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 Syed Khalid Rashid's

Muslim Law

Revised by
Prof. V.P. Bharatiya
MA, LL M, Ph.D.
Formerly Prof., Dean and Head, Faculty of Law
Jai Narain Vyas University, Jodhpur

. <A'? 1-)o(

EASTERN BOOK COMPANY

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 Preface

he Fifth Edition of the book is in your hands with the case law
Tbrought up to December 2008. Some more recent developments
pertaining to the resolutions passed by the Muslim Personal Law
Board and other parallel organisations have been noted and discussed.
It is a welcome sign that the Ulema is now increasingly reviewing old
customs and adopting or suggesting modernisation to cope up with
existing social norms and expectations. One more latest example is the
decision taken by the Islamic Fiqh Academy in New Delhi in February
2008 to "recognise the right of a Muslim girl to repudiate a marriage
contract with a boy who does not suit to her choice or which was
forced on her against her will". It is a different matter that many
organisations will cross swords now over this decision; what is
welcome is the willingness of the seniors amongst the society to
discuss the social problems instead of keeping mum in the name of
"ancient custom". And every practice is not a custom, far less a
"religious, sublime, indispensible" custom. For example objection to
photograph for election identity card (see M. Ajmal Khan v. Election
Commission, (2007) CLT 55). Moreover there is something like duty
to advance national interest. The book tries to spur thinking in this
direction. The learned readers' comments are most welcome.
As ever Shri Vijay Malik and the staff of the Eastern Book
Company has been very helpful in the preparation of this idition also.

—V.P. Bharatiya
Indore

[v]
 Preface to the Fourth Edition

he Third Edition of the book received encouraging response, and

T the book was soon out of print. But more than this what clinched
the decision to bring out the fourth edition was the tremendous
development in Muslim Law that took place through the judicial
decisions since the publication of the last edition. Landmark decisions
affecting and changing some of the socially incongruous concepts
relating to divorce, Mehar, maintenance, remarriage on motivated
conversion, wa/cf beneficiaries, Wakf Boards, pre-emption, primo-
geniture, etc. have been delivered since the publication of the third
edition. It is gratifying to note that the latest decisions have
substantially -reinforced the academic stand we adopted in the previous
editions of both English and Hindi versions. This edition incorporates
these latest developments.
Case law has not been just pasted, it has been digested, lucidly
analysed and briefly imbibed in the text. Some more opinions of
academic jurists have also been included. Students of LLB and LLM
will hardly find anything lacking or overlooked in this edition. Still,
readers' suggestions are most welcome particularly criticism.
The author is highly indebted to Shri Vijay Malik of Eastern Book
Company and his staff for the helping hand they extended in preparing
and shapingThis book so excellently.

Jodhpur —V.P. Bharatiya

[vu]
 Brief Contents

Pages
PREFACE V

TABLE OF CASES XVII

Chapters
I. The Concept and Background of
Muslim Law 1
II. Muslim Law as Applied and
Interpreted in India 30
III. Marriage (Nikah) 51
IV. Dower (Mahr) 88

V. Divorce (Talak) 103

VI. Legitimacy and Parentage (Jayaj aur
Rishta) 144
VII. Guardianship (Valaya) 161
VIII. Maintenance (Nafaqa) 179
IX. Wakf 225
X. Gift (Hiba) -267-
XI. Pre-emption (Shufa) 303
XII. Will (Wasiyat) 325
XIII. Administration of Estates and
Payments of Debts 344
XIV. Inheritance 362
BIBLIOGRAPHY 416

SUBJECT INDEX 420

[IX]
 Contents

Pages
PREFACE V
TABLE OF CASES XVII
Chapters
I. The Concept and Background of Muslim Law 1
1. The relevance of the study of Muslim law in
contemporary world
2. Conditions in Pre-Islamic Arabia 3
3. Sources of Muslim Law 5
4. The birth of Shia and Sunni sects 15
5. The Schools of Muslim Law 18
6. 'Shariat' and 'Fiqh' 22
7. Development of Muslim Law 25
H. Muslim Law as Applied and Interpreted in
India 30
1. Introduction 30
2. Historical 31
3. Shariat Act ofl93l 34
4. The Dissolution of Muslim Marriages Act,
1939 37
5. The present position 38
6. Who is a Muslim 42
7. Categories of Muslims and applicability of
Muslim Law 45
8. Rules of interpretation 45
9. Islamic Courts 49
HI. Marriage (Nikah) 51
1. Pre-Islamic background 51
2. Definitions of marriage 52

[xi]
XII Muslim Law

Chapters Pages

Marriage (Nikah) (contd.)

3. Nature of Muslim marriage 53

4. Formalities of a valid marriage 60

5. Legal effects of a valid marriage 62

6. Stipulations in marriage contract 62

7. Classification of marriages 64

8. Prohibitions to marry in certain cases 69

9. Guardianship in marriage 72

10. Option of puberty (Khyar-ul-bulugh) 73

11. Restitution of conjugal rights 74

12. Polygamy in Islam: A critique 80

IV. Dower (Mahr) 88

1. Pre-Islamic background 88

2. Definitions of 'Mahr' 88

3. The nature of dower 89

4. Kinds of dower 90

5. Subject-matter of dower 92

6. Minimum and Maximum Amounts of dower 93
7. Amounts of dower and conditions of
payment 94
8. Widow's right to retain possession of her

husband's estate in lieu of unpaid dower 94
9. Dower divorced from divorce and mated with

maintenance 98

V. Divorce (Talak) 103

1. Pre-Islamic background 103

2. After the advent of Islam 104

3. Modes of dissolution of marriage 105
4. Husband's unilateral power to divorce: A

critique 123

5. Effects of divorce 128

6. Formalities necessary for remarriage 129
7. Apostacy and conversion as grounds of

divorce 129
7-A. Use of conversion to elude criminal liability

for bigamy 131
 Contents xiii
Chapters Pages

Divorce (Talak) (contd.)

8. Iddat: Its rationale, utility and periods 135

9. Dissolution of foreign marriages 137

10. Divorce through agreement 137

11. Talak—Not an Arbitrary Power 138

VI. Legitimacy and Parentage (Jayaj aur Rishta) 144

1. Pre-Islamic background 144

2. Parentage 145

3. Legitimacy 146

4. Presumptions of legitimacy 148
5. Acknowledgment
of paternity (legitimacy)
(Iqrar) 152

6. Conditions of valid acknowledgment 155

7. Effects of acknowledgment 157

8. Position of adoption in Muslim Law 157.
9. A comparison between acknowledgment and
adoption 160

VII. Guardianship (Valaya) 161

1. Concept of guardianship in Islam 161

2. Appointment of guardian 162

3. Age of majority 163

4. Kinds of guardians 164

5. Kinds of guardianship 165

VIII. Maintenance (Nafaqa) 179

1. Introduction 179,

2. Definitions 180

3. Persons entitled to maintenance 182

IX. Wakf 225

1. Importance 225

2. Constitutional position 225

3. Origin of wakf 227

4. Development and foreign influence 228

5. Meaning and definition of wakf 228

6. Kinds of wakf 232

7. Legal incidents of wakf 233
xiv Muslim Law

Chapters Pages
Wakf (contd.)

8. Creation of wakf 235

9. Who can create wakf 237

10. What can be made as wakf 238

11. In whose favour can wakf be made 239

12. Objects of wakfs 240

13. Wakf with uncertain objects 246

14. Contingent or conditional wakfs 249

15. Essentials of a valid wakf 249

16. Administration of wakfs 250

17. Application of the income of wakf 261

18. Remuneration to Imams 261

19. Wakf and Trust distinguished 263

20. Position of family wakfs in India 264

X. Gift (Hiba) 267

1. Introduction 267

2. Definitions 267

3. Essentials of a valid gift 268

4. Registration 277

5. Constitutional validity of oral gifts 278

6. Who can make gifts 282

7. In whose favour (donee) 283

8. What may be given in gift 284

9. Conditional, contingent and future gifts 289

10. Gifts in the form oftrust 291

11. Revocation of gift 292

12. Gifts involving return (ewaz) 294

13. Life estate and Life interest 297

14. Shiite law of life interests 302

XI. Pre-emption (Shufa) 303

1. Meaning, origin and development 303

2. Advent of shufa in India 304

3. Definitions 304

4. Nature of the right of pre-emption 305

5. Constitutionality of pre-emption 308
 Contents xv
Chapters Pages

Pre-emption (Shufa) (contd.)

6. Application of the law of pre-emption 309

7. The pre-emptor 310
8. Characteristics of sale giving rise to
pre-emption 313

9. Difference of religion or sect 316

10. Formalities to be observed 320

11. Subject-matter of pre-emption 321

12. Legal effects of pre-emption 322

13. Loss of the right of pre-emption 322

14. How pre-emption is evaded 323
15. Sunni Law and Shia Law of pre-emption—
Comparison 323

XII. Will (Wasiyat) 325

1. Concept and meaning 325

2. Definitions 327

3. Form of will 327

4. Who can make wills 328

5. What and how much can be bequeathed 329

6. For whom the bequest can be made 336

7. Bequests which are not absolute 338

8. Revocation of will 339

9. Interpretation of wills 340

10. Gift and will compared 342

11. Sunni Law and Shia Law compared 342
XIII. Administration
of Estates and Payments of
Debts 344

1. Legal representatives of a deceased Muslim 348
2. The Requirement of Probate & Letters of
Administration 350

3. Functions of legal representatives 350
• 4. Recovery of credits to the property of the
• deceased 351

5. Alienation before payment of debt 354

6. Alienations by co-sharer before partition 355

7. Suit by the creditor against heirs 357

• 8. Alienation for payment of debts 360
XVI Muslim Law
Chapters Pages

XIV. Inheritance 362
1. Excellence of Muslim Law of Inheritance 362
2. Dual basis of Muslim Law of Inheritance 363
3. Some objections: Their answers 364
4. Some general rules of inheritance 367

5. Doctrine of representation 372
6. Rules of total and partial exclusion 375

7. Explanation of important terms used 379

8. Classes of heirs 380

BIBLIOGRAPHY 416

SUBJECT INDEX 420
 Table of Cases

A v. B, ILR (1896) 21 Bom 77 ............................................................................... 182

A. Razzaque Bagwan v. Ibrahim Haji Mohd. Husain, (1998)8 SCC 83................309,318
A. YousufRawther v. Sowramma, AIR 1971 Ker 261...........................................121, 122,
127
A.M. Jagjakh v. Rajathi Ziaudeen, (2007) 1 DMC 365 (Mad) ............................... 123
A.M.K. Marian Bibi v. M.A. Abdul Rahim, (2000) AIHC 661..............................237
A.P. Wakf Board v. Syed Ali Mulla, AIR 1985 AP 127 ........................................230
Ab. Ahad Akhoon v. Financial Commr., 2004 AIHC 871 (J&K) ..........................378
Abbas Naskar v. Chairman, Distt. Board, 24 Parganas, ILR (1932) 59 Cal
691 ...................................................................................................................358
Abbasali Shah v. Mohd. Shah, AIR 1951 MB 92...................................................159
Abdool Futteh Moul vie v. Zabunnessa Khatun, ILR (1881)6 Cal 631 ..................183
Abdool Razack v. Aga Mohd., (1893)21 IA 56: 21 Cal 666 ................................ 44,45,
61,155
Abdul Ahad v. Shah Begum, AIR 1997 J&K 22....................................................72
Abdul Gafoor Kunju v. Pathumma Beevi, (1989) 1 KLT 337................................ 195
Abdul Gafoor v. Abdul Samadh, 1998 AIHC 2907................................................271
Abdul Gafur v. Nizamuddin, (1892) 19 IA 170......................................................300
Abdul Gani Kasim v. Hussan Miya, 10 Born HCR 10...........................................241
Abdul Hakim v. Gappu Khan, SB C5A No 115/1950............................................159
Abdul Kadir v. Salima, ILR (1886) 8 All 149 ........................................................48, 53,
75,89
Abdul Khadar v. Taib Begum, AIR 1957 Mad 340................................................117
Abdul Khader v. Chidambaram Chettiyar, ILR (1909) 32 Mad 276......................360
Abdul Khader v. Razia Begum, 1991 Cri Li 247(Kant).........................................172
Abdul Latif Mondal v. Anuwara Khatun, (2002) 1 CLJ 186 .................................206,207
Abdul Majeeth v. Krishnamachariyar, ILR (:917) 40 Mad 243.............................353, 359,
360
Abdul Mohit v. Zebunnessa Khatun, AIR 1951 Cal 205........................................167
Abdul Qavi v. Asaf Ali, AIR 1962 All 364............................................................240
Abdul Rahim Afzalsha Kazi v. Abbas Alamsha Kazi, (2005) 1 Mah LJ 108 355
Abdul Rahim v. Julaiga Beevi, (2001)4 CLT 440.................................................60, 61
Abdul Rashid v. Sultana Begum, 1992 Cri U 76...................................................196
Abdul Razak v. Aga Muhammad, (1913) IA 46.....................................................157
Abdul Rehman Kutty v. Aisha Beevi, AIR 1960 Ker 101 ......................................151
Abdul Satar v, Advocate General, AIR 1933 Born 87............................................233

Abdul Soudagar Saheb v. Soudagar Muhammad Saheb, (1931)54 Mad 543 174
[XVII]
xviii Muslim Law

Abdulaziz Mohammad Kothiwal v. Ismailbeg Kashimbeg Miraz, (2004)

AIRKant HCR 710 ......................................................................................... 307
Abdullah Khan v. Sunda, 11 IC 670....................................................................... 159
Abdulsattar v. Shah ma, AIR 1996 Born 134 ..........................................................167
Abdur Rahman v. Athifa Begum, AIR 1998 Kant 39.............................................269
Aboobacker v. Mamu, 1971 KLT 663....................................................................122
Abut Fata Mahomed Ishak v. Russomoy Dhur Chowdry, (1894-95) 22 IA 76......39, 242,
264,265
Achutananda Pasait v. Biki Bibi, ILR (1922) 1 Pat 578 .........................................317
Adab Ali v. Distt. Judge, (2008) 70 ALL LR 75.......................................................250
Advocate General V. Fatima Begam, 9 Born HCR 19 ............................................250
Advocate General v. Mohd. Husen Huseni,1 866 Born 323....................................22
Aga Mahomed v. Koolsom Bee Bee, (1903)30 IA 94...........................................46
Ahima v. Khatija, (1864) 1 Born HCR 157 ............................................................276
Ahinsa Bibi v. Abdul Kader Saheb, ILR (1901) 25 Mad 26...................................352
Ahmadv. Fatma, AIR 1931 Born 76......................................................................117,175
Ahmadellah v. Mafizuddin Alimad, AIR 1973 Gau 56 ..........................................175
Aiyesha v. Mohd. Yunus, 1938 PWN 656.............................................................. 73
Aizunnissa Khatoon v. Karitnunnissa Khatoon, ILR (1895) 23 Cal 130.................70
Ajiz Dar v. Fazli, AIR 1960 J&K 53 ...................................................................... 377
Ali Bakhsh v. Allandad Khan, ILR (1910) 32 All 551 ...........................................97
Ali v. Sufaira, (1988) 3 crimes 147........................................................................196
Atibai v. Bai Asi, AIR 1934 Born 21......................................................................271
Aliyathamrnada Beethathebiyyapura Haji v. Pattakal Cheriyakuya, AIR
1999 Ker 289 ..................................................................................................260
All India Imam Organisation v. Union of India, (1993)3 scc 584.......................261
Allah Rakhi v. Karam Ilahi, 1934 Cri LJ 344(Lah)................................................162
Allhabux Khajasab Lakkadaare v. Altabi, 2008 AIHC 517 (Kant) ........................338
Alungaprambil Abdul Khader Suhud v. State of Kerala, (2007) 1 DMC 38
(Ker)................................................................................................................107
Arnina Bibi v. Khatija Bibi, (1864)1 Born HCR 157.............................................274
Amina v. Hassn Koya, (2003) 6 scc 93................................................................64
Amir Ahmmad v. Meer Nizam Ali, AIR 1952 Hyd 120.........................................174,178
Arnir Hasan Khan v. Mohd. Nazir Husain, ILR (1932)54 All 499........................97
Amir Mohd. v. Bushra, AIR 1956 Raj 102.............................................................182
Amirshah v. Salimabi, (2006)4 Mah Li 856.........................................................193
Amjad Khan v. Ashraf Khan, AIR 1925 Oudh 568 ILR (1929)4 Luck 305
:AIR 1929 PC 149:(1929)65 IA2t3 ............................................................ 298,299,
300,330
Anarali Taratdar v. Omar Au, AIR 1951 cal 7.......................................................300
Anis Begarn v. Mohd. Istafa, ILR 1933 All 743.....................................................48, 55,
75, 76, 89,
90,281
Anjuman Ara Begum v. Nawab AsifKader, (1955) 2 cal 109 ..............................301
Ansar Ahmed V. Somaidan, 1928 Sind 220............................................................167
Anwar Ali v. Mozibul Hoque, (2005) 1 Gau LR 127.............................................293


Table of Cases xix

Arab A. Abdulla v. Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj 141..............193,206
Arabi v. Kanhayalal, AIR 1926 Nag 307...............................................................96
Arif Ahmed p. Irshad Ahmed, 1998 AIHC 911......................................................167
Armour v. Armour, (1904) I All LI 318 ................................................................is
Ashabi v. Bashasab Takke, (2003) 2 Kant U 429..................................................186
Ashabi v. Faziyabi, 2004 AIR Kant HCR 2886......................................................370
Ashrafalli v. Mahomedalli, AIR 1947 Born 122 :(1945) 48 Born LR 642 ............. 36,47
Asma Beevi v. M. Arneer Au, (2008) 6 MU 92 ....................................................334
Asthan-e-Khadri Trust, Bangalore v. Karnataka State Board of Wakfs,
(2001)2 Kant LJSO9 ...................................................................................... 259
Atia Waris v. Sultan Ahmad Khan, PLD 1959 Lah 205.........................................44
Audh Behari Singh v. Gajadhar, AIR 1954 SC 417 ...............................................307
Ayatunnesa Beebee v. Karan Au, ILR (1909)36 cal 23........................................85
Ayubsha Amirsha Jamadar v. Babalal Mahabut Danawade, AIR 1938 Born
111 ..................................................................................................................159
Aziz Banu v. Mohd. Ibrahim Husain, AIR 1925 All 720 .......................................47
Aziza Khan v. Dr. Amir Hussain, 2000 Cr1 U 2582 Raj HC ................................. 123
Azizullah Khan v. Ahmad Ali Khan, ILR (1885) 7 All 353...................................97
Babee Bachun v. Hamid Husain, (1871) 14 MIA 377............................................95
Baboojan case, (1868) 10 WR 375.........................................................................326
Babulal v. Gowardhandas, AIR 1956 MB 1 ...........................................................308
Badagara JPD Commtt. v. Urnrnerkutty Haji, (2001)4 CCC 264 (Ker).................252
Badruddin v. Aisha Begum, 1957 All LJ 300.........................................................182,187
Badrulnisa Bibi v. Mohd. Yusuf, AIR 1944 All 23 ................................................121
Bafatun v. Bilaiti Khanum, (1903)30 cal 683.......................................................45
Bai Fatma v. Alimahomed Aiyeb, (1912)37 Born 280..........................................184, 185,
186
Bai Tahira v. Ali Hussain, (1979)2 scc 316 ....................................................... 99,101,
188
Baker Ali Khan v. Anjuman Ara, (1903) 30 IA 94................................................. 46
Banney Sahib v. Abida Begum, AIR 1922 Oudh 221 ............................................ 63
Bazayet Hossein v. Dooli Chund, ILR (1879)4 Cal 402 (PC)............................... 353
Begam v. Mohd. Yakub, ILR(1894) 16 All 344.................................................... 314
Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285 .................................... 78,122
Bepari Shaik Peeran v. Kamalapurarn Mahaboob Bi, (2003) 1 CLT 207
(AP).................................................................................................................286
Bhagirathibai v. Roshanbi, ILR (1919)43 Born 412..............................................358
Bhau Ram case, (1954)1 All LJ 151......................................................................312
Bhau Ram v. Baij Nath, AIR 1962 SC 1476 ..........................................................308
Bhullan v. Ehsan Elahi, 1996 AIHC 1205 Del .......................................................336
Bibi Rehana Khatun V. Iqtidar Uddin Hassan, 1943 All U 98...............................92
Bibi Riazan Khatoon v. Sadrul Alam, AIR 1996 Pat 156....................................... 293
Bibi Shahnaz v. State of Bihar, (1999)2 DMC 589 ...............................................205
Bibi Sharifan v. Sheikh Salahuddin, AIR 1960 Pat 297 .........................................278
Bikani Mia v. Shuk Lal Poddar, ILR (1893)20 Cal 116 ........................................241
Bishan Singh v. Khazan Singh, AIR 1958 SC 838.................................................306,317
 xxii Muslim Law

Jai Bharat Coop. Housing Society v. A.P. State Wakf Board, 2000)
( 5 A LT
389A1'................................................................................................ 260
Jan Mohammad v. R.B. Karrn Chand, AIR 1947 PC 99........................................
360
Janab Shastri Khaja Hussain v Karnataka Board of Wakfs,( 1997)4Kant
U393 ................................................................................................. 259
Janki v. Girjadat, ILR (1885) 7 All 482 (FB) .........................................................
314
Javed v. State of llaryana, (2003)8 SCC369.........................................................
86
Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358....................................
126
Jiwan Doss Sahu v. Shah Kubecruddin, (1840) 2 MIA 390................................... 229
Jiwan Khan v. Habibi, AIR 1933 Lah 759..............................................................
42
John Jiban Chandra Dutta i'. Abinash Chandra Sen, (1939) ILR Cal 12 ................ 131
Jordan Diengdeh i'. S.S. Chopra, (1985)3 SCC 62................................................ 142
Julekha v. M. Fazal, (2000) 1 Vidhi Bhaswar 123 MP...........................................
199
Jurnunoodeen Ahmad case, (1865)2 \VR Me's 69 ................................................ 326
K. Abdul Ilarneed v. Sabira Begum, (2006) 7 AIR Kant R 289............................. 275
K.C. Moyin v. Nafeesa, AIR 1973 Ker 176............................................................ 118
Kabisa [Jmrna u. I'athakla Narainath, AIR 1964 SC 275........................................
276
Kachchh \Vakfl3oard v. Kachchh Memon Jamat, (1998)2 GCD 1310 (Guj)........
243
Kairum Bi v. Mariam Bi, AIR 1960 Mad 447........................................................
272
Kaka v. Hassan Bano, (1998)2 DMC 85 ............................................................... 206
Kakulam Subrahrnanyarn v. Kurra Subba Rao, AIR 1948 PC 95...........................
174
Kalloo v. Imaman, AIR 1949 All 445..................................................................... 117
Karnalakshi v. Sankaran. AIR 1979 Ker 116..........................................................
189
Karnarunnissa Bibi v. Hussaini Bibi, ILR (1880) 3 All 266 (PC)...........................
Kaniz v. Hasan, (1926) 1 Luck 71 .......................................................................... 278
Kapore Chand v. Kader Unnissa, 1950 SCR 747 ................................................... 151
95, 97
Karim Abdul Rehrnan Shikh v. Shehnaz Karim Shaikh, (2000)3 Mh LJ 555
...... . 1 97,206
Karnataka State Board of Wakfs v. Mohd. NazeerAhrnad, AIR 1982 Kant
309 .................................................................................................. 230
Kasim Husain v. Sharif-un-Nissa, ILR (1883)5 All 285........................................
287
Kassjjnjah Charities v. Secy., Madras State Wakf Board, AIR 1964 Mad 18........ 229
Katheesan Umma v. Narayanath Kunharnu, AIR 1964 SC 275 .............................
273
Kausarbi K. Mulla i'. State of Maharashtra, (2007) 1 AIR Born R 214.................. 126
Kltair All Shah v. Imam Shah, AIR 1936 Lah 80................................................... 158
Khamarunnjssa v. Fazal Hussain, (1997) 1 ALT 152 AP.......................................
45
Khambatta v. Khambatta, (1933) 36 Born LR 11 ................................................... 137
Khasim Sab Bapu Sab Sirguppi v. State of Karnataka, (2003)6 Kant LJ 382 .......
254
Khatija Begurn v. Gulam Dastagir, AIR 1976 AP 128........................................... 172
Khatun Bibi v. Abdul Wahab, AIR 1939 Mad 306................................................. 355
Khawaja Mohammad Khan v. Nawab Hussain Begum, (1910)37 IA 152 ............
182
Khujooroonissa v. Roushan Jehan, (1876)2 Cal 184: 3 IA 291 ............................. 295
Khurshetbibi v. Keso Vinayek, ILR (1887) 12 Born 101 ....................................... 358
Khyrunneesa v. Alair, (2000) 1 KLJ 46..................................................................
Koushar All Laskar v. Moslena Bibi, (2000)2 CLJ 134 Cal HC ........................... 199
124
Kumar Gonsusab v. Mohd. Miyan, (2008) 10 SCC 153......................................... 309
Kunhi Moyin v. Pathumma, 1976 KIT 87.............................................................
189
 Table of Cases XXIII

M. Bikshapathi v. Govt. of A.?., (2005)2 An LT 271: (2002)2 An LT 530 260

M. Rawther v. Charayil, AIR 1972 Ker 27.............................................................269
M.A. Aziz v. A.P. State Wakf Board, AIR 1998 AP 61 .........................................255
M.M.S. Abdul Wahab v. A.P. Abdul Hamid, 1999 AIHC 4037.............................247
M.P. Wakf Board v. Subhan Shah, (2006) 10 SCC 696.........................................231
Ma Mi v. Kallander Ammal, (1927) 54 IA 23 ........................................................229,274
Madhurani Singh v Subhas Chandra Ghosh, (1998) 1 BUR 552.......................... 268,269
Mahboob Khan v. Abdul Rahim, AIR 1964 Raj 250..............................................282
Mahboob Khan v. Mohd. Khaja, (2005) 2 An LT 308 ...........................................260
Mabbub Alam v. Razia Begum, AIR 1950 Lab 12.................................................345
Mahbub Singh v. Abdul Aziz, AIR 1939 PC 8.......................................................45
Mama Bibi v. Chaudhri Vakil Ahmad, (1924) 52 IA 145 ...................................... 95,96, 97
MajithaBeevi v. Yakoob, (1999)1 KLT 796 ......................................................... 199
Makiur Rahman Kha v. Mahila Bibi, (2002)1 CU 291.........................................209
Makku Rawther v. Manahapara Charayil, AIR 1972 Ker 27..................................278
Managing Committee, Masjid-e-Idgah, Mysore v. State of Karnataka,
(1997)4 Kant T .J599 ...................................................................................... 259
Manni Gir v. Amar Joti, ILR (1936)58 All 594..................................................... 359
Mansur v. Azizul, AIR 1928 Oudh 303: ILR (1928)3 Luck 60.........................185,186
Maomedali v. Hazrabai, AIR 1955 Born 464 ........................................................117
Marfatalli v. Zahedunnissa, AIR 1941 Cal 657 ......................................................62
Mata Din v. Ahmad Ali, (1912) 39 IA 49...............................................................177
Maula Baksh v. Charul, PLD 1952 Sind 54............................................................44
Mehraj Begum v. Yar Mohammad, AIR 1932 Lah 493 .........................................167
Mir Mohd. Bahauddin v. Mujee Bunnisa Begum, AIR 1952 Mad 280..................166,167
Mir Sarwarjan v. Fakhurddin, (1912)39 IA I ........................................................178
Mir Vaheed Ali v. Rashid Beg, AIR 1951 Born 22................................................97
Moatter Raza v. A. Director, Consolidation, AIR 1970 All 509.............................232
Modin Saheb Peersaheb Peerzade v. Meerabi, (2000) 2 CLT 63 Kant HC ............357
Mohammedia Coop. Ltd. v. Lakshmi Sreenivasa Ltd., (2007)3 An LD 282 259
Mohd. Abdul Rahim v. Mohd Abdul Hakim, AIR 1931 Mad 553 ......................... 367
Mohd. Afzal v. Abdul Rahman, (1932) 59 IA 45 ...................................................356
Mohd. Ahmed Khan v. Shah Bano Begurn, (1985)2 SCC 556............................. 39, 78,
100, 101, 102,
128, 189, 190,
r91
Mohd. Ahsanulla Chowdhry v. Anarchand Kundu, ILR (1890) 17 Cal 498
(PC).................................................................................................................242
Mohd. Akbar Bhat v. Mohd. Akhoon, AIR 1972 J&K 105....................................159
Mohd. Ali Akbar v. Fatima Begam, ILR (1929) II Lah 85 ...................................182
Mohd. Aliuddin Farooqui v. Mohd. Karaniath Hussain, 2003 AIHC 3538
(A?) ................................................................................................................. 370
Mohd. Allandad Khan v. Mohd. Ismail Khan, ILR(1888) 10 All 289...................150, 152,
156
Mohd. Amin v. Vakil Ahmad, AIR 1952 SC 358...................................................61,177
XXIV Muslim Law

Mohd. Ayub Ali v. Amir Khan, (1939) 43 C% N1 118 239

Mohd. Azmat v. Lalli Begum, (1881)9 IA 8 ......................................................... 154
Mohd. Bauker v. Shurfoonnissa, (1860)8 MIA 136 ..............................................149
Mohd. Beg v. Narayan Meghaji Patil, ILR (1915)40 Born 358............................. 309
Mohd. Ibrahim Khan v. Azad Rasul, AIR 2008 Raj 187 (NOC): (2008) 1
CCC201 Raj HC ............................................................................................271,274
Mohd. Ismail v. Abdul Rashid, (1956) 1 All 143 ...................................................307
Mohd. Ismail v. Sabir Ali, AIR 1962 SC 1722.......................................................231
Mohd. Jusab Nurani v. Adam Ilaji Nurani, ILR (1911)37 Born 71 .......................162, 179
Mohd. Kasam All v. Sadiq All, AIR 1938 PC 169................................................. 357
Mohd. Mazhar Shaheed v. Distt. Collector, Mahboobnagar, (2005) 2 An LT
234 ..................................................................................................................235
Mohd. Minhajuddin Qureshi v. State of Maharashtra, (2006)2 Born CR 172 258
Mohd. Muin-ud-din v. Jamal Fatima, ILR (1921)43 All 650 ................................184
Mohd. Mumtaz v. Zubaida Jan, (1889) 16 IA 205..................................................289
Mohd. Riazuddin v. Govt. of A.P., (2000)6 ALD 756............................................231
Mohd. Riazuddin Ahmed v. Ms. Farida Begurn, (2007) 3 Gau LR 694.................169
Mohd. Sadiq v. Fakra Jahan, (1932) 59 IA 1 ..........................................................275
Mohd. Saleem Ur Rahman v. A.P. State Wakf Board, (2007)4 An LD 527..........252
Mohd. Sayeed v. Rehana Begum, 1996 All U 1382..............................................220
Mohd. Shah v. Fasihuddin Ansari, AIR 1956 SC 713............................................236
Mohd. Shamsuddin v. Noor Jahan, AIR 1955 Hyd 144 .........................................106
Mohd. Sheikh i. Mohd. F. Yousuff, (2000)4 CLT 485.........................................255
Mohd. Siddique Ali v. Mustt Fatema Rashid, (2007) 2 Gau LR 657......................208
Mohd. Subhan v. Dr. Misbahuddin Ahmad, AIR 1971 Raj 274.............................387
Mohd. Sulaiman v. A.P. Wakf Board, AIR 1997 AP 387 ...................................... 255
Mohd. Sulaiman v. Mohd. Ismail, AIR 1966 SC 792.....................359
Mohd. Yasin v. Mumtaz Begurn, AIR 1936 Lah 1716...........................................63
Mohd. Yunus v. Bibi Phenkani, (1987) 2 Crimes 241............................................205
Mohd. Yusufv. Mohd. Sadiq, AIR 1933 Lah 501..................................................235
Mohinuddin Middya v. State of W.B., (2004)3 CHN 417.....................................140
Mohmedbhai Rasulbhai Malik v. Amirbhai Rahirnbhai Malik, AIR 2001
Guj 37 .............................................................................................................377
Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 MIA 551:
74IC166........................................................................................................74,122
Moonshee Buzul-Raheern v. Luteefut-oon-Nissa, (1861) 8 MIA 379....................115
Moosamian v. Kader Bux, (1928)55 IA 171 .........................................................277
Morice v. Bishop of Durham, (1805) 10 Vessy 522...............................................246
Moti Bai v. Kanokari, AIR 1954 Hyd 161..............................................................308
Moti Shah v. Abdul Ghaffar Khan, AIR 1956 Nag 38 ...........................................229
Moulvi Mohammed v. S. Mohaboob Begum, AIR 1984 Mad 7.............................160
Mst. Bibi v. Said All, SB SA No 132/1990 ............................................................159
Mst. Khatgi v. Abdul Rajak, AIR 1927 J&K 44.....................................................159
1st. Sahida Khatun v. Secy., Tezpur Hindustani Muslim Panchayat, (2001)
2GLR93....................................................................................................,... 283
 Table of Cases xxv

State of U.P., (2007) 1 DMC 22 (All) ...................................................216

Mufees V.
Sainabi, 1976 KLT 711 .................................................................. 165, 189
Muhammad v.
Muinuddin v. Jamal Fatima, AIR 1921 All 152......................................................63
Ahmed Khan, (1996)3 ALD 490.............................................293
Mumtaz Begum v.
Shyam Sunder, AIR 1963 AP 98........................................................238
Mundaria v. 126
Muneer Ahmed v. Safia Mateen, (2007) 1 DMC 550.............................................
450................................................ 315
Munnilal v. Bishwaflath Prasad, AIR 1968 SC
Kader Bux, AIR 1928 PC 108...........................................................277
Musamian v.
Khursida, 2006 AIHC 382 (Raj)...........................................................121
Mustafa v.
Mustamand Ali Khan v. Surj it Bhatia, 153 (2008) DLT 24 Del HC ......................252
FathimakuttY, (2006)3 KLT 690........................................................128,136
Musthafa v.
Ahmad Au, ILR (1881)8 cal 370 ......................................................358
Muttyjan v.
v. Parbati, ILR (1907)29 All 640............................................97
Muzaffar All Khan
Muzaffaruddifl v. Hajiru Begum, 1952 Cr1 Li 996 (Hyd) ......................................162
Mydeen Beevi Ammal v. T.N. Mydeen Rowther, AIR 1951 Mad 992..................185
Narantakath v. Parakkal, AIR 1923 Mad 171 .........................................................42
Naseem v. State of U.P., 1998 All U 2270............................................................216
Nasiruddin Shah v. Amatul Mughni Begum, ILR (1947) 28 Lab 565....................92
Mohumdee Begum, (1867) 11 MIA 517..............................291,300
Nawab Umjad Aly v.
Damodhar M. Patre, 2003 AIHC 3297 (Born) ..............370
Nazirkhan Mohammed v.
Nenu Khan v Mst. Sugni, 1974 WLN HC 8...........................................................159
Shaikh Mohammad, AIR 1966 SC 702.............................................395
Newannes v.
Eugene Tiscenko, ILR (1942)2 Cal 165.............................130
Noor Jehan Begurn v.
v. Mohd. Khatoon, (1997)6 SCC 233....................................216
Noor Saba Khatoon
Noori Bibi v. Pin Bux, AIR 1950 Sind 8.................................................................123
Nur Begum v. Begum, AIR 1934 Lah 274 (1)........................................................162
v. Mohd. Kazirn Au, AIR 1977 Cal 90...........................................117
Nurjahan Bibi
Hyrunneessa, (1999) 1 KLT 709..............................................................200
Nuzar V.
Parathy Valappil Moideen, In re, 1913 Cr1 Li 597(Mad).......................................162
P. Ashia, (2000)3 ALT 571...................................................................220
Patnam v.
Shakil Khan, (2006) 1 AIR Born R 140...................................186
Parzana Parveen v.
Syed Shabbar Hasan, AIR 1956 Hyd I ........................................318
Pasha Begum v.
Pathan Talibkhan Abdul v. Pathan Huseukhan Abdul, 2001 AIHC 1400 ..............277
Pathumma v. Pokku, AIR 1998 Ker 134 ................................................................275
Pathummabi v. Vittil, ILR (1902) 26 Mad 734.......................................................359
Katheesumma, AIR 1959 Ker 319..........................................................214
Pavitri v.
Hafiz Mohd., AIR 1966 All 201 .............................................................239
Peeran v.
Kathiya, (2000) 1 KLT 430 ....................................................................274
Pocker v.
Poolakkal AyisakkuttY v. Parat Abdul Samad, (2005)2 CLT 203 (Ker)................172
Sarojini Devi, 1994 Supp (I) SCC 734 .........................................369
Pratap Singh v.
v. Amar Singh, AIR 1954 Raj 100......................................................308
Punch Guja
Sugrabi, AIR 2008 MP 781 (NOC) .....................................................65
Puniyabi v.
Punjab Sindh Bank v. Anjuman Himayat Islam, (1935) 158 1C 937......................248
Puthiya Purayil Karnavan v. Thayath Kancheentavida Avoomma, AIR 1956
Mad244..............................................................................................159
.............. 57
Qazi Habeeb Abdullah Rifai v. Govt. of A.P., (2007) 3 An LD 792...............
 XXVI Muslim Law

Quazi Najmuddin Hussain v. State of A.P., (2005)6 An LD 1 AP........................57

Queen Empress v. Ramzan, ILR (1885)7 All 461 .................................................43
R. v. Hammersmith, 1917 KB 634 .........................................................................137
Radha Ballabh Ha!diya v. Pusha Lal Agarwal, AIR 1986 Raj 88...........................320
Radhakisan Laxminarayan v. Shridhar, AIR 1960 SC 1368....................................314
Rafiq v. Farida Bi, (2000) 2 MPWN 77 MP...........................................................199
Rahema Khatoon '. Iqtidar-Uddin, AIR 1943 All 184...........................................111
Rahumath Ammal v. Mohd. Mydeen, (1978) 1 MU 499.......................................331
Raj Mohd. v. Saeeda, AIR 1976 Kant 200..............................................................77
Rajah Deedar Hossein v. Ranee Zuhoor-oon Nissa, 2 MIA 441 ............................34
Rajendra Kumar v. Rameshwar Das Mittal, AIR 1981 All 391..............................320
Rakhi Bibi v. Rahat Bibi, 7 NWP 191 ....................................................................371
Ram Saran v. Domini Kuer, AIR 1961 SC 1747....................................................314
Ranee Khujooroonissa v. Roushun Jehan,(1876) 3 IA 291 (1876)2 Cal 184 267
Rashid Ahmad v. Anisa Khatun, (1931)59 IA 21 AIR 1932 PC 25 ....................129, 156,
157
Rati La! v. State of Bombay, AIR 1954 SC 388.....................................................248
Resharn Bibi v. Khuda Bakhsh, AIR 1938 Lah 482...............................................44,130
Riaz Fatima v. Mohd. Sharif, (2007) 1 DMC 26 (Del)...........................................126
Robaba Khanum v. Khodadad Bomanji Irani, (1946)48 Born LR 864..................130
Rukaiya Begum v. O.V. Fazlur Rahman, AIR 1998 Pat 1......................................367
Rukhsana Parvin v. SK. Mohd. Hussein, 1977 Cri U 1041 (Born) ........................ 189
Rukia Khatun v. Abdul Khalik Laskar, (1981) 1 Gau LR 375 ...............................126
Runchordas v. Parvatibai, (1899)26 IA 7 ..............................................................246
Rupsan Begum v. Mohd. Abdus Sattar, 1990 Cii 112391 (Gau)...........................215
S. Khatoon v. Amir All, AIR 1972 AP 243............................................................273
Sabura Ammal v. Ali Mohd., AIR 1970 Mad 411..................................................271
Sadiq All v. Zaheeda Begum, ILR (1939)61 All 957............................................291
Sadiq Hussain v. Hashim All, (1916)43 IA 212 ....................................................147
Sadiqua v. Ataullah, AIR 1933 Lah 685.................................................................85
Safia Begum v. Abdul Rajak, (1944)47 Born LR 381 ...........................................333
Saidali K.H. v. Sabeena, (2008) 3 KLJ 637............................................................77
Saifuddin Saheb v. State of Bombay AIR 1962 SC 858 22
Saifuddin Sekh v. Soneka Bibi, AIR 1955 Ass 153................................................85
Sainuddin V. Latifannessa Bibi, ILR (1919)46 Ca! 141 .........................................85,113
Sajanbee v. Khajamiya, (2007)1 DMC 537 (Born)...............................................208
Sakina v. Shamshad Khan, AIR 1936 Pesh 195 .....................................................63, 185
Sakinabai v. Fakruddin, (1999)2 DMC 576........................................................... 205
Salim-un-Nissa v. Saadat Husain, ILR (1944)36 All 446......................................162
Samiunnissa v. Saida Khatun, AIR 1944 All 202...................................................167
Samserannessa v. Abdul Samad, AIR 1926 Call 144............................................63
Sant Ram v. Labh Singh, AIR 1965 SC 314...........................................................308
Sarabhai v. Ralia Bai , ILR(1906) 30 Born 537.....................................................109
Sardar Khan v. Syed Najmul Hasan, (2007)2 CIT 259 (SC)................................260
Sardar Nawazish Khan v. Sardar All Khan, (1947-1948) 75 IA 62 AIR 1948
PC134 ............................................................................................................286,301,
331
 Table of Cases XXVII

Sareetha V. Venkata Subbaiah, AIR 1983 AP 356..................................................80

Sarfraz Begam v. Miran Bakhsh, 1928 Cri LJ 1052 (Lah).....................................162
Sarla Mudgal v. Union of India, (1995)3 SCC 635 ...............................................131, 133,
134
Saroj Rani v. Sudarshan Kumar, (1984)4 SCC 90.................................................79
Sarwari v. Shafi Mohd, (1957) 1 All 255 ...............................................................187
Sayeeda Khanurn v. Mohd. Sami, PLD 1952(WP)Lah 113 (FB).........................115
Sayeeda Shakur Khan v. Sajid Phaniband, (2006)4 CLT 192 ...............................333
Secy, Tamil Nadu Wakf Board v. Syed Fatima Nachi, (1996)4 SCC 616.............211
Seema v. Ashwani Kumar, (2006) 2 SCC 578 (2006) 1 KLT 791 .......................58
61
Shabnoor Mohammad Tahseen v. State of U.P., (2007) 1 All LJ 183 All HC
Shafuddin v. Chaturbhuj, (1958) Raj LW 461 ........................................................198,245
Shahularneedu v. Zubaida, 1970 MU (Cr1) 569.....................................................87
Shahzada Qanum v. Fakher Jung, AIR 1953 Hyd 6 ...............................................67
Shakila Banu v. Gulam Mustafa, AIR 1971 Born 116............................................77
Shakila Parveen v. Haider Au, (2000) 1 CLJ 608...................................................197
Sharneem Baig v. Najmunnisa Begum, (2007)4 AIR Born R 676.........................126
Shamirn Ara v. State ofU.P., (2002)7 SCC 518....................................................125, 126
Shamsudeen M. Illias v. Mohd. Salim M. Idris, AIR 2008 Ker 59.........................65
Shamsunnessa v. Mir, AIR 1940 Cal 95.................................................................117
Sheobharos Rai v. Jiach Rai, ILR (1886)8 All 462................................................321
Sheokumari Devi v. Jamia Ashharfia College, New Bhojpur, (1998) 3 BLJR
I772Pat HC .................................................................................................... 256
Shihabuddin v. K.P. Ahammed, AIR 1971 Ker 206...............................................43
Shoharat Singh v. Jafri Bibi, 24 IC 499 PC............................................................67
Sitararn Baurao v. Jiaul Hasan, (1921)48 IA 475 ..................................................314
Sk. Abdul Zabar v. Sk. Abdul Kazak, Orissa, (2008) AIHC 3448 .........................274
Sk. Abubakkar v. Ohidunnessa Bibi, 1992 Cri LJ 2826 (Cal)................................214
Sk. Avula Mastan v. Sk. Abid, (2007) 1 An LD 793..............................................270,278
Sk. Habiuddin v. Orissa Board of Wakf, 1998 AIHC 4833....................................256
05 , 316,
Sk. Kudratullah v. Mohini Mohan Saha, (1869)4 Beng LR 134............................3
317
208
Sk. Mohamed v. Naseembegurn, (2007) 1 DMC 226 (Bern) ..................................
Sk. Nurbi v. Pathan Mastanbi, (2004) 3 CLT 364 (AP)..........................................282
Skinner v. Orde, (1871) 14 MIA 309......................................................................168
Someshwar v. Barkat Ullah, AIR 1963 All 469......................................................294
Stanley v. Leigh, (1732) All ER 917 ......................................................................265
Sukha v. Ninni, AIR 1966 Raj 163.........................................................................214
Sukoomat Bibee case, (1874)22 WR 400..............................................................326
Sundri v. Mohd. Fafoo, AIR 1971 J&K 43 ............................................................. 167
78
Syed Ahmad Khan v. Imrat Jahan Begum, AIR 1982 All 155...............................
Syed Ahmed v. Julaiha B lvi, 1947 Mad 480..........................................................234
Syed All Asahar v. Shia Central Board of Wakfs, 1996 AIHC 3166 .....................251
Syed FazI Pookoya Thangal v. Union of India, AIR 1993 Ker 308........................210
Syed Labbai v. Mohd. Hanifa, (1976)4 SCC 780..................................................198,245
Syed Mohd. Salim Hashmi v. Syed Abdul Fateh, AIR 1972 Pat 279.....................268
 xxviit Muslim Law

Syed Mustan v. Syed Mubarak, 1997 Mad LJR 92 271

Syd Sabir Husain v. Farzand llasan, (1937)65 IA 119 ......................................90
Sycd Shah Mohammed Ali Hussaini v. Union of India, AIR 1999 Kant 112.........227,254
Syed Younus '. Jabeen, (2008) 5 AIR Born R 700 ................................................208
T.K. Abdulla v. Subaida, (2007) 1 DMC 464 (Ker): (2006)3 KLT 699................193,215
'U.K. Moidu Haji v. Konnapalarkandy Mariyarn, (2007) 1 KLJ 314.......................224
T.M. Sahib v. Arakkal Mohammed Ibrahim, (2007) 2 KLT 56..............................260
T.N. Wakf Board v. Larabsha Darga, (2007) 13 SCC 416 ....................................233
Tajbi v. Mowla Khan, ILR (1917)41 Born 485 .................................................... 65
Talat Fatima Hasan v. Nawab Murtaza Khan, AIR 1997 All 122 ..........................368,369
Talibu bin Mwijaka v. Executors of Siwa Haji, (1907)2 EALR 33....................... 265
Taufik-un-nissa v. Ghulam Kambar, ILR (1877) 1 All 506....................................91
Tikam Chand v. Rahim Khan, AIR 1971 MP 23....................................................356
Tripura Board ofWakfv. Ayasha Bibi, AIR 2008 Gau 10 ....................................210
Tripura Board ofWakfv. Tahera Khatoon, AIR 2001 Gau 103.............................212
Tufail Ahmad v. Jamila Khatun, 1962 All LJ 971 ..................................................117
Tumina Khatun v. Gaharjan Bibi, AIR 1942 Cal 281.............................................167
Usman Khan Bahamani v. Fathirnunnisa Begum, 1990 Cri Li 1364 (AP) ............. 195,200,
205
Usman v. Asat, AIR 1925 Sind 207.......................................................................158
Uttam Singh v. Kartar Singh, AIR 1954 Punj 55.................................................... 311
V. Bapputty v. Shahida, (2007) 1 KLT 422 ............................................................ 205
Veerankutty v. Kutti Umma, 1956 Mad 1004 ........................................................46
Vidya Varuthi case, AIR 1922 PC 122...................................................................243
Vidya Varuthi v. Balusarni Ayyar, (1921)48 IA 302.............................................229,263
Wajid Ali Khan v. Shaukat Ali Khan, (1912) 15 Oudh Cases 127.........................89
WaIi Mohammed v. Rahmat Bee, (1999)3 SCC 115.............................................245
YusufQureshi v. Moulana Jamaluddin, AIR 1996 AP 187....................................253
Yusuf v. Sakkeena, (1998)2 KLJ 573....................................................................166
Zahid Ali v. Keshari, 1996 AIHC 1267..................................................................166
Zain Yar Jung v. Director of Endowments, AIR 1963 SC 985...............................229,242
Zarnin Ali v. Azizunnissa, AIR 1933 All 329.........................................................149
Zamir Husain v. Daulat Ram, ILR (1883)5 All 110..............................................309
Zatieen Begurn v. Secy., Forests, (2005)3 ACC 516.............................................158
Zaulira Bi v. Mohd. Yusaf, 1931 Cri Li 247 (Lah) ................................................. .162
Zeenat Fatema Rashid v. Mohd. Iqbal Anwar, (1993) 1 DMC 49 (Gau)................138
Zobair Ahrnad v. JainantIon Prasad, AIR 1960 Pat 147..........................................97
Zynab Bi v. Mohd. Ghouse, AIR 1952 Mad 284....................................................166
 The Concept and Background
of Muslim Law
In a dark period of history when nothing but ruin, squalor and desolation
remained of what were once great civilisations, when oppression, exploitation
and the right of might prevailed, when human rights had ceased to be recognised,
when superstitious and hedonic cults were followed at many places and man was
still terrified of the forces of nature and gave a very low place to himself in the
scheme of creation, was born Muhammad, the Prophet of Islam, on Monday the
12th Rabi-ul-Awwal (corresponding to the 29th August 570 A.D.) in the desert
country of Arabia.'
1. The relevance of the study of Muslim Law in contemporary world
The importance of the study of Muslim Law can be estimated from the fact
that it is applicable to some 15 crore Muslims in India, 12 crore in Pakistan and
13 crore in Bangladesh. Muslims in some twenty countries of Asia, Africa and
Europe, follow Muslim Law. In other words, one-sixth of the total world
population is following Islam. And if there is anything which is characteristic of
and fundamental to that religion, it is the Shariah, or the Islamic Law.
Islamic Law gradually spread with the expansion of the Ottoman Empire in
Asia, Africa and Europe and under the influence of the Delhi Sultan and the
Mughals in the Indian subcontinent.
"By the end of the medieval ages, the Islamic legal system stood the
stress and strain of political vicissitudes and socio-economic upheavals in
several parts of the world. The repercussions of the two World Wars, the fall
of the Ottoman Eripire and abolition of the Caliphate in Turkey, colonial
expansion of Grea. Britain and Fiance, emergence of small sovereign States
in West Asia resulting into the growth of Arab nationalism, the rise of
communism in Central Asia and some parts of Europe ceded by the Ottoman
rulers, the social reform movements in Egypt, Iran and Indonesia,
independence and partition of the Indian subcontinent, and numerous other

I. Athar Husain, The Prophet of Islam (Hamdard National Foundation, Delhi) at p. 1.

 MUSLIM LAW [CHAP.

events of history led to revolutionary changes in the jurisdiction and scope

of the traditional law of Islam.112
It is really surprising how Shariah has succeeded in preserving its basic
character even in the face of all these odds and upheavals.
Law and religion in Islam are so intimately connected that they cannot easily
be separated. The two streams of Shariah and Fiqh flow in a single channel.
Today in Islam this is the greatest difficulty. Shariah embraces both law and
religion, sometimes pullingeach other in the opposite direction. The needs of the
changing times placed yet another stress on the fabric of Islamic Law, and then it
began melting. It was predictable because "laws are like metals in the crucible of
time and circumstances; they melt, they gradually solidify into different shapes;
they remelt and assume diverse forms. This process of evolution is coterminous
with human society. Nothing is static except that which is dead and lifeless.
Laws can never be static"3 . Muslim Law is rising to the occasion because it has
inbuilt Eorrective mechanism. The various stages of development reached in
different countries of the world may be better understood by classifying these
countries into three different groups:4
(i) The countries where classical Muslim family law remains unchanged
to this day. These are Saudi Arabia, Yemen, Bahrain, Kuwait,
Afghanistan, Maldive Sultanate, Chad, the Gambia, Gold Coast,
Uganda, Sierra Leone, Guinea, Mali, Mauritania, Niger, Senegal and
Somalia. In Europe, Greece and Yugoslavia are under a treaty
obligation to take "all necessary measures in relation to Moslems to
enable question of family law and personal status to be regulated in
accordance with Muslim usage".
(ii) The countries where Islamic family law hasbeen completely
abandoned by modern statute law. These are Turkey, Albania, Kenya,
Tanzania, Soviet Union and the six Central Asian Republics of the
Soviet Union. It is, however, noteworthy that the Civil Codes of
Turkey, Tanzania and Kenya do not conflict with the basic principles
of the Islamic family law.
(iii) The countries where Islamic family law has been reformed through
legislative process either by adopting provisions of the various schools
of Islamic Law or by subjecting some of its institutions to certain
regulatory measures. These are Lebanon, Egypt, Sudan, Jordan, Syria,
Tunisia, Morocco, Algeria, Iraq, Iran, India, Pakistan, Malaysia,
Indonesia, Singapore, Ceylon and Brunei.

2. Tahir Mahmood, Family Law Reform in the Muslim World at p. 2.

3. Fyzee, A Modern Approach to Islam (Asia 1963) at p. 87.
4. See, Family Law Reform in the Muslim World at pp. 2-8.
 I] THE CONCEPT AND BACKGROUND OF MUSLIM LAW

These reforms in the sphere of family law represent a phenomenon of

outstanding significance. They provide at once a mirror of social change in the.
Muslim world; and a measure of the progress of modernism in Islam, where law
and theology always go hand in hand.
Thus, the Shariah—whether in its original or a somewhat modified form—
still represents the family law of nearly 425 million Muslims. Second, that it
survives in the Civil Codes of a number of Muslim States, and sill represents the
basic law throughout most of the Arabian peninsula. Third, that it represents a
coherent, well documented and independent system of law which will amply
repay comparative study. Fourth, that it still holds the key to the future, for on
their attitude to this law the future devc, pment of the Muslim countries must
largely depend.5
2. Conditions in Pre-Islamic Arabia

In the South-West of Asia, there is a peninsula known as Arabia. It is just

like a tableland surrounded by Syro-Babylonian plain in the North, by Persian
Gulf and the Sea of Oman in the North-East, by the Indian Ocean in the South,
and by Red Sea and Gulf of Suez on the South-East. A vast sea of sand engulfs
the whole peninsula, punctuated by bare rocks devoid of vegetation and
occasionally by oascs of palm trees and fields that look like islands amidst the
surrounding desolation.
The burning sun and the hot sands are things to which the Arab has to grow
accustomed. The rising and setting sun and the shadows it casts by day, and the
position of the moon and the stars by night, are his sole guides. The Arab roams
about in the desert sands in search of water or pasture, and in doing so the spirit
of independence and characteristics peculiar to desert nomads is born in him. If
his land is inhospitable, he considers hospitality one of the greatest virtues.
Being born free, he is courageous and brave. Vendetta is his master passion.
Once, describing the physical characteristics of the Arabs, Baron de Larrey,
Surgeon General to Napoleon, remarked:
"Their physical structure is in all respects more perfect than that of the
Europeans, their organs of sense exquisitely acute; their size above the
average of men in general; their figure robust and elegant, their colour
brown, their intelligence proportionate to their physical perfection and
without doubt superior, other things being equal, to that of other nations."
The Arabs are the purest surviving type of the Semites.6

5. Anderson, "Significance of Islamic Law in the World Today", (1960) 9 American Journal of
Comparative Law at pp. 191, 197.
6. Fyzee, at pp. 2-4, "Arabs" in Encyclopaedia Britannica, Vol. 11 (13th Edn.) at 284.
p.
4 MUSLIM LAW [CHAP.

The Arabs themselves divide into the races who have peopled the peninsula
into three grand sub-divisions, namely (i) the Arab-ul-Baidah, the extinct Arabs;
(ii) the Arab-ui-A nba or Mutariba, original Arabs, true Semites, whom tradition
represents to be descended from Kahtan, and who, in their progress towards the
South, destroyed the aboriginal tribes; and the Arab-ul-Mustariba or naturalised
Arabs who, either as peaceful immigrants or as military colonists, introduced
themselves into the peninsula, and who intermarried and settled among the
original (Mutariba) Arabs.
(i) A form of marriage in which a man asks another for the hand of the
latter's ward or daughter, and then marries her by giving her a dower.
This form has been sanctioned and approved by Islam too.
(ii) A man desiring noble offspring would say to his wife: "Send for so
and so (naming a famous man) and have intercourse with him." The
husband would then keep away from her society until she had
conceived by the man indicated and would only return to her when the
pregnancy became apparent.
(iii) Several men, less than ten, used to go to a woman and have sexual
connection with her. If she conceived and gave birth to a child, she
would send for them, and they would be all bound to come, and then
she would say: "You know what has happened. I have now brought
forth a child. 0 so and so! (naming whomsoever of them she chose),
this is your son." The person to whom the chfic was ascribed was
bound to accept its paternity.
(iv) There were prostitutes who used to fix at the doors of their tents a flag.
If a woman of this class gave birth to a child, the men who frequented
her tent would be called and physionomists used to decide to whom
the child belonged.
Islam had rejected all but the first form of marriage.
Before Islam, a woman was not a free agent in contracting marriage. It was
the right of her father, b-other, cousin or any other male guardian to give her in
marriage, whether she was old or young, widow or virgin. There was even a
practice prevalent of marrying women by force. There was also a custom of
inheriting a deceased man's widows by his heirs, who used to divide them
among themselves like goods.7 There was no restriction as to the number of
wives, which was exclusive of the number of slave girls which a man might
possess. Husbands possessed unlimited powers to divorce. Sometimes they
renounced their wives by means of "suspensory divorce", whereby the women
were not free to marry again. The husbands were free to revoke the divorce and
resume marital connection. Adoption among the Arabs was also prevalent. The
birth of a daughter was regarded as calamity because of the degraded status of

7. Fyzee, at pp. 2-4, "Arabs" in Encyclopaedia Britannica, Vol. 11 (13th Edn.) at p. 284.
 TILE CONCEPT AND BACKGROUND OF MUSLIM LAW 5

women. Thus many fathers used to bury their daughters alive as soon as they
were born. On the death of an Arab his possessions devolved on his male heirs
capable of bearing arms, all females and minors being excluded. The heirship
was determined by consanguinity, adoption or compact.8
It is against this background that we shall see the far-reaching and humane
reforms brought about by the Prophet and Islam. A study of the Chapters on
Marriage, Dower, Divorce and Inheritance of this book will amply testify as to
the improvements effected by Islam, particularly the way in which it has
elevated the position of women.
3. Sources of Muslim Law
Among the Indian writers of books on Muslim Law, Abdur Rahim's
Muhammadan Jurisprudence gives the best description of the sources of Muslim
Law. But the difficulty is that his description covers exactly hundred pages, and
it becomes difficult for an average student to grasp it fully. Briefly stating,
Abdur Rahim's classification of the sources is as follows:
(i) Koran;
(ii) Hadith (Tradition);
(iii) Ijma (Consensus of Opinions);
(iv) Customs and Usages;
(v) Juristic Deductions:
(a) Qiyas (Analogy),
(b) Istihsan (Juristic Equity),
(c) Istislah (Public Good),
(d) Istidlal (Process of Inferring),
(e) Ijtihad and Taqlid (Interpretation and Imitation).
A recent publication of an Arab writer, however, describes more precisely
the above sources and should be preferred. Abdur Rahim's book written in 1911
could in no way grasp some of the modern theories.
Sobhi Rajab Mahmassani in his Falsafat Al-Tashri Fi Al-Islam (The
Philosophy of Jurisprudence in Islam) 9, gives the following classification of the
sources of Muslim Law: 10

8. The term "compact" signifies a custom by which two parties used to enter into a contract that,
on the death of one of them, the surviving party of the contract would be an heir to the
deceased or receive a certain fixed amount out of the estate. See, Abdur Rahim, Muhammadan
Jurisprudence at p. 15.
9. The book has been translated into English from the original Arabic by Farhat J. Ziadeh and
published in London (1961).
10. Mahmassani, at pp. 60-135.
6 MUSLIM LAW [CHAP.

A. SHARIAH SOURCES
(i) Koran,
(ii) Hadith or Sunnah (Tradition),
ljma,
(iv) Qiyas,
(v) Equity and the absolute good:
(a) Istibsan,
(b) Al-niasalih al-mursalah,
(c) Istidlal and Istishab,
(vi) Ijtihad and Taqlid.
B. EXTRANEOUS SO.URCES
(i) Legal Fiction;
(ii) Positive Legislation;
(iii) Custom.
A discussion of the above sources follows in the sequence. It is mainly based
on Abdur Rahim, Mahmassani and Vesey Fitzgerald's books.
A. SHARIAH SOURCES
(i) The Koran.—Every word of Koran is that of God, communicated to the
Prophet Muhammad through Gabriel (the angel). The Koran is not and does not
profess to be a code of law or even a law book, nevertheless, it would be a
mistake to overlook its influence in shaping the Islamic legal principles. The
Koran exercised this influence in four different ways:
(a) Sometimes when the Prophet was faced with legal problems, he used
to seek Divine guidance, and the answers which he received through
Divine revelations formed a definite legal element in the Koran.
(b) The non-legal texts of Koran which deal with morality and conscience
have an effect on the legal science of Islam. For example, the Koran
says, "They will ask thee concerning wine and gambling. Say, in both
is sin and advantage to men. But the sin thereof is greater than the
advantage."
(c) It is explicitly stated in numerous texts of the Koran that the Law of
God has also been revealed earlier. Therefore, it becomes probable
that the early Muslims might have taken some help from other legal
systems. Qiyas and logical deductions used by the Islamic lawyers
have something common with the Rabbinical (Jewish) legal system.
(d) The Koran gave the idea that law is the direct Commandment of Allah.
Since He is one, His law must be a 'single whole'. It is interesting to
 THE CONCEPT AND BACKGROUND OF MUSLIM LAW

see that in their search for this 'single whole', the builders of the
Islamic legal system have developed a very elaborate legal science.
(ii) Had ith or Sunnah (Tradition).—Abdur Rahim classified Traditions
into the following three categories:
(a) HADITH MUTWATIR (CONTINUOUS).—Those which have received
universal acceptance and are narrated by an indefinite number of men
belonging to the categories of Companions, Successors and Successors
of Successors.
(b) HADITH MASHHOOR (WELL KNOWN).—These were reported by a
limited number of Companions in the first instance and thereafter
fulfilling the conditions of a continuous tradition.
(c) HADITH AHAD (ISOLATED).—These rest upon the testimony of one or
more narrators, who are limited in number; not fulfilling the
conditions of either of the above two classes.
The importance of Hadith as an important source of Muslim Law has been
laid down in the Koran, emphasised by the Prophet, recognised by his immediate
successors and other companions, and accepted by all the important orthodox
Muslim jurists.' I
The Koran says: "Whatever the Prophet gives accept it, and whatever he
forbids you abstain from it." (49: 7). It also says: "He does not speak out of his
desire. It is nought but the revelation revealed (to him)."
The Prophet once said to his followers: "So long as you hold fast to two
things which I have left among you, you will not go astray: God's Book, and His
messenger's Sunnah."
The successors of the Prophet followed the practice of the Prophet. If they
did not know of any decision of the Prophet on a subject, they made enquiries
from the companions about it and if any of them informed them of any Ha'ith
on the subject, they decided the case accordingly. They, however, always tested
the reliability of the traditions.
All the important orthodox Muslim jurists are unanimous in upholding the
validity of Hadith as a source of Islamic Law.
Before closing the discussion on Tradition, it seems appropriate to point out
the recent so-called 'Modem Theories' regarding Traditions whereby those
bigwigs as Snouck Hurgronje, Goldziher and Schacht have tried to convince that
every Tradition is unreliable unless otherwise proved, is not only.wrong but an
attempt to represent Traditions as an edifice created by forgery and fabrication.
In the second edition of his book, Fyzee tacitly agreed with the 'Modem

II. Dr. M. Zubayr Siddiqui, "The Importance of Hadith as a source of Islamic Law", Studies in
Is lam, (January 1964) 19 Vol. 1, No. I, Quarterly Journal of
the Indim Institute of Islamic
Studies, New Delhi.
 [CHAP.
MUSLIM LAW
8

Theories', but a more detailed study of the problem prompted him to condemn
the above attitude of orientalists in the third edition of his book. He accepts that
"a large number of traditions ascribed to the Prophet and their chain authorities
are not reliable. This is not some New Revelation. The Islamic authorities
(weak; not to be
themselves recognise that a number of such stories are daif
relied upon). Now this fact, duly exaggerated, has produced two unfortunate
Shariah by totally
results, the orthodox ulerna consider it as an attack on the On the other hand,
destroying one of its principal foundations, namely Sunnah.
the superficial student of the law considers the theory a godsend, and takes the
some ill-considered remarks by serious
opportunity to repeat ad nauseum
Hadith as an edifice created by forgery and
scholars, and to represent the
fabrication:
"Both views appear to be wrong. The Islamic science of Hadith has not
been and cannot be demolished by orientalists labouring under the handicaps
of imperfect knowledge and lack of faith... Generalisations impugning a
system which has lasted fourteen centuries and created a stable pattern of
social behaviour and a well-defined path of spiritual discipline, should be
of
undertaken with due hesitation, and not without exhaustive examination
all the relevant facts."2
The same view has been expressed by another modem author, Mahmassani.
He says that the existence of false Traditions should not be taken to impl y, as
number of orientalists have alleged, that every tradition should be considered
false until the contrary is proved. The doctors of the science of traditions did not
accept traditions uncritically. In their criticism of narrators, and in their search
for chains of authority, accuracy and trustworthiness, they had established a
scientific and truthful criterion which made study in this field reliable and
trustworthy.13
Opinions).—!ima has been defined as the
(iii) Ijma (Consensus of
agreement of the Musl i m jurisconsults in ny particular age on a juridical rule.
Sunnah texts;
The authority of Ijma as a source of law is founded on Koranic and
one each of which are givn here:
"0 ye who believe; Obey God and obey the Prophet and those of you
who are in authority, and if ye have a dispute concerning any matter refer it
(Koran 4 : 59)
to God and the Prophet."
rror or misguided behaviour amongst
"There can be no consensus on e
(Tradition)
my people."
Ijma has been classified into three types:
(a) Ijma of the Companions of the Prophet;

12. Fyzee, vi-vii.

13. MahmaSsafli, at p. 76.
I] THE CONCEPT AND BACKGROUND OF MUSLIM LAW

(b) ljma of the Jurists; and

(c) ljma of the People.
While the first type is universally accepted and is incapable of being
repealed, the other two types are somewhat disputed.
The Shia School did not accept !jma except when it emanated from the
family of the Prophet or unless the jurisconsults were endorsed in their
consensus by the infallible Shia Imam. Sunnis, on the other hand, hold that since
Koran enunciated only a few rules of law which, after the death of the Prophet,
who used to give guidance, are by no means sufficient to cover the numerous
questions of day to day developments, Ijma becomes necessary in the
circumstances. As the learned alone are competent to make such deductions,
their opinion on any question must be of valid authority.
!jma may be constituted by decision expressed in words or by practice. Both
are equally authoritative.
A few of the important requirements for the validity of Ijma are: (a) It shall
not come into conflict with Koran or Hadith; (b) Once a question is determined
by ljma, it cannot be reopened by individual jurists; (c) One Ijma may be
reversed by a subsequent Ijma; and (d) When the jurists of an age have expressed
only two views on a particular question, a third view is inadmissible.
In the opinion of Abdur Rahim, there is one serious defect in the rules
regarding Ijma. It is the omission to provide a definite and workable machinery
for the selection of the jurists who are qualified to take part in Ijma, and for
ascertaining, collecting and preserving the results of their deliberations in an
authoritative form. 14
Ijma has made a worthy contribution to Islamic Law since it has made
possible changes to suit the needs of changing times and usages, and inasmuch
as it has been influenced by the opinions of jurists in all cases not provided for in
the Koran or the traditions, or where those provisions were not explicit. 15
(iv) Qiyas (Analogy).—With the conquests and the expansion of the Islamic
State, and as centuries went by, new cases occurred which were not provided for
in the Koran, the Sunnah or the !jma. The jurists found themselves compelled, in
seeking solutions, to have recourse to reason, logic and opinion. Analogy thus
became the fourth source of the Islamic Law. 6
Qiyas or analogy is a process of deduction by which the law of a text is
applied to cases which though not covered by the language, are governed by the
reason of the text. Hanafis define it as:

14. Abdur Rahim, at pp. 135-136.

IS. Mahmassani, at p. 78.
16. Ibid,at p. 79.
10 MUSLIM LAW [CHAP.

"An extension of law from the original text, to which the process is
applied, to a particular case, by a common Mat or effective cause, which
cannot be ascertained merely by interpretation of the language of the text."17
The following example would make the above rule clear:
Strong drink, for example, is prohibited by explicit provisions. The cause for
the prohibition is the intoxicating effect. If we assume that wine had not been
explicitly prohibited, we are still able to equate it by analogy to strong drinks in
general, since the cause for the prohibition is the effect of intoxication, to which
both give rise. Similarly if there is no intoxication, there is no prohibition. 18
Abdur Rahim says that all the four Schools of the Muslim Law accept the
authority of Qiyas as a source of law. 19 But Mahmassani declares that it was one
of the causes of conflict between the Schools. The lmamiyah Shia rejected it;
Daud-al-Zahiri and his followers did likewise; however, the majority of jurists
and the Zaydiyah Shia accepted it. 20 In fact the main point of difference was the
extent to which analogy could be relied upon.
Arguments against Qiyas.—The anti-analogy group alleged that there was
no need for it because the Koran was sufficient. They quoted the following texts:
"And we revealed the book unto thee as an exposition of all things."
(Koran 16: 89)
"We have neglected nothing in the book." (Koran 6: 38)
"The affairs of Israelites were in proper order, until those born of slave
girls increased in numbers, and began to deduce from what had been laid
down, things which had never been laid down, and thus they, themselves
went astray and led others astray."
Arguments in support of Qiyas.—The pro-analogy group contends that the
first two texts cited above are valid, and it is accepted that the guidance for every
Muslim in all matters has to be found in Koran, but they argue that the law
relating to few questions alone are expressly laid down in the Koran, and as
regards the rest, it merely affords indications from which infeiencs lia.. to be
drawn. -
As to the warning contained in the last meniid text, they argue that the
power of making Qiyas is only given in the hands of Muslim jurists, who have to
be qualified in many respects and have to conform to many strict rules. In the
circumstances, these jurists cannot be equated for the ignorant slave-born
Israelirft were arbitrary and wild.

17. Abdur Rahim, at p. 138 citing Jaudth, 302.

18. Mahmassaflf, at p. 79.
19. AbdurRahim, at p. 137.
20. Mahmassani, at pp. 79-80.
 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 11

In their support, the pro-analogy group cite many Koranic texts and
traditions, a few of which are as follows:
"As for these similitudes we cite them for mankind but none will grasp
their meaning save the wise." (Koran 29: 43)
"Learn a lesson, 0 ye who have vision to see." (Koran 59: 2)
"Give your rulings in accordance with the (provisions of the) Book and
the Sunnah if such are available. If you do not find such provisions, have
recourse to your opinion and interpretation." (Tradition)
The analogy is based on very strict logical and scientific principles and thus
it should not be confused with opinions based on mere whims.
(v) Equity and the absolute good.—Under this head may be grouped those
sources which have their origin in equity or absolute good. Mahmassani says:
"Real justice and equity are the basis of the Shariah, because it is divine
in origin and comprises in its rules the fundamental principles of religion,
morality, and economic transactions. It was natural, therefore, that these
rules should overlap and be influenced by one another. It was natural also
that the sources, bases, sciences and studies of these rules should be
integrated in one whole".21
We shall now discuss briefly these sources.
(a) Istihsan (Preference).—QiyaS has been accepted as a definite source of
law, and it cannot be easily overridden. But in the presence of a basis stronger
than Qiyas, such as a text of Koran, Had ith or Ijma, the Qiyas would be set aside
and the 'stronger basis' would be adopted through juristic preference or Istihsan.
The following example shall make the principle clear:
The sale of a non-existent thing, namely a thing which is not in existence at
the time of the signing of the contract, is void. Since benefits and services,
according to the Hanafi School, are not considered in existence at the time of the
contract, the contract of hire was considered as the sale of a thing which is not in
existence and therefore, by analogy, void. However, the contract of hire was
sanctioned by the Koran, the Sunnah and Ijma. All these are bases which are
more substantial than analogy. Thus, analogy was set aside and transactions of
hire were considered permissible through "preference".22
This sort of deduction, namely the setting aside of analogy in the presefice of
a stronger source, is called Jstihsan or preference.

21. Mahmassani, at p.84.

22. Ibid,atp.85.
 12 MUSLIM LAW [CHAP.

Istihsan gave an elasticity and adaptability to Shariah. "In fact", says Abdur
Rahim: "if we call analogical deductions the common law of the Muhammadans,
then Istihsan may be relatively styled their equity."23
(b) Al-masalih al-mursalah (Public Interest).—Imam Malik approved
'public interest'as one of the sources of the Shariah. He named this new source
al-masalih al-mursalah. These interests have not been covered by any text of the
Shariah and therefore are considered as mursal i.e. set loose from those texts.
Mahmassani gives many examples to illustrate this rule; a few of these are as
follows:24
(1) The imposition of taxes on the rich in order to meet the costs of the
army and to protect the realm.
(ii) If the infidels in war should shield themselves in advance by Muslim
prisoners of war, public interest permits the killing of the Muslim
prisoners of war in the course of fighting the infidels, if such action
should be found essential to contain and ward off the foe and to
protect the interests of the Muslim people as a whole.
Abdur Rahim says that the Maliki jurists never took full advantage of this
principle, and many followers of that School consider the doctrine to be too
vague and general to be useful in making legal deductions.25
(c) Istidlal and lstishab.—Jstidlal or deduction is an effort to reach at some
rule acting on certain basis. It connotes a special source of law derived from
reason and logic. An example of deduction by logic is as follows:
Sale is a contract; the basis of every contract is consent; it is necessary
therefore that consent be the basis of sale.26
This source of law is mainly recognised by Malikis and Shaflis, while
Hanafis regard it as only a special mode of interpretation.
Istishab literally means permanency. Technically, it is used to denote the
things whose existence or non-existence (proven in the past) should be presumed
to have remained as such for lack of establishing any change.
As an example of Istishab may be mentioned the case of a man who has
disappeared, and whose whereabouts are not known. The Shaflis would treat
such a man as living for all purposes of the law until his death is proved, so that
his estate will not be distributed among his heirs, and he will be allotted his share
in the estate of a person from whom he is entitled to inherit, and who happens to
die during his disappearance. The Hanafis say that the presumption that a

23. AbdurRahim, at p. 164.

24. Mahmassani, at p. 88.
25. Abdur Rahim, at p. 166, citing Mu/thiasar, Vol. tat pp. 281-9.
26. Mahmassani, at p. 90.
 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 13

particular state of thing continues until the contrary is proved is valid only to the
extent it serves to protect existing rights, and not for establishing or creating a
new right. Therefore, in the above case they would agree with the Shaflis so far
that they would not allow the property of the man who has disappeared, to be
distributed among the heirs, but they would not recognise his right to inherit
from the person who has died since the man's disappearance.27
(vi) Ijtihad and Taqlid.—Ijtihad (interpretation) in the linguistic sense
means the expanding of effort. As a technical term it means effort in seeking and
arriving at rules from the various sources of law. It is the oppositô of Taqlid
(imitation) where the opinions of others are followed without understanding or
scrutiny.
Since Islamic Law has been derived from the Koran, the Sunnah, Ijma,
Qiyas, !stihsan, etc., interpretation or Ijtihad serves as a medium in deducing
rules from these sources.
Towards the end of the Abbasid period, however, Sunni jurists declared that
the "door of interpretation" was closed. The reasons were—(i) absence of
qualified persons competent to make Jjtihad, and (ii) a belief that the exposition
of principles by the four Sunni Schools was sufficient to meet all the future
requirements.
Ijtihad has been applied more extensively by the lmamiyah Shias than by the
followers of the Sunni Schools. To the Shias, the door of interpretation has
always been wide open, and still is.
B. EXTRANEOUS SOURCES
Those sources which have not been mentioned by the classical jurists, but
which have an impact in the evolution of Muslim Law, are termed as extraneous
sources. These sources are the direct legislation by the State, customs and
usages, and legal fiction.28
(i) Legal fiction.—We find many examples of legal fictions in the opinions
of Roman jurists and in the precedents of English courts. They are all based upon
the contention that the old law remains ostensibly unaltered, while, in reality it
has undergone changes and modifications. In Islamic Law too, there are such
instances.
The inhabitants of Bukhara had been accustomed to long-term leases of
land. But as the Hanafi School did not approve long-lease contracts for orchards,
recourse was made to a legal fiction whereby the orchard was sold and the
vendor retained the right to redeem it.

27. Abdur Rahim, at pp. 167-168.

28. Mahmassani, at p. 105.
14 MUSLIM LAW [CHAP.

This form of sale was obviously a legal fiction to circumvent the prohibition
of long-lease contracts. Mahmassani gives many other such examples and shows
that legal fiction can also be a source of law. 29 At the same time he also says that
this source is approved by Hanafis and some Shaflis only, while Malikis,
Hanbalis and a majority of Shaflis do not approve of it.
(ii) Positive legislation.—The history of the Islamic States shows that the
Caliphs and the Sultans enacted laws either directly or indirectly whenever
public interest called for such action. The legality of such legislation is based on
Koran and tradition:
"0 ye who believe! Obey God and the Prophet and those of you who are
in authority." (Koran 4: 59)
"He who obeys me obeys God and he who disobeys me disobeys God;
he who obeys the emir obeys me and he who disobeys him disobeys
me...." (Tradition)
It must, however, be borne in mind that not every command of a King
should be followed, but only those which are right and just. Shariah also places
certain limits on the Sultan's jurisdiction to issue such laws.
(iii) Customs and usages.—Before the advent of Islam in Arabia, customs
were the basis of the entire social life, religion, morality, trade and commerce.
No codified law existed.
After the advent of Islam, Koran and the tradition took place of the custom,
which lost much of its importance. Nevertheless, it influenced the growth and
formation of Shariah in several ways:30
(a) Several texts, particularly traditions are based on usages.
(b) A part of the Shariah based on tacit or silent approval of the Prophet
comprises many of the Arab customs.
(c) Imam Malik says that the customary conduct of the citizen of Medina
was a sufficient ljma to be relied upon in the absence of other texts.
(d) In the course of their conquest, when the Arabs came upon customs
hitherto unknown to them, and which were not in conflict with any of
the Shariah texts, those customs made inroads into the Shariah by
means of Ijma, !stihsan, etc.
The practice of a few individuals or of a limited class of men will not
become custom. Nor would a usage acquire the force of law so long as it is
confined to a particular locality and has not found general acceptance. The
custom has authority so long only as it prevails, so that the custom of one age
has no force in another age. There is agreement of opinion among the Sunnis,

29. Ibid, at pp. 120-124.

30. Mahmassani, at p. 132.
 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 15
i]

that custom overrides Qiyas (analogy), and remains legally operative even if it is
opposed to a rule of law based on Qiyas.31
Here, the enactment of the Muslim Personal Law (Shariat) Application Act,
1937 deserves our attention. It was passed with the express purpose of repealing
those customs which though contrary to Muslim Law came to be prevalent
among Indian Muslims. Custom has thus now little to do with the development
of Muslim Law. However, the Shariat Act, 1937 allows Muslim Law to be
superseded in matters of (i) agricultural lands; (ii) testamentary succession
among certain communities; and (iii) charities, other than wakf. These
exceptions, particularly that in case of testamentary succession, require a serious
re-examination. If intestate succession has been guaranteed by Section 2 of the
Act to be governed by Muslim Law, it is illogical and strange to allow testate
succession to be governed by customs which may be opposed to Muslim Law.

