Jamia Millia Islamia

F/o Law

Subject - Family Law-1

Submitted by- Submitted to-

Sahil Varshney Dr. KAHKASHAN DANIYAL

B.A. LL.B. (Hons.) S/F

2nd year, 4th semester

Roll no. – 52

ID - 20186501

1
 Unit – 1

Ques.1- Discuss the judicial approach of our Courts regarding the Muslim husband‘s
unilateral power of divorce right from the case of Moonshee Buzloor Rahim v. Latifatunnissa
Begum to Shayara Bano v. Union of India. Refer to decided cases.

Answer- The word ‗talaq‘ is usually meant ‗repudiation‘. Literally it means ‗the taking off of
any tie on restraint‘. In law, it signifies the absolute power which the husband possesses of
divorcing his wife at all time. Thus, talaq means the repudiation of the wife by the husband in
exercise of his absolute power conferred on him by laws.
Hedaya had defined talaq as dismissal in the primitive sense. According to section 1 of law of
divorce (comport by All India Muslim Personal Law board in compendium of Islamic laws)
says ―talaq literally means to remove a restriction. In the terminology of Shariat, talaq means
to put an end to the marriage, with immediate or deferred effect, by using any special words
meant for it. Whether those words are used by the husband himself or by his representative,
or by ‗Qazi‘ who in certain situation is regarded by Shariat as the husband‘s duty and is
empowered to pronounce a divorce on his behalf without his consent.‖
The privileges enjoyed by the husband are mainly two:
a) He can divorce his wife without any misbehavior on her part and without assigning
any cause . Moreover, even if he bind himself by formal promise not to exercise such
an absolute power of divorce, he will not be prevented from exercising it, and a
divorce pronounced by him in violation of such a promise will be effected.
b) He can have four wives at a time, whereas a Muslim woman can have only one
husband at a time.

From Moonshee Buzloor Rahim to Shayara Bano, the situation in India was complex because
of the imperative truth that there was no codified law to govern Muslim marriage till 1939.
Therefore, many times in order to get divorce women had to face difficulties. Many a times
she considered religious conversion so as to get herself divorced. Under the Muslim Law, a
husband has been given arbitrary power to dissolve his marriage. But the court decisions also
had a journey which was empowered by an activism that later on proved to be better for the
society in which we live in today.

2
In Moonshee Buzloor Ruheem v. Latifatunnissa Begum (1861) it was explained that the
divorce by khoola is a divorce with the consent, and at the instance of the wife, in which she
gives or agrees to give a consideration to the husband for her release from the marriage tie. In
such a case the terms of the bargain are matters of arrangement between the husband and
wife, and the wife may, as the consideration, release her Mahr (dower) and other rights, or
make any other agreement for the benefit of the husband."

In Amir-ud-din v. Khatun Bibi (1917) it was held that the talak-ul-biddat or heretical
divorce is good in law, though bad in theology, and it is the most common and prevalent
mode of divorce in this country.

The High Court of Patna in Sheikh Fazlur v. Musammat Aisha (1929) has expressed the
opinion relying on a passage on p. 74 of the Hedaya, that a talak-ul-bidaat effected by a triple
pronouncement is valid even if it is pronounced when the wife is in her menstruation.

In Ahmed Kasim Molla v. Khatoon Bibi (1933), the court held that there is no legal
restriction of any kind and it may be pronounced on mere whim or caprice without any
reason. The impropriety on the part of the husband will not affect the legal validity of talaq.

In Asha Bibi v. Kader Ibrahim, Any impropriety on the husband‘s conduct would in no
way affect the legal validity of talaq duly effected by the husband. The judgment on this case
reaffirmed the approach of the courts in the case Ahmed Kasim Molla. It was also stated that
for pronouncement of talaq, it is essential to have a marital relationship between husband and
wife or the marriage is subsisting between them during the pronouncement of talaq. Hence
husband can divorce his wife during iddat of revocable talaq.

In Chandbi badesha Mujawar v. Badesha Balwant Mujawar, it was held that application
for maintenance had been made by wife under S.488 of CrPC and he filed a written statement
said that already divorced her. Court held that statement of the husband if the fact of such
divorce is not proved, operates as the delineation of the divorce from date of written
statement. In the written statement filed by the husband was one of the acknowledgment of
talaq granted by him to be effect from the date on which the acknowledgement is made.

In the Shah Bano Case, Shah Bano‘s story began when her advocate husband drove her out
of her matrimonial home in the year 1975 and aspired to hide in the veil of personal law for

3
not giving maintenance to his wife. In April 1978, the respondent filed a petition against the
appellant under section 125 of the Code of Criminal Procedure asking for maintenance at the
rate of Rs. 500 per month. After a few months, on November 6, 1978 the appellant divorced
the respondent by an irrevocable talaq. In August 1979, the learned Magistrate directed her
husband to pay a sum of Rs. 25 per month to the respondent wife Shah Bano by way of
maintenance. On revision, the sum was enhanced to Rs. 179.20 per month. Thereafter her
husband approached the Supreme Court of India by special leave.

