the case of Srinivasavs Gopalan1, , it was held that '' The question whether the debt
belonged to the deceased is not a matter to be decided on an application for a succession Certificate.'' In
the case of Paramananda Chary vsVeerappan, AIR 1928 Madras 213: 82 IC 604, it was held that ‘‘the
grant of succession certificate is conclusive against the debtor. Even if another person turns out to be the
heir of the deceased, it does not follow that the certificate is invalid.'' In the case of Ganga Prasad
vsSaudan2 , it was observed that section 381 of the Act protects the debtors and affords full indemnity to
the persons liable to pay the debts and in respect of the securities covered by hte certificate as persons
having the same paid in ''good faith''.

Q. What do you mean by Probate? Who can grant probate? Mention the persons to whom probate can
be granted and to whom it cannot be granted. Explain revocation of probate. Can a probate be granted
when a will is lost?

1 20 MLJ 865
2 AIR 1952 A 80
A Probate is a document that certifies that the copy of the Will (including Codicils, if there are any) that is
attached to it, has been proved in the relevant court. A Probate is issued under a seal of the Court. A

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Probate can be granted by the Court only to the Executor (i.e. the person who will implement or execute
the Will after its maker’s death). The legal effect of the grant of a Probate is that it establishes the legal
character of the Executor to implement the Will and to the validity of the Will. For example if a person
appointed as the Executor, transfers certain shares of a company to another person as per the Will, then
the company whose shares are being transferred can ask for the status of the Executor, since on their
record, the owner is another person. In such a case the Probate establishes the Executor’s right to apply
for the transfer of the shares since the owner has died and that the Will is valid.

276. Petition for probate.—

(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a
petition distinctly written in English or in the language in ordinary use in proceedings before the Court in
which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a
copy, draft, or statement of the contents thereof, annexed, and stating—

(a) The time of the testator’s death,

(b) That the writing annexed is his last Will and testament,

(c) That it was duly executed,

(d) The amount of assets which are likely to come to the petitioner’s hands, and

(e) When the application is for probate, that the petitioner is the executor named in the Will.

(2) In addition to these particulars, the petition shall further state,—

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed
place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) When the application is to a District Delegate, that the deceased at the time of his death had a
fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the
petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in
each State and the District Judges within whose jurisdiction such assets are situate.

To whom can a Probate be granted?

A Probate can be granted by the Court only to the Executor. A Probate establishes the legal character of
the person (to whom the Probate has been granted) as one who can act on behalf of the maker of the Will
who has died. A Probate cannot be granted to a minor or a person of unsound mind or to an association
of individuals (unless it is a company, in certain cases). However, "there is nothing in the law to prevent
the Executor from acting as an Executor and exercise a power given to him without obtaining Probate. A
Probate mainly gives adequate protection...”

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Persons to whom probate cannot be granted
223. Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association
of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by the
Government in this behalf.

Revocation of Probate:

Under Section 263, the grant of probate or letters of administration may be revoked if the proceedings to
obtain the grant were defective in substance; or the grant being obtained fraudulently by making a false
suggestion or by suppressing from the court something material to the case or if the grant was obtained
by means of untrue allegation or if the grantee has wilfully with or without reasonable cause omitted to
exhibit an inventory or account in accordance with the provision of Chapter VII of Part XI.

Under section 263, as stated above, grant of probate or letters of administration is liable to be revoked on
any of the five grounds mentioned therein.

Section 297 inter alia states that when grant of probation is revoked, all payments bonafide made to an
executor under such grant before revocation shall be a legal discharge to the person making payment.

A probate can also be revoked in the following circumstances

• The court by which the grant was made had no jurisdiction

• In the grant proceedings the parties who ought to have been cited as parties, have not made the
parties.

• The will of which the probate was obtained was forged or revoked

• Discovery of subsequent will

• Discover of a codicil, made subsequently revoking or adding to the appointment of executor under
the will

• The person who probate has been granted, has subsequently become of unsound mind

That where the grant of probate is revoked, the grant does not become void ab initio the revocation will
not invalidate any previous dealings of the executor as long as they are done in due course of faith. That
an administrator derives his authority from his appointment by the court whereas an executor derives his
authority from the will.