4. The birth of Shia and Sunni sects

"The unhappy schism", says Ameer Au, "which at this moment divides the
Islamic world into the two great sects of Shias and Sunnis, owed its origin to
secular causes which led ultimately to a wide divergence in their juridical
conceptions".32 It is interesting here to trace the reasons which led to the
formation of Shia and Sunni sects and then the establishment of different schools
of law among themselves.
It was on the question of Imamat (leadership of Muslim Com m0l vealth)
that the difference between Shias and Sunnis arose. Shias do not a ..ept the
authority of the Jamat (or the universality of the people) to elect a spiritual chief
who could supersede the claims of the persons indicated for this purpose by the
Prophet himself. Sunnis contend that the Prophet never indicated any person to
act as the spiritual chief, and he should be elected. Difference on this point
assumed new dimension when immediately after the death of the Prophet it
became necessary to elect a Caliph or successor to assume the leadership of
Muslims. The kinsmen of Muhammad, who were called Hashimites, asserted
fl-at since Ali was a member of the Prophet's family who had also been pointed
out by the Prophet as his successor, he should become the Caliph. The other
group of Muslims, known as Koreshites, insisted on election, and elected Abu
Bakr to the office of the Caliph. After three years Abu Bakr died and Omar
succeeded him. On his death the Caliphate was offered to Au "on condition that
he should govern in accordance with the precedents established by the two
former Caliphs. Ali declined to accept the office on those terms, declaring that in
all cases respecting which he found no positive law or decision of the Prophet,
he would rely on his own judgment." Another companion of the Prophet,

31. AbdurRahim,atpp. 136-137.

33.
32, Ameer Ali, Mohammedan Law, Vol. 1(3rd. Edn., 1904) at p.
 16 MUSLIM LAW [CHAP.

Osman, consented to the terms imposed by the electoral body and became the
third Caliph. The political events that took place during his Caliphate elucidate
the history of the deplorable schism which divided the Muslim world into two
sects.
Osman's good nature made him a tool in the hands of his kinsfolk. Soon
they dominated over him. His uncle, Hisham, and especially Hisham's son,
Merwan, in reality governed the country, only allowing the title of Caliph to
Osman, and the responsibility of the most compromising measures, of which he
was often wholly ignorant. Osman married his daughter to Merwan and made
him his vazir. He also made his uterine brother Walid, the Governor of Kufa; his
foster brother Abdullah-ibn-Saad-ibn-Surrah, the Governor of Egypt and
confirmed Muawiyah in the governorship of Syria. All these persons were
shortly to play very important roles.
Things in Egypt were not moving in the right direction. A deputation of
twelve thousand Egyptians came to Osman with their grievances. They were
turned back with the assurance that their grievances could be looked into. On
their way back, however, they intercepted a letter written by Merwan, instructing
Abdul lah-bin-Abisarah to massacre them in a body. Enraged at this treachery,
they turned back to Medina and killed the Caliph. 33 This story has been proved
baseless by Mr Athar Husain in his book on Khulfai Rashideen. Upon Osman's
death, Ali was elected to the office of the Caliph. It was a signal for Muawiyah
to raise the standard of revolt. But soon he was defeated in one battle after
another by the troops of Au. He appealed to arbitration which was agreed upon
by Ali. Abu Musa-al-Ashaary represented Au, and Amir-ibn-ul-Aas acted on
behalf of Muawiyah. Ameer Ali graphically describes the events which
followed:
"Amir led Abu Musa to believe that the removal of both Ali and
Muawiyah, and the nomination of another person to the headship of Islam.
wds Ikessary to the well-being of the Muslims. The trick succeeded; Abu
Musa ascended the pulpit and solemnly announced the deposition of Au.
After making this announcement he descended aglow with the sensation of
having performed a virtuous deed. And then Amir smilingly ascended the
pulpit vacated by Abu Musa, the representative of Ali, and pronounced that
he accepted the deposition of Ali, and appointed Muawiyah in his place.
Poor Abu Musa was thunderstruck; but the treachery was too patent, and the
Fatimides refused to accept the decision as valid. Both parties separated
vowing undying hatred towards each other. Ali was shortly after
assassinated ... (and it enabled Muawiyah) to consolidate his power both in
Syria and Hijaz. On the death of Au, Hasan, his eldest son, was raised to the

33. Ameer All, The Spirit of Islam (London 1965 first published in 1922) at pp. 294-95.
l THE CONCEPT AND BACKGROUND OF MUSLIM LAW 17

Caliphate. . . Before many months were over, he was poisoned to death.1134

And Muawiyah became the Caliph. -
During Muawiyah's time, the followers of the House of Muhammad began
to be called "Shias" or "adherents". Later on, during the Abbasides period, the
person who gave preference to election over hereditary succession assumed the
name of Ahi-us-Sunnat wal Jammat (People of the Traditions and the
Assembly).
Up to this time the difference between the two sects was mainly political.
Now it began to assume legal and doctrinal form. Some of the important grounds
of difference were as follows35:
Shias reject all traditions not handed down by Ali or his immediate
descendants—those who had seen the Prophet and were well
acquainted with him.
According to the Shia doctrine, the oral precepts of the Prophet are in
their nature supplementary to the Koranic ordinances, and their
binding effect depends on the degree of harmony existing between
them and the laws of the Koran.
The Sunnis, on the other hand, base their doctrines on the entirety of
the traditions. They regard the harmonious decisions of the
successive Caliphs and of the general assemblies of Muslims
(Ijma-ul-Ummat) as supplementing the Koranic rules and
regulations, and as almost equal in authority to them.
The Shias repudiate entirely the validity of all decisions not passed by
their own spiritual leaders and Imams. In the application of private
or analytical judgment, and in drawing conclusions from the
ancient precedents, they also differ widely from the Sunnis.
Among Sunnis, religious and state affairs are the same; the Caliph is
the Imam—temporal chief and also the spiritual head.
According to Shias it is not so. Partly iii consequence of the
mysterious disappearance of their last Imam, and the existing
belief th2t he is still alive, and partly owing to the "frequent
repression from which they have suffered", the Shias have entirely
dissociated the secular from the spiritual power. For them, religion
and the State are entirely distinct from each other.

34. Ameer Au, The Spirit of Islam (London 1965 first published In 1922) at pp. 294-95.
35. Supra, n. 26 at pp. 36-38.
 18 MUSLIM LAW [CHAP.

5. The Schools of Muslim Law

(i) SUNNI SCHOOLS

(a) The Hanafi School.---This is the most important of the four Schools of
the Sunnis. Its founder was the Great Imam Abu Hanifa. The main features of
this School are36:
(1) Less reliance on traditions unless their authority is beyond any doubt;
(2) Greater reliance on Qiyas;
(3) A little extension of the scope of Ijina; and
(4) Evolving the doctrine of Istihsan, i.e., applying a rule of law as the
special circumstances required.
Among' the most famous disciples of Abu 1-lanifa were: Abu Yusuf and
Imam Muhammad. Through them the Hanafi School spread to fame. The credit
for recording the jurisprudence of the Hanafi School is due to the Imam
Muhammad. The disciples of Abu Flanifa also had pupils who achieved renown;
they included Hijal, Ahmad-ibn-Mubir and Abu Jafar.
This School is followed in Syria, Lebanon, Turkey, Egypt, Afghanistan,
Pakistan, India, China, etc. Its adherents constitute more than one-third of the
Moslems of the world.
(b) The Maliki School— Imam Malik is the founder of this School. The
main distinctions of this School are as follows:
(1) Acceptance of Tradition which were, in the opinion of Imam Malik,
authentic, even if the Tradition carried the authority of only one
narrator.
(2) Acceptance of the practices of the people of Medina and of the sayings
of the Companions of the Prophet.
(3) Recourse to analogy (Qiync) n"!y th e _I bsencz of an Aplt k.At.
(4) Making use of a source unique to this School, known as al-masalih al-
rnursakih (public interest).
The pupils of Imam Malik included Imam Muhammad and Imam Shafli.
Medina was the birthplace of the Maliki School and from there it spread
throughout the Hijaz, North Africa and Spain. It is still predominant in Morocco,
Algeria, Tunisia and Tripalitania, the Sudan, Bahrain and Kuwait.
(c) The Shafii School.—This School owed its origin to the efforts of Imam
Shafli, who during the early part of his academic career was a follower of Imam
Malik. However, his journeys and experiences changed his views and led him to
begin a school of his own. This School was a compromise between the Hanafi

36. Verma, at p. 6.
 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 19
ii
and Maliki Schools. Mahmassani beautifully sums up the philosophy of this
School in the following words:
"He (Imam Malik) would accept the four sources of Law; the Koran, the
IstidlaL However, he
Sunnah, consensus, and analogy. He would also accept
School called Istihsan (preference) and what the
rejected what the Hanafi
Maliki School called al-masalih al-mursalah (public interest)".37
Imam-al-Shafli was the first to compile the sources of law. His most famous
pupil was Ahmad-ibn-Haflbal.
This School is followed in many parts of Egypt, Syria and Lebanon
(particularly in the city of Beirut) and also in Iraq, Pakistan, India, Indo-China,
Java and among the Sunni inhabitants of Iran and Yemen. It is predominant in
Palestine and Jordan.
d) The Hanbali School.— The founder of the fourth Sunni School is Imam
Hanbal. He was a more strict follower of the traditions than others and restricted
Qiyas and Ijma within narrow limits. The foundation of this School rests on five
main sources38:
(i) The Koran;
(ii) The Sunnah;
(iii) The Ijma of the Companions of the Prophet, if there was nothing to
contradict them, and the saying of certain of the Companions when
these were consistent with the Koran and the Sunnah;
(iv) Zaif and Mursal traditions i.e. traditions having a weak chain of
transmission, and lacking in the names of some of the transmitters; and
(v) Qiyas, whenever it was necessary.
This School is the least widespread of all the Sunni Schools. Today, it is the
official School of the Kingdom of Saudi Arabia, and has followers numbering
about fifty lakhs in the Arabian Peninsula, Palestine, Syria, Iraq, and other
countries.
Extinct Schools.—There were many Sunni Schools which came to an end
with the passing of time. The three most important of such extinct schools are39:
(1) The Awzai School (died 2nd Century A.H.),
(2) The Zahiri School (died 8th Century A.H.), and
(3) The Tabari School (died 15th Century A.H.).

37. MahrnasSafli, at p. 27.

38. Ibid, at p. 30.
39. See Ibid, at pp. 33-34.


20 MUSLIM LAW
[CHAP.

(ii) SHIA SCHOOLS OR SECTS

As discussed above, the main reason which gave birth to Shia and Sunni
Schools was the dispute over Ima,nat (leadership of Muslims).
The question of who should be Imam caused the Shias to split amongst
themselves, and to form rival sects. The most important of these sects, which
cannot be properly called Schools, are:
(a) The Imamiyah Shia or (Ithna Ashriyah);
(b) The Zaidiyah Shia; and
(c) The Ismailiya Shia.
Mahmassani says that the followers of all these sects were in agreement that
the post of Imam should belong to the family of the Prophet. There was no
dispute over the first four imams: Ali, his two Sons Hasan and Husain, and
Zainul Abidin, son of Husain. But they split over the succession after the four
Imams.40

The lolowing chart (taken from Fyzee) will make things more clear:
The Prophet

(2) Hasan (d. 50) (3) Husain (d. 61)

(Sharifs of Morocco, ldnsids of N. Africa) (4) A11 Zaianulabdjn

Zaid (d. 122) (5) Muhammad al-Baqir(d. 113)

(Imams of the Zaidis of Yemen (6) Jafar as. Sadiq (d. 148)
and N. Persia)

(7) Ismail (7) Musa al-Kazim (d. 183)

(Fatiinid Caliphs of Egypt) (8) Au al-Rida (d. 202)

(9) Muhammad al-Jawad (I)

Al-Mustansir (d. 220)
(8th Fatmid Caliph)
(d. 487) I
(10) All al-Fladi (m) (d. 254)
I (II) Al-Hasan at- ! Askari (d. 26)

40. Mahmassani, at p. 36.

 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 21

(12) Muhammad at-Muntazar (n)

(disappeared' in 26 A.

Nizar al-Musa 'Li

(9th Fatimid Caliph)
(d. 495)

imams of the Imams of the Musta

Nizarites or Eastern Lian or Western
Isma His (Isma 'ill Isma 'ilis (Isma 'ilis
Khojas, etc.) (Isma 'ilis of
Yemen, Syria, and
Dqhras of India)
These are 12 Imams of the lthna 'Ashans of
TwELvEas

As already stated, the Shias became divided into sub-sects on the question of
succession after the fourth Imam, Ali Zainulabidin. One of his sons, Zaid was
accepted as Imam by a certain group who were called the Zaidis. They recognise
the principle of election as the basis of succession. The majority of the Shias
followed Muhammad al-Baqir and after him Jafar as-Sadiq. After the death of
Jafar, another split took place; the majority followed Musa al-Kazim and six
Imams after him, thus making twelve Imams in all (hence, their name,
"Twelvers" or Ithna Asharis). The last of these Imams is believed to have
disappeared and to be returning as the Mehdi (Messiah). After the death of Jafar,
a minority of the Shias did not acknowledge Musa al-Kazim, but followed his
elder brother, Ismail, and are now known as Ismailis or "Seveners". The Ismailis
believe that the Imam cannot completely disappear. He is hidden from the sight
of those whose vision does not possess the real penetration .4'
The Imam is the central figure in the Shia world. On him are focussed the
hopes of the world, the love and devotion which is due to the Prophet and the
passion and tragedy of Karbala. He is the "leader" (Imam), not the Kha4fa
(successor of the Prophet). He is the perfect man (al-insanu '1 Kamil) and acts as
a link between Man and God. He is the final authority in both law and religion.42
The vast majority of the Shias hold the Imam inferior to the Prophet. For
Zaidis, the Imam is nothing more than "right guide" The Ismaili Bohras place the
Imam definitely below the Prophet. However, al-Hilli, the author of al-B abul-
Hadi As/tar, claims that the Imam is equal to the Prophet. Then there are Nizari
Ismailis who consider the Imam higher than the Prophet. The Indian Nizari
Ismailis who are known as Ismaili Khojas (followers of the Agha Khan) go a
step further and declare the Imam to be an incarnation of God Vishnu. "But
certainly most of the Ismaili Khojas would not subscribe to this creed in its

4!. Fyzee, "Shii Legal Theories", in LME at pp. 114-15.

42. Ibid, at p. 115.
22 MUSLIM LAW [CHAP.

literal sense and are aligning themselves increasingly with the orthodox Muslim
faith".43
Here it is interesting to note a recent decision of the Supreme Court that has
defined the religious position and powers of the spiritual head of the Dawoodi
Bohras, particularly in the context of his power to excommunicate a member of
his sub-sect vis-à-vis fundamental rights guaranteed under the Constitution.
The Dawoodi Bohras believe that due to persecution, Imam Tyeb (the 21st
Imam) went into seclusion and that an Imam from his line will appear. They also
believe that an Imam always exists although at times he may be invisible to his
believers.
When the 21st [main went into seclusion, the 20th Imain directed that a Dai
be appointed to carry on the mission of the Imam so long as the imam should
remain in seclusion. The Dais are known Dai-ul-Mutlaq, that is, the vicegerent
of imam on earth in seclusion. In the present case it was held that Sardar Syedna
Taher Saifuddir, Saheb, as Dai-ul-Mutlaq, has not only civil powers as head of
the sect but also ecclesiastical powers as religious leader of the community. He
has also powers of excommunication. It was contended that the power was out of
date and opposed to human rights as embodied in the "Universal Declaration of
Human Rights". The Supreme Court, however, held "that where an
excommunication is itself based on religious ground such as lapse from the
orthodox religious creed or doctrine or breach of some practice considered as an
essential part of the religion by the Dawoodi Bohras in general,
excommunication cannot but be held to be for the purpose of maintaining the
strength of the religion. It necessarily follows that the exercise of this power of
excommunication on religious grounds forms part of the management by the
community through its religious head, "of its own affairs in matters of religion",
and therefore cannot he challenged as ultra vires the Constitution.44
The Shia sects rejected all such traditions which were not received from the
family of Ali and his decendants. According to them, Ijma is "consensus of the
infallible Imam, not merely the consensus of jurists". lthna Ashariyah Shias
allow Qiyas, while others give it only a secondary importance. On the point of
ljtihad, the Shias say that only Imam can be a mujtahid (i.e., one who is
competent to make Ijtihad), and not every person having some rigid
qualifications as Sunnis claim.
6. 'Shariat'and 'Fiqh'
"Shariah is based on wisdom and is meant for the worldly and spiritual
benefit of the people and means complete justice for all and absolute kindness

43. Supra, n. 32 at pp. 118-119. See also, Advocate General v. Mohd. 1-tusen Huseni, 1866 Born 323.
44. Sajfuddin Saheb v. Slate of Bombay, AIR 1962 SC 858.
 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 23

and wisdom. Hence, we cannot consider that code of law a law of Shariah in
which there is cruelty instead of justice, hardship, in place of leniency, loss
instead of advantage and foolishness in place of reason".45
There are two different conceptions of law. One is that law is divine, like
Hindu and Muslim Laws, and the other is that law is man made, such as all the
modern legislations.
According to Romans, law is nothing but rules of human intercourse
conceived by man as being most conducive to the welfare of a community.
These become binding when the majority of that community express their
approval.
The Muslim jurists, however, contend that there is no other basis of law than
the solution to be given to the philosophical problem of certitude (ilm-ul-yaqin)
in the matter of Good and Evil, or (beauty) Husn and ugliness (Qubh). What is
morally beautiful must be done; what is morally ugly must not be done. That is
Law or Shari at. The determination of the beauty or ugliness of a thing, however,
is a legal question. And who can answer it? Not man. The Muslim jurists deny it.
Human views and judgments are always and on all things at variance, precisely
because a criterion of solid, absolute certitude is a thing far above the reach of
human understanding. Must then, the consequence be drawn that law is a thing
of which the benefit is denied to man? No. There exists the infinite wisdom of
God, who reveals to man the necessary basis of law. From time to time
extraordinary beings appeared on earth. One of such beings was the Prophet
Muhammad. God revealed to him the science of Good and Evil as it was
contained in the Koran.46
There then is to be found absolute ethical certitude—the solid basis of law.
But not only there. It is also to be found in the sayings and deeds of the Prophet.
But the task of the builders of Muslim Law was far from finished. Because,
Koran and Hadith provided only the raw material with which to build the legal
fabric; and which has to be built.
Imagine that white is the cr'lour of moral beauty, black the colour of moral
ugliness, and grey the colour of things neither beautiful nor ugly. The task of the
Muslim jurist is to classify the immense colourless mass of human actions, and
to paint them white, black or grey. How shall he do it? By acting upon the
following reasoning; God being 'absolute wisdom' cannot prescribe anything but
what is morally beautiful; cannot forbid anything but what is morally ugly;
cannot allow anything but what, at the very least, is in between beautiful and
ugly. Working still further, the Muslim jurists finally evolved fivefold

45. Ibn Qayyin, Bidyat-uI-Mujtohid, Idarat al-Musannifin, Rabwah (1958) as cited by K.N.
Abmad, Muslim Low of Divorce (1978) at p. 13.
46. Fyzce, at p. 32.
24 MUSLIM LAW [CHAP.

classification of the nature of human actions, as being either strictly enjoined, or

simply advised, or permitted, or unadvised, or strictly forbidden. Islamic
jurisprudence calls these Five Qualifications as al-A hkam-al-Hwnsa.47
Shariat (the path to be followed) as a technical term, thus means the canon
law of Islam, embracing all human actions. For this reason it is not 'law' in the
modern sense. It is more ethics than law. It is fundamentally a doctrine of duties,
a code of obligation. In it, the legal considerations are of secondary importance.
It gives more weight to a religious evaluation of all the affairs of life.
Fiqh literally means 'intelligence'. It is the name given to the whole science
of jurisprudence, because it implies the independent exercise of intelligence in
deciding a point of law.
When Mua'zz was leaving to assume the governorship of a province, the
Prophet asked:
"According to what shall thou judge?"
Hz replied
"According to the Stricture of God (Koran)."
"And if thou findest nought therein?"
"According to the Tradition of the Messenger of God."
"And if thou findest nought therein?"
"Then shall i interpret with my reason.'
And thereupon the Prophet said:
"Praised be God who has favoured the messenger of His Messenger
with what His Messenger is willing to approve."
The above conversation is extremely important as it lays down the limitation
on the freedom of thought of a lawyer while exercising his own judgment or
discretion. Any liberal interpretation may be made within the folds of Koran and
Tradition. It also shows the scope of direct examination and free interpretation of
Koran and Tradition. Muslim jurists have clearly defined the limits within which
frcc intrprcttion il-lay be allowed. Thus, they hold that where the will of the
divine reason has been clearly expressed, human reason may not interfere.
Muslim jurists define Fiqh as "the knowledge of one's right and obligation
derived from the Koran or Hadith, or deduced therefrom, or about which the
learned have agreed".
From the above definition it is clear that the science of Muslim Law or Fiqh
is based on Koran and Hadith and analogical deduction (Qiyas). The last line of
the definition, about which the learned have agreed, shows that Ijma or
consensus of opinion among the learned, is also a source of Fiqh.

47. Ibid.
i] THE CONCEPT AND BACKGROUND OF MUSLIM LAW 25

Fiqh has been divided into two parts: (I) The Usul (literally meaning the
roots of law) which deals with the first principles of jurisprudence, and (ii) The
Furu which deals with particular injunctions or the substantive law.
Distinction between 'Shariat'and 'Fiqh'.—Shariat is a wider circle, it
embraces in its orbit all human actions, whether legal or otherwise, whereas Fiqh
is the narrower circle, and deals with legal acts. Shariat owes its existence to the
Koran and Hadith, while Fiqh is mainly erected by human try. In other words,
the path of Shariat is laid down by God and his Prophet: The edifice of Fiqh is
erected by human try. In the Fiqh, an action is either legal or illegal. In the
Shariat there are various grades of approval or disapproval.
Apart from the above narrow distinctions, there is not much to separate
Shariat from Fiqh. It is because "Hindu and Muhammadan Laws are so
intimately connected with religion that they cannot readily be dissevered from
it".
7. Development of Muslim Law48
Abdur Rahim divides the course of Muslim Law into four distinct periods.
This classification has generally been approved by the writers on Muslim Law.
PERIOD I—A.H. 1 TO 10: LEGISLATIVE PERIOD
This is the most important period so far as Koran and Hadith are concerned.
Most of the legal verses of the Koran were revealed at this time and some of the
Prophet's most important judicial decisions and traditions relate to that period.
These are the texts on which the superstructure of the four Sunni Schools has
been constructed.
PERIOD II—A.H. 11 TO UMMAYADS: THE PERIOD OF
COLLECTION AND INTERPRETATION
This period extends from the date of the Prophet's death to the foundation of
different Schools. It roughly covers the time of the companions of the Prophet
and their successors. The two significant points of this period are:
(i) Collection of the Koran and Hadith, and
(ii) Commencement of the study of law as a science.
(1) The collection and editing of the text of Koran took place during this
period. The texts of the Koran till then had been preserved either in the
memories of the companions of the Prophet, or by being inscribed on bones,
date-leaves and tablets of stone. The collection and consolidation of texts was
undertaken; but several different versions came into being. Thus, third Caliph
Usman appointed Zaid, a companion of the Prophet, to collect and edit the text

48. Largely based on Abdur Rahim, at pp. 16-47; and Fyzee, at pp. 25-28.
26 MUSLIM LAW [CHAP.

of Koran. It is that Koran, Usman's edition—which exists absolutely pure and

without corruption to this day. The remaining editions were destroyed.
The traditions were not, however, collected by the authority of the State as
was done in the case of the Koran. Their collection was left to the piety and
private enterprise of the muslims.
(ii) During the Ummayad period, there began a systematic study of the law
and tradition. The Muslim jurists and the then recently introduced sciences of
divinity and logic helped in evolving a science of Muslim jurisprudence. It is
during this period that law has been classified under different subjects, and the
use of technical phraseology has been introduced. This tradition continued
during the Abbasid period too.
The second period is characterised by the close adherence to the spirit and
ordinances of Islam. In the hands of the first four Caliphs, the law, though still to
be separated from religion, became imbued with principles of practical
application.
A review of the first century of Islam.—In the words of Schacht49, the first
century of Islam is in many respects the most important and also the most
obscure period in the history of Islamic Law. In their function as the supreme
rulers and administrators, the Caliphs acted to a great extent as the lawgivers of
the community. This 'administrative legislation', however, was hardly concerne1
with modifying the existing customary law.
Towards the end of the period of the Caliphs of Medina, the Islamic
community was rent by political schisms, and Kharjis, Shias and Sunnis came
into being.
During this period the ancient Arab idea of Sunnah, that is, precedent, made
inroads in Islam. The Arabs were, and are, bound by tradition and precedent.
Whatever was customary was right; whatever the forefathers had done deserved
to be imitated. This ancient Arab concept of Sunnah was to become one of the
central concepts of Islamic Law.
During the greater part of the first century, Islamic Law did not as yet exist.
Law as such fell outside the sphere of religion, and attracted attention only when
it came into clash with some religious command. Where a mode of behaviour did
not come in clash with Islam, it was allowed to flourish undisturbed. This
attitude of the early Muslims accounts for the widespread adoption of the legal
and administrative institutions and practices of the territories conquered by the
Muslims. Hand in hand with the retention of legal institutions and practices went
the reception of new legal concepts. For example, the concept of the opinio
prudentiwn of Roman law seems to have provided the model for the highly

49. Schacht, An Introduction to Islamic Law (Oxford 1964) at pp. 15-22.

I] THE CONCEPT AND BACKGROUND OF MUSLIM LAW 27

organised concept of the 'consensus of the scholars'(Ijma). Schacht goes on to

show the extent to which Islamic Law is indebted to Roman law. But a strong
refutation of this theory comes from Mahmassani, who after examining in detail
the similarities and differences between the Islamic and the Roman systems
concludes that similarities are very trivial in comparison with their differences.
Moreover, these similarities are not in themselves a proof that the former had
been influenced by the latter. Furthermore, the Muslim jurists adopted a negative
attitude towards Roman law in view of their belief in the divine origin of the
Shariah. Mahmassani strongly contends that apart from a few slight influences
"it is undoubtedly a fact that the Shariah is independent of, and not borrowed
from, any other system. It has its own special origins and its own glorious
history. The delegates of A1-Azhar University to the International Conference on
Comparative Law held at The Hague in 1937 succeeded in convincing the
Conference to adopt a resolution to this effect".50
PERIOD Ill—FROM ABBASIDS TO A.H. 200: THE PERIOD OF THE
DEVELOPMENT OF LAW AND FOUR SUNNI SCHOOLS
The third period is important because of the following three events:
(i) development of four Sunni Schools;
(ii) a systematic and scientific study of law; and
(iii) collection of traditions.
(i) During this period there appeared the four schools of Sunnite law. The
principles of these four schools are substantially the same, and they differ from
each other merely in matters of detail. These schools have already been
discussed in Section 3 of this chapter.
(ii) The work which had been done by the foremost jurists of the third
period, especially Abu Hanifa, Shafli and Malik is of twofold character. Not only
are many rules of law traced to their dicta, but they were the first to formulate the
principle of the science of Usul, i.e. Islamic jurisprudence.
The main object of the science of Usul is to discuss rules relating to the
interpretation of texts of the Koran, Hadith and Ijma, and making analogical
deductions from these three sources in cases not falling within the three.
The need of such a science in the Muslim system cannot be gainsaid.
Because, the only law making that there has been among the Muslims was
during the lifetime of the Prophet. The only other means left of expanding the
laws have been juristic interpretation and deduction. A science of the nature of
Usul which leads to the knowledge of law is, therefore, of great practical value.

50. Mahmassani, at p. 145.

 28 MUSLIM LAW [CHAP.

(iii) The work of collecting the traditions took place during this period, and
the collection of BUkhari and Muslim, for instance, came to be recognised as
authoritative. From the latter half of the third until the earlier part of the fourth
century A.H., the task of collecting and sifting the traditions was undertaken in
the same spirit of comprehensiveness which characterised the work of Abu
Hanifa, Shafli and Malik in the domain ofjurisprudence (UsuO.
The traditions have greatly influenced the Islamic jurisprudence. The Hanafi
jurists freely employ traditions to support their propositions.
Important aspects of the second century of Islam.—Reasoning was
inherent in Islamic Law from its very beginning. Nevertheless, all this individual
reasoning, says Schacht 5t started from vague beginnings, without direction or
method, and moved towards an increasingly strict discipline during the period
under review.
Ra 'y (opinion) is the name given by Arab jurists to individual reasoning.
When it is directed towards achieving systematic consistency, it is called Qiyas
(analogy). When it reflects the personal choice of the lawyer guided by his idea
of appropriateness, it is called Istihsan (preference). The use of individual
reasoning in general is called Ijtihad or Ijtihad al-ray.
During the whole of the second century of Islam, technical legal thought
developed very rapidly from its crude beginnings. First, it tended to become
more and more perfected. Second, it showed an increasing dependence on
traditions, as a greater number of traditions came to be accepted as authoritative.
Third, religious and ethical considerations tended to merge into systematic
reasoning, and both tendencies became inextricably mixed.
The development of four Sunni Schools is an important event that took place
during this century. Imam Malik extensively used reasoning in combination with
tradition. Abu Hanifa seems to be the sort of a "Theoretical Systematizer" who
achieved considerable progress in technical legal thought. A high degree of
reasoning, often somewhat ruthless and unbalanced, with little regard for
practice, is typical of Abu Hanifa's legal thought as a whole. This is why an
appreciable part of it was found defective and was rejected by his disciples—
Abu Yusuf and Shaybani. In Shafli, legal reasoning reached its zenith. Shafli's
fundamental dependence on traditions from the Prophet implied a different way
of Islamicising the legal doctrine. In theory, Shafli distinguished sharply between
the argument taken from traditions and the result of systematic thought. In his
actual reasoning, however, both aspects are closely interwoven; he shows
himself tradition bound and systematic at the same time, and we may consider
this new synthesis typical of his legal thought.

51. Supra, n. 34 at pp. 37-48.

 THE CONCEPT AND BACKGROUND OF MUSLIM LAW 29
ii
PERIOD IV—A.H. 200 TO THE PRESENT DAY: PERIOD OF "TAQLID"
After the establishment of four Sunni Schools, there has been no
independent exposition of Muslim Law, and jurists have been busy, within the
limits of each school, in developing the work of its founders.
At the close of the fourteenth century we arrive at the age of commentators
and annotators. The commentaries not only explained texts but also added
greatly to law. In fact, it is only in the writings of these commentators that it is
possible to find the doctrines of the different Schools expounded in their
fullness.
The contribution of the Muslims of India to the legal literature has not been
very considerable, but Fatawa-i-Alamgiri, compiled under the order of
Aurangzeb in the eleventh century A.H., is as great an achievement of learning,
industry and research as perhaps any legal literature can boast of.
The classification of the lawyers of this period is very elaborate; seven
different grades are recognised, beginning from Imams as founders down to the
ordinary Mufti (jurisconsult). The later lawyers were considered lower in grade
and incompetent to exercise independent judgment. That is, the doors of Ijti had
(independent interpretation) are regarded as closed for all practical purposes.
But there is nothing in the theory of Islam, says Abdur Rahini, to force the
principle of blind imitation (Taglid) on the Muslims. In fact, it is only due to
political and other causes that they still consider themselves bound by older
views, while the letter of law allows them liberty to develop their system of
jurisprudence. Therefore, unless a bold step is taken, as suggested by Dr. Iqbal,
in his Reconstruction in Islam, the Shariat will remain a fossil. Recent changes
and developments in Muslim Law effected by different Islamic countries are
indicative of a new trend.
 II

Muslim Law as Applied and

Interpreted in India
Against the backdrop of the claim of inflexibility of Muslim Law, it is
interesting to note the following observation of A.A.A. Fyzee-
I do revere the great interpreters of Islam, but I crave their indulgence if
I cannot share their beliefs, for belief is at bottom a matter of individual
conscience. I cannot agree that they are the keepers of my conscience. It is
the duly of the scholars of each age to interpret the faith of Islam in their
own times.1
1. Introduction
Not the whole body of Muslim Law is applicable in India, but only a portion
of it is applied to Muslims through the courtesy of the State. It is to denote this
body of law that many authors have used the expression "Muhammadan Law" in
place of Islamic or Muslim Law. Some have branded it as Anglo-Muhammadan
Law. But it seems more appropriate to call it Indo-Muslim Law, or briefly,
Muslim Law. The term 'Muhammadan Law' is a misnomer and gives a very
wrong impression. Fyzee sharply contends that "the religion taught by the
Prophet was Islam, not Muhammadanism; and the people who believe in it are
Muslims not Muhammadans. By Muhammadan Law (however) is meant that
portion of the Islamic Civil Law which is applied in India to Muslims as a
personal law", It is difficult to agree with his logic. When according to his own
argument, the followers of Islam are known as Muslims, not Muhammadans,
then their personal law should be known as Muslim Law, irrespective of the fact
that certain authors and Judges have preferred the expression Muhammadan
Law. Fyzee happens to be one of them, and rightly deserves to be branded as a
'pedant' by the middle-aged lady referred to by Fowler. Tahir Mahmood
considers both terms 'Muslim' and 'Islamic' as incorrect, for according to him
the Arabic term 'Muslim' can apply only to human beings and not concepts, and

I. Fyzee in A Modern Approach to Islam (1963) as cited by Tahir Mahmood in his A.A.A. Fyzee 's
cases in the Muhammadan Law of India, Pakistan and Bangladesh (2nd Edn., 2005 Oxford
University Press, New Delhi) at pp. 7-8.
 MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 31

by the term 'Islamic' is meant the Shariat or Fiqh in its pristine (classic) 'purity'.
Without getting boggled by these niceties, we have preferred the term Muslim
Law to indicate the law applicable to Muslims as of today.
2. Historical
Early contacts of the Arabs with India.—Since time immemorial, spices and
other articles from India and South-East Asia had been in great demand in Egypt
and southern Europe. The business was mainly in the hands of the Arabs. Trade
continued after the Arabs had embraced Islam. The conquest of Sind by Muslims
was not for the sake of empire building, but for something else. When certain
Arabs died in Ceylon, the local ruler sent their widows and children to Arabia,
with gifts and letters of goodwill for Hajjaj (661-714 A.D.), the powerful viceroy
of the eastern provinces of the Umayyad empire. Unfavourable winds drove the
vessels carrying the gifts and others to the shores of Debul in Sind. Here, hostile
men attacked, plundered the gifts, and took the Muslim women and children as
captives. An enraged Hajjaj demanded from Dahar, the ruler of Sind, the release
of the prisoners and restoration of the booty. However, he received a negative
reply. Thereupon Hajjaj persuaded the Caliph to authorise punitive measures
against Dahar. Two expeditions against Dahar failed, but the third, headed by
Mohammad-ibn-Qasim, succeeded in conquering Sind. The local population
was, however, treated with utmost consideration, as reflected in a letter written
by Hajjaj:
"They have been taken under our protection, and we cannot in any way
stretch out our hands on their lives or property. Permission is given to them
to worship their Gods. Nobody must be forbidden and prevented from
following his own religion. They may live in their houses in whatever
manner they like."2
The historians attach little importance to the Arab rule in Sind; yet its
indirect effects are many and far-reaching. For example, the political
arrangements made by Mohammad-ibn-Qasim with non-Muslims provided the
basis for later Muslim policy in the subcontinent. By the time Muslim rule was
established in Lahore and Delhi, Islamic Law had been crystallised and
contained strict provisions regarding idol-worshippers. The fact that those
provisions were not followed and the Hindus were treated as "people of the
book" (Ahl-e-Kitab) by Muslim kings was largely due to the fact that they had
been given this status by Mohammad-ibn-Qasim and that for centuries this
liberal practice had been built up in Sind and Multan.3

2. lkram, Muslim Civilization in India, edited by A.T. Ambric (Columbia University Press 1964)
at pp. 6-12.
3. Ibid,atpp. 19-20.
 32 MUSLIM LAW [CHAP

Position of Muslim Law during the Sultanate and Mughal periods.—

The Sultans of Delhi were, generally speaking, strict adherents to the Islamic
Law (Shariah). The reign of Iltutmish was noted for jurists well versed in the
law and practice of Shariah. The Kazis administered justice according to
Shariah. Appointed by the Central Government they were completely
independent of the Provincial Governors. It was the Jfedaya of Central Asian
lawyer, Burhanuddin-al-Marghiananj, which was the standard legal textbook in
Muslim India under the Delhi Sultans. This great legal textbook remained the
basis of Muslim Law for centuries, and was finally translated into English by
officials of the East India Company. With the efforts made by Firoz Tughlaq to
run the Government according to Is amic Law, it became necessary to have
summaries of Islamic Law in Persian, the Court language of Muslim India. A
large number of manuals thus came into being. The earliest was in the times of
Balban, followed by others during the Tughlaq period. But the most
comprehensive compilation of Muslim Law prior to the compilation of Fatawa-
i-Alamgiri was Fatawa-i-Tatar Khania, named after the pious nobleman, Tatar
Khan, who sponsored the compilation prepared by a Committee of uleina, it
consisted of thirty volumes.4
Whenever any Delhi Sultan attempted to introduce new elements into law,
they dared not violate any of its essential requirements and probably public
opinion did not assist them in establishing traditions repugnant to the basic
principles of the Shariah.'
The position of Muslim Law remained unchanged during the Mughal period,
with the sole exception of Akbar's reign, when he tried to interpret Muslim Law
according to his own notions. Up to Akbar's time, the application and
interpretation of Islamic Law was the responsibility of the ulema. Sometimes,
Akbar's own view of law clashed with that of ulema, but he had to stomach the
view of the Ulema. Akbar was troubled by the general legal position which gave
so much power to the Ulema. He explained his difficulties to Shaikh Mubarik,
the father of Faizi and Abul Fazal, and a liberal minded Aiim. He, along with
other ulema, drew up a brief but important Fatwa to the following effect.
"...should, therefore, in the future, religious question comes up,
regarding which the opinions of the mujtahids are at variance, and His
Majesty, in his penetrating understanding and clear wisdom, be inclined to
adopt, for the benefit of the nation, and as a political expedient, any of the
conflicting opinions, which exist on that point, and issue a decree to that
effect, we do hereby agree that a decree shall be binding on us and on the
whole nation.

4. Supra, n. I,atpp. 102-103.

5. M.B. Ahmad, Administration of Justice in Medieval India (Aligarh 1941) at
p. 99.
 II] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 33
Further we declare that should His Majesty think it fi t to issue a new
order, we and the nation shall likewise be bound by it, provided always that
such order be not only in accordance with some verse of the Koran, but also
of real benefit to the nation."6
According to Maulana Abul Kalam Azad, the central idea of the document
was in line with traditional Islamic political theory. 7 In practice, however, Akbar
became an autocrat. Many of his practices and regulations differed widely from
the normal Muslim practices. During Jehangir's time, no serious efforts were
made to undo Akbar's religious policies. But with the advent of Shah Jahan's
reign, the apathy and indifference that had characterised Jehangir's attitude
disappeared, and the regime was marked by attempts to run the administration
according to Islamic Law. This trend continued during the rest of the Mughal
period.
Muslim Law under the East India Company.—An effort to apply the
whole of Muslim Law was made under Aurangzeb (1658-1707 A.D.) as part of
the orthodox reaction against the curious religious experiments of Emperor
Akbar. This was the position when the East India Company in 1772 decided to
claim soverign rights and the power of jurisdiction outside its 'factories'. The
Company felt disinclined to foist "English ideas on a people who were not used
to them". Thus though Magistrates replaced the Kazis in British India, they were
until 1864 assisted by molvis, who gave a rendering of Muslim Law on the point
in issue. Their version might have been accepted or rejected by the magistrate.
Yet, during the initial stages, when the Magistrates, wholly relied upon molvis,
they went so far "as to apply the hadd punishment of cutting off the hand for
theft."8
In a despatch to the Court of Directors, dated 3rd November 1772, Warren
Hastings wrote:9
"We have endeavoured to adopt our regulations to the manners and
understandings of the people (of India) and the exigencies of the country,
adhering, as closely as we are able, to their ancient usages and institutions."
According to Fyze., this policy was dictated by three main considerations: 10
(i) Maintenance of the old structure, as it was under the Muslims,
(ii) Security in social conditions so as to facilitate trade, and

6. Supra, n. I,atpp. 158-159.

7. Abul Kalam Azad, Tazkirah (Calcutta 1919) at p. 20.
8. Schacht, footnote I at p. 95.
9. M.B. Ahmad, Administration of Justice in Medieval India (Aligarh 1941) at p. 281, citing
Home Miscil. Records 529 at p. 320.
10. Fyzee, at pp. 55-56.
 MUSLIM LAW [CHAP.
34
A desire not to interfere with the religious susceptibilities of Hindus,
Muslims and others.
The Muslim Law, though successively replaced, remained the basis of
criminal law, applicable to all inhabitants in Bengal and other Muslim parts of
British India until 1862. The Islamic Law of Evidence was not entirely abolished
until 1872. 1I As regards the law of family and inheritance and matters relating to
for Muslims
Wakf, gift, pre-emption etc., the continued validity of the Shariah
was guaranteed by Section 7 of the famous Regulation of 1780. It was laid down
in Section 27, "That in all suits regarding inheritance, marriage and caste, and
other religious usages or institutions, the laws of the Koran with respect to
Muhammadans, and those of the Shaster with respect to Gentoos, shall be
invariably adhered to." By and large, this regulation still holds the field.
There are certain enactments like the Mussulman Wakf Validating Act, 1913
which reaffirm the continued applicability of Muslim Law to Muslims, yet others
like the Dissolution of Muslim Marriages Act, 1939 and the Shariat Act, 1937,
which though professing to apply Muslim Law to Muslims, yet make certain
innovations in the law. As a whole, however, the attitude towards Muslim
Personal Law in India is to maintain and apply it in its pristine purity.
If any sect of Muhammadans has its own rule, that rule, generally speaking,
should be followed with litigants of that sect, as laid down by the Privy Council
in Rajah Deedar Husain case 12 . where the question related to the right of
succession to the estate of a Shia Muhammadan. 13
3. Shariat Act of 1937
The Muslim Personal Law (Shariat) Application Act, 26 of 1937 is by far
the most important legislation in the closing years of British rule in India. The
Act almost abolished the legal authority of custom among the Muslims of British
India for reasons best stated in the Statement of Objects and Reasons:
"For several years past it has been the cherished desire of the Muslims
of India that customary law should in no case take the place of the Muslim
Personal Law. The matter has been repeatedly agitated in the press and also
on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Muslim religious
body has supported the demand and invited the attention of all concerned to
the urgent necessity of introducing a measure to this effect. Customary law
is a misnomer since it has not any sound basis to stand on and is very much
liable to frequent changes and cannot be expected to attain at any time in
future the certainty and definiteness which must be the characteristic of all
laws. The status of the Muslim women under the so-called customary law is

11. Schacht, at pp. 94.

12. 2M!A 441.
13. Abdur Rahim, at p. 37.
 H] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 35

simply disgraceful. As the Muslim Women Organisations have condemned

the customary law, as it adversely affects their rights, they demand that the
Muslim Personal Law (Shariat) should be made applicable to them. The
introduction of the Muslim Personal Law will automatically raise them to
the position to which they are naturally entitled. In addition to this, the
present measure, if enacted, would have very salutary effect on society,
because it would ensure certainty and definiteness in the mutual rights and
obligations of the public. Muslim Personal Law (Shat-iat) exists in the form
of a veritable code and is too well known to admit of any doubt or to entail
any great labour in the shape of research, which is the chief feature of
customary law."
The position of Muslim women, in few cases, was seriously undermined by
the then prevailing customs. Inheritance in particular had continued to be ruled
by custom, often excluding women, among numerous communities of Muslims.
The Shariat Act aimed at correcting such defects.
The Shariat Act, 1937 came into operation on 7th October 1937, and is
applicable throughout India. It applies to every Muslim, of whatever sect or
school, but curiously enough, the word 'Muslim' is nowhere defined by it. It
applies to all kinds of properties, except: (a) agricultural lands; (b) testamentary
succession in certain communities; and (c) charities, other than Wakf.'4
Section 2 of the Act is important and deserves a detailed study. It runs as
follows:
"Notwithstanding any custom or usage to the contrary, in all questions
(save question relating to agricultural land) regarding intestate succession,
special property of females, including personal property inherited or
obtained under contract or gift or any other provision of personal law,
marriage, dissolution of marriage, including talaq, ila, zihar, han, khula and
mubarat'at, maintenance, dower, guardianship, gifts, trust and trust
properties and wakfs (other than charities and charitable institutions and
charitable and religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (Shariat)."
The object of the above Section 2 is firstly to abrogate custom and usage
which may be contrary to the principles of Muslim Law and, second, to grant
certain exceptions. Fyzee says that the words 'intestate succession' clearly show
that the power of testamentary succession enjoyed by certain communities is not
taken away. These communities are Khojas and Memons. Thus, they may follow
a custom which allows the disposition of even whole of property by way of will,
and which is clearly un-Islamic. On the other hand, if a female receives property
and by customary law the property is to revert to the heirs of the last male owner,

14. Fyzee, at p. 58.

36 MUSLIM LAW [CHAP.

such custom being contrary to Islamic Law, is abolished and she holds it in all
respects as an heir under Muslim Law. Is
In an important case 16 the Bombay High Court held that when Section 2
refers to trusts and wakfs, it not merely refers to trusts and wakfs inter vivos but
also includes testamentary wakfs and trusts. Thus, on the one hand, if a Khoja
Muslim who is governed by the Hindu Law in matters of succession, can give
away the whole of his property by way of 'Will , 17 notwithstanding the provisions
of the Shanat Act, on the other hand the validity of such a trust or wakf by way
of 'will' can only be determined by Muslim Law and not by Hindu Law.
It will be noticed that Section 2 excludes from its purview "agricultural
land" and "charities and charitable institutions and charitable and religious
endowments". It is because these subjects are within the competence of State
Legislatures. Mulla feels that "the exception of agricultural land is very
important as only a small portion of the land of India can be excluded from this
category, and the law as it stood before the passing of the Act must continue to
be applied thereto. The exception is so expressed as to cut down the effect of all
the subsequent words, e.g., if the question relates to agricultural land, the
Muhammadan Law is not made the rule of decision in a question regarding
gift.'8
It is noteworthy that the West Pakistan Muslim Personal Law (Shariat)
Application Act, 5 of 1962, does not allow the above exception, and also says
that Muslim Law will govern not only 'intestate' but also 'testate' succession.19
Regarding adoption, wills and legacies, Section 3 of the Act empowers every
Muslim, who is competent to contract under the provisions of the Indian
Contract Act, 1872, to adopt the law of the Shariat for himself or herself and also
for his or her minor children and their descendants. Thus, the Act differentiates
adoption, wills and legacies from other subjects of personal law mentioned in
Section 2. Unlike customs relating to the latter, those regarding adoption, wills
and legacies have not been wholly abrogated by its provisions. Respecting these
matters, the Act only gives an option to the Muslims to adopt Islamic Personal
Law if they so desire.20
Now, if the basic idea behind the Shariat Act was to abrogate customs which
were contrary to Muslim Law, it appears curious, to say the least, that many

15. Ibid, at pp. 58-59.

16. Ashrafalli v. Mahomedalli, AIR 1947 Born 122:48 Born LR 642.
17. The custom by which the Khojas of Bombay can under their customary law dispose of the
whole of their property is in contravention of the Muslim Law as to 'Wills', where it is
prohibited to dispose of more than one-third of property by 'Will'.
18. Mulla,atp.4.
19. See the chart facing at p. 4 in Tayabji.
20. See, Family Law Reform in the Muslim World at p. 169.
 Ii] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 37

things have been left on the sweet wish of parties to follow the Muslim Law or
not. Whatever might have been the reason for the inclusion of this provision, it is
in direct negation of the Act itself. Sections 2 and 3 of the Act require re-
examination and must be amended to bring them in harmony with the spirit of
the Act.
The Shariat Act is not retrospective, that is, it has no validity prior to 7th
October 1937, the date of its commencement.
Impact of Shariat Act on various business communities.—Khojas are
Ismaili Shias of the Nizarian Branch. They were originally Hindus hailing from
Sind and Kutch. When Sind came under Muslim influence, many Hindus
embraced Islam due to efforts of Pir Sadruddin, a missionary sent to Sind by
Shah Islam, one of the ancestors of His Highness Aga Khan, who is at present
the religious head of the community.
After the passing of the Shariat Act, 1937, the Khojas are governed by
Muslim Law in all matters enumerated in Section 2 of the Act including intestate
succession, but they are not so governed in matters of testamentary succession
and agricultural land. Thus, a Khoja can still dispose of whole of his property by
way of will.
Bohras (literal meaning: merchants) are Ismailis and are divided into Daudis
and Sulaymanis and some smaller branches. The present religious head is
Mullaji Saheb of the Daudi Bohras, who is recognised as their Dai-ul-Mutlaq
(Supreme head) by all factions of Bohras. Before the Shariat Act, Bohras were
following certain non-Islamic customs in matters of inheritance. But after 1937,
they are wholly governed by Muslim Law.
Memons are divided into two groups, the Cutchi Memons and the Halai
Memons. While Halai Memons are governed by Hanafi Law, the Cutchis were
first subject to Hindu Law in regard to succession and inheritance, but by the
Cutchi Memons Act, 1920 they were given an option either to subject
themselves to Muslim Law of Inheritance or remain as they were. After the
Shariat Act, 1937 they retained their customary right to dispose of the whole of
their property by will, unless a declaration under Section 3 was made, in which
case they were to be governed by ilanafi Law. Shortly afterwards, however, the
Cutchi Memons Act, 1938 subjected them to Hanafi Law. The net result is that
today Cutchi Memons are governed by Hanafi Law in all matters, with only
those exceptions that are allowed under the Shariat Act itself.
4. The Dissolution of Muslim Marriages Act, 1939
There is no provision in the classical Hanafi Law, which applies to a
majority of Muslims in India, to enable a married Muslim woman to obtain a
decree from the court dissolving her marriage if the husband neglects to maintain
her, makes her life miserable, and under certain other such circumstances. Since
38 MUSLIM LAW [CHAP.

the Hanafi jurists clearly laid down that if Hanafi Law causes hardship, it is
permissible to apply the provisions of the Maliki, Shafli or Hanbali Law, acting
on this principle, the Ulema hae issued Fatawa to the effect that in certain
cases, as enumerated in Section 2 of the above Act, a married Hanafi Muslim
woman may obtain from court a decree dissolving her marriage. Thus, the Act of
1939 consolidates the provisions of Muslim Law relating to dissolution of
marriage by judicial decree. A fuller discussion of this Act will come in the
Chapter on Divorce.
5. The present position
During the framing of the Constitution an effort was made by the Muslim
members of the Constituent Assembly to carve out a guarantee in the provision
dealing with the fundamental right to religious freedom (Article 25) to the effect
that the personal laws of any community would not be altered; however, the final
form of the words incorporated in Article 25 (1) and (2) did not create any
exception in favour of any community in the matter of social reforms. The right
to religious freedom in Article 25(1) is expressly made subject to the State power
of social reforms in Clause (2). The parameters of this power are defined by the
expression 'secular' in sub-clause (a) to Clause (2). Secular means mundane,
temporal, non-spiritual.2 ' The objective of the framers was voiced by Ambedkar
in these words:
"After all, what are we having this liberty for? We are having this
liberty in order to reform our social system, which is so full of inequalities,
discriminations and other things, which conflict with our fundamental
rights."22
Article 44 of the Constitution enjoins on the State to try to secure for the
citizens a uniform civil code. The Constitution vests the Parliament and the State
legislatures with legislative power on 'all matters in respect of which parties in
judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law', including, inter alia, matters like
'marriage and divorce, infants and minors; adoption, wills, intestacy and
succession; joint family and partition' (Item 5, List III, Schedule VII of the
Constitution). Besides this legislative potency, there are express manifestations
in our Constitution of the judicial power of interpretation, reconstruction and
recreation of laws, customs and usages in order to adopt, enact and give unto
ourselves the spirit of the Constitution in our perennial life.

21. See, V.P. Bharatiya, Religious Freedom and Personal Laws in Madhav Menon (Ed.) National
Convention on Uniform Civil Code for all Indians, Bar Council of India Trust, New Delhi
1986 at p.65.
22. Constituent Assembly Debates, (CAD), Vol. VIII at p. 781.
 II] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 39
It is dubiously claimed that codification amounts to encroachment on
religion. In one view, 'In the Islamic system the authority to enact laws primarily
belongs to God and He alone has the supreme legislative power...' Thus,
according to the Muslim conception of law, there is no legislative power in the
State. Since the codification is the systematic arrangement of laws the power of
codification remains outside the jurisdiction of the State.23
In 1964, when the 26 Session of the International Congress of Orientalists
was held in New Delhi, a symposium on "Changes in Muslim Personal Law"
was also held, in which eminent jurists and Uleina took part. Although some of
the participants of the symposium felt the need of certain minor changes, yet the
agency to implement such changes could not be decided. Mr M.C. Chagla, who
was in the chair, strongly argued "that public opinion and the Parliament of a
secular State were competent to make changes in all laws of a secular nature"24,
but the other view was equally strong that "a body of representative Ulema who
were not under the influence of the Government should be asked to propose any
changes that were necessary". 25 However, even before the inception of the
Constitution of free India, the following laws enacted by the British Government
of India had already modified, altered and affected the traditional Muslim legal
system: The Indian Penal Code, the Criminal Procedure Code, the Indian
Evidence Act, the Indian Contract Act, the Usury Laws Repeal Act, the Usurious
Loans Act, the Freedom of Religion Act, the Mussulman Wakf Validating Act,
1913 and 1930, the Cutchi Memons Act, 1920 and 1942, the Wakf Act,
1923,
the Child Marriage Restraint Act, 1929, Muslim Personal Law (Shariat)
Application Act, 1937, Dissolutiun of Muslim Marriages Act, 1939, Jammu and
Kashmir State Muslim Dower Act, 1920, besides some State laws for
registration of Muslim marriages. And after the Constitution came into force the
Criminal Procedure Code (Amendment) Act, 1973 (Sections 125-128), and the
Muslim Women (Protection of Rights on Divorce) Act, 1986. The latter Act was
a sequel to the famous Supreme Court verdict in Shah Bano case.26 One is
reminded of the Mussulman Wakf Validating Act, 1913 passed to override the
Privy Council decision in Adul Fata Mahomed Ishak v. Russomoy Dhur
Chowdry.27 In Bhau Ram v. Baijnath28 also the Supreme Court had discarded the
orthodox law on pre-emption on the ground of vicinage as unconstitutional.

23. Aquil Ahmad, Text Book of Mohammedan Law (Central Law Agency, Allahabad 1982) at p.
24.
24. Daily Bulletin, XXVI Session of the International Congress of Orientalists, 9th January 1964,
(New Delhi) at p. II.
25. Daily Bulletin, XXVI Session of the International Congress of Orientalists, 9th January 1964,
(New Delhi) at p. II.
26. Mo/id. Ahmed Khan v. Shah Bano, (1985) 2 SCC 556: 1985 SCC (Cr1)
245: AIR 1985 SC 945.
27. 22 IA 76(1894-95).
28. AIR 1962 SC 1476.
40 MUSLIM LAW [CHAP.

In his pioneering research work Family Law Reform in the Muslim World,
Tahir Mahmood enumerates the countries; these are Turkey, Albania, Tanzania,
Zanjibar, Kenya, Philippines and Soviet Union. Those which have reformed it
are Turkey under Ottoman Empire, Lebanon, Egypt, Sudan, Jordan, Syria,
Tunisia, Morocco, Algeria, Iraq, Iran, Pakistan, Brunei, Malaysia and Indonesia
(countries with Muslim majority), Cyprus, Israel, Singapore, Ceylon and India.29
In the face of these facts, how does the Ulema rationalise its antipathy to
reforms through legislation? The All India Muslim Personal Law Convention
held in Bombay in December 1972 passed a resolution stating that while a
wholly or predominantly Muslim legislature of an Islamic country was
competent under the Islamic legislative principle of consensus (Ijma) to adopt
the traditional Shariah to the changed social conditions by the method of
legislation, similar exercise by the legislature of a non-Muslim country like India
was antithetic to the Islamic concept of immutable Muslim Law.30
The Shah Bano25 decision restirred public opinion against the apathy of the
Sharich to mitigate the plight of the Muslim women. During the debate in the
Lok Sabha on the debatable reformative measure—the Muslim Women
(Protection of Rights on Divorce) Bill (now Act of 1986) the Law Minister
reiterated the promise envisaged in the Constitution to promulgate a uniforth
civil code, with the innovative suggestion that it would be optional now. Even
the time-tested hollowness of this promise spurred the vociferous leaders of
Muslim fundamentalists like Shahabuddin (MP) to assert that a uniform civil
code would be counterproductive at this stage, instead of accelerating the process
of the national integration, would work as a divisive force. In public debate the
idea of codification is often confused with the idea of change in the Shariat, there
is a fear among Muslims that it would be unsafe to leave such codification to
Parliament, which has a non-Muslim majority. According to him therefore the
Muslim Law should be codified by Muslim jurists and Ulema to prevent
"arbitrary interpretation" and bring about uniformity in the application of laws.
Maulana Syed Abdul Hasan Ali Nadvi, President of the 'All India Muslim
Personal Law Board' was also of the view that Islamic Law applied to Indian
Muslims should remain unadulterated by extraneous laws and, legal concepts.
Bohra reformist Ali Asghar Engineer finds that the general feeling among
Muslims is that a common civil code is synonymous with a Hindu code,
especially when the demand comes from communal Hindus. There is no need for
a common civil code, what is important, according to him, is justice to women.
Tahir Mahmood feels that the high degree of consciousness currently prevailing

ILl (1972) at pp. 3-8.

29. Tahir Mahmood, Family Law Reform in the Muslim World,
8-4-1973, and also Tahir Mahmood, Common Civil Code, Personal Laws
30. See, Dharmayug,
Mohammad Imam (Ed.), ILl (1972) at p.
and Religious Minorities in Minorities and the Law,
468 et. seq.
 II] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 41

among Muslims can be exploited to make them accept the idea of codification of
their personal law. He warns, however, that the Muslim community would want
an assurance that codification will not mean abolition of its personal law. The
scope of the Muslim Law is at present diverse and varies from region to region.
Therefore the first need was to apply it all over the country on a uniform basis,
the next step was to codify all that was best in the various schools of the Shariat
and draw up a uniform Muslim code. Towards that end the Ulerna entrusted the
Muslim Personal Law Board the task of 'codifying' Muslim Personal Law. An
Islamic scholar Mufti Fasil-ul-Rehman lila Osmani prepared such a code in
1989 in the form of a book Islamic Qanoon. 'Codification' in its legal sense
would be a misnomer here, for the object of the work is to compile Islamic
viewpoint on the basis of jurisprudence and Sunnah on marriage, divorce and
inheritance, and 'present Islamic tenets and laws in their true perspective'. The
explanations of Islamic legal terms and concepts are expected to help the courts
in correctly applying Muslim Personal Law.3'
The Shah Bano25 debate inspired the Bar Council of India Trust also to think
that non-government professional institutions had a useful role to play in
educating public opinion and mobilising social action for social reform and
solidarity. This realisation persuaded the Bar Council of India to venture a
national convention on uniform civil code through which it could present to the
nation a draft proposal for legislation for wider discussion and debate. The
convention was held in New Delhi in October 1986.32 A large number of learned
jurists discussed various personal laws of all major communities in India and
pointed out the areas where there was need for reforms. Thus customary or
statutory rules governing marriage, judicial separation, divorce, dower,
maintenance of destitute relations, adoptions, guardianship, inheritance,
succession were analysed and drawbacks, comparative merits and demerits were
weighed and suggestions for improvements made keeping in view the
contemporary social values of common appeal. However, as experience could
foretell, the boat floundered on the rock of fundamentalism. As one social
worker of great emine,ce has remarked 'the academic debate on the uniform
civil code is more a debate on the Muslim Personal Law. It is hardly a debate
from the secular point of view and therefore, not a debate on uniform civil code.
Changes in the family law are accepted or rejected in terms of what is posited or
seen to be posited in the Muslim Personal Law'. 33 From uniform civil code the
penultimate discussion wheeled to compulsory versus optional common civil
code. In the face of stout and loud resistance by Tahir Mahmood, Justice Beg

31. See, the Indian Evpress, 17-5-1985 and 29-6-1986

(New Delhi Ed.).
32. The Working Papers, Legislative Proposals, Draft Code and Explanatory Notes have been
published by the BC! under the title 'National Convention on Uniform Civil Code for All
Indians' under the editorship of N.R. Madhava Menon.
33. Vasudha Dhgamwar, Towards Uniform Civil Code, Ibid, at
p. 29.
42 MUSLIM LAW [CHAP

and other Muslim participants, the element of 'compulsory' common civil code
had to be deferred to more appropriate time in future and the alternative of
optional code to be preferred .34
6. Who is a Muslim
If Muslim Law is to be applied to a Muslim, the natural question that arises
is: who is a Muslim? There is a lot of difference between the viewpoint of law
courts and theologians.
Among theologians themselves, there are three different views on the
subject:
(i) a Muslim is one who believes in the Prophethood of Muhammad;
(ii) everyone who believes in Kalima, that is, there is no God but God and
Prophet Muhammad is His Messenger, is a Muslim; and
a Muslim is one who believes not only in the above two but also
conforms to certain other standards, for example, he believes in the
following fivefold classification of human actions, namely—
(a) Farz, acts the omission of which is punished and the doing of
which is rewarded;
(b) Mustahab, acts the doing of which is rewarded but the omission of
which is not punished;
(c) Jaiz or Mubah, acts the doing of which is simply permitted and
which carry neither reward nor punishment;
(d) Makruh, acts which are disapproved but are largely valid; and
(e) Haram, acts which are strictly prohibited and punishable.
The courts of law, however, never ventured to enter into this essentially
theological controversy. Their attitude is simple:
"Every person who believes in the unity of God and the mission of
Muhammad as a Prophet is a Mussulman to whatever sect he may belong."35
This simple definition of a Muslim has been propounded by Justice Arneer
Ali in his book on Muslim Law first ard since then it has been invariably
followed by different High Courts, as we will see below.
The question before the Madras High Court in Naraniakath v. ParakkaP6
whether Ahmadiyas, the followers of Ghulam Ahmad of Qadiyan were Muslims
or not. The Court cited a passage from the writings of Ghulam Ahmad in which
he says:

see, V.P. Bharatiya, Reigion—State

34. For the social reform power of the State in the allied field,
Relationship and Constitutional Rights in India (Deep & Deep, New Delhi 1987) at Ch. 6.
35. Jiwan Khan v. Habibi, AIR 1933 Lah 759, Held: Shias are Muslims.
36. AIR 1923 Mad 171.
n] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 43

"We are Muslims by the grace of God: Mustafa, the Holy Prophet of
Arabia, is our leader and guide. The wine of our spiritual knowledge is from
the cup of the Book of God which is called Koran: Every Prophethood has
found its culmination in that Messenger of God whose name is Muhammad.
The revelation and inspiration that we receive have not been granted us
independently, but it is through him that we have received this gift."
Moreover, the form to be signed at the time of initiation into Ahmadiya sect
runs as follows:
"I bear witness that there is no God but Allah. He is one, having no
partner, and Muhammad is the Servant and Messenger of God."
All this seems to involve a plenary acceptance of Muslim faith. If it is
alleged that Ahmadiyas add or subtract something from the pristine pure
principles of Muslim faith, no authority exists to show which doctrines of Islam
are regarded as fundamental or the extent to which additions to them, deviations
from them or inconsistencies with them are permitted.
Keeping these facts in view, the Madras High Court observed:
"Private judgment and analogical deduction are, in appropriate
circumstances and to a greater or less extent, legitimate methods of
ascertaining the law as recognised in the textbooks, and we have not been
shown how they are not also legitimate in theology, so long as fundamental
principles are maintained."
Justice Krishnan seconded his brother Judge Oldfield, and in a separate
judgment cited with approval the following passage from Ameer Ali's book:
"Any person who professes the religion of Islam, in other words, accepts
the unity of God and the prophetic character of Mahomed is a Moslem
subject and is subject to the Mussulman Law. So long as the individual
pronounces the Kalma of Tavhid, the Credo of Islam, it is not necessary for
him or her to observe any of the rites and ceremonies or to believe in
particular doctrines, which imply Iman or belief.1137
To the same effect are the opinions of Abdur Rahim in his Mahomedan
Jurisprudence (p. 249) and of Justice Mah.mood in Queen Empress v. Ramzan38.
In a recent case of Shihabuddin v. K. P. Ahammed39, it has once again been
contended that Qadiyanis or Ahmadiyas are not Muslims. In a learned judgment
delivered by Justice V.R. Krishna Iyer it was held that-
"Ahmad claimed to be a Prophet, not a plenary one but secondary to the
holy Prophet and did accept Muhammad as Messenger of God.. .Looking at

37. Ameer Au, ii at p. 36.

38. ILR(1885)7 All 461.
39. AIR 1971 Ker 206.
 MUSLIM LAW [CHAP.
44
the issue devoid of sentiment and passion and in the cold light of the law, I
have no hesitation to hold that the Ahmadiya sect is of Islam and not alien."
To the argument that many Muslims in Malabar regard Ahmadiyas as non-
Muslims, he answered:
"Islam is an international religion, as it were, and is not confined to
Malabar or India... It would be extraordinary if on a narrow view of what
people in one region think a sect were to be excommunicated, thus leading
to the grotesque sequel of a person being un-Islam in Malabar but devout
Mussulman in Pakistan and in other countries. Consensus in this context
must, therefore, mean a broad unanimity in the Islamic world as it were.
That obviously has not been attempted or achieved by way of proof in this
case."40
Justice Iyer cited with approval a passage from Mulla's book to the effect
that a person born a Muslim remains a Muslim until he renounces Islam. The
mere adoption of some Hindu form of worship, however, does not amount to
such a renunciation. For one to be a Muslim it is not necessary that he should be
an orthodox believer in that religion; it is sufficient if he professes Islam in the
sense that he accepts the unity of God and the prophetic character of
Muhammad.
The same view has been taken in cases decided in Pakistan.41
We may sum up the present position in India as follows:
According to Shariah a child born of parents, either of whom is or both of
whom are Muslims, is presumed to be a Muslim. In India, however, a child born
of a Muslim father is presumed to be a Muslim but not a child of a Muslim
mother and non-Muslim father, as was held by the Privy Council in Skinner v.
Orde, (1871) and by the Oudh High Court in Mohd. Azim Khan v. Saadat Au,
(1931).
A Muslim remains a Muslim unless he renounces Islam.
A non-Muslim may embrace Islam and become a Muslim by conversion. It
is not necessary to go into the motives of the convert, 42 because there is no test
or gauge to determine the sincerity of religious belief. 43 As to the question
whether observance of any particular ceremony is essential before conversion
may be said to be effected, the Privy Council avoided to make a definite reply. It
simply said: "Their Lordships do not think it necessary to determine whether the
performance of any ceremony is essential before a convert can be said to have

40. Ibid,atp.209.
Maula Saks/i v. Charul, PLD 1952
41. Sec Atia Waris v. Sultan Ahmad Khan, PLD 1959 Lah 205;
Sind 54 etc.
42. See, Resham Bibi v. Khuda Bakhsh, AIR 1938 Lah 482.
666, and Ameer Au, ii at p.22.
43. Abdool Razack v. Aga Mohd., (1893)21 IA 56:21 Cal
II] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 45

embraced the Moslem faith"fr' But in the words of T ord MacNaghten in Abdool
Razack v. Aga Mohd.45 , formal profession of Islam is enough, unless it could be
shown to be colourful and fraudulent or the whole of the convert's conduct and
the evidence of surrounding facts is such as to run counter to the presumpti 'n of
conversion to Islam.46
7. Categories of Muslims and applicability of Muslim Law
Muslims in India can be divided into three categories:7
(i) The ordinary Muslims to whom the whole body of Muslim Law
applies.
(ii) Muslims who are not subject to Muslim Law in all respects, but who
are governed by custom in certain matters. These are, for example, the
Khojas, the Sunni Bohras of Gujarat and Molesalam Girasias of
Broach. These communities preserve to some extent their own
customary laws.
(iii) The amphibious communities which are not wholly Muslims. These
are, for example, the Satpanthis and Pirpanthis of Gujarat, Kutch and
Khandesh, who follow the Atharva Veda and worship tombs of
Muslim saints in Pirana; observe Ramadhan, repeat the Kalima and
bury their dead both with Hindu and Muslim prayers. Their religious
status, on which depends the question of applicability of Muslim Law
on them, is likely to raise some very difficult questions of law.
Subject to the above conditions, Muslim Law applies uniformally over all
Muslims in India.
8. Rules of interpretation

General rules.—Majority of Muslims in India are Hanafis. The courts

presume every Muslim to be a Hanafi unless otherwise contended. 48 Now, the
question is: whether a Hanafi may adopt certain rules from any of the other three
Sunni Schools, namely, Maliki, Shafli or Hanbali? Abdur Rahim thinks that it is
not open to anyone on his own to choose one and to reject the other from the
principles of different schools. "So far as a layman, that is, one who has not
made a study of law and religion is concerned, his duty is to follow the guidance
of the learned, and it will be sufficient if he consults and acts upon the opinion of
the man most noted for his religious learning that may be available to him, and,

44. Mahbub Singh v. Abdul Aziz, AIR 1939 PC 8.

45. (1893) 21 IA 56: 21 cal 666.
46. Fyzee, citing Tyabji and Wilson, at p. 64.
47. This is largely based on Fyzee at pp. 64-67.
48. See, Bafatun V. Bila iii Khanum, (1903)30 cal 683; Khamarunnissa v. Fazal Hussain, (1997) I
ALT 152.
46 MUSLIM LAW [CHAP.

according to the Malikis and the Shias and the earlier Hanafi jurists, even if the
person whom he consults happens to belong to a School of theology other than
his own."49
From this, Fyzee infers that the equality among various schools is so firmly
established "that it is open to a follower of one school to adopt on a particular
point of law the interpretation by the jurists of any other Sunnite school in
preference to that of his own. 50 He supports his contention by saying that the
great scholar Shibli Numani, though a Hanafi, adopted the Shafli School for a
short while during a voyage to Europe.51
According to Abdur Rahim, a Hanafi Kazi may decide a case according to
the Shafli law. But this liberty is not open to the present day law courts and law
officers. Fyzee disapproves of it and characterises it as "a narrow outlook". It is
submitted, however, that the present position is best suited to the times. The
institution of Kazis is no more and an arbitrary selection of principles by law
courts from various schools would create much uncertainty in the law.
Interpretation of Koran.—Aga Mahomed v. Kooisom Bee Bee, (1897) is
the leading case on this point, in which the Privy Council observed that the
interpretation of a passage of Koran as attempted by Mr Justice Ameer Ali could
not be accepted if it comes in clash with the recognised textual authorities on
Muslim Law. It was observed:
"(Their Lordships) do not (think it proper) to speculate on tne mode in
which the text quoted from the Koran, which is to be found in Sura II, VV.
241-2, is to be reconciled with the law as laid down in the Hedaya and by
the author of the passage quoted from Baillie's Imameea .... It would be
wrong for the Court on a point of this kind (the right of widow to inherit) to
attempt to put their own construction on the Koran in opposition to the
express ruling of commentators such great antiquity (as the Hedaya and the
Fatawa-i-Alamgiri)."
The courts cannot refuse to administer any established principle of law
simply because it may not sound quite modern. 52 The Koran has amply been
commented upon by eminent scholars for fourteen centuries, and authoritative
commentaries are available for consultations.
Interpretation of Hadith and ancient texts.—The question before the
Privy Council in Baker Ali Khan v. Anjuman Ara53, was whether a Shia Muslim
can create a wakf by will. While answering this question in the affirmative the

49. Abdur Rahim, at pp. 172-173, citing Mukhtasar, ii at p.309.

50. Fyzee, at p. 78.
51. Fyzee, citing Sayyid Sulayman, Ilaya:-i-Shibli, 287 (Azamgarh 1943) at p. 78.
52. See, Veerankutty v. Kuui Umma, 1956 Mad 1004.
53. (1903)301A94.
 MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 47
U]

Privy Council examined the decision of Mahmood, J., in which that great Judge
had taken a contrary view, and observed:
"There are ... special difficulties in accepting the inference drawn by
Mahmood, J., from the definition and conditions of a wakf as laid down in
the ancient Shia texts. The more important of those texts have long been
accessible to all lawyers. In none of them does the author himself draw the,
conclusion that the creation of a wakf by will is excluded. Nor has that
conclusion been drawn by any modern writers who have collected and
translated those texts."
From this and other similar arguments the Privy Council deduced a general
principle of the interpretation of Had ith and ancient texts, and said:
"In Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdry, (1894), in
the judgment of this Committee delivered by Lord Hobhouse, the danger
was pointed out of relying on ancient texts of the Muhammadan Law, and
even precepts of the Prophet himself, of taking them literally, and deducing
from them new rules of law, especially when those proposed rules do not
conduce to substantial justice. That danger is equally great whether reliance
be placed on fresh texts newly brought to light, or on fresh logical inferences
newly drawn from, old and undisputed texts. Their Lordships think it would
be extremely dangerous to accept as a general principle that new rules of law
are to be introduced because they seem to lawyers of the present day to
follow logically from ancient texts however authoritative, when the ancient
doctors of the law have not themselves drawn those conclusions."
The above rule laid down by the Privy Council is well and good, but the
Council itself once departed from this principle, and Fyzee points out this
departure with a bit of sarcasm:
were void,
"...In Abul Fata v. Russomoy, by holding that family wakfs
their Lordships departed from the principles of the Muhammadan Law of
wakf, and
wakf, misapplied a rule of English law to the Muslim institution of
overruled a long line of Muslim jurists, both modem like Mr Justice Ameer
Ali and ancient, too numerous to mention. Poetic justice was, however, done
when they themselves were overruled by an Act of the Indian Legislature"
(the Mussulman Wakf Validating Act, 1913).
Seen in this context, the observation of Mr Justice Chagla in Ashrafalli v.
Mahoni.edalli55 that "Muslim texts should be so applied as to suit modern
circumstances and conditions", is open to serious doubts. The courts are bound
to rely on the interpretation put by recognised jurists and in the case of conflict,
on their comparative authority.56

54. Fyzee, at p. 82.

55. AIR 1947 Born 122:(1945) 48 Born LR 642.
56. See, Aziz Banu v. Mohd. Ibrahim Husain, AIR 1925 All 720.
 48 MUSLIM LAW [CHAP

Comparative authority of Hanafi jurists.—There are occasions when on a

particular question of law, the three leading exponents of the Hanafi Law,
namely, Imam Abu Hanifa and his two disciples Abu Yusuf and Imam
Muhammad, may differ. In those disputed cases, the following rules of
interpretation have to be followed:
(i) In Abdul Kadir v. SaIima57, it was held by Mahmood, J., that where
Abu Hanifa and his two disciples differ, the opinion of the disciples
prevails.
(ii) In the same case it was held that where there is a difference between
Abu Hanifa and Imam Muhammad, that opinion has to be accepted
which coincides with the opinion of Abu Yusuf.
(iii) When the two disciples differ from each other and from their master,
the authority of Abu Yusuf is generally preferred. Because, in the
view of Mahmood, J., the opinion of Abu Yusuf, who held a high
judicial office, should be given due weight as the other two (Imam
Muhammad and Abu Hanifa) never took part in the actual
administration ofjusrice.
The above rules of interpretation are not inflexible. Delivering the judgment
in Anis Begam v. Mohd. Istafa 58, Sir Shah Sulaiman, C.J., struck a note of
caution in the following words:
"If one finds a question well threshed out and in later centuries a
particular interpretation adopted by the leading doctors and textbook writers,
it would not be proper for us in the twentieth century to go behind such a
consensus of opinion, and decide a point contrary to such opinion, on the
ground that the majority of the three Imains favoured that view in the earlier
centuries... Rules of preference were for the guidance of ancient jurists, and
they are of no help when there is a clear preponderance of authority in
support of one view... But if in any case the later doctors have not adopted in
clear language any one of the conflicting opinions without expressing any
preference for either, then it is implied that the conflict of opinion was still
continuing without any general concurrence having been attained, and it
would then be open to choose whichever of the opinions appears to be the
sounder and better adopted to the conditions and needs of the times."
From the above it follows that in case of a disputed question of opinion and
in the absence of any specific rule of interpretation to be followed, the Court is
competent to arrive at its own conclusion and to choose any opinion, subject to
the principles ofjustice, equity and good conscience.