A five-judge bench of the Honorable Supreme Court dealt with the issue. The court not only
directed for payment of maintenance to a divorced Muslim wife in accordance with the Code
of Criminal Procedure but also found the same to be in conformity with the principles
enshrined in the Holy Quran.

The Muslim Women (Protection of Rights on Divorce) Act was passed in 1986. According to
the MWA, Mahr and maintenance were to be paid to a divorced Muslim woman only during
the three-month iddat. It effectively deprived Muslim women of the right to file a
maintenance petition under Section 125 of the CrPC. In Maharshi Avadhesh v. Union of
India, the Act was challenged constitutionally but the attempt remained unsuccessful.

Before this challenge made to the constitutionality of the Act, there were two views prevalent
among the various High Courts. One side conformed to the view of the High Court of Andhra
Pradesh taken in the case of Usman Khan v. Fatimunnisa, saying that the liability of the
Muslim husband to pay reasonable and fair maintenance is confined only during the period of
iddat. A similar view was adopted by the High Court of Madras and other High Courts as
well.

In Danial Latifi & Anr vs. Union of India, it was held that:

1) A Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act
to pay maintenance is not confined to iddat period.

4
In Shamim Ara v. State of U.P., it was said that, the condition precedent for effectiveness of
divorce was the pronouncement of divorce which has to be proved on evidence. The basic
rule is that a Muslim husband under all schools of Muslim law can divorce his wife by his
unilateral action without the intervention of the court. The SC expressed disapproval and
disagreement with the above view. Approving the decision of Guwhati HC which held that
talaq must be for a reasonable cause and be preceded by attempts of reconciliation by two
arbitrators one from each family, if failed, talaq may be effective.

This judgment can be expected to restrain the Muslim husbands from playing the card of
divorce to defeat the wife‘s demand of maintenance. And further, requirement of ‗reasonable
provision‘ ordered by the SC in Daniel Latifi case makes the wife‘s position better guarded
than before.

Masroor Ahmad v. State of NCT Delhi (2008), the court held that, • A triple talaq, even for
Sunni Muslims be regarded as one irrevocable talaq. • If a talaq is pronounced in extreme
anger where the husband has lost control of himself, it would not be effective. • When the
talaq is communicated to the wife, talaq will be considered effective from that date. If it is not
communicated, then it would not take effect. • There should be attempt of reconciliation as
mentioned in Quran either before or after the purported pronouncement of talaq.

Shayara Bano v. Union of India, this is the landmark case of all the cases which were
decided on the topic. In this case the question arises whether the Muslim personal law which
enables a Muslim male to give unilateral talaq to his wife without her consent and without
resort to judicial process of courts, is void as it offends article 13, 14 and 15 of the
constitution. The court held that the view that the Muslim husband enjoys an arbitrary,
unilateral power to inflict instant divorce does not accord with Islamic Injunctions, further
court stated that this court declined to entertain writ petitions asked for very sweepings reliefs
which interestingly enough included a declaration of voidness as to ‗unilateral talaq‘.

Conclusion

Therefore, such practice is declared unconstitutional and should be set aside. These impugned
practices are tools by which marital tie can be broken on whims of husband without any
reconciliation to save it. This form of talaq therefore is a violation of Fundamental right to
equality and should be struck down by the courts.

5
 Unit – 2

Ques.2- What is the nature and kinds of dower? Explain the Muslim widow‘s right of
retention of her husband‘s property in lieu of her unpaid dower. Is it heritable and
transferable? Refer to decided cases.

Answer- According to the Islamic teaching in Sunnah, Mahr is the amount of some monetary
value to be paid by the groom to the bride at the time of marriage (some of which may be
delayed according to what has been agreed upon between the spouses. The Mahr is for the
bride to spend as she wishes. ―According to Ameer Ali, ―Dower is consideration which
belongs absolutely to the wife.‖ According to Tayabji, ―Mahr or dower is sum that becomes
payable by the husband to the wife on marriage either by agreement between parties, or by
operation of law.

Justice Mahmood defines dower as follows:

‗Dower, under the Muhammadan law, is a sum of money or other property promised by the
husband to be paid or delivered to the wife in consideration of the marriage, and even where
no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right
of dower upon the wife.‘ It is not the consideration in modern sense of the term but a
obligation imposed by law on husband as a mark of respect towards women.

Here the word consideration is not used in the sense of contract act as we know that without
consideration there will be no contract and if in a Muslim marriage the husband does not pay
the dower promptly then there will be no marriage according to contract but in Islamic
marriage there is provision for ―Deferred Dower‖ which can be paid later so we cannot say
that Dower is consideration for marriage and other point is If we purchase any thing we pay
price to the owner and according to this the husband should pay dower to father or guardian
of the wife not to the wife as prevalent in Pre Islamic Arabia ―Baal Marriage” so we cannot
say that Marriage in Islam is civil contract and Dower is consideration for marriage.

Thus Islam sought to make Mahr into a real settlement in favour of the wife, a provision for a
rainy day and, socially, it became a check on the capricious exercise by the husband of his
almost unlimited power of divorce. A husband thinks twice before divorcing a wife when he
knows that upon divorce the whole of the dower would be payable immediately.