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Grant of Probate when a will is lost

section 237 of the Indian Succession Act, 1925, will be applicable, which reads as follows: “When a will has
been lost or mislaid since the testators death, or has been destroyed by wrong or accident and not by any
act of the testator, and a copy or draft of the will has been preserved, probate may be granted of such
copy or draft, limited until original or properly authenticated copy of it is produced.”
Thus, if one has a copy or draft of the will executed by one's father, he may apply for a probate by annexing
the said copy or draft. If a person obtains a probate from a court of competent jurisdiction, no right can
be claimed by other heirs over any property bequeathed to the person under the said will.

Further, section 238 of the said Act reads as follows: “When a will has been lost or destroyed and no copy
has been made nor the draft preserved, probate may be granted of its contents if they can be established
by evidence.”

Thus, if a person does not have a copy or draft of the will executed by his father, he can nevertheless apply
for a probate. However, the grant of a probate by a competent court is subject to the person having
evidence that his father executed a will and also having evidence with regard to the contents of the said
will (specifically that the said land was bequeathed to the person under the said will).

If the person does not have a copy or draft of the said will or is not in a position to prove the contents of
a will in order to obtain a probate from a competent court, he can apply for letters of administration as if
his father had died intestate or without a will.

Q. What is letter of administration? Who can grant a letter of administration? Distinguish between
probate and letter of administration. Discuss the powers of executor or administrator under Indian
Succession Act, 1925.

A Letter of Administration is issued by a competent authority and appoints the Administrator to dispose
of the asset of a person who has died without making a Will or in relation to a asset that is not covered in
the Will.

Letters of Administration are granted by a Surrogate Court or probate registry to appoint appropriate
people to deal with a deceased person's estate where property will pass under Intestacy Rules or where
there are no executors living (and willing and able to act) having been validly appointed under the
deceased's will. Traditionally, letters of administration granted to a representative of a testate estate are
called "letters of administration with the will annexed essentially, this document is issued to the person
who will administer the estate of someone who dies without a will. As outlined by the Cornell Legal
Information Institute, "The letters authorize the administrator to settle the deceased person's estate
according to the state's intestate succession laws. Banks, brokerages, and government agencies often
require a certified copy of the letters before accepting the administrator's authority to collect the
deceased person's assets." If a decedent has a surviving spouse, this individual will have priority in

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receiving a letter of administration over others, including children; age alone does not render an individual
ineligible to serve as a fiduciary.

Executor
An executor is the person appointed in a will to administer the estate of a deceased person. He/she is
entitled to take out a grant of probate to the estate of the deceased.

Who Can Be an Executor?

Pretty much anyone, provided they are not under a disability, and this includes a beneficiary can be an
executor.
A professional such as an accountant or solicitor can also act as an executor. However an executor is not
entitled to be paid for his services as of right so there should have been a charging clause inserted in the
will.

An executor can be appointed expressly in the will or “according to tenor”-this derives from the tenor of
the will and the functions assigned to them in the will.

There is no limit on the number of executors that can be appointed but no grant of administration shall
be granted to more than 3 persons unless the Probate Officer otherwise directs.

An executor does not have to act; he can accept, reserve or renounce the executorship.

The Courts have decided that only in very serious cases will it order the removal of an executor.

The Duties of an Executor

The first duty of an executor is to dispose of the body of the deceased. In practice, this will probably have
been done by the deceased’s family.

The executor then needs to ascertain the precise value of the assets of the estate and protect them. This
will involve ensuring that insurance is in place, where appropriate.

The executor must also ascertain all the liabilities of the estate such as taxes, outstanding claims, and
outstanding debts. He/she must also ascertain all of the beneficiaries of the estate and check into prior
gifts/inheritances that they may have received.

Then, the executor must prepare and swear an Inland Revenue affidavit which will list all assets and
liabilities of the estate.

The executor then must lodge all the relevant documents in the Probate Office and extract a Grant of
Probate. Once the Grant issues, he will gather in all the assets and dispose of those not being given to
beneficiaries.