57. ILR(1886)8 All 149.

58. ILR 1933 All 743.
 ii] MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA 49

9. Islamic Courts

The All India Muslim Personal Law Board has decided to establish Islamic
courts in all States of the country and to set up mobile Islamic courts for rural
areas. This decision was taken by the said Board at its meeting at Jaipur in
October 1993. According to Maulana S. Nizamuddin, General Secretary of the
Board, it was expected that all Muslims would refer their disputes in family
matters to these courts and abide by their decisions. Founder member of the
Board Mojahidul Islam Qasmi, who is also the General Secretary of the All India
Milli Council said that the need for re-establishing Islamic courts was being felt
for a long time because of the long process the judicial system involved. The
courts were functioning since 1921 in States like Bihar and Orissa and in some
cities also like Hyderabad, Bangalore, Nasik, Belgaum and Lucknow. Some
members of the Board felt that the announcement of setting up the chain of
Islamic courts should be viewed in the context of the 'threats' which members of
the minority community 'perceive' in the Government attempts 'to interfere' in
the Muslim Personal Law, and Shariat. The Board's decision was also viewed in
the same context as a reply to the demand by certain political parties for a
uniform civil code.
These Islamic courts or "darulkhaja" would be governed by the Muslim
Personal Law and Shariat and will make any attempts by anyone to impinge on
the personal law at a later stage virtually impossible. These courts will also
ensure speedier and cheaper justice.
The Board has also disapproved the offer of the Prime Minister to pay salary
of the Imams of the mosques if the Wakf Boards' financial position does not
allow them to do so. The offer of the Prime Minister was a sequel to the decision
of the Supreme Court in the All India Imams' case (infra) fixing the
responsibility on the Wakf Boards to pay living wages to the Imams. The
Personal Law Board's General Secretary Nizamuddin opined that the Board
viewed that it was below the dignity of the Imams to become paid servants of the
Government which in consequence may bring the mosques under government
control, which was totally unacceptable. The community should itself bear the
responsibility to maintan their Imams respectably. The Imams present in the
open session of the Board themselves voted against the Government's offer. A
few members thought the task of meeting the expenses of the salaries of a few
lakh Imams running into crores of rupees would prove Herculean for the
impoverished Wakf Boards.59
The All India Congress Committee Minority Cell Chairman Tariq Anwar
considers the proposed move to establish Islamic courts as a retroga ry step
which would take the community backward alienating it further from social

59. The Indian Express, (New Delhi), 11-10-1993.

50 MUSLIM LAW

mainstream. Even in Islamic countries there is no separate judiciary. The

Communist Party of India leader Farooqui also thinks that there is no scope for
parallel judicial system of separate religious courts. But Mohammed Yunus
Saleem, a Janata Dal Member of Parliament and an ex-Governor of Bihar saw
nothing startling about the Board's proposal. The General Secretary of the
Muslim Majlis Mushawrat Ahmad Ali Qasimi said that the cause for the
controversy is the use of the English word 'court'. The motion proposed to
establish Shariai Adalaten which are like panchayats. Their decisions are not
final and one may go to the regular courts. Such panchayats are popular in Bihar,
he said.6°

60. Ibid, 2-I0-I993.

 III

Marriage
(Nikab)

1. Pre-Islamic background
The relationship of sexes in pre-Islamic Arabia was in an uncertain state.
Regular form of marriage in the sense as we understand today was very rare.
Instead, there flourished such types of sexual unions which may only be branded
as -prostitution, adultery or polyandry. Abdur Rahim lists the following types of
"marriage" (if they may be so-called) prevalent in those days:
(i) A custom according to which a man would say to his wife: "Send for
so and so (naming a famous man) and have intercourse with him." The
husband would then keep away from her society until she had
conceived by the man indicated, but after her pregnancy became
apparent, he would return to her. This originated from a desire to
secure noble offspring.
(ii) Several men, less than ten, used to go to a woman and have sexual
connection with her. If she conceived and was delivered of a child, she
would send for them, and they would be all bound to come. When they
came and assembled, the woman would address them saying: "You
know what has happened. I have now brought forth a child. 0 so and
so! (naming whomsoever of them she chose), this is your son." The
child would then be ascribed to him and he was not allowed to
disclaim its paternity.
(iii) Several men used to visit a woman who would not refuse any visitor.
These women were prostitutes and used to fix at the doors of their
tents a flag as a sign of their calling. If a woman of this class
conceived or brought forth a child, the men that frequented her house
would be assembled, and physionomists used to decide to whom the
child belonged.
In the latter two types of "marriage", what differentiates them from ordinary
prostitution is the emphasis placed on establishing the paternity of the child born
out of such loose sexual unions. Today, no prostitute could legally or
52 MUSLIM LAW [CHAP.

customarily establish the paternity of her child in any person, more so if the
person happens to disclaim the paternity.
In addition to these, some other corrupt forms oLmarriages were:
(1) A man would purchase a girl from her parents or guardian for fixed
SUM.

(2) Muta (temporary) marriages were widely prevalent, so much so that in

the beginning of Islam, even the Prophet tolerated them as a matter of
policy but later on he prohibited them.
(3) A pre-Islamic Arab was allowed to marry two real sisters at one and
the same time.
Islam reformed these old marriage laws in a sweeping and far-reaching way.
In Sura IV of the Koran, some of the regulations regarding marriage are laid
down. The relevant passages are:
"Marry not the woman whom your father has or had married, for this is
shameful and abominable and evil way."
"Forbidden to you are your mothers, your daughters, your sisters, your
aunts, paternal and maternal, the daughters of your brother and sister, your
foster-mother and foster-sisters, the mother of your wives and the step-
daughters who are in your care, born (of) your wives, with whom ye have had
intercourse—but if ye have not had intercourse with them, it is not a sin for
you—and the wives of the sons, who are your offspring, also ye marry two
sisters at the same time, except what is already past; Allah is gracious and
merciful."
Prophet Muhammad abrogated those various forms of marriage except the
one in which a dower was paid and the man asked the parents of the woman for
her hand. The Prophet declared that dower was due to the woman, and is symbol
of respect of husband towards his wife. The consent of woman in marriage was
made essential. The wife was made a sharer in the inheritance. In short, she was
not to be treated henceforth as a chattel.
2. Definitions of marriage
Let us first examine some of the various definitions of a Muslim marriage
and then to see which of them is most suitable:
HEDAYA: "Nikah in its primitive sense, means carnal conjunction.
Some have said that it signifies conjunction generally. In
the language of the law it implies a particular contract used
for the purpose of legalising generation."t

I. Hedaya,atp25.

III] MARRIAGE (NIKAH) 53

AMEER AL!: "Marriage is an institution ordained for the protection of

society, and in order that human beings may guard
themselves from foulness and unchastity.112
JUSTICE "Marriage among Muhammadans is not a sacrament, but
MAHMOOD: purely a civil contract."
M.U.S. JUNG: "Marriage though essentially a contract is also a devotional
act, its objects are the right of enjoyment, procreation of
children and the regulation of social life in the interest of
the society."4
ABDUR RAHIM: "The Muhammadan jurists regard the institution of
marriage as partaking both of the nature of ibadat or
devotional acts and muamlat or dealings among men."5
1.
Among all the above definitions, Abdur Rahim's definition is the most
balanced one. By using the two ingenious words ibadat and muamlat, he has
summarised the whole concept of Muslim marriage in one sentence. Let us
approve of this definition, and proceed to see why Muslim marriage is not purely
a civil contract, as Mahmood, J., emphasised, or as to why it is not solely a way
to procreate children.
3. Nature of Muslim marriage

The judgment in Abdul Kadir v. Salima6, is one of those classic

pronouncemçnts of the illustrious Mr Justice Mahmood, the first Indian Judge of
the Allahabad High Court, which has acquired so great a reputation that its obiter
dicta carries the legal sanctity of ratio decidendi. The case is one on the
restitution of conjugal rights, yet Justice Mahmood's observations on-
(i) nature of marriage,
(ii) husband's liability to pay dower,
(iii) matrimonial rights of the husband and wife, and
(iv) general rules of interpreting Hanafi Law,
have won universal recognition not only of various High Courts but also of the
Privy Council and the Supreme Court.
Describing the nature of Muslim marriage, Mahmood, J., says:
"Marriage among Muhammadans is not a sacrament, but purely a civil
contract; and though it is solemnised generally with recitation of certain
verse from the Koran, yet the Muhammadan Law does not positively

2.meer Au, Mohammedan Law (Students 7th Edn.) at p. 97.

3. Abdul Kadir v. Salitna (1886)8 All 149 at p. 154.
4. Jung, Dissertation at p. I.
5. Abdur Rahim, at p. 327.
6. 1Wl886)8 All 149.
54 MUSLIM LAW [CHAP.

prescribe any service peculiar to the occasion. That it is a civil contract is

manifest from the various ways and circumstances in and under which
marriages are contracted or presumed to have been contracted. And though a
civil contract, it is not positively prescribed to be reduced to writing, but the
validity and operation of the whole are made to depend upon the declaration
or proposal of the one, and the acceptance or consent of the other of the
contracting parties, or of their natural and legal guardians before competent
and sufficient witnesses; as also upon the restrictions imposed, and certain of
the conditions required to be abided by according to the peculiarity of the case.
That (the above) is an accurate summary of the Muhammadan Law is
shown by the best authorities, and Mr Baillie, at page 4 of his Digest, relying
upon the texts of the Kanz, the Kjfayah and the Inayah, has well summarised
the law; Marriage is a contract which has for its design or object the right of
enjoyment and the procreation of children. But it was also instituted for the
solace of life, and is one of the prime or original necessities of man. It is
therefore lawful in extreme old age after hope of offspring has ceased, and
even in the last or death illness. The pillars of marriage, as of other contracts,
are Ejab-o-Kubool, or declaration and acceptance. The first speech, from
whichever side it may proceed, is the declaration, and the other the
acceptance."
The Hedaya lays down the same rule as to the constitution of the
marriage contract, and Mr Hamilton has rightly translated the original text:
"Marriage is contracted—that is to say, is effected and legally confirmed—
by means of declaration and consent, both expressed in the preterite.""
From the above, Justice Mahmood could not be held to have taken the view
that Muslim marriage is nothing but purely a civil contract. Yet this is precisely
what he is accused of holding. When he approves of Baillie's view that marriage
is also for the solace of life, he is himself highlighting another aspect of
marriage, that is, its social aspect.
The amount of dower which becomes payable after marriage must not be
confused with consideration in the context of civil contract. Justice Mahmood
himself is sounding a note of caution when he says in the same decision:
"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.. .the dower of the Muhammadar Law bears a
strong reser'ibiance to the denatio propter nuptias of the Romans which has
subsisted in the English law under the name of marriage settlement. In this
serse and in no other ca,, dower under the Muhammadan Law be regarded
as the consideration for the connubial intercourse, and if the authors of the
Arabic textbooks of Muhammadan Law have compared it to price in the
contract of sale, it is simply because marriage is a civil contract under that
law, and the sale is the typical contract which Muhammadan jurists are
iii] MARRIAGE (NIKAH) 55

accustomed to refer to in illustrating the incidents of other contracts by

analogy."
From what Justice Mahmood has said up to this point, he can only be
accused of neglecting the religious aspect of marriage.
Seen from the religious angle, Muslim marriage is an ibadat (devotional
act). The Prophet is reported to have said that marriage is essential for every
physically fit Muslim who could afford it.. Moreover, the following traditions
may also be considered:
"He who marries completes half his religion; it now rests with him to
complete the other half by leading virtuous life in constant fear of God."
"There is no mockery in Islam."
"There are three persons whom the Almighty Himself has undertaken to
help—first, he who seeks to buy his freedom; second, he who marries with a
view to secure his chastity; and third, he who fights in the cause of God."
"...whoever marries a woman in order that he may retain his eyes—God
putteth a blessedness in her for him, and in him for her."
The Prophet is reported by some of the writers to say that marriage is equal
tojehad (holy war); it is sinful not to contract a marriage; it is a Sunnah; and it is
obligatory on those who are physically fit.
Now, if marriage is nothing but a civil contract, then keeping in view the
above traditions we could say: He who enters into a civil contract completes half
of his religion; the Almighty Himself has undertaken to help the person who
enters into a civil contract; civil contract is equal to jehad; it is obligatory on
every physically fit Muslim to enter into a civil contract; and so on. All these
inferences 'are patent absurdities, and are untenable. Which means Muslim
marriage is something more than a civil contract.
Seen in this context, Muslim marriage ceases to look as purely a civil
contract or a means only to procreate children. In the words of Baillie, marriage
is "for the solace of life... It is therefore lawful in extreme old age after hope of
offspring has ceased, and even in the last or death-illness." 7 In the words of
Ameer Ali, marriage is "for the protection of society, and in order that human
beings may guard themselves from foulness and unchastity." Al-Ghazali, the
famous jurist and philosopher, regards marriage as a means "of attaining
nearness to God".
In the famous case of Anis Begam v. Mohd. Istafa8 Sir Shah Sulaiman, C.J.,
observed: "Marriage (in Islam) is not regarded as a mere civil contract, but a
religious sacrame .1 (too)."

7. t3aiilie, at p. 1.
8. ILR 1933 All 743.
58 MUSLIM LAW {CHAP.

disagree with the sweeping observation of the learned Judge that 'Any attempt
by him to ascertain any further information or to refuse to perform the marriage
on any other ground, is prone to impinge on the rights of the parties to the
marriage and would be in excess of the powers and duties ascribed to him under
Law.' 15 Besides 'opining about the validity or otherwise of the dissolution of the
marriage brought about by the parties themselves' - as mentioned by the Court
itself16, the Kazi can keep an eye on the claims of citizenship/nationality of the
contracting parties, the hidden purpose of the marriage between a girl of Indian
citizenship and a male of foreign nationality, misuse of conversion to hoodwink
legal restrictions on marriage; he can insist on simultaneous registration of
marriage. Now the Supreme Court has held 17 that marriages of all persons who
are Indian citizens belonging to various religions should be made compulsorily
registerable in their respective States, where the marriage is solemnised. The
highest court notes with approval the view of the National Commission for
Women that compulsory registration will, inter alia, deter parents from selling
young girls to any person including a foreigner, under garb of marriage. Should a
Kazi mutely perform such marriage or report it to the State? Andhra Pradesh itself
has a law requiring compulsory registration of marriages. 18 Thus a Kazi can play
an important role by assisting the State in protecting national security. Now in
some states the Imams are receiving emoluments from Wakf Boards 19, may be the
Welfare State comes out in future with a scheme to protect the legitimate interests
of the Kazis.
There was one suggestion at the BCI convention that registration of
marriages must be made compulsory for all marriages in India. 20 Prima facie this
secular procedure does not interfere with religious rituals, if any. Like the
municipal laws requiring birth and death registration, it is a post facto civil
formality rendering evidentiary value to a tradi1onal form of marriage.
Difficulty may arise if the Shias interpret it as an extension of the Sunni
prescription of two witnesses to a marriage. Since, however the witnesses
signing before the marriage registrar would be testifying to only the factum of
registration and not at the traditional wedding, the objection would be tenuous.
The above suggestion at the Convention has now received a very strong
support by the Supreme Court of India in its decision in Seema v. Ashwani
Kwnar21 . Entries 5 and 30 in List III of the Seventh Schedule to the Constitution

15. ibid.
16. Ibid.
17. Seema v. Ashwani Ku,nar, (2006) I KLT 791 (SC).
18. Further see below.
19. See Ch. IX.
20. See, B. Sivararnayya, Marriage, Registration of Marriages and Decrees of Nullity, in Menon
(Ed.) Un(fo r,n Civil Code, op. cit., at p.91 et seq. and at p. 116.
21. (2006)1 KLT 791 (SC).
 III] MARRIAGE (NIKAH) 59

of India give concurrent power to the Union and the States to make laws on
'marriage and divorce and vital statistics' inter alia, which are subjects of
personal law. The registration of marriages would come within the ambit of the
expression 'vital statistics' in Entry 30. 'The Convention on the Elimination of
All Forms of Discrimination Against Women' adopted by the United Nations
General Assembly in 1971 had recommended compulsory registration of
marriages. India had satisfied the Convention in 1993 with some reservations.
Five States provide for compulsory registration - Maharashtra, Gujarat,
Karnataka, Himachal Pradesh and Andhra Pradesh. Further Assam, Bihar, West
Bengal, Orissa and Meghalaya - five States - provisions appear for voluntary
registration of Muslim marriages. In Uttar Pradesh also it appears that the State
Government has announced a policy providing for compulsory registration of
marriages by the Panchayats and maintenance of its records relating to births and
deaths. Under the Special Marriage Act, 1954, which applies to the Indian
citizen irrespective of their religion each marriage is registered by the Marriage
Officer specially appointed for the purpose. The registration of marriage is
compulsory under the Indian Christian Marriage Act, 1872; the marriage register
is maintained by the concerned Church. The Parsi Marriage and Divorce Act,
1936 makes registration of marriages compulsory. Section 8 of the Hindu
Marriage Act, 1955 provides for registration, which is made voluntary. In Goa,
Daman and Diu the 1911 Law of Marriages is in force, the Hindu Act is not yet
extended. The Foreign Marriage Act, 1969 also provides for registration of
marriages. The State of Jammu and Kashmir has its own Jammu & Kashmir
Hindu Marriage Act, 1980 as well as J&K Muslim Marriages Registration Act,
1981. The latter provides that post the Act Muslim marriages shall be registered
within 30 days of the Nikah. But the irony is that the Act awaits enforcement.
The State has again a separate Act for Christian Marriage and Divorce (1957);
this also provides for registration. The States of Haryana, Uttar Pradesh, West
Bengal and the Union Territories of Pondicherry and Chandigarh have framed
rules under the Hindu Marriage Act.
Although this long list of legislative efforts on paper, the ground level status
of implementation worries the National Commission for Women, which
indicated in the affidavit filed before the Supreme Court that the Commission is
of the opinion that non-registration affects most and hence it supports legislation
for compulsory registration. Such a law would be of critical importance to
various women related issues such as:
(a) Prevention of child marriages and to ensure minimum age of marriage;
(b) Prevention of marriages without the consent of the parties;
(c) Check illegal bigamy/polygamy;
(a) Enabling women to claim their right to live in the matrimonial house,
maintenance, etc.;
60 MUSLIM LAW [CHAP.

(e) Enabling widows to claim their inheritance rights and other due
benefits after the death of the husband;
(f) Deterring desertions by husbands; and
(g) Deterring sale of daughters/girls to persons and foreigners under the
garb of marriage.
The Supreme Court added further that if the record of marriage is kept,
disputes regarding solemnisation would be avoided; it would provide a strong
evidence of the factum of marriage; it has a great evidentiary value in the matters
of custody of children, right of those children, age of the parties; it would be in
the interest of the society if marriages are made compulsorily registrable.
Accordingly, the Supreme Court said, 'we are of the view that marriages of
all persons who are citizens of India belonging to various religions should be
made compulsorily registrable in their respective States where the marriage is
solemnised'.
Accordingly, the Supreme Court directed the States and the Central
Government to notify within 3 months the procedure for registration. For this
rules may be framed; before enforcing them objections may be invited from the
public. On enforcement, an authorised officer shall keep a register of marriages,
in which age, marital status shall be clearly stated. False declaration shall be
made punishable. The object of the said rules shall be to carry out the directions
of this court. The Governments shall ensure that these directions are carried out
immediately. As and when the Central Government enacts a comprehensive
statute, the same shall be placed before the Supreme Court for scrutiny.
Thus, at law, marriage is a civil contract, at religion it is not a sacramental
performance, but at social custom it is imbibed with some religious traits.
Muslims in India hail from a highly religious oriented ethnic stock and therefore
naturally they embedded some religious traits into the ceremonies of marriage.
Since the source of Muslim Law is the Koran, in one sense the law of nuptial
contract is also 'a religious law', as the Muslims like to emphasise in reference
to their 'personal law'. One of the reasons for this insistence may be to insulate
the marriage law from 'interference' by civil authority of the State.
4. Formalities of a valid marriage
Marriage may be constituted without any ceremonial; there are no special
rites, no officiants, no irksome formalities. 22 Nevertheless, following conditions
are necessaiy.
(1) Offer on the part of one party to the marriage.
(ii) Acceptance by the other party.

22. Fyzec, at p.91.Abdul Rahim v. Julaiga Beevi, (2001)4 CLT 440.

iii] MARRIAGE (NIKAH) 61

Note.—The offer and acceptance may be made by the parties, or by their agents, if both are
competent. In case of legal incompetency, like minority or unsoundness of mind, the
guardians maS' validly enter into a contract of marriage on behalf of their wards. 23 And
where the girl is a minor, her 'consent' has no value, that 'marriage' would be a nullity
and the father would be entitled to the custody of her person as her legal guardian—as
held in Shabnoor Mohammad Tahseen v. State of U.P. 24. The Allahabad High Court
held this in a writ petition by the father for her custody against the claim of Respondent
4 that as 'husband' he had the right to her custody. On the basis of a school leaving
certificate accepted as genuine by the Court, she was proved to be minor. As such she
had no right to enter into marriage contract on her own free will; she as minor could be
given in marriage only by her father Karl was in knowledge of this fact; she could not
be allowed to live with husband against mandate of Holy Koran.
(iii) Presence of two witnesses where the parties are Hanafis; no witnesses
are required if parties are Shias.
(iv) The words with which the marriage is contracted must be clear and
unambiguous.
(v) The proposal and acceptance must both be expressed in one and the
same meeting.
In certain cases where man and woman are living as husband and wife, the
question may arise whether they are presumed to be married.
According to the recognised view, if the cohabitation is continuous and
prolonged, the man and woman may be treated as husband and wife. The same
presumption will also be there in the case where the man acknowledges the
woman as his wife, or the child born of the union as legitimate.
But where impediments of a nature which render a valid marriage between
the parties as impossible, are present, no presumption of marriage may arise.
Thus, where the woman is non-Kitabiya, related to the man within the prohibited
degrees of relationship, the wife of another person, and so on, she cannot be
presumed to be the wife. In a case where a Buddhist Burmese lady cohabited
with a Muslim male for some time, the Privy Council observed that no
presumption of marriage in such a case could arise. 25 Similarly, cohabitation
with prostitute cannot give rise to the presumption of marriage.26
Thus, the essential conditions of a valid marriage may be summarised as
follows: "Ijab (offer), qubul ( acceptance). baligh (adult age or puberty), rashid
(sound mind not nw.jnum or non-compos mentis) parties—i.e. groom and bride,
or when minor their guardians, two witnesses (in Hanafi Law, not Shia Law),
and same meeting (that is at one session complete). The completion of this
contract which commences with proposal or demand in marriage and ends with
the consent is called aqd." (Ameer Ali).

23. Fyzee, at p. 91. Abdul Rahim v. Julaiga Beevi, (2001)4 CLT 440.
24. (2007) I All LI 183.
25. See, AbdoolRazackv. Aga Mohd.,(1893)2l IA 56:21 Cal 666.
26. Mohd. Amur v. VakilAhnred, 1952 SCR 1133.
62 MUSLIM LAW [CHAP.

5. Legal effects of a valid marriage

Baillie gives a description of the legal effects of marriage'', but the
systematic treatment of this point by Fyzee has been adopted here for
convenience.28 There are nine legal effects flowing from a valid marriage:
(i) Sexual intercourse becomes lawful and the children born of the union
are legitimate;
(ii) the wife becomes entitled to her dower;
the wife becomes entitled to maintenance;
(iv) the husband becomes entitled to restrain the wife's movements in a
reasonable manner;
(v) mutual rights of inheritance are established;
(vi) the prohibitions regarding marriage due to the rules of affinity come
into operation;
(vii) the wife is not entitled to remarry after the death of her husband, or
after the dissolution of her marriage, without observing iddat;
(viii) where there is an agreement between the parties, entered into either at
the time of the marriage or subsequent to it, its stipulations will be
enforced, insofar as they are consistent with the provisions or the
policy of the law; and
(ix) neither the husband nor the wife acquires any interest in the property
of the other by reason of marriage.
6. Stipulations in marriage contract
Certain ante and/or post-nuptial conditions may be appended to a marriage
contract. These conditions must be legal, reasonable and not opposed to the spirit
of Islamic Law. The parties could modify or rescind these conditions at any time
they like; it is because marriage is mainly a civil contract. In cases where illegal
and unreasonable condition is attached with a marriage contract, the condition
alone and not the marriage itself will be treated as invalid.
The following are the typical valid conditions attached with a marriage
contract:
(i) The condition agreed upon by the guardians of minors whose marriage
has been so contracted, that the wife could divorce the husband in case
he takes a second wife without her consent.29
(ii) "I (the husband) accordingly agree that if I forsake the Malak-o-Badar
community or am expelled from it by the spiritual head, my wife may

27. See,Baillie, at p. 13.

28. Fyzee, at pp. 116-I17.
29. Marfatalli v. Zahedunnissa, AIR 1941 Cal 657.
III] MARRIAGE (NIKAH) 63

get a divorce from me pronounced by a person appointed by her on my

behalf which divorce I will accept as valid."
It was held that the condition is valid, and is not opposed to Muslim Law.30
(iii) It will be a valid condition if it says that the wife would be entitled to
separate maintenance if her relationship with the husband becomes
strained. Such a condition is not against the public policy.31
(iv) It can validly be agreed upon that the wife shall live in her parent's
house and shall not be removed elsewhere, and in the case of
dissension with the husband, he would pay a monthly allowance to her
as maintenance and will allow her to remain in her parent's house.32
(v) The wife may validly stipulate to be allowed to leave her husband's
house in case of his misbehaviour or cruelty.33
(vi) The husband authorised the wife to seek divorce in the event he
mistreats her, her parents or her relations. Long afterwards, the
husband instituted a criminal proceeding against his wife and her
parents. The complaint proved frivolous. The wife exercised her right
to seek divorce and sent a notice to this effect to her husband. The
husband did not receive the notice.
It was held that the fact whether husband received notice or not is
immaterial. The eventuality in which he has allowed his wife to seek
divorce is present and she is not affected in any way by the non-
service of the notice.34
(vii) It is a valid condition through which the husband stipulates that he
would earn his livelihood and maintain his wife and would live in a
house approved by the wife and her parents, and on his failure in doing
so, the wife may seek divorce.35
There are many conditions, however, which because of their illegal or
unreasonable character cannot be appended to a marriage contract. Some of the
most typical illegal conditions are:
(i) A stipulation binding the husband to live in his wife's or wife's
parents' house.
(ii) An agreement for future separation between the husband and wife, and
payment of maintenance during such separation.
(iii) An agreement through which the husband has been divested of his
power of divorce.

30. Fida Ali v. Sanai Badar, AIR 1923 Nag 262.

31. Muinuddin v. Jamal Fatima, AIR 1921 All 152.
32. Sakina v. Shamshad Khan, AIR 1936 Pesh 195.
33. Banney Sahib v. Abida I3egum, AIR 1922 Oudh 221.
34. Samserannessa v. Abdul Samad, AIR 1926 Cal 1144.
35. Mohd. Yasin v. Mumtaz Begum, AIR 1936 Lah 1716.
 64 MUSLIM LAW [CHAP.

(iv) An agreement which gives liberty to the wife to visit immoral places.
(v) A condition negativing the mutual right of inheritance, or wife's right
to dower and maintenance.
(vi) A condition that the wife will permanently live with her parents.
(vii) A condition that the wife will be free to leave her husband's residence
and may live elsewhere.
No exhaustive list of legal and illegal conditions can ever be drawn. And
neither there is a need of any. The validity of any given condition can be tested
at once by asking: Is it reasonable, le al, moral, Islamic and conforming to the
basic legal incidents of the marriage? 16 A very interesting novel objection was
raised by a husband about the validity of his wife's marriage! To resist the claim
of his wife for maintenance allowance for her and her child, the husband in
Amina v. Hassan Koya37 took the plea tat his wife had concealed her pregnancy
at the time of marriage and therefore their marriage was not valid. The lower
court had upheld her marriage. The wife was five months pregnant at the time of
their marriage. The husband's contention that she had concealed this fact could
not convince the Supreme Court, particularly when the stage was so advanced.
Further, he continued with such marriage without raising any objection, attended
to his wife at the time of delivery, gave his name to the child born, brought up
the child for nearly four years, and now, after four and half years filed for
divorce. In view of these facts, held, the respondent was aware of the pregnancy
of the appellant at the time of marriage, and therefore the marriage was valid.
7. Classification of marriages38
Marriages may be either:
(i) valid,
(ii) void, and
(iii) irregular.
(i) Valid,— A valid marriage is one which conforms in all respects with the
legal requirements, and there should be no prohibition affecting the parties.
When all the legal conditions are fulfilled, the marriage is called Sahih or
'correct', that is, a marriage in which no prohibitions affect the parties.
Prohibitions may be either permanent or temporary. If they are permanent, the
marriage is void, if temporary, it is irregular.
(ii) Void.—A marriage which has no legal results is termed as void. A
marriage forbidden by the rules of blood relationship, affinity or fosterage is

36. Saksena, 172, Citation of cases may be seen there.

37. Amina v. Hassn Kova, (2003)6 SCC 93: 2003 SCC (Cii) 1276.
38. Fyzee, at pp. 112-115, and Tyabji, at pp. 162-164.
In] MARRIAGE (NIKAH) 65

void. Similarly, a marriage with the wife of another, or remarriage with a

divorced wife, without observing the strict rules set for this occasion, is void.
Legal effects of a void marriage.—A Batil or void marriage is an unlawful
connection which creates no mutual rights and obligations between the parties.
As Fyzee observes, it is a semblance of marriage without the reality. Being no
marriage at all, the Muslim woman can have it declared void at any time and the
man can create no hindrance against her action. The woman gets no right to
dower. If either party dies dui4ng the period of this union, the other acquires no
right of inheritance. Neither can enforce any marital obligations against the
other, e.g., the man cannot compel the woman to submit to his company. The
children of such marriage are not legitimate. But according to Radd-ul-Muhtar,
if they have consummated the marriage, the woman would be entitled to her
dower (mahr-ill-misO.
(iii) Irregular.—A marriage may be either lawful or unlawful.
Unlawfulness may be either absolute or relative. If the unlawfulness is absolute,
the marriage is void. If it is relative, it is an irregular marriage.
The following are irregular marriages:
(a) A marriage without witnesses;
(b) A marriage with a woman undergoing iddat;
(c) A marriage prohibited by reason of difference of religion;39
(d) A marriage with two sisters, at the same time; 40 and
(e) A marriage with a fifth wife.

39. Very recently the Kerala HC has held in Shamsudeen M. Itlias v. Mohd. Salim M. Idris, AIR
2008 Ker 59, that a marriage of Muslim male with a Hindu woman is invalid-fasid. Such
marriage is not void (Bali!), only invalid (irregular) and therefore the offspring of such
marriage is legitimate, resulting in entitling the child to inherit the property of the father. The
woman however has no such right in the property of the 'husband'; yet, on consummation she
is entitled to get dower. Even her conversion to Islam does not change her position as to
inheritance. The court usa held that such 'marriage' can be presumed from prolonged and
continued cohabitalior and living together under one roof as husband and wife. Earlier the
Karnataka HC had hi] down similar law in Imamhussain v. Jannalhi, (2007) 6 AIR Kar R
243. The Madhya Pradesh HC emphasised that in absence of evidence it cannot he held that
irregular marriage (between Muslim male and Hindu woman) became legal on account of
conversion of the woman (plaintiff) to Islam —Puniyabi v. Sugrabi, AIR 2008 MP 781
(NOC).
40. The rule is that the bar of unlawful conjunction (mawa bain-al-maheamain) renders a marriage
irregular and not void. Since a marriage which is temporarily prohibited may be rendered
lawful once the prohibition is removed, such a marriage is irregular (fasid) and not void
(batit)-so is the view of Fatwa-i-A!amgiri, and was followed by Bombay High Court in 1917
in Tajbi v. Mowla Khan, ILR (1917) 41 Born 485, and further reinforced by the Supreme
Court in Chand Pale! v. Bismi!lah Begum, (2008) 4 SCC 774: (2008) 2 SCC (Cii) 490. The
court held under Hanafi Law applicable to Muslims in India, such irregular marriage continues
to subsist till legally terminated. Wife and children of such marriage would be entitled to
maintenance under S. 125 of CrPC.
66 MUSLIM LAW [CHAP.

In Shia Law, all the above irregular marriages are treated as void, because
Shia Law does not recognise the distinction between irregular and void
marriages. A marriage is, according to that system, either valid or void.
The issues of an irregular marriage are treated as legitimate and are entitled
to inherit. But there are no rights of inheritance between the husband and the
wife. The wife is entitled to dower if the marriage is consummated, and has to
observe Iddat for three courses.
The irregular marriages may be made regular by removing the impeding
irregularity, which must not be of a permanent nature. Marriages contracted
within the relationship of consanguinity, affinity and fosterage cannot be
validated. Similarly, marriage with a woman whose husband is living would not
become valid even after the death of the first husband, because the marriage is
void ab initio. Other types of marriages may, of course, be validated by
removing the temporary irregularity. Thus, a marriage in the absence of
witnesses becomes regular on consummation; marriage without free consent, by
ratification with free consent: marriage with a non-Muslim. b y conversion to a
religion which could make the marriage valid; marriage by a person who has
already four wives, by death or divorce of any wife reducing the number to four;
marriage prohibited by unlawful conjunction, by terminating the marriage which
creates this prohibition.
Muta rringes.—"It is lawful among Shias", says Wilson , "to ent intc
contract of (so called) marriage for a limited.period, which may be for a term of
year, a month, a day or even part of a day."4'
The marriage dissolves of itself, on the expiration of the term of marriage. If
no time limit is expressed, the marriage is presumed to be permanent.
The number of wives that can be taken into Muta marriage is unlimited. The
ceiling of four wives does not apply here.
A Shia male may contract Muta with a Muslim, Christian, Jewish or Parsi
(fire-worshipper) woman, but not with a woman following any other religion. A
woman may not contract Muta with a non-Muslim.
The amount of dower must be specified in the contract of Muta otherwise
the agreement is void.
The child born of a Muta marriage is legitimate and capable of inheriting
from the father. 42 But, in the absence of an express agreement, neither party to a
Muta is entitled to inherit from the other. Maintenance is not due to the Muta
wife unless it has expressly been agreed upon.

41. Wilson, at p. 446.

42. In this respect it is different from "legalised prostitution". Certain critics allege that the Muta
marriage is nothing but a 'marriage for pleasure'. Nevertheless, it must be appreciated that in
prostitution, neither the child so born is legitimate nor is entitled to inherit from the father.
 I[[] MARRIAGE (NIKAH) 67

Fyzee says that the old Arabian custom of Muta was justified as being useful
in times of war and travels. But the Prophet prohibited it and later on Caliph
Umar suppressed it ruthlessly. Among the Shias themselves, only Ithna Ashari
School recognises it, and it is rejected by every other Muslim School. The
practice is not common in India, and in Lucknow, Rampur and other places
where there is a Shiite population, ladies of better class do not contract Muta
marriage.43
Essential requirements of Muta.—From the above we can see that (a)
period and (b) dower are the two main conditions of Muta. As to (a) period-
Muta being a temporary marriage in essence, it is necessary that the Muta
contract must specify the period of the enjoyment. The fixed period can again be
extended by a new contract. It can also be presumed to be extended unless
disproved. For example, A married B under Muta form for 2 years. Even after the
expiry of that period, A and B continued to live together without entering into a
new contract. Living like this a child is born to them in the fourth year. The
husband A dies in the fifth year. It will be presumed that the Muta had lasted for
5 years and the child was legitimate. 44 But suppose A and B contract a Muta
marriage for (i) unspecified time—that is mention of period is omitted,
intentionally or unintentionally, or (ii) specified for lifetime. Will such contract
result into Muta or Nikah? According to a decision by the Hyderabad High
Court45 , in both cases a permanent Nikah will result. Fyzee does not agree with
this.46 As to the second, he says that fixation of a period in marriage contract
destroys the concept of Nikah as understood in Islamic Law. As to the first, in
his opinion the deciding factor should be intention of the parties rather than the
form of the words. The Privy Council had also held in Shoharat Singh case
(supra) that where cohabitation of a man and a woman commenced with a
Muta and there was no evidence as to the term of the marriage, the proper
inference, unless disproved, would be that Muta continued during the whole
period of cohabitation. As to (b) dower; being a short-term contract, the
element of dower is rightly emphasised. The dower must be specified,
otherwise the contract is void. The wife's right to dower arises as soon as the
marriage is consummated. She can claim the whole amount. But if she chooses
to abandon the husband before the end of the fixed period, she must suffer a
proportionate cut in the dower.
Now we may note in the form of a table the points of distinction and
similarity between Muta and Nikah:

43. See, Fyzec, at p. 112.

44. Shoharat Singh v. Jafri Bibi, 24 IC 499 PC.
45. Shahzada Qanwn v. Fakher Jung, AIR 1953 Hyd 6.
46. Fyzee, Outlines of Muhammadan Law (4th Edn., Oxford, Delhi) at p. 120.

68 MUSLIM LAW [CHAP.

Muta Nikah
1. A temporary marriage. • permanent marriage.
2. Basically the object is plea • socio-religious union.
3. Recognised by Shias only. Recognised by Shias and Sunnis
both.
4. Period is fixed by agreement. It is essentially a union for life,
Being a temporary arrangement a subject to divorce. Fixation of
fixed period is its essential period shifts it to the former

5. Dower must be specified Dower may be implied if not

otherwise it is a void agreement, specified. Does not become void if
for it is a quid pro quo for a short no dower specified. For the idea is
time services of the woman. that the woman may get it anytime
during the lifelong duration.
An unconsummated Muta would Whether consummated or not,
6. 1 entitle the wife to one-half dower Nikah entitles the wife to full
dower—both prompt and deferred.
7. No minimum limit to dower, Hanafi Law recognises a minimum
depends on terms of contract. limit of ten dirhams.
8. Ipso facto termination of the No such automatic termination, as
contract on expiry of the term no time limit is fixed.
(period). No formality of
termination required. Time limit
is the limit of relationship.
9 Earlier termination is possible by
No question of 'earlier'
paying the wife the hibba-i- termination, for the term 'earlier'
muddat, i.e. gift for the unexpired
is relative to time limit.
period. Dissolution of marriage is of
course possible. -
10. Divorce is not recognised. Divorce is recognised for the
purpose of dissolution.
11. No provision for maintenance of Wife by Nikah is entitled to
the wife, for she is not regarded maintenance.
- as dependent (Shia Law).
12. But a wife by Muta is entitled to So also a wife by Nikah is entitled
maintenance under Section 125 to maintenance under Section 125
- CrPC. CrPC.
13. No right of inheritance to the wife Reciprocal right of inheritance
or husband in respect of each exists.
- other's property.
14. Children are le gitimate. Children are legitimate
 1111 MARRIAGE (NIKAH) 69

TMuta
IS. Children have right of Children have right of inheritance.
inheritance.
16. No limit to number of wives. Number is fixed at four only.
8. Prohibitions to marry in certain cases
Tyabji gives the following nine grounds on which Muslims are prohibited
from intermarrying with each other:
(i) Consanguinity.—A Muslim is prohibited to marry—
(a) his own ascendants or descendants;
(b) his father's or mother's descendants; and
(c) the sisters or brothers of any ascendant.
(ii) Affinity.—It is unlawful for a Muslim to marry 47-
(a) ascendants or descendants of his wife; and
(b) the wife of any ascendant or descendant.
(iii) Fosterage.— A child is called the "foster-child" of the woman who not
being the child's mother, has nursed the child whilst it was under two years of
age. The woman is called the "foster-mother".
Muslim Law prohibits marriage within certain limits of fosterage. A man
may not, for instance, marry his foster-mother or his foster-sister.
(iv) Unlawful conjunction.—It may be because of two things:
(a) Number, or
(b) Relationship between co-wives.
(a) Nwnber.—Muslim male may marry any number of wives not exceeding
four; but a Muslim woman can marry only one husband, if she marries with a
second husband, she may be punished under Section 494, Indian Penal Code.
(b) Relationship between co-wives.—A man is forbidden to have two wives
at the same time, so related with each other by consanguinity, affinity or
fosterage, that they could not have lawfully intermarried with each other if they
had been of different sexes.
From the above it comes out clearly, for instance, that it is unlawful to marry
two sisters at the same time, or to marry the sister of the wife during the wife's

47. A man may marry the descendant of a wife, with whom the marriage has not been actually
consummated. Under Hanafi, Hanbali and Shia Law illicit intercourse has the same effect in
establishing prohibition by affinity as the consummation of a lawful marriage. See, Tyabji,
124.
70 MUSLIM LAW [CHAP.

lifetime. In the leading case of Aizunnissa Khatoon v. Karimunnissa Khatoon48

the Calcutta High Court held that such unions were void. However, the High
Courts of Bombay, Madras, and Lahore, and the Chief Court of Oudh declared
them to be merely irregular.49
(v) Iddat.—A widow, a divorced woman or a woman who is pregnant by
illicit intercourse are prohibited from remarrying or marrying during the period
of iddat.
The object of iddat is to ascertain whether the woman is pregnant or not and
to ascertain the paternity of the child. The period of iddat in case of (a) the
marriage dissolved by death is 4 months and 10 days or, if the woman is
pregnant, till delivery, whichever is longer; and (b) the marriage is consummated
and dissolved by divorce, it is three courses, or till delivery in case of pregnancy.
For example, H has four wives, A, B, C and D. He divorces A after
consummation of the marriage with her. It is not permissible to A to marry
another husband, nor to H to marry another wife, during A's iddat. H also cannot
marry A's sister, during A's iddat. A marriage contracted during the iddar is not
void, but irregular.
(vi) Divorce.—After the husband has pronounced three talaks against his
wife, their marriage is irrevocably dissolved, and they are prohibited fron'
remarrying each other unless and until (a) the woman is lawfully married to a
second husband, (b) her marriage with her second husband is actually
consummated, (c) it has been lawfully dissolved, and (d) the woman observes
iddar.
(vii) Difference of religion.—Under Hanafi Law, a man may marry a
Muslim woman or a Kitabiya50, but a Muslim woman cannot marry anyone
except a Muslim.
A Muslim, therefore, cannot marry an idolatress or a fire-worshipper; and a
Muslim woman cannot marry even a Kitabi. Among the Shias, however, no one
can marry a non-Muslim in the nikah form, but the male can contract a Muta
marriage with a Kitabiya (including a fire-worshipper).5'
Ameer Ali says that the marriage between a Muslim and a Hindu woman
"whose idolatry is merely nominal and who really believes in God" should not
be unlawful but irregular. Fyzee cites Mulla as saying that "the present position
appears to be that the nikah of a Muslim man with an idolator or a fire-

48. ILR (1895)23 Cal 130.

49. Fyzee, at p. 113.
50. A Kilabi is a man, and a Kizabiya a woman who believes in a revealed religion possessing a
Divine Book. In India, these terms apply only to Jews and to Christians, each of whom
possesses a revealed Book (Kitab). See, Tyabji, at p. 142, and Fyzee, at p. 97.
51. Ibid,at p. 97.
in] MARRIAGE (NIKAH) 71

worshipper is irregular and not void". How&ver, in view of the clear texts of law
and Koranic provisions, such a broad view can only be introduced by legislation.
The court could not, and should not accept this view by means of liberal
interpretation alone.
(viii) Supervening illegality.—If one of the parties to a marriage becomes a
fire-worshipper, or an idolator, or the husband becomes a Christian52 , then the
marriage becomes invalid by what is known as supervenient prohibition.53
(ix) Pilgrimage.—Under the Ithna Ashari and Shafli Law, a man who has
gone to perform Ha] (pilgrimage) and has entered the sacred enclave of Kaba
after putting on the pilgrim's dress (ahram), may not enter into a contract of
marriage.54
(x) There is yet another prohibition, not so important in the context of
modem day society, yet relevant for the Indian society. It is the doctrine of Kafa
(equality of spouses). According to Hedaya, marriage must be contracted among
equals "because cohabitation, society and friendship cannot be completely
enjoyed excepting by persons who are each other's equal as a woman of high
rank and family would abhor society and cohabitation with a mean man; it is
requisite, therefore, that regard be had to equality with respect to the husband,
that is, the husband should be the equal of the wife". The Hanafis accordingly
hold that equality between the two parties is a necessary condition in marriage,
and that an ill-assorted union is liable to be set aside by a decree of the Judge.
According to Radd-ul-Muhtar, the test of equality applies to the husband and not
to the wife, for a husband can raise her to his own rank, however high.
Under the Flanafi Law, there are six requisites to equality:
1. Nasb (family or descent).
2. Islam.
3. Profession.
4. Freedom (free or slave).
5. Honesty.
6. Means.
7. (According to Fatawa-e-Hainidia: Potency).

52. In Imam Din v. Hasan Bibi, (1906) 41 Punj Rec 309 (No. 85), it was pointed out that a male
Muslim could marry Christian woman, but a Muslim woman could not marry a Christian male.
53. Supervenient illegality also becomes effective if the parties to a marriage come to acquire a
foster relation within the prohibited degrees. But since foster relationship are uncommon in
India, the matter is of academic interest only.
54. Under Shia Law, a deliberate breach of this rule debars that man and woman from ever
becoming husband and wife.
 MUSLIM LAW [CHAP.
74

(i) the marriage has been fraudulently or negligently contracted; or

(ii) an improper dower has been fixed; or
(iii) the other partner is not equal (in status, etc.) to the minor. (See further
p. 121 infra)
11. Restitution of conjugal rights
The leaiing case on this point is Moonshee Buzloor Ruheem v.
Shumsoonissa Begum 60. It was observed in this case that if either party to a
marriage contract has withdrawn from the society of the other without any valid
reason, or has neglected to perform the marital obligations, the aggrieved party
may bring a suit in a civil court for the restitution of conjugal rights. Thus, where
a wife refuses to live with her husband, the husband is entitled to sue for
restitution of conjugal rights. This right, however, is not absolute. There are a
number of valid defences available to a wife in a suit for restitution of conjugal
rights. She may prove that:
(0 it is unsafe for her to jive with her husband oecause of his cruelty; or
(ii) the husband grossly neglects the performance of the marital
obligations; or
(iii) the marriage is irregular; or the husband has been made an outcaste by
his community.
(i) The defence of cruelty.—If cruelty constitutes such a potent and valid
defence that a wife may lawfully deprive herself to her husband, although
cohabitation is one of the fundamental ingredients of marriage, it becomes
necessary to understand the real meaning and import of the term 'cruelty'.
In a recent case,61 the Allahabad High Court observed:
"Indian Law does not recognise various types of cruelty such as
'Muslim' cruelty, 'Christian' cruelty, 'Jewish' cruelty, and so on, and that
the test of cruelty is based on the universal and humanitarian standards, that
is to say, conduct of the husband which would cause such bodily or mental
pain as to endanger the wife's safety and health..."
Those actions of the husband which are held to amount to cruelty are as
follows62:
(a) actual violence of such character as to endanger personal health and
safety of the wife, or creates a reasonable apprehension of such
violence; -
(b) a treatment, falling short of actual violence, but such as to jeopardise
health or sanity of the wife;

60. (1867)11 MIA 551: 74 IC 166.

6!. Itwari v. Asghari, AIR 1960 All 684.
62. See, Tyabji at p. 166, and Fyzee, at pp. 117-118.
III] MARRIAGE (NIKAH) 75

(c) false charges of immorality and adultery and throwing insults on the
wife;63
(d) charging with adultery (with subsequent apology); once striking; using
abusive language; stripping house of furniture and charging wife with
theft;64
(e) husband's second marriage, if the court feels that the circumstances
are such as to make it inequitable for the court to compel the first wife
to live with him.65
"The onus today would be on the husband who takes a second wife to
explain his action and prove that his taking a second wife involved no insult
or cruelty to the first.. .and in the absence of cogent explanation the court will
presume, under modern conditions, that the action of the husband in taking a
second wife involved cruelty to the first, and it would be inequitable for the
court to compel her against her wishes to live with such a husband."
Fyzee comments that this strong judgment shows clearly that since the
passing of the Dissolution of Muslim Marriages Act, 1939, the courts have
leaned heavily in favour of the wife in all these cases, and restitution cannobe
had by the husband unless the wife is clearly in the wrong.66
(ii) The neglect of matrimonial obligations.—Abdur Rahim says that the
wife has a right corresponding to that of the husband to demand the fulfilment of
marital duties towards her. This includes proper accommodation separate from
the husband's relations and to be maintained in a way suitable to his own means
and the position in life of both. She is further entitled to the payment of her
dower.
If the marriage has not been consummated, then all the authorities on
Muslim Law agree that the wife may validly refuse to cohabit, and the restitution
of conjugal rights may be refused unless the husband pays the prompt dower.
After the consummation, however, she has no such right, as held by Imam
Muhammad and Abu Yusuf and approved by Mahmood, J., in Abdul Kadir v.
Salima67, overruling previous rulings to the contrary. According to Abu Hanifa,
such a right is available to her even after consummation, but this view is not
being followed in India. Because, as pointed out by Sir Shah Sulaiman, C.J., in
Anis Begam v. MoM. Istafa68:
"Owing to the prevalent practice, the amounts of dower fixed in this
country are often unduly high and beyond the means of the husband. To

63. See, Husain Begam v. Mohd Rusiam Ali Khan, ILR (1906)29 All 222.
64. See, Armour v. Armour, (1904)1 All U 318.
65. Iiwari v. Asghari, AIR 1960 All 684.
66. Fyzee, at pp. 118-119.
67. ILR(1886)8 All 149.
68. 1933 ILR All 743.
76 MUSLIM LAW [CHAP.

allow to the wife the right of refusing to live with her husband even after
consummation, so long as any part of the prompt dower remains unpaid
would, in many cases where the husband and wife quarrel, amount to an
absolute option to the wife to refuse to live with her husband and yet
demand a maintenance allowance. This would dislocate domestic life."
(iii) Other grounds.--A demand for the restitution of conjugal rights may
be rejected if it is proved that the marriage is irregular, or the husband has been
made an outcaste by his community. These excommunication can be made by
the heads of certain Shia sects; in India, by Syedna Burhanuddin and Agha
Khan.69 Also where, though, there is no satisfactory evidence of actual physical
cruelty, yet there is a reasonable presumption that the husband's suit was for
getting hold of wife's property.
In Hamid Husain v. Kubra Begam 70, it was held that if wife's return to her
husband would endanger her health and safety, a suit for restitution of conjugal
rights could not succeed.
Conditional restitution.—In Anis Begam v. Mohd. Jsrafa 71 , it has been held
that when the husband keeps a mistress in the same house with his wife, and
treats the wife cruelly, restitution can be granted only by imposing certain
conditions on the husband.
Sir Sulaiman. C.J.. observed
"There is no absolute right in a husband to claim restitution of conjugal
rights against his wife unconditionally; the courts have a discretion to make
the decree conditional on the payment of her unpaid dower debt or to impose
other suitable conditions considered just, fair and necessary in the
circumstances of each case ... there is certainly, a possibility that the story told
by the defendant that she was beaten with lathis and shoes might not be true,
but I have no hesitation in holding that the fact that Mst Hibia, a mistress,
was kept in the same house with the wife is fully established and I do not
believe the denial made by the husband nor do I accept the statements of his
two brothers, who, admitting the presence of Mst i itbia in the house, tried to
explain it away by saying that she was a mere maid servant....! have no
hesitation in holding that the husband misbehaved in this way that he kept a
mistress in his house along with his wife and caused mental pain to her in
consequence and that he must have, when quarrels ensued, treated his wife
cruelly, and that as the quarrels were not and could not be patched up, so
long as Mst Hibia remained in the house (the wife) had reasonable
apprehension of injury to her person.

69. Vide judgments of the Privy Council and the Supreme Court.
70. LLR(1918)40 All 332.
71. ILR 1933 All 743.
 III] MARRIAGE (NIKAH) 77

I think that the wife is fully justified in refusing to go and live with her
husband so long as there is no undertaking not to keep any mistress in the
house; she can go to live with him only if a separate house is given to her.
Further, I think that in order to protect her safety it is necessary that she
should have the option of keeping one female servant and one male servant,
according to her choice, in the house...
I would accordingly allow the appeal in part and impose conditions on
the decree for the restitution of conjugal rights."
As we observed, the current judicial trend is more humanitarian and alive to
the sufferings of the wife. Thus, in Shakila Banu v. Gulam Mustafa 72, the
Bombay High Court held that in a suit filed by husband for restitution of
conjugal rights the defendant wife's evidence about cruelty does not require
corroboration. In Raj Mohd. v. Saeeda73 , the facts were that the defendant was
staying away from the plaintiff-husband. She filed a suit against the husband
claiming maintenance for herself and her children from him. The husband also
filed a suit for restitution of conjugal rights. During the pendency of this suit the
husband married a second wife. Against this background the court held that it
had to be borne in mind that the decision in a suit for restitution of conjugal
rights did not entirely depend upon the right of the husband. The court should
also consider whether it would make it inequitable for it to compel the wife to
live with her husband, and if so the remedy may be refused. 'Our notions of law
must be brought in conformity with the modem social conditions'.
Very recently Justice Harun-Ul-Rashid of the Kerala High Court expressed
his sentiments on polygamy thus: "The mandate (can marry second etc.) issued
by Prophet Mohammed was intended to save the destitute and to protect their
belongings. Even after fifteen centuries, some people of our country seem to be
very particular in following the aforesaid tenets of Islam unmindful as to whether
such circumstances exist or not. People of the community contract more than one
marriage mostly for their personal pleasure. There is no system in our country to
ascertain and decide whether such persons are eligible to contract more than one
marriage during the subsistence of the first marriage. 74 We submit that the Kazi
can be a useful agency in dissuading the intending person. Further, a procedure
can be devised by which, on receiving information from the Kazi or the existing
wife, the Family Court call such person and advise him to abandon his intention.
Requirement of registration of marriage can help considerably in awakening
awareness".
Now let us take note of the following dictum of the Allahabad High Court:

72. AIR 1971 Born 116.

73. AIR 1976 Kant 200.
74. Saidali K.H. v. Saleena, (2008)3 KLJ 637 Kerala HC.
78 MUSLIM LAW [CHAP.

"The third marriage itself did not amount to violation if the Koranic
injunction of treating all wives equally unless she lived with him and proved
inequality of treatment."
The Court held in this case that since the defendant-wife did not live with the
husband even for a single day since he married the third wife, she could not
plead the ground of cruelty under Section 2(vii) of the Dissolution of Muslim
Marriages Act, 1939 as a counter-offensive to the husband's suit for restitution
of conjugal rights. The Court however accepted on equitable grounds her prayer
for execution of the decree for payment of prompt dower before the execution of
the decree for restitution of conjugal rights in his favour.75
Though physically experiencing the pangs of cruelty in the house of a
bigamous or polygamous husband may be a prerequisite for the remedy of
dissolution of marriage under this statute according to this judgment, another
door of escape from such humiliating experience has been widened by the courts
in recent times while applying another secular statute. Section 125 of the
Criminal Procedure Code, 1973 provides that if a person having sufficient means
neglects to maintain his wife (inter alia) who is unable to maintain herself, a First
Class Magistrate may order him to make a monthly allowance for her
maintenance. Further, if he conditions her maintenance on her living with him,
she may resist the condition, if he has contracted marriage with another woman
or keeps a mistress.
Applying this provision of law to an abandoned wife the Supreme Court
held in a landmark case Mohd. Ahmed Khan v. Shah Bano Begum76 that the
explanation to the second proviso to Section 125(3) of the Code of Criminal
Procedure confers upon the wife the right to refuse to live with her husband if he
contracts another marriage, leave alone 3 or 4 other marriages. It shows
unmistakably, that Section 125 overrides the personal law, if there is any conflict
between the two.
Begum Subanu v. A.M. Abdul Gafoor" involves more directly the problem
of an attempt to force reunion on the wife, through a sequel to a maintenance suit
under Section 125(3) of the Code of Criminal Procedure. The husband had taken
a mistress, not married again. He asked the wife (the petitioner) to come and live
with him. She refused on the ground that the second marriage (sic) entitled her
under law [Section 125(3)] to live separately and claim maintenance. His main
defence was that since his personal law permitted him to take more than one wife
his second marriage could not afford a legal ground for the appellant to live
separately and claim maintenance. On these facts the Supreme Court gave the
following opinion:

75. SyedAhniad Khan v. ImratJahan Begum, AIR 1982 All 155.

76. (1985)2 SCC 556: 1985 SCC (Cii) 245: AIR 1985 SC 945.
77. (1987)2 SCC 285: 1987 scc (Cr1) 300: AIR 1987 sc 1103.
III) MARRIAGE (NIKAH) 79

"A right has been conferred on the wife under the explanation to live
separately and claim maintenance from the husband if he breaks his vows of
fidelity and marries another woman or takes a mistress. It matters not
whether the woman is a legally married wife or a mistress... The explanation
[Section 125(3) CrPC] contemplates two kinds of matrimonial injury to a
wife, viz, by the husband either marrying again or taking a mistress. The
explanation places a second wife and a mistress on the. "ame footing and
does not make any differentiation between them on the'basis of their status
under matrimonial law. The purpose of the explanation is not to affect the
rights of a Muslim husband to take more than one wife ... but to place on an
equal footing the matrimonial injury suffered by the first wife...from the
point of view of the neglected wife, for whose benefit the explanation has
been provided, it will make no difference whether the woman intruding into
her matrimonial bed is another wife permitted under law to-be married and
not a mistress. In fact from One point of view the taking of another wife
portends a more permanent destruction of her matrimonial life than the
taking of a mistress by the husband. Be that as it may, can it be said that a
second wife would be more tolerant and sympathetic than a mistress so as to
persuade the wife to rejoin her husband and lead life with him and his
second wife in one and the same house? It will undoubtedly lead to a strange
situation if it were to be held that a wife will be entitled to refuse to live with
her husband if he had taken a mistress but she cannot refuse likewise if he
has married a second wife. The explanation has to be construed from the
point of view of the injury to the matrimonial rights of the wife and not with
reference to the husband's right to marry again. The explanation has
therefore to be seen in its full perspective and not disjunctively. Otherwise it
will lead to discriminatory treatment between wives whose husbands have
lawfully married again and wives whose husbands have taken mistress."78
The above extract has been taken here for its significance as a judicial step
towards liberating the wife from male dominance via law. Restitution of
conjugal rights is a civil law remedy, and as such the State cannot allow it to be
made a vehicle of persecution. The Supreme Court has rightly accorded
recognition to the wife's constitutional right to personal liberty. She can claim
that her most intimate relationship with her husband should be ensconsed in
absolute privacy and no one else should interpolate into this privacy. When
another woman trespasses into this field it amounts to the violation of her
personal liberty, and she may refuse to pay this cost.79

78. Ibid, at pp. 1107-08 (AIR).

79. In Saroj Rani v. Sudarshan Kumar, (1984)4 SCC 90: AIR 1984 SC 1562, the Supreme Court
held that S. 9 of the Hindu Marriage Act, 1956 which was the law for restitution of conjugal
rights, did not violate Article 21 of the Constitution, as the sanction for non-performance of the
decree was by way of attachment of property under Rule 32, Order 21 of the Civil Procedure
Code, which was unlike the decree for specific performance of contract. Thus, said the Court,
 80 MUSLIM LAW [CHAP.

12. Polygamy in Islam: A critique80

It is generally regarded that Muslims are freely allowed by their religion to

contract four marriages at a time and they generally do so to satisfy their baser
instincts and lust. It is submitted that nothing could be more erroneous than this.
Neither Islam favours polygamy nor the Muslims prefer polygamous unions.
In Islam, monogamy is a general rule while polygamy is only an exception.
The Koran commands:
"Marry such women as seems good to you, two, three or four; but if you
fear that you cannot do justice (between them) then marry only one,—this is
better so that you may not deviate from the right path." (Koran 4: 4)
"And it is not in your power to do justice between wives, even though
you may covet it; but keep yourself not aloof from one with total aversion,
nor leave her like one in suspense...' (Koran 5 : 4)
These commandments of the Koran shall be seen in the context of the pre-
Islamic Arabian customs which placed no restriction as to the number of wives.
Islam limited the number to lour and presented monogamy as an ideal form.
But Islam, claiming to be a universal religion having world-wide mission,
had to look into the requirements of all ages, circumstances, countries and
civilisations. There are certain ordinances in the Code of Islam, which shall be
looked on as auxiliar y or remedial, to meet the contingency of place and time.
and the code lays down proper restrictions as to their use. Rules regarding
polygamy come within the category of remedial ordinances.
There are certain factors under which polygamy becomes inevitable.
Individual factors.----In the case of wife's barrenness, perpetual illness,
unsuitability for cohabitation, etc. the alternatives available to a man of
monogamous society, are:
() k.. tuu,fdivc,cn thc ;if,
(ii) to wait for that far-off eventuality of the death of the wife, or

the only sanction was financial in nature, and the provision served a social purpose as an aid to
the prevernon of break up of marriage.
Though this decision overrules the Andhra Pradesh High Court verdict in Sareetha v.
Vnkata gw,baiah, AIR 1983 Al' 356, it may be carefully noted that not only the Supreme
Court nowhere subdues the wife to the physical coercion by the husband under the cover of
rectitution of conjugal rights, instead, by routing S. 9 through the financial side, leaves
personal liberty unhampered.
80. This topic has been prepared with the help of the following sources: M.U.S. Jung: The Muslim
Law of Marriage (Monograph), at pp. 21, 31-2 (Allahabad 1926).
M Mazharuddin Siddiqui, Women in Islam (Lahore 1952); Jalal Uddin Umri, Islam Mein
Aural Ka Muqam (Rampur, nd.); M.I. Zafar: 'Polygamy' Islamic Literature, July 1955 at pp.
37..43•
A. Dc Zayas Abbasi: 'Woman in Islam', Islamic Literature, January 1954 at p. 41.
AmeerAli: The Spirit of Islam (London 1965 first published in 1922).
 111] MARRIAGE (Nll(AH) 81

(iii) to abandon the hope of an issue and desire of cohabitation.

Could not we prefer to take a second wife, instead of torturing ourselves, or
leaving a helpless wife? A situation to the contrary could only lead to such
tragedies as that of Josephine, whom Napoleon was forced to divorce, against his
wishes, because she was not able to procreate an heir to the throne, or that of
Soraiya, the queen of Shah of Iran, whose only fault was her alleged barrenness,
and the Shah had to divorce her in compliance with a custom of the Iran's royal
family, that a queen who fails to provide an heir to the throne should be divorced
and replaced by another.
Polygamy in Islam is only a remedy which comes into play when an
emergency warrants or an opportunity arises.
Biological and psychological factors.—There are certain individuals who
have a more active sexual impulse than others. For them polygamy is necessary.
It is the only way to check adultery, concubinage and prostitution, and many
sexual offences which have become so common today. In his book, Sex Life and
Faith, Dr. Rome Landen observes:
"In an imperfect world such as we live in, polygamy must be considered
both natural and legitimate. To eliminate polygamy we should first have to
change the entire character of our civilisation, then the nature of man, and
finally nature herself. In most cases I found that polygamous behaviour and
polygamous longing went hand-in-hand with an essentially monogamous
nature of marriage. On the evidence of history and science, it is imperative
that polygamy should be recognised more honestly."
Prof N.W. Ingells in an essay Biology of Sex, writes that man as a social
animal is anything but monogamous. And "one would have great difficulty in
explaining, biologically, such a sudden change of heart: The transition to a single
wife."
The evidences on the basis of present day practices show that West is de
facto polygamous. Because, on the one hand, if polygamy is prohibited, there are
easy and frequent divorces, on the other hand there is the practice of living
together.
After the World War II, when a majority of the male adult population of
Germany perished in War, the proportion of females became so high that, in the
absence of polygan y, millions of bastards were born of illegal unions. The
problem was so great and so real that the then West German Government had to
pass a special law, authorising illegitimate children to inherit from their parents.
So, why not legalise polygamy and save millions of souls from the ignominy of
being called bastards, and give them the right to inherit from tho"c who gave
them their bodies. It would tend to improve morality and enhance the sanctity of
marriage.
 MUSLIM LAW [CHAP.
82

Who developed polygamy?—Islam has never developed polygamy.

Instead, it curtailed its extent and made it an instrument to be used in exceptional
circumstances.
Before Islam, many Prophets came to this earth. Many of them married a
number of wives. Jacob and Joseph and his brothers were born of different
wives; and Solomon had contracted many marriages. Abraham had at least two
wives.
Polygamy was a recognised institution among 'Medes', Babylonians,
Assyrians and Persians. Moses allowed polygamy among Israilites, because it
Was already prevalent among them. It was customary among the tribes of Africa,
Au'stralia and the Mormons of America. The Hindu Law does not restrict the
number of wives. In fact the laws of Manu lay down specific conditions for
celebrating subsequent marriages:
"A barren wife may be superseded in the eighth year; she whose
children (all) die, in the tenth; she who bears only daughters, in the eleventh;
but she who is quarrelsome, without delay."8'
Polygamy was observed among the Ethenians, the most civilised and most
cultured of all nations of antiquity. Among them, the wife was transferable,
marketable, and, a mere chattel. Romans observed it until it was forbidden by the
laws of Justinian. But even afterwards it continued till very recently, when public
opinion aboiisneo IL.
Thus, it would be a reprehensible mistake to suppose that the Prophet of
Islam originated and legalised polygamy. On the contrary, the cautious and
prudent steps that he had taken in this connection must be appreciated. He
limited the unbounded licence of polygamy and accepted it only as an exception
to the general rule of monogamy.
The proper course of action.—The advocates of changes in Muslim
Personal Law in India contend that polygamy should be abolished. But before
venturing to undertake such a sweeping change, they should investigate the
percentage of Muslim population in India who have more than one wife.82
Because, they might be trying to eradicate a non-existent evil. "In India", says
M.U.S. Jung, "as the Muslim male population is in excess of females, polygamy
is not practical for all, and further those who consider it morally objectionable
provide against it by a special clause in the marriage contract..." Add to it the
economic hardships of today and see how many Muslims are practising
polygamy.

81. Manu, 9: 81.

82. Among the Indian Muslims, 95 men out of every 100 are monogamists. See, Ameer Au, The
Spirit of Islam at p. 332.
1111 MARRIAGE (NIKAH) 83

The utmost that can be done in this connection is to ensure that the real
Islamic spirit behind polygamy is being followed. Certain statutory restrictions
and limitations in the way of contracting the second or subsequent marriages
may be imposed.
Necessary it is because of the growing tendency among Muslims to ignore
Koranic injunctions relating to polygamy. Some of the West Asian countries
have introduced reforms in this regard, but sufficient it would be to give here the
reforms effected in Pakistan whose social conditions are very much similar to
Indian conditions.
Section 6 of the Muslim Family Law Ordinance, 1961 of Pakistan deals with
polygamy and lays down as follows:
"6(1) No man, during the subsistence of an existing marriage, shall,
except with the previous permission in writing of the Arbitration Council,
contract another marriage, nor shall, any such marriage contracted without
such permission be registered under this Ordinance.
(2) An application for permission under sub-section (1) shall be
submitted to the Chairman in the prescribed manner, together with the
prescribed fee, and shall state the reasons for the proposed marriage, and
whether the consent of the existing wife or wives has been obtained thereto.
(3) On the receipt of application under sub-section (2), the Chairman
shall ask the applicant and his existing wife or wives each to nominate a
representative and the Arbitration Council so constituted may, if satisfied
that the proposed marriage is necessary and just, grant subject to such
conditions, if any, as may be deemed fit, the permission applied for.
(4) In deciding the application the Arbitration Council shall record its
reasons for the decision, and any party may, in the prescribed manner, within
the prescribed period, and on payment of prescribed fee, prefer an
application for revision, in the case of West Pakistan, to the Collector and, in
the case of East Pakistan, to the Sub-Divisional Officer concerned and his
decision shall be final and shall not be called in question in any court.
(5) Any man who contracts another marriage without the permission of
the Arbitration Council shall—
(a) pay immediately the entire amount of dower, whether prompt or
deferred, due to existing wife or wives, which amount, if not so paid,
shall be recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with simple
imprisonment which may extend to one year or with fine which may
extend to five thousand rupees, or with both."
 84 MUSLIM LAW [CHAP.

There is yet another suggestion, in contrast to measures adopted in Pakistan

given recently in a Seminar on Muslim Law. 83 According to it, the court should
have power to restrain a man who is already married from taking a second wife
where it is established that he is not in a position to support both. This suggestion
seeks to enforce that part of the Koranic requirement which is amenable to
objective assessment prior to the contracting of a bigamous marriage. It would
be noted that this proposal does not oblige a man to give any reasons as to why
he wants to take a second wife. This ipso facto does away with any need of
listing the circumstances which could justify such a step. This matter should be
left to individual discretion, because, needs and circumstances justifying
plurality of wives are delicate and sometimes subjective in nature. Emotional
urges, the nature of disability from which the first wife is suffering or the social
considerations prompting a second marriage, all belong to the private sphere of
one's life. Their exposure will not only destroy the peace of homes, but the fear
of such an exposure may also drive some people unwillingly to divorcing the
first wife, causing hardships to her and the children.
It is also feared that obliging the man to justify his intention by giving
convincing reasons would give the courts in this country far more powers of
restraining this practice than desirable.
The above proposal also does not require taking permission from the first
wife. Of course it hurts when her husband takes a second wife. It hurts her
emotionally. It could also hurt her economically. The suggestion safeguards her
against the latter hurt alone. The emotional injury must be weighed against the
interests of the husband, the second wife, and the society in general. A matter
involving the interests of several parties should not be decided with reference to
what happens to one party only. It is admittedly at the cost of the first wife, to
some extent, that Islam permits polygamy. But it does so in view of the higher
interests of the society.
Relevant to the present Indian conditions is the remark of Ameer Ali, that in
those countries (like India and Pakistan) where the conditions of society are
different, where the means which, in advanced communities, enable women to
help themselves are absent or wanting, polygamy must necessarily continue to
exist.84
A Jurists Poll on Polygamy—In the Seminar on Muslim Personal Law in
India held in the Indian Law Institute at New Delhi in 1972 different views were
expressed on the topic of polygamy. J.N.D. Anderson, a leading Western
exponent of Muslim Law was 'firmly convinced that a complete prohibition of
polygamy, if coupled with the husband's unrestricted right to unilateral divorce,

83. See, Nejatullah Siddiqi, "Restraints on Polygamy and Muslim Personal Law", in Islamic Law
in Modern India (Indian Law Institute 1972) at pp. 147-56.
84. The Spirit of Islam at p. 230.
HI) MARRIAI3E (NIKAH) 85

would be a retrograde step, for it would mean a man determined to marry a

second wife would feel compelled to divorce his first wife'. Therefore, he
opines, 'it would be more beneficial to the Muslim women to permit polygamy
under specified conditions (which would include a full consideration of the
attitude adopted by the first wife), and to grant a wife who so chose a right to
claim a divorce in such cases'. He advances one suggestion 'fully consonant
with Muslim principles' to indirectly restrict polygamy in practice, namely,
legislation enforcing registration of all marriages (both Hindu and Muslim) by
means of a statutory contract, which would itself include suitable conditions.
Where one of such conditions is that the husband would not in fact exercise his
Muslim right of polygamy, that stipulation must be regarded valid and effective.
According to Hanbalis, while the sacred law permits a husband to marry second
time, it does not enjoin this, and therefore, the well known maxim operates—'A
Muslim is bound by his stipulations 1.85
Kamila Tyabji categorises the practice of polygamy into five socio-ethnical
groups. First, desertion followed by bigamy—where the husband abandons his
first wife to her fate and goes off to marry another woman. Second, driving out
the wife (without divorcing) and contracting another marriage. Third,
dominating the wife into silence and remarrying. Fourth, fraudulent conversion
to Islam to remarry. And fifth, the deserving second marriage—where the old,
ailing, first wife consents to remarriage. Tyabji then asks, 'do the first four kinds
confirm to the polygamy verse in the Koran'.86
S. Jaffer Hussain brings out clearly the legal disadvantages resulting from
bigamy—one, the wife obtains the right of delegated divorce (Talaq-al-Tawfld)
and two, she would be entitled to refuse to rejoin the husband. By recognising
the wife's right to inflict these consequences on the bigamous husband the courts
have played an important role in controlling polygamy. Thus, both pre-nuptial
and post-nuptial agreements which gave right to the wife to get a divorce if the
husband took a second wife, were held to be valid. 87 In Saifuddin case88 the
Assam High Court held the stipulation in the Kabinnama that if the husband
brought his formerly married wife to stay with him without the second wife's
consent, the latter would have an irrevocable option to divorce him. This right of
delegated divorce could be exercised at any time, as the wrong done to her was a
continuing one. 89 Even without such stipulation, the wife has another remedy-

85. Anderson, Muslim Personal Law in India, in Tahir Mahniood (Ed.), Islamic Law in Modern
India, ILl (1972)34 at p. 38.
86. Kamila Tyabji, Polygamy, Unilateral Divorce and Mahr in Muslim Law As Interpreted in
India, supra at pp. 142-43.
87. S. Jaffer Hussain, Judicial Interpretation of Islamic Matrimonial Law in India, supra at pp.
176-77, and n. 20 (Ibid) - Sainud4in v. Latifannessa Bibi, ILR (1919)46 Cal 141; Sadiqua v.
A:aullah, AIR 1933 Lab 685; and Saifuddin Sekh v. Soneka Bibi, AIR 1955 Ass 153.
88. Sajfuddin Sekh v. Soneka Bibi, AIR 1955 ..ss 153.
89. Ayatunnesa Beebee v. Koran Au, ILR (1909)36 Cal 23.
86 MUSLIM LAW [CHAP.

successfully warding off a decree for restitution of conjugal rights. In Itwari v.

Asghari, the Allahabad High Court held in forceful words:
"A Muslim husband has the legal right to take a second wife even while
the first marriage subsists, but if he does so and seeks the assistance of the
civil court to compel the wife to live with him against her wishes on pain of
severe penalties.. .she is entitled to raise a question whether the court, as a
court of equity ought to compel her to submit to cohabitation with such a
husband."90
Tahir Mahmood remarked: "It is irrelevant for cultural identity whether a
Muslim can torture his first wife by contracting a bigamous marriage against her
wishes and without necessity, or a wife can tease her husband throughout his life
by exploiting his inability to pay dower. These and other drawbacks in the
existing personal law cannot be considered essential ingredients of the Muslim
culture. On the contrary these are stigmatic of the fair name of Islamic
civilisation."9'
Summing up the position we find that (i) the Koranic Law permits restricted
polygamy, but does not enjoin it on the Muslims. As such, it is not an essential
matter of religion; This is also the pronouncement of the Supreme Court in a
recent case related to the Panchayati Raj Act, 1994 of the State of Haryana92.
The Act disqualified a person 'having more than two living children from
contesting - ejecuoli
, 1
LU U1 ati..IiaJa.
:. ...-.-..
t*.A'l..'

violated his right to religious freedom as guaranteed by Article 25 of the

Constitution. Disallowing this contention the Supreme Court said that true, the
Muslim Law allows a Muslim to marry more than one wife and also permits him
to procreate more than two children; other religions also permit more than two
offsprings; yet, neither Islam nor other religions ordain the followers to enter
into more than one marriage or procreate more than one child. Permission by the
religion and/or absence of prohibition do not constitute a religious tenet or a
religious rule. A practice simply permitted does not by itself constitute an
essential order of the religion. No doubt polygamy and multiple children are
practices widely in vogue, but they can be restricted or even restrained on the
grounds of public order, morality and health and for the purpose of social
welfare and reform. Accordingly the limit of two offsprings is not
unconstitutional. (ii) the verse on polygamy ordains the husband to do justice to
all the wives as a precondition, otherwise 'marry only one—this is better so
that you may not deviate from the right path'; (iii) husband's right to bigamy
may be restricted by a stipulation in the Kabinnama; (iv) the first wife may
also stipulate that in case of second marriage without her consent, she can
exercise her right of delegated divorce; (v) subsequent marriage entitles the

90. AIR 1960 All 684.

91. Tahir Mahrnood, An Indian Civil Code and £II'Law, Tripathi, Born (1976) at p. 84.
92. Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 SC 3057.
fill MARRIAGE (NIKAH) 87

first wife to live separate from the husband; (vi) such bigamy is a valid defence
against a decree by the husband for restitution of conjugal right; she may
refuse cohabitation with him; (vii) bigamy entitles her to maintenance
allowance, and also to her children.
Some of the consequences of polygamy or bigamy under the penal law have
been analysed by Tahir Mahmood thus: A woman desirous of remarriage must
not have a living and legally recognised husband. There is no corresponding
condition imposed on men. Her second marriage will be void (Batil) at Muslim
Law and will attract the application of Sections 494 and 495 of the Indian Penal
Code (}PC), 1860. 93 But when her first husband renounces Islam, she exercises
her right to delegated divorce, or exercises her option of puberty, the courts
would exempt her from the above penal consequences in case of her marrying
again. The fifth marriage of a man, while the first four marriages legally persist,
is irregular (Fasid) at Hanafi Law and void (Batil) at the Ithna Ashari Law. The
fifth marriage of a Hanafi Muslim being merely 'irregular', is not hit by Sections
494 and 495 IPC.94 However, the fifth marriage of a non-Hanafi Muslim man
should attract the IPC, since such marriage is void under the law applicable. The
concept of 'irregular' (Fasid) marriages is not recognised by every school of
Muslim Law.95
Very recently, a socio-legal scientist reported that amongst the Muslim
respondents to her questionnaire on Muslim Law reforms, one stated that
polygamy should be put under much greater restrictions if not banned altogether. It
should be permitted in very exceptional circumstances, and only with the
permission of the first wife. Others either avoided answering or answered in favour
of retaining its legality on the ground that polygamy was not much in vogue.96

93. Hamid v. Emperor, AIR 1931 Lah 194.

94. Shahulameedu v. Zubaida, (1970) MU (Cri) 569.
95. Tahir Mahmood, The Muslim Law of India (2nd Edn., 1982 Law Book Company, Allahabad)
at pp. 58-59.
96. Vtitha Dhagarnwar, 'Towards Uniform Civil Code. . .', in Madhava Menon (Ed.), Uniform
Civil Code, 13C1 (New Delhi 1986) at p. 23.
 Iv

Dower
(Mahr)
1. Pre-Islamic background
In the regular form of marriage, as distinguished from the marriage by
capture, the fixing of dower was in vogue. Sometimes the guardian of the bride
used to take the dower himself; but it is not certain whether it was a mere
violation of the usage that the bride should take the dower, or whether it shows
that dower was originally the price paid for the bride to her parents. A device
was prevalent under the name of shighar marriage in which a man would give
his daughter or sister in marriage to another in consideration of the latter giving
his daughter or sister in marriage to the former. Neither of the wives could get a
dower. Faisc cualges of unchastity were frequently used to deprive the wife of
her dower. The term mahr was originally used to signify gifts given to the
parents of the wife while Sadka was a gift to the wife herself. The Sadka or
dower which was paid in case of regular form of marriage was approved by
Islam; the Koran says:
"And give women their dowers freely." (Koran 4: 4)1

2. Definitions of 'Mahr'
Baillie: "...the property which is incumbent on a husband, either
by reason of its being named in the contract of marriage,
or by virtue of the contract itself...Dower is not the
exchange or consideration given by the man to the
woman for entering into the contract; but an effect to the
contract imposed by the law on the husband as a token
of respect for its subject, the woman."2
Abdur Rahim (On "It is either a sum of money or other form of property to
the basis of which the wife becomes entitled by marriage... It is an

1. Abdur Rahim, at p. 8.
2. Baillic, atp. 91.
 DOWER (MAHR) 89

Hedaya): obligation imposed by law on the husband as a mark of

respect for the wife ... "3 (This definition has been
adopted by Mulla also).
TYABJI: "Mahr or dower is a sum that becomes payable by the
husband to the wife on marriage, either by agreement
between the parties, or by operation of law."4
3. The nature of dower
Mahmood, J., in Abdul Kadir v. Salima5 , gives the best description of the
nature of dower. He observes:
"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 as a necessary effect of marriage. To use the language of the
Hedaya, the payment of dower is enjoined by the law merely as a token of
respect for its object (the woman), wherefore the mention of it is not
absolutely essential to the validity of a marriage; and, for the same reason, a
marriage is also valid, although a man were to engage in the contract on the
special condition that there should be no dower."6
"Even after the marriage the amount of dower may be increased by the
husband during coverture7; and indeed in this, as in some other respects, the
dower of the Muhammadan Law bears a strong resemblance to the donario
propter nuptias of the Romans which has subsisted in the English Law under
the name of marriage settlement. In this sense and in no other can dower
under the Muhammadan Law be regarded as the consideration for the
connubial intercourse, and if the authors of the Arabic textbooks of
Muhammadan Law have compared it to price in the contract of sale, it is
simply because marriage is a civil contract under that law, and sale is the
typical contract which Muhammadan jurists are accustomed to refer to in
illustrating the incidents of other contracts by analogy." (Italics are mine)
The line of reasoning based on the analogy of sale was criticised by
Ameer Au g, and by Sir Shah Sulaiman in Anis Begam v. Mohd. Istafa9; and
in Wajid Ali Khan case t0. Sir Sulaiman observed:

3. Abdur Rahim, at p. 334.

4. Tyabji, at p. 170.
5. ILR(1886)8 All 149.
6. Hamilton's Hedaya by Grady, at p. 44.
7. Baillie's Digest at p. III.
8. Ameer All, Mohammadan Law, Vol. II at pp. 459-60.
9. ILR 1933 All V3.
-d tO. Wajid Ali Khan v. Shaukat A li Khan, (1912)15 Oudh Cases 127.
'9.
 90 MUSLIM LAW [CHAP.