6
Types of Dower:

A. Specified Dower (Mahrul-Musamma)

The Mahr is usually fixed at the time of marriage but it is also fixed after the marriage. Mahr
fixed by the father on behalf of his minor son is binding on the minor son on his majority.
However, under Hanafi Law, the father is not personally liable for the Mahr but in Ithna
Ashari Law, father is also held liable. Where the amount has been specified, the husband will
be compelled to pay the whole of it, howsoever excessive it may be.

But in Oath, only a reasonable amount will be granted, if court deemed the amount excessive
or fictitious. Sometimes, for the purpose of glorification, a large Mahr for the purposes of
show is announced but the real Mahr is smaller. Such a Mahr for the purposes of show is
fictitious. But this will be a fraud on Law and defeats the very purpose and hence must not be
allowed to be given recognition in law.

B. Unspecified Dower (Mahrul Misal)

The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties. Hence, the husband‘s liable to pay Mahr
even if it is not specified. The only question would be the quantum. If no Mahr is fixed, wife
will be entitled to receive the amount which is customary in the community or in respective
society or what is proper in each individual case.

C. Prompt (Muajjal) and Deferred (Muvajjal) Mahr

A technical term for Prompt is Muajjal and for Deferred is Muvajjal. The term Muajjal is
derived from a root meaning ‗Hasten‘, ‗to proceed‘ whereas the term Muvajjal is derived
from the root meaning ‗Delayed‘ or ‗Deferred.‘

The prompt dower is payable immediately after the marriage but the deferred Dower
becomes payable either on the dissolution of the marriage or on the happening of a specified
event. When dower is fixed, it is usual to split it into two equal parts, one part is paid at once
or on demand and the other on the death of the husband or on divorce or on the happening of
some specified event. In Ithna Ashari Law, the presumption is that the whole of the dower is
prompt but in Hanafi Law, the position is different. Ideally and usually, the whole Mahr is

7
required to be promptly awarded but in earlier case, the Full Bench held that the usage
(custom) of the wife‘s family is the main consideration and in absence of proof of custom, the
presumption is that one half is prompt. However, the proportion may be changed to suit
particular cases.

The Widow’s Right of Retention

Muhammadan law gives to the widow, whose dower has remained unpaid a very special right
to enforce her demand. This is known as ‗the widow‘s right of retention‘. In Mirvahedalli v.
Rashid beg, it was held that a widow lawfully in possession of her deceased husband‘s estate
is entitled to retain such possession until her dower debt is satisfied. Her right is not in the
nature of a regular charge, mortgage or a lien; it is in essence a personal right as against heirs
and creditors to enforce her rights; and it is a right to retain, not to obtain, possession of her
husband‘s estate. Once she loses possession of her husband‘s estate, she loses her special
right and is in no better position than an unsecured creditor.

The nature of this right was discussed by their lordships of the Privy Council in Maina Bibi
v. Chaudhri Vakil Ahmad. One Muinuddin died in 1890 possessed of immovable property
leaving him surviving his widow Maina Bibi, who entered into possession. In 1902 some of
the heirs filed a suit to recover possession of their share of the property. The widow pleaded
that the estate was a gift to her, or alternatively that she was entitled to possession until her
dower was paid. In 1903 the trial judge made a decree for possession in favour of the
plaintiffs on condition that the plaintiffs paid a certain sum by way of dower and interest to
the widow within six months. This sum was not paid, however, and the widow remained in
possession, in 1907 Maina Bibi purported to make a gift of the whole of her property to
certain persons. The original plaintiffs challenged this gift and the Privy Council held that the
widow had no power to make a gift of the properties, and could not convey the share of the
heirs to the donees. Their lordships, in discussing the nature of a widow‘s right of retention,
said that ‗the possession of the property being once peaceably and lawfully acquired, the
right of the widow to retain it till her dower-debt is paid is conferred upon her by
Muhammadan Law‘. They further said that it is not exactly an lien, nor a mortgage,
usufructuary or other.

Thus, in essence, it is a personal right given by Muhammadan law to safeguard the position
of the widow.

8
In Abdul Samad v. Alimuddin, the Supreme Court has laid down that a Muslim widow in
possession of her deceased husband‘s estate in lieu of her claims for dower, whether with the
consent of the heirs or otherwise, is not entitled to priority as against his unsecured creditors.

There is a conflict of opinion whether in order to retain possession the consent, express or
implied, of the husband or his heirs is necessary. Some judges are of opinion that such
consent is necessary; others, that it is not. It is submitted with great respect, that on first
principles, having regard to the nature of the right, the consent of the husband or his heirs is
immaterial. Muhammadan law casts a special obligation on every debtor to pay his debt, and
the right of the widow for her dower is a debt for which the widow has a good safeguard.
Thus, the question of consent appears to be immaterial.

In the case of Kapore Chand v. Kidar Nissa Begum, a dower debt cannot be give any
priority over other debts on any equitable consideration or on the ground that there is
something inherent in its very nature which entitles it to priority.