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The executor must also pay all of the debts and expenses of the estate and distribute the assets, making
sure that all taxes are paid. These taxes will include taxes due by the deceased prior to his death, all taxes
arising out of the administration of the estate itself, and any inheritance taxes and capital gains taxes
arising from distribution of assets.

Lastly, the executor must prepare an administration account where he accounts for all monies received
and disbursed during the administration period.

Note:

1. An executor cannot delegate his authority but may engage the services of other people to help
him, eg experts such as a solicitor, accountant, taxation specialist, auctioneer to value property
etc.

2. an executor is not entitled to be paid for carrying out his duty but he is entitled to recover
expenses incurred by him in the carrying out of his duty
3. there is no obligation on the executor to give a copy of the will to anyone before it is admitted to
probate, nor to inform a beneficiary of his interest

4. the duties of a personal representative are for life

5. there is no limit on the number of executors that can be appointed

6. An executor can be appointed in a will or by implication, ie according to tenor (eg no executor is

appointed in the will but someone is given the function of discharging the debts of the deceased).

The Powers of an Executor

An executor is given wide ranging powers by statute (the Succession Act, 1965) and by the will itself.

The statutory powers include:

• the power to sell all or any part of the estate to pay debts and to distribute the estate among the
persons entitled

• the power to act as a trustee for the purposes of the Settled Land Acts

• the power to appropriate any part of the estate towards satisfaction of any share in the estate
(subject to the provisions of section 55 of the Succession Act, 1965)

• the power to appoint trustees for an infant beneficiary

• the power to lease property for the administration of the estate

• the power to mortgage

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 • The power to settle claims and disputes.

Powers typically granted in a will include

• the power to appropriate without serving any notices or consents

• the power to invest or purchase authorised securities

• The power to employ agents/managers.

Administrator
An administrator (administratix if female) extracts a grant in an intestate situation or in a testate situation
where the executor has died.

Right of Administrator-General to apply for administration of estates.

9. (1) if-(a) any person has died leaving within any State assets exceeding rupees 1[fifty] thousand in value,
and

(b) (whether the obtaining of probate of his will or letters of administration to his estate is or is not
obligatory), no person to whom any court would have jurisdiction to commit administration of such
assets has, within one month after his death, applied in such State for such probate, or letters of
administration, and

(c) in cases where the obtaining of such probate or letters of administration is not obligatory under
the provisions of the Indian Succession Act, 1925 (39 of 1925), no person has taken other proceedings
for the protection of the estate, the Administrator-General of the State in which such assets are, may,
subject to any rules made by the State Government, within a reasonable time after he has had notice of
the death of such person, and of his having left such assets, take such proceedings as may be necessary
to obtain from the High Court letters of administration of the estate of such person.

(2) The Administrator-General shall not take proceedings under this section unless he is satisfied, that
there is apprehension of misappropriation, deterioration or waste of such assets if such proceedings are
not taken by him or that such proceedings are otherwise necessary for the protection of the assets.

Power of Administrator-General to collect and hold assets where immediate action is required.

10. (1) Whenever any person has died leaving assets within any State exceeding rupees 1[fifty] thousand
in value, and the High Court for that State is satisfied that there is imminent danger of misappropriation,
deterioration or waste of such assets, requiring immediate action, the High Court may, upon the
application of the Administrator- General or of any person interested in such assets or in the due
administration thereof, forthwith direct the Administrator- General-

(a) To collect and take possession of such assets, and

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(b) To hold, deposit, realise, sell or invest the same according to the directions of the High Court, and, in
default of any such directions, according to the provisions of this Act so far as the same are
applicable to such assets.

(2) Any order of the High Court under sub-section (1) shall entitle the Administrator-General- (a)

To maintain any suit or proceeding for the recovery of such assets;

(b) If he thinks fit, to apply for letters of administration of the estate of such deceased person;

(c) To retain out of the assets of the estate any fees chargeable under rules made under this Act; and

(d) To reimburse himself for all payments made by him to respect of such assets which a private
administrator might lawfully have made.

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