"It is quite obvious that the analogy of sale cannot be carried too far.
The marriage cannot be regarded as purely a sale of the person by the wife in
consideration for the payment of er1
It was observed in this case that the similarity of dower to sale price cannot
be pushed too far, nor can the principles governing the sales of goods be applied
in all their details. For example, the contract of sales of goods can be cancelled if
a portion of the price has not been paid. Even if the goods have been once
delivered they may in such an event be returned. But if consummation of
marriage has taken place and a part of the dower remains unpaid, it would be
absurd to think that marriage could be cancelled by the wife at her will.
Moreover, the question—whether the dower is the consideration for the first
consummation of marriage only or whether it is the consideration for the society
of the wife during the married life?—could not be answered by applying the
analogy of sale to dower, money and marriage.
Islam insists that dower should be paid to the wife herself. It sought to make
dower into a real settlement in favour of the wife, a provision for the rainy day
and socially, a check on the capricious exercise by the husband of his almost
unlimited power of divorce.
A husband thinks thrice before divorcing a wife when he knows that on
divorce the whole of the dower would be payable immediately. 12
There is a classic example given by someone which must be mentioned here.
A person purchases a horse. To whom he must pay the price? Not to the horse
itself, certainly. But to the owner. Thus, if dower be regarded as sale-price, it
must be paid to the father or the guardian of the wife. Since it is paid to the wife
herself, it cannot be the price. It is a token of respect.
4. Kinds of dower

Broadly, there are two kinds of dower: (i) specified, and (ii) unspecified.
But the specified dower has been further divided into: (a) Prompt, and (b)
Deferred.
(i) Specified dower.— An amount settled by the parties at the time of
marriage or after, is called specified dower. If the bridegroom is minor, his father
may settle the amount of dower. Hanafi Law says that the father is not personally
liable for the dower, but according to Shia Law, he will be so liable. 13

II. Anis Begam v. Mohd. Istafa, ILR 1933 All 743.

12. Fyzee, at p. 133.
13. See, Syed Sabir Husain v. Farzand Hasan, (1937) 65 IA 119, where a Shia father's property
was attached to pay the dower of his minor son.
IV) DOWER (MAHR) 91

The husband is bound to pay the amount of the specified dower, however
excessive or beyond the reach it may be. In Oudh, however, the excessive
amount may be curtailed to a reasonable amount.
Prompt and Deferred dower.—Prompt dower is payable on demand, and
deferred dower is payable on the dissolution of marriage by death or divorce.
The prompt portion of the dower may be realised by the wife at any time before
or after consummation, but the deferred dower could not be so demanded. 14
In the case where it is not settled how much of the dower is prompt and what
part of it is deferred, the Shia Law holds that the whole of dower is prompt; the
Sunni Law, however, holds that only a part is prompt. This part is to be fixed
with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount
of settled dower.15
There are two aspects of the prompt dower (Mahr-i-muajjal)--the time
factor and the quantum factor. Prompt in theory means immediately on demand
or at the time of marriage, or at any time before consummation, or after
consummation when demanded. In practice, however, it is seldom paid promptly
at the time of marriage or even when demanded; and equally tardily demanded.
The fear of annoying the husband, of his pronouncing talak in retaliation, of
vengeful ouster by him—factors like these choke the demand. We may illustrate
the point with the facts of a recent case E. V. Kunhimariam v. 0. Mam,n& 6. In
the words of Justice Sukumaraii: "This case may serve as a study in the
continuing suffering of the Indian womanhood. The legal battle for getting a
paltry amount of less than Rs 2000 by way of Mahr and past maintenance
spanned a period of nearly a decade and spread over three courts including the
High Court." The short of the long story is like this: The defendant M was
married, had six children, and at the time of the seventh, when his wife was at
her parents' house, he married a young girl, the petitioner K in April 1976. In
July when the first wife returned, he packed off -K, already pregnant, to her
parents' home, and abandoned her and the child. M was a rich man. When K
filed a maintenance petition under Section 125 CrPC, M, in retaliation divorced
her. He sent Rs 105 as Mahr and Rs 200 towards past maintenance. K claimed
Rs 2000 only as Mahr, but that was denied. So the legal battle ensued. Finally,
the High Court decreed Rs 2000 as Mahr on the basis of the custom of the parties
and Rs 60 and Rs 25 as maintenance amounts for the petitioner K and her child,
respectively.
Under the customary law if the prompt dower is not paid on demand, the
wife has a right to refuse conjugal rights. In those cases where the marriage has
not been consummated, she can successfully resist the suit for restitution of

14. MulIa, at p. 311.

15. See, Taufik-un-nissa v. Ghulam Kambar, ILR (1877) I All 506.
16. AIR 1985 Ker 239.
92 MUSLIM LAW [CHAP.

conjugal rights; but where consummation has taken place, her refusal extends
only to the point of payment of the prompt dower; the court will grant a decree
conditional to the payment of the dower. Prompt dower in full amount can be
recovered by the wife even after the death of her husband, it will be charged on
his estate.
As regards the quantum of the prompt dower, it may be divided into
specified and unspecified. The general custom regarding the unspecified prompt
dower is to consider half of the total amount of dower settled at the time of
marriage as the portion referable to prompt Mahr. Even when the Kabinnama is
silent as regards the nature of the dower, the court has considered the half of the
whole dower as prompt. 17 This presumption may however be rebutted by either
party; the circumstances of the case, the status of the wife and the total amount
of dower must also be taken into account. In one case the Allahabad High Court
had decreed Rs 12,000 as the prompt portion out of the Rs 51,000 amount of
whole dower. 18
(ii) Unspecified dower.—in such cases where dower has not been settled at
the time of the marriage or after, it is fixed with reference to the social position
of the wife's family and her own personal qualifications. Help would be taken by
taking into account the amounts of dower fixed in case of wife's sisters, paternal
aunts, etc., and according to the J-Iedaya, the wife's age, beauty, intellect and
virtue will also be considered. Such dowers are, called mahr-ul-rnisL
One aspect of dower beneficial to the Muslim woman is that even where the
parties to the marriage have not stipulated any dower, t he husband remains under
an obligation to pay it. Only under the Ithna Ashari Law an adult wife can waive
the requirement of dower. Under other schools of Muslim Law, even where the
wife stipulates that she will not demand any dower, she remains entitled to it and
the rule of estoppel will not apply to her. This implied dower is called proper
dower, or customary dower or mahr-i -mis! or mahr-uI-mis!.
5. Subject-matter of dower
The fitting subject-matter of dower is not only confined to a sum of money
or property; it includes personal services and other things. According to a
tradition Aamir-bin-Rabia said "that a woman of the tribe of Bani Fazarah
married on a settlement of a pair of shoes, and the Prophet said to her 'Are you
pleased to give yourself and your property for these two shoes.' She said, 'yes'.
Then the Prophet approved of the marriage". 19 The following were recognised as
the subject of dower:

17. Nasiruddin Shah v. A,naiul Mughni Begum, ILR (1947)28 Lah 565.
18. Bibi Rehana Khatun v. Iq:idar Uddin Hassan, 1943 All U 98.
19. Mohd.Yusuf, Vol. Iatpp. 111-112.
IV] DOWER (MAHR) 93

A handful of dates (Abu Daud).

(i)
A pair of shoes (Tirmizi).
(ii)
If the husband is a slave, his services to his wife (Mohit Sarkhsee).
(iii)
(iv)The services of the husband's slaves to the wife (Fa:aw -i-AIamgir.
(v)Husband's services rendered to the guardian of a minor wife (Durrul
Muktar).
(vi) Teaching Koran to the wife (Tradition).
In fact, the main contention of the Muslim jurists is that anything which
comes within the definition of maal can be the subject-matter of dower. Thus,
apart from the persoual services of the husband, any profits arising from land or
business, debts due to the husband, insurance policies, choses-in-action, the sale
proceeds of something, may constitute valid dower.20
If the subject-matter of dower be "an animal" or "cloth", then the wife is
entitled to ,nahr-ul-misl, proper dower because such dowers are invalid for
uncertainty. Similarly, "a house" or "the land" without specifying the exact
location and description are not fit subjects of dower, and the court will have to
fix proper dowers in those cases.
6. Minimum and Maximum Amounts of dower

Minimum2' .—Hanafis-10 dirhams (Rs 5-6 after devaluation). Malikis-3

dirhams (Rs 1.50-2 after devaluation).
Shafis
1
No minimum
Shias
5
Maximum.— Among Sunnis there is no maximum; any amount may be
fixed. Fyzee22 cites an example based on his personal knowledge, of a dower
amount of Rs 2,20,00,000.
Among some of the sects of Shias, however, there is a tendency "not to
stipulate for a sum higher than the minimum fixed by the Prophet for his
favourite daughter Fatima, the wife of Ali, namely 500 dirhams (Rs 100
approximately)".

20. Things which are opposed to Islam, e.g. wine, profits from prostitution, etc., cannot be the
subject of dower. So also a non-existent thing, e.g. produce of some tree or crop, sheep which
are yet to be born, etc. Shia Law, however, holds the dower of non-existent things as valid.
See, Verma, Mohammedan Law at p. 143.
21. Fyzee, at p. 134
22. Ibid, at pp. 135-136.
 94 MUSLIM LAW [CHAP.

7. Amounts of dower and conditions of payment23

(1) If the marriage is consummated, and is dissolved by death:
(a) whole of the specified dower,
or
1 in case of regular marriage.
(b) proper dower if unspecified, J
(c) specified or proper dower, whichever is less, in the case of irregular
marriage.
(2) If the marriage is not consummated, and is dissolved by the act of party:
(i) When divorced by the husband—
(a) half of the specified dower, or 1 in case of
(b) a present of three articles, if unspecified j' regular
J marriage
(ii) When divorced by the wife: No dower.
(iii) If the marriage is irregular in the cases } No dower.
(i) and (ii) above.
8. Widow's right to retain possession of her husband's estate in lieu of
unpaid dower
In Hamira Bibi v. Zubaida Bibi24. the Privy Council explained this special
right of the widow to enforce her demand for the payment of unpaid dower.
Delivering the judgment, Lord Parker observed:
"Dower is an essential incident under the Mussulman Law to the status
of marriage.. .the dower ranks as a debt, and the wife is entitled, along with
other creditors, to have it satisfied on the death of the husband out of his
estate. Her right, however, is no greater than that of any other unsecured
creditor, except that if she lawfully, with the express or implied consent of
the husband, or his other heirs, obtains possession of the whole or part of his
estate, to satisfy her claim with the rents and issues accruing therefrom, she
is entitled to retain such possession until it is satisfied. This is called the
widow's lien for dower, and this is the only creditor's lien of the Mussulman
Law which has received recognition in the British Indian Courts and this
Board."
In the same case, it was further held:
"When a widow is allowed to take possession of her husband's estate in
order to satisfy her dower debt with the income thereof, it is either on the
basis of some understanding as to the conditions on which she should hold

23. See, Tyabji, at p. 178-180.

24. (1916)43 IA 24.
Iv] DOWER (MAHR) 95

the property, or on no understanding. If there is an agreement, express or

implied, that she should not be entitled to claim any sum in excess of her
actual dower, she must abide by its terms. But where there is no such
understanding, and a claim is made as in the present case, the question arises
whether, on equitable considerations, she should not be allowed some
reasonable compensation, not only for the labour and responsibility imposed
on her for the proper preservation and management of the estate, but also for
forbearing to insist on her strict legal right to exact payment of her dower on
the death of her husband."
Their Lordships observed that the widow cannot be made to account for the
profits of the estate without being allowed reasonable compensation; this
compensation may be allowed in the form of interest on the dower. And 6 per
cent per annum interest was fixed in this case.
The other leading case on the point is Babee Bachun v. Hwnid Husain25,
where it was held that the possession of the husband's estate should have been
acquired by the wife without force or fraud, that is, it should be "peaceably and
lawfully acquired", as held later on in Mama Bibi v. Chaudhri Vakil Ahmad26.
The widow's right of retention does not create any right of the widow on the
property. She can simply retain the possession and appropriate the usufruct until
her dower debt is satisfied. She has thus no right to alienate the property by sale,
mortgage, gift or otherwise, and if she attempts to do so, she loses her right of
retention.27
In Kapore Chand case, the Supreme Court held that the widow is not
entitled to priority as against her husband's other unsecured creditors.
It is on the dissolution of marriage that the widow's right of retention comes
into existence. Where widow is already in possession of the property, it is
presumed that it was lawfully and peacefully obtained, unless otherwise proved.
The wife cannot obtain a lien during the lifetime of the husband. This special
right is a pure creature of Muslim Law which lays down as a general rule that the
creditors of a deceased Muslim are entitled to appropriate usufruct of any
property which they could get hold of. This general rule is now no more
applicable in its totality. The widow's lien "is the only creditor's lien of the
Mussulman Law which has received recognition in the British Indian Court..."29
The widow has no legal right to enter into possession of the property of her
deceased husband. She is only entitled to retain it after once getting it.

25. (187,1) 14 MIA 377.

26. (1924)52 IA 145.
27. Fyzee, alp. 144, citing Tyabji and Mulla.
28. Kapore Chand v. Kader Unnissa, 1950 SCR 747.
29. Hamira Bibi v. Zubaida Bibi, (1916)43 IA 294.
 96 MUSLIM LAW [Cp.

Widow's right to retain and enjoy her husband's property in lieu of unpaid
dower is not analogous to mortgage, usufructuary or other. Because, in the case
of a mortgage the mortgagee takes and retains possession under an agreement or
arrangement made between him and the mortgagor. Any rights the mortgagee
gets are conferred upon him by the mortgagor. But respecting widow's right of
retention neither the possession of the property nor the right to retain that
possession when acquired is conferred upon the widow by the agreement or the
bounty of her deceased husband. 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 on her by the Muslim Law. This has been amply made
clear by the Privy Council in Mama Biti v. Chaudhri Vakil Ah,nad30.
Those being the position, the rights available to a mortgagee are not wholly
available to the Muslim widow. Thus, where a Muslim widow , gets into
possession of her deceased husband's property which is already mortgaged with
another person, and if the mortgagee brings a suit on the basis of which the
property is sold, the purchaser can dispossess the widow and she cannot set up
the right to retain possession until her dower deb t is satisfied.3'
There is a conflict of opinion as to whether consent of the husband or his
heirs is necessary before the widow can enter into possession of the property.
This conflict is the result of the following passage in Privy Council's judgment
in 1-faniira Bibi case32.
"Her right, however, is no greater than that of any other unsecured
creditor, except that she lawfully, with the express or implied consent of the
husband or his other heirs, obtains possession of the whole or part of his
estate..."
From the above, the Calcutta and Patna High Courts have held that consent
is necessary.
But the Allahabad, Bombay, Oudh, Lahore, Peshawar and Madras High
Coucts hold that the Privy Council's observations are merely obizer dicta and
need not be followed strictly.
It is submitted that the latter view is correct. Because, keeping in view the
widow's special right, the consent of the husband or his heirs seems immaterial.
It is still not clear whether the widow's right of retention is transferable and
heritable or not? There is a plethora of conflicting judicial opinions on this point.

30. (1924)52 IA 145.

31. Arabi v. Kanhayalal, AIR 1926 Nag 307.
32. Hamira Bibi v. Zubaida Bibi, (1916)43 IA 294.
 DOWER (MAHR) 97
IV]

Some of the cases in which this right was held to be heritable are Azizullah
; Amir Hasan Khan v.
Khan v. Ahmad Au 33 ; Ali Bakhsh v. Allandad Khan 34
Mo/id. Nazir Husain 35 Mir Vaheed Ali v. Rashid Beg36.
Held, not heritable, in these cases (out of many) Muzzaffar Ali Khan . v.
Parbati37 ; Hadi Ali v. Akbar Au38.
As to the transferability of this right, Mulla observes:
"In Mama Bibi v. Chaudhri Vakil Ahmad 39, the Privy Council expressed
a doubt whether a widow can transfer either the dower debt or the right to
hold possession. All that can now be said with certainty is that the right to
hold possession is heritable. Though it cannot be said with certainty whether
it is also transferable, the balance of authority in India is in favour of the
view that it is also transferable. '140
Fyzee, however, holds a contrary view. 41 He says that the Mysore High
Court in Hussain case2, decided that the widow's right of retention is both
heritable and transferable; but the Patna High Court in Zobair Ahmad v.
Jainandon Prasad43 has held that it is not transferable. So, although there is a
conflict of opinion, yet in view of the Supreme Court observations in Kapore
Chand case44, it seems more probable that this right is not transferable. Recently,
the Andhra Pradesh High Court held in Ghouse Yar Khan v. Fatima Begwn45
that in Muslim Law a widow is entitled to retain possession of property for
dower debt, and right is alienable and heritable.
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
whicli the right to recover at 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.46

33. ILR (1885)7 All 353.

34. ILR (1910) 32 All 551.
35. ILR (1932)54 All 49'.
36. AIR 1951 Bom22.
37. ILR (1907) 29 All 643.
38. ILR (1898) 20 All 262.
39. (1924)52 IA 145.
40. Mulla, at pp. 321-322.
41. Fyzee, at pp. 144-145.
42. Hussain v. Rahim Khan, AIR 1954 Mys 24.
43. AIR 1960 Pat 147.
-. Kapore Chand v. Kader Unnissa, 1950 SCR 747.
45. AI' 1988 AP 354.
46. Verma, d P. 178.
 98 MUSLIM LAW [CRAP.

Illustrations47
(i) A Muslim dies leaving a widow, a daughter, and his father. The wife is
in lawful possession of her husband's property in lieu of her dower.
The widow dies leaving the daughter as her only heir. The daughter is
entitled to retain possession of the property. The father is not entitled
to possession of his share until he pays his proportionate share of the
dower debt. But if the widow herself has not obtained possession in
her lifetime, the daughter as her, heir is not entitled to go into
possession.
(ii) A Muslim dies leaving a widow and a brother. The widow is in lawful
possession of her husband's property in lieu of her dower. The brother
is not entitled to possession of his share until he pays his proportionate
share of the dower debt.
Now suppose, the dower debt remains unsatisfied, and the widow sells the
whole property to satisfy the debt, and delivers possession to the
purchaser. The effect of the sale is that it passes to the purchaser only
the widow's share and the right to possession of that share.
Consequently, the brother who was not until then entitled to
possession of his share without paying his share of debt, becomes
entitled to immediate possession of his share without making any
payment.
The widow is not entitled to have the possession restored back to her for h
giving up possession, she lost her right to hold possession. Whether
she is entitled to recover the dower debt out of the other properties of
her husband, is an open question.
9. Dower divorced from divorce and mated with maintenance

As we saw above the dissolution of marriage, either by divorce or death is

the farthest point to which the payment of dower can be postponed and no more
beyond it. In large number of cases the Muslim wife suddenly divorced by the
husband finds herself at the brink of destitution and has to pull all the resources
together to meet the' needs of future. Dower is one such source she taps for
money. Does dower then represent an amount payable by husband to the wife on
divorce? For the last one decade this question has been the bone of contention at
the courts, the legislature and the Muslim society. The genesis of this moot point
was the scheme of the complex of the provisions in Chapter IX of the Criminal
Procedure Code, 1973 designed with a social purpose. That Chapter is titled
Order for Maintenance of Wives, Children and Parents. Section 125(1) therein
obliges a person (irrespective of his religion) having sufficient means, to
maintain his wife, inter alia, including the one divorced by him, who is unable to
maintain herself. The Magistrate, who has to order such persons to fulfil his

47. MuIla 14th Edn. at p. 261.

 DOWER (MAHR) 99
IV]

family obligation, is further ordained by Section 127(3)(b) to cancel such order

on proof that the divorcee has received from her husband the whole of the sum
which under customary or personal law was payable on such divorce.
In Bai Tahira v. Ali Hussain48 the Supreme Court (Justice Krishna Iyer)
regarded Mahr as the sum payable under customary or personal law on divorce
as referred to in Section 127(3)(b) CrPC. Justice Krishna Iyer said: "Payment of
Mahr money as a customary discharge, is within the cognisance of that
provision".
Next year the same problem propped up again in Fuziunbi v. K. Khader
Va1i49 . Fuziunbi (F) and Khader (K) were married in 1966. They had a son from
the wedlock. K was an Additional Accountant in the State Bank of India,
receiving a salary in four figures. When he discarded F, she prayed for
maintenance under Section 125 CrPC. The Magistrate granted Rs 250 per month
for F and Rs 150 per month for the son as the maintenance charges on K.
Thereupon K played the usual trump card: he divorced F, tendered Rs 500 as the
total amount on account of Mahr and Rs 750 as the maintenance amount in total
for the period of iddat. Consequently the Additional First Class Magistrate
cancelled the maintenance order in terms of Section 127(3)(b). On appeal to the
High Court, the cancellation order was upheld. Therefrom F came in this appeal
before the Supreme Court. Is dower the sum to be paid on divorce? Although
answering the question in the negative for all its worth, the Supreme Court
conveyed an altogether different impression. Iyer, J. went on to say:
"May be somehow the masculine obsession of jurisprudence linked up
this promise or payment as a consolidated equivalent of maintenance after
divorce. May be, some legislatures might have taken it in that light, but the
law is to be as the law enacted. The language of Section 127(3)(b) appears to
suggest that payment of the sum and the divorce should be essentially parts
of the same transaction so as to make one the consideration for the other.
Such customary divorce on payment of a sum of money among the so-called
lower castes are not uncommon. At any rate the payment of money
contemplated by Section 127(3)(b) should be so linked with divorce as to
become payable only in the event of the divorce."50
Paras Diwan5 ' wrote that about the concept of Mahr two misconceptions
prevailed. One was that it was in consideration of marriage (Mulla) and the other
was created by the statement that dower (or at least the deferred dower) was
payable by the husband to the wife on divorce; in Bai Tahira (supra) the

48. (1979)2 SCC 316: 1979 SCC (Cr1) 473: AIR 1979 Sc 362.
49. (1980)4SCC 125:1980 SCC (Cri)916: AIR 1980 SC 1730.
50. ibid, at p. 1736 (AIR).
51. Paras Diwan, Dowry and Protection to Married Women (Deep & Deep, New Delhi 1987)
alp. 135.
 100 MUSLIM LAW [CHAP.

Supreme Court fell into the trap of regarding Mahr the sum payable on divorce
as referred to in Section 127(3)(b).
Though the Supreme Court did connect dower with the 'sum' envisaged by
Section 127(3)(b), the Court did not hold dower to be a compensation or a
consideration for divorce. The following observations of Krishna Iyer, J. in
Fuziunbi case52 should dispel doubts:
"The quintessence of Mahr, whether it is prompt or deferred is clearly
not a contemplated quantification of a sum of money for maintenance on
divorce. Indeed dower focusses on marital happiness and is an incident of
conjugal joy. Divorce is farthest from the thought of the bride and the
bridegroom when Mahr is promised. Dower may be prompt, which is
payable during marriage and cannot therefore be a recompense for divorce...
Mahr as understood in Muslim Law cannot under any circumstances be
considered as consideration for divorce or a payment made for loss of
connubial relationship.1152
It was however in Me/id. Ah,'ned Khan v. Shah Bane Bcgum 53 that the Court
divorced dower from divorce. Mohd. Ahmad Khan was married to Shah Bano in
1932. He (a) drove the respondent (b) out of the matrimonial home in 1975.
In
1978 B filed a petition in the Court of the Judicial Magistrate, Indore for
maintenance at the rate of Rs 500 per month. The same year A divorced B by an
irrevocable talak. A's defence to the maintenance petition was now on the
traditionally set line—B was no more his wife; he had paid Rs 200 per month for
two years to B and deposited Rs 3000 in the court by way of dower during the
period of iddat. The Madhya Pradesh High Court nevertheless fixed Rs 179.20
as the monthly maintenance. A came in appeal against this order. A's second
plank of argument was that B's application under Section 125 CrPC was liable to
be dismissed because of the provision contained in Section 127(3)(b) that
ordained the Magistrate to cancel such order of maintenance on proof that the
divorcee had received from her husband the whole of the sum which under
customary or personal law was payable on such divorce. That raised the question
whether under Muslim Law any sum was payable 'on divorce'. Appellant's
argument was that Mahr was the sum payable by husband to the wife on divorce.
The Court rejected this argument on the following reasoning:
"The fact that deferred Mahr is payable at the time of dissolution of
marriage, by death or by divorce, cannot justify the conclusion that it is
payable on divorce. Divorce may be a convenient point of time for
identifying the time at which it is payable. But the payment is not
occasioned by the divorce which is what is meant by the words 'on divorce'

52. Fuzlunbi v. K. Khader VaIi,

(1980)4 SCC 125: 1980 SCC (Cr1) 916: AIR 1980 Sc 1730 at p.
1736.
53. (1985)2 scc 556: 1985 scc (cr1) 245: AIR 1985 SC 945.
 IV] DOWER (MAHR) 101

under Section 127. If Mahr is the amount which the wife is entitled to
receive from the husband in consideration of marriage, that is the very
opposite of the amount being payable in consideration of divorce. Divorce
dissolves the marriage. Therefore no amount which is payable in
consideration of the marriage can possibly be described as an amount
payable in consideration of divorce. The alternative premise that Mahr is an
obligation imposed on husband as a mark of respect for the wife is wholly
detrimental to the stance that it is an amount payable to the wife on divorce.
A man may marry a woman for love, looks, learning or nothing at all. And,
he may settle a sum on her as a mark of respect for her. But he does not
divorce her as a mark of respect. Therefore a sum payable to the wife out of
respect cannot be a sum payable 'on divorce'."54
The Court therefore pronounced that:
"Though Bai Tahira55 is correctly decided, an error has crept into the
judgment. There is a statement at p. 321 (SCC, para 11) that 'payment of
Mahr money as a customary discharge, is within the cognisance of that
provision'. We have taken the view that Mahr, not being payable on divorce
does not fall within the meaning of that provision.1156
Thus, the Court divorced dower from divorce in one important sense,
namely, the mere fact of payment of dower on divorce could not lock out the
considerations of the human aspects of the divorced woman's financial
condition:
"If the first payment by way of Mahr ordained by custom has a
reasonable relation to the object and is capitalised substitute for the order
under Section 125 of the Code of Criminal Procedure—not mathematically
but fairly, then Section 1 27(3)(b) subserves the goal and relieves the obliger,
not pro tanto but wholly.1157
The Court was aware that merely divorcing dower from divorce could not
serve the constitutional objective of economic justice to that one individual, viz.
the destitute divorcee. In fact the very objective of divorcing dower from divorce
(in the sense of a quid pro quo for divorce) was to remove an obstacle to a
maintenance claim for divorcee that would maintain her in fact. The Court
commented in Shah Bano58 that the provision contained in Section 1 27(3)(b)
may have been introduced because of the misconception that dower is an amount

54. Mohd. Ahmed Khan v. Shah Baiio Begum, (1985) 2 SCC 556: 1985 SCC (Cii) 245: AIR 1985
SC 945 at pp. 952-954.
55. Supra, n. 48.
56. Ibid, at p. 572 (SCC).
57. Baj Tahjra v. All Hussajn (1979) 2 SCC 316: 1979 SCC (Cri) 473: AIR 1979 Sc 362 at p.
365.
58. Mohd. Ahmed Khan v. Shah &mo Begum, (1985) 2 SCC 556: 1985 SCC (Cii) 245: AIR 1985
SC 945.
102 MUSLIM LAW

payable 'on divorce'. But that cannot convert an amount payable as a mark of
respect for the wife into an amount payable on divorce. The sum settled by way
of Mahr is generally expected to take care of the ordinary requirements of the
wife, during the marriage and after. But these provisions of Muslim Personal
Law do not contenance cases in which the wife is unable to maintain herself after
the divorce. Section 125 envisages such situation. If she is unable to maintain
herself she is entitled to take recourse to Section 125. There is no conflict
between the provisions of Section 125 and those of Muslim Personal Law on the
question of Muslim husband's obligation to provide maintenance to her. There
can be no greater authority on this question than the Holy Koran: 'And for the
divorced woman (also) a provision (should be made) with fairness (in addition to
her dower); (this is) a duty (incumbent) on the reverent'—Allamah Nun, The
Running Commentary of the Holy Koran. There is no escape from the conclusion
that a divorced Muslim wife is entitled to apply for maintenance under Section
125.56
The latest law on the point is the Muslim Women (Protection of Rights on
Divorce) Act, 1986, a law commonly known as a sequel to the Shah Bano59
decision. Section 3 of the Act strikes a consonant note with Shah Bano ruling
that dower is not an amount payable on divorce, i.e., for divorce. Section 3(l)(c)
reads as follows:
"Mahr or other properties of Muslim woman to be given t her at the
time of divorce:
(1) Although anything contained in any other law for the time being in
force, a divorced woman shall be entitled to—
(c) an amount equal to the sum of Mahr or dower agreed to be paid to
her at the time of her marriage or at any time thereafter according
to Muslim Law."
According to sub-clause (a) a divorced Muslim woman shall be entitled to—
a reasonable and fair provision and maintenance to be made and paid to
her within the iddat period by her former husband,
and if he fails, she can make an application to a Magistrate for an order for
payment of such provision and maintenance, Mahr or dower or the delivery of
properties, as the case may be, under Clause (2). It may further, be carefully
noted that Section 3 enumerates four kinds of rights besides Mahr to which she is
entitled (including maintenance), and the Act nowhere absolves the husband of
'making and paying' her properties and rights on the ground of having paid her
dower.

59. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 245: AIR 1985
SC 945 at p. 572.
 V

Divorëe
(Talak)

It is a popular fallacy that a Muslim male. njoys under the Koranic Law
an unbridled authority to liquidate the marriage. The whole Koran expressly
forbids a man to seek pretexts for divorcing his wife so long as she remains
faithful and obedient to him. Indeed a deeper study of the subject discloses a
surprisingly rational, realistic and modern law of divorce.
—Justice V.R. Krishna Iyer

1. Pre-Islamic background

Among the pre-Islamic Arabs, the power of divorce possessed by the

husband was unlimited. They could divorce their wives at any time, for any
reason or without any reason. They could also revoke their divorce, and divorce
again as many times as they preferred. They could, moreover, if they were so
inclined, swear that they would have no intercourse with their wives, though still
living with them. They could arbitrarily accuse their wives of adultery, dismiss
them, and leave them with such notoriety as would deter other suitors; while they
themselves would go exempt from any formal responsibility of maintenance or
legal punishment.'
According to Abdur Rahim, at least four various types of dissolution of
marriage were known in pre-Islamic Arabia. These were Talak, ha, Zihar and
Khula. A woman if absolutely separated through any of these four modes was
probably free to remarry, but she could not do so until sometime, called the
period of iddat, had passed. It was to ascertain the legitimacy of the child. But it
was not a strict rule. Sometimes, pregnant wife was divorced and was married to
another person under an agreement. It is interesting to note that the period of
iddat in case of death of husband then was one year.

1. See, Ibrahim Abdel Hamid, "Dissolution ofrriage" Islamic Quarterly (1956) 3 at pp. 166.
75, 215-223; (1957)4 at pp. 3-10, 57-65, 97-113.
 MUSLIM LAW [CHAP.
104
2. After the advent of Islam
The Prophet of Islam looked on these customs of divorce with extreme
disapproval and regarded their practice as calculated to undermine the
foundation of society. It was impossible, however, under the existing conditions
of society to abolish the custom entirely. The Prophet had to mould the mind of
an uncultured and semi-barbarous community to a higher development.
Accordingly, he allowed the exercise of the power of divorce to husbands under
certain conditions. He permitted to divorced parties three distinct and separate
periods within which they might try to reconcile their differences; but should all
attempts at reconciliation prove unsuccessful, then in the third period the final
separation became effective.2
The reforms of Prophet Muhammad marked a new departure in the history
of Eastern legislation. He restrained the unlimited power of divorce by the
hus sand and gave to the woman the right of obtaining the separation on
reasonable grounds. He pronounced "talak to be the most detestable before God
of all permitted things" for it prevented conjugal happiness and interfered with
the proper bringing up of children. Ameer Ali asserts:
"The permission (of divorce), therefore, in the Koran though it gave a
certain countenance to the old customs, has to be read in the light of the
lawgiver's own enunciations. When it is borne in mind how intimately law
and religion are connected in the Islamic system, it will be easy to
understand the bearing of his words on the institution of divorce."3
An effective check placed by Islam on frequent divorce and remarriage was
that in case of irrevocable separation, it is essential for remarriage, that the wife
should marry another man, and this marriage should be consummated before
divorce, and the wife should observe iddat. This was a measure which rendered
separation more rare. Certain critics accuse this procedure as "a disgusting
ordeal" and "revolting", but they ignore that among a proud, jealous, and
sensitive race like the Arabs, such a condition was one of the strongest antidotes
for the evil. It intended to control one of the most sensitive nations of the earth,
by acting on the strongest feeling of their nature, the sense of honour.4
Fyzee says that it is sometimes suggested that the greatest defect of the
Islamic system is the absolute power given to the husband to divorce his wife
without cause. Dower to some extent restricts the use of this power. But
experience shows that greater suffering is engendered by the husband's
withholding divorce than by his irresponsible exercise of the right.5

2. Ameer All, The Spirit of Islam, London. 1965 at pp. 243-44.

3. Ibid,at p. 244.
4. Ibid, at pp. 245-46.
5. Fyzed "The Muslim Wife's Right of Dissolving her-Marriage" (1936) 38 Born Law Reporter.
' LJII3.
 V] DIVORCE (TALAK) 105

Tahir Mahmood points out that 'in India the courts, gradually realizing that
the concept of Talak has been very much misunderstood in the past, have made
appreciable efforts to remove the misconceptions in this respect, ... In Pakistan
and Bangladesh instant talak is no more possible and the cases of divorce are
now regulated by Section 7 of the Muslim Family Laws Ordinance, 1961 whiàh
subjects it to the true Islamic procedure for the same.6
3. Modes of dissolution of marriage

Among the books on Muslim Law, including that of Baillie, Wilson, Tyabji,
Ameer Ali, Mulla and Saksena, the best classification of divorce has been given
by Fyzee. His method of classification is more scientific and easy to grasp, and
hence, it has been adopted here with little additions. The discussion which
follows in the sequence, however, is not confined to Fyzee alone.
CLASSIFICATION
A. B y THE DEATH OF HUSBAND OR WIFE
B. By THE ACT OF PARTIES

1. By the husband

(i) Talak:

(a) Talak-us-Sunnat
f Ahsan (most approved).
Hasan (approved).
Triple divorce.
Triple divorce.
(b) Talak-ul-Biddat
j1 One irrevocable divorce (single)
(generally in writing).
(ii) ha (Vow of continence). ..
(iii) Zihar (Injurious comparison).
2. By the wife
Talak-e-Tafwid (delegated divorce).
3. By mutual consent
(1) Khula (redemption).
(ii) Mubarat (mutual freeing).

6. Tahir Mahmood (Ed.), Fyzee. Cases. . . at pp. 158-59.

 106 MUSLIM LAW [CHAP

C. B y JUDICIAL PROCESS

1. Lian (mutual imprecation).

2. Faskh (judicial annulment).

A. By the death of husband or wife.—It is clear and natural that with the
death of husband or wife the marriage tie comes to an end. When the wife dies,
the husband may remarry immediately, but in case of husband's death, widow
has to wait till the expiry of iddat (4 months and 10 days, or if pregnant, till
delivery).
B. By the act of parties

1. By the Husband
(i) Talak.—In its literal sense this Arabic word means "taking off any tie
or restraint", and in law it signifies the dissolution of marriage. In Hanafi Law,
no special form or phrase is necessary to pronounce talak. The Ithna Ashari
Law, however, insist on strict adherence to a form, that is, it must be in the
Arabic language uttered orally, in the presence and hearin g of two male
witnesses, who should be honest and virtuous Muslims. Even the presence of the
wife is not required. The talak would be deemed to have taken effect on the date
the wife came to know of it. 7 Communication of talak becomes necessary in
certain cases, as when the wife has to observe iddat and the dower becomes
payable during iddat. While the Sunnis permit oral and written—both types of
talak, Shias insist on oral talak. Any words may be used and it may be given at
any time. In fact, while facing proceedings for maintenance, as for example
under Section 125 CrPC (old Section 488), it is a common practice for the
husband to take the plea that he had pronounced talak on his wife, and the courts
regard it as a conclusive fact of completed divorce. 8 The practice of talak almost
defies any bondage. The husband holds the key, to assign no reason, to go to no
court, take no consent of the wife, give no regard to her condition, follow no
p ucedure or formality, and just pronounce talak. 'How he does it, when he does,
or in what manner he does it, is not very material'. 9 In Hannefa v. Pathummal'0,
the judicial conscience of Khalid, J. was so much perturbed that he termed the
practice as a monstrocity. -
That was thirty five years back. But in 2007 the same High Court let slip a
chance to make even a marginal change in the position. In Alungaprambil Abdul

7. Ful Chand V. Nazab All Choudhari, ILR (1909) 36 Cal 185;

Mohd. Shamsuddjn V. Noor
Jahan, AIR 1955 Hyd 144.
8. Chunno Khan v. State, 1967 All WR 217.
9. Paras Diwan, Muslim Law in Modern India, ALA (1985) at p. 76.
lO. 1972KLT512.
vj DIVORCE (TALAK) 107

Khader Suliud v. State of Keral&', the petitioner a Muslim wanted to marry

under Special Marriage Act, 1954 and get his marriage solemnised and
registered under the provisions of the Act. Under this Act a marriage cannot be
registered if another spouse is living or a Court decree of the dissolution of
existing marriage is not produced. The petitioner had given talak to the earlier
wife but possessed no certificate required as above and insisted that as per his
Muslim Personal Law he need not get a decree from a civil court for a valid
divorce and what he needs is only a certificate from the concerned Jama-Ath to
the effect that divorce has been effected in accordance with personal law. This he
had filed; the State insisted on proper court decree. The Kerala High Court held
that the State cannot insist on a decree of divorce and a certificate from a Muslim
Jama-Ath must be accepted by the State.
This was a writ petition. We submit the learned Single Judge of the High
Court should have taken into consideration the possibility of the alternative
remedy available to the petitioner, namely, marriage under traditional personal
law. In this case a secular law condition bas .been bent to accommodate a
personal law practice, without giving any convincing reasons. Where and what
would be the limit? The secular legal world should consider, in view of the latest
judicial decisions and academic opinions discussed below towards the end of this
chapter, whether registration of Muslim divorce, effected as much under
personal law as a marriage contracted under the same personal law, should also
be compulsorily required under State authority. This would indeed facilitate the
judicial supervision of the adherence to the pure Koranic injunctions for a valid
talak, as recently insisted by the Supreme Court and the various High Courts.
(a) Talak-us-Sunnal, that is, a talak which carries the approval of the
Prophet. It may be in the most approved form, i.e., ahsan; or hasan, i.e., simply
an approved form.
Ahsart.—Hedaya brands it as the most laudable divorce, where the husband
repudiates his wife by a single pronouncement in a period of tuhr (purity, i.e.,
when the wife is free from her menstrual courses), during which he has not had
intercourse with her, and then leaves her to the observance of iddat. The divorce
remains revocable during the iddat, and the parties retain the right of
inheritance. 12 According to the Hedaya, this method of divorce is the most
approved because the companions of the Prophet approved of it, and second,
because it remains within the power of the husband to revoke the divorce during
iddat, which is three months, or till delivery. 13
In a marriage not yet consummated, ahsan talak may be pronounced during
menstruation also. Where the wife and husband are living separate from each

11. (2007) 1 DMC38 (Ker).

12. Fyzee, at p. 152.
13. Hedaya, at p. 72.
 MUSLIM LAW [CHAP.
108

other, or where the wife is beyond the age of menstruation (i.e. in old age), the
condition of tuhr is not applicable, 14 it is also not applicable to a written divorce.
This ta/ak may be revoked either by express words, or impliedly by cohabitation
within the iddat period. On such revocation, it is not necessary for the wife to
undergo intermediary marriage, the husband can simply say 'I have retained
you'. After the iddat period lapsing without revocation, the ta/ak becomes final
and irrevocable.
Hasan.--In ta/ak hasan, the husband successively pronounces divorce three
times during consecutive periods of purity (tuhr). It is, therefore, "a divorce upon
a divorce", where the first and second pronouncements are revoked and followed
by a third, only then talak becomes irrevocable. It is also essential that no
intercourse should have taken place during that particular period of purity in
which the pronouncement has been made. This may be illustrated thus— When
the wife is in tuhr, without having intercourse with her, the husband pronounces
talak. Then he revokes it by words or by intercourse. Menstruation follows.
Again when she is in tuhr, and before intercourse, the husband pronounces ta/ak.
Intercourse follows (i.e. repudiation). Again menstruation follows. Now during
tuhr, without having had intercourse, he pronounces ta/ak. This is final, and
divorce becomes irrevocable.
Where the wife is not subject to menstrual courses, an interval of 30 days is
required betv.'ee each cuccecive repudiation. Takth hasan tries to put in end to
a barbarous pre-Islamic practice to divorce a wife and take her back several
times in order to ill-treat her. Through this method of ta/ak, the husband has been
given two chances of divorcing and then taking the wife back, but the third time
he does so, the ta/ak becomes irrevocable. In this way, the process of divorcing
and repudiating cannot be continued indefinitely. Thus, it is a kind of relief to the
wife from the harassment and tension on account of uncertainty that the Arabs
could cause her by repeated talak and revocations without limit. The Prophet
restrained them to the limit of three repetitions. Further shackle on the
overbearing males was by way of the requirements of intermediary marriage, its
consummation and divorce before remarriage with such wife. Of course the
aspect of her further humiliation involved in this process was overlooked.
(b) Takk-ul-Biddat.—Here the husband does not follow the approved
form of ta/ak i.e., talak-us-sunnat, and neither pays any attention to the period of
purity nor to the abstention from intercourse. This was an escape lane from the
restrictions imposed by the Prophet, as we saw just above. As Ameer Ali
observed, the Omayyad monarchs finding that the checks imposed by the
Prophet on the facility of repudiation interfered with the indulgence of their

14. Chandfiibiv. Bandesha, AIR 1960 Born 121.

V] DIVORCE (TALAK) 109

caprice, endeavoured to find an escape from the strictness of law and found a
loophole to effect their purpose. 15
Triple divorce—Hedaya fines it as a divorce where the husband
repudiates his wife by three divorces in one sentence, or where he re ts the
sentence, separately, thrice within tuhr. 16 Such a divorce is lawful, although
sinful, in Hanafi Law; but in Shia Law it is not permissible. 17 Thus, he m'y
pronounce 'I divorce you, I divorce you, I divorce you'; this is triple divorce, or
he may say 'I divorce you thrice'. Even the triple form is not an indispensable
requirement. He may say 'I divorce you in talak-ul-biddat or talak-ul-bain
form'. Where the intention is clear the divorce is irrevocable. None of these
forms is recognised by Shias. After such divorce also, like in hasan Tqlak,
intermediary marriage is necessary for reunion. This condemned form is
considered heretical because of its irrevocability. Talak-ul-biddat is good in law
though bad in theology, and is most commonly practised in India. 18 The courts
have refused to derecognise it)9
One Irrevocable Divorce.—The husband may say that he divorces his wife a
hundred times, the talak is complete. So also if he shows his intention in writing.
For example he writes: "I, by my free will, divorce my wife by one bain talak
(irrevocable divorce), and renounce her from the state of being my wife," 20 an
irrevocable divorce has been effected.
Talak—When becomes irrevocable.—(i) Talak ahsan becomes irrevocable
on the completion of the period of iddat. (ii) Talak hasan comes into force on the
very point when the third pronouncement is made. Iddat factor has no influence
on it. (iii) Talak-ul-Biddat of both types—triple or single—also becomes
irrevocable right on pronouncement. (iv) In case of unconsummated marriage
talak becomes irrevocable right on pronouncement. (v) A written talak comes
into effect from the moment of its execution, unless it is ambiguous.2'
Effect of Compulsion, Intoxication or Jest.- 22 1­lanafi jurists consider a talak
given by a man under compulsion as valid, while Imam Shafli, Malik and
Hanbal and Shia jurists consider it as invalid.

15. Ameer All, Vol. 11 at p. 274.

16. Hedaya, at p.73.
17. Fyzee, at p. 154.
18. Sarabhai v. Ralia Bai, ILR (1906)30 Born 537.
19. FazlurRahman v.Aisha, ILR (1929)8 Pat 690.
20. Mulla, at p. 330.
21. See, K.P. Sharma, Muslim Vidhi (Hindi) (Rajasthan Hindi Granth Academy, Jaipur 1983) at p.
168.
22. Only Hanali jurists hold that a divorce given under compulsion, intoxication and jest will be
valid. Hanafi Law is followed by a majority of Muslims in India, hence, the above types of
divorce shall be perfectly effective in India. The rule, however, has been criticised by Ameer
All, Fyzee and others.
 110 MUSLIM LAW [CHAP.

Divorce given under the influence of intoxication is valid according to

Hanafi Law, whereas Shias do not recognise it. Hanafi jurists hold that when a
husband becomes intoxicated of his own free will, and repudiates his wife, the
divorce is valid; but if he was intoxicated under a compulsion or from necessity,
there is no divorce.23
1-lanafi Law, as distinguished from the Shia Law, holds a divorce
pronounced in jest (joke, fun, non-seriously) as valid (Hedaya).
Commenting on talak-ul-biddat, Professor Anderson recently observed:
"As the law now stands in India, a formula of divorce uttered by a
Hanafi husband under compulsion, intoxication, or the influence of such
rage as deprives him of self-control is regarded as valid and binding—
although legislation, based on authorities in the other schools of law which
are of unquestionable repute, has been introduced in one after another of the
Muslim countries to ensure that this 'dominant Hanafi Opinion' should no
longer be followed by the courts. Reforms to ensure that formulae of
repudiation oronounced merely as an oath or threat should also be regarded
as of no legal effect, and that the 'triple' divorce when pronounced on one
and the same occasion should be regarded as only a single (and therefore
revocable) divorce, have also been widely accepted in Muslim countries.
These find their juristic justification partly in the dicta of jurists of the past,
both Sunni and Shia; partly in the statement that the triple formula when
pronounced on one and the same occasion counted as a single repudiation in
the time of Prophet of Islam and his first successor, and that it was only in
the time of Umar that this was changed with the intention of restraining
husbands from an increasingly common abuse; and partly on the broad
grounds that these practices represent manifest evasions of the spirit, if not
the letter of the Islamic reforms—introduced as these were to ensure that a
husband would have a reasonable opportunity to think better of, and retract,
a formula of divorce uttered in the heat of the moment. -
Evcn so, thcc rcfoimis do nuhing whatever to restrain a husband who is
determined to divorce his wife from doing so, however unjustified his action
may be. More recent legislation iii some Muslim countries, therefore, often
introduces one ot more of three further reforms. The first empowers a court
to compel a husband who repudiates his wife without adequate reason to pay
her some financial compensation in addition to such maintenance as may be
due to her. The second insists that no formula of divorce pronounced outside
a court of law, and before any attempt has been made to reconcile the
parties, will be legally recognised ... the third, which is up till now peculiar to
Iran, not only prescribes that no divorce may be effected before a certificate
of impossibility of reconciliation has been granted, but also enacts that such

23. Jung, at p. 50.

V] DIVORCE (TALAK) III

a certificate will in no case be issued unless the request for this certificate is
based on one of a list of permissible reasons for divorce."24
Implied and Contingent Divorce.—The word talak has unequivocal meaning
viz., repudiation of marriage. It is an express word. But when other words are
used in its substitution, such as 'I have severed all relations with you', 'I will
have no connection with you', 'you are no more my wife', etc., these words are
implied forms of talak. These words would require construction with reference
to intention to establish the factum of talak. In contingent zalak the husband ties
the effectiveness of talak to the happening of some event in future; that event not
happening, the marriage is to continue. Thus when he says: 'I shall divorce you
if you do such and such thing'—it is a contingent talak. If the eventuality is not
an impossibility, on the happening of that event, talak is materialised. In Hamid
Ali v. Imtiazan25 , the husband said to his wife 'if you go to your father's house,
you are my cousin (paternal uncle's daughter). In spite of this threat, the wife
went to her father's house. This was an implied divorce in terms of the indirect
words, and a contingent divorce as well, the contingent event being her going to
her father's house. The court held it a talak, overlooking the fact that 'cousin'
did not fall within the prohibited degrees of relationship. 26 The Shias do not
recognise implied and the contingent ta1ak, the Sunnis do so. Contingent divorce
is called talak-e-taliq.
(ii) liii (vow of continence).—Ila is when a person swears that he will not
have sexual intercourse with his wife and abstains from it for four months, the
divorce is effected. The Hanafi jurists argue that since the husband acted unjustly
towards his wife, it is equitable that on the expiration of four months he should
be deprived of the benefit of marriage. 27 The Shaflis and Shias consider that such
a vow does not amount to divorce, but only gives the wife a ground to seek
judicial divorce. In Sunni Law legal proceedings are not required. The intent of
the husband must be expressed clearly. In Rahema Khatoon v. !qtidar- Uddin28
the husband, on entering the room of the wife on the very first day of the
marriage called her 'a wife in name only'. The court refused to accept it as an ha
in absence of a clear intention. According to Asharis this form of divorce can be
given only when the marriage has been consummated. The Hanafi Law provides
that ha can be retracted by resumption of cohabitation or even by verbal
retraction if actual cohabitation is not possible due to some reasons. Even after
the expiry of 4 months the husband can cancel ha with the assent of the wife. ha
is not in practice in India.

24. In Tahir Mahmood (Ed.), Islamic Law in Modern India at pp. 39-40.
25. ILR(1878)2 All 7I.
26. Paras Diwan, op. cit., at p. 78.
27. Jung, at p.66.
28. AIR 1943 All 184.
112 MUSLIM LAW [CHAP.

(iii) Zihar (injurious corn parison).—Zihar signifies a husband's

comparison of his wife with his mother or any female relation within the
prohibited degrees. In Zihar, the usual phrase is "thou art to me as the back of
my mother'. The uttering of Zihar does not by itself dissolve the marriage; its
legal effects are that sexual intercourse between them becomes unlawful till he
has expiated himself by performing penance, and two, the wife can claim judicial
separation or even a regular divorce if he continues to behave irresponsibly in
this fashion. According to Ameer Ali the intention of the husband must be to
show disrespect to the wife. Shia Law requires presence of two witnesses to
testify the Zihar. It seems Zihar was practised to dissolve Muta marriage which
admits no other form of talak. Zihar s also out of vogue, 'these words do not
naturally come to Muslims in India' (Tyabji).
2. By the wife.—Talak-e-Tafwid (d legated divorce).
Baillie defines it as follows29:
"As a man may in person repudiate his wife, so he may commit the
power of repudiating her to herself or to a third party"
That is, the husband may delegate the power of divorce to his wife. He may
do so at the time of marriage contract or at any time when he so likes.
This doctrine is peculiar to the Muslim Law and has no parallel in other
systems. Fyzee says that this form of delegated divorce is now beginning to be
fairly common in india. The Indian High Courts nave repeatedly nelu as valid
the agreement by which the husband authorises the wife to divorce herself from
him in the event of his marrying a second wife without her consent.30
There are three forms of taftvid.3'

29. Baillie, at p. 236.

30. Fyzee, at p. 159.
1 The three forms are (i) ilthtiyar (choice) (ii) amr hivd (the affair is in your haMc):
,nashiat (at your pleasure). But the technical difference meant to be indicated by these
expression's is not of any importance in India where the Arabic language is not used. (Fyzee,
159). Lucy Carroll and Harsh Kapoor in their "Information Kit: Talaq-i-Tafwid: The Muslim
Womans Contractual Access to Divorce", (Readers and Compilations Series, Published by
Women Living under Muslim Laws, 1996) have printed, 'to facilitate its more general use', a
"Bombay Woman's Nikahnama" drafted by a group of progressive Muslim women in Bombay
(sic). This format (of a contract) prescribes a few conditions 'binding' on both the Hanfi
parties. Some of the mentioned are: amount of Mahr (on demand type as well as deferred
type), ban on pressurising the wife to remit or reduce it, requirement of her consent for second
marriage, recognition of wife's delegated right and power of divorce, requirement of
maintenance during iddat, ban on Talaq-uI-bain by husband, fine of double Mahr if he violates
the ban, medical examination by both in case of non-conception.... (at pp. 99-101).
The authors have also included in their 'Kit' Danial Latifi's Note on Sanad-e-Nikah. Latifi
says that written marriage contracts have been in vogue among upper class Muslims since
Mughal times, and although writing is not essential to a marriage contract (Nikah Namas,
Kabin Namas, Sanad-e-Nikah), the Koran itself enjoins that all transactions should be reduced
to writing because so to do is "juster in the sight of God, better as evidence and conducive to
prevent disputes" (Koran Ch. 11 verse 282). But, overriding all these commendations is the
 DIVORCE (TALAK) 113
V]

The delegation must be made in clear terms and the circumstances in which
the wife (or a minor wife's guardian) is to exercise the choice must be spelt
clearly. The conditions must not be opposed to public policy. Thus delegation of
the right to talak if the husband fails to pay her maintenance may be delegated.32
The wife must exercise her option expressly, mere happening of the stipulated
event would not per se result in talak. The power may be delegated at the time of
nuptial agreement or during the married life. The power so delegated cannot be
revoked by the husband. The wife may exercise the power to counter a suit for
restitution of conjugal rights instituted by the husband, and that exercise will
result in talak. 33 Even when the wife exercises the option, it will be called a
divorce of wife by husband, as she would be acting on his behalf. In spite of the
delegation the husband retains the right to talak her according to his choice.
The Executive Committee of the All India Muslim Personal Law Board in
its meeting held at Lucknow in December 2004 adopted a model marriage
contract (Nikahnama). The Assistant Secretary-General of the Board stated that
this model marriage contract contained guidelines for the Muslim couples. The
Nikahnama forbids triple talak as it is condemned a sin. Arbitrary, one way
decision is discouraged; in case of a dispute the eldermen of the concerned
families should sit together to resolve it; if the dispute still persists, the case
should be referred to a Muslim Adalat or a Shariat Panchayat or sent to a local
Ulema and the decision of these should be accepted by both the parties. The
Nikahnwna also contains the necessity of good relationship, the details of
responsibilities and duties during the married life. A wide public drive for the
acceptance and practice of this Nikahnama is also proposed. This new scheme
required the sanction of the Board at its General Body Meeting.
And the Board approved the plan of the Executive Committee at its
conference held at Bhopal in April-May 2005. Releasing the model Nikahnama
the Secretary of the Board said this model marriage contract was 'different' from
the other Nikahnamas in vogue in the country and was a true model. The
proforma contains three basic features: The first part of the Nikahnama contained
the names of the bride and the bridegroom, their addresses, age and other
personal profile. The 'bard insists on two witnesses; the names of these with
their address and signatures would also be noted. Some tips to the couple for a
happy married life l'ave also been included, along with words of caution on do's
and don'ts; like keeping the marriage ceremony as simple as possible, refraining
from asking for or offering dowry, and also lavish parties, check on expenses,

following note by Latifi at the same place: "It is well-known that Muslim marriage is a civil
contract and therefore it is permissible to stipulate therein terms not inconsistent with Muslim
Law. When an illegal condition is annexed to a marriage, the contract is noi cancelled by it,
but the condition itself is void, leaving the marriage unaffected. So says Fatawa-i-A!amgiri
22.
Baillie 's Digest of Muhammadan Law, Vol. 1(2nd Edn.) at p. 19.—Lucy Carroll, etc. at p.
32. Hamidoolla v. Feizunnissa, ILR (1882)8 Cal 327.
33. Sainuddin v. Latifannessa Bibi, hR (1919)46 Cal 141.
114 MUSLIM LAW [CHAP.

respecting each other's sentiments, overlooking each other's drawbacks and

protecting mutual interests. The second part contains cautions on Talak. Menfolk
should refrain from pronouncing talak, three times at one go. On uttering talak
one time and letting the iddat period (three months) to complete the husband and
wife get separated. But between the period of the uttering of one lalak and the
completion of iddat reapproachment is possible and they may then restart a joint
life. Contrarily, a triple pronouncement at one sitting closes the door on such
patch up. This possibility should always be kept alive, and therefore triple
announcement should be shunned. If joint life is not possible, the couple should
resort of darul kaja, and its decision should be abided by both. The third part
deals with Mahr. The Mahr amount should be handed over to the female right at
the time of the marriage. If this be difficult, part payment should be made and
balance remitted at the earliest. There is a piece of advice here: Cash amount is
exhausted soon, therefore the rnahr amount should be paid in kind like gold,
silver, immovable property, so that it appreciates with the passage of time
leaving something substantial with the lady after the divorce.
The point of appropriate age at the time oi marriage is left unattended ny the
Board's model Nikahnama. The Shariat regards the age of 15 years as fit for
marriage. The Board rejected the demand for according equal right to the women
to divorce the husband. The Board's logic is that the Islam confers the right of
Khula to the wife. The Women's Associations contended that although the
women gel divuiec undes the Khuin system, buit they are deprived ad
other rights. The Board counter-contended that under Islam marriage is a
contract, when the man breaches this contract, he knows that he will have to
fulfil his obligations towards the wife and the children. But when the demand for
talak is initiated by the wife, he is not bound to fulfil these obligations; therefore
when she is dissolving the marriage, she will not get the benefits of economic
support from her husband.
3. By mutual consent.—(i) Khula (redemption).—If the mutual relationship
between the husband and wife is not good, the wife, if she so desires, may seek a
Khula divorce, e.g. by relinquishing her claim to the dower. It, however, entirely
depends upon the husband to accept the consideration of dower and to grant the
divorce. A husband may similarly propose a Khula divorce; the wife may accept
or refuse it. 34 If she accepts, it means that she has relinquished the right to get
dower from her husband. Khula may be for any consideration—dower, money,
property, etc.35

34. Jung, at p. 52.

35. According to Tahir Mahmood, in Pakistan the Courts are now of the opinion that Khu!a is the
right of the wife not dependent on husband's consent. 'The correct exposition of the law of
Khula given by the Pakistan Supreme Court (in PLD 1967 SL 970) is'—
There are no words in this verse (referring to Surah II: 229: Koran) indicating that the consent
of, or talaq by, the husband is necessary for Khula. Where the husband disputes the right of the
 V] DIVORCE (TA LA K) 115

Wife's failure to pay the consideration agreed upon in a Khula divorce does
not invalidate the divorce, so as to enable the husband to sue for restitution of
conjugal rights, but only entitles him (a) to claim the release of dower, or (b) to
sue for any money or property due under the agreement.36
The leading case on khula divorce is Moonshee Buzul-Raheem v. Luteefur-
oon-Nissa37 , in which it was observed that a divorce by khula is at once complete
from the moment when the husband repudiates the wife. There is no period
during which such a divorce can be repudiated.
Mulla considers khula as a divorce by mutual consent; but Paras Diwan
differs, saying that since in khula the desire to separate emanates from the wife,
and she has to make her husband agree to it by offering consideration, it would
be proper to call it divorce at the instance of the wife. 38 Both husband and wife
must be of sound mind and have attained puberty. Hanafis and ShafIis permit the
guardian of the minor wife to enter into khula on her behalf; but not the guardian
of the minor husband. Shias insist that there must be no compulsion exerted on
the mind of the wife, while Sunnis would not mind khula obtained under
compulsion. Sunnis also recognise a conditional khula; not so the Shias. Hanaft
Law permits the wife to retain an option to revoke the khula. If the husband
stipulates such an option, the khula will be deemed irrevocable and the option
void. Under Shia Law, both the khula and the option would be void; for the
khula must be unconditional. All schools agree, in khula the consent of the
husband in clear words is a must. The wife may revoke the khula before the
agreement is finalised by getting up from the meeting. Hanafi regard khula as a
ralak-ul-bain, an irrevocable divorce. Shia jurists differ on the point whether
wife and husband can remarry immediately after khula. Ithna Asharis hold it
irrevocable, but maintain that if the wife duritg iddat demand the return of the
consideration, the husband may revoke the khula.
(ii) Mubarat (mutual freeing).—When the divorce is effected by mutual
consent of the husband and wife, it is known as mubarat'at (i.e. freeing one
another mutually).
It has been held in a recent Pakistani case 39, that such matters as
"incompatibility of temperaments, aversion, or dislike cannot form a ground for a
wife to seek dissolution of her marriage, at the hands of a Kazi or a Court, but they
fall to be dealt with under the powers possessed by the husband and the wife

wife to obtain separation by Khula, a third party must decide the matter, and it will have to be
adjudicated upon by the qazi, and any other interpretation of the Koranic verse would deprive
it of all efficacy as a charter granted to the wife.
- Tahir Mabmood (Edn.), Fyzee, cases... op. cit., at p. 159.
36. Wilson, at p. 169.
37. (186l)8MIA 379.
38. Paras Diwan, op. cit., at p.85.
39. Sayeeda Khanum v. Mohd. Sami, PLD 1952 (WP) Lah 113 (FB).
116 MUSLIM LAW [CHAP.

under Muslim Law", that is, the capacity of making a Khula or Mubarat'at
divorce. Khula and Mubarat'at are irrevocable divorce; iddat become necessary
for wife, and she is entitled to maintenance.
The word mubarat'at or mubara'at indicates the freeing of each other (from
the marriage tie) by mutual agreement. As Fyzee puts it, while in Khula the
request proceeds from the wife to be released and the husband agrees for certain
consideration, usually the mahr, in mubarat 'at apparently both are happy at the
prospects of being rid of each other. 40 No formal form is insisted on for
mubarat'at by the Sunnis. The offer may come from either side. When both the
parties enter into mubarat'at all mutual rights and obligations come to an end.
Both Shia and Sunni Laws hold it an irrevocable divorce (talak-ul-bain). Iddat is
compulsory after mubarat 'at as after Khula. Aquil Ahmad notes the following
noints of difference:
Khula I Mubarat
1. Redemption of the contract of 1 1. Mutual release from the marital tie

2. Offer comes from the wife, 2. Any party may make the offer, the
husband accepts other side accepts
3. Consideration passes from wife to 3. No question of consideration
husbanc'
4. Aversion is on the side of the wife 4. Mutual aversion
Besides, two points of similarity are that in both iddat is compulsory and
both are irrevocable.41
C. By Judicial process.—(1) Lian (mutual imprecation).—The wife is
entitled to sue for a divorce on the ground that her husband has falsely charged
her with adultery. At the hearing of the suit, the husband had two alternatives: (i)
he may retract (withdraw) the charge before the end of the trial, in which case
the wife could not get a divorce, or (ii) to persist in his attitude, whereby he will
be required to accuse his wife on oath. This is followed by oaths of innocency
made by the wife. After these "mutual imprecations", the court dissolves the
marriage.42 The husband and wife both must be sane adults; the charge must be
false, i.e. one not proved to be true; the wife must file a regular suit for the
dissolution of marriage making the false charge the ground for seeking divorce.
Mere laying of charge by husband or mere application to the court complaining
that the husband had falsely charged her of adultery would not by itself amount
to divorce. Their marriage must be sahih and not fasid. When dissolved by the

40. Fyzee, op.cii , p. 156.

41. Aquil Ahmad, op. cit., p. 124.
42. Fyzee, at p. 167, ci:ing I3aiIIie, (i) 338.
V] DIVORCE (TALAK) 117

court, it would be an irrevocable consequence. The doctrine of han is still

accepted by courts as a valid Muslim Law procedure. In Nurjahan Bibi v. MohiL
Kazim A hi43 whereon husband bringing a false charge on wife (han) the court
granted the wife the decree for dissolution of marriage under Section 2(ix) of the
Dissolution of Muslim Marriages Act, 1939, it was observed by Bhattacharya, J.
that the doctrine of han had not become obsolete. The practice is based on
tradition. Husband and wife both have to take oath inviting God's curse on liar.
If the husband's charge is proved, the wife loses the ground for dissolution. If he
fails, she can get the divorce as well as sue the husband for defamation under the
Indian Penal Code for bringing a false charge of adultery amounts to cruelty
against the wife and attracts Section 2(viii) of the Act, and the Exception I under
Section 499 of the Indian Penal Code would not apply.' In a han suit the burden
of proof lies on the wife. According to Malik this holding is against Muslim Law
where it is provided that the husband must prove the charge of adultery or suffer
the consequences.45
Retraction of Charge.— There are two conflicting stands among thq courts
about retraction of charge by the husband. In Tufail Ahmad v. Jamiha Khatun46
the Allahabad High Court held that retraction of charge by husband before the
wife brought the suit for dissolution of marriage on the ground of false charge
was sufficient to dismiss the wife's suit. The retraction must be honest and
genuine, not maha fide to defeat the suit. He must acknowledge that he had
falsely accused her, and he must be punished for this. In such a retraction though
he may be held liable for slander or defamation, the marriage cannot be
dissolved. The Calcutta High Court allowed retraction at any time before the
close of the evidence.47 The Bombay High Court had held on the other hand that
retraction had no place in the procedure of Indian courts, 48 but later the Court
had retracted from this holding. 49 In an earlier decision the Allahabad High
Court had also held that after the passing of the 1939 Act, there was no place for
retraction under the Act, and it amounted to cruelty by the husband.50
Commenting on han form one scholar has observed: 'It is interesting to note
the difference in approach of the modem systems and the Islamic Law. Whereas
an unsubstantiated charge of adultery is of no consequence under most of the
modern laws, in Islamic Law it leads to divorce. On the contrary, while proven

43. AIR 1977 Cal 90.

44. Abdul Khadar v. Taib Begum, AIR 1957 Mad 340.
45. Vijay Malik, Muslim Law of Marriage, Divorce and Maintenance (Eastern Book Co.,
Lucknow 1988) at p.63.
46. 1962 All L1971.
47. Shamsunnessa v. Mir, AIR 1940 Cal 95.
48. Ahmadv. Patina, AIR 1931 Born 76.
49. Maomedali v. Hazrabai, AIR 1955 Born 464.
50. Kalloo v. Imaman, AIR 1949 All 445.
118 MUSLIM LAW [CHAP.

adultery leads to divorce under most of the modern systems, it does not, under
the Islamic Law of Han; however, proved adultery will lead to death of the wife
under the pure Islamic criminal law. Since Islamic criminal law has no validity
in India, its corresponding limb, the han, may also be given up'.51
(2) Faskh (judicial annulment)..—Paskh means annulment. It refers to the
power of Kazi (in India, law court) to annul a marriage on the application of the
wife. The law of faskh is founded upon Koran and Traditions, "If a woman be
prejudiced by a marriage, let it be broken off", (Bukhari). In India, such judicial
annulments are governed by Section 2 of the Dissolution of Muslim Marriages
Act, 1939. Prior to the Act, the Muslim woman could apply for dissolution of
marriage under the doctrine of faskh on 4 grounds: (i) The marriage was
irregular, (ii) in exercise of the right of option - Khyar-ul-Bulugh, (iii) the
marriage was within the prohibited degrees of relationship, (iv) post-marriage
conversion of the parties to Islam. 52 Two more grounds could be added:
Impotency of the husband and han. In K. C. Moyin v. Nafeesa 53 the court had
held that under no circumstances could a Muslim 'woman unilaterally repudiate a
marriage by faskh, it had no legal sanction without seeking the intervention of
the court.
Prior to this Act, the classical Hanafi Law of divorce was causing hardships
as it consisted no provision whereby a Hanafi wife could seek divorce on such
grounds as disappeatauc uf thc husbajid, his long imprisoluh1cLi, Lis negiecL of
matrimonial obligations, etc. Finding no other way to get rid of undesired marital
bonds, many Muslim women felt compelled by their circumstances to renounce
their faith. The Statement of the Reasons and Objects of this Act indicates the
circumstances in which this Act was passed:
"There is no provision in the Hanafi Code of Muslim Law enabling a
married Muslim woman to obtain a decree from the courts dissolving her
marriage in case the husband neglects to maintain her, makes her life
miserable by deserting or persistently ill-treating her or certain other
circumstances. The absence of such a provision has entailed unspeakable
misery to innumerable Muslim women in British India, the Hanafi jurists,
however, have clearly laid down that in cases in which the application of
Hanafi law causes hardship, it is permissible to apply the provision of the
Mahiki, Shafli or Hanbali Law. Acting on this principle the ulema have
issued Fatawas to the effect that in cases enumerated in Clause 3, Part A of
this Bill, a married Muslim woman may obtain a decree dissolving her
marriage. A lucid exposition of this principle can be found in the book called
Heelat-un-Najeza published by Maulana Ashraf Ali Sahib (Thanvi) who has

51. B.N. Sampath, Uniform Civil Code: Judicial Separation and Divorce, in Menon (Ed.),
Uniform Civil Code, op. cit., at pp 104-05.
52. Tyabji, Muslim Law alp. 194.
53. AIR 1973 Ker 176.
 V] DIVORCE (TALAK)
119
made an exhaustive study of the provisions of Maliki Law which under the
circumstances prevailing in india may be applied to such cases, this has been
approved by a large number of ulema who put their seals of approval on the
book.
As the courts are sure to hesitate to apply the Maliki Law to the case of
a Muslim woman, legislation recognising and enforcing the abovementioned
principle is called for in order to relieve the sufferings of countless Muslim
women."
In view of the above reasons, the Dissolution of Muslim Marriages Act,
1939 was passed. It is applicable to all Muslims in India who may otherwise
adhere to the Hanafi, Shafli, Ithna Ashari or Ismaili Law. The Act is in force
throughout India except in the State of Jammu and Kashmir, where a parallel
enactment by the name of Jammu and Kashmir State Dissolution of Muslim
Marriages Act, 1942 is in force. The words used by Section 2 of the Act are a
"woman married under Muslim law", and not a 'Muslim woman'. This protects
women who have already abjured Islam in the hope of getting their marriage
dissolved and are thus no longer Muslims; they also can get their marriage
dissolved on any of the grounds given in the Act. The Act consolidates and
clarifies the Muslim Law relating to suits for dissolution of marriage by women.
It is applicable to all Muslims but the provisions of this Act have to be applied
by taking recourse to ordinary prcess of the civil courts of the country. An
appeal against order of the subordinate court is competent under Section 96 of
the Code of Civil Procedure.54
Section 2 of the Act lays down the following grounds on which a Muslim
woman can seek divorce—
Grounds for decree for dissolution of marriage.—A woman married under
Muslim Law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely:
(i) that the whereabouts of the husband have not been known for a period
of four years;
(ii) that the husband has neglected or has failed to provide for her
maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period of
seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years;
(ti) that the husband was impotent at the time of the marriage and
continues to be so;

54. For an exhaustive commentary on the provisions of the Act, see, Vijay Malik, at
seq. p. 7 et
120 MUSLIM LAW [CHAP.

(vi) that the husband has been insane for a period of two years or is
suffering from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage
before attaining the age of eighteen years:
Provided that the marriage has not been consumniated;
(viii) that the husband treats her with cruelty, that is to say:
(a) habitually assaults her or makes her life miserable by cruelty of
conduct even if such conduct does not amount to physical ill-
treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights
over it, or
(e) obstructs her in the observance of her religious profession or
practice, or
(f) if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Koran;
(ix) on any other ground which is recognised as valid for the dissolution of
marriages under Muslim law;
Provided that—
(a) no decree shall be passed on ground (iii) until the sentence has
become final;
(b) a decree passed on ground (i) shall not take effect for period of six
months from the date of such decree, and if the husband appears
either in person or through an authorised agent within that period
and satisfies the Court that he is prepared to perform his conjugal
duties, the Court shell zct aside the caid decree; 'nd
(c) before passing a decree on ground (v) the Court shall, on
application by the husband, make an order requiring the husband
to satisfy the Court within a period of one year from the date of
such order that he has ceased to be impotent and if the husband so
satisfies the Court within such period, no decree shall be passed
on the said ground.
Some of the more important of these clauses may be briefly analysed now.
Clause (ii).—The word 'neglect' means a wilful neglect of duty, where the
wife refuses to live with the husband and stays at her father's house, or refuses to
Fulfil her marital obligations, the husband cannot be said guilty of neglecting her.
His second marriage would not by itself provide a ground for dissolution, unless
 V] DIVORCE (TALAK) 121
a differential treatment is proved, though under Section 125 CrPC this would
entitle her to live separate from him.
About the words 'failed to provide for her maintenance' there is difference
of opinion among the courts. The Allahabad High Court held that the Act did not
require the husband to follow his wife wherever she went and force money or
food or clothes upon her when she refused to accept the shelter offered by him.55
On the other hand Krishna Iyer, J. of Kerala High Court (as he then was) held
that the words of the Act were absolute and admitted of no justifications to
absolve him of his obligation.56
Clause (iv).—A husband has four obligations towards his wife under Muslim
Law: (i) to maintain her; (ii) to treat all his wives equally; (iii) to make available
to her a personal apartment, and (iv) to allow her to visit and be visited by her
parents and blood relations. The first two are covered by clauses (ii) and (viii)(f)
of Section 2. The last two would be covered by this clause.
In ila the husband declares that he would have no carnal connection with his
wife for four or more months, on which he is said to have given her ila talak.
Here, under clause (iv), when the husband has in fact abstained from his wife's
sexual company for 3 years, the wife is afforded a ground to sue for the
dissolution of the marriage. And the clause goes beyond that; it covers desertion
by husband which means total repudiation of the obligations of marriage. His
failure must not originate from the misconduct of the wife or a cause in which
she had consented, such as his visit to a foreign country for studies or business
with her consent. Similarly when he s compelled by circumstances such as
illness or imprisonment of three or more but less than 7 years, she will not get
the remedy under this clause.
Clause (vii).—This clause is based on the Muslim Law custom of Khyar-ul-
bulugh. But the clause does away with the problem of ascertaining the condition
of puberty by fixing the minimum and maximum age. It also removes the
difference of opinion among the Shias and Sunnis regarding the repudiation of
marriage contracted by father and grandfather of minor. The conditions
prescribed by this clause are—(i) the marriage was solemnised before the girl
had attained the age of 15 years; (ii) by father or any guardian; (iii) she is
repudiating the marriage; (iv) she is between 15 and 18 years of age, and (v) their
marriage was never consummated. To illustrate, in Mustafa v. Khursida57 the
facts were: A muslim girl of 7 years was given in marriage by her parents; the
marriage was never consummated; on attaining puberty but before reaching 18
years, the girl appealed before the Family Court at Jodhpur for dissolution of her
marriage under Section 2(vii) of the Dissolution of Muslim Marriage Act; her

55. BadndnisaBjbjv, Mohd. Yusuf, AIR 1944 All 23.

56, A. YousufRawzherv. Sowramma, AIR 1971 Ker 261.
57. 2006 AU-IC 382 (Raj).
 MUSLIM LAW [CHAP.
122
application was granted. On appeal by the husband against the decree, the High
Court upheld her right of the option of Khyar-uI-bulugh and held she was
entitled to the decree. Would she lose the right if her marriage was
consummated? According to Fatawa-i-Alamgiri a Sayyiba (a girl not being
virgin) has the right of option which is not rendered void except in express
words, or by cohabitation or demand of mahr and maintenance. The Allahabad
High Court had held that the consummation must be with the wife's consent, and
the Lahore High Court had held that cohabitation before the age of 15 years did
not fall within the meaning of the proviso. 58 In Malik's view, Sayyiba 's right
would be covered or protected by clause (ix) of Section 2, but not so according to
Sharma, for clause (vii) makes no distinction between a virgin and a Sayyiba.
There seems to be no need to carve out an exception in the express terms of
clause (vii) on the basis of general terms in clause (ix).
Clause (viii).—Cruelty was always recognised as a ground for dissolution of
marriage under the traditional Muslim Law. 'Cruelty', cannot be defined in
absolute terms. The concept has to be understood in relation to the status and
grooming of the pair, the social conceptions of the time, victim's capacity to
endure, effect on body and mind, etc. The court does not view it in the frame of
an ideal couple, but in the context of expectations from a normal couple.
Beating, bodily assaults, physical violence, ill-treatment, false accusations about•
her character, civil or criminal suits against her to harass or coeroc t o part ,vith
property, neglect, cessation of marital intercourse, are some of the examples of
legal cruelty. In Begum Subanu v. A.M. Abdul Gafoor 59 the Supreme Court held
that sharing the matrimonial bed with tfk second wife of the husband constituted
'matrimonial injury' affording her a ground to live separately from the husband.
As the Privy Council observed there was no material difference between
Muhammadan Law and English Law on the question of the legal concept of
cruelty. 60 Actual physical beating is also not necessary, conduct injurious to her
health or mind was enough. 56 Malik makes a useful suggestion that looking to
the ill-treatment ot the wite by her in-laws while the husband Lonnives at it, it
would be proper to widen the horizons of the clause to include such ill-treatment
also.56
Clause (ix).— This is a residuary provision covering other grounds such as
tafwid, ha, Zihar, Lian, Khula and Mubarat'at, as mentioned in the Shariat Act,
1937. In Aboobacker v. Ma,nu 6t and A. Yousuf Rawther v. Sowrainma 62 Krishna

AIR 1950 Lah 45, as cited in K.P.