The right to retention does not confer on the widow any title to the property. Her rights are
twofold: one, as heir of the deceased and two, as widow entitled to her dower and, if
necessary, to retain possession of the estate until her Mahr has been paid. The right to hold
possession must, therefore, be sharply distinguished from her right as an heir. The widow, in
these circumstances, has the right to have the property administered, her just debts satisfied
and her share of the inheritance ascertained and paid. She has no right to alienate the property
by sale, mortgage, gift or otherwise, and if she attempts to do so, she loses her right of Mahr.

Rights of widow over dispossession by heir:

If the widow is dispossessed by the heirs of the husband or their transferees, the right to
recover possession is available to her only under Section 9 of the Specific Relief Act, and that
too within six months of dispossession, failing which the right to recover possession would
be lost, and with it, of course her lien over the ‗property‘. In dispossession by a trespasser,
she can sue within 12 years under Article 142 of the Indian Limitation Act.

Conclusion

It can be concluded that in India Mahr is something in the form of a sum of money or some
property which a wife is entitled to get from her husband and in case of his death from his
heirs also. When the amount of dower is fixed, it is specified dower or otherwise proper

9
dower may be specified before at the time of and even after marriage. Dower is a debt,
though unsecured. The wife, widow or divorce has a right to retain in possession of the
property of the husband till her dower debt is satisfied. The right of retention is not a charge
on property. The right of dower is heritable and transferable which in possession of the
husband‘s property in lieu of her dower debt the widow or divorcee can neither make
alienation of that property nor manage it.

10
 Unit – 3

Ques.3- Discuss the ‗Acknowledgement of paternity‘ under Muslim law and its conditions.
Also discuss the objections to Section 112 of the Indian Evidence Act, 1872 superseding the
Muslim law of presumptions of legitimacy? Explain.

Answer- Guardianship, maintenance and inheritance are concepts dependent on maternity

and paternity of the child. Legitimacy is always dependent on Paternity. Maternity of the
child is established once it is known that the woman is the mother who gave birth to the child.
However, paternity depends on the pre-condition that the father was married to the mother at
the time of birth of the child. Thus, when Paternity is established, legitimacy is also
established.

Parentage is the relation of parents to their children. Paternity is the legal relation between
father and child.

 (1)The paternity of a child can only be established by marriage between its parents. The
marriage may be valid (sahih), or irregular (fasid), but it must not be void (batil).

Marriage may be established by direct proof. If there be no direct proof, it may be established
by indirect proof, that is, by presumption drawn from certain facts. It may be presumed from
prolonged cohabitation combined with other circumstances, or from an acknowledgment of
legitimacy in favour of a child.

 (2)When the paternity of a child is established, its legitimacy is also established.

Section 112 of the Evidence Act states that ―Birth during marriage, conclusive proof of
legitimacy.—The fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days after its dissolution,
the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that
man, unless it can be shown that the parties to the marriage had no access to each other at any
time when he could have been begotten.‖

11
The question arises that whether s112 of evidence act supersedes the rules of Muhammadan
Law as to legitimacy was left open in an Allahabad case. The High Court of Allahabad has
since held that the section supersedes Muhammadan law, and that it applies to
Mahomedans. The same view has been taken in Lahore. The Chief Court of Oudh has held
that even if s. 112 applied to Mahomedans, it cannot be applicable to an irregular (fasid)
marriage; as such a marriage is not a "valid" marriage within the meaning of the section.
"Valid" in the view of that Court, means "flawless".

The Calcutta High Court in Fazilatunnissa v. Kamarunnissa (1904) has laid down that the
doctrine of acknowledgement is an integral part of the Mohammedan law and the conditions
under which it will take effect must be determined with reference to Mohammedan
Jurisprudence rather than the Evidence Act.

ACKNOWLEDGMENT OF PATERNITY:

The main pivot in cases of paternity and legitimacy is marriage. It is also in the case of
acknowledgment. The Muhammadan law of acknowledgment of parentage with its
legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child
is proved and established. Paternity is the legal relationship between father and the child.
Paternity is based on the legal relationship between the woman who gave birth to the child
and the man who begot him. This legal relationship is a valid one established through
marriage between them. This means, that a child would be legitimate if his father was
married to his mother at the time he was born. The marriage can be valid of irregular,
according to Sunni law, however, it should be fully valid, according to Shia Law.

The Muhammadan law of acknowledgment of paternity could be invoked only when the
factum of marriage or the exact time of marriage had not been proved. The doctrine of
acknowledgment is based on the assumption of a lawful union between the parents of the
acknowledged child. The doctrine, however, is not applicable where the lawful union
between the parents of the child is not possible as in the case of incestuous intercourse or an
adulterous connection. The doctrine is also not applicable where the marriage necessary to
render a child legitimate is disproved.

In Muhammad Azmat v. Lalli Begum, according to Muhammadan Law the

acknowledgement and recognition of children by a father as his sons gives them the status of
sons, capable of being inheriting as legitimate sons. Such an acknowledgment may either

12
express or implied, in the latter case the inference from the acts of the father must depend
upon the circumstances of each particular case.

Conditions of valid acknowledgment:

1) Unknown paternity-

(a) Fact or exact time of marriage is not certain—As marriage among Muslims may be
constituted without any ceremonial, direct proof of marriage is not always possible where
direct proof is not available, indirect proof is by way of an acknowledgement of legitimacy in
favor of the child.

(b) Paternity neither proved nor disproved---It is necessary that marriage between the parents
of the acknowledged child must neither be proved nor disproved; it must be in state of not
proved, i.e. capable of being proved or disproved.

2) Intention to confer status of legitimacy-In Habibur Rahman v. Altaf Ali (1921) the
Privy Council held that ―the acknowledgement must not be merely of sonship, but must be
made in such a way that it shows that the acknowledger meant(i.e. intended) to accept the
other not only as his son, buy, as his legitimate son‖. The general principle of the law is that
the acknowledging a child as son indicates accepting him as legitimate son. As held in
Fazlun Bibi v. Umda Bibi (1868) this rule is applicable to Muslim law also. However, a
casual acknowledgement would not confer the status of legitimacy. There must be an express
intention to do so.

3) Acknowledger must be 12½ years older than the acknowledged- ―The limitation that
the acknowledged might be born of the acknowledger means that the age of the
acknowledged should exceed the age of the acknowledged at least by twelve and half years,
and this because is the minimum period of the puberty for a youth; and this limitation is
necessary because if the acknowledger has not attained puberty, the acknowledgement would
be falsify obviously.

4) Legal marriage must be possible between the parents of the person acknowledged-
The parents of the acknowledged child must not be in the prohibited degrees of relationships.
Such absolute prohibitions are on the points of (a) Consanguinity, (b) Affinity, (c) Fosterage,
and (d) Polyandry. If the parents are within the relative degrees of prohibition so as to make

13
the marriage between them as irregular but not void, valid acknowledgement can be made of
an issue of such a marriage. An example of such a marriage can be seen in Rashid Ahmad v.
Anisa Khatun (1931) the acknowledgement in question was of a child born to the parents
who were remarried after triple divorce. The wife was given triple divorce and without
undergoing a second marriage with another person, the spouse remarried with each other.
Since this marriage was void, valid acknowledgement could not be given to the child.

5) Person acknowledged must not be offspring of zina- An offspring of zina is one who is
born either: (a) Without marriage or (b) Of a mother who was the married wife of another, or
(c) Of a void marriage. Baillie says that when a man has committed zina with a woman, and
she delivered a son whom he claims, the descent of the son from the man is not established,
and cannot be acknowledged.

6) Person acknowledged must not be known to be the child of another- The Muslim Law
of acknowledgement relates only to the cases of uncertainty and proceeds on the assumption
that the acknowledged child is not only the offspring of the acknowledger by blood, but also
the issue of lawful union. Thus, where a person is known to be the child of another, valid
acknowledgement cannot be made.

7) Person acknowledged must not repudiate the acknowledgement- It is a condition that

acknowledged child should verify the acknowledgement, because, if the child does not verify,
an impediment is created and the child‗s descent is not established by the mere
acknowledgement, but requires proof. However, if the child is too young, such verification is
not essential.

Section 112 of the Indian Evidence Act, 1872 superseding the Muslim law of
presumptions of legitimacy:

Section 112 of Indian Evidence Act limits conclusive presumption the period of gestation to
280 days after the dissolution of marriage to render the child legitimate. Session 112 of the
Evidence Act lays down conclusive presumption 6f legitimacy. It provides that a child born
during the continuance of a valid marriage or within 280 days after its dissolution, the mother
remaining unmarried, is conclusively presumed to be legitimate, unless there was no access
when he could have been begotten. In Sibt Muhammad v. Muhammad Hammed the
Allahabad High Court held that to the question whether the Muslim child born within 6

14
months of the marriage of his parents was to be considered legitimate, section 12 applied and
the child was legitimate.

The following difficulties arise if section 112 is made to supersede the Muslim law:

1. A child born within 6 months of the marriage is, in the absence of evidence of non-
access, to be deemed to be legitimate under section 112, but according to Muslim law
such a child would be illegitimate. The Muslim jurists have always considered the
point of conception to be very essential even during a valid continuance of wedlock.
2. The establishment of paternity is a portion of the Muslim family law and, though
described for convenience as a legal presumption, forms a branch of substantive law.
Wilson holds the view that the rule in section 112 is really a rule of substantive
marriage-law rather than of evidence and as such has no application to Muslims so far
as it conflicts with the Muslim law rule that a child born within 6 months after the
marriage of its parents is not legitimate." In Allahdad's case, Mahmood, J. dealt with
such questions within the province of Muslim law of inheritance and marriage. Since
these matters are posterior in date than the Evidence Act, they should, according to
Wilson and other writers, prevail in cases of direct conflict.

Conclusion

Acknowledgement means legally accepting someone, which creates some legal rights.
When a man legally recognizes any baby who did not biologically belong to that man,
then it is called ‗Acknowledgement of Paternity ‗under Mohammedan Law. This doctrine
of Acknowledgement of Paternity‗under Mohammedan Law applies only when there is
uncertainty and paternity of the child has been proved from any other person, the child is
not a result of any Zina (i.e. adultery, fornication, incest, or illicit relation) and the
circumstance of his birth are such that he could be a legitimate child of his father.