58. 1958 AUR 91, as cited in Ghulam Sakina v. Falak Slier,
Sharma.
59. (1987)2 SCC 285: 1987 SCC (Cr1) 300: AIR 1987 SC 1103.
60. Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, II
MIA 551: 74 IC 166, as cited in
Malik, op. cit., p. 52, and his suggestion at p. 53.
61. 1971 KLT663 at p. 668.
62. 1971 Ker 261.
V] DIVORCE (TALAK) 123

Iyyer, J. laid down that when there was incompatibility of minds between the
spouses, the marriage must be dissolved. This is known as the breakdown theory
of marriage. Earlier it was propagated by Tyabji, CJ in these words: 'There is no
merit in preserving the marriage when the parties fail to live within the limits of
Allah. 163 In Koranic text the Prophet had said that when reconciliation was not
possible, let there be separation. Paras Diwan commends these 'well-laid'
foundations of the 'most modern theory'.64
In a very recent case the plea of irretrievable breakdown of marriage has
been pressed by the wife. We are narrating in a little detail the facts of A.M.
Jagjakh v. Rajathi Ziaudeen 65 because of the interesting arguments in sequence
found in the case. A in this narration is the appellant husband before the Madras
High Court, and R the Respondent wife. A fought legal battle in Family Court for
12 long years for dissolution of their marriage. In his written submissions he had
charged her of being already secretly married to another person, was leading an
un-Islamic life, and asserted that he had pronounced divorce twice in writing and
communicated to her. When the Family Court granted divorce decree he took a
U turn and appealed to the High Court alleging that the Family Court had not
given him sufficient time for reconciliation and should have ordered restitution
of conjugal relations. The High Court dismissing his contentions as frivolous
held that he was interested only in dragging the case whereas their marriage had
been rendered a complete dead wood and there was no useful purpose in putting
the parties together. Held there was irretrievable breakdown of marriage and so
the divorce decree was upheld.
4. Husband's unilateral power to divorce: A critique

In Aziza Khan v. Dr. Amir Hussain66, the petitioner was married with the
respondent in 1982 in accordance with the Muslim rites and customs and Rs
10,000 were settled as the Mahr amount in case of Talak. The petitioner was an
advocate and the non-petitioner was a doctor. The petitioner's case was that the
non-petitioner was having illicit relations with two ladies and she herself was
subjected to inhuman treatment. It was alleged that the doctor was not satisfied
with the dowry given by her parents and she was asked to fetch more money
from her father who was a Minister at that time. The respondent denied all
charges and asserted that he had given her talak by written talaknama in 1986
and addressed it to her by registered post. He refuted responsibility to pay her
maintenance after passing of the Muslim Women Act, 1986.

63. NooriBibiv. Pir Bu.x, AIR 1950 Sind 8.

64. Paras Diwan, at pp. 94-95.
65. (2007) I DMC 365 (Mad).
66. 2000 Cri U 2582 Raj HC.
 MUSLIM LAW [CHAP.
124

The point of central importance for us here is the argument of the petitioner
that the talak was not valid on account of two lacunae, one, there was no attempt
for reconciliation, and two, pre-divorce conference was not held. Both these
arguments were contested by the respondent pointing out that the provisions in
the Koran for an attempt of settlement or pre-divorce conference were directory
in nature and their non compliance did not render the talak invalid. The High
Court held that both the grounds were not mandatory according to the Koran and
there was no authority that in their absence the talak was rendered invalid. The
claim for maintenance under Section 125 CrPC was also rejected.
In Koushar Ali Laskar v. Moslema Bibi 67, the husband petitioner could not
pay his wife the maintenance. She refused to live with him because of his TB. So
he pronounced talak in accordance with Muslim rites and custom, and filed an
application under Section 127 CrPC for quashing of the maintenance order. The
wife contested the factum of the proof of the divorce. The High Court found that
the talaknama was reduced into writing by the Chief Imam of a mosque in the
presence of witnesses and the same communicated te the wife after eight
months. The High Court held that the talak was duly proved and valid.
Thus, it can be seen that in the matter of procedure of talak, including its
testimony, timing, method, instruments, retrospective effect, etc., the courts
considered the husband's authority as almost undisputable. Is this kind of
V. A. Kjidc (foririe Ji.dgc,
arbitrariness religiously sanctioned in Muslim Law?
High Court of Madras) has this to say:
According to Moulana Mohamed Ali the practice in those early Islamic
days was for the Kazi to appoint two arbitrators one from the husband's
family and the other from the wife's family, that those two arbitrators have
to try to effect a reconciliation between the parties and if all hopes of
reconciliation fail, a divorce is allowed, but the final decision for divorce
rests with the Kazi, who is legally entitled to pronounce divorce. This is a
procedure par excellence, which portrays Islam in its true glory. But later
Muslim jurists of 'great antiquity and high authority' threw to the winds this
salutary procedure and conceived or rather misconceived a form under
which a husband can bring about dissolution of marriage by unilateral
pronouncement of talak thrice in one sitting called talak-ul-biddat or talak-i-
badi which is not recognised in the holy book.
Kader quotes Anieer Ali citing an incident:
'As a matter of fact; the capricious and irregular exercise of power
of divorce which was in the beginning left to the husbands was strongly
disapproved by the Prophet. It is reported that when once news was
brought to him that one of his disciples had divorced his wife
pronouncing the three talaks at one and at the same time, the Prophet

67. (2000)2 Cu 134 Cal HC.

V] DIVORCE (TALAK) 125

stood up in anger on his carpet and declared that the man was making a
plaything of the words of God and made him take back his wife. 168
Now the Supreme Court has derecognised the husband's dictat to divorce in
any manner, from any date past or future and without any proof. The Apex Court
held in Shamim Ara v. State of U.P. 69, that the condition precedent for
effectiveness of divorce was the pronouncement of divorce which has to be
proved on evidence. Merely taking a plea in the written statement before the trial
court in reply to an application for maintenance, that the husband had divorced
the applicant sometime in the past would not have the effect of effectuating a
divorce. Nor could a similar statement made in an affidavit by the husband in
some other case to which the wife was not even a party, be regarded as an
evidence of divorce accomplished.
The appellant (5') and the non-appellant (one Abarar Ahmed, referred to
herein as A, or husband) were married in 1968. S filed an application in 1989
under Section 125 CrPC complaining of cruelty to her and her children as well as
desertion. A replied by claiming divorce, done in 11th July 1987, and therefore
her disentitlernent for maintenance. No statement of circumstances, no
justification by reasons, no proof of efforts of reconciliation and no evidence of
witnesses in support of the talak were adduced. The Family Court had accepted
an affidavit by A in some case where S was not even a party as a proof of the
talak. The High Court of Allahabad held that although the alleged divorce had
not been communicated to the appellant S, that stood completed in 1990 when
the husband filed written statement to her appeal.
In this appeal by special leave the Supreme Court observed:
"None of the ancient holy books or scriptures of Muslims mentions such
a form of divorce. . . a recital in any document, whether a pleading or an
affidavit incorporating a statement by the husband that he has already
divorced his wife on an unspecified or specified date even if not
communicated to the wife would become an effective divorce on the date on
which the wife happens to learn that statement...
The Supreme Court no the views of Mulla (Mulla on Principles of
Mahomedan Law, 19th Edn., 1990) that no particular form of words, no proof of
intention, no presence of wife, no communication except for the purposes of
dower were required; and of Tahir Mahmood (The Muslim Law of India, 2nd
Edn.) that the basic rule is that a Muslim husband under all schools of Muslim
Law can divorce his wife by his unilateral action and without the intervention of
the court. Both have cited cases supporting their views. The Supreme Court
expressed disapproval and disagreement with the above views. Approving the

68. S.A. Kader, Muslim Law of Marriage and Succession in India (Eastern Law House, Calcutta
1998) at pp. 37-38.
69. (2002)7 SCC 518.
 126 MUSLIM LAW [CHAP.

decisions of Gauhati High Court in Jiauddin Ahmed v. Anwara Begum 70, and
Rukia Khatun v. Abdul Khalik Lijskar 7t , the highest court held:
"The correct law of talak as ordained by the holy Koran is that talak
must be for a reasonable cause and be preceded by attempts at reconciliation
between the husband and the wife by two arbitrators—one from the wife's
family and the other from the husband's; if the attempts fail, talak may be
effected. . . We are also of the opinion that the talak to be effective has to be
pronounced. We are very clear that a mere plea taken in the written
statement of a divorce having been pronounced sometime in the past cannot
by itself be treated as effectuating talak on the date of delivery of the copy of
the written statement to the wife. The husband ought to adduce evidence and
prove the pronouncement of talak...
This judgment can be expected to restrain the Muslim husbands from
playing the trump card of divorce to defeat the wife's demand for maintenance.
Now he will have to prove reconciliation efforts, establish reasonable grounds,
and show two witnesses, in whose presence talak was pronounced.73 The wife's
side being involved (in the reconciliation efforts) it is not so easy now to
'manage' all this. Further, requirements of consent by the wife and dated receipt
of the talaknama, or, alternatively order of the Court (accepting the
reasonableness of the talak by the husband) may prove as effective check on the
misuse of the power. The further requirement of 'reasonable provision' ordered
by the Suprem' Crt in Dania L-. 1.-J` cc (infra) makes the wifcs position
better guarded than before. In essence, it is a matter of attitude: attitude towards
the wife, towards the relationship, towards the family.74

70. (1981) I GauLR358.

71. (1981)1 GauLR375.
72. Sha,ni,nAra v. State of UP., (2002)7 SCC 518.
13 M!r..r .4hm.! v. Sfi Maga, (207) I DMC 55u, ifte Karnataka High Court held
facturn of divorce cannot be held proved merely on basis of divorce certificate at instance of
husband; in Kausarbi K. Mu/la v. State of Maharashtra, (2007) 1 AIR Born R 214, the
Aurangabad Bench of the HC held that merely by taking plea of Talaq in written Statement it
cannot be said that wife would be deemed to be divorced from date of filing it, similarly by
making statement before Court that he was giving Talaq to his wife in Court it cannot be held
talaq was given on that day; similarly mere plea of husband without proof was not sufficient
- Shaniee,n IJaig v. Najmunnisa Begum, (2007) 4 AIR Born R 676, and Riaz Fatima v. Mohd.
Shar/f, (2007) I DMC 26.
74. Sometimes it is difficult to even fathom the attitude. We quote here the views of two
academicians - Barsha Mishra and S.J. Hussain, student and Professor, Hidayatullah National
Law University, Raipur, published in Delhi Law Review, Vol. 25(2003) at p. 180:
The decision of the Supreme Court in Shamim Ara's case is momentous. It has shown the
way that the judiciary call an important role in liberalising and modernising the rules of
Muslim Law of marriage and divorce ... Earlier the Courts in India by and large expressed
reluctance to depart from the opinion of the traditional Muslim Law ... now the judiciary has
taken a progressive measure in order to elevate the helpless Muslim wife ... But a caveat has
to be entered here. The courts can interpret Muslim Law in progressive way so long it is in
tunc or conformity with Shariah. If the interpretation of Muslim Law by Courts is not within
 DIVORCE (TALAK) 127
V]

It is one of those areas of Muslim Law where reform is overdue. The very
idea of unilateral divorce militates against the real spirit behind Islamic Law of
marriage and divorce. Divorce is permissible in Islam only in cases of extreme
emergency when all efforts at reconciliation have failed. But unfortunately, "it is
the 'islamic Law of divorce not polygamy which is the major cause of suffering
to Muslim women.. .the Muslim wife indeed has always lived, so far as the law is
concerned, under the ever present shadow of divorce" (Anderson).
As we know, talaks are of two types: Talak-us-Sunncit and Talak-ul-Biddat;
the former is approved while the latter is disapproved in Islam. Talak-ul-Biddat
came into being during the second century of Islam when "the Omayyad
monarchs, finding that the checks imposed by the Prophet on the facility of
repudiation interfered with the indulgence of their caprice, endeavoured to find
an escape from the strictness of the law, and found.. .a loophole to effect their
purposes".75
It must be noted clearly that it was not Islam but Omayyad practices that
gave validity to these biddat divorces. It has recently been pointed out by Justice
Iyer in A. YousufRawther v. Sowramma 76 where he said:
"It is a popular fallacy that a Muslim male enjoys under the Koranic
Law, unbridled authority to liquidate the marriage.., the view that the
Muslim husband enjoys an arbitrary, unilateral power to inflict divorce does
not accord with Islamic injunctions. However, Muslim Law, as applied in
India, has taken a course contrary to the spirit of what the Prophet or the
Holy Koran laid down and the same misconception vitiates the law dealing
with the wife's right to divorce ... Commentators on the Koran have rightly
observed and this tallies with the law now administered in some Muslim
countries like Iraq—that the husband must satisfy the court about the reasons
for divorce."
Talak-ul-Biddat should, therefore, be not given effect to. Fyzee denounces
such talaks as "absurd and unjust", and suggests that the proper remedy is to do
away with them by statute. Ameer Ali suggests that Shat'ii Law be made
applicable to Muslims in India. Abdur Rahim is more pungent when he says:

the confines of Shariah, then we have a great controversy. The case of Shah Bano is in
point.— 'Clipping the Wings of Talaq: A ease of Judicial Reform'.
What do the learned academicians mean? The Judiciary has never claimed any power to
overrule the Shariah, nor ever expressed an intention to disregard the Koranic law. Then what
is 'in tune with the Shariat and what 'is not so'? Who to decide? Many 'rules' or customs have
been introduced in Muslim Law since ancient times to tide over difficulties faced by the
society. Some of these innovations have been misused also. The social conditions keep
changing . Isn't it in tune with the Shariah to innovate by interpretation in order to meet the
present changes in social conditions? Is the decision in Shah Bano controversial or
contributory to the amelioration of Muslim women's hardships? Do the learned authors,
therefore, contribute any positive point by their above quoted remarks?
75. Ameer Au, Vol. 11(1965 Edn.) at p.435.
76. AIR 1971 Ker 26!.
 128 MUSLIM LAW [CHAP.

"I may remark that the interpretation of the law of divorce by the jurists
specially of the Hanafi School, is one flagrant instance where because of
literal adherence to mere words and a certain tendency towards subtleties
they have reached a result in direct antagonism to the admitted policy of the
law on the subject."77
Far-reaching reforms relating to unilateral divorce have been introduced
during the recent years, in a large number of Muslim countries. 78 According to
Kader, 'in Algeria, Tunisia, Turkey, South Yemen, Malaysia and Indonesia the
practice of extra-judicial unilateral divorce has been abolished. Algerian Family
Code (1984) requires attempt of reconciliation and judgment of the Qadi. In
Turkey divorce is recognised only when granted by the court. The court's decree
also provides for maintenance, resi&nce, custody of the children and
compensation. Yemen Family Law (1974) also requires approval of the District
Court after satisfactory efforts for reconcilistion. Malaysian Islamic Family Law,
(1984) punishes a man for divorcing his wife outside the court, and divorce is
permissible only after judicial investigation into causes of the , breakdown:
Indonesia also adopts similar policy. In Egypt, Jordan, Morocco, Iraq, Pakistan
and Bangladesh unilateral divorce is allowed, but it must be duly registered and
defaulting husband is liable for punishment. It is high time that something be
done in India too. It is interesting to note that under a decree of H.H. the Agha
Khan, the Khojas in India have their own marriage tribunals, and neither a
second marriage nor a divorce ic possible without rccorc ,L thesc tii.L'.
5. Effects of divorce79

(1) Cohabitation becomes illegal between the couple.

(ii) Dower becomes payable to the wife.80
(ii:) The husband and the wife are entitled to inherit from the other, if
either of them dies during iddat following a revocable divorce. No
right of inheritance arises in irrevocable divorce.
(iv) The wife becomes entitled to maintenance during the period of iddat.81

77. Cited in M.R. Zafar, "Unilateral Divorce in Muslim Personal Law", in Islamic Law in Modem
India(l972) at p. 173.
78. See generally, Family Law Reform in the Muslim World, prepared by Tahir Mahmood (Indian
Law Institute 1972).
79. Verma, at pp. 253-55.
80. But in MohiL Ahmed Khan v. Shah Bano Begum, (1985)2 SCC 556:1985 SCC (Cii) 245: AIR 1985
SC 945 it has been laid down that dower is not payable on divorce but is payable on marriage.
81. 'The reason for divorce has no bearing on entitlement of the divorced wife to claim amounts
under S. 3 (Muslim Women.., Act, 1986) ... Her status as a divorced wife must be held to be
not altered or disturbed even assuming that allegations of adulterous behaviour had led to the
proved divorce. Contumacious behaviour in matrimony, which led to divorce, may at worst
have a bearing while fixing the quantum of fair and reasonable provision for the divorced wife
but cannot affect her status as a divorced wife or her entitlement to fair and reasonable
provision.' - Kerala High Court in Musthafa v. Faxhimakuity, (2006) 3 KLT 690.
 V] DIVORCE (TALAK) 129
(v) Remarriage between the couple is only possible after observing a strict
procedure. Remarriage with another man can be contracted by the
widow after observing iddat only.
6. Formalities necessary for remarriage82

Where the husband has divorced his wife by three pronouncements (i.e.
irrevocable divorce), remarriage with her is possible only if the following
formalities are observed:
(i) After the divorce, the wife should observe iddat.
(ii) When the period of iddat expires, she should marry another person.
(iii) This marriage should be actually consummated.
(iv) The second husband should voluntarily divorce the wife.
(v) Then the wife should observe iddat, after which remarriage with the
first husband would be possible.
If remarriage takes place without fulfilling the above requirements, it is
irregular but not void.
In the leading case of Rashid Ahmad v. Anisa Khatun 83, it was held by the
Privy Council that where a husband irrevocably divorced his wife but continued
to live together as husband and wife, then the children of such a union would be
illegitimate; even an acknowledgment of legitimacy could not make them
legitimate. It must be noted here that not only the necessary formalities were
evaded in this case, but even a remarriage was not formally contracted,
otherwise, such a marriage being irregular (and not void), the children would
have been legitimate.
7. Apostacy and conversion as grounds of divorce
When a Muslim renounces or leaves Islam it is called apostacy; whereas
when a non-Muslim embraces or accepts Islam, it is known as conversion.
Apostacy and conversion may affect the marriage tie in the following
circumstances: 84
(i) Where hisband renounces
Islam.
(ii) Where wife renounces Islam.
I1 Apostacy.

(iii) Where husband embraces Islam. - Conversion.

(iv) Where wife embraces Islam. J

82. See, Mulla, at pp. 353-54; Fyzee, at p. 186.

83. (1931)591A21: AIR 1932pC25.
84. Classification given by Fyzee, at pp. 178-185, has been adopted here
 MUSLIM LAW [CHAP.
130

(i) Where husband renounces

Islam.—Where a Muslim husband
renounces Islam, his marriage with his Muslim wife is dissolved ipso facto.
As to what constitutes an "act of apostacy", the Lahore High Court, in
Resham Bibi v. Khuda Bakhsh 85 , held that a formal declaration is sufficient, e.g.;
'I hereby renounce Islam'.
(ii) Where wife renounces Islam.—Section 4 of the Dissolution of Muslim
Marriages Act, 1939 says that "the renunciation of Islam by a married Muslim
woman.. .shall not by itself operate to dissolve her marriage..." The second
proviso to the same section, however, provides that this rule "shall not apply to a
woman converted to Islam from some other faith who re-embraces her former
faith". For example, Rita is a Christian lady who embraces Islam and marries
Raza, a Muslim. Rita then re-embraces Christianity. In this case, the marriage of
Rita with Raza is dissolved.86
(iii) Where husband embraces
Islam.—According to Ameer Ali, if a
Christian or Jew (or anybody else following a Divine Book) embraces Islam, his
marriage with his Christian or Jewish wife is not dissolved. It will be di3solved,
however, if the wife belongs to a non-scriptural religion (i.e. Hinduism,
Buddhism, etc.) because of the fact that a Muslim cannot marry a non-K itabiya
woman. Islam has to be offered to such a wife, if she refuses to embrace it,
divorce may be given. This offer shall be made by the husband and the law court
has nothing to ao witn it.
(iv) Where wife embraces Islam.—If a non-Muslim wife, whether she is a
Hindu, Christian, Jew or an Irani Zoroastrian embraces Islam, her marriage tie
stands intact, irrespective of the fact that the husband is non-Muslim.
For instance, it was held by the Calcutta High Court in Noor Jehan Begum v.
Eugene Tiscenkot7 , that the marriage of a Russain Christian wife with her
Christian husband is not dissolved merely because the wife has accepted Islam.
Similar were the observations of the Bombay High Court in Robaba Khanum v.
Khodadad Bomanji lrani88 , where Robaba, a Zoroastrain wife embraced Islam
but her husband did not.
Comments of Ameer All and Fyzee on Apostacy

Ameer Ali.—The enforcement of the Muslim Law in its entirety regarding

apostate has become impossible under existing conditions in most countries
inhabited by Muslims. The legal position of married parties, one of whom

85. AIR 1938 Lah482.

86. See, Fyzee, at pp. 179-80.
87. ILR(1942)2 Cal 165.
88. (1946)48 Born LR 864.
 V] DIVORCE (TALAK) 131

abandons Islam, must therefore be determined on principles of the Muslim Law

other than those relating to apostacy.
Fyzee.—Muslim Law relating to 'marriage' and 'apostacy' are two different
branches distinct from one another. Muslim Law never intended apostacy to be
used as a means of dissolving the marriage contract.
Fyzee further adds that it must be asked: who is the person that seeks relief?
If the husband changes his religion, it is understandable that the wife should
complain and sue for dissolution; and vice versa. But is it right and just that one
spouse should declare himself or herself a convert and then ask the court to
declare the marriage dissolved? The result would be that by these means, a party
to a marriage would be able to evade the legal obligations of a marriage entered
into at a prior time and in accordance with a different system of personal law.89
7-A. Use of conversion to elude criminal liability for bigamy.—We read
above [in 7 (iii)] the views of Ameer Ali. They are his views only. In the midst
of various personal laws operating in the country the evil of employing
conversion to dodge the criminal liability for bigamy under Sections 494-495 of
the Indian Penal Code is also in vogue in our society. Section 494 of the Indian
Penal Code stipulates that if a person, during the subsistence of the first marriage
contracts a second marriage which is void due to its being bigamous, he/she shall
be guilty of the offence of bigamy under the section. However, bigamy is not
only not an offence in Muslim Law, it is also permissible. Therefore, if a Hindu
or Christian male already married, subsequently converts to Islam and again
marries a Muslim woman, such a marriage shall not be void: it shall be a valid
marriage. 90 Therefore, it will not be an offence under Section 494. This
presumption ruled till 1995, when the Supreme Court took a bold step to check
the evils of dodging the Hindu wife of first marriage through the agency of
conversion, ditching the Penal Code by converting to Islam and exploiting the
difference between the two personal laws for unjust advantage. The Court laid
down a new principle relevant to our present chapter and topic in the case of
Sarla Mudgal v. Union of India 9t , The facts, in brief, are like this—A married
Hindu, in order to marry his paramour converts to Islam, and without obtaining
dissolution of the first marriage, marries the other woman who was originally a
Hindu and now has converted to Islam with the same objective of contracting a
'valid' marriage and ditching the Penal Code. The first wife has filed this
petition in the Supreme Court praying for declaration of the second marriage as
void. This apparently simple issue raises some vital problems: one, the second
marriage constitutes a breach of the nuptual promise held out to the first wife;
two, it violates her matrimonial rights; three, her rights of inheritance have been

89. Fyzee, at p. 185.

90. John Jiban Chandra Duua v. Abinash Chandra Sen, (1939) ILR Cal 12.
91. (1995)3 SCC 635: AIR 1995 SC 1531.
132 MUSLIM LAW [CHAP.

robbed; four, the problem of subsistence stares her starkly now; five, where
children were born, problem of their maintenance stalks her; six, it is
circumventing the criminal law. [Under Muslim Law a non-Muslim has
absolutely no locus standi to inherit, therefore the first Hindu wife loses now all
her rights to inherit from her husband; a Muslim giving maintenance money to
his non-Muslim relatives is beyond all probabilities, therefore, his Hindu wife
and children from Hindu wife are destined to become destitute; he has changed
his religion to dodge the criminal law rather than out of great religious devotion,
thus he has cheated the State.] One may look at all these questions from two
different angles: one, purely technical, and two, in the perspective of their
ramifications on the various constitutents of the society. It would have been
really a wonder had the pioneer of social engineering the Supreme Court
neglected the second angle in the year 1995. "Kalyani", a women welfare
organisation joined the case as a party to serve the cause of the deserted Hindu
women by presenting their case effectively before the Court.
The Supreme Court framed three vital questions for consideration: (i) Can a
Hindu husband who has married under the Hindu Marriage Act (HMA), embrace
Islam and contract a second marriage? (ii) Will such a marriage, contracted
without obtaining lawful dissolution of the first marriage, be a valid marriage
qua the first wife who remains a Hindu still? (iii) Is the apostate husband guilty
of the offence under Section 494?
Before this decision the unequal position was like this: See heads 7(i) and
(ii) above Apostacy... where husband/wife renounces Islam. If a married Hindu
or Christian male embraces Islam his first marriage is not automatically
dissolved, nor can he successfully fire the ralak missile on his Hindu/Christian
wife from the Muslim fort. Now he has two wives. Islam has no objection to this.
But when a married Hindu wife converts to Islam and marries a Muslim in
accordance with Islamic system, the Muslim Law has objection. Thus, the root
cause being, the prior Hindu marriage is not dissolved by the fact of conversion
to Islam. Therefore, in spite of her conversion to Islam, the woman's marital
status remains intact. Muslim Law does not permit a married woman to repeat
performance. So, when that female married in accordance with Hindu rites again
marries "according to Muslim system", that marriage is void. Thus, in terms of
the Indian Penal Code she contracts a marriage that is void, and therefore she
becomes guilty of the offence under Section 494, and her Muslim "husband" of
one under Section 49 of adultery. The Supreme Court said this is also true of that
person (who fits in question no. (i). Answering the first question the Court said
that on his converting from Hinduism to Islam, his first marriage was not
dissolved, therefore he was a married man. This legal status of married male was
conferred on him by the Hindu Marriage Act, he was bound by all the conditions
laid down in that Act; one of the conditions of that law was that he would not
marry again during the subsistence of the first marriage, no matter whether he
V] DIVORCE (TALAK) 133

converts or not. Conversion is not a ground for absolution from the Hindu
Marriage Act. So when he embraces Islam and marries again, he commits the
offence of bigamy under the Penal Code. The Court observed:
Parties who have solemnised the marriage under the Hindu Marriage
Act remain married even when the husband embraces Islam in pursuit of
other wife. A second marriage by an apostate under the shelter of conversion
to Islam would nevertheless be a marriage in violation of the provisions of
the Hindu Marriage Act by which he would continue to be governed so far
as his first marriage under the Act is concerned despite his conversion to
Islam. The second marriage of an apostate would, therefore, be illegal
marriage qua his wife who married him under the Act and continues to be a
Hindu . . . It is no doubt correct that the marriage solemnised by a Hindu
husband after embracing Islam may not be a strictly void marriage under the
HMA because he is no longer a Hindu, but the fact remains that the said
marriage would be in violation of the Act which strictly professes
monogamy....
A Hindu marriage solemnised under the HMA can only be dissolved on
any of the grounds specified under the Act. Till the time a Hindu marriage is
dissolved under the Act none of the spouses can contract second marriage.
Conversion to Islam and marrying again would not, by itself, dissolve the
Hindu marriage under the Act. The second marriage by a convert, therefore,
be in violation of the Act and as such void in terms of Section 494 of the
Indian Penal Code. Any act which is in violation of mandatory provisions of
law is per se void.
The real reason for the voidness of the second marriage is the subsisting
of the first marriage which is not dissolved even by the conversion of the
husband. It would be giving a go-bye to the substance of the matter and
acting against the spirit of the Statute (HMA) if the second marriage of the
convert is held to be legal.92
The part of the judgment most appealing to the sense of justice and precisely
decisive appears to be the following:
A matrimonial dispute between a convert to Islam and his or her non-
.Muslim spouse is obviously not a dispute 'where the parties are Muslims'
and, therefore, the rule of decision in such a case... is not required to be the
'Muslim Personal Law'. In such cases the Court shall act and the judge shall
decide according to justice, equity and good conscience. The second
marriage of a Hindu husband after embracing Islam being violative of
justice, equity and good conscience would be void on that ground also and
attract the provisions of Section 494 of the Indian Penal Code.

92. carla Mudgal v. Union of India, (1995)3 SCC 635: AIR 1995 SC 1531 at pp. 1536-37.
 MUSLIM LAW [CHAP.
134
Looked (at) from another angle, the second marriage of an apostate
husband would be in violation of rules of natural justice. Assuming that a
Hindu husband has a right to embrace Islam as his religion, he has no right
under the HMA to marry again without getting his earlier marriage under the
Act dissolved. The second marriage after conversion to Islam would, thus,
be in violation of the rules of natural justice and as that would be void.93
Altogether, the three questions (supra) were answered by the Supreme Court
thus: (i) No, (ii) No, and (iii) Yes. As Lucy Carroll says "this conclusion has the
advantage of placing the married male Hindu convert to Islam in exactly the
same position as the married female Hindu convert and rendering both equally
liable for the fulfilment of their marriage vows".94
The roots of the legal facets of marriage among the Hindu, Muslim and
Christian sects lie in the soil of religious concepts. We referred to these three
only because the incidents of inter-sect conversions are in sizable number among
these, although there is no quantitative equality, the minus debit of balance being
always in the Hinau account. When one party to an inter-sect marriage converts
to another sect, that very marriage raises some inter-sect problems: What will be
their future? What future of their matrimonial rights? What of their property
rights? What of the guardianship of their children? What will be the legal
remedies for the dissolution of their marriage? And many more questions may
arise. Islam-is always abreast withtacdJe measures in the interest of the.
community. The confused secular conscience of the Hindu paralyses the Hindu
community in the expectation of legislative intervention.
The Law Commission of India in its recommendations (of 1961) has
advocated legislation to deal with the problems arising out of conversion by
married persons. Some of its recommendations are: Conversion by either
husband or wife would not dissolve the marriage prior to conversion. A second
marriage by a Hindu or Christian husband on embracing Islam during the
lifetinie of the earlier (first) wife would constitute an offence under Section 494
of the Indian Penal Code. At the same time the apostate would have a right to
pray for the dissolution of the first marriage in stipulated circumstances and
under specified conditions. Now also, the one such advantage conferred on such
an apostate as a result of the Mudgal decision is that since he has been held to
continue to he governed by the HMA, he can take steps under that law for the
dissolution of his marriage. The recommendations of the commission frame
limits and impose certain conditions. Further, in the case of sham conversion,
that is one not inspired by religious cause, basically inalafide one, no application
can be submitted for dissolution of marriage for a minimum period of two years.
Dissolution may be granted on ground that the non-apostate party refused

93. Sarla Mudgal v. Union of India, (1995)3 SCC 635: AIR 1995 SC 1531 at pp. 1536-37.
94. Lucy Carroll, 'Religious Conversion and Polygamus Marriage' (1997) 39 JILl 272 at p. 275.
V] DIVORCE (TALAK) 135

cohabitation. The decree of dissolution of marriage will not be passed in favour

of the male apostate till he does not make provisions for the maintenance of the
non-apostate wife and children. The non-apostate party will have right of priority
to keep in his/her custody the children of the first marriage. However the
Commission has forgotten to safeguard the right of inheritance of the non-
apostate spouse and children.

8. Iddat: Its rationale, utility and periods

Hedaya defines it as follows:
"The term of probation incumbent upon a woman in consequence of the
dissolution of marriage after carnal connection." It has been further said in
Hedaya that "the most approved definition of iddat is, the term by the
completion of which a new marriage is rendered lawful."
Thus, iddat is the period for which a woman must wait before marrying
again whether in the event of divorce or death. The different periods of iddat are
as follows:95

Cause of Marriage whether Period of iddat

dissolution consummated or not
Divorce Consummated 3 courses or, if pregnant, till

Divorce Not consummated No iddat

Death Doesn't matter 4 months and 10 days or, if
pregnant, till delivery
whichever period is longer.
In certain cases, 'valid retirement' has the same legal effect as
consummation. When the husband and wife are alone together under
circumstances, which present no legal, moral or physical impediment to marital
intercourse, they are said to be in valid retirement.96
Thus, the period of iddat prescribed in case of consummation will apply in
case of 'valid retirement' also.
The reasons for observing iddat in the case of divorce are:
(i) to ascertain whether the woman is pregnant, and
(ii) to provide an opportunity to the husband to take the wife back (in
revocable forms of talak).

95. The periods given here are the most important and common. If anyone is interested to see how
the period of iddat changes with such factors as regular and irregular marriages, and
menstruation or the absence of it, he may consult the table given in Tyabji, at p. 137; adopted
by Saxena, at p. 161.
96. Fyzee, at pp. 107-108.
138 MUSLIM LAW [CHAP.

Illustrations
(i) A enters into an agreement before his marriage with B by which it is
provided that A should not beat or ill-treat her, that he should allow B to be taken
to her father's house four times a year, and in case of breach of any of these
conditions, B should have the power of divorcing herself from A. Some time
after the marriage, B divorces herself from A, alleging cruelty. A then sues B for
the restitution of conjugal rights.
The divorce I. valid and A is not entitled to the restitution of conjugal rights
if the charge of cruelty is proved. Because, the conditions are all of a reasonable
nature and they are not opposed to the policy of Muslim Law.
(ii) An agreement between husband and wife through which the husband
authorizes the wife to divorce herself from him in the event of his marrying a
second wife without her consent is valid.
(iii) A enters into an agreement before his marriage with B that B would be
authorized to divorce herself on A's contracting a second marriage. A, marries a
second wife but B does not exercise her right for 2 years, after which she
divorces herself.
The divorce is valid. The wrong done to her is a continuing one, and she has
a continuing right to exercise her power.
(iv) An agreement arrived at by die guardians of minor husband and wife, tu
the effect that wife would be entitled to divorce herself from him in the event of
his marrying a second wife without her consent, is valid and binding on minors,
even after attaining the age of majority.
11. Talak—Not an Arbitrary Power
Zeenat Fatema Rashid v. Mohd. Iqbal Anwar 10t—The petitioner Zeenat
married Iqbal in 1987. They had a son in 1989. After that she was ill-treated by
her husband and in-laws. She instituted a criminal case. She had to leave her
husband's house. She instituted a criminal case for getting back her properties,
which were recovered. She also filed a case under Section 125 CrPC against her
husband claiming maintenance for herself mid her minor child, Iqbal contested
the case by filing written statement. His main defence is that he had divorced his
wife in 1990. The Family Court held that there had been a divorce duly effected
and therefore, claim for maintenance would be determined under Section 3 of the
Muslim Women (Protection of Rights on Divorce) Act, 1986. Interim
maintenance for the child was granted pending final disposal of the case. Hence
this petition.

101(1993) 1 DMC49(Gau).
V) DIVORCE (TALAK) 139

The question which arises for consideration is whether there had been a
divorce duly effected.
Under the Koran, the marriage state is to be maintained as far as possible
and there should be conciliation before divorce (see, note 254 Vol. I of Holy
Koran by A Yusuf Au). Therefore, the Koran discourages divorce and permits it
only in extreme cases after pre-divorce conference. Therefore, a Muhammadan
husband cannot divorce his wife at his whim and caprice. The question then is,—
whether, if divorce by talak is made arbitrarily, should it be treated as spiritual
offence only? Under the Muhammadan Law, marriage though regarded as a civil
contract between a man and a woman; they become husband and wife after
solemnisation of the marriage and their respective rights and obligations are
regulated by the rules under relevant law. This being the position, marriage is the
basis for social organisation and foundation of legal rights and obligations. The
modern concept of divorce is also that the matrimonial status should be
maintained as far as possible. The Family Court aims at reconciliation and
persuasion of parties to arrive at a settlement. For these reasons if a
Muhammadan husband divorces his wife at his whim and caprice, it would not
only be a spiritual offence but it would also affect the divorce. In the above view
of the matter, a Muhammadan husband cannot divorce his wife at his whim or
caprice, that is, divorce must be for a reasonable cause, and it must be preceded
by a pre-divorce conference to arrive at a settlement. The case is solely based on
talaknama whiich has not been proved, and there was no evidence that there was
a pre-divorce conference. In that view of the matter the husband has failed to
prove the alleged divorce by talak.
The recent judicial opinion heavily condemns arbitrary talak and ordains
strict adherence to the spirit and letter of Muslim Law governing husband's
power to divorce. In Dagdu Chotu Pathan v. Rahimbi Dagdu PatIwn 102 the
Bombay High Court very clearly redefines the procedure for talak. (The facts of
the case are typically prototype. The petitioner married second wife and
neglected the respondent first wife with her three children from him. Now her
struggle for claiming maintenance started; the petitioner has come in appeal
against the magistrate's order in her favour. His plea is again the old repetition
- he had divorced her earlier.) The High Court held that not merely the factum
of Talak but conditions preceding to the stage of giving Talak are also required
to be proved when wife disputes factum of Talak or effectiveness of Talak or
legality of Talak before a court of law. Mere statement made in writing before
the Court in any form, or oral depositions regarding Talak having been
pronounced sometimes in the past is not sufficient to hold that husband has
divorced his wife and such a divorce is in keeping with the dictates of Islam.

102. (2003) 1 Born CR 740.

 140 MUSLIM LAW [CHAP.

Even in case of irrevocable Talak in presence of Kazi or wife's father or two

witnesses the factum of this form of Talak is required to be proved.
The Court said in the system of Muslim marriage the process of reaching to
the marital tie is certainly a civil contract but once the marriage is solemnized it
becomes an institution life long for both husband and wife and they do not live
together by way of a mere contract 103 but in a holy and sacred bond of love, care
and mutual respect with equal status to both the partners. Muhammadan Law
does recognise the husband to be on the high pedestal than the wife but that by
itself does not mean that he can check out his wife at his whim and caprice and
without assigning any reason. The Court said conversation, persuasion, process
of reconciliation - are the stages prerequisite to separation.
Again next year the Calcutta High Court re-emphasised the need to adhere to
a regulated procedure before recognising a talak in Mohinuddin Middya v. State
of WB)°4 The husband had taken a plea in a written statement of a divorce
having been pronounced sometime in the past and its communication to the wife
by delivering a copy of that written statement. The Calcutta High Court held
such a plea by itself cannot be treated as effecting talak on the date of delivery of
the copy of the written statement to the wife. The husband ought to adduce
evidence and prove the pronouncement of talak, and if he fails in this, the plea
has to be treated as failed. The Muslim marriage is no doubt a contract but it
does not ernpowcr thc Muslim husband to divorce his wifc whenevei hc 1ke.,
and the wife cannot be treated like a chattel. The correct law of talak as Ordained
by holy Koran is existence of a reasonable cause and attempt of reconciliation
before two arbitrators and then talak.
Triple Talak
According to Asghar Ali Engineer the Islamic Shariah which was
formulated more than hundred years after the death of the Prophet and had
evolved under complex influences of various civilisations took away what was
given to women by the Prophet and the Koran. The issue of triple divorce in one
sitting illustrates this very well. It was practised during jahilliyah period (times
of ignorance) before the advent of Islam. The usual practice then was to
pronounce the word talak two times and withhold the third pronouncement,
making the wife live thus in constant fear of the third utterance.
The triple divorce was not allowr . during the Prophet's lifetime, during the
first Caliph Abu Bakr's reign and L.sv or more than two years during the second
Caliph Umar's time. Later on LJ1nar permitted it on account of a peculiar
situation. When the Arabs conquered Syria, Egypt, Persia, etc., they found

103. We know, even a simple contract cannot be terminated ex parte at whim and caprice; that is
called a breach of contract, not a termination, and entails civil consequences.
104. (2004)3 CHN 417.
V] DIVORCE (TALAK) 141

women there much more beautiful than their own women and hence were
tempted to marry them. But those women not knowing about Islam's abolition of
triple divorce in one sitting, would insist that before marrying them they should
pronounce divorce thrice to their existing wives which they would readily accept
to do (as they knew Islam had abolished triple divorce and that it would not be
effective) and marry the Syrian or Egyptian women and would also retain their
earlier wives. When the Egyptian and Syrian women discovered that they had
been cheated, they complained to Umar. The Caliph then enforced triple divorce
again in order to prevent its misuse by the Arabs. He had done so to meet an
emergency situation and not to enforce it permanently. But later jurists also
declared this form of divorce valid and gave sanction to it.
The Hadith literature records that when the Prophet was told that so and so
had divorced his wife thrice in one sitting his face turned red with anger and he
stood up and said he was ridiculing the divine law in the Prophet's own life time
and required that the man took back his wife.
The Koran does not mention triple divorce in one sitting. It requires the
divorce to be effective over three periods of cleanliness, giving the couple a
chance to reconcile during those three months. The Koran also provides for
arbitration both to men and women appointing arbiter for each and they together
would attempt reconciliation failing which the decision for divorce will be
recommended to Kazi. Thus, both the Koran and the Prophet prohibit arbitrary
divorce. All precautions were taken to guard woman's interests. However the
later jurists influenced by the male dominated values of the patriarchal society
gave man absolute right to divorce his wife and brought back a measure which
was pre-Islamic and which was strongly condemned by the Prophet.
A Fatwa given by a Mufti of Ahl-e-Hadith rejecting the validity of triple
divorce brought the talak issue to focus again. Maulana Asad Madani, President
of the powerful Jamiate-Ulema-e-Hind has strongly opposed the Fatwa and
declared it un-Islamic and a conspiracy. The progressive Muslim intellectuals
like Maulana Wahiduddin Khan and Engineer have tpheld the Fatawa. They
argue that if the Shariah is truly based on the Koran and Sunnah then there is no
place for the pronouncement of triple divorce in one sitting. Imam fbn
Taimiyyah, a jurist of the 14th century and his disciple Ibn Qayyim Jawzi had
also held the triple divorce in one sitting invalid. All the Ulemas also agree that
this divorce is bidah (innovation) and hence sinful. It is also unjust to the
Muslim women. Ashgar Ali Engineer feels that it is high time the Muslim
Personal Law Board recommended a Bill to the Government abolishing the triple
talak in one sitting and enforcing the Koranic form of divorce which is very fair
to women. 105

105. Asghar Ali Engineer, Islam and Women, The Indian Express, New Delhi, 5-8-1993.
142 MUSLIM LAW [CHAP.

In July 1993 a petition was filed in the Supreme Court to declare as

unconstitutional the right of a Muslim husband under personal law to divorce his
wife by simply saying talak thrice. The petition by Nafisa Hussain contends that
under the Constitution no community can have a personal law which gives a man
greater rights than are given to a woman. Any personal law from pre-
independence days which makes women's rights lesser than those given by it to
men, must be struck down as being violative of the Fundamental Rights of
women to equality. Yet, this is exactly what is done by the Dissolution of
Muslim Marriages Act, 1939. The far reaching petition also seeks the striking
down of the right of Muslim men to have four wives on the ground that the pre-
independence Muslim Personal Laws (Shariat) Application Act, 1937 which
requires this personal law to be applied in the case of Muslims, is
unconstitutional.
It is also pointed out in the petition that the Union Government has denied
the Muslim Women their constitutional right to equa.Jity by refusing to formulate
a uniform civil code in terms of the Directive Principle (Article 44) in the
Constitution. According to the Constitution the Directive Principles shall be
fundamental in the governance of the country. The Union Government has done
this inspite of the Supreme Court having pointed out in Shah Bano and Jordan
Diengdeh cases the urgent necessity for a move in this direction.'06
We saw above, the All India Muslim Personal Law Board's Executive
Committee at its Lucknow meeting approved a model Nikahnama and adopted
resolution to banish the system of pronouncing talak thrice. The General
Secretary of the Board also condemned triple talak as a sin, and advised the
Muslims to shun it. Again, coming back to our refrain, the crux of the matter is
how the Muslim society views its social obligation, what perspective it adopts.
The Muslim male class should think that it owes an obligation towards the
Muslim society that the society should not become a cluster of divorced,
deserted, destitute women. The father should pray for the same fate of his
daughter-in-law as he does for his daughter. But the hurdle is that the Ulema is
still keeping their personal ambitions above the welfare of the society. For
example, a section of the Shia Muslim leaders declared a plan to constitute a
separate personal law board on the heels of the above meeting of the Muslim
Personal Law Board, accusing the existing Board of neglecting the problems of
the Muslims!
Jorden Diengdeh v. S.S. Chopr& 07 case deals with a petition for judicial
separation under the Indian Divorce Act, 1869. Jorden was a Christian woman
married to a Sikh man under the Indian Christian Marriage Act, 1872. While
explaining the various laws on divorce applicable in India,.the Court also dealt

106. The Indian Express, New Delhi, 11-7-1993.

107.(1985)3 SCC 62: AIR 1985 SC 935.
V] DIVORCE (TALAK) 143

with Section 2 of the Dissolution of Muslim Marriages Act, 1939 and observed
'under strict Hanafi Law there was no provision enabling a Muslim woman to
obtain a decree dissolving her marriage on the failure of the husband to maintain
her, or on deserting or maltreating her; and it was the absence of such a provision
entailing unspeakable misery in innumerable Muslim women, that was
responsible for the passing of the Dissolution of the Muslim Marriages Act,
1939. If the legislature could so alter the Hanafi Law, it is difficult to understand
the hullabaloo about the Shah Bano decision... It is thus seen that the law relating
to judicial separation, divorce and nullity of marriage is far, far from uniform.
Surely the time has now come for a complete reform of the law of marriage and
make a uniform law applicable to all people irrespective of religion or caste. It
appears to be necessary to introduce irretrievable breakdown of marriage and
mutual consent as grounds of divorce in all cases'.
 VI

Legitimacy and Parentage

(J ayaj aur Itishta)
1. Pre-Islamic background
The legitimacy of child depended not only on marriage but also in other
cases, as we have seen in Chapter III of this book, on the right of the mother of
the child to affiliate it to any one with whom she had sexual connection.
Adoption existed among the pre-Islamic Arabs. Much like its origin in
Hindu and Roman systems, it was having a religious bias, "having relation to the
repose of the souls of the departed and the preservation of the household
divinities". The odious name attached by the pagan Arabs to any person leaving
no male issue behind him is sufficient evidence of the importance which the
custom of adontion nossessM in their eyes I Under certain circumstances,
however, adoption had no relationship with religious motives. Sometime an Arab
would employ it to legitimate his own son by a slave girl; sometime a refugee
from another tribe was adopted by a member of the tribe which received him;
and sometime a youth of Arab race enslaved to another by the fortune of war,
would gain his attachment to such an extent as not merely to be set free but to be
treated by him as his son, which is what occurred as between the Prophet and
Zaid.2 Neither any ceremony nor any restriction as to the age of adopted child, or
the absence of a natural born son to the adoptive father, was known in pi-c-
Islamic Arabia.3
The Prophet appears to have recognised the custom at the time he adopted
Zaid, the son of Hans. But later on, he disapproved of it by saying that adoption
similar to what was practised in the "Days of Ignorance" (Jahiliyyah) created no
such tie between the adopted and the adopting as resulted from blood
relationship.4 Hence, Muslim Law does not recognise the validity of any mode of
filiation where the parentage of the person adopted is known to belong to a

1. Ameer All, ii (2nd Edn.) at p. 215.

2. Wilson (5th Edn.) at p. 158.
3. Abdur Rahim, at p. Il.
4. AmeerAli, ii (2nd Edn.) at p. 215.
 LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA) 145

person other than the adopting father. And it is acknowledgment alone that
Muslim Law recognises as the only form of filiation. The father alone has the
right to establish the relationship to the total exclusion of the mother and other
relations.5
Distinguishing legitimacy from legitimation, the Privy Council in Habibur
Rahman v. A1tafAli6 observed:
"Legitimacy is a status which results from certain facts, legitimation is a
proceeding which creates a status which did not exist before. In the proper
sense there is no legitimation under Muhammadan Law. Examples of it may
be found in other systems. The adoption of the Roman and the Hindu Law
affected legitimacy. The same was done under the canon law and the Scotch
law in respect of what is known as legitimation per subsequens
matrimonium."
Islamic concept
The concept of legitimacy of children is the direct outcome of the concept of
marriage. Society that recognises the institution of marriage also recognises the
legitimacy of children born within lawful wedlock; and vice versa, those born
outside the wedlock are illegitimate. Muslim Law is very harsh on illegitimacy,
yet fairly liberal in the rules on legitimacy. It postulates very strict enforcement
of sexual morality; extramarital sexual relationship of any kind is condemned as
zina and is severely punishable. Yet the relative catholicity in according
recognition to marital status mitigates the perils of illegitimate relationship,
offsprings of Muta are legitimate. 'The parentage of child is determined on the
principle that it always follows marital bed. The fath?-( a child born in
wedlock is presumed to be the husband of the woman giving it birth, and a child
which is born after six months of marriage and during its continuance is said to
be born in wedlock. The legal effect of marriage on fixing the paternity of a child
continues, according to H:.nafis, for two years, and according to the Malikis and
the Shaflis for four years fter the separation by divorce or death ' . 7
2. Parentage
Parentage is the relationship of parents to their child or children.8
Paternity is the legal relation between father and child.
Maternity is the legal relation between mother and child. Depending on
paternity and maternity are such things as guardianship, maintenance and
inheritance.

5. Ameer Ali, ii (2nd Edn.) at p. 215.

6. (1921) 48 IA 114.
7. Abdur Rahim, as cited by Paras Diwan, at p. 105.
8. MuIla, at p. 355.
 MUSLIM LAW [CHAP.
146

Maternity is commonly recognised by law as the natural relationship

between the mother and the child. The woman who gives birth to the child is its
mother. Sunni Law (like other legal systems) recognises this status, irrespective
of the fact whether she is married or unmarried, and even if the child is the
outcome of zina. So the child can inherit from its mother. But under the Shia
Law mere birth is not enough to establish maternity. A child born of adultery,
incest or fornication is an illegitimate child and is devoid of maternity in the
woman who gave birth to it; so he cannot inherit from her. Thus, there is a legal
status to maternity and is a legal relationship.
Paternity is the legal relationship between the child and its begotter. It is
based in turn, on the legal relationship between the woman who gave him birth
and the man who begot him—there must be a tie of marriage between the
woman and the man; he must be the husband of the child's mother. The marriage
must be valid, may be even irregular, but not void or batil; neither Sunni Law
nor Shia Law gives any credence to paternity if the marriage was batil. The fact
of marriage is proved by either direct proof or by presumption, the latter in three
conditions—by prolonged cohabitation, by acknowledgment by father or by
acknowledgment of the woman as wife.
An issue of void marriage has neither paternity nor maternity under Shia
Law; a bastard is a fihius nullius, i.e. a relation of none. Under Sunni Law an
illegitimate child has onl y maternity and no øaternitv, i.e. the maternitv' and
'paternity' of child begotten in consequence of adultery, merge together in the
mother of the child.9
Blood test to determine paternity—Though blood test may appear to be a
scientific method, it has its own limitations. It is based on the compatibility of
the child's blood group with that of the parents. The test can establish either that
the man cannot be the father or that he may be, but never that he is. Even the
negative verdict is said to be 70 per cent reliable. Thus the test is not as useful
it appears at first sight. Further, blood samples be taken only with the person's
consent, and since it cannot prove legitimacy the custodian may refuse to give
the sample to avoid unnecessary mental disturbance.10
3. Legitimacy
The question of legitimacy is directly connected with paternity, because, the
maternity of a child is always established in the mother, irrespective of the fact
whether the child is legitimate or illegitimate. But the paternity of a child can
only be established by marriage between the parents of the child. The marriage
must not be void, it may be regular or irregular. When paternity is established,

9. Aquil Ahmad, at p. 138.

10. See, S.M. Hassan in Islamic Law, op. cit., at p. 195.
VI] LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA) 147

legitimacy is also established. 11 The main point in the case of legitimacy of a

child is marriage between its parents. The Privy Council held in Habibur
Rahman Choudhary v. AltafAli Choudhary'2:
"By the Muhammadan Law, a son to be legitimate must be the offspring
of a man and his wife or of a man and his slave; any other offspring is the
offspring of zina, that is illicit connection; and cannot be legitimate... Direct
proof (of marriage) may be available, but if there be no such proof, indirect
proof may suffice. Now one of the ways of indirect proof is by an
acknowledgement of legitimacy in favour of a son."
The paternity of a child cannot be established by a Muslim if he adopts a
child of whom he is not the actual father. Adoption is unknown to Muslim Law;
it has been expressly disapproved by the Koran. Thus, there is no legitimation in
Islam.
Muslim Law, however, provides that in certain circumstances where
marriage between the parents of child cannot be proved, 'acknowledgment of
paternity' by father is permissible.
In Sadiq Hussain v. Hashim Au 13 it was said that no statement made by one
man that another (proved to be illegitimate) is his son can make that other
legitimate, but where no proof of that kind has been given, such a statement or
acknowledgment is substantive evidence that the person so acknowledged is the
legitimate son of the person who makes the statement provided his legitimacy be
possible.
Thus, there is no mode or method recognised by Muslim Law to legitimise
an illegitimate child. Muslim Law insists that conception in order to render a
child legitimate should take place after the marriage, actual or semblable. There
are two methods through which legitimacy (and parentage) is established:
(a) by birth during a regular (also irregular but not void according to
Hanafis) marriage, or
(b) an acknowledgment.
The above attitude of Muslim Law towards legitimacy can be appreciated
better if we are clear in our minds that—
"Under English law a sexual relationship outside marriage is not a legal
offence unless it is aggravated by circumstances such as lack of consent, the
young age of the girl, the blood relationship of the person concerned, or
unnatural behaviour which will amount to the criminal offences of rape,
unlawful carnal knowledge, incest, bestiality, or sodomy. Islamic Law, on
the other hand, holds that any sexual relationship is a crime unless it is

11. See, S.M. Hassan in Islamic Law, Op. Cit., at p. 195.

12. Supra, n.6.
13. (1916)43 IA 212 at p. 234.
148 MUSLIM LAW [CHAP.

between husband and wife or was, in the old days, between a master and his
slave concubine."14
4. Presumptions of legitimacy

The circumstances in which legitimacy (or illegitimacy) is presumed are

numerous and conflicting. Stating briefly, it will be presumed that 15-
(i) A child born within 6 months of the marriage is illegitimate, unless the
father acknowledges it.
(ii) A child born after 6 months of the marriage is legitimate, unless the
father disclaims it.
(iii) A child born after the termination of marriage is legitimate, if born—
within 10 lunar months (Shia Law);
within 2 lunar years (Hanafi Law); and
within 4 lunar years (Shafli and Maliki Law).
(iv) According to Section 112, Indian Evidence Act, a child born during
the continuance of a valid marriage, or within 280 days after its
dissolution (during which period the widow remains unmarried), is
legitimate, unless it is proved that the husband and wife had no access
to each other at any time when the child could have been begotten.
Possible rationales behind above presnniptions—On the authority of
Sharfiyah, Baillie observes:
"The shortest period of gestation in the human species is six months,...
and the longest is two years, according to Abu Hanifa, who assigned this as
the maximum on the authority of Ayeshah, who is reported to have said, as
having received it from the Prophet himself, that the child remains no longer
than two years in the womb of its mother, even so much as the turn of a
wheel."6
Accoding to Jung, 'the great irnam has (not) fixed 2 years as the
longest period of gestation because this rule is to be read together with the
provision that while observing the period of iddat, the woman must declare
that she is pregnant. This fact is to be decided within the period of iddat.
And if after declaration the woman were to continue enciente and exceed the
natural maximum limit of gestation, the case would then be fully covered by
the 2 years' rule of Imam Abu Hanifa."7

14. Coulson, N.J., Conflicts and Tensions in Islamic Jurisprudence, 78 (University of Chicago,
1969), cited by S.M. Hasan in his paper in Islamic Law in Modern India at pp. 196-97.
15. Fyzee, at p. 190.
16. Wilson (5th Edn.) at p. 169.
17. M.U.S. Jung, A Dissertation on the Muslim Law of Legitimacy and S. 112 of Evidence Act 13.
 vi] LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA) 149

The minimum and maximum periods of gestation fixed by Muslim Law

have been criticised on the ground that they are not borne out by modem
scientific knowledge of gestation and pregnancy.
The shortest period of gestation which has been accepted by English courts
is 174 days. So also in Muslim Law. The six months being lunar months, the
period may be less than 180 days. Medical testimony would generally approve
this minimum limit of Muslim Law.
The main criticism, however, is directed against the maximum periods. The
reasons for these long periods may be the imperfect knowledge of gestation and
pregnancy in those days and this could have led to an attitude of caution. But
those considerations also exist now and perplex the most skilful of the medical
specialists. The Sunnite jurists acted with the same caution and humane
sentiments in fixing the maximum limits. Although Maliki jurists had fixed four
years, yet in Algeria, the qadis administering Maliki Law have adopted ten
months) 8 As observed by Paras Diwan, it may be that the Muslim Law givers
leaned so heavily in favour of legitimacy that they gave fullest allowance to any
freak of nature. Whatever explanation, he considers these rules of presumption
totally out of date, and would prefer their abandoning without any qualms.19
Presumption of legitimacy from presumption of marriage.—The Muslim
Law givers, from the earliest times, leaned heavily in favour of legitimacy of
children, and considered the children of void marriage alone as illegitimate. In
their concern to avoid illegitimacy they accorded recognition even to temporary
marriages. The fact of the matter seems to be that even when there was a
semblance of marriage, the Muslim Law givers construed it to be a marriage—
the underlying idea being to confer the status of legitimacy on the children of
such unions.20 The Privy Council observed: 'The legitimacy or legitimation of a
child of Muhammadan parents may properly be presumed from circumstances
without proof or at least any direct proof, either of a marriage between the
parents or any formal act of legitimation. 2 ' Inference of marriage between the
man and the woman would confer legitimacy on their child, unless disproved. In
Za,nin Ali v. Azizunissa 22 the Allahabad High Court observed that a statement of
the deceased father that he was married to the mother of the child, is evidence of
a valid marriage, from which legitimacy of the child may be presumed.
Whether Section 112 of Evidence Act overrides Muslim Law of
legitimacy.— The question whether Section 112 supersedes the provisions of

18. S.M. Hasan, Muslim Law of Legitimacy and S. 112 of the Indian Evidence Act, in the Islamic
Law in Modern India at pp. 198-99.
19. Paras Diwan, at p. 107.
20. Ibid, at p. 108.
21. Mo/id. Baukerv. Shurfoonnissa, (1860) 8 MIA 136.
22. AIR 1933 All 329.
 MUSLIM LAW [CHAP.
154
of the child was impossible or did not exist at the time which would make the
child legitimate, the acknowledgment itself would be ineffective.
For similar reasons there is absolutely no analogy between the Roman law of
adoption and the Muhammadan Law of the acknowledgment of parentage. Under
the Roman system adoption of whether in the form of arrogatio or in the later
form of adoptio proper, was simply one of the methods of acquiring patria
potestas, that is, the rights to control enjoyed by the head of a Roman family
over his children, and it went through various stages of modification both as to
the method by which it was acquired and as to its conditions and effects on the
adopted children.
It is enough to say that before the age of Islam, adoption by a feigned
parturition (pretending a childbirth) was common and well recognised among
the ancient Arabs; that the cognate and agnate rights were attributed to children
so adopted; and that such adoption and its legal effects were abrogated by the
express words of the Koran and have never since found a place in Muhammadan
jurisprudence in connection with marriage, inheritance, or for any other legal
purpose.
Thus, the doctrine of acknowledgment applies only to cases where either the
fact or the exact time of the alleged marriage is a matter of uncertainly, that is,
the marriage has neither been proved nor disproved.32
Acknowleagmenr may ne 1) express, or (ii) implied. An express
acknowledgment entails a formal declaration, whereas in implied, it is presumed
from the fact that a person has openly and habitually treated another as his
legitimate child.33
Thus, in Allandad case30, the facts were that the plaintiff's father a Sunni,
died leaving behind two sons and three daughters. The plaintiff filed a suit
against his younger brother and three sisters claiming that he was the eldest son
of the deceased and as such was entitled to 2/7th share in the property. The
defendent's contention was that while they were born to the deceased after the
marriage between their mother and father, the plaintiff was born to their mother
(common mother) before she was married to their father, and his paternity was
doubtful. The plaintiff's argument was that even if he could not prove that he
was the son of the deceased father, the fact remains that the deceased had on
several occasions acknowledged him as his son, in support of which he produced
some letters written by the deceased. The Allahabad High Court held that the
case was fit one for the application of the theory of acknowledgment for
following reasons— (a) the paternity of the plaintiff was not proved, (b) it was
also not disproved, (c) it was , also not proved that P was the offspring of

32. MuIla, at p.353.

33. Mohd. Azmal v. Lalli Begum, (1881)9 IA 8.
VI] LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA) 155

fornication (zina) or illicit relations or born prior to the marriage between his
mother and the deceased, and (d) there was no legal impediment to the marriage
between them. The Court upheld the plea of acknowledgment of P by the
deceased as the latter's son and held him entitled to inherit the property. This
case lays down the following principles: (i) the rule of acknowledgment applies
in the case of uncertainty of paternity, (ii) the rule proceeds on the presumption
of lawful union between the mother and father of the child acknowledged, (iii)
the offspring of fornication or adultery cannot be legitimatised by
acknowledgment, (iv) this Muslim Law rule is not a substitute for the Hindu
system of adoption, as the latter is not acceptable to Koran.
6. Conditions of valid acknowledgment
There are seven essential conditions of a valid acknowledgment:
(i) 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 acknowledgment of legitimacy in
favour of a 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 a state of not proved, i.e. capable of being proved or
disproved. (If already established, there will be no dispute, if already disproved
legitimacy is ruled out; 'not proved' means 'yet to be proved', meaning thereby
that positive and negative both results are probable, and exactly for that reason
the legitimacy is in question.)
(ii) Intention to confer status of legitimacy.— In Habibur Rahinan v.
Altaf Au 34, the Privy Council observed that "the acknowledgment must be not
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, but, as
his legitimate son". The general principle of law is that acknowledging a child as
son indicates accepting him as legitimate son. As held in Fazal-un-Bibi v. Umda
Bibi35 this rule is applicable to Muslim Law also. However, a casual
acknowledgment would not confer the status of legitimacy. There must be an
express intention to do so. 36 (It will not suffice to say 'he is like my son', or 'I
consider him as my son', or 'he has been brought up like a son'; it must be
clearly stated that he is his legitimate son.)

34. (1921)48 IA 114.

35. (1868) 10WR469.
36. AbdoolRazack v. Aga Mohd., (1893)21 IA 56:21 Cal 666.
156 MUSLIM LAW [CHAP.

(iii) Acknowledger must be 12½ years older than the acknowledged.—

"The limitation that the acknowledged might have been 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 it is the
minimum period of puberty for a youth; and this limitation is necessary because
if the acknowledger has not attained puberty, the acknowledgment would be
falsified obviously."37
(iv) Legal marriage must be possible between the parents of the person
acknowledged.—The parents of the acknowledged child must not be in the
prohibited degree 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 prohibitions so as to make
the marriage between them as irregular but not void, valid acknowledgment can
be made of an issue of such a marriage.
An example of a child of void marriage can be seen in Rashid AThnad v.
Anisa Khatun3t . The 'acknowledgmenL' in quesliun 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
spouses remarried with each other. Since this marriage was void, valid
acknowledgment could not be given to the child.
(v) Person acknowiedgeü must not ne the oftspring 01 zzna.—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,39 and he cannot be acknowledged.
(vi) Person acknowledged must not be known to be the child of
another.—The Muslim Law of acknowledgment relates only to 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 a lawful
union.40 Thus, where a person is known to be the child of another, valid
acknowledgment cannot be made.

37. Biijandi, at p. 294, cited in Mohd. Allandad Khan v. Mohd. Ismail Khan, ILR (1888) 10 All
289.
38. (1931) 59 IA 21: AIR 1932 PC 25.
39. Baillie, at p. 411, cited by Mahmood, J., in Mohd. Allandad V. Mohd. Ismail, (1888) 10 All
289.
40. (1888) 10 All 289 at p. 341.
Vt] LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA) 157

(vii) Person acknowledged must not repudiate the acknowledgment.—

It is a condition that the acknowledged child should verify acknowledgment,
because, if the child does not verify, an impediment is created and the child's
descent is not established by the mere acknowledgment, but requires proof.
However, if the child is too young, such a verification is not essential.
Rebuttal of acknowledgment.—The presumption of paternity by
acknowledgment may be rebutted on the following grounds:
(i) Disclaimer by acknowledged person.—If the person acknowledged
as 'son' by the 'father' subsequently refutes or disowns the
acknowledgment, it becomes effectless.41
(ii) On proof of real parentage.—If it is proved that the child
acknowledged is the son of another person, the acknowledgment is nullified.
(iii) When mother not lawful wife.—When it is proved at the time
when the son was conceived the mother could not be regarded lawfully
wedded to the father, the acknowledgment by the 'father' is ineffective.
Thus, in Rashid Ahmad v. Anisa Khatun 42, the husband pronounced triple
divorce on the wife. Subsequently, the child was begotten. Without
undergoing all the formalities of intermediate marriage and divorce, they
remarried. This marriage being void, the recognition of the child could not
be upheld valid.
(iv) Age difference less than 12 112 years.—If the difference of age
between the father and acknowledged child is less than 12½ years, the
acknowledgment is unacceptable.

7. Effects of acknowledgment
(i) Acknowledgment of child means acknowledgment of wife also.
(ii) It raises presumption of marriage.
(iii) It gives rights of inheritance to children, parents and wife.
(iv) Acknowledgment once made is irrevocable.

8. Position of adoption in Muslim Law

Though adoption is not recognised under Muslim Law, in the following
circumstances it is applicable:
(1) A valid custom not abrogated by the Shariat Act, 1937.— Before the
coming into force of this Act, adoption was customarily recognised in
Punjab, Oudh and some other parts. If an Indian Muslim citizen capable of
entering in contract under the Indian Contract Act, Section 11, declares
under Section 3 of the Shariat Act that the provisions of the Muslim Personal

41. Abdul Rajakv. Aga Muhammad, (1913)1A46.

42. (1931) 59 IA 21: AIR 1932 PC 25.
158 MUSLIM LAW [CHAP.

Law (Shariat) Application Act would govern him and his minor children and
descendants, the custom of adoption would cease to apply to him. If a
convert, like a Khoja, Bohra, Kutchi Memon does not declare so, he would
be governed by the customary law.
The Himachal Pradesh High Court, in a very recent case, has reiterated
that by virtue of custom Muhaminadans may also have system of adoption,
subject to proof. In Zatieen Begum v. Secy., Forests 43 the petitioned right
was not granted on facts of the case, but the principle was re-recognised. The
appellant had proved under the Workmen's Compensation Act, 1923 for
compensation to the deceased on the ground that she was the adopted
daughter of the deceased. The appellant however miserably failed to prove
this claim of adoption on facts, and therefore her claim was rejected by the
High Court. Apart from this, the Court during the course of the judgement
reaffirmed that if the custom of adoption is prevalent amongst the Muslims
of the area to which the claimant belongs, a Mussulman can also adopt a
child. Quoting from the works of B.R. Verma, Mohammedan Law in India
and Pakistan and Mulia, Principles of Mohammedan Law the Court said
taking in adoption will be valid if based on special family or tribal custom.
Moreover, the list in the Shariat Act [Muslim Personal Law (Shariat)
Application Act, 1937] excluding the subjects from the application of
customs in India does not include adoption. Therefore, if proved, the custom
of adoption wil 1 override general Muslim Law. 'Three points emerne clearh'
(1) in general, the Muslim Law does not recognise adoption, (2) adoption
may be permitted among Muslims on the basis of custom, and (3) one who
claims the basis of custom, will have to prove the existence of the custom'.
The Court said the mode of proving a custom is well known. The person
relying upon the custom must prove that such a custom has been in existence
from time immemorial and must give specific instances of such custom.
(2) When the right of adoption is permitted by law.—The Oudh Estates
Act, 1869, Section 29 entitles z Muslim Talukdar to adopt a son.44
Paras Diwan is of the view that to a very great extent the custom of adoption
stands abrogated45 . However, in addition to the view of the Himachal Pradesh
High Court just quoted above, there are a number of other decisions and
instances which we will examine below and which will establish that this
presumption of Paras Diwan is hemmed by many exceptions, and that this
custom is prevalent in the Muslim community in many parts of India. For
instance -- Khair Ali Shah v. Imam Shah46 (former Punjab); Usman v. Asat47

43. (2005) 3 ACC 516.

44. See, K.P. Sharma, Muslim Law at p. 227.
45. Paras Diwan, at p. 113.
46. AIR 1936 LahSO.
47. AIR 1925 Sind 207.
VI] LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA) 159

(Sindh, now in Pakistan); Abdullah Khan v. Sunda48 (Ajmer); Mst. Khatgi v.

Abdul RajaL49 and Mo/id. Akbar Blurt v. Mohd. Akhoon 50 (- both Kashmir);
Ayubsha Amirshah Jamadar v. Babalal Maha but Danawade 51 (- former
Bombay lrovince); Abbasali Shah v. Mohd. Shah 52 (—Madhya Bharat - now
Madhya Pradesh); and Abdul Hakim v. Gappu Khan53 (- Rajasthan). Indeed,
amongst the Mahawatan caste of the Muslims of Rajasthan the custom of
adoption tallys with that as practised Ly the Hindus. The Rajasthan High Court
observed in Abdul Hakim v. Gappu (supra):
In addition to the above quoted decisions delivered during last 50 years,
abundant oral evidence supports the claim that adoption custom is prevalent
among the Mahawatan Muslims; this fact has not been rebutted also, and the
instances, cited by the witnesses of the defendant party have also not been
rebutted.
Again in Nenu Khan v. Mst. Sugni 54 The same High Court decided that
custom based system of adoption among Muslims is recognised. Further, in Mst.
Bibi v. Said Au 55. This High Court considered the subject in detail and
propounded the following findings:
(i) As a rule, adoption among muslims is not an unknown fact.
(ii) If (among that class) this custom has been practised, the system of
adoption can be prevalent.
(iii) The Muslim person who claims that the custom of adoption applies to
him, will have to prove his claim.
Thus, many cases substantiate the point that Muslim Law accords sanction
to the practice of adoption on the basis of custom.
If we examine the Shariat Act we will find that there also adoption has not
been forbidden. Section 2 of the Shariat Act enlists the subjects (topics) of the
Muslim family law which, notwithstanding any custom to the contrary and
superseding it, shall be governed by the provisions of Shariat Act (Muslim
Personal Law) only; this schedule does not include adoption, that means this
custom of adoption has not been superseded, and therefore it can apply.
Commenting on this provision of law the Madras High Court in Puthiya Purahil
Abdurahiman Karnavan v. Thayath Kaucheentavida Avoomma56 and Moulvi

48. 1110670.
49. AIR 1977J&K44.
50. AIR 1972 J&K 105.
SI. AIR 1938 Born III.
52. AIR 1951 MB 92.
53. S.B. C5A No. 115/1950, decided 22-12-1954.
54. 1974 WLN (HC) 8.
55. SB SA No. 132/1990, decided 12 .9-1997 (unreported).
56. AIR 1956 Mad 244.
160 MUSLIM LAW

Mohammed v. Mahboob Begum 57 observed that the subjects not enlisted under
Section 2 can be permitted rightly to be governed by custom.
The Koran has not expressly disallowed taking a child in adoption; what it
ordains is only this: 'in the matter of parentage, one should not commit a mistake
on account of confusion, between one's own offspring and that of other

9. A comparison between acknowledgment and adoption

We may compare now the two systems to highlight the differences:
(i) While the first system is recognised by Muslim Law, the second is
recognised by Hindu Law; and both the laws reject the alternatives.
(ii) While the basis of the former s the real paternity of the child, in the
latter, another's child is adoptec; one never adopts one's own child,
just as a Muslim never acknowledges another's child as his own.
(iii) Similarly, while a direct descendant is acknowledged in Muslim Law,
in adoption, the child is artificially mace a descendant of the adopter.
(iv) There is no gift of the child in the former system, while in the latter the
real father may gift the child to another.
(v) There is no change of family in acknowledgment, while such change
takes p lace in the latter system.
(vi) The object of acknowledgment is to dispel doubts about the paternity.
Adoption is for material, spiritual or one or both purposes.59

57. AIR 1984 Mad 7. And also see, Hajee Abdul Sauar Sait v. CED, (M ys), (1968) 69 hR 45
(Mys), and C. Mohd. Yunus v. Syed Unnissa, AIR 1961 SC 809.
58. See, A.K. Bhandari, "Adoption Amongst Mohammedans - Whether Permissible in Law"—,
(2005)47 JILl at pp. 110-I 14.
59. K.P. Sharma, op. cit., at pp. 228-29.
 VII

Guardianship
(Valaya)

Abdur Rahim defines guardianship as:

"A right to control the movement and actions of a person who, owing to
mental defects, is unable to take care of himself and to manage his own
affairs; for example, an infant, an idiot, a lunatic. It extends to the custody of
the person and the power to deal with the property of the ward."1

1. Concept of guardianship in Islam

In pre-Islamic Arabia, the properties of minors were looked after by
guardians taken from among the members of the family. In the absence of any
code of conduct, misappropriation and embezzlement were rampant. This
necessitated the introduction of most stringent rules for the protection of minors
in the Islamic legal system.2
According to Ameer Ali, the Koran is full with denunciation againt the
gross malpractices prevalent in Arabia of those days.
"Restore to the orphans," says the Koran, "when they come of age, their
substance (property); do not substitute bad or good (that is, take not what ye
find of value among their effects to your own use and give them worse in its
place), nor devour their substance by adding it to your own, for this is an
enormous, crime" (Koran, Chap. IV, v. 2).
The Koran forbade tl waste .of the property of wards by their guardians
(Koran, Chap. IV, v. 15(.), and directed that the guardians may take a reasonable
and moderate gratuity for their labour, but not more.
"Let him who is rich abstain entirely from the orphans estate" (Koran, Chap.
IV, v. 6). 3 It also lays down that "when ye deliver unto your wards their property,

I. Abdur Rahim, at p. 344.

2. Ameer Au, at pp. 472-73.
3. Ibid.
 162 MUSLIM LAW [CHAP.

call witnesses thereof in their presence. Surely they who devour the possession of
orphans unjustly shall swallow fire hereafter" (Koran, Chap. IV, v. 6).
Since the law of guardianship, as we have seen is mainly based on Koran,
there is little room for differences between the Shia and Sunni Schools in this
branch of Muslim jurisprudence.
'A remarkable feature o Muslim Law of guardianship and custody',
according to Paras Diwan 'is that, on the one hand, detailed rules have been laid
down for the guardianship of a minor's property, while on the other, there are
very few rules relating to the guardianship of a minor's person. This is so
because they regarded the latter as more of a matter of custody than of
guardianship. The rules regarding the minor's custody have been laid down in
great detail. In this lies their foresightedness that in an essentially patriarchal
society, they could lay down that the custody of children of tender years
belonged to the mother. Thus, a clear distinction is maintained between
guardianship and custody—a distinction which could be established in English
law o_r a protracted struggle extending over almost two centuries, and that
too, by legislation (Guardianship of Minors Act, 1971). It is unfortunate that in
the early days of administration of Muslim Law during the British Raj, some
textbook writers and judges could not decipher the distinction. On the one side,
undue prominence was given to the paternal right, on the other, the mother was
dubbed as guardian of tender ae...the Koran. the ahadis and other authoritiec on
Muslim Law emphatically speak of the guardianship of the property of the
minor; the guardianship of theperson is a mere inference'.4

2. Appointment of guardian

Under Muslim Law, no formal appointment by any authority is necessary for

a competent person to act as guardian. The only consideration is, whether he is
competent and entitled to be a guardian.
According to Muslim Law, a person who has attained the age of 18 years,
and who is sane, can act as guardian.
A guardian may also be appointed under the Guardians and Wards Act,
1890. The application for the appointment may be made not only by a person

4. Paras Diwan, Muslim Law in Modern India at p. 114. The examples of the text-book writers
and judges given by Diwan are as follows: In Tyabji's Muhammedan Law, S. 231 runs:
"Guardianship of the person is referred to in Muslim Law as Hizwia." Raffi and Poggot, JJ.
said, "The right of guardianship of female minor primarily rests with mother," Salim-un-Nissa
v. Sandal Husain, ILR (1944) 36 All 446. To the same effect are the remarks of Jallal, J. in
NurBegum V. Begum, AIR 1934 Lah 274 (I), and of Davis, J. in Isso, Re, 1942 Sind 204. In
following cases which were under S. 488 CrPC (old Code) the mother is referred to as
guardian: Zauhra Bi v. Mohd. Yusaf, 1931 Cri U 247 (Lah); Sarfraz Begam v. Miran Bakhsh,
.1928 Cn U 1052 (Lah); Mo/id. Jusab Nurani v. Adam Haji Nurani, ILR (1911) 37 Born 71;
Parathy Valappil Moideen, In re, 1913 Cri LJ 597 (Mad); Muzaffarjiruddin Begum v. Hazara,
1952 Cri U 996 (Hyd) and Allah Rakhi v, Koran' Ilahi 1914 Cri 1,1 144 (Lah.
vnJ GUARD!ANSHIP(VALAYA) 163

desirous of being, or claiming to be the guardian of the minor but also by any
relative or friend of the minor, and in some cases by the Collector. 5 Reading in
between the lines of Section 17 of the Guardians and Wards Act, 1890, it may be
very well inferred that even though the Court is empowered to appoint a
guardian, the application of Muslim Law of Guardianship has been by and large
preserved in the Act, which provides:
"17. (i) In appointing or declaring the guardian of a minor, the Court
shall, subject to the provisions of this section, be guided by what
consistently with the law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor.. ."In appointing the
guardian, the Court shall consider:
(i) the welfare of the minor,
(ii) age, sex and religion of the minor,
(iii) character and capacity of the proposed guardian, and his nearness of
kin to the minor,
(iv) the wishes, if any, of a deceased parent,
(v) any existing or previous relations of the proposed guardian with the
minor or his property, and
(vi) preference of the minor, if he is old enough to form an intelligent
preference.
The Guardians and Wards Act, 1890 defines a guardian as 'a person having
the care of the person or his property or of both his person and his property'. The
individual who has by law the right and duty of giving a boy or girl in marriage
may also be said to have the care of the person for that limited purpose; he is
called wali—a species of wilaya (Tyabji Section 235). But there is no mention of
disposal in marriage in any part of the Act, and nothing to indicate that it was
intended to replace the persons who, under the traditional law have been
assigned the right to give a minor in marriage (See Jabr—Guardianship in
marriage, supra). Thus guardianship (wilaya) may be of the person, of property
and in marriage. The Koran is the basis of the law relating to guardianship and
therefore differences between Sunni and Shia Schools are relatively less.6
3. Age of majority
Muslim Law: 15 years—marriage, dower and divorce,
18 years—guardianship and all other matters.
Indian Law: 18 years—Indian Majority Act, 1875,
21 years—Guardians and Wards Act, 1890.

5. MuIla, at p. 294.
6. Aquil Ahmad. Mohammpd,,,' i "..' ."' ic
164 MUSLIM LAW [CHAP.

That is, any Muslim of 18 years of age (or above) can act as a guardian of a
minor Muslim; but if formal appointment by the Court under the law (Guardians
and Wards Act, 1890) is sought, then he must be of 21 years at least, for a minor
cannot act as a guardian of a minor (Section 21).

4. Kinds of guardians
Guardians may be classified into three categories—natural, testamentary and
court-appointed. De facto guardian—a fizuli, is out of vogue in the modem
Muslim Law. Father is the natural guardian of the legitimate children, though the
term natural guardian is not used in Muslim He has no right of
guardianship over the illegitimate children, not even after the death of the
mother, unless the court appoints him. The mother is not a natural guardian of
her children, legitimate or illegitimate neither during the lifetime of the husband
nor after his death. Thus father is the sole guardian. He controls the education,
upbringing and religious inculcation of the child as a supremo. After his death,
guardianship passes on to his executor under Sunni Law and to the grandfather
according to the Shia Law.
A testamentary guardian is a person appointed as guardian by the natural
guardian by testament or will. The father, his executor and then the grandfather,
in that order have the power to appoint a testamentary guardian under the Sunni
system. The Shia father cannot appoint a testamentary guardian if the
grandfather is alive; tne latter acquires the power only on the father's death, and
the executor is out of picture. The mother is totally deprived by both schools, but
she can become a testamentary guardian by appointment. For this, she must
necessarily be a Muslim under the Shia Law, not so for the Sunnis. However, no
non-Muslim alien person can be appointed a guardian by a testament under any
system. A Muslim may appoint a testamentary guardian orally or in writing, no
specific formality being required. But the testator must be a major and of sound
mind at the time of making the will. The executor of the testamentary guardian is
called a wasi (guardian), ainin (a trustee) or a kaim-mukain (representative)—all
allusions to his attributes. Once the obligation of testamentary guardianship is
accepted, expressly or impliedly, it cannot be renounced without the permission
of the court.
The court-appointed guardian takes place when no natural guardian is
available and testamentary guardian has also not been designated. Previously the
Kazi was authorised by the traditional law to appoint a guardian. But now under
the Guardians and Wards Act, 1890, that power is abrogated; for all guardians
for minors, irrespective of any religion, can be appointed only under this law.
The District Court exercises this power. As stated earlier, Section 17 requires the
court to make the appointment consistently with the law to which the minor is
subject, i.e., the minor's personal law.
VII] GUARDIANSHIP (VALAYA) 165

5. Kinds of guardianship
Muslim Law recognises three kinds of guardianship, namely:
(a) Guardianship of person.
(b) Guardianship of property.
(c) Guardianship in marriage.
A. GUARDIANSHIP OF PERSON
In Indian Law three periods of guardianship of minors are relevant. Under
the Muslim Law a minor is a person under 15 years, while under the Indian
Majority Act he is one under 18 years; and if he is under the supervision of the
Court of Wards, his minority terminates at 21. Under the Muslim Law 'minors'
between the ages of 15 and 18 can act independently of any guardian in
marriage, dower and divorce. A Muslim wifç of 16 may sue for divorce without
the intervention of a guardian.7
Guardianship of the person of the minor belongs to the following, in the
order they are mentioned below:
(1) Mother is entitled to the custody (Hizana) of—
(a) A male child till 7 years,
(b) A female child till puberty,. Hanafi Law
which is either 15 or 18 years.J
(a) A male child till 2 yearsShia Law
(b) A female child till 7 years. f
'The mother is, of all persons, the best entitled to the custody of her infant
child during marriage and after separation from her husband, unless she be an
apostate, or wicked or unworthy to be trusted.'
Here it must be clearly understood that there is a vast differe&e between
mother's right of custody (Hizanat) and father's right to be the legal guardian of
his minor children. Explaining this difference, it was observed by the Privy
Council in Imambandi v. Mutsaddi8 that under Muslim Law "the mother is
entitled only to the custody of the person of her minor child up to a certain age
according to the sex of the child. But, she is not the natural guardian; the father
alone, or, if he be dead, his executor (under the Sunni Law) is the legal
guardian".
From the above Tyabji concludes that where th 1 11shand and wife are living
together, the child must stay with them, and the husband cannot take the child

7. Fyzee, at p. 197.
8. (19I8)45IA73.
166 MUSLIM LAW [CHAP.

away with him; nor can the mother, even during the period that she is entitled to
the custody of the child, take it away without the permission of the father.9
The father's supervision over the child continues in spite of the child being
under the care of female relations, because, the burden of providing maintenance
to the child rests exclusively on the father. The mother's right of custody is not
lost merely by her being divorced) 0 But where she marries a second husband,
the custody of children normally belongs to her former husband. ' 1 The fact that
wife stayed separately from her husband, because of some dispute, does not
destroy her entitlement to the custody of her children. 12 In this case the husband
and wife were living separately in Madras itself, on account of some property
dispute. They had four children of different ages ranging from 10 months to 7
years. All the four were living with the mother. The husband married a second
wife, but soon divorced her by khula. One day the husband forcibly removed one
daughter of 5 years and the son aged 10 months. The wife sued for the custody
of both the children. The Madras High Court held that the wife was entitled to
the custody of the children and her staying acart from the husband did not
constitute any substantial disqualification.
According to Mulla mother is entitled to custody (hizanat) of her male child
until he has completed the age of seven years and of her female child until she
has attained puberty. The right continues though she is divorced by father of the
child, unless sh nrris a second husband, in which case the custody b!ong tc
the father (Section 352 of Mulla's, Principles of Mohammedan Law). Approving
this principle the High Court of Kerala held in Yusuf v. Sakkeena' 3 that where
the facts of the case reveal that the paramount interest of the children will be
better served if they are allowed the custody of their mother, the application of
the mother would be accepted. In the facts of this case the Court found that the
mother was looking after the educational interests of the minor children in better
way than the father. Even in such a case, the father would not be denied the right
of visitation. For exercise of such right he would have to seek permission from
the lower court. And the Allahabad High Court had also held that the fact that
the mother was a divorcee and had no source of income would not by itself be a
ground to refuse her the custody of her minor daughter. 14 In this case the mother
had already applied for maintenance under Section 125 CrPC on the ground that
she had no source of income. The Court said this did not mean that the Court
would overlook the welfare of the children. It was convinced that the children

9. Tyabji, at p.274.
10. ibid.
II. Fyzee, at p. 190, citing Mir Mclvi. Bahauddin v. Mujee Bunnisa Begum, AIR 1952 Mad 280.
12. Zynab Bi v. Mohd. Ghouse, AIR 1952 Mad 284.
13. (1998)2KLJ 573.
14. Zahid Ali v. Keshari, 1996 AIHC 1267.
VII] GUARDIANSHIP (VALAYA) 167

would have better mental development in being with their mother than with the
father, specially when they are young girls. Is
According to Bombay High Court there is no absolute bar on giving custody
of a child to its mother if she remarries. In Irfan Ahmad v. Mumtaz 16, the High
Court held:
it is open to the Court to appoint the mother as the guardian even if
she has married a stranger if the Court considers it to be in the interest of the
minor."
In this case the child had expressed to the Court more than once her
unwillingness to go to the father. The Court said there is no dogmatic insistence
in Muhammadan Law that the child must remain with the father even against her
wishes the moment the mother gets remarried to a stranger.
As regards the mother or a female guardian, marriage to a person not related
to the child within the prohibited degrees is a bar to guardianship (hizanat). The
ground for this rule seems to be the apprehension that if she marries a stranger
she would not be able to devote the same care to the child in the home of the
stranger—a gair-mahram. The paternal uncle is a mahran by consanguinity, so
a marriage with him would not attract the disqualification. But is this rule
absolute? The courts are not unanimous about it. Paras Diwan has mentioned the
cases in which Sind, Lahore and Madras High Courts have held that where the
law was definite the Court could not disregard it in the interest of the child) 7 On
the other hand Oudh Chief Court, Allahabad, Calcutta, Jammu and Kashmir and
Andhra Pradesh High Courts have held that the prohibition was relative and
could be waived in the interest of the child. 18 The Jammu and Kashmir High
Court has held though a Muslim mother may lose her preferential right of
hizanat by her marriage with a gair-mahram, she may still be appointed a
guardian by the Court in the interest of the child, for such marriage does not
disqualify her for a judicial appointment, if otherwise found suitable, the welfare
of the child being of paramount importance. 19

15. See also, ArifAhmed v. Irshad Ahmed, 1998 AIHC 911, where the divorcee mother was
entrusted with the custody of her male child aged 7 years. And also see, Abdulsattar v.
Shahina, AIR 1996 Born 134, where the mother was held entitled to the custody of her minor
son who was 5 years of age, and the father was allowed to meet the child on weekends or
during vacations.
16. AIR 1999 Born 25.
17. The cases mentioned by him at p. 128 are Ansar Ahmed v. Somaidan, 1928 Sind 220; Mehraj
Begum v. Yar Mohammad, AIR 1932 Lah 493; Mir Mohd. v. Bahauddin M:4ee Bunnisa
Begum, AIR 1952 Mad 280.
18. The cases are—Gunna v. Dargahi, AIR 1925 Oudh 623; Sa,niurtnissa v. Saida Khatun, AIR
1944 All 202; Haliman v. Ahntedi, 1959 All 627; Tumina Khazun v. Gaharjan Bibi, AIR 1942
Cal 281; Abdul Mohit v. Zebunnessa Khatun, AIR 1951 Cal 205; Hassan Bhatt v. Ghulam
Mohamad Bhat, AIR 1961 J&K 5.
19. Sundri v. Mohd. Fafoo, AIR 1971 J&K 43.
170 MUSLIM LAW [CHAP.

(xi) full paternal aunt, h.h.s.

The inclusion of paternal grandmother (No. iv) and paternal aunt (No. xi) is
doubtful according to Tyabji, because, they do not belong to the category of
mother's relations.25
(3) Male relations.—Failing mother and female relations, the following
male relations may act as guardian in the order they are mentioned below:
(i) Father;
(ii) Nearest paternal grandfather;
(iii) Full brother;
(iv) Consanguine brother; and other paternal relations within the prohibited
degrees, reckoning proximity in the same order as for inheritance.
Wilson says that the reason for not carrying the series of the above relations
beyond the prohibited degrees is the fear that in the case of a girl, for instance,
the paternal cousin or other agnate could forcibly marry her to himself, which he
could more easiiy do by reason of his being also guardian for marriage, and in
case of a boy, he could be murdered for the sake of his inheritance. 26 Whereas a
brother or uncle could not so marry, and the natural affection would restrain him
from killing or harming the minor.
The custody of a boy over seven years of age, and of an unmarried girl who
has attained puberty (only when she is related within prohibited degrees) beiongs
to27:
(i) The father;
(ii) The "executor" appointed by the father's will;
(iii) The father's father, h.h.s.;
(iv) The male paternal relations in the same order as for inheritance; and
(v) Failing all the above, it is for the Court to appoint a guardian of such
minors.
Custody of minor wife and illegitimate child.—The mother is entitled to
the custody of her married minor daughter as against the minor daughter's
husband.
The custody of an illegitimate child belongs to mother and her relations and
to no one else, as held by the Supreme Court.28

25. !bid,atp.276.
26. Wilson, at p. 206.
27. Ibid, at pp. 207-8.
28. Gohar Begam v. Suggi, (1960) 1 SCR 597.
VII] GUARDIANSHIP(VALAYA) 171

Disqualifications of guardianship of persons 29.—(a) In the case of mother

and other female relations:
(i) If she married a person who is not related to the child within the
prohibited degrees by consanguinity; (the right of guardianship revives
on the dissolution of such a marriage);
(ii) if she leads an immoral life; or
(iii) if she resides, during the subsistence of marriage at a distance from the
father's place of residence.
The Rudd-ul-Muhtar lays down the general rule thus: Hazina is not
disentitled to custody in every case of misconduct, but only such conduct as is
detrimental or injurious to the child. 30 Thus if she treats the child with cruelty or
neglects it grossly, she would lose her hizanat. Poverty, as such would also not
disqualify her, for the main responsibility of maintenance of the child is that of
the father. If the child has property, then of course she can provide it with house
and daily necessities out of the property. The true test is the welfare of the child,
other considerations are subordinate; the criterion of her conduct is relative to the
interest of the child and would vary from case to case.
(iv) If she converts to another religion. According to Hedaya, if a Muslim
mother converts to another religion, she is deprived of her right to hizanat, for a
non-Muslim female cannot keep in her custody a Muslim child. So is the Shia
Law. Paras Diwan is of the view that after coming into force of the Caste
Disabilities Removal Act, 1850, change of religion cannot strip a person of his or
her rights or property. This view is held by Mulla also, though Ameer Ali
advocates the opposite view. 'In several cases it has been held that the change of
religion by the guardian by itself is not enough to deprive him or her of the right
of guardianship or custody'.3'
(b) In the case of a male.—If the minor is an unmarried girl and is not
related to him within the prohibited degrees. If a non-agnate within the
prohibited degrees, such as a maternal uncle is available, he should be preferred
over an agnate not within prohibited degrees (i.e. a gair-mahra,n). The object of
this Islamic rule is to avoid the custody of a male hazin who may marry the girl.
However this rule is not recognised by the Shias. This rule, according to Paras
Diwan, should not come in the way of handing over a boy to the custody of the
paternal uncle's son. 32 Similarly a hazin who is minor, or of unsound mind or a

29. Verma, at pp. 323-324, citing Baillic, at pp. 435-36, and Hedaya, at pp. 138-39.
30. Therefore, the remark of Fyzce that 'the ancient doctor would obviously have frowned upon a
modem society mother who goes out for bridge (or social service) in the morning, has lunch
with a friend and comes home late in the evening after a dance at the club'— should be taken
in light spirit. (see Fyzee, at p. 199.)
31. Paras Diwan, Muslim Law at p. 130.
32. Ibid.
 MUSLIM LAW [CRAP.
172

profligate, i.e. one leading an immoral life would also be debarred from hizanat.
Since among Shias no person other than mother, father or grandfather (ft) can
act as such guardian, it is a moot point what adverse effect profligacy would
have on such father.
(c) In the case of a husband.—If the minor wife has not attained the age of
puberty, or is not of such an age as to allow consummation of marriage.
Termination of guardianship of person.—In the following instances the
guardian's right of hizanat comes to an end:
(i) Death of the guardian.
(ii) His removal (or her removal).
(iii) Court of Wards taking over the superintendence of the minor's person.
(iv) The minor attaining majority.
(v) The minor girl marrying a person capable to be her hazin.
(vi) The father of the male minor again qualifying to be his guardian.33
It was observed by the Andhra Pradesh High Court in Khatija Begum v.
Gula,n Dastagir34 that merely by marrying second time the father did not
disqualify to remain a guardian unless his continuation was against the interests
of the child.
This vic was reiterated by t Keiao 111gh Court in Pooiakkui Ayi.ukkutty
v. Parat Abdul Samad35. This was an appeal against the order of the Family.
Court granting custody of the minor child aged 4 years to the father in preference
to the maternal grandmother. The mother of the child had committed suicide and
after her death the child was brought up by the maternal grandparents. The father
filed an application for custody of the child which was earlier allowed by the
Family Court. Against this the maternal party filed this appeal. Father had
rbmarried and got children. The grandmother 'was dependent on her another
daughter. Held, conduct of remarriage by the father of the child itself is not a
ground to reject the prayer for custody. Welfare of the child is of paramount
consideration. It is for the welfare of the child that the child be with the father.
B. GUARDIANSHIP OF PROPERTY

Three types of guardians are recognised for the purposes of guardianship of

property, namely:
(1) Legal guardians;
(ii) Guardians appointed by Court; and

33. K.P. Sharma, Muslim Law at pp. 237-38.

34. AIR 1976 AP 128.
35. (2005)2CLT 203.
VII] GUARDIANSHIP (VALAYA) 173

(iii) Defacto guardians.

(i) Legal guardians.—Under Hanafi Law, the following are the guardians
of minor's property, in order of priority:
(a) Father;
(b) Executor appointed by father's will;
(c) Father's father;
(d) Executor appointed by paternal grandfather; and
(e) Executor of the last named executor.
Thus, the only persons who are entitled to appoint a guardian of the property
of a minor by will are his father and father's father. The mother has no power to
appoint by will a guardian of the property of her minor child. It must be
remembered that mother, brother, uncle, etc., are not legal guardians. 36 However,
there is nothing to prevent the father or father's father from appointing the
mother, brother or uncle, etc. as executrix or executor, and on such appointment
she or he will be as much competent as any other person to manage the property.
As Paras Diwan observes, the term 'natural guardian' is not used by the
Muslim Law-givers and jurists, they use the term wilaya, or 'guardianship' and
the term 'legal guardian' is of English usage, as also the term 'natural guardian',
both being used as synonyms.
The executor of the father's will, according to Hanafi Law, has preference
over the grandfather. In Shia Law, however, some hold that the father cannot
appoint an executor in the presence of a grandfather, who will have preference
over father's executor in superintending the property. According to another view,
the nomination of an executor by the father is valid to the extent of one-third of
the property and for the discharge of a1 1 rights or claims upon his estate. The
power of the executor can be further limited if the executor so desires.
According to Shafli Law, the grandfather has preferential rights over the
father's executor in matters of property management.
ALIENATION BY LEGAL GUARDIANS
Movable properties.—In Imambandi v. Mutsaddi37, the Privy Council held
that a legal guardian has power to sell or pledge the goods and chattels of the
minor for the minor's imperative necessities, such as food, clothing, or nursing.
Immovable properties.—Generally, Muslim Law does not allow legal
guardian to alienate immovable properties of a minor. Following exceptions to
this general rule, however, are recognised38:

36. MuIla, at p. 375.

37. (1918)45 IA 73.
38. MulIa, at pp. 376-77.
174 MUSLIM LAW [CHAP.

(1) Where the sale may fetch double the value of the property;
(2) Where minor has no other property, and sale is necessary for minor's
maintenance;
(3) Where there are no other means of paying debts of the deceased;
(4) Where there are no other means of paying legacies (under will);
(5) Where the income is less than the expenses of the property;
(6) Where the property is falling into decay;
(7) Where the property has been usurped (i.e. wrongfully seized or
encroached upon), and the guardian fears that there is no chance of fair
restitution.
The Guardians and Wards Act cares for the minor's property by expecting
such guardian to deal with the former's property with the same prudence as an
ordinary man would do in respect of his own property (Section 66). Such
guardian may be restricted by any conditions stipulated in the will and he cannot
transfer the property contrary to the conditions (Section 28), such alienations
being made voidable by Section 30. The powers and obligations of the
testamentary guardian are at par with those of the natural guardian. It may be
noted that the power of alienation (mostly referred to as sale by the traditional
authorities) in respect of immovable properties is more restricted than that for
movable property, for the former is regarded as already in a state of
conservation, white tne latter may invoive perishable items. It is oniy in exLrent
necessity that he can sell immovable property. Improper alienation may be
voided by the minor on attaining majority. The guardian may also lease the
property for his benefit till he attains majority. The guardian may also do trade or
business on the minor's behalf, but the latters liability is limited to his share.39
However, the Madras High Court has held that the guardian cannot impose any
liability on the minor though the minor would be entitled to the profits of the
business.40 There is also a conflict of judicial opinion with regard to specific
enforceability of a contract for a minor. In one case the Privy Council held that
the guardian could not bind the minor's estate by contract for purchase of
immovable property; however, in a much later case, the Hyderabad High Court,
following the general observations of the Privy Council in a case under Hindu
Law, held that a beneficial contract may be sought to be enforced by the minor
by a suit for its specific perfonnance. 4 ' In an interesting case the Gauhati High
Court has held that imparting higher secondary school education to the minor
was justified in the present social context and therefore included in the ward's

39. Jaffar v. Standard Bank Lid., 1928 FL 130.

40. R. Soudagar Saheb v. Soudagar Muhammad Saheb, (1931) 54 Mad 543.
41 flour Ahmmad V. Mir Nizam Ali Meer, AIR 1952 Hyd 120, relying on Kakulam
Subrahtnanyam v. Kurra Subba Rao, AIR 1948 PC 95. See also, Paras Diwan, The Law of
Parental Control. Guardianship and Custody of Minor Children (1973) at pp. 408-414.
vIIl GUARDIANSHIP (VALAYA) 175

maintenance expenses, the transfer of the minor's property for this purpose was
permissible.42
(ii) Guardians appointed by the Court.—In the absence of legal
guardians, the court is competent to appoint guardian for the protection and
preservation of minor's property.43 Section 17 of the Guardians and Wards Act,
1890 vests this power in the District Court, abrogating the customary power of
the Kazi. That Act is of general amplitude, irrespective of community, but the
court has to take into consideration the personal law of the minor, his or parent's
wishes, besides his age, sex and welfare, the proposed guardian's competence
and character. If the minor is mature enough to indicate his preference, the court
will take that also in consideration. There is no compulsion on the court to prefer
paternal side over the maternal side, but the proposed guardian must be willing
to accept the obligation. The prime guiding factor should be the welfare of the
minor.
In Meethiyan Sidhiqu v. Mohd. Kunju 44, the Supreme Court held clearly
that:
"Father is the natural guardian and in his absence other legal guardians
would be entitled to act. In their absence property guardian appointed by the
competent Court would be competent to alienate property of the minor with the
permission of the Court. When a sale is to be made on behalf of the minor the
necessary ingredients are that the sale must be for the benefit of the minor and
therefore the competent person entitled to alienate the minor's property would
be, subject to the above condition, either natural guardian or the property
guardian appointed by the Court. In this case after the demise of the father no
property guardian was appointed. Tl'e mother therefore is not guardian for the
alienation of the property of the minor. The sale made by the mother is therefore
void."
The Gauhati High Court had also held that when a mother married another
husband on the death of former husband, she was not entitled to the guardianship
of either the person or property of her minor daughter.45
ALIENATION BY CERTIFIED GUARDIANS
Movable properties.—A guardian of the property of a minor appointed by
the Court under the Guardians and Wards Act, 1890, is bound to deal with
movable properties as carefully as a man of ordinary prudence would deal with
his own property. That is, he may alienate only in cases of grave necessities.

42. Ahmade!!ah v. Mafizuddin Ahmad, AIR 1973 Gau 56.

43. Inia,nbandi v. Muisaddi, (1918)45 IA 73.
44. (1996)7 SCC 436: AIR 1996 SC 1003.
45. Rahima Kha(oon v. Saburjanessa, AIR 1996 Gau 33.
176 MUSLIM LAW (CHAP.

Immovable properties.—He cannot alienate immovable property of minor:

(a) without the permission of the Court; and
(b) without necessity or advantage of the minor.
\"ith the prior permission of the Court, he may:
mort gavc. sell, gift away or exchange the property,
ise any part of that property for a term exceeding 5 years, or for any
extending more than one year beyond the date on which the ward
cLase to be a minor.46
.'\ a'e1'1ti('n in contravention of the above provisions is voidable at the
n of minor or any person affected by such an alienation. He may not, for
exa'c, as' a l'usc of the minor for 6 years, or when the minor is of 16 years
.. le; c it for 4 years, without the court's permission. The court gives a
only when necessary in the interest of the minor or for the minor's
ad .ge (c'ction 3 1). The court may from time to time redefine the guardian's
pc ,, by tricting or extending them in view of the minor's interests.
kemo%ai of testamentary or court-appointed guardian.—Thc'court may,
on the application by any person interested or suo motu, remove a testamentary
or court-appointed guardian on any of the following grounds:
(i) Abuse of the trust reposed in him.
(ii) Persisknt failure to perform his duties.
(iii) Incapacity to execute the obligations of the trust.
(iv) Ill-treatment or neglect of the ward.
(v) Cortumacious disregard of the provisions of the Guardians and Wards
Act, 1890 or of the orders of the court.
(vi) Conviction of an offence which the court regards as a defect of
character as unfits him to continue as a guardian.
(vii) Entertaining adverse interest conflicting with faithful perfuznlailL.e of
his duties.
(viii) Shifting his residence away from the jurisdiction of the court.
(ix) Bankruptcy or insolvency of the guardian of property.
(x) Ceasing of the guardianship by application of the law governing the
minor.
(iii) 'Dc facto' guardians.—As we have seen above, the de jure guardians
are legal guardians and certified guardians. Persons not belonging to these two

46. It follows from the above that a certified guardian may lease, without the prior permission of
the Court, immovable property for a period up to 5 years, or for a term extending up to one
year beyond the date on which the ward will cease to be a minor.
VII] GUARDIANSHIP(VALAYA) 177

categories, but who place themselves in the position of a guardian by

intermeddling with the property of the minor, are called de facto guardians,47 for
example, mother, uncle.
ALIENATION BY 'DE FACTO' GUARDIANS
Movable properties.—A de facto guardian has the same power to sell and
pledge the goods and chattels of the minor in his charge as a legal guardian of his
property. But he cannot enter into any contract whereby the minor would be
saddled with any pecuniary liability.48
Immovable properties.—A de facto guardian has no right to alienate
immovable property of a minor. Such a transfer is void. Thus, a sale, niortgage,
or any other transfer by mother, who is a defacto guardian, is absolutely void, as
held in Imambandi v. Mutsaddi 49. Even if such a sale or transfer was made to
satisfy a mortgage or other debts of minor's father, it is not binding on the minor,
as held by the Privy Council in Mata Din v. Ahmad Au 50. The minor is entitled
to redeem the mortgaged property.
The question of benefit or necessity of the minor is altogether immaterial.
The point hardly needs any discussion in the light of Privy Council's decisions in
Jma,nbandi case51 , and Mata Din case52, and Supreme Court's verdict in Mohd.
Amin v. Vakil Ahmed53. However, if the property has been sold in execution of a
decree and is purchased at an auction by a bona fide purchaser, the sale cannot
be set aside.
On the question whether the transferee who is dispossessed by a minor, is
entitled to any compensation? One view held by Madras, Nagpur and Lahore
High Courts is that though the alienation was void ab initio, yet here applies the
maxim that one who seeks equity must come with clean hands. Thus, the minor
cannot recover the property unless he gives compensation equal to the benefit
derived by him. Under Section 41 of the Specific Relief Act also, the Court has
the discretion to make it a condition that the minor should refund the amount
which he has received. The other view held by the Patna High Court is that
equity does not favour a person who obtains property from a person not
competent to transfer it. The discretion given to the Courts by Section 41 does
not cover such transf'rees, as they themselves are not coming with "clean
hands".

47. See, Fyzee, at p. 203.

48.Mulla, at pp. 305-306.
49.(1918)45 IA 73.
50.(1912) 39 IA 49.
51.(1918)45 LA 73.
52.(1912) 39 IA 49.
53. 1952 SCR 1133.
178 MUSLIM LAW

The Kerala High Court has held that the mother of a minor being only a de
facto guardian has no legal authority to sell minor's immovable property.
Therefore, the transferee being fully aware that the property belonged to the
minor, and having made no enquiry whether the de facto guardian the mother
had legal authority to sell it was not a bona fide purchaser and hence could not
claim the value of the substantial improvements effected by him.54
Purchase of immovable property.—It was held by the Privy Council in
Mir Saiwarjan v. Fakhurddin 55, that the guardian of minor (whether he be legal,
certified or de facto) has no right to make an agreement for the purchase of
immovable property on behalf of the minor; such an agreement is void.56
In Amir Ahrnmad v. Meer Nizam. Au 57, it was held, however, that, if the
guardian is a dejure guardian (that is either legal or certified), he is competent to
enter into such an agreement of purchase and thereby bind the minor. But Fyzee
comments that in view of the Privy Council decision, this judgment appears to be
of doubtful authority.58
C. GUARDIANSHIP IN MARRIAGE

See Chapter III of this book.

54. Satema Beevi v. Ousiwn Pillai, 1996 AIHC 1897.

55. (1912)39 IA 1.
56. Fyzee, at p. 197.
57. AIR 1952 Hyd 120.
58. Fyzee, at p. 198.
 VIII

Maintenance
(Nafaqa)
1. Introduction
"The law of maintenance suffers in point of definiteness," says Tyabji, "as
the Muslim texts had no object in keeping legal rights distinct from obligations
of a moral nature. The powers of a Kazi are different from those of court of law
in India, that rules sufficient to guide the Muslim courts can at times hardly be
stated in a concrete form, without violence to some necessary but merely
implied, reservation or qualification. The whole of law cannot, however, be said
to be of merely imperfect obligation." The present chapter states what seems
legally enforceable.
The distinction between legal and moral duty to maintain has been well
brought out by the Bombay High Court in Mohd. Jusab v. Haji Adam2:
"It has been contended that the Muhammadan Law as to maintenance is
a law of imperfect obligation imposing a moral and not a legal obligation.
The distinction between the laws of perfect and imperfect obligation has
been discussed in detail by Abdur Rahim at page 62 of his Principles of
Mohammadan Jurisprudence, where he has described the laws as to
domestic relations to be laws of perfect and not imperfect obligation. Later
on at page 343, Abdur Rahim has referred to the maintenance of children
being a right against their father. So also Wilson in Chapter VI of his Anglo-
Muhammadan Law has treated the rights of maintenance as rights
enforceable under Anglo-Muhammadan Law, and in para 142 has asserted
the right of minor sons to maintenance from their father on the authority of
page 456 of Baillie's Digest so that there would appear to be no reason to
doubt that the rights of maintenance are enforceable under Anglo-
Muhammadan Law. That being so, the right to enforce them in civil courts
under Section 9 of CPC, is unaffected by the fact that there is a concurrent
provision for their enforcement in criminal courts under Section 488 of the

I. Tyabji (4th Edn.) at p. 254.

2. ILR (1911) 37 Bom 7 1.
180 MUSLIM LAW [CHAP.

Criminal Procedure Code as pointed out in Ghana Kanta Mohnnta v.

Gercli."3
It must be appreciated that whereas Muslim jurists left legal and moral
obligation to maintain overlapping each other, they remedied this "deficiency"
by giving extended powers to the Kazis. However, since the present day law
courts do not possess such vested powers, the difficulty remains. Thus, though it
may be conceded that Muslim Law of maintenance imposes a legal obligation,
"but the details in the texts about the quantum of maintenance, the rules for
determining when a person must be considered necessitous, and for fixing the
standard of means, the possession of which imposes the obligation to provide
maintenance, are hardly applicable to our times and conditions".4
After accepting the view that "to maintain" is a legal duty, let us examine in
which order obligations to maintain various class of persons, can be placed.
The first obligation arises on marriage. It is obligatory to maintain the wife
and children.
Then come those obligations that arise out of blood relationship.
And lastly, obligations arising when a man has "means" and another is
"indigent". The test appears to be: Are you prevented by Islamic Law from
accepting alms?' If you are, you are possessed of means. 5 Let us take the case
given in Farawa-i-Alamgiri: the possession of a surplus of 200 dirhams (Rs 60 to
80) over and above a man's necessities was deemed sufficient to prvet hip'
from begging and to include him in the class of 'persons of means'. To prevent
him from begging is alright, but to make him liable to maintain others on the
ground that he possesses rupees 60 to 80, seems a far cry. Considering the fact
that the time when Fatawa-i-Alamgiri was compiled, the value of 200 dirhams
could have been enough to make one liable to maintain. But applying this test
during these hard days, seems doubtful.
2. Definitions

HEDAYA: "All those things which are necessary to the

support of life, such as food, clothes and
lodging; many confine it solely to food."6
DURR-UL-MUKHTAR: "Nafaqa literally means that which a man
spends over his children; in law it means

3. ILR (1904)32 Cal 479.

4. Tyabji, at p. 254.
5. Fyzee, at p. 202.
6. Hedaya,atp. 140.
VIII] MAINTENANCE (NAFAQA) 181

feeding, clothing and lodging; in common use it

signifies food."7
FATAWA-I-ALAMGIRI: "Maintenance comprehends food, raiment and
lodging, though in common parlance it is limited
to the first."8
The main principles of maintenance may be recounted thus: (i) A person is
entitled to maintenance if he has no property, (ii) is related to the obligor in
prohibited degrees, or is the wife or child, and (iii) the obligor is in position to
support him. Though a person is under a greater liability to maintain his wife,
minor sons, unmarried daughters, mother, father, father's father and father's
mother, this obligation is also hedged by the factor of their economic condition.
Is the duty 'to maintain' absolute under traditional Muslim Law? The answer
is by and large no. The economic factor is dominant, may be because there is no
concept in it of a joint family with corporate property as a common fund for
common benefit. As pointed out by Paras Diwan, 'The Muslim Law of
Maintenance differs from other systems of law, since in most cases the
obligation of a Muslim arises only if the claimant has no means or property to
maintain himself or herself. It is true that the obligation to maintain children is a
personal obligation in the sense it is under Hindu Law, but unlike Hindu Law, it
is not absolute, there is no obligation if they have a source of income. The same
is true respecting aged parents and other relatives. Further, the obligation is
proportionate to the obligor's percentage of share in their property. It is only in
the case of a wife that the obligation is absolute in the sense that a husband is
required to maintain his wife irrespective of her financial position (she may be
rich) even if he is not in a position to support her'. 9 Aquil Ahmad also states that
'the Muslim Law is not so catholic in spirit as the legal system of the Hindus, so
there are very few provisions for the maintenance of the relatives'. 10
Kharch-e-pandan is something different from maintenance. As Fyzee puts it
'in addition to the legal obligation to maintain there may be stipulations in the
marriage contract which may render the husband liable to make a special
allowance to the wife. Such allowances are called kharch-e-pandan, guzara,
mewa khori, etc. I I It is a special allowance to which the wife may be entitled in
addition to maintenance allowance. Its source is an express agreement between
the parties to the marriage or their parents (if they are minors) at the time of
marriage. The agreement may stipulate that even if the parties lived separately at
any time after their marriage the wife would be paid kharch-e-pandan by the

7. Durr-ul-Mukhtar, at p.316.
8. Falawa-i-Ala,ngiri, Vol. tat p. 732, cited by Baillie at p. 437.
9. Paras Diwan, at p. 133.
10.Aquil Ahmad, at p. 174.
II. Fyzee, at p. 212
182 MUSLIM LAW [CHAP.

husband; such an agreement would be enforceable. 12 It can be realised by the

wife from her father-in-law also. In Khawaja Mohammad Khan v. Nawab
Hussain Begum' , the parents of the minors who were married had stipulated that
the son's father would pay the son's wife Rs 500 per month in perpetuity as
kharcha. Some years after the marriage the wife left her husband's house due to
differences. On her filing a suit for realisation of the amount, the Court upheld
her claim, even though she herself was not a party to the agreement.
3. Persons entitled to maintenance
A. Wife,
B. Descendants,
C. Ascendants, and
D. Other relations.
A. MAINTFNANCF w Ww
It is incumbent on a husband to maintain his wife, whether she be Muslim or
Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However, if the
wife is too young for matrimonial intercourse, she has no right to maintenance
from her husband, whether she is living in his house or with her parents. 14
This broad and wide obligation is restricted only in cases where sne is not
obedient and does not allow the husband free access at all lawful times. If the
husband has not paid the prompt part of dower' 5 or she refuses to live with her
husband because of his cruelty, the husband is bound to maintain her. It was held
by the Allahabad High Court in Badruddin v. Aisha Begum 16 that where husband
has married a second wife or keeps a mistress, the wife may refuse to live with
the husband and still claim maintenance from him.
The question of maintenance of wife may arise in the following two cases:
During the continuance of marriage. The husband is bound to maintain
his wife so long as she is faithful to him and obeys his reasonable orders. In an
interesting case 17 decided by Strachy and Badruddin Tyabji, JJ., it was held that
disobedient wife need not be maintained. Strachy, J., observed:
"...the husband's duty to maintain his wife is conditional on her
obedience, and he is not bound to maintain her if she disobeys him by

12. Mohd. Ali Akbar V. Fatima Begam, ILR (1929)11 Lah 85.
13. (1910) 37 IA 152.
14. Baillie, at p.437.
15. See, Amir Mohd. V. Bushra, AIR 1956 Raj 102.
16. 1957 AIIU 300.
17. A v. B, ILR(1896)2I Born 77.
 vitil MAINTENANCE(NAFAQA) 183

refusing to live with him or otherwise.' 8 (Here in this case the wife) only
paid occasional visits to his (husband's) house, staying for a night or so at a
time from the 6th March to 23rd June 1895, returning on each occasion to
her mother's house.. .1 am clearly of the opinion that in such circumstances a
Muhammadan husband is not bound to give his wife separate
maintenance..."
To the same effect were the observations of Tyabji, J.
"...it is impossible to hold that a Mussulman wife defying her husband,
refusing to live with him, and bringing scandalous charges against him, can
yet claim to be maintained separately at the expense of her husband."
However, it is interesting to point out that neither the books nor law courts
indicate the degree of disobedience that may deprive a wife from her entitlement
to maintenance. Where obedience ends and disobedience starts, may not be easy
in certain cases to decide.
It is immaterial that she has the means to maintain herself while the husband
has no means. The marriage must be regular; but a marriage which is irregular
solely because of the absence of witnesses is deemed regular for the purposes of
maintenance.
The wife is not entitled to sue her husband for past maintenance, unless the
claim is based on a specific agreement, as held in Abdool Futteh v.
Zabunnessa t9. The Court cited with approval a passage from Baillie's Digest (p.
443): "When a woman sues her husband for maintenance for a time antecedent to
any order of the judge or mutual agreement of the parties, the judge is not to
decree maintenance for the past". And the same thing has been laid down in
much the same term in Hedaya. Thus, the decree of the lower court, which
awarded "Rs 1400 for arrears of maintenance, from March 1878 until the end of
June 1880, at the rate of Rs 50 a month", was reversed.
The above case would have been decided otherwise in the presence of an
agreement that past maintenance would also be payable.
To summarise, the wife loses her right to maintenance in the following
circumstances:
(i) She is a minor, incapable of consummation.
(ii) Refuses free access to the husband at all reasonable times.
(iii) Is disobedient.
(iv) Never visited his house.
(v) Refuses to live with him in the conjugal home, without a reasonable
excuse.

18. Baillie, at p.438.

19. (1881)6 Cal 631.
184 MUSLIM LAW [CHAP.

(vi) Abandons conjugal home without any reasonable ground.

(vii) Deserts him.
(viii) Elopes with another person.
The exceptions to the ground of refusal to free access are his cruelty and
keeping a concubine by him. Similarly, there are exceptions to the ground of
want of consummation—her pre-puberty age, her illness, old age, his inability to
consummate. In these exceptions, she retains right to maintenance.
Maintenance by agreement.—The husband and wife or their guardians
may enter into an agreement whereby wife is entitled to recover maintenance
from her husband, on the happening of some specified event, such as ill-
treatment or disagreement, or husband's second marriage, etc. But an agreement
in the marriage contract that wife would not be entitled to maintenance is void.
Here the key consideration is that the agreement should not be opposed to public
policy and Muslim Law.
In an interesting case20 the Allatiabad High Court has amply clarified the
legality or otherwise of ante-nuptial agreements between husband and wife or
their guardians. The Court observed.
"Mehdi Hasan, the husband of the plaintiff, had married twice before,
and on each occasion he seems to have ill-treated his wife. The father of the
plaintiff was, tneretore, naturally anxious that something should be clone in
order to protect his daughter from similar ill-treatment and to secure for her
a maintenance allowance if his daughter and Mehdi Hasan could not live
happily together. The agreement in question provided that in case of
dissension or disunion the prospective husband and his father should be
bound to pay an allowance of Rs 15 per month, in addition to the dower
debt, to the lady for her life; and certain property was hypothecated to secure
the payment of that allowance ...the plaintiff was divorced by her husband
on the 14th August 1917, and a formal deed of divorce was executed and
regicPrer! come months later. But kg b,fuAc that date, differences had
apparently cropped up between them. The lady had gone back to the house
of her father in 1912 and a notice was sent by the husband to the father of
the plaintiff on the 30th October 1912, couched in insolent terms and
demanding that the plaintiff should be sent back to his house with her
jewellery ... On that evidence the courts below awarded to the plaintiff the
allowance mentioned in the agreement from the 30th October 1912.
The learned counsel for the appellants contends, on the authority of the
decision in Bai Fatma v. Alimahomed Aiyeb 2 ' that the agreement was
unenforceable; but that was a case in which a person, who had a wife living

20. Mo/id. Muin-ud-din v. Jamal Fatima, !LR (1921)43 All 650.

21. (1912) 37 Born 280.
 VIII] MAINTENANCE (NAFAQA) 185

and wanted to marry another, had entered into an agreement with his first
wife that he would pay her a certain allowance as maintenance if any
disagreement took place between her and him thereafter. The agreement in
that case was treated as opposed to public policy, because it encouraged a
separation between the husband and his wife. The agreement in the present
case was executed before marriage in order to restrain the prospective
husband from ill-treating his wife or behaving improperly towards her or
capriciously turning her out... In view of the circumstances established, we
do not consider that the agreement in the present case offended against the
provisions of Section 23 of the Indian Contract Act, 1872 or encouraged or
facilitated a separation between the plaintiff and her husband ... The appeal
therefore fails and is dismissed with costs."
In sharp contrast to the already cited case of Bai Fatma v. Alimahomed
Aiyeb2 ' is the case of Mansur v. Azizul.22 In this case, an agreement between a
Muslim and his first wife, made after his marriage with a second wife, providing
for a certain maintenance for her if she could not in future get on with the second
wife, was held not void on the ground of public policy.
In all such cases, the key consideration is that the agreement should not be
opposed to public policy or Muslim Law. Thus, an agreement for future
separation between husband and wife and providing maintenance to wife is bad
in law. Similar is the case of an agreement that the wife would not be entitled to
maintenance.
Nevertheless, agreements to provide betel allowance (kharch-e-pandan) or
allowance for dry fruits (mewa khori) are valid and binding. These are not
opposed to public policy, and thus such agreements even entered into by the
guardians of minor parties to a marriage, are valid and binding on the husband.
Maintenance by agreement is a pecuniary aspect of the wider point of
conditions of marriage. In that sense, conditions which are not against (i) any
express provision of law, or (ii) public policy, or (iii) principles of Muslim Law,
are enforceable. Thus following types of conditions are valid:
(i) If the husband treats the wife with cruelty, she will have a right to
separate residence and maintenance to meet it.
(ii) If he brings subsequent wife and the previous wife is unable to adjust
with her, she will get maintenance allowance to live separately, or
even at her father's house. 23 In Mydeen Beevi Animal v. TN. Mydeen
Rowther24, the husband at the time of his second marriage settled by
agreement certain properties on his first wife. Later he divorced her
and brought a suit for recovery of the settled property. The court

22. AIR 1928 Oudh 303: ILR (1923) 3 Luck 603.

23. Sakina v. Shamshad Khan, (1936) Pesh 195.
24. 1951 Mad 992.
186 MUSLIM LAW [CHAP.

rejected his suit holding that she was entitled to enjoy the income of
the property, in spite of the divorce.
(iii) If he brings his other witè to live in the matrimonial home, she will
reside at her father's home and he will give her maintenance. 25 This
position has been reinforced in a recent decision by the Karnataka
High Court in Ashabi v. Bashosab Takke.26 The husband contracted
second marriage. Now, the first wife refused to live with him and
claimed maintenance. There was some dispute as to who deserted
whom. The High Court held that this question paled into
insignificance in the light of this development. The fact that the wife
could not get maintenance earlier under Section 125 CrPC also cannot
have any hearing in a suit for maintenance filed subsequent to second
marriage. This is so, even if the personal law permitted him to contract
more than one marriage. She cannot he denied maintenance on the
ground of not joining her husband. She is in law entitled to seek
maintenance for separate living.
(iv) In case of disagreement with each other, he will give her maintenance
for separate residence.
(v) He will pay maintenance even after divorce.
Ameer Ali says a stipulation that the wife will be disentitled to maintenance
in all circumstances is void. 27 But in a divorce b y Khula or Muba'a, such
stipulation can be entered. Section 23 of the Indian Contract Act also voids an
agreement that in case of separation in future at the option of the wife the
husband will give her maintenance allowance. 28 But in view of the recent
decision of the Bombay High Court, this position needs to be restated now as
limited to 'stipulation' part. According to the Nagpur Bench of the Bombay High
Court the fact of divorce by Khula does not disentitle the divorced wife from her
right of maintenance under the Muslim Women ... Act of 1986. In Parzana
Parveen v. Shakil Khan29 the applicant was married to the non-applicant in 1998;
fb p oiundc of ill-trtnient , clen,in1 for dowry and puch nut frnrn
matrimonial home, she proposed to her husband divorce by Khula which was
executed in writing by Khulanama in 1999. The lower courts granted her
maintenance during iddat period. This application was for maintenance beyond
iddat period under Section 125; as such the High Court rejected it; but with
reference to the allowance received during iddat the Court observed that 'the
applicant is a divorced Muslim woman and after divorce she is entitled to
maintenance under the provisions of the Muslim Women ... Act, 1986, which

25. Mansur V. Azizul, AIR 1928 Oudh 303: ILR (1928)3 Luck 603.

26. (2003)2 Kant Li 429.

27. Arneer All, Vol. II alp. 319, cited in K.P. Sharma, Muslim Vidhi at p. 255.
28. Bai Fatma v. Alimahomed Aiyeb, (1912) 37 Born 280.
29. (2006) 1 AIR Born R 140.
 MAINTENANCE (NAFAQA) 187
VIII]

was rightly granted by the lower courts during iddat period, and she could not
claim it further under Section 125 CrPC.'
Maintenance under the Criminal Procedure Code.—The old Section 488
of the CrPC had conferred an independent right to the wife to claim maintenance
allowance irrespective of the provisions of the traditional personal law. The
Magistrate could compel the husband to pay an allowance not exceeding Rs 500
Sarwari v. Shaft Mohd. 3 ' the
per month. In Badruddin V. Aisha Begum 30 and
Allahabad High Court had held that the Shariat Act of 1937 did not affect the
provisions of the CrPC. Since the statutory right continued only during the
continuance of the marriage, the easy way out of the liability for the husband
In
was to pronounce talak. Justice Yahya Ali of the Madras High Court had held
re, Mohd. Rahimulla, that the foundation on which the wife's right rested was
the relationship of husband and wife. When that relationship was lawfully
dissolved and there was no marital tie either in reason or on any canon of justice
or even on the language of Sections 488 and 489, how the husband could be
directed to continue to maintain his divorced wife.. •32 Mulla was also of the same
view: Where an order was made for the maintenance of a wife under Section 488
and she was afterwards divorced, the order ceased to operate on the expiration of
the period of iddat.33 But if the divorce was not communicated to her even up to
iddat till
the expiry of iddat, she could get maintenance even after the expiry of
the divorce was communicated to her. The Shia and Shafli sects deprived her of
maintenance during iddat also in cases where the marriage was dissolved in
irrevocable form; one concession was her pregnancy at the time of the
pronouncement. No maintenance was sanctioned by the old law to an apostate or
a criminal wife. In case of dissolution of the marriage due to the death of the
husband maintenance was ruled out even during iddat. And after iddat neither
the texts nor the CrPC recognised any right to maintenance. Paras Diwan had
written in the 3rd edition of his book that Muslim Law did not recognise any
obligation on the part of a man to maintain a wife whom he had divorced.34
Thus, both the old texts and the old Code neglected the wife left to
destitution by her husband. To mitigate this evil the CrPC, 1973 remoulded the
old Section 488 and in the new Section 125(1) Explanation (b) defined the term
'wife' as to include the woman who was divorced by or who had obtained
divorce from her husband and had not remarried. So now a battered wife's
maintenance suit cannot be frustrated by the husband by divorcing her. It is a
prophylactic provision intended to prevent vagrancy and destitution. Section 125

30. 1957 All U 300.

31. (1957)1 All 255.
32. AIR 1947 Mad 461.
33. (18th Edn.) at p. 301
34. Muslim Law (3rd Edn., 1985) at p. 335.
188 MUSLIM LAW [CHAP.

applies to all communities, it has thus a characteristic of a common civil code. It

also extends its protective umbrella over the legitimate or illegitimate minor
children, whether married or unmarried, who are unable to maintain themselves,
or even major children who, due to physical or mental abnormality or injury are
unable to maintain themselves, and parents also, who are unable to maintain
themselves. The relevant conditions are that the person responsible
(husband/father/son) should have the means to maintain, yet, he neglects or
refuses. The recipient wife should not refuse to live with the husband if he so
requires, should not be living separately by mutual agreement, or should not be
living in adultery. However, she can live separate or refuse to join him if he has
brought another wife to live with him, or keeps a concubine or treats her with
cruelty or is impotent. in these conditions the Magistrate can pass an order for
maintenance granting a sum up to Rs 500 per month.
The objective of Section 125 is to ameliorate the economic condition of
neglected wives and discarded divorcees. One achievement towards this welfare
goal was to extend the protection to the divorcee; and second major step was
taken by the judiciary by taking mahr to the doorsteps of maintenance. Mahr has
assumed the negative role as a representative of the 'customary or personal law
sum' mentioned in Section 127(3)(b). Just as the strategic divorce deprived the
wife of maintenance under the old Section 488, the provision under the new
Section 127(3)(b) was also ingeniously used by the inconsiderate husband as an
escape lane. Section 127(3)(b) ordains that the Magistrate shall cancel his order
passed under Section 125 on proof that the divorcee has received from her
husband the whole of the sum which under customary or personal law was
payable on such divorce, and 'the customary or personal law sum under Section
127(3)(b) envisaged the mahr', held the Supreme Court in Bai Tahira v. Au
Hussain35 . In this case the husband had pressed that payment of Rs 5000 by him
as mahr money (in an earlier compromise proceedings) satisfied the
requirements of Section 127(3)(b) and absolved him of further obligation to pay
maintenance to his divorced wife, the plaintiff. Justice Krishna Iyer held:
"Nor can Section 121 rescue the respondent from his obligation.
Payment of mahr money, as a customary discharge, is within the cognisance
of that provision. But what was the amount of mahr? ... The point must be
clearly understood that the scheme of the complex of provisions in Chapter
IX has a social purpose. Ill-used wives and desperate divorcees shall not be
driven to material and moral dereliction to seek sanctuary in the streets. This
traumatic horror animates the amplitude of Section 127, where the husband,
by customary payment at the time of divorce, has adequately provided for

35. (1979)2 SCC 316: (1979) SCC (Cr1) 473: AIR 1979 SC 362.
VIII] MAINTENANCE (NAFAQA) 189

the divorcee, a subsequent series of recurrent doles is contraindicated and

the husband liberated.1136
Since the amount of Rs 5000 could not provide sufficient interest to keep the
woman's body and soul together, the husband's defence was rejected and the
Court restored the Magistrate's order of Rs 400 per month for the wife and Rs
300 per month for her child as the maintenance allowance imposed on him.
Bai Tahira incorporates mahr in the 'customary sum' of Section 127, but at
the same time qualifies the recognition teleologically. Judicial alertness is
sharply visible, and more prominently in Fuziunbi v. K Khader Va1i37. K
discarded his wife F and son; she prayed for maintenance under Section 125, the
Magistrate granted her and the child an allowance of Rs 250 and 150 per month,
respectively; K resorted to talak and tendered Rs 500 as mahr and Rs 750 as
maintenance for iddat, the Magistrate vacated the earlier urder, F lost her
revision petition in the High Court of Andhra Pradesh and landed up in the
Supreme Court. The Supreme Court restored the allowance earlier awarded by
the Magistrate, laying down—
"The payment of an amount, customary or other, contemplated by the
measure (Section 127) must inset the intent of preventing destitution and
providing a sum which is more of less the present worth of the monthly
maintenance allowance the divorcee may need until death or remarriage...
Section 127(3)(b) takes care to avoid double payment... The Code by
enacting Sections 125 to 127 charges the court with humane obligation of
enforcing maintenance or its just equivalent to ill-used wives and castaway
ex-wives... Neither personal law nor other salvation ary plea will hold against
the policy of public law pervading Section 127(3)(b)..."38
The Court held in clear words that the payment of liquidated sum at the time of
divorce can release the husband from the continuing liability only if the sum paid
is realistically sufficient to maintain the ex-wife.36
Thus, by mating inahr with maintenance the Court produced the result
conceived by Section 125. Several other decisions of the High Courts had also
contributed to the destitute-welfare oriented outlook. 39 Then the watershed line
was authoritatively drawn by the Supreme Court in Shah Bano.40 The ruling that
'payment of mahr money as a customary discharge is within the cognisance of

36. lbid,atp.365,para II.

37. (1980)4 SCC 125: AIR 1980 SC 1730.
38. (1980)4 SCC 125: AIR 1980 SC 1730, 1736, paras 19(2) to (4).
39. See, Kunhi Moyin v. Paihumma, 1976 KLT 87; Muhammad v. Sainabi, 1976 KLT 711;
Hajuben v. Ibrahim Gandabhai, (1977) 18 Gui LR 133; Cf Rukhsana Parvin v. 5K. Mo/rd.
Husein (1977) Cii U 1041 (Born); Kamalakshi v. Sankaran, AIR 19.79 Ker 116. See also
Paras Diwan, Dowry and Protection to Married Women (Deep and Deep 1987) at pp 234-237.
40. MoM. Ahmed Khan v. Shah Bano Begum, (1985)2 SCC 556: 1985 SCC (Cii) 245: AIR 1985
SC 945.
190 MUSLIM LAW [CHAP.

that provision'—was overruled: "We have taken the view that mahr, not being
payable on divorce does not fall within the meaning of that provision." 41 Why
did the Court expel mahr from the precincts of Section 127(3)(b)? One reason is
that, logically,
"...If mahr is an amount which the wife is entitled to receive from the
husband in consideration of the marriage, that is the very opposite of the
amount being payable in consideration of divorce. Divorce dissolves
marriage... .The alternative premise that mahr is an obligation imposed upon
the husband as a mark of respect for the wife is wholly detrimental to the
stance that it is an amount payable to the wife on divorce.. .But he does not
divorce her as a mark of respect. Therefore, a sum payable to the wife out of
respect cannot be a sum payable on divorce."42
There was also no theological evidence to establish that mahr was in
consideration of divorce. Section 127 also does not mention that word.
The second reason that might have weighed on the mind of the Court seems
to be that had mahr remained incorporated in that provision by judicial
inference, its auantum (unspecified) had the potential to again thwart the sociai
objective enshrined in Section 125; for, at some point, some court could hold a
particular sum as sufficient to release the husband of his continuing liability to
maintain, while another might differ. This uncertainty could be a gold mine for
legal profession, but no hope for a destitute.
Another q!!estion to which the Supreme Court addressed itself wa' '
Muslim Personal Law (MPL) restrict the payment of maintenance to iddat only?
In other words, did MPL prohibit payment beyond iddat period? Citing extracts
from the works of Mulla, Tyabji and Paras Diwan to the effect that iddat was the
limit-line for maintenance, Chandrachud, C.J. (for the Court) turned towards the
claimed absoluteness of the limit-line 43 and held:
"These statements in the textbooks are inadequate to establish the
proposition that the Muslim husband is not under an obligation to provide
for the maintenance of his divorced wife, who is unable to maintain
herself... [T]hese provisions of MPL do not countenance cases in which the
wife is unable to maintain herself after the divorce... We are of the opinion
that the application of those statements of law must be restricted to that class
of cases in which there is no possibility of vagrancy or destitution arising out
of the indigence of the divorced wife ... [Section 1251 deals with cases in
which a person who is possessed of sufficient means neglects or refuses to
maintain, amongst others, his wife who is unable to maintain herself. Since

41. Ibid,atp.572,para3O.
42. Ibid, at pp. 569-70, pars 24.
43. See, Paras Diwan—'On the expiration of the period of iddat, the wife is not entitled to any
maintenance under any circumstances'. Cited Mo/sd. Ahmed Khan v. Shah Bano Begum,
(1985)2 SCC 556: 1985 SCC (Cii) 245: AIR 1985 SC 945.
Viii] MAINTENANCE (NAFAQA) 191

MPL, which limits the husband's liability to provide for the maintenance of
the divorced wife to the period of iddat, does not contemplate or
countenance the situation envisaged by Section 125, it would be wrong to
hold that the Muslim husband, according to his personal law is not under an
obligation to provide maintenance, beyond the period of iddat, to his
divorced wife who is unable to maintain herself—The true position is that, if
the divorced wife is able to maintain herself, the husband's liability to
provide maintenance for her ceases with the expiration of the period of
iddat. If she is unable to maintain herself, she is entitled to take recourse to
Section 125 of the Code."44
Is the secular law requiring payment beyrnd iddat in contravention to MPL,
or, does the MPL bless such secular law?45
"The outcome of this discussion is that there is no conflict between the
provisions of Section 125 and those of the MPL on the question of the
Muslim husband's obligation to provide maintenance for a divorced wife
who is unable to maintain herself."
By exploring this aspect the Court was contributing to the evolution of MPL:46
"There can be no greater authority on this question than the Holy
Koran ... Verses (Aiyats) 241 and 242 of the Koran show that there is an
obligation on Muslim husbands to provide for their divorced wives... For
divorced women maintenance (should be provided) on a reasonable (scale).
This is a duty on the righteous. Thus doth God make clear His signs to you:
in order that you may understand...

And for the divorced woman (also) a provision (should be made) with
fairness (in addition to her dower); (This is) a duty (incumbent) on the
reverent.

There shall be for divorced women provision honourable—an obligation

on the godfearing.

These Aiyats leave no doubt that the Koran imposes an obligation on the
Muslim husband to make provision for or to provide maintenance to the
divorced wife. The contrary argument does less than justice to the teachings
of Koran."47

44. Ibid, at pp. 565-66.

45. Ibid, at p. 566, para 14.
46.Ibid, at pp. 566-68. paras 15-22.
47. Mo/uI. Ahmed Khan V. Shah Bano Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 245: AIR 1985
SC 945.
 192 MUSLIM LAW [CHAP.

The decision in Shah Bano raised a considerable dust amongst the Muslim
fundamentalists. If the Court erred, it was only in showing eagerness to widen
the scope of the Muslim scriptural concern for the divorced wife. 48 But beyond
that, there was no violation of Muslim tenets, no imposition of any obligation
extraneous to Muslim fold, no general duty towards non-Muslim persons
imposed. The beneficiary was to be a Muslim person only. However,
extraordinary pressure was brought on the Government to change the effect of
the decision by the agency of legislation. As a result the Muslim Women
(Protectin of Rights on Divorce) Act was passed in 1986.
Muslim Women (Protection of Rights on Divorce) Act, 1986

The above genesis and the sequence of events often create an impression
that the Act undoes the gains of the divoced Muslim woman. A close analysis
will show that the Act does nothing like thiowing out of window the Shah I3ano
verdict or the legislative progress enshrined in the provisions of the CrPC. The
Act accords relief to the divorced wife; it does not say that mahr is a
consideration for divorce, or is the sum referred to in Section I27(3)(b) CrPC: it
does not lay down that no maintenance is to be paid to the divorcee after iddat or
that she is to be abandoned for the life after iddat; it does not make the secular
law (like CrPC) inapplicable to Muslims, it does not overrule the Shah Bano
ccse. The Supreme Court said protection from vagrancy was her right, thus it
became an integral part of her personal law rights. The Preamble to the Act says
that it is 'an Act to protect the tights of Muslim women who have been divorced'
and further to provide for matters connected and incidental thereto'. The
legislative history of the Act supports this view. The Objects and Reasons Clause
of the Act says: "The Supreme Court in Shah Bano held that if she is unable to
maintain herself after the period of iddat, she is entitled to have recourse to

Bricflv the facts c' fb App,1iatt was mamed to respondent B in

1932. After 43 years of married life in 1975 A drove B out of his house. In 1978 B filed a
petition under S. 125 in the court of the Magistrate, Indore. Thereupon A divorced her. He
contested the petition on the grounds that he had paid her Rs 200 per month during idda:, and
deposited Rs 3000 in the court by way of mahr. The Magistrate awarded a princely sum of Rs
25 per month by way of maintenance. B filed a revision application before the M.P. High
Court. She claimed that A's annual income was at least Rs 60,000 per annum. The High Court
enhanced the maintenance allowance to Rs 179.20 per month. A appealed to the Supreme
Court under Article 136 of the Constitution. The Supreme Court dismissed the appeal. B was
allowed to make an application under S. 127(1) for increasihg the maintenance amount.
48. Paras Diwan still holds the view that (a) a Muslim husband has no obligation to pay
maintenance beyond iddat, and (b) deferred dower has been considered to be a sum payable on
divorce. He poses a question: Suppose a husband pays Rs 50,000 or 80,000 right on divorce:
would the Magistrate not take this amount into consideration (under S. 127) while determining
the maintenance rate? In such a situation, in Diwan's opinion, no maintenance may be granted
(in view of the income from the sum). He prefers Krishna lyer, i's approach: 'no illusory
amount would annihilate the maintenance rate; no frustration of the statutory purpose would be
permitted'. Paras Diwan, Dowry and Protection to Married Women (Deep and Deep 1987) at
pp. 241-42.
 VIII] MAINTENANCE (NAFAQA) 193

Section 125 CrPC. This decision has led to some controversy as regards the
obligation of the Muslim husband to pay maintenance to the divorced wife.
Opportunity has therefore, been taken to specify the rights which a divorced
Muslim woman is entitled to at the time of divorce and to protect her interests."
The Act therefore, requires an interpretation which fulfils its object rather than
frustrates it. In a progressive trend setting judgment, the Kerala High Court has
recently held that Section 3 of the Act does not require divorced wife must be
unable to maintain herself before she can claim amounts under Section 3 of the
Act. 'The legislature conscious of the rights of the wives professing other
religions under Section 125 CrPC when enacted Section 3 did not choose to
weave into it the requirement that the divorced wife must be unable to maintain
herself. It is not necessary to advert to certain precedents by other High Courts in
as much as from the language of Section 3 the position is well laid down and
need not be doubted. Even a millionaire wife will be entitled to claim amounts
under Section 3 from her billionaire husband and the fact that she can maintain
herself is no bar against any claim under Section 349'
Section 3 of the Act entitles a divorced woman to (i) reasonable and fair
provision, and (ii) maintenance to her, (iii) provision and maintenance to her
children for two years, (iv) mahr amount and (v) all properties given to her
before, at the time of and after her marriage. 50 Out of these, the 'provision' and
the 'maintenance' are to be 'made and paid to her in the iddat period by her
former husband'. Does it mean that the maintenance is to be paid to her only
during the iddat period? The original controversy resurrected in Arab A. Abdulla
v. Arab Bail Mohrnuna Saiyadbhai. 5 ' Briefly, the facts of the case were as
follows: The divorced wife (the respondent) had filed criminal application under
Section 125 CrPC claiming maintenance allowance, and the Magistrate had
granted Rs 250 per month as the allowance payable to her by her former
husband. This order was confirmed by the Additional Sessions Judge. Against
that order the petitioners filed this criminal application in the High Court. Held,
by the Gujarat High Court that the order passed by the Magistrate under Section
125 was not nullified by the Muslim Women (Protection of Rights on Divorce)
Act. The petition by tl husband was dismissed, leaving the order of the
Magistrate unaffected.
The petitioner's case was that in terms of Section 3(1)(a) of the Act, the
maintenance allowance was payable within the iddat period, which implied that

49. T.K. Abdulla v. Subaida, (2007) 1 DMC 464 (Ker): (2006)3 KLT 699.
50. Jurisdiction of civil court is not ousted by provisions of Section 3 of the Act. Both remedies are
available to divorced Muslim woman - she can either avail remedy under Section 3 of the
Act of 1986 or file civil Suit for recovery of dowry articles. (S. 9 of the Civil Procedure Code
vests civil courts with jurisdiction to try all civil Suits except those expressly barred.) -
Amirshah v. Salimabi, (2006)4 Mah U 856.
51. AIR 1988 Gui 141.
194 MUSLIM LAW [CHAP.

it was to be paid only during the iddat and not beyond. Rejecting this contention
the court pointed out that the Act nowhere specified the period for which she was
entitled to get maintenance, nor did the Act provide that it was for iddat only.
The dictionary meaning of the word 'within' is 'on or before', 'not later than',
'not beyond'; therefore the word 'within' meant that he was bound to make and
pay the provision and maintenance before the expiration of iddat. In contrast the
sub-clause (b) of Clause (1) of Section 3 prescribes the period of 2 years for the
allowance payable to her 'for the maintenance of her children'. Again, under
Section 4(1) the Magistrate may specify the periods for which maintenance is to
be paid. If the Act wanted to limit her right, it could have expressly done so.
Further, under Clauses (2) and (3) of Section 3, when the husband has failed in
his duty, the divorcee may apply to the Magistrate, and he may fix the amount
'having regard to her needs'. Now this phrase cannot smoothly be interpreted to
mean 'her past needs during iddat period'. Since such application would come
up before the Magistrate only after iddat, the language employed would have
been different, requiring the Magistrate to approve arrears of past expenses, had
Parlia;n i t cnded to tag maintenance with iddat
Another weighty argument of the petitioner was based on Section 4 which
required her relatives, and failing them the Wakf Board to pay her maintenance
if she was unable to maintain herself after iddat, and for such period as the
Magistrate may order. This arrangement, it was argued, implied that the
husband's liability wa3 limited to the iddat period only. Rejecting thi:
contention, the Court interpreted this provision to make additional arrangement
for her when the maintenance allowance and provision settled by the previous
husband fell short of her needs on account of some unforeseen circumstances.
Section 5 of the Act gives the parties an option to declare jointly, if
agreeable to both, to be governed by either the CrPC or the new Act. Did this
provision mean that the Act, unlike the Code, did not contemplate the husband's
obligation to pay mainten a nce allowance to cxtid beyond iddat? The Court
held 'No', for, if it were so, the husband would never agree to abide by the Code
and thus Section 5 would be rendered redundant or otiose. Such interpretation,
said the Court, could not be adopted.
Did the Act repeal or supersede the Code? Section 7 of the Act provides that
every application by the wife under Section 125 or 127 CrPC pending before the
Magistrate on the commencement of the Act shall be disposed of in accordance
with the provisions of this Act. Did this rule make the orders passed by the
Magistrate under Section 125 non est? The Court held that the Act nowhere
nullifies the orders passed under Section 125. Once that order is passed, her
rights are crystallised and she gets vested right to recover maintenance allowance
from her former husband. That vested right has not been taken away by
Parliament.
Viii] MAINTENANCE (NAFAQA) 195

But the Kerala High Court has expressed a different view in Abdul Gafoor
Kunju v. Pathumma Beevi. 52 According to that High Court, 'Sections 125 to 128
of the Code of Criminal Procedure are not repealed but excluded or restricted. It
was an appeal against the order of the Court of Session enhancing the
maintenance awarded to the divorcee by the Magistrate after the Act had come
into force. The question for consideration was whether she was entitled to invoke
Section 127 after the Act came into force. The Sessions Judge was of the opinion
that she could, as the Act contained no repeal, express or implied, of the Code.
The Single Judge of the High Court held that the reason why Sections 125 to 128
were not repealed was that those sections applied to other than Muslim divorces
also—wives of other religions, parents, children, etc. The well-known rule of
interpretation is that a special law excludes a general law. When a special law
namely the Act was passed to govern maintenance to Muslim wives, application
of the general law under the Code was excluded or restricted. 'It is argued that
the right' under the Code is independent of the personal law and is unaffected. If
one considers the context in which the Act came into existence or its object, it is
not possible to think that it was intended to provide additional rights. The
decision in Shah Bano was considered as going against Islamic Personal Law.
Otherwise put, the provisions of Sections 125 to 128 were considered to be in
conflict with Islamic Personal Law and hence to "specify" the rights of a
divorced Muslim wife and "to provide for matters" connected with divorce the
law was enacted. It is difficult to accept the view that the Act following Shah
Bano was intended to widen rights of divorced Muslim wives. The Objects and
Reasons clause and the Preamble show that the Act was to specify her rights and
not to add to the rights given by Sections 125 to 128. The Act enacted in post-
Shah Bano era was intended to restrict the effect of the Code'
The view of the Gujarat High Court was not approved by the High Courts of
Andhra Pradesh, Gauhati and Calcutta. In Usman Khan Bahamani v.
Fathimunnisa Begum54, the A.P. High Court dissented from the Gujarat High
Court decision. The majority (2: 1) in the A.P. High Court was of the view that
'the use of the word "within" in Section 3(1)(a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act)
does not permit an interpretation to be put to the section that the liability of the
husband to make a reasonable and fair provision and maintenance to his divorced
wife extends beyond the period of iddat. A contrary view would result in
complete negation of the principles envisaged in that section and would defeat
the very purpose of the Act. Section 4 clearly shows that the husband is not
liable to pay maintenance beyond the period of iddaF Section 3 starts with a non-
obstante clause. Section 4 casts the burden on the relatives and the Wakf Board.

52. (1989) I KLT 337.

53. Ibid, at pp. 339-40.
54. 1990 Cri LI 1364 (AP).
 196 MUSLIM LAW [CHAP.

Section 5 provides for an option between the Act and the Code (CrPC). It is too
much to say that inspite of the condition in Section 5, the claim of the divorced
Muslim wife would still be governed by Section 125 of the Code. Section 7 of
the Act makes it still clear, as all pending applications under Section 125 are to
be disposed of in accordance with the provisions of the Act. Even in Shah Bano
case, it is recognised that a Muslim wife is entitled to maintenance under Muslim
Law only during the period of iddat, and maintenance beyond iddat is envisaged
only under Section 125 of the Code. A combined and harmonious reading of the
provisions of Sections 3 to 7 of the Act clearly demonstrates that the general
object of the legislation is to bring the law of maintenance payable to the wife in
consonance with the principles of Muslim Law.
Further, the Court held that the words 'provision' and 'maintenance' in
Section 3(I)(a) convey the same meaning, and not two different things. Even in
Shah Bano the Supreme Court had recognised this. A different meaning would
amount to negation of the very object of the Act.'
On this point the dissenting Judge onined that the words 'within the iddat
period' in Section 3(l)(a) refer to maintenance. Interpreting the distinct liability
of making a reasonable and fair provision as having been confined to the period
of iddar would render the very section otiose and also defeat the specific purpose
of casting that liability on the former husband by Section 3(l)(a) in
contradistinction from Section 4 whereunder the liability of either the relatives or
the Wakf Board is only to pay maintenance and there is absolutely no liability to
make any provision. The period of this liability to make provision on the
husband may surely be much more beyond the period of iddat and for future of
the divorced wife. The amount would depend on facts and circumstances of each
case and there cannot be a general ruling on these aspects.
The majority also dissented from the decision of the Kerala High Court in
Ali v. Sufaira55 where in it wac held that under Section 3(1)(a) a divorced
woman was not only entitled to maintenance for the period of iddat but also to a
reasonable and fair provision for her future.
The Calcutta High Court, also dissenting from the Gujarat High Court
decision held in Abdul Rashid v. Sultana Begum 56 that the liability of the former
husband to provide maintenance was limited for the period of iddat and
therefore, if she was unable to maintain herself she had to make an application
under Section 4 of the Act. 'In view of the scheme of the Act, the provision
could not be fairly interpreted to mean that it was open to the divorced wife to
claim maintenance under Section 4 of the Act in addition to what she might have
received under Section 3 of the Act.'

55. (1988)3 Crimes 147.

56. 1992 CrIU76.
 Viii MAINTENANCE (NAFAQA) 197
Yet in Shakila Parveen v. Holder Ali,57 the High Court took a different,
liberal view. The petitioner (wife) had filed an application under Section 125
CrPC claiming maintenance from her husband. The Judicial Magistrate, Sealdah
granted her maintenance (of Rs 800 per month) for the iddat period (two
months) over and above the Den Mehr amount of Rs 2,500. The petitioner
aggrieved by that order had filed the revision petition. Meanwhile the Act of
1986 was passed. The Calcutta High Court extensively quoted the judgment of
the Gujarat High Court and approved both the principles established therein,
namely, the word "within" in Section 3 does not mean "for or during", it means
"on or before", and the Parliament has nowhere provided that the reasonable and
fair provision and maintenance are limited only for the iddat period.
Accordingly, the expression "during iddat period" should be extended till a
Muhammadan divorced female enters remarriage, and the Magistrate's order was
modified to the effect that the petitioner was entitled to get the maintenance
allowance from the date of application till she remarries.
This (relatively less known) verdict was soon reinforced in July 2000 by the
decision of the Bombay High Court, rekindling the light of hope for the indigent
deserted Muslim woman. Advocating the path of judicial activism for the
establishment of social justice the Mumbai High Court observed that "while
interpreting a beneficial legislation we should lean in favour of the beneficiaries
to help them get the maximum which the legislature purports to give them. We
would be wary of overriding the personal law of Muslims, but we shall within its
framework reconcile it with the provisions of the Code. Our Constitution strives
to preserve and enhance the dignity of women, and laws should be interpreted
with that end in view."
The Single Bench of the Bombay High Court had considered it just and
equitable that the husband should pay the divorced wife maintenance allowance
even after the iddat period, but thought it necessary in the interest of justice that
this matter should be referred to the Full Bench for its decision; therefore this
revision application of Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh58
came up before the Full Bench comprising Shah, J., Sint Ranjana Desai, J. and
Patil, J. The four prime questions for consideration before the Court, along with
their answers, were as follows:
(i) "Whether the Muslim husband's liability under Section 3(a) of the
MW Act to make a reasonable and fair provision and pay maintenance is
restricted to only the iddat period or whether it extends beyond the iddat
period"?
In answer, the Court said that in its opinion, a reasonb1e and fair provision
has got to be distinct from maintenance. The word "provision" has a future

57. (2000) 1 CLJ 603.

58. (2000)3 Mh U 555.
 MUSLIM LAW [CHAP.
198
content. It is an amount kept aside to meet a known liability. In the context of
Section 3(1)(a) it would mean an amount as would be necessary for the divorced
Muslim woman to look after herself after the iddat period. This may involve
amount for her residence, food, clothing, medicine and like expenses. It is
precisely for this reason that like Section 125 of the Code no maximum amount
is fixed here, but the quantum has gui iu be substantial having regard to the
future needs of the woman. On the first question (supra) therefore, the Court
concluded:
"the husband's liability to pay maintenance to a wife ceases the moment
the iddat period gets over. He has to pay to her within the iddat period for
iddat period. But he has to make reasonable and fair provision for her within
iddat period, which should take care of her for the rest of her life or till she
incurs any disability under the MW Act. While deciding this amount, regard
will be had to the needs of the divorced woman, the standard of life enjoyed
by her during her marriage and the means of her former husband. If the
husband is unable to arrange for such a lumo sum payment he can ask for
instalments and the Court shall consider granting him instalments. Further
till the husband makes the provision, the magistrate may direct monthly
payment to her even beyond iddat, till the amount is fixed."
(ii) On the second question namely, whether the Act has the effect of
invalidatin g the orders/judgments passed under Section 125 of the Code nrinr t
its coming into force, that is, whether the Act divests parties of vested rights/
benefits by acting retrospectively, the Court held:
"The orders passed under Section 125 of the Code prior to the
commencement of the MW Act are not nullified by reason of its coming into
force. Such orders are binding on both sides and can be executed under
Section 128 of the Code. The Act does not divest the divorced woman of the
right to get maintenance under Section 125 of the Code vested in her by
reason of orders of a competent Court passed prior to its coming into force."
(iii) Afiei the commencement of the MW Act can a divorced Muslim wife
apply for maintenance by invoking the provisions of Chapter IX of the Code of
Criminal Procedure? Addressing to this question, the Court ruled:
"After the commencement of the MW Act a divorced Muslim Woman
cannot apply for maintenance by invoking the provisions of Chapter IX of
the Code. According to Sections 5 and 7 a divorcee and her husband can by
agreement subject themselves to the jurisdiction of the Magistrate under
Sections 125 and 127 of the Code and agree to be governed by the said
provisions (but not without such agreement)."
(iv) The last question considered by the Court was whether the Family Court
has jurisdiction to try applications of the Muslim divorced women for
viii] MAINTENANCE (NAFAQA) 199

maintenance after the coming into operation of the MW Act? On this, the Court
held:
"If the jurisdiction of the Family Court was sought to be protected, there
would have been an express provision making it clear that the Family Court
has jurisdiction. By virtue of Sections 3 and 4 the application under Section
5 and 7 of the Act have to be filed before the Magistrate only. We therefore
hold that after coming into force of the MW Act, a Muslim woman can
apply under Sections 3 and 4 only to the First Class Magistrate having
jurisdiction under the Code. The Family Court cannot deal with such
applications".
But this decision, being of a High Court, could not provide relief to the
Muslim divorcee women in other States. For example the Madhya Pradesh High
Court held in Rafiq v. Farida Bi59, that if a divorced wife wanted maintenance
beyond the iddat period, she had to make her relatives! Wakf Board as parties to
the suit under Section 4 of the Act, for the husband could not be made a party.
Again the M.P. High Court asserted in Julekha v. M. Fazal60, that the Muslim
Law makes the husband liable for the maintenance of his divorced wife during
the iddat only. And though the decision of the Kerala High Court in
Khyrunneesa v. Alair6t , concentrates mainly on the quantum of maintenance and
provision for the divorcee, it does advance the cause of the deserted wife in so
far as it combines "maintenance" with the requirement of "reasonable provision"
for the post-iddat period. In the words of the Court:
"While enacting Section 3(l)(a) of the Act, the Parliament has accepted
the traditional view that right to maintenance ceases after the expiry of the
iddat following talak after declaring and protecting the right of divorced
women to get a fair and reasonable provision being made for her livelihood
during the post-iddar period also from her husband within the iddat period."
Some of the other pre-Danial Latiji case decisions favouring an
interpretation more beneficial to the claiming wife are: Haroon Rashid v.
Raqueeba Khatoon 62—The Patna High Court held: She is entitled to reasonable
maintenance for the iddat period and fair and reasonable provision for the rest of
her life or till she remarries. Majitha Beevi v. Yakoob63—The Kerala High Court,
after laying great emphasis on the need to make provision for her remaining life,
held that if the former husband has given sufficient property to the divorced wife
during the subsistence of the marriage satisfying the requirements of Section
3(l)(a) of the Act, the divorced woman is not entitled to claim anything more,

59. (2000) 2 MPWN 77 MP.