15
 Unit – 4

Ques.4- (a) When a Muslim testator bequeaths more than 1/3rd of his property and his legal
heirs refuse to give their consent. Discuss the law to be applied both under Sunni and Shia
law in such situations.
(b) What are the essentials of a valid gift? In which cases, delivery of possession is not
necessary? Discuss with the help of examples.

Answer- (a) A will or testament or Wasiyat has been defined as ―an instrument by which a
person makes disposition of his property to take effect after his death‖. According to Tayabji,
―conferment of right of property in specific thing or in a profit or advantage or in a gratuity to
take effect on the death of the testator.‖ The law of wills under Muslim Law is different from
the law governing wills made by Hindus or those made under Indian Succession Act, 1925.
This is because under Muslim Law, testamentary disposition of property is considered to be
divine in nature and draws on the Quran. The thing so given in a will is called legacy or the
subject of the bequest. The general rule with regard to the extent of property that may be
disposed of by will is that no Muslim can make a bequest of more than 1/3rd of his net assets
after payment of funeral charges and debts.

Sunni Law:

Rule of rateable Proportion when a Muslim testator bequeaths more than 1/3rd of his property
and his legal heirs refuse to give their consent, the Hanafi law the bequests abate rateably. For
the purposes of rateable reduction, bequest can be divided into 1.) Bequest for pious purposes
2.) Bequests for secular purposes. Bequests for pious purposes are decreased proportionately
to bequests for secular purposes and do not have precedence over it. The main objective of
this principle is to reduce the shares proportionately to bring it down to one-third. Where the
legator has left only his or her spouse, and apart from the spouse there is no other heir, the
above rule of only making one third of the property may become inapplicable. In such cases,
the spouse shall take the whole property. The rule of bequeathable third shall have no
application if no heir has survived the legator.

16
Shia Law

Under Shia Law, the principle of rate able abatement is not applicable and the bequests made
prior in date take priority over those later in date. But if the bequest is made by the same will,
the latter bequest would be a revocation of an earlier bequest. The legatee whose name
appears first in the Will is to be given his or her share, followed by the second legatee and
then the third and so on. The moment the bequeathable one-third is exhausted full effect has
been given to the Will. Any other legatee whose name follows after the one-third of the assets
has been distributed will not receive anything.

(b) ‗Gift‘ or ‗Hiba‘ literally means the giving away of such a thing from which the person in
whose favour the gift is made may draw benefit. The definition of Hiba or Gift has been
given in Kanz al Daquiq in the following words: ―Hiba is the making of another person
owner of the corpus of property without taking its consideration from him."A hiba or gift is
"a transfer of property, made immediately, and without any exchange," by one person to
another, and accepted by or on behalf of the latter.

The basis of the principle of gift is the Prophet's saying, "Exchange gifts among yourselves so
that love may increase."

Every Muhammadan who is of sound mind and not a minor may dispose property by gift. A
gift as distinguished from a Will may be made of the whole of the donor's property, and it
may be made even to an heir. In Hafiz Abdul Basit v. Hafiz Mohd., it was held, ―a man may
lawfully make a gift of his property to another during his life time, or he may give it away to
someone after his death by will. The first is called a disposition inter vivos and the second a
testamentary disposition. Mohammedan law permits both kinds of dispositions, but while
disposition inter vivos is unfettered as to quantum, the testamentary disposition is limited to
one-third of the net estate.‖

The three essential requisites for a valid gift are: (1) The offer of the gift (2) Acceptance there
of (3) Delivery of possession in pursuance there under.

1.) The offer of the gift: Declaration does not connote mere rather it shows the real intention
if donor behind making the gift. As Tayabji purports ―Where there is no real and bona

17
 fide intention to transfer the ownership of the subject of gift, an alleged gift may be of no
effect‖. Privy council in Ameer Ali lays down the three conditions to make a gift which is
somewhat similar to the above stated requirements. Gifts without intention may be sham
gifts, colourable or benami transactions, etc. A gift made with intent to defraud the
creditors of the donor is voidable at the option of donor. A declaration purporting to
transfer the property in future time or happening of a certain event is void.

2.) Acceptance of the gift: Mere declaration does not contemplate the completion of gift.
The gift should be accepted by the donee. The acceptance of the gift must be by a person
competent to accept. Till the A in favor of the minor is accepted by a person competent to
accept the gift, it cannot become valid. Thus, where the father and grandparents executed gift
deed in favor of minor children and one of the donee who was a minor at the time of the gift,
accepted the gift on behalf of her younger brothers and sisters, it was held she was not
competent to accept the gift on behalf of other minors, and the gift was invalid.

3.) Delivery of possession: The delivery of possession does not mean that the donor must
have physical possession of the property and must hand over that physical possession to the
donee. It is enough if he has got legal possession as the matter is susceptible. When the donor
makes a declaration of a gift and the donee accept, then the possession of the thing gifted
should also be given to the donee. Such delivery of possession may be actual or constructive.