60. (2000) I vidhi Bhaswar 123 MP.
61. (2001) I KLJ 46. See, infra, further under the head "Amount of Maintenance".
62. (1997) I BUR 93.
63. (1999)1 KLT796.
200 MUSLIM LAW [CHAP.

over and above the properties already given. In an interesting case Nizar V.
Hyrunneessa64—the Kerala High Court held: The period up to which the needs
of the woman should be considered is not mentioned anywhere in Section 3 of
the Act. The remarriage of the divorced woman is no criterion while determining
the reasonable and fair provisions to be paid by former husband to his divorced
wife. Therefoi'e, the fact that the divorced woman had remarried during the
pendency of the petition is not a factor which determines the date to which she is
entitled to fair and reasonable provision . . . Of course, if the wife gets remarried
during the pendency of the petition that fact is a factor to be considered by the
Magistrate keeping in view the object and reasons in enacting the Act.65
In 1-lasenura Begum v. Fazar Au 66, the Gauhati High Court was called to
decide whether the words "provisions" and "maintenance" (in Section 3) convey
the same meaning, as decided by the Andhra Pradesh High Court in Usman
Khan Bahamani v. Fathimunnisa Begum,67 by majority. The Gauhati High Court
held that a combined reading of Sections 3 and 4 of the Act would show that the
word "provision" has been used only in Section 3 and is absent n Section 4. The
Preamble of the Act takes care of the rights of the divorced Muslim wife and "to
provide for matters connected therewith or incidental thereto." While the liability
to pay maintenance shifts under Section 4 to classified relatives and the Wakf
Board, the word provision is deliberately omitted in that section. This should
lead any prudent person to fern. an opinion that so far as making provision is
concerned the liability remains with the former husband by the implicit
significance of deliberate mentioning in Section 3 while consciously omitting in
Section 4 and this cannot be for any limited period. The needs of a divorced
muslim wife are not confined to maintenance and maintenance alone. Apart from
the requirement of fooding, clothing, medicine, the divorced wife may require
the minimum residential accommodation and least arrangement for proper
utilisation of leisure and recess and proportionate fund for discharging religious
and social obligations, etc. even after iddat period.
lIel&.l. tii_ fuuts.a Lsaru us,xid is uiiJ..i kgal ublatu, tu
provision' for his divorced wife for her whole life or till her remarriage and
should be made within iddat period having regard to the status and financial

64. (1999) I KLT 709.

65, We think the two sentence are contradictory; the second neutralises the first. In view of the
Supreme Court decision in Dnia1 Latifi making her remarriage a terminating point for her
entitlement to provision and maintenance, this point of the High Court decision must be taken
to have become inoperative. Furthermore, the Supreme Court having made destitution as the
raison de etre for departure from the traditional time limit of iddat, the condition of remarriage
operates to negate her claim. See below, the discussion on L.alzji.
66. (2001)3 Gau LR 576.
67. 190 ) Cri Li 1364 (AP).
 viii] MAINTENANCE (NAFAQA) 201
condition of both, and so far as the liability to pay maintenance is concerned, it is
confined for the iddat period, though must be paid within iddat period.
Thus, the legal status of the right of the divorced wife continued to be fluid,
variable according to the views of the different High Courts. The Act is yet
another example of the legislators' preference for legalistic semantics over bold
and straightforward expression of will. The quantum of maintenance allowance,
whether the fair and reasonable provision was in addition to the maintenance
allowance or included in it, and duration of time for which the husband's liability
extended - still remained contentious issues. No doubt, the divorced wife's fate
was on progressive path: In the first stage the husband could rid himself of all
the liability by simply divorcing her. The second stage was the 1973 amendment
in the CrPC - he was made liable to maintain her even after the talak; this was
her first stage of acquirement. But the husband found out an escape valve-
payment of Mahr. In the third stage the Judiciary insisted on making this Mahr
reasonable. The fourth stage came when the Court insisted on her maintenance,
Mahr or no Mahr. The fifth stage was marked by the Act of 1986.
The objective of the Gujarat High Court in according benevolent
interpretation to the Act was to afford a concrete relief to the destitute divorcee,
so that the goal set by the Supreme Court in Shah Bano case may be rendered
easily approachable. But this path was undulated, as the various decisions
analysed so far would show. The success of the objective of the judiciary rests
on certain perceptions, not expressly manifested by the Act. Surely, the Act
nowhere says that the maintenance is limited to the iddat period, but the Act also
misses the golden opportunity to declare that the maintenance is for her life; or
conversely, to say that "till iddat period only, and no more". Fairly enough, the
language of Section 4 of the Act gives a powerful impression that the
maintenance referred to in Section 3 is limited to iddat period; this line of
argument cannot be dismissed offhand in view of the words used in the
Statement of Objects and Reasons; it did require the authority of the Supreme
Court to decide which side was right. The legislators had played their ball. There
is one more snag in the language of the Act. If the entire amount of provision
and maintenance is to be made and paid to her "within", that is, "on or before",
"not beyond" the period of iddat, that is in 3 months, then the number of
divorcing husbands who could arrange the whole amount in that short period
would be really negligible. What can be done 'within' that period is to assess and
fix the sum and commence the payment. Those payment then shall have to go
beyond that period, till either the sum fixed is exhausted, according to one view
or till her lifetime, according to the liberal view. Seen from the angle of this
economic reality, even the liberal view would create difficulty if it were insisted
that the husband must clear himself of all his liabilities in three months; any such
insistence could result only in sending him a distress warrant, but that would no
way solve her financial problem. In this context also "within" should not mean
 MUSLIM LAW [CHAP.
202

"not beyond, before the end of'; so it has to imply "from, since the beginning
of'. One ray of hope in the Act is the removal of the maximum limit of the
amount of maintenance allowance that the Magistrate may determine, the code
had fixed the ceiling of Rs 500 per month. Now the Magistrate will assess the
span of life of the divorcee, and on the basis of this and other prescribed norms,
determine the suii.
These uncertainties had to be settled. The verdict in Danial Latfi v. Union of
India68, deciding some of the unsolved questions did not come a day sooner.
This was a writ petition under Article 32, challenging the constitutional validity
of the Act, the target being in fact the restrictive interpretation of Section 3 of the
Act.69 The petitioner's contention was that the Act, by making Section 125 of the
Code of Criminal Procedure inapplicable to the Muslim women, discriminates
against them. The argument was that Section 125 CrPC gave protection to all
women irrespective of their religion. The Shah Bano decision made this
protection available to the destitute Muslim woman for her entire life. Then
came the Act with the "inevitable efRc1 to nullify the law declared by the
Supreme Court in Shah Bano". Now, by the application of the Act only the
Muslim wives are singled out for the adverse discrimination. The Act thus
violates Articles 14, 15 and 21, and is also un-Islamic, and violates the basic
secular character of the Constitution.
was providei
On behalf of the Union of India, ii was COIILCILUCU thatwhen iL
by Section 3 that the "provision and maintenance" was for the iddat period, it
would make it clear that it could not be for life but would be only for the iddat
period and "when that fact has been clearly stated in the provision the question
of interpretation as to whether it is for life or for the period of iddat would not
arise".
On behalf of the Indian Muslim Personal Law Board, the submission was
that the main object of the Act was to undo Shah Bano case, the task of
interpreting the unfamiliar language of the Koran was hazardous, the
interpretation placed on the Arabic word "Mata" in Shah Bano case was
incorrect, "provision and maintenance" were clearly the same thing, such
provision was to be made for the divorcee for the period of iddat only, this was
the tenetary law and the Court should interpret the Act according to the Muslim
Personal Law and Muslim social ethos only. The Islamic Shariat Board also
pleaded that the obligation for "Mata" was a one-time transaction and the
different view by some authors on Muslim Law was not authentic and reliable.
On the other hand, the National Commission for Women submitted that if
the protection of Section 125 CrPC is withdrawn and Section 3 of the Act is

68. (2001)7 SCC 740.

69. There are no other reported facts in the case related to any events or transactions.
VIII] MAINTENANCE (NAFAQA) 203

interpreted to abandon the divorced Muslim woman to the caprice and whim of
her husband, it would amount to depriving her of her constitutional rights to
equality, non-discrimination and life, which included right of livelihood.
The Supreme Court ruled, first of all, that the decision of the Constitution
Bench in Shah Bano case was not open to re-examination. The law applicable to
a divorced Muslim woman on the date the 1986 Act came into force was as
declared by the Supreme Court in Shah Bano. Therefore, in the present case to
find out the personal law of Muslims with regard to divorced women's rights, the
starting point should be Shah Bano case, and not the original texts or any other
material. That (Shah Bano) declaration was made after considering the holy
Koran, and other commentaries or other texts. In that case, the Supreme Court
said that although Muslim Personal Law limits the husband's liability to the
period of iddat, it does not contemplate a situation in which she is unable to
maintain herself after iddat, and Section 125 CrPC envisages that situation.
Precisely, the point that arose for consideration in Shah Bano case was that the
husband had not made a "reasonable and fair provision" for his divorced wife,
even if he had paid Mahr and provided iddat maintenance. Therefore, he was
ordered to pay a specified sum monthly to her under Section 125. This position
was available to the Parliament on the date it enacted the law but even so the
words used in the Act are "a reasonable and fair provision and maintenance to be
made and paid", and there is no reason why this provision could not take the
form of the regular payment of alimony to the divorced woman, "though it may
look ironical that the enactment intended to reverse the decision in Shah Bano
case, actually codifies the very rationale contained therein". And "if the language
of the Act is as we have stated, the mere fact that the legislature took note of
certain facts in enacting the law will not be of much materiality."
As we observed while analysing the various decisions of the High Courts,
the Act could be interpreted in both ways: restrictively and liberally. Restrictive
interpretation would make the Act foul of the constitutional principles of
equality and right to livelihood. The Supreme Court held that a construction that
results in making an Act ultra vires has to be discarded and one that upholds the
validity of the Act preferred.
Having established these foundational postulates, the Supreme Court held
that nowhere had Parliament provided that reasonable and fair provision and
maintenance were limited to the iddat period and not beyond. It would extend to
the whole life unless she got married for the second time. At the time of divorce
the Muslim husband is required to contemplate the future needs and make
preparatory arrangements in advance. The word "within" means "on or before",
"not beyond". The emphasis of this Section (3) is not on the nature or duration of
any such provision or maintenance, but on the time by which an arrangement for
payment should be concluded namely, within the iddat period. If he has made
such arrangement and discharged his liability, he would be exempted for the
204 MUSLIM LAW [CHAP.

post-iddat period liabilities.70 Section 4 of the Act contains no reference to

"provision". Obviously this right is enforced only against her former husband, in
addition to maintenance.71
The reasonable and fair provision and maintenance that the Magistrate can
order her former husband to be made and paid to her has to be worked out with
reference to her needs, standard of life enjoyed by her during her marriage and
means of her former husband. It may include provision for her residence, food,
clothes and other articles.72 The wordings of the Act appear to indicate that the
husband has two separate and distinct obligations: (1) to make a "reasonable and
fair provision" for his wife, and (2) to provide maintenance for her. To say that
the Act deprives her of the protection extended previously by Section 125 CrPC
and now expect her to run after the iddat period from pillar to post in search of
her relatives and ultimately to knock at the doors of the Wakf Board - does not
appear to be reasonable and fair substitute of Section 125 CrPC. No reasonable,
fair and just law would do so. Otherwise it would amount to discrimination and
violation of Articles 14 and 21
In conclusion it was held:
(I) 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, extending beyond the iddat period; and must be
made by him within the iddat period, in terms of Seioii 3i)(u) c,ftk
Act.
(2) His liability under Section 3, to pay maintenance is not confined to
iddat period.
(3) A divorced Muslim woman, not remarried and unable to maintain
herself after iddat period can proceed, under Section 4 against her
relatives who are liable to maintain her in proportion to the properties
which they would inherit from her. If none of them is able to maintain
her, the Magistrate may direct the State Wa/cf Board to pay.
(4) Provisions of the Act do not offend Articles 14, 15 and 21 of the
Constitution.74

'Future'? - Further development

We have used two terms above - 'future' and 'not remarried'. In a recent
landmark decision the Kerala High Court has thrown light on the futuristic
extensions of these terms. Indeed the facts of the case offered an opportunity to

70. (2001)7 SCC 740 at pp. 760-61.

71. Ibid,at p. 761.
72. Ibid, at p. 760.
73. Ibid,at p. 763.
74. Ibid, at pp 765-66.
VIII] MAINTENANCE (NAFAQA) 205

the Court, and creditably the Court ceased it. Is the amount due to her under
Section 3(1)(a) for her entire life till end? Does the discharge of his obligation by
the husband under this provision absolve the next husband from his similar duty
if and when he divorces her? Does the Section mean one time payment? These
were the questions raised in V. Bapputty v. Shahida. 75 This is a case of third
divorce. Her testing HIV positive is the root cause. Her first husband paid her
certain amount in discharge of his duty under this section; she did not claim
anything from the second one on divorce, but claimed from the third one when
he divorced. This third one objects claiming that 'conceptually the amount
payable under the Section is the maintenance amount which is due to her till the
end of her life or till her remarriage. So, she is not entitled to claim it now.
(Otherwise also he was wrong, for she had not 'remarried'.) The High Court
held: 'The obligation rests on the shoulders of every husband who divorces his
wife. Such liability of his does not vanish or is not obliterated by the mere fact
that the previous husband had discharged his duty. Every husband at the time of
divorce must independently make reasonable and fair provision. It is not the law
that the woman should be unable to maintain herself to claim the fair and
reasonable provision under the Section (see, footnote reference 46-A supra).
Hence the fact that provision has been made at the time of the previous divorce
would become irrelevant. In every case where the woman actually remarries the
amount paid by the former husband under section must be held to be sufficient
provision till remarriage only and not till the end of her life; it does not absolve
the subsequent husband when he divorces.
Does the MW Act 1986 substitute Section 125 CrPC so far as the Muslim
Women are concerned?
Section 5 of the MW Act gives the divorced Muslim woman and her former
husband an option to declare that they jointly or separately would prefer to be
governed by the provisions of Sections 125-128 CrPC, the Magistrate shall
dispose of the maintenance accordingly (i.e., according to Section 125 etc.
CrPC). The Andhra Pradesh High Court in Usman Khan Bahamani v.
Fathimunnisa Begum, 76 had held that after passing of the Act a divorced wife
cannot claim maintenance under Section 125; these (125-128) sections are not
applicable after coming into force of the Act. The same was the view of the
Madhya Pradesh High Court, 77 and Patna High Court. 78 The Punjab and Haryana
High Court had also denied her a recourse to the CrPC after the Act, but held
that the Act did not divest the party vested with determined rights and benefits

75. (2007) I KLT 422.

76. I990CnLJ 1364 (AP).
77. Sakinabai v. Fakruddin, (1999)2 DMC 576.
78. Mohd. Yunus v. Bibi Phenkani, (1987) 2 Crimes 241 and Bibi Shahnaz v. State of Bihar,
(1999)2 DMC 589.

1
206 MUSLIM LAW [CHAP.

under Section 125. The Gujarat High Court in Arab A. Abdulla v. Arab Bail
Moh,nuna Saiyadbhai80, had held that the Act did not take away a divorced
Muslim woman's rights under personal law or under general law, i.e. Section
125, etc. The Court also ruled that orders passed by the Magistrate under Section
125 are not nullified on coming into force of the Act. In Karim Abdul Rehman
Shaikh v. Shehnaz Karim Slzaikh 81 , the 2nd and 3rd questions formulated by the
Bombay High Court related to the issue under our discussion, viz.: (a) whether
the Act has the effect of invalidating the orders/judgments passed under Section
125, i.e. whether the Act operates retrospectively so as to divest parties of their
vested rights, and (b) whether, after the commencement of the Act, a Muslim
divorced wife can apply for maintenance under the provisions of the CrPC? The
Bombay High Court ruled, on question (a) that provisions of statutes which
touch a right in existence at the passing of the statute are not to be applied
retrospectively in the absence of express enactment or necessary intendment.
Therefore, the orders passed under Section 125 are not nullified; they are binding
and the wife is not divested of her vested rights. As to question (b) the Court
held that in view of the provisions of Sections 5 and .7 of the Act, a divorced
Muslim woman cannot apply for maintenance by invoking the provisions of the
Code. It is only by mutual agreement that they can decide to be governed by the
Code.82 Both these questions again appeared before the Calcutta High Court in
Abdul Latf Mondal v. Anuwara Khatun 83. But before attending them, we may
note the observations of the High Court regarding the misuse of the divorce
power by the husoano. The brief tacts ot the case were: the opposite party, i.e.
the wife alleged that within few days after her marriage with the petitioner, the
latter and his family members started torturing her for money and gifts; after four
years she and her child were driven out of the matrimonial home; she applied for
maintenance for herself and the child under Section 125; the husband countered
on the ground that he had divorced her two years back, but the Magistrate
granted the maintenance allowance; hence this petition by the husband.
Commenting on the misuse of the divorce card by the husband, the High Court
observed:
"It is true that Section 5 of the Act gives an option to be governed by
Sections 125-128 of the CrPC. But, this looks like very hard to come by.
Despite the new Act many women approach the Court under Section 125.
One reason for this is that significant number of women are not divorced at
the time of approaching the Court for maintenance. These women are
divorced after filing for maintenance as a retaliatory measure. The usual
tendency of a husband who is called upon by the Courts to defend himself

79. Kaka v. Hassan Bano, (1998)2 DMC 85.

80. AIR 1988 Guj 141.
81. (2000)3 Mh Li 555.
82. Ibid, at pp. 578-79.
83. (2002) 1 CU 186.
VIII] MAINTENANCE (NAFAQA) 207

against the claim of maintenance, irrespective of religious affiliations is to

exploit any legal loophole which will enable him to escape from his
financial obligation towards his wife and children. The wife having been
driven away and divorced by the husband, in distress and in desperate need
of money and material to sustain herself and for that reason, requiring the
speedy remedy of Section 125, is not likely to get her embittered ex-husband
easily to join hands for an affidavit or declaration that they prefer to be
governed by the provision of Sections 125-128, especially a husband who by
all means is bent upon evading the financial obligation."84
On these facts the High Court framed three issues: (a) Whether the Act
renders the Judicial Magistrate's maintenance order, passed in 2001, under
Section 125 a nullity. (b) Whether the claim of maintenance is limited only up to
the period of iddat. And (c), whether a divorced Muslim wife can still claim
maintenance under Section 125 after the coming into force of the Act. On the
first issue the High Court ruled that on the basis of the latest judgment of the
Supreme Court in Danial Latifi "we possibly have enough reason to maintain
that the position of Section 125 has not been materially changed". There is no
section in the Act which nullifies the orders passed by the Magistrate under
Section 125. Once the order is passed, her rights are crystalised and she gets
vested right to recover maintenance from her former husband. That vested right
is not taken away by the Parliament by providing any provisions in the Act and
there was no inconsistency between the Act and the CrPC. As to (b), the Court
ruled that the object of Section 125 is to prevent vagrancy and destitution. The
Constitutional Bench in Shah Bano case has given a woman in destitution a
constitutional right to protection and the Act has nowhere taken away that right,
nor can it do so. On the third point (c) the Court held:
"The provisions of the Act as made available to the divorced Muslim
women are in addition of the claims available to them under Section 125
CrPC. Moreover, it might be borne in mind that Section 125 provides for
speedy and summary remedy to the indigent wife and her children driven to
destitution, the prevention of which is the whole purpose of the welfare
legislation. In a given situation, desperate that it is, if the destitute woman in
dire straits instead of taking the long winding and difficult path in pursuit of
justice under the Act, goes straightaway by Section 125 which promises
speedy and summary remedy and can thereby secure for her the basic right
to life and a life with dignity, then I believe there is no stopping her -
morally as well as legally."85

84. (2002) 1 CU 186 at pp. 195-96.

85. Ibid, at pp. 202-03.
 208 MUSLIM LAW [CHAP.

Bound by the Full Bench decision in Karim Abdul (supra) the Single Judge
Bench in Sk. Mohamed v. Naseembegum86 , Sajanbee v. Khajamiya87 and Syed
Younus v. Jabeen. 88 has reiterated the position laid down in Karim Abdul (supra).
The Gauhati High Court is also of the same opinion. 89 In our opinion the
judgment of the Calcutta High Court appeals more to logic and results in
practical justice. Still, Supreme Court verdict is needed to crystallise the
position.
Position of Pre-Act divorcees

Can a Muslim woman, divorced before the coming into force of the Act,
claim maintenance under the Act? 'Yes'— according to the Kerala High Court.
In Hyderkhan v. Meharunnissa 90 the Court held that the Act was a declaratory
statute. The presumption against retrospec.iie operation will not apply to a
declaratory statute. From the Preamble it is very clear that the Act applies to
Muslim women who have been divorced or have obtained divorce from their
husbands. Section 2(a) defines a divorced woman without prescribing any date.
There is no logic in holding that the Act for the first time introduced a burden on
the Muslim husband to provide for reasonablc and fair provision and
maintenance to the divorced wife
The respondent was divorced in 1980 (within 8 months of marriage). The
award of Rs 24,000 as maintenance by the Chief Judicial Magistrate was
therefore uphek by the High Coui
Now, of course the decision of the Supreme Court in Danial Latifi settles the
law in favour of the divorced Muslim wife and vests her with a "constitutional
right" to livelihood through maintenance in the situation discussed in detail
above. All the decisions of various High Courts going contrary to Danial Lat(fi
law, therefore, stand overruled. It may be noted that the definition of the
"divorced woman" given in Section 2(a) of the Act does not require that the
divorce must have taken ulace before the commencement of the Act, it covers all
divorcees under the Muslim Law.91
Maintenance by Children, Relatives, Parents and Wakf Board
Section 4 of the Act provides that if a divorced woman has not remarried
and is unable to maintain herself after the iddat period, the Magistrate will order
the following "persons", and in that order, to maintain her:

86. (2007) 1 DMC 226 (Born).

87. (2007) 1 DMC 537.
88. (2008)5 AIR Born R 700.
89. (2007) 2 Gau LR 657 in Md. Siddique Ali v. Must! F'azema Rashid.
90. 1993 Cri Li 236 (Ker).
91. For procedural details, see generally, M.A. Qureshi, Muslim Law of Marriage. Divorce and
Maintenance (Deep and Deep, New Delhi 1992).
 Viii] MAINTENANCE (NAFAQA) 209

(i) Children—In a queer style of legislative drafting, the section first

mentions in detail the liability of the relatives, and then by use of the proviso
super-posts the children at the first place. So proviso to sub-section (1) of
Section 4 casts the liability to maintain her on her children: "The Magistrate
shall order only such children to pay maintenance to her." Since the term
"children" has not been defined, "children" will include male and female,
married or unmarried, legitimate or illegitimate. The question of major or minor
has also been left open, and perhaps their capacity will guide the Magistrate.
In Makiur Rahman Kha v. Mahila Bibi 2, the respondent mother who was a
divorced Muslim woman had filed an application under Section 125 CrPC
claiming maintenance from her two sons. Various objections were raised by the
petitioners but the Magistrate had allowed the application and granted
maintenance at the rate of Rs 250 each per month. The sons had claimed their
income was very low. They also stated that the mother had failed to discharge
her duties by showing love and affection to them, and left them when they were
merely 3/4 years old. One important objection was that while her maintenance
case against her husband under Sections 3 and 4 of the Act was pending, parallel
proceeding under Section 125 CrPC against her sons was not maintainable.
The Calcutta High Court rejected this contention and held that Section 4(1)
of the Act does not debar the divorced Muslim woman from invoking the
provision of Section 125 against her children. Even under Section 5 the
condition is with regard to the former husband, but it is conspicuously silent as
regards others. The framework of the Act itself and the ratio of Danial Latifi will
show that the Act itself is not a substituted measure of Section 125 CrPC but in
addition thereto.
The High Court also upheld that Magistrate's order regarding the amount of
maintenance.
(ii) Parents.—"In the event of any such children being unable to pay such
maintenance, the Magistrate shall order the parents of such divorced woman to
pay maintenance to her". The term includes father and/or mother.
(iii) Relatives and (iv) Other Relatives.—On proof of the inability of the
parents being furnished t the Magistrate, he will order that such relatives as
would be entitled to inherit her property on her death will pay such reasonable
and fair maintenance as may be ordered by the Magistrate. Further, if her needs
still remain unattended, the Magistrate may order that the share of such relatives
in the maintenance ordered by him may be paid by such of the other relatives as
may appear to him to have the means of paying the same. In the case of
"relatives" the Magistrate will take into consideration their means, her n ' eds and
their proportionate share in the prospective inheritance of her property. In the

92. (2002)1 CU 291.

 MUSLIM LAW [CHAP.
210
case of "other relatives" their proportion will be such as he may think fit to
order. That is, whereas in the case of prospective inheritors, their share in the
maintenance is matched with their share in the property, in case of "other
relatives", their share is left to the discretion of the Magistrate.
It is notable that Section 4 makes no reference at all to her former husband.
But the specified condition that "she is unable to maintain herself" may be taken
as to provide one clue. The other clue is provided by the non obstante clause
with which Section 4 opens: "Notwithstanding anything contained in the
foregoing provisions of this Act or in any other law for the time being in force";
which means even if the husband is paying maintenance after iddat period, due
to his poverty and her needs, the amount is so small or insufficient that she is not
able to maintain herself. In that case, she can appeal to the Magistrate to use his
powers under this section. And, at the end of this line of waiting burden-bearers
comes the Wakf Board.
(u' Wakf Board.—Sub-section (2) of Section 4 says that where a divorced
woman is unable to maintain herself and the relatives and other relatives also
have no means to support her, the Magistrate may order the local Wakf Board
(i.e. of the area in which she resides) to pay her entire maintenance allowance as
per his orders or share the relatives in the discharge of their obligations. The
period is also left to the discretion of the Magistrate.93
Maintenance by Wakf Board—Constitutional Validity of Section 4j2j

In Syed Fad Pookoya Thangal v. Union of India94 the facts were as

follows—One Jameela was divorced by her husband; under Section 3 of the Act
she was granted Rs 15,400 towards her maintenance. Towards this amount only
Rs 6000 could be realised by attachment and sale of husband's property, and the
husband was jailed for the non-payment of the balance amount. Jameela had no
property or source of income to maintain herself or the child. Her near relations
(and !gal heirs) were her parents who were unable to maintain her because of
theii impecuniosity.
Therefore, Jameela claimed maintenance from the Kerala Wakf Board at the
rate of Rs 350 per month invoking Section 4(2) of the Act. The Judicial
Magistrate First Class ordered the Wakf Board to pay her Rs 250 per month
towards her maintenance. The Wakf Board challenged the constitutional validity
of Section 4(2) of the Act on the ground that the Wakf Board was a religious
body created for the purpose of performing pious activities like offering prayers
to God and functions beneficial to the spiritual well being of the Muslim

93. Wakf Board can be directed to pay maintenance amount. Opportunity of hearing to Board
before passing order is not contemplated under Section 4(2); on Board's failure to implement
distress warrant will be issued—Tripura Board of Wakfv. Ayasha Bibi, AIR 2008 Gau 10.
94. AIR 1993 Ker 308.
 viii] MAINTENANCE (NAFAQA) 211

faithfuls. Once the property is dedicated to the Wakf Board, it vests in God and
no one is competent thereafter to muddle with it or divert its income to a purpose
not authorised by the Wakf deed. The casting of obligation on the Wakfs to pay
maintenance to divorced Muslim wives and the diversion of their funds for that
purpose were sacrilegious, violative of the guaranteed freedoms under Articles
25 and 26 of the Constitution, the Wakf Board contended.
The Kerala High Court held that to claim the rights under Article 26, the
petitioner must be a religious denomination. The Wakf Board is not a
conglomeration of individuals. It is not even akin to a company where many
individuals jcin together to constitute it. It is a statutory body, pure and simple. It
is not a representative body of Muslim community. It has no soul and no faith,
except the faith of dutiful performance of its functions and duties under the Act
(i.e. the Wa/cf Act of 1954). It is an instrumentality of the State. The Wakf Board
is a creature of the Wa/cf Act. It is not a denomination and hence it has no rights
under Article 26. (Article 25 was not pleaded before the Court after initial
mention.)
Nature of the Wakf Board's obligation

Secy., Tamil Nadu Wakf Board v. Syèd Fatima Nachi, 95 The respondent,
Fatima, was married to Syed Ahmad Moulana in 1980. She had twin daughters
from him. The husband, (one of the appellants) divorced her in 1986. She was
not remarried. She claimed she was not able to maintain herself and the children
and hence, prayed the Judicial Magistrate, Tiruchendur for granting the
maintenance allowance. The Supreme Court held that the host of her relatives as
given in the Act 1986, and Muhammadan Law are responsible to provide her
maintenance, and if they are unable, the claim of maintenance must be met by
the Wakf Board. Her prospective heirs and parents are unable to maintain her.
Thus, there was a bounden duty on Wa/cf Board to maintain her. The Wakf Board
contended that Section 4 of the Act would require her to file proceedings against
all the relatives mentioned in that section one by one, and finally when all fail to
maintain her, then a proceeding can be filed against the Wakf Board, because it is
at the bottom of the list in Section 4. Held: She is entitled to plead and prove
relevant facts in one proceeding as to inability of her relations mentioned in
Section 4(1) to maintain her by directing her claim against State Wa/cf Board in
first instance. She is not required to proceed against her relatives mentioned in
'Section (4)(1) in the order they are mentioned and then to touch the Wakf Board.
The provision is one integrated whole. It is, however, open to the Wakf Board to
controvert to the effect that the relations mentioned in the provision have means
to pay maintenance to her. The Magistrate would then add them as parties.

95. (1996)4 SCC 616: AIR 1996 SC 2423.

 212 MUSLIM LAW [CHAP.

In Tripura Board of Wakf v. Ta he ra Khatoon96, the respondent was a

divorced Muslim woman. Originally, she had filed application before the
Magistrate impleading the Wakf Board and others for payment of maintenance
allowance to her. The Magistrate had partially granted her prayer and the Wakf
Board had filed this review application before the High Court of Gauhati. The
main contention of the Wakf Board was that the Magistrate had not recorded any
finding that the relatives of the respondent were not in position to maintain her,
as required by Section 4(2). In fact, the Wakf Board had also not established on
proof that any other relatives were able to maintain her. However, held the High
Court, even where no such plea was taken by the Wakf Board before the
Magistrate, some finding had to be recorded by the latter as required by sub-
section (2) of Section 4. This is so because:
"The resources available with the State Wakf Board are not unlimited
but limited and as the language of sub-section (2) of Section 4 makes it clear
that such limited resources available with the Wakf Board are meant for
divorced Muslim women who are unable to maintain themselves or who
have no relatives having enough means to pay maintenance to her. . . Further
the order passed by the Magistrate must also indicate the maintenance
(amount) determined by him which is to be paid by the Wakf Board.1197
(The case was redirected to the Magistrate for appropriate proceedings,)
A Critique—Summing up, the Act thu.s codifies th liahi1itie nf 2 Mnclin'
husband towards his former wife and children. But the contents of the Act are
such that the best tribute that can be paid to it is that it has given an opportunity
to the judiciary to not only provide some relief to the deserted Muslim wives but
also spur a countrywide debate on the need to look after them and not abandon
them to destitution. Beyond the vicarious kudos, the Act invites more criticism
than praise. As to the contents of Section 3, we have time to time noted our
observation during the case law discussion and subject analysis above. Now
som..thing about Scction 4. This scctiou ,.ast, thw first liabilty on the .hiidren.
Now, in most of the cases of divorce or desertion, the children are toddlers and
the families are poor. The incidence of divorce and desertion is much more
among the working class. If the children are grown up and living under the
protection of their mother, they normally assist the mother in the bread earning
work; but again, under Muhammadan Law, the father is the natural guardian of
the children, of their person also. So he takes them away to his family, leaving
the deserted woman helpless. Under Muhammadan Law, the father-in-law is
under no obligation at all to maintain the daughter-in-law. The doors of the in-
laws are closed for her. Her parents in such cases, are also of the low income
group; and they have other sons and daughters to look after. But they are only

96. AIR 2001 Gau 103.

97. Ibid,atp. 107.
 viii] MAINTENANCE (NAFAQA) 213

hope, unless they be very old, infirm, themselves in destitution. The relatives
would be smartly avoiding the responsibility. To tell them that they would
inherit her property would invite the retort that if she has any property, she is not
a destitute and she can manage on the basis of that property. The last in the list,
the Wakf Board has naturally no sentimental attachment to her. The Board is a
conglomeration of government servants and "influential" personalities of the
society. It has so many priorities to look after, and limited funds. For a destitute
to extract help from the Wakf Board by legal action is not an easy proposal.
Fortunately, the judiciary has shown awareness towards these problems.
Barring few decisions, the Court verdicts have not only provided her the much
needed relief, but also expanded the horizons of the egalitarian motive of the
Act. The Danial Latifi decision and the Gauhati High Court • decision (supra)
should lead the other courts to new paths of woman emancipation. Finally, it is a
matter of the attitude of the society. If the Muslim society continues to view the
well-being of the divorced or deserted woman a liability, the hurdle race will
continue. If the Muslim society adopts the approach of respect for womanhood,
her status will rise better and faster than by dry legal battles.
B. MAINTENANCE OF CHILDREN

Legitimate children.—The maintenance of infant child rests upon the

father. In Hedaya, the following verse of the Koran, namely—
"The maintenance of the woman who suckles an infant rests on him to
whom the infant is born,"
is mentioned and from which it has been inferred that "the maintenance of an
infant child also rests upon the father, because, as maintenance is decreed to the
nurse on account of her sustaining the child with her milk, it follows that the
same is due to the child himself afortiori".98
Thus, a father is bound to maintain his sons until they attain puberty, and his
daughters until they are married. He is also responsible for the upkeep of his
widowed or divorced daughter, or a child in the custody of the mother. The
father is not bound to provide separate maintenance for a minor son or unmarried
daughter who refuses to live with him without reasonable cause. An adult son
need not be maintained unless he is infirm. 99 The father is not bound to maintain
a child who is capable of being maintained out of his or her own property. 100
If the father is poor or infirm, the mother is bound to maintain the children.
And, failing her, it is the duty of the paternal grandfather.'°' A father-in-law is
under no obligation to maintain his widowed daughter-in-law.

98. Hedava,atp. 146.

99. Fyzee, at p.214.
100. Mulla, at p. 383.
101. Fyzee, at p.214; MulIa, at p. 383.
 214 MUSLIM LAW [CHAP.

Illegitimate children.—In Muslim Law, the father of an illegitimate child is

not bound to maintain it. Section 488 of the Criminal Procedure Code, 1908 (as
amended up to 1955), however, did bind such a father to pay up to Rs 500 per
month by way of maintenance. The father would be liable to pay this amount
even if the mother refuses to surrender the illegitimate child to him.
In a casc"°, it was held:
"An agreement to maintain an illegitimate child, for which the
Muhammadan Law as such makes no provision, will in my opinion not have
the effect of defeating the provisions of any law. As a matter of fact,
maintenance of illegitimate children has been statutorily recognised under
Section 488 of CrPC in our country and it is in consonance with this
wholesome policy that the offsprings born under such circumstances are to
be provided for and should not be left to the misfortunes of vagrancy and its
attendant social consequences."
It is, however, not open to a Court to award maintenance under Section 488
unless expressly asked for. '03
Right to maintenance ceases.—(i) At puberty or 15 years, according to
Muslim Law; and
(ii) at 18 years, according to the Indian Majority Act, 1875.
There is a difference of oninion as to whether maioritv for nurnose s, of
maintenance is attained on puberty or at the age of 18 years. The former view
has been recommended by a majority of writers and hence should be accepted as
correct.
Children's Right of Maintenance: CrPC & 1986 Act— Run Parallel
In 5k. Abubakkar v. Ohidunnessa Bibi 104 the Calcutta High Court has held
that the right of the child to claim maintenance under Section 125 of the Code of
Criminal Procedure either by itself or through its mother acting on its behalf
remains intact in spite of the right of the mother under Section 3 of the Act of
1986 to claim maintenance for the child for a period of two years from her
former husband where she herself maintains the child. While the right of the
divorced Muslim woman is limited to 2 years under Section 3 of the Act, the Act
virtually does not deal with the right of maintenance of a child from its father
and therefore in case of a child the provisions of Section 125 will be clearly
applicable. Under Section 125 it is his own right, while under Section 3 of the
Act it is a part of the right of the divorced woman. Under Section 125 the child
can claim maintenance from its father irrespective of the question as to who

102.Sukha v. Ninni, AIR 1966 Raj 163.

103. Pavitri v. Kaiheesumma, AIR 1959 Ker 319.
104. 1992 Cri U 2826 (Cal).
VIII] MAINTENANCE(NAFAQA) 215

maintains the child. Under Section 3 of the Act it is limited to the period of 2
years from birth, while under Section 125 of the Code of Criminal Procedure it is
logged with the attaining of majority, i.e. 18 years.
In Haji Farzand Ali v. Noorjahan 105 the petitioner contended that the right
of children to maintenance was ancillary to mother's right and the mother had no
right to move the court under Section 125 due to the provisions of Sections 4 and
7 of the Act. Rejecting this argument the Rajasthan High Court held that the
above contention was absolutely unfounded. Section 125(1 )(b) and (c) CrPC
give independent right to the child to move an application claiming maintenance.
The right of such child is independent to the right of its mother. All the sub-
clauses (b), (c) and (d) of Clause (1) of Section 125 have used the conjunction
'or' making the child a recipient independently of the 'mother' or the 'wife' of
the obligor.
In Rupsan Begum v. Mohd. Abdus Sattar 106 the Gauhati High Court has held
that the provision of Section 3(1)(b) of the Act providing for a 'reasonable and
fair provision and maintenance of minor child to be made and paid to the
divorced Muslim woman by former husband for 2 years is a right of Muslim
divorced woman and is incidental to the divorce, and the said provision in no
way comes in conflict with the provision of Section 125 CrPC providing for
maintenance to the child. As such, an order can be passed against a Muslim
father after he has divorced his wife if she is unable to maintain the child or
children above 2 years who may be living with her.
And after divorce if divorced wife maintains children, then and then alone,
she will be entitled to payment under Section 3(1)(b) of the Act, fact that she
maintained children in pre-divorce period, cannot entitle her to any amount
under that provisio&07.
Sub-clause (d) requires the father to maintain even the married minor female
child if her husband is not possessed of sufficient means.
In an article in 1993 AIR Journal Section, 'Shariat Provides Maintenance to
unmarried Daughter', the view has been reiterated that whether the daughter is
minor or major the obligation to maintain her until her marriage rests with the
parents. Maintenance under "Shariat" is enforceable under the Muslim Personal
Law (Shariat) Application Act, 1937. Therefore, unmarried daughter can claim
maintenance until she is married. 108

105.(1988)1 RLW 179.

106. 1990 Cri U 2391 (Gau).
107. TK. Abdulla v. Subaida, (2007) I DMC 464 (Ker): (2006)3 KLT 699.
108. S.A. Karim, AIR 1993 Journal 44.
 216 MUSLIM LAW [CHAP.

A daughter of 10 years of age can also claim maintenance under Section 125
CrPC. In Naseem v. State of U. P. 109, the facts were like these: The husband had
divorced his wife. On application by her for maintenance allowance for herself
and to her daughter aged 10 years, the Magistrate had rejected the claim of the
wife but accepted the claim for her daughter under Section 125. The present
applicant's claim before the Allahabad Hi gh Court was that in terms of Section 3
of the Act, a child was entitled to maintenance up to 2 years of age only and not
beyond. The Allahabad High Court held that this interpretation of Section 3 goes
against any norm of civilised society and cannot be accepted. Section 3 does not
exclude the application of general and secular law of maintenance as enunciated
in Section 125 CrPC. The latter provides for maintenance to minor children.
Section 3 of the Act cannot stand on the way of claim by a child when the latter
is more than 2 years.
Now, the Supreme Court has confirmed that children, if unable to maintain
themselves, can claim maintenance from their father under Section 125 CrPC
independently of their mother's right under Section 3(1)(b) of the Act. In Noor
Saba Khatoon V. MoM. Khatoon,' 10 the Supreme Court held that the children's
right under Section 3(1 )(b) can run parallel with Section 125 CrPC. The question
was whether the Muslim children were entitled to maintenance under Section
125 up to majority or ability to maintain themselves, or for daughters till their
marriage, or their right was restricted to 2 years as per Section 3(1 )(b) of the Act,
notwithstanding Section 125. The facts in brief were: The appellant was married
to the respondent and had 3 children from him. The husband turned her and her
children out of the home. When, on her application the trial court granted
maintenance allowance to her and the children, the husband divorced her and
claimed exemption with regard to the wife as the iddat period was over. The case
went upto the High Court where also it was held that the Act limited
maintenance allowance for divorcee up to iddat, and for children up to the age of
2 years for each child, notwithstanding Section 125. The Supreme Court held
that the right under the Act ic that of the mother on heh.If f her 1dren 9.nd it
has nothing to do with the independent right of the minor child under Section
125.
"A careful reading of the provisions of Section 125 CrPC and Section
3(1)(b) of the Act makes it clear that the two provisions apply and cover
different situations and there is no conflict and much less a real one, between
the two. Whereas the 1986 Act deals with the obligation of a Muslim
husband vis-a-vis his divorced wife including the payment of maintenance to
her for a period of 2 years of fosterage for meeting the infants where they are
in the custody of the mother, the obligation of a Muslim father to maintain

109.1998 All U 2270. Reaffirmed in Muffees, infra.

110.(1997)6 SCC 233: AIR 1997 SC 3280: (1998) I Born CR 340. Followed in Mufres v. State of
UP., (2007) 1 DMC 22 (All).
VIII] MAINTENANCE (NAFAQA) 217

the minor children is governed by Section 125 CrPC and his obligation to
maintain them is absolute tilt they attain majority or are able to maintain
themselves, whichever date is earlier. In female children this obligation
extends till their marriage. Apart from the statutory provisions referred to
above, even under Muslim Personal law, the right of minor child to receive
maintenance from their father, till they are able to maintain themselves, is
absolute."1 II
C. MAINTENANCE OF PARENTS

According to Hedaya:"It is incumbent on a man to provide maintenance for

his father, mother, grandfathers, and grandmothers if they should happen to be in
necessitous circumstances." 112
This obligation to maintain does not end by the mere fact that the parents are
able to earn something for themselves. If a son is earning something, he is bound
to support his poor father who is earning nothing. 113 Or even if the father is
capable of earning something, but with much labour and pain. It is positively so
stated in Hedaya: "If they (the parents) were to labour for subsistence, it would
subject them to pain and fatigue, from which it is the express duty of their child
to relieve them. It is because of this reason that maintenance of parents is
incumbent on the child, although they should be able to subsist by their own
industry." According to Fatwa-i-Alamgiri, however, the matter is disputed. 114
The children's obligation to maintain their poor parents is irrespective of sex
and wealth. Any son or daughter in easy circumstance may be forced to pay the
whole amount of maintenance that may be required, and having done so, may
call upon others to contribute equally. It is because the maintenance of parents is
an urgent matter, and may even be a matter of life and death. Hence the summary
procedure for the purpose, leaving the defaulter to be proceeded against by the
aggrieved party in a regular suit. 115 The point may be illustrated with the
following example:
A, who has no income-producing property, has a son B, with property worth
Rs 100,000, and a daughter C, with property worth Rs 50,000. It appears to the
judge that a monthly allowance of Rs 100 is required for A's maintenance. He
should order B and C to pay Rs 50 each per month; and on either of them making
default, he should order the deficiency to be levied out of the property of the
other leaving the latter to recover it from the defaulter by separate Suit. 1 16

Ill. Ibid, at p. 345 (BCR).

I12.Hedaya,atp. 147. m
113. MulIa, at p.385
114.See, Wilson, at p.205, n. 1.
115.Ibid, at pp. 205-206.
116.Ibid, at p. 205.
 218 MUSLIM LAW [CHAP.

D. MAINTENANCE OF OTHER RELATIONS

All persons who are in 'easy circumstances' are bound to maintain their poor
relations who are within the prohibited degrees by consanguinity in proportion to
the shares which they would inherit at the time of the death of such poor
relations.
Illustrations
(1) A, who has no income-producing property, has a son, B, with property
worth Rs 100,000 and a daughter, C with property worth Rs 50,000. In suit of
maintenance, if it appears to the Court that monthly allowance of Rs 200 is
required for A's maintenance, it may order B and C to pay Rs 100 each per
month. In default, this amount may be recovered from the children's
properties. 117
(ii) Liability proportional to rights of inheritance.—(a) A poor person has
a father's father and a son's son, both in easy circumstances. The father's father
must contribute 1/6th, the son's son 516th, of tho amount required for his
maintenance.
(b) A poor person has many relatives, but the only relatives in easy
circumstances are a maternal uncle and a paternal first cousin. Here, the maternal
uncle must bear the whole charge of maintenance, because he is within the
prohibited degrees.
(c) A poor person has a paternal uncle and a paternal aunt: the uncle is
solely liable to pay maintenance, because he would be the sole heir to the
exclusion of the aunt. 118
E. AMOUNT OF MAINTENANCE AND WHEN IT BECOMES PAYABLE

Amount
Under Hanafi Law.—By reference equally to the social position of husband
and wife.
Under Shafli Law.—The position of the husband is alone considered.
Under Shia Law.—By the wife's req4inents in respect of food, clothing,
residence, service, etc. Regard would al/flc made to the custom of her equals,
among her own people in the same city.
Since both the Hedaya and /atva-i-A1aingiri support the view that
maintenance should be fixed with due regard to the condition of both the

117. Ibid, at p. 231.

118. Wilson, atpp.23-33. -
119. Tyabji, at p. 319.
 MAINTENANCE (NAFAQA) 219
viii]
husband and wife, hence this view "would no doubt find favour with the Courts
in India". 120
When payable.—Maintenance becomes due from month to month unless
otherwise directed by the Court. According to Shia Law, however, the
maintenance amount becomes due from day to day.
Devolution of liability where the person primarily liable to pay
maintenance is poor.—A is a poor person having a son B,
also poor, a full
brother C, consanguine brother D, and a uterine brother E.
B, if rich,
Here, if A dies first, B would be his sole heir, and therefore
would be solely chargeable with A's maintenance. But since B is poor, he is
supposed to be non-existent so far as duty of maintenance is concerned. The
duty of maintaining A devolves upon those who would on that supposition
D,
have been A's heirs, namely, C and E, in the proportion of 5/6th and 1/6th.
the consanguine brother, would have been excluded from the inheritance by C,
the full brother, and will, therefore, be exempted from the burden of A's
maintenance)2'
According to Shia and Shafli Law, however, there is no legal obligation to
maintain any relations other than descendants and ascendants. Thus, brother,
sister, uncle and aunt, etc., for example, need not be maintained.
According to Muslim Law, the right to maintenance is lost on apostacy. The
Caste Disabilities Removal Act, 1850 provides, however, that a Muslim is bound
to maintain relations even after they apostatise. But whether the apostate himself
would be bound to maintain his Muslim relations is a point which is still not
clear.
F. LIABILITY UNDER THE ENACTED LAWS
Besides the above personal law position, the Criminal Procedure Code,
1973, and the Muslim Women (Protection of Rights on Divorce) Act, 1986 also
deal with the subject. Section 125 CrPC requires a person having sufficient
means, to maintain, besides his wife, (a) a minor child, legitimate or illegitimate
who is unable to maintain itself, including a minor married daughter whose
husband has no sufficient means to maintain her; (b) a major child who is so
disabled as to be unabI6 to maintain itself; (c) his parents unable to maintain
themselves. The maximum burden with respect to any person can be Rs 500 per
month. The First Class Magistrate of the area has been empowered to order the
payment of the maintenance, and can imprison the defaulter up to one month for
each month of default. This section applies to all persons irrespective of their
religion. The object of the section is to avoid vagrancy. It is a summary

120.Ibid, at p. 320.
121. Wilson, at p. 233.
 220 MUSLIM LAW [CHAP.

procedure for speedy remedy. It leaves unaffected the question of personal law
rights for which the civil courts have jurisdiction. On a decision by a competent
civil court calling for cancellation of his order, the Magistrate will do so under
Section 127. He may also vary his original order on proof of a change in the
circumstances. The civil court at the time of making a decree, will also take into
account the amount received as a result of the Ma gistrate's order [Section 127(4)1.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 states in
Section 3(1) that 'Notwithstanding anything contained in any law for the time
being in force, a divorced woman shall be entitled to—(b) where she herself
maintains the children born to her before or after her divorce, a reasonable and
fair provision and maintenance to be made and paid by her former husband for a
period of two years from the respective dates of birth of such children.' The Act
makes the child only a medium entitling her to the particular right. The child is
only indirectly a beneficiary through her. It is she who will receive that amount
as her maintenance allowance. The section speaks nothing about spending that
amount on the child.
Whether the Family Courts have jurisdiction.—In 1996 the Allahabad
High Court had held that the Family Court had jurisdiction in respect of
application for maintenance etc. under Section 3 of the Act. 122 In 2000 the
Andhra Pradesh High Court has held that in such matters the Family Court had
no jurisdiction. onl y the Magistrate can adjudicate them. 123 This view seems to
be more in consonance with the wordings of the Act and its Rules.
Law Relating to Maintenance in Several Muslim Countries

Almost all muslim countries today have modernised their laws relating to
maintenance of women, children, old parents and deprived relations, and have
switched over to Shariat based yet progressive philosophy oriented legislation.
To begin with, Pakistan and Bangladesh have established 'Arbitration Councils'
for the neglected wife; she can appeal there against her husband to seek an order
by the court to provide her maintenance for her livelihood. In Brunei and
Malaysia the Shanat Courts have been armed with sufficient powers to reach
relief to such wives. The religious councils, state customs and 'Kathi's Courts
Enactment, 1955 have been empowered to apply the classical Islamic Law based
on Shariat principles to such effect that the neglected married woman can obtain
an order from the Court of 'Kathi' (as called there) compelling the husband to
make payment of maintenance from time to time. The wilful failure of husband
to comply with such order can put him behind bars for a small period.
In Iraq, this jurisdiction is vested in Kazi. There, the wife's right to receive
maintenance is not adversely affected by her richness, illness or by the fact of

122.Mo/id. Sayeed v. Rehana Begum,396 All U 1382.

123.Painam v. P. Ashia, (2000)3 ALT 571.
 VIII] MAINTENANCE (NAFAQA) 221

belonging to another religion. She can validly refuse to live with him if he
withholds her nzahr or neglects to maintain her; in such conditions she can live
with her parents and still claim the maintenance allowance. Obedient wife's
maintenance is a debt on the husband. Membership of another religion is no bar
in Jorden also. In Egypt, Iraq, Morocco and Yemen maintenarn includes food,
clothing, residence, medical treatment and some other expenses recognised by
laws. If the wife was Muslim and converts to another religion after marriage, she
loses her right to maintenance. Right to accommodation includes separate
accommodation if the husband brings a co-wife without her consent. Even if the
accommodation provided by him is not suitable to her standard or is situated too
far from her place of work to enable her to simultaneously look after her
household duties and official duties, she can refuse to accept it, it will not
amount to disobedience. But the criterion of obedience is not left to unilateral
decision; the court is precluded from passing an order of 'disobedience' as long
as the wife justifies her disobedience. Similarly, no obedience against the rules
of Shariat can be demanded. In such cases maintenance will be intact. The Iraqi
statute also provides that where the husband leaves his wife without support and
hides himself or disappears, or has gone missing, the quadi can order
maintenance for her from his property. Under Tunisian statute the husband who
absconds leaving his wife unattended is ordered by the court to return within one
month, failing which, the wife is given option to dissolve the marriage.
In Yemen and Somalia both the husband and wife are obligated to bear the
expenses of marital household; however where either is not in a position to do
so, the other must pull the cart alone. The expenses are to be shared in proportion
to income.
The liability of maintenance of the wife after dissolution of marriage is'
interlinked with idclat period in almost all muslim countries. In Algeria the
period of iddat is three months. On failure, the claim must be presented within
one year. In Egypt, where the marriage has been consummated, the divorcing
husband shall have to pay her the maintenance allowance for the iddat period
plus Mata - which is an amount equal to two years' maintenance allowance. He
can make this payment in instalments if he so opts. In Labanon, the period of
iddat for a separated wife after retirement (khilwat) is three menstrual courses, if
she is not pregnant and has not attained the 'age of despair'. In pregnancy this
period extends to delivery. But where the husband dies, the widow has been left
unattended by the law, even when the pregnancy is in progress. The statute of
South Yemen declares that if a discordant husband divorces a wife who was at
no fault he will pay maintenance for one year. That is a 'compensation' to be
obtained by her through the court. The Syrian Code declares that maintenance
during iddat is like maintenance during marriage which can be extended to a
maximum period of nine months. Brunei Darussalam and Tunisia also make
provisions for maintenance during iddat, and/or pregnancy, as the case may be.
222 MUSLIM LAW [CHAP.

Divorced woman with children

The Islamic countries provide for some additional benefits to the divorced
wife having small children. Mother's right to the custody of children is normally
not affected by divorce. The classical principle is that when deprived of
matrimonial home, she should be provided with shelter for her and her children.
In Algeria if the Qadi is of the opinion that the husband has misused the power
of Talak, he can order payment of compensation to the wife. She can demand
accommodation from the husband for herself and her children. In Malaysia this
right to residence can extend to expiry of iddat period, or children's guardianship
period, or her entering in another marital relationship. Egyptian law also requires
the husband to provide independent accommodation to the minor children and
the divorced wife both, otherwise she can retain possession of the matrimonial
home till they remain under her guardianship. Indeed in Iraq, there is special law,
entitled the Law of Divorced Wife's Right to Residence, 1983'. During the
hearing of the matter for the dissolution of their marriage, the Court can pass an
order for her independent residence and in execution order eviction of the
husband to make it available to her. (The Qadi in Egypt can also offer her an
option for rental from her husband for a suitable residence at other than the
matrimonial home.) The Iraqi law however does not allow her these facilities if
she independently owns a house or a flat. The Tunisian Code of Personal Status
goes one step further: first of all, the Court must be satisfied that reconciliation is
no more possible, then only me divorce decree can be passed; and while passing
the decree the court, even at its own provide for all important matters relating to
the residence of the divorcee, her maintenance, custody of the children and
schedule for meeting them. Of course, any of the parties are free to forgo any of
these rights. The husband is also bound to pay her remuneration for suckling and
keeping custody.
Remuneration for Suckling.— is provided to the divorced Muslim wife in
many Islamic countries. When she is with her husband and during iddat period
following revocable divorce the wife is not entitled to such right. But following
an irrevocable divorce, during iddat and afterwards also the wife owns the right
to remuneration for suckling. In the personal laws of Jordan, North Yemen,
Somalia, Syria, Tunisia such statutory provisions are incorporated. In North
Yemen this type of payment is to be made 'for reasonable period, not exceeding
two years'. The Iraqi Code describes 'the cost of child's fosterage to be like that
for food'.
Maintenance of Children.— This is the responsibility of the father in
generally all the Islamic countries. No doubt it extends to that period also during
which the child is in the custody of mother. This period ranges from 7 to 12
years, in some countries (Somalia, South Yemen) 15 years, in Algeria and
Morocco till puberty or marriage of the female child. During this period the
divorced mother can demand recompensation for the amount spent on the child.
Viii] MAINTENANCE (NAFAQA) 223

In a divorce by mutual agreement the talaknama may mention the amount agreed
by both for spending on the child. In Algeria the maintenance of the daughter is
father's liability till she joins her husband after marriage; in the case of son it
extends to his age of majority (Algerian Family Code, 1984). Physically or
mentally handicapped children and the school going ones are to be supported
further till they recover or finish their education and start earning on their own.
In Iraq if the boy is unable to earn, the father's liability continues further. In
Jorden the expenses on son and daughter's education is to be wholly born by
father. In Egypt also the son can demand expenses from father for his education
upto the level of his other peers. According to the Moroccan Code the father's
liability to maintain his son runs up to the completion of the latter's education or
attaining 21 years of age. This liability does shift from father to mother if the
former is indigent; and an affluent son has to fend for himself. In South Yemen
both have to share in proportion to their capacity.
Maintenance of Parents and Relatives
Classical Muslim Law requires the children to maintain their parents and
needy relatives. This principle is accorded recognition in modern times in the
enactments of many Muslim countries. Though wife can demand an
'independent matrimonial home', yet the husband can give shelter to his parents
in the same house. Thus the 'Codes of Personal Status' - i.e. family laws of
Iraq and Jordan require son and daughter to maintain needy parents; provided the
latter are incapable to earn. Deliberate idleness may deprive the parents of this
facility. In North Yemen this right is extended to grand parents and other
relatives also, in order of priority, i.e. mother first, then father, grand parents and
relatives, in that order. In Iraq this liability is linked to inheritance from the
receiver of help in proportion. In Syria and Tunisia the liability of the supporter
is in proportion to his or her financial condition 124.
More Recent Developments.—The ' double protection' under Section 125
CrPC and Section 3 of the Act (1986) has sometimes caused a needs' Muslim
woman costly entanglement in procedural wrangle about whether the case should
have been heard under CrPC or the Act. This could delay the relief or even
frustrate it. Now the Supreme Court has held that Proceedings under Section 125
CrPC are civil in nature. Even if the Court (i.e. trial court) notices there was
divorced woman in the case in question, it was open to him (sic) to treat it as
petition under. the Act considering beneficial nature of the legislation.
Proceedings under Section 125 CrPC and claims made under the Act are tried by

124. 'Maintenance of Woman and Children under Muslim Law: Legislative Trends in Muslim
Countries', M. Af)al Wani, (2003) 45 JILl 409 - Author is indebted to this Article for the
topic. The Family Law Special issue of this number of the JILl is highly useful to the LLM
students.
Note:—The above narration is in a summary version of the referred Statutes. Consulting
original enactment is always advisable for authenticity.
 224 MUSLIM LAW

the same Court. In this case it took the deserted woman 16 long years to get the
final relief, and they were married some 47 years back and in one of the several
arguments of the husband he had stated that he had talaked her 30 years back
(without proof). 125 This was a judgment by Justice Dr. Arijit Pasayat. Six months
later in Chaurbhuj v. Sita Bai, 126 in which a petition was filed by one Chaturbhuj
against the decision of Madhya Pradesh High Court upholding the order of the
lower court under Section 125 CrPC granting maintenance allowance to his
deserted wife Sitabai, Justice Pasayat held that even a deserted
wife was entitled
to maintenance allowance. The learned Judge said that ordering a husband to pay
maintenance allowance to his deserted (not 'divorced') wife did not amount to
awarding him punishment; it was reminding him of his social obligation towards
his wife and compelling him to fulfil it.
Is consummation (of marriage) a pie-requisite for entitlement to the benefits
of Section 3 on divorce? This question arose in TK. Moidu Haji v.
Konnapalarkandy Mariyam. 127 The husband objected to the order of the
Sessions Court awarding the divorced wife certain sums for maintenance during
iddat period and fair provision for subsequent life, on the ground that the person
he married at the age of 73 and lived with for 4 years was found by him to be
dispossessed of the attributes of womanhood and therefore their marriage was
never consummated and hence she was disqualified to be called a divorced wife,
resulting in her disqualification to claim the benefits of Section 3 of the Act.
Rejecting the plea about absence of physical attributes for want of proof, the
Kerala High Court held that consummation of marriage can be presumed in this
case by applying the Muhammadan Law principle of 'valid retirement' (Khilwat-
us-Sahiha), as they lived together for at least 3 years. According to Mulla valid
retirement is equal to consummation. Moreover, the Court said, Section 3 of the
Act does not prescribe consummation as a sine qua non for entitlement.
Second question raised by the petitioner was 'is the court debarred from
entertaining an application under Section 3 before the expiry of the ic/i/at
period'? The High Court said that on the contrary the concern shown by Section
3 for the plight of the women on divorce establishes that the Act intents that
relief must be available to her immediately on divorce; in fact within one month
of the receipt of the application.

125. !qbal Bano V. Slate of UP.,

(2007) 6 SCC 785: (2007) 3 SCC (Cri) 258: (2007) 2 DMC 1
(SC), decided June 2007: (2007) 6 SCC 785: (2007)3 SCC (Cr1) 258.
126.(2008) 2 SCC 316: (2008) I SCC (Cri) 356.
127.(2007) 1 KLJ 314.
 Ix
Wakf
1. Importance
The doctrine of wakf which is "interwoven with the entire religious life and
social economy of Muslims" has laid down the foundations of one of the most
important institutions of the community. In India alone, "there are more than a
lakh wakfs valued at more than a hundred crores of rupees". 2 Considering their
number and resources, wa/cf can become a strong instrument not only for the
preservation of religious, charitable and philanthropic institutions, but also for
the educational and economic development of a community which is fast falling
behind in both these spheres.
2. Constitutional position
The subject wa/cf is relatable to Entries No. 10, "Trust and trustees" and No.
28, "Charities and charitable institutions, charitable endowments and religious
institutions" in the Concurrent List attached to the 7th Schedule to the
Constitution of India. Supervision over the administration of wakfs is, therefore,
the responsibility of both the Central and State Governments.
Article 26 of the Constitution gives freedom to every religious denomination
to establish and maintain its religious and charitable institutions subject to public
order, morality and health. They are also allowed the right to administer the
properties of these institutions in accordance with law. It means that the State
can regulate the administration of trusts and wakfs by means of validly enacted
laws.
Article 26(c) coners on religious denominations a fundamental right to own
and acquire property. In view of the nature and objects of religious
denominations the framers of the Constitution showed a great foresight in
separately investing these juristic persons with the institutional property right

I. Ameer All, Vol. 1 at p. 193.

2. Vide, speech of Prof Humayun Kabir, the then Minister of Scientific Research and Cultural
Affairs and Wakfs, in a meeting of Muslim Members of Parliament, held on i-9-1963, in New
Delhi to consider matters relating to Wakf. See, Mimeographed copy of circular issued by the
Wakf Section, Ministry of S.R. and C.A., September 1963.
 MUSLIM LAW [CHAP.
226

independently of the citizen's personal property right under Article 19(1)0 (now
extinct). The need for finances to run a religious denominational institution can
hardly be overemphasised. The religious freedom of a denomination can be
quickly eviscerated indirectly by stripping it of its property and finances. The
court had cautioned against such misuse of acquisition power by the State under
Article 31 as would destroy a denomination's right under Article 26(a) ever for
its survival. Property rights of the public religious denominations under clauses
(c) and (d) of Article 26 are subject to the public trust laws regulating religious
and charitable endowments. The motive of these laws is to see that the property
is utilised for the objects determined by the founder donor, also for the spiritual
benefit of the devotee public. The courts have held the right under clause (c)
amenable to State power of acquisition and control, and various religious
institutions have been divested of their vast lands and buildings. There is a
generic difference between personal property right and denominational property
right; the latter serves larger social interests of at least a section of the society,
and that too not at the cost of any other segment. A tight control on the religious
trust properties is most welcome in the light of the experiences of unabashed
avarice of many pontiffs; however, State laws should not only not make the
survival of denominations difficult, but, as a Welfare State, facilitate the
legitimate expansion of their religio-philanthropic activities. Towards this end
lesser nibbling at ownership, contra managership, is necessary.
Clause (d) of Article 26 confers a separate fundamental right on
denominations to administer their property according to law. The Mussulman
Wakf Validating Act, 1913 is one example of such law. The courts have held that
in the ultimate analysis the law should not divest the denomination of this right.
The head of the institution where a denomination is concerned, like a dargah, the
dai or mutawalli—is the human repository of this denominational right (to
administer property). He has, however, absolutely no monopoly over the trust
management. He must manage it in coordination with the State appointed
authorities called Boards, Committees, etc. In case of defalcation of trust funds
he is liable to eviction. To safeguard religious autonomy of the denomination,
the trust body must necessarily comprise only the members of the denomination.
The State body is under obligation to respect the traditions of the denomination,
and the religious head can dictate, on basis of tenets which rites, ceremonies and
functions involving expenditure must be performed.3
The Wakf Act, 1995 provides a scheme for composition of the Wakf Board.
It has to comprise MPs, MLAs, lawyers and one Mutawalli, besides some
Government officers, and also one Shia [see, Section 16 (infra)]. The petitioners

3. See, V.P. Bharatiya, Religion—State Relationship and Constitutional Rights in India (Deep &
Deep 1987) at pp. 299-301.
 IX] WAKF 227

in Syed Shah Mohammed Al Hussaini v. Union of India 4, charged the scheme of

the Act as violating the freedom of conscience and denominational rights of the
Muslims. It was contended that the' religious wakf was being turned into
irreligious in the name of secularism. Thus, the Act violates Articles 25 and 26
of the Constitution. Rejecting these arguments the Karnataka High Court held
that under clause (d) of Article 26 a religious denomination has a right to own,
acquire and administer the property for the purposes to which it was dedicated
but only in accordance with law which means that the State can regulate the
administration of trust properties by means of law. The clause ensures that the
administration remains with the religious institution though it may be regulated
by law. Interference with matters essentially religious is prohibited. Quashing of
the scheme of Wakf Board would defeat the very purpose of the Act, viz,
preventing mismanagement of wakf property. The law thus protects the very
purpose of the religious wakf.
In short, while exercising the power to regulate the administration of trust
and wakf properties, the legislature cannot interfere with matters of religion.
3. Origin of wakf
The institution of wakf has developed with Islam. There were no wakfs or
any such parallel institutions in Arabia before the advent of Islam. Credit must
be given to the Muslim jurists for having developed the legal theory of wakf5
There is no mention of wakf in Koran. However, such Koranic injunctions
which deal with charity are at the root of the development and extension of
wakfs. Two of such Koranic verses are:
"And in their wealth the begger and outcaste had due share" (Koran,
26: 19).
"Ye shall never attain to goodness till ye give alms of that which ye
love, and whatever ye give, of a truth God knoweth" (Koran, 3 : 86).
A tradition on which jurists lay great stress and which may be assumed as
the basis of wakf, is that at the time of partition of Khyber, Caliph Omar acquired
some lands which were very valuable to him and asked the Prophet whether he
should give them away as sadaqa. The Prophet replied: "Retain the thing itself
and devote its fruits (usufruct) to pious purposes" (Habis asle wa sabbil
samarat). Omar did this with the provision that the land should neither be sold
nor bequeathed. He reserved it for the poor, needy relatives, slaves, wanderers,
guests, and for the propagation of the faith (ft sabil Allah).6

4. AIR 1999 Kant 112. For other point of this case see also infra, S. 16.
5. L.M.E. at p.205.
6. Heffening in Ency. of Islam, Vol. II at p. 1097.
228 MUSLIM LAW [CHAP.

4. Development and foreign influence

The institution of wakf came into its own after the death of the Prophet, in
the course of first century Al!. and assumed rigid legal forms in the second
century. Writing on wakfs in the Encyclopaedia of Islam, Heffening doubts that
some foreign influence might have worked on the development of this
institution. He observes that after the spread of Islam in various parts of the
world,
"...the Arabs found in the conquered lands foundations for the public
benefit, for churches, monasteries, orphanages and poor-houses (piac
causac) and may have adopted this form for the practice of charity
recommended by their religion. These endowments of Byzentine period
were inalienable, and managed by 'administrators', and were under the
supervision of Bishops ... "7
But this view is not acceptable to all. Very recently, a prominent authority
on wakf refuted this contention by observing that "the institution of wakf has
developed with Islam and . . .there is no evidence that such a complex system of
appropriating usufruct as a life interest to varying and successive classes of
beneficiaries existed prior to Islam".8
5. Meaning and definition of wa/cf
The word wakf literally means detention anci connotes tying up 01 property
in perpetuity.
According to Abu Yusuf, wakf is the detention of a thing in the implied
ownership of Almighty God, in such a way that its profits may be applied for the
benefit of human beings, and the detention when once made, is absolute, so that
the thing dedicated can neither be sold, nor given, nor inherited.
imam Muhammad does not subscribe to this view. He thinks that the right of
the walqf does not cease in the property until he has appointed a mutawalli and
delivered its possession into his hands.
Imam Abu Hanifa's view is entirely and basically different from the views
of his above two disciples. For him, wakf is the tying up of the substance of
properly in the ownership of the wakf (founder of wakJ). The ownership of wakf
is not extinguished unless the kazi pronounces an order to this effect. He fortified
his view by reference to a Tradition of the Prophet for the validity of sale of a
wakf property, and that no spiritual benefit could be derived unless the wakif
remained the owner of the wakf property. According to him, the wakf property
reverts back to its owner (wakjf) or his heirs in case the object fails. Moreover,
Abu Hanifa's thesis is that wakif's right could not come to an end without the

7. Ibid,atp. 1098.
8. L.M.E. at p. 205.
 IX] WAKF 229
ownership being transferred to some other person, for the law does not admit the
idea of a thing during its existence going out of the ownership of one owner
without falling into the ownership of another person.
In India, the view of Abu Yusuf is accepted. In some of the cases like
Kassimiah Charities v. Secy.. Madras State Wakf Board 9 and Moti Shah v. Abdul
Ghaffar K/ian' 0, it has been held that wakf means detention of the corpus in the
ownership of God in such a manner that its profits may be applied for the benefit
of His servants. The objects of dedication must be religious or charitable.
Delivering the judgment of the Privy Council in the famous case of Vidya
Varuthi v. Balusami Ayyar 1 1 , Mr Justice Ameer Ali said:
"(Muslim Law relating to wakfs) owes its origin to a rule laid down by
the Prophet of Islam; and means 'the tying up of property in the ownership
of God the Almighty and the devotion of the profits for the benefit of human
beings'. When once it is declared that a particular property is wakf, or any
such expression is used as implies wakf, or the tenor of the document shows,
as in Jiwan Doss Sahu v. Shah Kubeeruddin' 2 , that a dedication to pious or
charitable purposes is meant, the right of the wakf is extinguished and the
ownership is transferred to the Almighty. The donor may name any
meritorious object as the recipient of the benefit."
The Mussulman Wakf Validating Act, 1913 defines wakf in Section 2 thus-
'Wakf means the permanent dedication by a person professing the Mussulman
faith of any property for any purpose recognised by the Mussulman Law as
religious, pious or charitable'. (This definition has been held by the Privy
Council to be a definition for the purposes of the Act and not necessarily
exhaustive—see, Ma Mi v. Kallander Ammal t 3).
From the above it may be derived that the dominant characteristics of wakf
are:
(1) Religious or pious motive.—As should be clear from the words of
Section 2, the purpose of the wakf must be religious, pious or charitable
according to the tenets of Islam; the test, as Fyzee puts it, must be the Shariat;
any religious purpose would not do. For example, construction of a church or
temple, maintenance of a crematorium would be void objects, so also a merely
secular motive. Gajendragadkar, J. explained this point in Zain Yar Jung v.
Director of Endowments 14: " It is thus clear that the purpose for which wakf can
be created must be one which is recognised by Muslim Law as pious, religious or

9. AIR 1964 Mad 18.

tO. AIR l956 Nag 38.
II. (1921)48 IA 302.
12. (I840)2MIA 390.
13. (1927) 54 IA 23.
14. AIR 1963 SC 985.
 [CHAP.
MUSLIM LAW
230

charitable, and the objects of public utility which may constitute benefits under
the wakf must be objects for the benefit of the Muslim community. The Muslim
character of the wakf is also brought out emphatically by certain other provisions
of the Act. For instance the Board has to keep in mind the usage or custom of the
wakf sanctioned by Muslim Law. The Secretary of the Board shall be a Muslim,
so also the members. There is no prohibition against the creation of a secular
trust of public and religious character. Usually followers of Islam would
naturally prefer to dedicate their property to the Almighty and create a wakf in
(4th
the conventional Muhammadan sense. Tyabji writes in his Muslim Law
Edñ., P. 546) that a wa/cf and a trust have of course many things in common, but
they may be distinct in one respect—a wakf requires a religious motive, necessity
for such motive is all but forgotten by the Indian courts in giving decisions upon
a wakf case."
15, the facts
In Karnataka State Board of Wakfs v. Mohd. Nazeer Ahmad
were—one Fatima Bi dedicated her house by will for use of all travellers
irrespective of their caste, creed or religion and whether the y were rich or poor.
On these facts it was held—under Muslim Law a wakf should have a religious
motive and it should be only for the benefit of the Muslim community. If it is
secular, the charity should be to the poor alone. The Muhammadan Law
recognises the dedication the ultimate benefit of which is expressly or impliedly
reserved for the uoor or for an y other purpose recognised by Muslim Law as
religious, pious or charitable.
The dedication need not specifically be in favour of a place of worship,
Khankah, dargah, cemetery, etc. It is enough if the dedication is made for the
purpose recognised by Muslim Law as pious, charitable or religious) 6 Service
inam granted to individuals burdened with service for purposes which are pious,
religious or charitable, answers description of all ingredients of wa/cf)7 Grant of
wakf.
patta to service inamdars does not in any manner change the character of
The holder does not acquire title of that property.
pious dedication which is not permanent may be
(2) Permanent nature.—A
A dedication must not be bound by
sadaqa but cannot in law be termed as wakf.
time period in order to be a wa/c!; thus if it is limited to say, 50 years it will not
wa/cf deed contains a
be a wakf. It should also not be conditional; thus if the
condition that if the properties are mismanaged, these should be divided among
According to
the descendants of the wa/cl!, the wakf would not be complete. 18
FatawaiAlamgiTi even if it is not expressly mentioned that the dedication is

15. AIR 1982 Kant 309.

AIR 1985 AP 127.
16. A.P. Wakf Board v. SyedAli Mulla,
17. Ibid.
18. Habib v. Syed Wajihuddin, 1936 Oudh 222.
Ix] WAKF 231

permanent, it will be presumed once the word 'wakf is used. However, express
condition or time limit should not be there.
The dedication of property should be specifically provided by clinching
evidence. In the absence of any documentary evidence, an overall view of the
evidence on record is to be taken to establish that there is permanent dedication
of the property as a wakf) 9 If the nature of the dedication of the property does
not constitute a wakf within the meaning of the provisions of the Act, it must be
proved that it became a wakf by reason of long user. An admission of a party
must be clear and explicit in case where an inference is required to be drawn.20
One crucial point of distinction between sadaqa and wakf is the treatment of
the subject-matter. When the subject-matter of the gift, i.e. the corpus, is itself to
be consumed, it is a sadaqa. Thus, A gifts rupees ten thousand for purchasing
copies of Koran to be distributed free to the poor, it is a sadaqa; because, here
the corpus is to be consumed. On the other hand, A deposits rupees ten thousand
in a fixed deposit forever and provides that the interest is to be used every year
for purchasing copies of Koran to be distributed to the poor, it is a wakf, because,
the corpus will remain unconsumed, only the usufruct, the income will be
consumed or utilised. In both, the purpose is the same, but the treatment of the
corpus differs. Wakf differs from hiba (gift) also on the same count. In hiba the
corpus itself is transferred to the donee, who may do anything with it—keep it or
consume it or further transfer it. In wakf the corpus is immobilised or fixed, only
the usufruct is useable.
(3) Ownership of the Property vests in God.—In wakf the property is
dedicated to God, therefore, its ownership is transferred from the donor to God.
It is the special characteristic of a wakf that the ownership is tied up in God
and the profits are devoted for the benefit of human beings. According to Abu
Yusuf a wakf signifies the extinction of transferor's ownership in the thing
dedicated and the detention of the corpus in the implied ownership of God in
such a manner that its profits may revert to the benefit of mankind. The Supreme
Court has observed in Mohd. Ismail v. Sabir Au 21 , that even in a wakf-alal-aulad
(i.e family wakj) which is governed by the Mussalman Wakf Validating Act,
1913 the corpus is transferred to God and the property vests in Him; it does not
vest in the mutawalli or the beneficiary. An interesting case arose in this regard:
What happens to the wakf lands when zamindari rights are abolished and the land
rights vested in the cultivator? The wakf had created a wakf of his zamindari
lands in 1918. The U.P. Zamindari Abolition and Land Reforms Act, 1951
abolished zamindari and stipulated that the zamindari rights would be vested in
the cultivators. The Allahabad High Court held on these facts that when the wakf

19. Mohd. Riazuddin v. Govt. of A.P., (2000) 6 ALD 756 at p. 777.

20: M.P. WakfBoani--Sithhan-5Iw.h,2O06) 10 SCC 696: (2007) I An LD 86 SC.
21. AIR 1962 SC 1722.
 MUSLIM LAW [CHAP.
232

was created in 1918, the proprietary rights in the lands were vested in God and
He became Zamindar. On abolition of zamindari God became an intermediary.
One of the conditions under the Act [Section 18 (1)(a)] for favourable accrual of
bhuniidhari rights in the land was, the intermediary must be a khudkasht. The
court held that if the mutawalli was cultivating the land, then it would be deemed
to be the cultivation on behalf of God; and on that basis, the bhumidhari rights
could be conferred on God. 22 This legal fiction must apply to both—public as
well as private wakf without any distinction for one very cogent reason. If it is
held that in a wakf for alal-aulad (i.e. a family or private wakf) the properties
vest in the mutawalli or the beneficiary, it will create a legally heritable and
transferable estate in his hands. Then he cannot be divested of this property. In
that case the permanency of the dedication which is the fundamental feature of a
wakf could not be ensured. Therefore the legal fiction that the wakf property
vests in God must be adhered.
(4) The usufruct is utilised for the benefit of mankind.—That is, the corpus is
tied up in the name of God and the income accruing from that capital is the thing
which is spent for the realisation of the object for which that wakf was created.
Thus, the property remains fixed and its outcome is in flow.
The definition of wakf by Shias does not make it clear as to whom the corpus
belongs, that is, whether the ownership vests in God or in some one else. Tyabji,
however, says that accordin g to Shiite authorities. the comus belongs to the
beneficiaries.23
6. Kinds of wakf
Broadly, wakfs are of two kinds: public and private. But the most accepted is
its threefold classification—public, quasi-public and private.
(i) Public wakfs.—Those which are dedicated to the public at large having
no restriction of any kind regarding its use: for example, bridges, wells, roads,
t;t..
(ii) Quasi-public wakfs.—Those which are partly public and partly to
provide for the benefit of a particular individual or class of individuals which
may be the settlor's family.
(iii) Private wakfs.—Those which are for the benefit of private
individuals, including the settlor's family or relations. Such a wakf is termed as
wakf-aIal-aulad.
Muslim Law gives equal recognition to public and private wakfs. Both are
subject to the rules of divine property whence the rights of wakif are
extinguished and it becomes the property of God. Both of these are created in

22. Moatter Raza v. ft. Director, Consolidation, AIR 1970 All 509.
23. Fyzee, at p. 279 citing Tyabji, S. 538, n. 15. -
IX] WAKF 233

perpetuity and the property becomes inalienable. Like a public wakf, a private
wa/cf can under no circumstances fail and when the line of descent becomes
extinct, the entire corpus goes to charity.
A very clear definition and distinction is given by the Supreme court in the
latest judgment in Fuaad Musvee v. M. Shuaib Musvee 24 : ' In case of Public wa/cf
corpus as well as usufruct vests in God since usufruct becomes immediately
applicable to specified holy purpose. In case of Private wakf only corpus of
property vests in God immediately and enjoyment of usufruct (for pious purpose)
is postponed till extinction of wakf, his family and descendants. Public wa/cf is
one for religious, pious and charitable purpose, whereas private wa/cf is one for
benefit of settlor's family, descendants. A Private wa/cf to be valid shall reserve
ultimate benefit for a purpose recognised by Muslim Law as religious, pious and
charitable. Private wakf is not invalid, merely because ultimate benefit reserved
for religious, pious and charitable purpose is postponed until after extinction of
family/descendants of the waJ4f'
Note, that 'if under the wakf deed, a portion of the income from wa/cf
property is to be spent for the family apart from pious etc. purposes, it satisfies
the character of Private wakf i.e. Wakf-alal-aulad.25
In Abdul Satar v. Advocate GeneraP6, Beumont, C.J. observed: "It is
impossible to contemplate property transferred to Almighty God subject to
condition enforceable in the temporal courts for recovering that property for
benefit of the settlor." However, the rule of irrevocability does not apply to the
following conditions—wakif reserving power to alter the beneficiaries, add to
their names, exclude some names, change the mutawalli, change the procedure
and rules, modify instructions for its management.
But we must distinguish between an inter vivos wa/cf and a testamentary
wakf. The latter is technically only a bequest—a will, and comes into operation
after the death of the wakf. The settlor can change or revoke it before his death.
He may provide that the testamentary wa/cf will not come into force if he begets a
child.
7. Legal incidents of wakf
There are three legal incidents of wa/cf irrevocability, perpetuity and
inalienability.
(i) Irrevocability.—According to Abu Hanifa, a wa/cf can be revoked by
its founder unless the declaration has been confirmed by a Court decree.
However, Abu Yusuf took a contrary view and held that a declaration of wakf is,

24. (2008)4 CTC 59 (Mad).