In Tateef Khan v. Abdul Basifh Khan, the appellant made an offer of gift over the plaint
schedule property to the respondent, a guardian accepted the offer on behalf of the
respondent. She has been in possession and enjoyment ever since the delivery of the plot.
Therefore, the gift is complete on talking possession of the plaint schedule property and the
revocation deed was held to be invalid and not binding on the respondent.

When Delivery of Possession is not necessary-Islamic law of gift binds great significance to
delivery of possession especially in case of immovable property. The following are the
situations under which a gift is valid without actual or constructive delivery of possession:

1) Donor and donee live jointly in the gifted house: Where the subject-matter of a gift
is a house in which the donor and donee both resides together, any formal delivery of
possession is not necessary to complete the gift. Since the donee is already continuing

18
 the possession of the house in some other capacity, there is no need to give the donee
the same possession again in a different capacity.
2) Gift by a husband to wife or vice versa: where a gift of immovable property is made
by a husband to wife or vice versa, no transfer of possession is mandatory. The reason
behind this is that a joint residence is an integral aspect of the relationship of
marriage. To perform the matrimonial obligations, it is necessary the husband and
wife must live together.

In Fatima Bibi v. Abdul Rehman (2001), the husband made an oral gift of a house to his
wife. Later, the deed was also registered. The stepson, who lived with his wife in the gifted
house, challenged the validity of the gift on the ground that there was no delivery of
possession of the house. It was held that – Oral gift in presence of two persons amounts to the
declaration, mentioning the name of the wife in the registration deed amounts acceptance and
mutation in the name of the wife at the instance of the wife amounts sufficient delivery of
possession keeping in view the relationship between the parties.

Conclusion

Therefore, it is to understand that the concept of hiba and the term "gift as used in the transfer
of property act, are different. As we have seen that Under Mohammedan law, to be a valid
gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an
acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of
possession of the subject of gift. The English law as to rights in property is classified by a
division on the basis of immoveable and moveable (real and personal) property. The essential
elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d) the
subject-matter; (e) the transfer; and the acceptance Thus this striking difference between the
two laws relating to gift forms the base of understanding its underlying implications.

19
 Unit – 5

Ques.5- (a) Differentiate between Sunni and Shia law of inheritance.

(b) Explain the doctrine of Aul and doctrine of Radd both under Sunni and Shia law.

Answer- (a) It is familiar in scholarship on Islam that the most striking difference between
Sunni and Shia legal systems is their distinct laws of inheritance. It is familiar in scholarship
on Islam that the most striking difference between Sunni and Shia legal systems is their
distinct laws of inheritance. It does not mean that there is no space which is characterized by
similarity.
Sunni law divides descendants of brothers and sisters into the residuary and distant kindred
respectively, while Shia law does not prefer males over females in these situations nor place
their descendants in different classes. As Shia law places these females and their ascendants
and descendants in their respective classes along with their male counterparts, there remains
no need to have another class of legal heirs like the distant kindred in Shia scheme of
inheritance.
Another aspect we take into account while discussing Sunni law was distinguishing paternal
and maternal grandfathers into true and false grandfathers there is no such distinction in Shia
law. Both paternal and maternal grandfathers are placed in the same class. For instance, a
true grandfather of remoter degree cannot be excluded by any grandmother of nearer degree
in Sunni law. It means that the grandfather‘s father cannot be excluded by the grandmother
who is located a degree nearer to the deceased. In Shia law, the grandmother excludes the
grandfather‘s father. The reason for this difference is that Shia law does not differentiate
between males and females in excluding the remoter relations.
In Sunni law, full sister does not exclude consanguine brother while in Shia law; full sister
excludes consanguine brother generally because the former‘s status is equivalent to her male
counterpart in his absence.
For class 3rd heir in Shia law for instance, a person dies leaving behind one paternal uncle and
another maternal uncle. The both will be entitled to inheritance and the paternal uncle will not
have any preference over the maternal uncle, though their shares will not be the same. But if
the same situation is solved according to Sunni law, the paternal uncle will inherit the entire
estate as a residuary, while the maternal uncle will not have any share in the estate as he is
regarded as distant kindred.

20
There are a few differences between Sunni and Shia laws regarding inheritance of spouses.
Some Shia schools recognize temporary marriage as a valid marriage. According these
schools, only permanently married spouses are entitled to right of inheritance from each
other. There is one important distinction between Shia and Sunni laws regarding the
inheritance of childless widow. In the former law, she is not entitled to land or immovable
property though she has a right to her prescribed share from her deceased husband‘s movable
assets. On the other hand, Sunni law does not differentiate between immovable and movable
properties of a deceased; hence, a childless widow is entitled to have her share from the both.
There is no difference between the both laws that heirs of a predeceased heir will not inherit
anything if other heirs of the deceased are alive. For instance, if a person dies leaving behind
one son and two grandsons of a predeceased son, the son will get the whole estate and
nothing will be given to the grandsons. Thus, the principle of representation has no relevance
when there are other heirs alive from the same class who are also a degree nearer as
compared to the descendants of predeceased heir. According to Sunni law, all grandsons will
inherit from the estate of their grandparent as per capita: which implies that it will not be
taken into account how many out of those grandsons have descended from a particular
predeceased heir. So, each grandson will inherit 1/3 of the estate as if they are individually
entitled to inheritance. According to Shia law, each son would have his individual share had
he been alive which will be further divided to his legal heirs, for instance two grandsons are
linked to the deceased grandparent by the same father, so their share will be half than that of
the third grandson as he is the only heir of his father whom he represents. The principle of
representation is also applicable to heirs of other categories in Shia law, e.g. descendants of
brothers and sisters, descendants of uncles and aunts. In Sunni law the maternal grandson is
regarded as distant kindred andis only entitled to inherit in absence of the sharers and the
residuary. The only difference with respect to the inheritance of paternal and maternal
grandchildren in Shia law is that the children of daughter take their shares from the share of
their mother, while the paternal grandchildren represent their father, and consequently, inherit
from his share. The distribution among grandchildren of the same parent is carried out on the
basis of double share for a male than that of a female heir.
Shia and Sunni laws of inheritance are characterized by multi-layered differences but there
are some similarities between them due to the fact that the both laws are derived from the
same Quranic verses. There are twelve sharers according to Sunni law out of which Shia law
recognizes nine sharers. There is another noteworthy distinction that Shia law does not
recognize distant kindred as another category of legal heirs as they are identified in Sunni
21
law. It can be observed that the both systems recognize same persons as the sharers and the
residuary though they differ in calculation of their respective shares in numerous
circumstances.

(b) The doctrine of Aul and doctrine of Radd both under Sunni and Shia law.

-Rule of Radd/Return:

When an entire estate of a Shia Muslim is not consumed by his/her heirs and something is left
out of it, the rule of Radd/return is applied as is done in Sunni law. The application of Radd is
more frequent in Shia law because it accords less significance to Ausbaat/residuary as
compared to Sunni law. In Sunni law an exhaustive list of the residuaries reduces the
occurrences of application of Radd. Whenever there is residue of an estate of a deceased
Sunni Muslim that will be given to any eligible residuary irrespective of the fact how
remotely he is related to the deceased While such an exhaustive list is not available in Shia
law and even those who are regarded as the residuaries they cannot operate beyond the sphere
of their own basic class.

For example, deceased‘s paternal uncle is a residuary in Sunni law and he will be entitled to
inheritance after the distribution of prescribed shares to the sharers. Suppose a person dies
leaving behind a daughter and his paternal uncle. As per Sunni law, the daughter will have
one half, while the rest will be inherited by his uncle. But if the deceased is a Shia Muslim,
his daughter will take the entire estate the first half as a sharer and another half after applying
the Radd. The reason for this sort of distribution is that the daughter belongs to the class 1
and the uncle is an heir located in the class 3. The uncle is only entitled to inheritance if there
is no heir from the class 1 & 2.

In Sunni law, spouses are not entitled to any benefit under Radd except in a case where there
is no other relative of deceased alive including distant kindred. Shia law has added into this
list two more persons: the one is mother and the other is uterine brother/sister. Under certain
circumstances, they are only restricted to their prescribed share. There is no need to go into
detail of those circumstances as the paper is meant to be introductory.

In Ali Saheb vs. Hazarat it was held that though the principle of Radd (return) under the
classical law never applies to the surviving spouse, if that spouse is only survivor in India
he/she gets the whole property.

22
-Principle of Aul/Increase:

The principle of Aul is not recognized in Shia law of inheritance and Shia scholars have
expounded rules to avoid its application. In Sunni law, whenever the calculated shares of
heirs of a deceased are increased from the supposed shares of that estate, the supposed shares
are increased to match the number of the calculated shares. In this manner, each sharer gets
what is prescribed for him/her in the Quran in terms of numbers, though the actual
amount/quantity of his/her share is reduced. As it is not possible to avoid situations which
attract the application of principle of Aul, Shia jurists have devised an innovative manner to
resolve such situations. They have divided the sharers of a deceased into those whose share is
susceptible to reduction and those whose share is not liable to reduction.

They have placed daughters and sisters into the first category taking into account the fact that
their prescribed shares (one half and two thirds) could be reduced in those situations where
there is a male counterpart who converts them into residuaries. On the other hand, there are
other sharers, e.g. parents, spouse and uterine sister, whose share is minimally prescribed in
the Quran which could not be reduced from that minimal amount in any case

So, if there are heirs from both these categories and their calculated shares are increased from
the supposed shares, the heirs of the second category will have their prescribed shares, while
the heirs of the first category will bear the burden of avoidance of application of the principle
of Aul. Let us explain this in an illustration. A female dies leaving behind her husband and
two sisters. The husband‘s prescribed share in such a situation is 1/2, while two sisters‘ 2/3. If
we solve this proposition, the husband will be entitled to 3/6 and the sisters 4/6. So, according
to Sunni law, the Aul will be applied to make the husband‘s share 3/7 and the sisters 4/7. But
Shia law resolves it differently by proposing that the husband should be given 3/6 as his
prescribed share is not susceptible to reduction, while the sisters will jointly inherit 3/6
instead of 4/6 as their share can be reduced to circumvent the application of Aul.

23