25. T. N. Wakf Board v. Larabsha Darga, (2007) 13 SCC 416.
26. AIR 1933 Born 87.
 234 MUSLIM LAW [Cp.

in its nature, irrevocable. That is, a wakf cannot be revoked after the declaration
has been made, nor can the power to revoke be validly reserved. It is the opinion
of Abu Yusuf which prevails in India.
The Supreme Court once more declared that once a wakf is created it
continues to retain such character which cannot be extinguished by any act of the
Mutawalli or anyone claiming through him. A wakf was created by one M of his
entire properties in 1926 and registered under the U.P. Muslim Wakfs Act and
also notified in Official Gazette. M appointed his son P as Mutawalli. 32 years
later the wakf filed a collusive suit which was decreed on compromise;
immediately M and P transferred the disputed plots to the present appellant.
When these facts came to the notice of the Shia Central Board of Wakf,
Lucknow, it requested the Deputy Commissioner to direct the appellant to hand
over the plots to the Secretary of the Board. In the legal battle the appellant lost
in the High Court and the Supreme Court also. The Supreme Court held that
wakf stands diverted of his title of the properties which after creation of the wakf
vest in the Almighty.
The Supreme Court also said that the creation of a wakf may be questioned if
it is shown that the wakif had no intention to create a wakf but had done so to
avoid a liability. 27
(ii) Perpetuity.—Wakf must be perpetual. If it is for a limited period, or
for a temporary purposc, it is void. According to Farawa-i-Alamgiri, "Perpetuity
is also among the conditions of wakf according to all opinions, though according
to Abu Yusuf the mention of it is not a condition, and this is correct". 28 Thus, if a
man says 'I make this dedicatio', on my children' and adds nothing further, it is
a valid wakf. Wherever the term wakf is used, permanence will be presumed as a
matter of law. The rule against perpetuities does not apply over wakfs.
The perpetuity of wakf does not imply perpetuity of its object. Thus, if a
wakf is created for purposes which may fail or which are not perpetual, the view
of Abu Yusuf is that the wakf is valid, and that its benefits will accrue to the poor
after the named objects cease. About the implied permanency of a wakf there
were two schools of opinion. One school, that of the followers of Abu Hanifa,
maintained that to impart permanency, it must be expressly mentioned that the
ultimate benefit was reserved for the poor. Abu Yusuf, on the other hand was of
the view that permanence was implied in the use of the word wakf by the settlor.
His view was followed by Ameer Ali and accepted by the Madras High Court in
Syed Ahmed v. Julaiha Bivi29. Bombay High Court preferred Hanifa's view.
Now the controversy is settled in favour of Yusuf's view with the use of the
expression 'expressly or impliedly reserved for the poor or any other purpose

27. Chhedi La! Misra v. Civil Judge, (2007)4 5CC 632.

28. Fatawa-i-Alamgiri, Vol. Hat p. 459 cited by Ameer Ali, Vol. Iatp. 187.
29. 1947 Mad 480.
Ix] WAKF 235

recognised by Mussulman Law as religious, pious or charitable purpose of a

permanent character' in Section 3 of the Mussalman Wakf Validating Act, 1913.
(iii) Inalienability.—As the wakf property belongs to God, no human
being can alienate it for his own purposes. Consequently, wakf property cannot
be the subject of sale, mortgage, gift, inheritance or any alienation whatsoever.
This general rule has two exceptions: wakf property may he exchanged for an
equivalent property, or sold, subject to compulsory reinvestment of the price in
another property. The power of exchange and sale is subject to the permission of
the Court. These exceptions to the rule of inalienability are, therefore, more
apparent than real, since a new corpus is substituted for the old one and the
continuity of wakf is maintained.
What is emphasised is the authorisation to the mutawalli. Legally his
position is that of a manager only; he is not an owner of the wakf property.
Therefore he cannot alienate the wakf property without express authorisation by
either the settlor or the court. Thus in Mohd. Yusuf v. Mohd. Sadiq30 the wakf
deed directed the mutawalli to sell the wakf property and construct a rest house at
Mecca from the sale proceeds. The court upheld this authorisation. The court can
also grant him permission, and with such prior sanction he can transfer the
property by way of sale or mortgage, etc. Any alienation without the prior
sanction is not void ab initio, but voidable on challenge by any beneficiary. A
lease of the wakf land for more than three years if agricultural land and for more
than one year for other land also requires prior permission of the court or
authorisation by the settlor.
'Any lease of immovable property of wakf exceeding 3 years is void ab
initio; grant of lease for 11 months with intention to continue as permanent base
is unsustainable. Mutawallis who are hereditarily holding office are entitled to
give on lease jointly - lease deed executed only by one Mutawalli is therefore
not valid. '31
8. Creation of wakf
Is any formality necessary?—No. There is no essential formality or the use
of any express phrase or term requisite for the constitution of wakf. The law
looks at the intention of the donor, in whatever language it may be expressed or
in whatever term the wish may be formulated.
In one case3 , decided by the Supreme Court it was held that-

30. AIR 1933 Lh 501.

31 If 1a'atha1hi v.Larab.tha Dharga, (2007) 2 MJ 1034. Also Mohd. Mazhar Shaheed V.
List. ('ollec:or, Mu ' 1'o.Arnagar, (2005) 2 An LI 234.
3. (kirth Das. lIlA liamid, AIR 1970 SC 1035.
236 MUSLIM LAW [CHAP.

"A wakf inter vivos is completed by a mere declaration of endowment

by the owner ... this view has been adopted by the High Courts of Calcutta,
Rangoon, Patna, Lahore, Madras, Bombay, Oudh Chief Court and recently
by the Allahabad High Court and the Nagpur High Court. Further, the
founder of a wakf may constitute himself the first mutawalli and when the
founder and the mutawalli are the same person, no transfer of physical
possession is necessary. Nor is it necessary that the property should be
transferred from the name of the donor as owner into his name as mutawalli.
An apparent transaction must be presumed to be real and the onus of proving
the contrary is on the person alleging that the wakf was not intended to be
acted upon."
It is not necessary that a wakf should be made in writing. All that is
necessary in constituting a wakf is that some sort of declaration, either oral or in
writing must be made. Although oral wakf is permitted, yet when the terms of a
wakf are reduced to writing, no evidence except the document itself would be
sufficient to prove it.
Ordinarily, no registration is required for a wakf deed. Yet when it relates to
an immovable property worth more than Rs 100, registration is essential.
The Uttar Pradesh Muslim Wakfs Act, 1960 provided that every wakf, not
registered under the Muslim Wakfs Act, 1936, whether created before or after the
commencement of the U.P. Act, shal! be registered t the office of the Board cf
the sect to which the wakf belongs. The mutawalli had to submit the application
for registration in 3 months of his entering into possession of the wakf property.
The consequences of his failure were certain amount of penalty to be paid by
him. The "registration" required under the U.P. Act was not a registration under
the provisions of the Indian Registration Act. It cannot be pleaded that non-
registration of the wakf within the period as provided by the U.P. Act will cancel
the wakf or prevent the Courts from recognising it.
It was repeatedly held by the Privy Council and the various High Courts of
India that neither the use of the word wakf nor express dedication of the property
to the ownership of God is essential for the creation of wakf. Any implied
expression is enough for this purpose. Thus, if a man says, "This my land is
dedicated, consecrated, not to be sold, inherited or given by gift", all these words
would create a valid wakf.
Wakf is also created by 'long user'. In cases where there is no evidence to
show how and when the alleged wakf was created, the wakf may be established
by evidence of long user. In another case 33 it was held by the Supreme Court that
a land adjacent to a Mosque would become wakf by user if it had been used by
the public for religious purposes along with the mosque.

33. Mo/id. Shah v. FasthuddinAnsari, AIR 1956 SC 713.

IX] WAKF 237

Whether delivery of possession and appointment of ,nutawalli are

necessary for the valid creation of wakf?—According to Abu Yusuf, a
dedication of wakf is complete by mere declaration. Neither delivery of
possession nor appointment of mutawalli is necessary. But where no details of
oral gift are disclosed nor the date on which "gift" was given, subsequent
conduct of the parties also negating such "gift", name of the "donor" was shown
as owner in the relevant records and properties were also not transferred in the
name of the "donee" -- the 'oral gift' was held as not proved and the plaintiff
was allowed p6ssession.34
The view of Imam Muhammad, however, is that a wakf is not complete
unless there is declaration, coupled with-
(i) Appointment of mutawalli, and
(ii) Delivery of possession to him.
In India, the view of Abu Yusuf is law for Hanafis. Under Shia Law, no
doubt, delivery of possession to the first person in whose favour the wakf has
been created is essential. And in public wakf, a mutawalli has to be appointed to
take possession.

9. Who can create wakf

A major person of sound mind can validly create a wakf, provided there is no
fraud, undue influence or coercion, and he should not be suffering from death-
illness (maraz-ul-maut), whereas he cannot dedicate more than one-third of his
estate unless heirs give their consent. Muslim Law recognises maraz-ul-maut
gifts (infra) and also maraz-ul-maut wakfs. When a person suffering from such
illness as culminates in his death creates a wakf on his deathbed and dies, it is
called ,naraz-ul-maut wakf. Such wakf takes effect as a bequest and only one-
third of the property gifted is treated as given in wakf. However if his heirs
consent, the whole property is covered by the wakf. So also if he survives his
illness. If some of his heirs consent while others do not, then the wakf is valid in
proportion to the shares of the consenting heirs. The wakf (who creates the wakf)
can be Muslim or a non-Muslim. The only restriction is that the object of wakf
should not be opposed to the creed of dedicator. Thus, a Muslim cannot dedicate
in favour of an idol or temple, and a Hindu or Christian in favour of a mosque. In
this connection, it is interesting here to mention that a problem has been asked in
a University examination that whether a wakf created by a Muslim in favour of
the Banaras Hindu University would be valid. It is submitted that such a wakf
shall be valid, because, the Hindu University is simply an educational institution,
though established mainly for Hindus but its doors are open to Muslim students
too, and hence, Hindus, Muslims and others all derive benefit from it. Such

34. A.M. K. Mariam Bibi v. M.A. Abdul Rahi,n, 2000 AIHC 661.
 238 MUSLIM LAW [CHAP.

propagation of secular knowledge is in keeping with the spirit of Islam.

Similarly, a wakf by a Hindu in favour of the Aligarh Muslim University shall be
perfectly valid.
The wakf should be the owner of the property he is dedicating.
There is some conflict as to the validity of wakf created by an apostate. Few
jurists hold that such wakfs are valid, if created for poors and for pious purposes
and not for individuals. Whereas others say that wa/ifs by apostates are void in all
cases. According to Ameer All, the former view is generally preferred. 35 The
Andhra Pradesh High Court had held that a non-Muslim could also create a wakf
for any purpose recognised by the Muslim Law provided it was lawful according
to his own religion. 36 But these views have no utility now in the context of the
1913 and 1954 wcikf statutes which define wakf as a dedication by a Muslim.
Where the wakJf is a pardanashin lady, it is presumed that she does not
understand the full implications flowing from the act of her creating a wakf, and
hence, if she later on denies saying that she did not intend to create wakf, it will
be rendered void. 10 Deiwu.s Banbo Begam v. Nawab Athgar Aii, it was held
by the Calcutta High Court that Deiroos Banoo "has been examined and she
swears positively that she did not understand the meaning of the deed which she
executed. At
.. is, moreover, hardly likely that Delroos Banoo Begam had known
what was the real effect of making a wakf...... It was thus held that the
tau1iat,iam'h executed by her did not create

10. What can be made as wakf

According to Abu Hanifa and Abu Yusuf, only immovable property can be
made wakf. The only exception which Abu Yusuf allows is for the beasts of
burden and weapons of war, which according to him can be made wakf. Imam
Muhammad, however, holds that all articles or movables that can be subjected to
the dealings and transactions of men, may lawfully be dedicated as wakf. This
opinion of imain Muhammad is followed in India. Thus, wakfs of the following
movables are valid:
(i) Koran for reading in mosques, etc.;
(ii) Working cattles and instruments of husbandry;
(iii) War horses, camels and other animals;
(iv) Swords;
(v) Chest of money for loans to the poors;
(vi) Shares in companies;

35. Arnecr Au, Vol. 1(2nd Edn.) at p. 161.

36. Mundaria v. Shywn Sunder, AIR 1963 AP 98.
37. I5BengLR 167.
Ix] WAKF 239

(vii) Securities, etc., etc.

The Wakf Validating Act, 1913 has permitted a wakf of "any property". This
broad term naturally includes movable property.
As to the validity of wakf of mushaa or undivided shares in a property which
is capable of division, Imam Muhammad holds that wakf of mushaa is unlawful,
while according to Abu Yusuf, it is valid. In India, the view of Abu Yusuf is
followed. But about wakf of mushaa for a mosque or burial ground, he has
declared that it is invalid. He gives two reasons one of which is that the
continuance of a participation in anything is repugnant to its becoming the
exclusive right of God. However, it has been held by the Calcutta and Allahabad
High Courts that a wakf of mushaa for the maintenance of a mosque is valid.38
11. In whose favour can wakf be made
Muslim Law does not insist that a man must necessarily be poor to have
benefit of a wakf. All persons, whether rich or poor, may be beneficiaries. But,
when the objects of wakf become impossible or extinct, the inherent ultimate
purpose of every wakf is, no doubt, the relief of the poor and destitute.
Following may be the beneficiaries:
(i) The wakf himself (only in Hanafi Law);
(ii) The family and descendants of wakjf ; and
(iii) General public.
(i) Wakif himself.—This is recognised in Hanafi Law alone. The Shia
Law does not approve of it. The Shia authorities and also Imam Muhammad
argue that the wakif, having once relinquished his proprietary rights in favour of
God, cannot take any benefit from such property. 39 While Imam Abu Hanifa
argues that the wak f's interest in the dedicated properties continues even after
the creation of wakf; hence, there is no difficulty in allowing him to share with
others the usufruct of the wakf property.
In India, it is the opinion of Abu Hanifa that is followed in regard to Hanaf is.
Thus, a Hartafi Muslim may validly reserve the whole of the usufruct for his own
life or for a lesser period, or pay his debts out of wakf income. Thus, a Hanafi
female conveys her house to her husband upon trust to pay the income of the
house to her for her life, and from and after her death to devote the whole of it to
certain charitable purposes. This is a valid wakf, though the charitable trust is not
to come into effect until after the founder's death. 40 (Such a wakf is not valid

38. Mohd. Ayub Ali v. Amir Khan, (1939)43 CWN 118; Peeran v. Hafiz Mohd., AIR 8966 All
201.
39. Fyzee, at p.30l.
40. See, Mulla's Principles of Mohamedan Law (18th Edn.) by Hidayatullah, Tripathi, Born, at p
209 and the cases cited there.
 240 . MUSLIM LAW [CHAP.

under Shia Law.) According to Shia Law a wakf is not valid unless the settlor
divests himself of the ownership of the property and of everything in the nature
of usufruct from the moment the wakf is created. Hence the settlor cannot reserve
for himself a life-interest in the income or any portion thereof. But a Shia may
provide for the expenses of Roza, Namaz, Ha], Ziarat, etc. to be performed after
his death for his spiritual benefit.4'
(ii) Wa/iii's family and descendants.—Before 1913, wakfs created
substantially or exclusively for wakjf's family and descendants were treated as
invalid. But after the passing of the Mussalman Wakf Validating Act, 1913,
wakfs for the benefit of family are valid.
The term "family" has been liberaly interpreted by the courts, and has never
been confined to persons dependent fr maintenance on the wakif. In one case42
the Allahabad High Court observed:
"The word 'family' in Section 3(a) (of the Wakf Validating Act, 1913)
has to be given a wide and not a restricted meaning and a person may belong
to a 'family' if either he is from a common progenitor or if he is living under
the same roof and is being supported and maintained by the settlor. As long
as one of these two conditions are satisfied, the beneficiary would be a
member of the family within the meaning of the Act."
(iii) General public.— There is universal recognition of such wakfs which
are created for the public in general. This is in keeping with the spirit u
and the teachings of the Prophet.
12. Objects of wakfs
Wakf may be for the benefit of persons or for any object of piety and charity.
The term "charity" includes every purpose which is recognised as "good" or
'pious'. Every good purpose which God approves, or by which approach
(Kurbat) is attained to Him, is a fitting purpose for a valid and lawful waAf43
Objects of a wakf may be religious, charitable or private.
(i) Religious and charitable objects.—Religious and charitable objects of
wakf are so intimately connected with each other that sometimes it may not be
possible to make a distinction between them.
It is well settled that the object of wakf should not be in conflict with the
general religious policy of Islam. Religious purposes, however, do not include
such dedications as "solely to the worship of God", which is "an unmeaning

41. See, Mulla's Principles of Mohamedan Law (18th Edn.) by Hidayatullah, Tripathi, Born, at p.
211.
42. Abdul Qavi v. AsafAll, AIR 1962 All 364.
43. Ameer All, Vol. 1(3rd Edn.) at p. 216.
ix) WAKF 241

phrase in Islam", says Ameer Au, commenting on a Bombay High Court

decision.44
Charitable objects include giving to one's own family and descendants, and
such things in which rich and poor may be equally interested, for example—
Mosque; Imambara; Durgah; Khanqah, College and School; Hospital;
Reservoir; Roads; Bridges, etc.
Section 2(1) of the Wakf Act, 1913 permits wakf for any purpose recognised
by Muslim Law as religious, pious or charitable. Section 3(a) recognises wakfs
for maintenance and support, wholly or partly of the settlor's family, children or
descendants. Some illustrations are—dedication of property to support mosque,
feed travellers and educate poor students; remaining profits towards defraying
the expenses of the marriages, burials and circumcisions of the members of the
family of the person named as first manager of the endowment. Also, to provide
for supporting the needy relatives of the grantor, and the surplus of the income of
the property towards religious purposes. Also, the income of the shops to be
spent on the maintenance of the Mosque and the residue, if any to be paid to the
mutawalli as remuneration. On the other hand, the wakfnama would be
unsupportable if it allowed the mutawalli to appropriate, in the first instance
whatever amount he liked and to apply the remainder, if any, for the purposes of
the mosque.45
(ii) Private wakfs.--Wakfs in favour of one's own family may be termed
as private wakfs. They may be:
(a) exclusively for the family, or
(b) substantially for the family with some provision for charity, or
(c) substantially for charity with some provision for the family.
(a) Exclusively for family.—Delivering the judgment in Bikani Mia v.
Shuk Lal Poddar46, Justice Ameer Ali observed that a wakf exclusively for the
benefit of wak/'s. family without any provision for charity, was valid. But this
view was disapproved by the Privy Council which held that wakfs exclusively
for one's family was r o wakf. This view still holds good. The Mussalman Wakf
Validating Act, 1913 does not validate such wakfs which have no provision
reserving ultimate b;neflt to charity. Thus, for example, where a Muslim creates
a wakf in favour of his two wives, of his daughters by those wives, and for their
respective descendants, saying nothing as to the ultimate disposal of the property
on total failure of those descendants, the wakf is altogether invalid.

44. Ameer Ali, Vol. 1 at p.217, commenting on Abdul Gani Kasimv. Hussan Miya, 10 Born HCR
10.
45. See, Aquil Ahinad, at pp. 235-36, and the cases cited therein.
46. ILR(1893)20 Cal 116.
242 MUSLIM LAW [CHAP.

(b) Substantially for family with some provision for charity: The law
before 1913.—In Abul Fata Mahommed Ishak v. Russomoy Dhur Chowdr?7,
Their Lordships of the Judicial Committee, while dealing with wakf which was
mainly for the family with an ultimate benefit to charity, observed:
"A gift to the poor might be illusory from the smallness of its amount, or
from its uncertainty or remoteness; and that the period when this gift was to
take effect was so uncertain, and probably so remote, that the gift was
illusory. Therefore, according to Muhammadan Law, it did not establish a
wakf."
The Privy Council had thus held that as the gift to charity in wakf-alal-aulad
was illusory and that the object of the settlor was to create a family settlement in
perpetuity, the wakf was invalid. This decision was based on a faulty
appreciation of the principles of Muslim Law and led to great uproar in India.
Muslim public opinion was totally against it. The Government was compelled
and convinced to enact a special legislation—Mussalman Wakf Validating Act,
1913—to validate such waifs which stood invalidated b y virtue of the Privy
Council's decision, and all such future wakfs.
The Law after 1913.-The Wakf Validating Act, 1913 laid down that all
private wakfs which are substantially for family with some provision to charity
may even be impliedly made, and it will be inferred from the terms of the deed
and the circumstances of the case. Section 3 of the Act provides a Hanafi may
create a wakf for his own maintenance and support during his lifetime or for the
payment of debts out uf the rents and profits of the property dedicated. (This
clause does not apply to Shias). The ultimate benefit may be postponed until
after the extinction of the family or descendants of the creator (Section 4) and
now it is not necessary that there should be a concurrent gift to charity. The
ultimate gift need not be express, it may be only an implied gift [proviso, Section
3(1)(b)]. Section 5 further exempts from the provisions of the Act any local
custom prevalent among any class or sect of the Muslims.
(c) Substantially for charity.—The decision of the Privy Council in
Mo/id. Ahsanulla Chowdhry Amarchand Kundu 48 , shows that before the passing
of Wakf Validating Act, 1913, such wakfs were considered valid. And they are so
even today.
Wakf for Benefit of Humanity at large without reference to Religion
When the Supreme Court observed in Nawab Zain Yar Jung49 that the
beneficiary must be a member of the Muslim community, the law in force was
the pre-amendment 1954 Act, Section 3(a) of which defined a beneficiary as a

47. (1894-95)22 IA 76.

48. ILR (1890) 17 Cal 498 (PC).
49. Zain Yar Jung v. Director of Endowments, AIR 1963 SC 985.
IX] WAKF 243

person or object for whose benefit a Wakf is created and includes religious, pious
and charitable object and any other object of public utility "established for the
benefit of Muslim Community".
However, Section 3(a) was amended in 1964 by substituting words
"sanctioned by Muslim Law" in place of "established for the benefit of Muslim
Community". One of the issues in Kachchh Wakf Board v. Kachchh Meinon
Ja,nat50 was : can a grant for "Dharmashala" providing shelter to any visitor
without distinction of caste or creed amount to creating a valid wakfi The
contention was that if beneficiary of an amenity included anybody other than a
Muslim it can be anything but a Muslim wakf it may be a public charity or a
public trust, but beneficiary if includes non-Muslim it becomes a secular
character which is not envisaged object of a Muslim wakf. The Maharao (Ruler)
of the State of Kuchchh (erstwhile) had granted land to a Muslim in 1874 for
construction of Dharmashala for the use and benefit of public by and large
without any reservation of any caste, creed or colour. Thereafter, whether the
grantee had in fact dedicated the building so as to vest it in the Almighty or he
simply discharged his obligation to construct the building was to be decided by
the lower court and the High Court directed so. It was in this background that the
High Court made certain observation regarding the beneficiaries of a wakf.
Quoting from J. Ameer Al's judgment in the famous Vidya Varuthi case',
that "devotion of the profits for the benefit of human beings" is wakf and wakf is
"a dedication to any good purpose", and "the donor may name any meritorious
object as the recipient of benefit"—Justice Balia of Gujarat High Court comes to
the conclusion that charitable wakfs can be for the benefit of humanity, and
where so, the beneficiary need not be confined to a particular community.
Likewise, alms to the poor has been recognised to be a pious and charitable
purpose. Now, prima facie, there does not appear to be any authority to support
the view that a property dedicated for distributing its income as alms to poor can
be construed as wakf only if alms is distributed to members of Muslim
community only. On the other hand, settling a trust to help all religious
institutions, irrespective of whether it is a temple or mosque, though may be
charitable and of a public utility, since idolatry is prohibited by Muslim Law,
such secular charity being opposed to Muslim tenets cannot be construed a Wakf,
as was the case in Nawab Zthn Yar Jung case. In this light, a musafirkhana, if its
dedication is for religious purpose like providing shelter to those who are
performing religious ceremonies sanctioned by Muslim Law, may perhaps have
as its beneficiaries only Muslims. But if on the other hand, a property is
dedicated as an amenity of general public utility use of such amenity by all may
not militate against its being a Muslim wakf. [Note: These, the learned Judge

50. (1998)2GCD 1310 (Gui).

53. AIR 1922 PC 122.
244 MUSLIM LAW [CHAP.

said, were his "prima facie views". These were his observations only, preceding
the actual finding by the lower court regarding the fact of the nature of the grant
by the ex-ruler.]
We are respectfully in agreement with the views of the learned Judge. Now
more and more people, individually and also jointly are coming forward in
providing free and lasting facilities to the poor or needy or even just any user.
People are donating generously for establishing specialised treatment units in
public hospitals, like cancer unit, burn unit, etc., opening hospitals and hostels,
installing drinking water plants at railway stations and public places, distributing
food and fruits in hospitals and schools, offering scholarship to intelligent
students, constructing residential colonies in earthquake affected areas, etc. In
such enthusiastic public participation in general public welfare activities, the
Muslims, themselves a major class of beneficiaries, should not lag behind, in
playing positive role, on account of pedantic interpretation of their wakf law.
Mulla gives a list of valid and invalid objects of wakfs, on the authority of
judicial decision Some of such typical objects art- as follows
A. VALID OBJECTS
(i) Distribution of alms to poor persons, and assistance to the poor to enable
them to perform the pilgrimage to Mecca.
(ii) Celebrating the birth of AH Murta:'
(iii) Keeping tazias in the month of Muharram.
(iv) Celebrating the death anniversaries of the settlor and of the members of
his family.
(v) Burning lamps in a mosque.
(vi) Performance of annual fatehah (for the welfare of the soul of the
deceased person) of the settlor and of the members of his family.
(vii) Construction of a robat or free boarding house for pilgrims at Mecca,
(the fulfilment of such objects, however, are difficult nowadays in view of the
restrictions on foreign exchange, etc.)
(viii) Maintenance of poor relations and relatives.
Wakfs for certain Muslim religious institutions
Mosque.—"If a building has been set apart as a mosque, it is enough to
make it wakf, if public prayers are made there with the permission of the owner.
Both a mosque and a saint's tomb become wakf by user. If mosque has stood for
long time and worship has been performed therein, the Court will infer that it
does not stand by leave and licence of the owner of the site but that land is
dedicated property and no longer belongs to the original owner," so held Kerala
 IX] WAKF 245
High Court in Meethian v. Kerala Wakf I3oard52. Fazie Au, J. lays down
following conditions for a valid dedication for a public mosque—(a) Founder's
intention to dedicate property, either declared or inferred from his conduct. (b)
Founder divesting himself of the property, either by delivering possession to the
Imam or mutawalli, or by permitting the public to offer prayers therein. (c) The
founder must provide a separate entrance to the mosque for the entry by the
devotees. 53 Any adjuncts to the mosque building, money for its repairs, etc. are
part of the wakf. Any Muslim of any sect may pray in the mosque. This is his
legal right complete with legal remedy. It is doubtful if the donor can dedicate a
mosque to a particular sect exclusively, and even if done, no Muslim can be
denied admission to say prayers. But there can be a private mosque wherein
'outsiders' may be denied entry; Muslim Law allows a wakf for a private
mosque. According to the Lahore High Court, a mosque is a juristic person, but
not so according to the Rajasthan High Court.54
Qabristan ( graveyard).—A wakf may be created by dedicating property for a
graveyard. A qabrisran may also be private or public. A land, by long user, may
be established to be a public graveyard under wakf.49
Similarly property given for use for the purposes of fateha also constitutes a
wakf. The Supreme Court held so in Wali Mohammed v. Rahmat Bee55. The
question was whether property given for use to conduct fateha would create a
wakf. It was held by the Supreme Court that directions for the conduct of fateha
at the graveyard and to use the adjacent house for those purposes are certainly
valid objects of a wakf. In this case, offerings of prayers were not confined at the
tomb of the grantor or his family members. The grant was by the head of the
order and related to prayers at number of tombs in the graveyard.
Durgah.—It is a tomb or a shrine of a Muslim saint. Under the classical
Muslim Law durgah is not mentioned as one of the objects of wakf. The Prophet
was against the erection of an elaborate tomb. But in India by tradition tombs of
saints are held in reverence and it has come to be established that a dedication of
property can be made to a durgah and a wakf constituted.56 The pir in the durgah
is worshipped with great ostentations in India, though this is opposed to the basic
tenets of Islam. The durgah is managed by mujawar, i.e. the servant or sweeper
of the shrine. Sometimes a large durgah is headed by a Sajjadanashin.
According to Fyzee, the office of a mujawar as an integral part of the durgah is
not known to Muslim Law. The famous durgah of Khwaja Chishti at Ajmer is

52. (2001) 1 KLT 475.

53. SyedLabbaiv. Mohd. Hanifa, (1976) 4 SCC 780: AIR 1976 SC 1569.
54. Shajiddin V. Cha:urbhuj, (1958) Raj LW 461. See also, Mulla, at pp. 246-48; Paras Diwan, at
pp. 242-45.
55. (1999)3 SCC 145: AIR 1999 sc 1136.
56. Fultoo Bibee v. Bhurrai Lal, (1868) 10 WR 299.
 MUSLIM LAW [CHAP.
246
governed by separate law (the Durgah Khwaja Saheb Acts, 1955-64) and the
Wakf Acts, 1955-64 do not apply to it.57
Takia.—Literally it means a resting place. Its connotations include—a burial
ground, a platform for prayers in a qabristan an abode of a Fakir in the
qabristan. A fakir's abode, a takia becomes a khanqah when a large number of
his disciples reside there and a khanqah becomes a durgah when he is buried
there. Takia is recognised by law as a religious institution and endowment to it is
a valid wakf, or a public trust for a religions purpose.
Khankah or Khanqah.—It is a place where religious instructions are
imparted, a Muslim monastery where darvesh and other seekers after truth
congregate for spiritual lessons. By long usage it becomes a wakf. The Multan
shrine of Mia Pak Daman is an example. The head of the Khanqah is known as
the Sajjadanashin. He is a manager of the durgah. By practice, it is a hereditary
office. He is entitled to a share in the offerings made at the durgah.
Imambara.—It is a Shia religious institution where an apartment is set aside
to perform certain ceremonies in Muharram. It is essentially a private wakf, but
by long usage, may also be established as a public wakf.
B. INVALID OBJECTS

(i) Objects prohibited by Islam, for example, constructing or maintaining a

church or a temple.
(ii) A wakf in favour of utter strangers, though there was an immediate and
substantial gift to charity.
(iii) A provision for the repair of the wakf's secular property is invalid
according to the Shiite law.
(iv) Feeding Kutchi Memons every year on the anniversary of the settlor's
death.
13. Wakf with uncertain objects
The objects of wakf are not always indicated with reasonable certainty.
There is a conflict of opinion as to the validity of such wakfs. Following Morice
v. Bishop of Durham", the Privy Council in Runchordas v. Parvatibai 59 , held
that an endowment with uncertain object was invalid. Mulla and Wilson also
hold the same view.
Ameer Ali and Tyabji, on the other hand, contend that the principle of
Morice v. Bishop of Durham, 58 was not applicable to wakf.

57. See, Paras Diwan, at p. 247.

58. (1805) 10 Vessy 522.
59. (1899) 26 IA 7.
 Ix] WAKF 247
"In these circumstances9", observes Fyzee, "a conflict of decisions was
inevitable and some curious results of juristic interpretation may be found in the
Indian Law Reports".60
He further adds that despite the conflict of opinion on the subject, the latest
tendency appears to be to agree with the views of Ameer Ali and Tyabji and to
hold that—once it is clear that there is bona fide intention of the wakjf to create
wakf, a good wa/cf is created.
According to Madras High Court "when a wa/cf deed, trust deed or a will is
interpreted by a court of law the expressions or the words used in such
documents should be understood as if the author of such documents expresses
his intention or speaks from his grave. As far as possible only in extraordinary
and exceptional cases should there be any deviation from his intention, and that
too after taking great care and caution."61
To say that wakfs are void for uncertainty, is to make a classical statement.
There are many exceptions to the rule. Reasonable certainty is expected, but it is
not necessary that the objects must be named or the sum to be spent on each of
the specified objects must be named. Some of the examples of wakfs held void or
valid on account of the test of certainty as given by Mulla are as follows: A
bequest by a Khoja Mohammadan for dharam, khairat, vaghaira 'etc.'; for such
charitable objects as the trustees should think proper; for charitable purposes
highly commendable according to Hanafi Law all were held void for
uncertainty. On the other hand, wakf for fatiha and amr-i-khair and maintenance
of poor relations and dependants, for mazhabi and khairati kam even without
specification of objects; for ultimate gift to proper acts of charity; for occasions
of rejoicings and mournings (construed to mean provision of a building for the
accommodation for marriage and funeral parties); a bequest by a Khoja of a fund
'to be disposed of in charity as my executor shall think fit'—all were held to be
valid.62
A valid wakf may thus be constituted:
(i) Where the objects are not specified at all, or
(ii) Where the objects fail as impracticable, and
(iii) Where the objects are partly valid and partly invalid.
In cases (i) and (ii), Cy pres doctrine will be applied, and in case (iii), the
valid objects may be accepted by the court and the others rejected. 63 The portion
of the property relating to invalid objects will revert back to the wakcf. Mulla and

60. Fyzee, at p. 297.

61. M.M.S. Abdul Wahab v. A.P. Abdullla,njd, 1999 AIHC 4037.
62. MulIa, at pp. 196-98.
63. Fyzec, at p.298.
248 MUSLIM LAW [CHAP.

Wilson are, however, of the view that a wakf would be void unless its objects are
indicated with reasonable certainty.
Cy pres doctrine.—If the specified objects of a wakf fail, the wakf will not
be allowed to fail, but the income will be applied for the benefit of the poor or to
objects as near as possible, to the objects which failed. M It must, however, be
remembered that a wa/cf that is void for uncertainty cannot be validated by the
application of this doctrine.65
Mere vagueness or uncertainty will not lead to the failure of a wakf, for
under such circumstances, the law itself would cure the defect by supplying the
objects of dedication. In case the object is not specified at all, the wakf will be
for the support of the poor. When the wakf is for a religious or charitable
institution which in course of time ceases to exist, the wakf property will not
revert to the wakif or his descendants, but would be applied to some other similar
religious institution or to any other object by which human beings may be
benefited. The main care that has to be taken in those cases is that the wakf
income should be applied to objects as similar in character as the objects named
by the wakjf66
Moreover, the discretion given to the courts to apply the Cy pres doctrine
does not mean that where the donor's intentions can be given effect to, the court
may exercise the power of applying the wakf property or its income to other
purposes, simply because it considered thcn more expedier
beneficial than that the settlor had directed.67
Under Shia Law, this doctrine is extended a little further. It authorises the
utilisation of wakf income for "good purposes generally", preferring an object as
near as possible to the original object.
Wakf with uncertain object initially may later on be regularised by the wak(f,
and it will not be void because of uncertainty. In Garib Das v. M.A. Hamid68, the
facts before the Supreme Court were that the wakjf created a wakf for the
"mosque and mad rasa (school) at Mohalla Nathnagar". There were two mosques
in the Mohalla, so initially it was not certain which mosque had to take the
benefit. Later on, the wak(f executed a document in which he specified the
mosque that had to take the benefit. The Supreme Court observed:
"As the donor was the best person to know which mosque and mad rasa
he had in mind and he had identified the same... We see no reason to take a

64. MuIla, at P. 198.

65. Vide Punjab Sindh Bank v. Anjwnan Himayal Islam, (1935) 158 IC 937.
66. Saksena, at p. 556.
67. Mukherj ea , J. in Rati I.al v. State of Bombay, AIR 1954 SC 388.
68. AIR 1970 SC 1036.
IX] WAKF 249

view different from the High Court (which has validated the wakf) or hold
the deed void for uncertainty."
14. Contingent or conditional wakfs
When the creation and validity of a wakf are subjected to a contingency, it
becomes void. For example, if the wakf is made contingent on the death of a
person without leaving children, it will be void. Similarly, if a Muhammadan
lady creates a wakf for herself and her children, and provides that the children
should take possession of property on attaining majority; and in the event of her
death without leaving children, the wakf income, should be devoted to certain
religious usages, it was held that the wakf was void, as it depends upon a
contingency, namely, the event of her death without leaving children.69
The wakf should also not be conditional. Thus, if a condition is imposed that
when the property dedicated is mismanaged, it should be divided among the
heirs of the wak/ or that the wakf has a right to revoke the wakf in future, such
wakfs would be invalid. But a direction to pay debts, or to pay for improving,
repairing and or expanding the wakf property, or conditions relating to the
appointment of mutawalli, etc. would not invalidate the wakf.
In case of a conditional wakf, it entirely depends on the wakjf to revoke the
condition, if it is illegal, and to make the wakf valid, otherwise it would remain
invalid.
15. Essentials of a valid wakf
From whatever has been discussed so far, the essentials of a valid wakf may
be briefly summarised as follows:
(i) There must be a clear intention on the part of wakf to create the wakf.
(ii) Wakf must declare his intention, either orally or in writing.
(iii) Wakf must be the owner of the property to be dedicated as wa/cf.
(iv) The wakf must be perpetual; although, no express mention of
perpetuity of wakf is essential and it is presumed, nevertheless if
wakfnaina says that the wakf is for, say, 50 years, it is invalid.
(v) The objects of wakf should not be in conflict with the Islamic
principles.
(vi) The wakzf must be of sound mind and major, and a Muslim. However,
wakfs by non-Muslims are recognised under certain conditions.
(vii) Wakf must not be contingent or conditional.

69. MulIa, at p. 208.

 250 MUSLIM LAW [CHAP.

16. Administration of wakfs

When a wakf is validly constituted, there arises the question of its
management and administration for which a nzutawalli is generally appointed by
the wakf or the Court. And in order to have a check and supervision on these
,nutawallis, there exist certain statutes. Thus, the administration of wakfs may be
non-statutory (that is, through ,nutawallis, sajjadanashins, (etc.) and statutory.
A. NON-STATUEORY ADMINISTRATION
MutawallL— Wakf property does not vest in the mutawalli but in God. He is
only a manager or superintendent of the property.
'Mutawalli of a wakf is merely a manager of the wakf property. He neither
has any proprietary right nor any beneficial interest of any kind in the property,
being nothing more than a servant of the founder of the wakf. Held by
Allahabad High Court in Adab Ali v. Distt. Judge.70
(i) Competence.—Anyone, of any faith, female or male, who is competent
to administer property may become mutawalli. But where religious duties are
involved, a person of another religion or a woman may be disqualified.
Nevertheless, a woman may be allowed to hold this office provided her duties
could be separated from the religious duties and the latter could be performed by
a substitute. But, for example, where the duties of mutawalli include jmamat
(leading the prayers), a woman is wholly disqualitiea Irom tnis ottice.
It is well settled that the following may act as mutawalli:
(a) Wakf himself and his descendants.
(b) Females.
(c) Non-Muslims.
(d) Sunni in a Shia wakf ar' d 'iee versa.
(ii) Appointment of mutawalli.—A mutawalli may be appointed by:
(a) the wakf himself;
(b) his executor;
(c) the mutawalli; and
(d) the court.
(a) By the wakf himself.—It was held in Advocate General v. Fatima
Begam71 , that the wakf has a right to reserve superintendence of wakf to himself,
and to appoint a mutawalli during his lifetime, whenever he likes.

70. (2008) 70 All LR 75.

7 9 Born 11CR 19.
Lx] WAKF 251

Generally, in cases of private wakfs, the wakf has absolute rights to appoint
a mutawalli, but in case of public charitable or religious wakfs, this power may
be subject to the approval of Court. That is, in some cases, the Court may
appoint a mutawalli over and above the wakjf, provided it is in the interest of
wakf.
(b) By his executor.—The power of appointing the mutawalli primarily rests
with the wakif, and in his absence, it rests with his executor.
(c) By the mutawalli.—A mutawalli can appoint his successor under very
restricted conditions, which are as follows:
Wak(f and his executor are both dead;
Wa/cf deed is silent on the point of succession of mutawalliship;
There is no positive custom regarding such devolution;
The mutawalli is on the deathbed, or incapacitated from discharging
his duties.
Note: Under the principles of Muhammadan Law, a mutawalli on the
deathbed illness can appoint a murawalli only for the "time being" [meaning
thereby the Board constituted under an Act (here the U.P. Muslim Wakfs Act,
1960) has a right to appoint a mutawalli permanently]. When on deathbed illness
a mutawalli cannot appoint his successor as mutawalli permanently, then how
can he appoint a permanent mutawalli while in state of sound health? Mutawalli
under Muhammadan Law is like a Manager or Superintendent and such person is
not possessed with any power to appoint another person as his successor. As the
office of mutawalli is not transferrable as mentioned by all the Jurists on
Muhammadan Law, a contrary view will lead to absurdity. Moreover, there is a
rationale for a mutawalli on deathbed to appoint a successor, namely, the
superintendence or the management of the wakf may not suffer, the corpus of the
wakf may not be alienated and destroyed by illness and that may be saved. As
perpetuity is the primary rule of wakf, this provision assumes importance72; or
The wakf deed authorises him to this effect.
(d) By the court.—It was held by the various High Courts that when a
vacancy occurs and there is none to take the office, or when the mutawalliship
devolves upon a minor, the court has the power to appoint a mutawalli.
(iii) Mutawalliship whether hereditary.—The office of mutawalli is not
hereditary. If, however, there is a custom to the contrary, hereditary succession
would be allowed, but the custom has to be proved strictly. Moreover, a
mutawalli could neither sell nor transfer his office.
(iv) Removal of mutawalli.—(a) By the court —Neglect of duties and
breach. The authority of a court of law in matters of removal is first and final.

72. Syed AU Asahar v. Shia ceniral Board of Wakfs, 1996 AIHC 3166.
252 MUSLIM LAW [CHAP.

The court can remove even the wakf himself if he happens to be the mutawalli
and guilty of some offence.
(b) By the Wakf Board.—Please see statutory admittisiration of wakfs infra,
Section B.
(c) By the Wak?f—Abu Yusuf says that even if the wakf has not reserved a
right to remove the mutawalli in the wakf deed he can, nevertheless, remove him.
Imam Muhammad, however, says that unless there is such a reservation, the
walqf cannot do so. This latter view has been adopted in the Fatawa-i-Alamgiri
and is approved generally in India.
(v) Limitations of power of mutawalli.—A mutawalli can do everything
that is reasonable and necessary for the protection and administration of the
wakf. He has the power of management and administration of wakf properties.
'The administration of wakf predominantly vests with the mutawalli, appointed
through succession or otherwise. No committee can be appointed (for
administration) as long as the mutawalli functions for a wakf. The appointment
of a committee arises only when the wakf does not have a mutawalli - Andhra
Pradesh HC in Mohd. Saleem Ur Rahman v. A.P. State Wakf Board,
Hydera bad73 . He can sue for possession of the wakf properties where so
required. He can spend the properties or utilise them towards the achievement of
the objects of the wakf. He can manage and supervise the wakf properties. He can
grant lease, suoject to the conditions aireaay mentioned above, tits power of
filing a suit has been taken over now by the Wakf Board under the Wakf Act,
1954. But his powers are subject to certain important limitations, which are as
follows:
—he cannot sell, mortgage or alienate wakf property, without the
permission of the Court or the Wakf Board;
—he cannot transfer his duties, functions and powers to anybody else
and make him the trustee, unless authorised by the wakf deed, or
any positive custom;
Note: Mtlla in Principles of Mohammedan Law, 19th Edn. p. 195,
says: "A mutawalli has no power to transfer the office to another,
unless such power is expressly conferred upon him by the founder.
But he may appoint a deputy to assist him in management of the
endowed property". Thus, as per the law, there cannot be any
transfer of mutawalliship.74
—he cannot borrow money for spending it on beneficiaries, but can do
so only for necessities, such as repairs, etc.;

73. (2007)4 An LD 527.

74. Badagara JPD Commit. v. Ummerkutty 1-faji, (2001) 4 CCC 264 (Ker); Musiamand All Khan
v. Surf it Bhaiia, 153 (2008) DLT 24 Del HC.
on

WAKF 253
lxi

—he cannot grant a lease of wakf property for more than a year, in
case of non-agricultural land, and for more than three years, in
case of agricultural lands, unless the Court gives sanction;
—he cannot spend on mere improvements of wakf properties.
B. STATUTORY SUPERVISION

Prior to enactment of Wakf Act, 1995, the following enactments dealt with
the administration and supervision of wakfs:
(i) Wakf Act, 1954;
(ii) U.P. Wa/cf Act, 1950;
(iii) Bengal Wakf Act, 1934;
(iv) Bihar Wakf Act, 1947;
(v) Bombay Public Trusts Act, 1950;
(vi) Durgah Khwaja Saheb Act, 1955; and
(vii) Section 92 of the Code of Civil Procedure.
The Wakf Act, 1954, was in force in all States except Bihar, West Bengal
and U.P. which had their own corresponding enactments. The Bombay Public
Trusts Act, 1950, which applies equally to endowments of every community is in
force in Maharashtra (excluding its Marathwada area) and Gujarat (excluding its
Kutch area). Section 112 of the Wakf Act of 1995 has repealed not only the Wakf
Act 1954 but also the State enactments having law corresponding to the 1995
Act. The Durgah Khwaja Saheb Act, 1955 provides for supervision and
administration of the endowments of the Durgah of Ajmer.
Wakfs for
The Wakf Act, 1995 provides75 for the establishment of a Board of
each State. The Board for a State and the Union Territory of Delhi consists
mostly of non-official members, some of whom are elected by certain electoral
colleges. Other members of the Board are nominated by the State Government.
An officer of the State Government not below the rank of Deputy Secretary is
also included in the Board. In the case of the Union Territory other than Delhi
the Board consists of appointees of the Central Government. The members of the
Board elect the Chairperson.
The members of the Board are appointed by the State Government keeping
in view the expectations of various sections amongst the classes eligible for
appointment and the courts do not consider a judicial scrutiny as permissible or
desirable. 76 The Act contemplates representation to any one or more of following
categories : (a) MLAs and MPs, (b) Persons having knowledge of Muslim Law
and representing State Jamait and Shia conference (c) Persons having knowledge

75. See, S. 14.

187.
76. YusufQureshi v. Moulana Mohd. Jantaluddin, AIR 1996 AP
 254 MUSLIM LAW [Cp.
of administration, finance or law, and (d) Mutawalljs of wakfs situate in the
State.
The petitioner in Syed Shah Mohammed Al Hussajnj v. Union of India77
contended that this "scheme of the Act makes the purpose of wakf irreligious in
the name of secularism, jeopardises and destroys the religiosity of the wa/cf and
administration of the wakf properties, and the Act violates Articles 25 and
26 of
the Constitution". The Karnataka High Court rejected these allegations stating
that the Act only provides for the better administration of the wa/cf and connected
or incidental matters and does not either restrict or control the wakf or its
properties.
According to the scheme of the new Act, Wakf Boards for the States and for
the Union Territory of Delhi shall have not less than 7 and not more than 13
members of which the majority is to comprise Muslim MPs, Muslim MLAs,
Muslim lawyers and mutawallis of wakfs. Nominated members are to be taken
from Muslim organisations, Muslim theologists and State Government
representatives. To guard Shia interests, one of the members has to be a Shia
Muslim where Shia wakf is in existence.
The petitioner contended that "since these members are to be elec ted by the
whole section of the society including non-Muslims, such an elected person
cannot really represent the interests of the Muslims or protect the community or
preaching of Islam". The Hi gh Court rejected this ar gument saying that "the
elected members have been sought to be included in the Board upon
consideration of their obligation and responsibility to the people in general and
Muslims in particular, they are suited to 'provide better administration of wakfs".
The State Government has power to fill vacancy caused by death of an
elected member of State Wa/cf Board by making nomination on the condition
that the Government must be satisfied for reasons to be recorded in writing that it
is not practicable to constitute appropriate electoral college to elect new member.
Further, such nomination is subject to the limitation that such nomination should
not result in exceeding the strength of the nominated members over that of the
elected ones. Disregard of any of these conditions will render the nomination
invalid.78
Delegation of powers by the Board.—the Board may by orders in writing,
delegate to the Chairperson or member or Secretary or any officer or servant of
the Board or any area committee, subject to limitations specified in that order,
such of its powds and duties under the Act as may be deemed necessary. But
this power of delegation under Section 27 does not contemplate total delegation
of powers of the Board to other persons to sit by itself quiet and watch the fun of

77. AIR 1999 Kant 112.

78. Khasim SaL' Bapu Sab Sirguppi v. State of Karnataka, (2003) 6 Kant U 382.
lxi WAKF 255

the consequences. Vague, too ambiguous and too general delegation is beyond
the meaning of elegation of power of a statutory authority. The Board is a
statutory auftority, it cannot totally disassociate itself from the management of
the Committee.79
The Boards are bodies corporate having perpetual succession and a common
seal with power to acquire, hold and transfer property and can sue and be sued.80
The general superintendence of all wakfs in the State vests in the Board. 81 The
Board can appoint and remove ,nutawallis in accordance with the provisions of
the Act.82
There is no prohibition for a woman as mutawalli of the wakf. Quoting from
A.A.A. Fyzee (Outlines of Mohammedan Law (3rd Edn.', 1964) at p. 304), Mulla
(Principles of Mohammedan Law, (18th Edn. 1977) at p. 228), Tyabji, (Muslim
Law, 4th Edn., p. 580), K.P. Saksena (Muslim Law, 1963), the Madras High
Court held that a woman can be appointed a mutawalli, except where the duties
are such as cannot be performed by a female, which are: Sajjadanashin,
Mujawar, Imam or Khatib; so do the above authorities state.83
At the same time it must be remembered that under normal circumstances a
mutawalli is named and appointed by the wakf in the wakf deed itself. It is only
when there is a vacancy and there is no one to be appointed under the terms of
the wakf deed, and where there is any dispute regarding any person's right to act
as a mutawalli, that the Act empowers the Board to appoint one, and that too
"temporarily". The appointment shall be made for those period and on those
conditions as the Board may think fit; this is indicative of the fact that it is nc' a
regular appointment that is contemplated by Section 42 of the Wakf Act. If thei
is a successor named in the wakf deed, the Act nowhere provides for appointing a
mutawalli by the Board.84
The Wakf Act, 1995 places numerous checks on mutawallis. For example,
the Act makes it obligatory on mutawallis to let the wakf property and its
accounts be audited by auditors appointed by the Board and at the discretion of
the State Government, also by the State Examiner of Local Funds or any other
officer designated for that purpose by the State Government, 85 to furnish reports,
returns and other documents to the Board 86 , to obey the directions given by the

79. M.A. AziZ v. A.P. State Wakf Board, AIR 1998 AP 61.
80. See, S. 13(3).
81. See, S. 32.
82. See, S. 57(2)(g).
83. Mo/id. Sheik". Mohd. F. Yousuff, (2000)4 CLT 485.
84. Mo/id. Sulaiman V. A.P. Wakf Board, AIR 1997 AP 387.
85. See, Ss. 46 and 47.
86. See, Ss. 32(2)(1) & (in) and 50(b) & (c).
 256 MUSLIM LAW [CRAP.

Board87 and to prepare and submit annual budget to the Board and the Board can
given such directions for making alterations, omissions or additions in the budget
as it deems fit consistent with the objects of the wakf and the provisions of the
Act. 88 As defined under Section 3 of the Act the mutawalli is merely a manager
of the wakf. There is nothing in the Act which empowers a mutawalli to institute
and defend a suit and proceedings in a court of law relating to wakf on his own.
The power is vested in the Board, which is a corporate body which must sue and
be sued in its own name.89
Where the property is wakf prope'ty and since the management of property
by mutawalli is not heritable, the decision of the Wa/cf Board to remove the
management and to bring the properti under the direct control of the Board is
quite consistent with the provisions of the Act.90
Mutawallis are barred from compromising any suit or proceeding in any
court relating to title to wakf property without the sanction of the Board. 91 Under
Section 61, the mutawalli may be penalised for failure to do the acts specified
therein. Under Section 64 the mutawalli can be removed from his office. The
said provisions read as follows:
"61. Penalties.—(1) If a mutawalli fails to—
(a) apply for the registration of a wakf;
(b) furnish statements of particulars or accounts or returns as required
UUUj L11I 4U1,

(c) supply information or particulars as required by the Board;

(ci) allow inspection of wakf properties, accounts, records or deeds
and documents relating thereto;
(e) deliver possession of any wakf property, if ordered by the Board
or Tribunal;
W carry out the directions of the Board;
(g) discharge any public dues; or
(h) do any other act which he is lawfully required to do by or under
this Act,
he shall, unless he satisfies the court or the Tribunal that there was reasonable
cause for his failure, be punishable with fine which may extend to eight thousand
rupees.
(2) Notwithstanding anything contained in sub-section (1), if-

87. See, Ss. 32(2)(c) and 50(a).

88. See, Ss. 44(1) & (3).
89. Sheokumari Devi v. Jamia Ashharfia College, New Bhojpur, (1998)3 BUR 1772 Pat HC.
90. Sk. Habiuddin v. Orissa Board of Wakf, 1998 AIHC 4833.
91. See, S.93.
IX] WAKF 257

(a) a mutawalli omits or fails, with a view to concealing the existence

of a wakf, to apply for its registration under this Act,-
(i) in the case of a wakf created before the commencement of this
Act, in the period specified therefor in sub-section (8) of
Section 36;
(ii) in the case of any wakf created after such commencement, in
three months from the date of the creation of the wakf, or
(b) a mutawalli furnishes any statement, return or information to the
Board, which he knows or has reason to believe to be false,
misleading, untrue or incorrect in any material particular,
he shall be punishable with imprisonment for a term which may extend to six
months and also with fine which may extend to fifteen thousand rupees.
(3) No court shall take cognisance of an offence punishable under this
Act save upon complaint made by the Board or an officer duly authorised by
the Board in this behalf.
(4) No court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under this Act.
(5) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the fine imposed under sub-section (1), when
realised, shall be credited to the Wakf Fund.
(6) In every case where offender is convicted after the commencement
of this Act, of an offence punishable under sub-section (1) and sentenced to
a fine, the court shall also impose such term of imprisonment in default of
payment of fine as is authorised by law for such default.
64. Removal of Mutawalli.—(l) Notwithstanding anything contained
in any other law or the deed of wOkf, the Board may remove a mutawallj
from his office if such mutawallj.-
(a) has been convicted more than once of an offence punishable under
Section 61; or
(b) has beer convicted of any offence of criminal breach of trust or
any oth( r offence involving moral turpitude, and such conviction
has no. been reversed and he has not been granted full pardon with
respect to such offence; or
(c) is of unsound mind or is suffering from other mental or physical
defect or infirmity which would render him unfit to perform the
functions and discharge the duties of a mutawalli; or
(d) is an undischarged insolvent; or
(e) is proved to be addicted to drinking liquor or other spirituous
preparations, or is addicted to the taking of any narcotic drugs; or
(/) is employed as a paid legal practitioner on behalf of, or against,
the wakf, or
 MUSLIM LAW [CRAP.
25

(g) has failed, without reasonable excuse, to maintain regular

accounts for two consecutive years or has failed to submit, in two
consecutive years, the yearly statement of accounts, as required by
sub-section (2) of Section 46; or
(h) is interested, directly or indirectly, in a subsisting lease in respect
of any wakf property, or in any contract made with, or any work
being done for, the wakf or is in arrears in respect of any sum due
by him to such wakf; or
(i) continuously neglects his duties or commits any misfeasance,
malfeasance, misapplication of funds or breach of trust in relation
to the wakf or in respect of any money or other wakf property; or
(/) wilfully and persistently disobeys the lawful orders made by the
Central Government, State Government, Board under any
provision of this Act or rule or order made thereunder;
wakf.
(k) misappropriates or fradulently deals with the property of the
shall not affect
(2) The removal of a person from the office of the mutawalli
his ersonal rights, if any, in respect of the wakf property either as a beneficiary
or ii any other capacity or his right, if any, as a Sajjadanashin.

(3) No action shall be taken by the Board under sub-section (1), unless it has
held an inquiry into the matter in a presribcd manner and the decision has been
take by a majority cf not less than two-thirds of the members of the Board.92
4) A mutawalli who is aggrieved by an order passed under any of the
claes (c) to (i) of sub-section (1), may, within one month from the date of the
recpt by him of the order, appeal against the order to the Tribunal and the
decision of the Tribunal on such appeal shall be final.
(5) Where any inquiry under s..ib-section (3) is proposed, or commenced,
aganst any mutcw" alii, the Board may, if it is of opinion that it is necessary so to
do in the interest of the wakf, by an order suspend such mutawalli until the
corlusion of the inquiry:
Provided that no suspension for a period exceeding ten days shall be made
except after giving the mutawalli a reasonable opportunity of being heard against
the proposed action.
(6) Where any appeal is filed by the mutawalli to the Tribunal under sub-
seclion (4), the Board may make an apnlication to the Tribunal for the
appointment of a receiver to manage the wakf pending the decision of the appeal,
and where such an application is made, the Tribunal shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), appoint a
suitible person as receiver to manage the wakf and direct the receiver so

92. ?slohd. Minhajuddin v. State of Maharashira. (2006)2 Born CR 172.

 ix] WAKF 259
appointed to ensure that the customary or religious rights of the mutawalli and of
the wakf are safeguarded.
(7) Where a mutawalli has been removed from his office under sub-section
(1), the Board may, by order, direct the mutawalli to deliver possession of the
wakf property to the Board or any officer duly authorised in this behalf or to any
person or committee appointed to act as the mutawalli of the wakf property.
(8) A mutawalli of a wakf removed from his office under this section shall
not be eligible for reappointment as a mutawalli of that wakf for a period
of five
years from the date of such removal."
Board's Power of Direct Management
Section 65 of the Wakf Act, 1995 stipulates that where no suitable person is
available for appointment as Mutawalli, or where the Board is satisfied that
filling the vacancy will be prejudicial to the interests of the Wakf, the Board may
assume direct management of the Wakf for a maximum period of 5 years. The
Board must record the reasons in the order for its decision. Such recording of
precise reasons is a must and failure constitutes violation of the requirements of
the section. In that case the Board's order will be set aside.93
Section 18 of the Act empowers the Board to establish a Committee to
supervise a wakf. It may be for general or particular purpose, and for
. the specified
area. The constitution, function and duties of the committee is to be determined by
the Board. Section 27 empowers the Board to delegate powers to such committee
as the Board may deem necessary. Section 67 empowers the Board to supersede
the committee on ground that it is not functioning satisfactorily, or mismanaging,
or otherwise necessary so to do. The Board has to record the reasons. The
committee may appeal to the Tribunal against the order. On such valid
supersession the Board will constitute another committee simultaneously. In the
absence of recorded reasons in the order, the supersession will not be valid, and
therefore constitution of a new committee will also be ineffective. 94 Where such a
committee appointed by the Board has, due to internal fight between its members
ceased to serve the interests of the wakf frustrating the very purpose of its
appointment, the Board can dissolve it even before the expiry of its term of 5
years.95
It is not Government but only Wakf Board which has jurisdiction to accord
necessary permission for purpose of alienation of Wakf property. Central or State
Government has only to issue directions on question of policy.96

93. Asthan-e-Kha,jrj Trust, Bangalore v. Karnataka State Board

of Wakfs, (2001)2 Kant Li 509.
94. Managing Committee. Masjid-eJdgah, Mysore v. State of
Karnataka, (1997)4 Kant U 599.
95. Janal, Sha g ri Khaja Hussain v. Karnataka Board of Wakfs,
(1997)4 Kant Li 393.
96. Mohamniedja Coop. Ltd. V. Laks/unj Srinivasa Ltd.,
(2007) 3 ALD 282 AP HC.
 MUSLIM LAW [CHAP.
260

Wakf Tribunal
Section 83 of the Wakf Act, 1995 provides for the constitution of the Wakf
Tribunal. It says that the State Government shall constitute as many tribunals as it
may think fit for determination of any dispute relating to a wa/cf or its property
within the defined local limits. A mutawalli or any person interested in the wakf
may make an application to the Tribunal for dererniination of any dispute. This
Tribunal is a one-man Tribunal with a District Sessions or Civil Judge Class I as its
member. The Tribunal has been vested with the status of a deemed civil court with
the powers of a civil court while trying a suit or executing a decree or order.97 The
Tribunal's decision shall be final and binding on the parties and no appeal shall lie
against it, except the supervisory power of the High Court conferred by the
Constitution.
The jurisdiction of the Wakf Tribunal is not restricted to determine the nature
of the wa/cf property alone, it can determine whether the wa/cf property has been
rightly leased or wrongly, or any other questions relating to wakf property. 98 All
disputes relating to wakf property are to be decidcd by thc Tribunai, civil court's
jurisdiction is barred. 99 Contention of the petitioner that unless preliminary
survey of wakfs is conducted, list of wakfs is published and wa/cf property
100
registered it cannot be treated as wa/cf property is not tenable.
The jurisdiction of the Tribunal is an original jurisdiction. It cannot be
contended that the Tribunal is clothed with the jurisdiction only when an ottxi
passed by the Wakf Board. 101
However, the Act is not applicable to pending suits or proceedings or
appeals or revisions which commenced prior to 1st January 1996 i.e. coming into
force of the Wakf Act, 1995. The Act was made prospective and cannot operate
02

LT 308 and TM. Muhammed Sahib v. Arakkal

97. Set Mahboob Khan v. Md. Khaja, (2005) 2 An
Mohammed Ibrahim, (2007)2 KLT 56.
AP HC.
98. M. Bikshapathi v. Govt. of A.P., (2002)2 An LT 530
Jurisdiction of Tribunal is not limited to determining nature of Wakf property alone, Tribunal
99.
can determine whether waRf property has been rightly or wrongly leased or any questions
relating to wakfproperty-MPBikshaPathi v. Govt. of A.P., (2005) 2 ALT 271 AP HC. Any
person aggrieved by the order of the Board can approach only the Tribunal -jurisdiction of the
civil court is ousted in such matters—Hisamuddin Papa Saheb (Dr.) v. E. Niyamathulla,
(2007)2 MU 1069.
ALT 389 AP.
100. Jai Bharat Coop. Housing Society v. A.P. State Wakf Board, (2000) 5
101. Aliyathammada BeethathebiyyaPUra Pookoya Haji v. Patsakal Cheriyakuya, AIR 1999 Ker
289.
259 (SC).
102. Sardar Khan v. Syed Najmut Hasan, (2007) 2 CLT
 Ix] WAKF 261

17. Application of the income of wakf

The income of the wakf must be applied for the following purposes in the
order they are mentioned below 103:
(i) for the preservation and protection of wakf property;
(ii) for carrying out the objects of the wakf as laid down by the wakf,
(iii) for doing what is essential for the general purposes of the specified
objects; and
(iv) (where it is not possible to apply the income for the purposes specified
by the wakf) for objects as near as possible to those intended by the
wakf.
18. Remuneration to Imams
All India Imam Organisation v. Union of India. 104 Facts: By the instant
petition under Article 32 of the Constitution of India the Imams of the mosques
sought direction to the Central and State Wakf Boards to treat them as employees
and to pay them basic wages. The Wakf Boards disputed the manner of their
appointments, the right to receive payment and asserted absence of master and
servant relationship.
The Delhi Wakf Board pointed out that mosques can be categorised in five
categories: (1) Mosques which are under direct control or managemeit of the
Government such as the Mecca Masjid or mosques situated in public gardens
which are not governed or regulated by the Muslim Wakf Boards. (2) Mosques
which are under direct management of the Wakf Boards. (3) Mosques which are
under control of Mutawallis under various wakfs according to the wishes of the
Wak(f as the creator of the Wakf. (4) Mosques not registered with Wa/cf Board
and managed by local inhabitants. (5) Mosques which are not managed by
mutawallis or the Muslims of the locality. It was claimed that the Imams of the
fourth and fifth categories were not regular features and any Muslim could lead
the prayers, whereas the third category mosques were having regular Imams.
Some Wakf Boards contended that the Imams or Muazzins were appointed
by Mutawallis, and the Wa/cf Boards had nothing to do either with their
appointment or working and that under Islamic religious practice they were not
entitled to any emoluments as a matter of right, as the Islamic Law ordained the
Imams to offer voluntary service. According to the Karnataka Wakf Board
Immamat in mosques was not considid to be an employment. Some Wa/cf
Boards raised the plea of financial difficulty as well. The petition was opposed
by the Union of India also. It stated that the Islam did not recognise the concept
of priesthood. The Supreme Court rejected the contention of the respondents.

103.Verna, at p. 500.
104.(1993)3 SCC 584.
 [CHAP.
MUSLIM LAW
262

The Supreme Court held—In Muslim countries mosques are subsidised by

the State, in non-Muslim countries by the individuals. They are administered by
their founder or by special funds. In India the Wakf Act, 1954 was passed for
evej financial power vests in the
better administration and supervision of Wakfs;
Board. One of its primary duties is to ensure that the income from the wakf is
Wakfs and are
spent on carrying out the purposes of the wakf. Mosques are
required to be registered under the Act over which the Board exercised control.
mutawallis and therefore
According to the Board the Imams are appointed by the
any payment by the Board was out of question. Prima facie it is not correct as the
letters of appointment issued in some States are from the Board. Right to life
enshrined in Article 21 means right to live with human dignity. It is too late in
the day to claim or urge that since Imams perform religiousduties they are not
entitled to any emoluments. Whatever may have been the ancient concept but it
has undergone a change and even in Muslim countries mosques are subsidised
and the Imams are paid their remuneration. The Court refused to accept the
grounds of absence of statutory provision for emoluments, or financial
difficulties or large number of mosques would entail heavy expenditure as
sufficient to deny them the emoluments. If the Boards have been entrusted with
the responsibility of supervising and administering the Wakf then it is their duty
to harness resources to pay those persons who perform the most important duty,
namely, leading community prayer in a Mosque, the very purpose for which it is
created.
In the circumstances, the Court said the petition was allowed and following
directions issued:
(1) The Union of India and the Central Wakf Board will prepare a scheme
within a period of six months in respect of different types of Mosques
some detail of which has been furnished in the counter-affidavit filed
by the Delhi Wakf Board.
(ii) Mosques which are under control of the Government shall not be
governed by this order. But if their Imams are not paid any
remuneration and they have no independent income the Government
may fix their emoluments on the basis as the Central Wakf Board may
do for other mosques in pursuance of our order.
For other mosques, except those which are not registered with the
(iii)
Board of their respective States or which are not manned by members
of Islamic faith the Scheme shall provide for payment of remuneration
to such Irnams taking guidance from the scale of pay prevalent in the
State of Punjab and Haryana.
(iv) The State Boards shall ascertain income of each mosque and the
number and nature of imarns required by it namely full time or part
time.


ix] WAKF
263
(v) For the full time, Punjab Wakf Board may be treated as a guideline.
That shall also furnish guideline for payment to part-time imam.
(vi) In all those mosques where full-time Imams are working they shall be
paid the remuneration determined in pursuance of this order.
(vii) Part-time and honorary Imam shall be paid such remuneration and
allowance as is determined under the scheme.
(viii) The scheme shall also take into account those Mosques which are
small or are in the rural area or are such as mentioned in the affidavit
of Pondicherry Board and have no source of income and find out ways
and means to raise their income.
(ix) The exercise should be completed and the scheme be enforced within
six months.
(x) Our order for payment to Imams shall come into operation from
1st December 1993. In case the scheme is not prepared within the time
allowed then it shall operate retrospectively from 1st December 1993.
(xi) The scheme framed by the Central Wakf Board shall be implemented
by every State Board.
19. Wakf and Trust distinguished

The leading case on this point is Vidy4 Varuthi v. Balusami Ayyar' 05, in
which the Priq Council has laid down elaborate tests of distinguishing wakf
from trusts. These distinctions, along with others, may be formulated in a tabular
form as follows:106
Trust - Wa/cf
I. No particular motive is I. It is generally made with a
necessary. pious, religious or charitable
_________________________________ motive.
2. The founder may himself be a 2. The wakf cannot reserve any
beneficiary. right to benefit for himself,
except to some extent under
Hanafi Law.
3. It may be for any lawful object. 3. The objects must be recognised
by Muslim Law as pious,
religious and charitable and in
case of family settlement, the
ultimate object must be some
benefit to mankind.
4. Ile prop^rtv vests in the trustce. 4. The property vests in God.

105. (1921)48 IA 302.

106.The table borrowed from Verma, Mohammadwi Law
(3rd. Edn.) at pp 472-73.
 [CHAP.
264 MUSLIM LAW

Trust Wak

5. A trustee has got a larger power 5. A mutawalli is only a manager

than a niutczwalli. or superintendent.
6. It is not necessary that a trust 6. A wakf is perpetual, irrevocable
may be perpetual, irrevocable or and inalienable.
inalienable
he
It is valid for any object which is 7. Apart from these requisites, it
7. must be for objects recognised
not in contravention to law or
- as valid by Law.
morality.
8. It results for the benefit of the 8. The Cy pres doctrine is applied
founder when it is incapable of and the property may be
execution and the property has applied to some other objects.
not been exhausted.
flu
20. Position of family wakfs in incua.-rrooauiy
Muslim Law has been the subject of so sustained a controversy as wakf-alal-
aulad.
For the last seventy-five years the Privy Council regards it as a concealed
107 , while others criticise it oh the
means for the "aggrandisement of a family"
grounds-
(i) that it prevents the alienation, economic exploitation and improvement
of the wakf Property,
are apt to multiply with the passage
(ii) that the descendants of the wakif
of time, with the result that after some generations, the income would
have to be distributed in ever diminishing shares among scores of
beneficiaries, and108
(iii) that charitable aid often keeps people away from industry, and lethargy
breeds degeneration. 109
wakf-
The protagonists of wakf-alal-aulad, on the other hand, contend that
the vicissitudes of fortune, and its
a1a1au l1', helps mr.y families tu ukvive
dissolution could have a serious impact upon real estates resulting into grave
financial difficulties and complications. 110 Moreover, this is a sure way of saving
property from wasting hands of squandering descendants. Furthermore, the
concept of charity in Islam is wide enough to include the act of giving to one's
own family. In India, Privy Council's doubts regarding the validity of such wakfs
were statutorily removed with the passing of the Mussalman Wakf Validating

Abul Fata Mahomed Ishak v. RussornOy Dhur Chowdty, (1894-95)22 IA 76.

107.
Law in the Middle East, Vol. 1, edited by Majid Khadurt
108. See, Henry Cattan, "Law of Wakf", in
and LiebensY at p. 217 (Washington D.C. 1955).
277.
109, Fyzee. Outlines of Muhammedafl Law at p.
110. These are the observations of the Committee charged with considering the revision of the law
182; See also,
of v,akf, appointed by the Egyptian Parliament around 1946. Supra, n. 2. at
Syed Sulaiman Nadvi, 1-laynt-eShibli at p. 536 (Azamgarh 1943).
 Ix] WAKF 265

Act, 1913, but elsewhere, the Council still refused to overrule its decision in
Abut Fata case 111 "in spite of the fact that this has been recognised by all
competent persons as wholly mistaken interpretation of the Islamic Law".112
This prompted Hamilton, J., of Kenya to say:
"A study of the question shows that while the Muhammadan Law,
uninfluenced from outside sources, permitted perpetuities and the erection of
wakfs for family aggrandisement solely, the influence of English Judges and
of the Privy Council has gradually encroached on this position."3
Today, in India, family wakfs (wakf-alal-aulad) are faced with many
problems. Neither is their number in the country known nor is there any effective
administrative supervision over them. The callous indifference of beneficiaries
and mutawallis towards the maintenance and improvement of such wakfs has
thrown them into a pitiable condition. What really discourages Muslims to create
family wakfs is the growing awareness of the disadvantages of tying up property
in perpetuity where succeeding generations obtain smaller fractions of the
income, part of which is often squandered in vexatious and frivolous litigation
and duly 'absorbed' by unscrupulous lawyers. 114
The adverse effects of the laws of estate duty, income tax and land reforms,
etc., are crippling the institution of family wakfs. It is high time that Muslims of
India make a choice between this fast decaying institution and something more
useful. It may not be advisable to abolish altogether the institution which finds
strong religious and public support and has successfully salvaged many families
and properties from ruin, but its tenure and texture may be changed. A possible
substitute may be a limited kind of family wakf created for a specified time, say,
for a period of two generations, at the end of which it may be reconstituted
provided the beneficiaries agree to do So. 115
This view is taken after careful thinking, and is prompted by the following
words of Sir Joseph Jekyll:
"The law does abhor what is called a perpetuity—the reason of which is the
mischief that would arise to the public from estates remaining forever or for a
long time inalienable or untransferable from one hand to another, being a damp
to industry and a prejudice to trade, to which may be added the inconvenience
and distress that would be brought on families whose estates are so fettered." 16

ill. Abul Fata Mahomad Ishak v. Russomoy Dhur Chowdhary, (1894-95)22 IA 76.
112.J.N.D. Anderson, "Islamic Law in Africa: Problems of Today and Tomorrow", in Changing
Law in Developing Countries (London 1963) at p. 177.
113.Hamilton, J. in Talibu bin Mwijaka v. Executors of Siwa Haji, (1907)2 EALR 33.
114.Fyzee, at p. 278.
115.See, S.A. Majid, "Wakf as Family Settlement among the Muhammadans", IX Journal of the
Society of Comparative Legislation at p. 138.
116.Stanley v. Leigh, ( 1732) All ER 917 at p. 918.
266 MUSLIM LAW

Daniel Latifi has also pleaded for rethinking on the subject in these words:
"Modern Muslim jurists tend to view that the 1913 Act was a psychic
victory for the Muslims. Its social consequences were devastating. It blocked
any initiative by the Muslim upper class in the direction of industry. It
perpetuated a pathetic class of pensioners devoid of economic initiative.. .a
drag on the community. Distressed by these evils modem jurists favour
repeal of the Act of 1913 restoring thereby the law as it stood declared by
the Privy Council in Abul Fala case. The said decision is the law of the
Muslims in Kenya. It is submitted that in view of the recent amendments
introduced into the law of family wakfs in Egypt, Syria, Tunisia and
Lebanon, the Muslims should review their attitude and adopt a realistic
approach. 117 S -

Modem India at pp. 229-30.

117. "Law of family Wakf; Need for Reconsideration", IsIanfiC Law in
 x
Gift
(Hiba)

1. Introduction
"The policy of the M[u]hammadan Law appears to be," observed the Privy
Council, "to prevent a testator interfering by will with the course of the
devolution of property according to law among his heirs, although he may give a
specified portion, as much as a third, to a stranger. But it appears that a holder of
property may, to a certain extent, defeat the policy of law by giving in his
lifetime the whole or any part of his property to one of his sons, provided he
complies with certain forms."1
Thus, whereas Muslim Law allows testamentary disposition in the limit of
one-third, a gift inter vivos (from one living person to another living person) may
be made without any restriction; Muslim Law allows a man to give away the
whole of his property during his lifetime.2
2. Definitions
ABDUR RAHIM: "A transfer of a determinate property (mat) without an
exchange. Juristically it is treated as consisting of proposal
or offer on part of the donor to give a thing and of
acceptance of it by the donee. Until acceptance, the gift has
no operation."3
MULLA: "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.114

1. Ranee Khujooroonissa v. Roushun Jehan, (1876)3 IA 291: (1876)2 Cai 184 at 307.
2. Fyzee, at p.217.
3. Abdur Rahim, at p. 297.
4. MuIla, at p. 150.
268 MUSLIM LAW [ChAP.

FYZEE: "Hiba is the immediate and unqualified transfer of the

corpus of the property without any return."5
BAILLIE: "The conferring of a right in something specific without an
exchange."
The concept of contract underscores the concept of Hiba also; it is a contract
consisting of proposal or offer on the part of the donor to give a thing and the
Acceptance of the thing by the donee; the element of consideration only is absent;
and that distinguishes it from sale. The law of gift being regarded as a part of the
law of contract, following elements are prescribed for Hiba by the Muslim Law:
ljab—tender, Qabul—acceptance, and Qabza—(delivery of) possession.
3. Essentials of a valid gift
Writing and registration6 are not necessary for the validity of a gift. It may
be oral or in writing. In one case, 7 the validity of the oral gift has been upheld. It
was observed that the Muslim Law "permits an oral gift, but to make a gift valid
the following three essentials must co-exist:"
(i) a declaration of gift by the donor,
(ii) acceptance of the gift express or implied, by or on behalf of the donee,
and
(iii) dclivcry of possession of the subject of the gift by the donoi to tue.
donee. Delivery of possession need not in all cases be actual. It should
be delivery of such possession as the subject of the gift is susceptible."
However, this case has been distinguished by the same (Patna) High Court
later in Madhurani Singh v. Subhas Chandra Ghosh. 8 In this case the case of the
opposite party was not whether any oral Hiba was made in favour of the
petitioner or not. In case of oral Hiba registration may not be required, but if
there is a deed executed for giving any immovable property in gift to someone,
then it can only be by rçgistered document inasmuch as, an oral Hiba has to be
followed by delivery of possession, which alone can constitute valid transfer
under Muhammadan Law, and as such, where the claim of gift is based on
execution of a deed, then in the absence of anything on record to show that it was
followed by delivery of possession, the same cannot effect transfer of any
immovable property. (In other words, if the only proof of the existence of litha,
a gift of immovable property, is claimed to be a transfer deed executed (written

S. iyzee,atp.2I8.
6. When gift is created by a written instrument, and it relates to immovable property situate in a
place where any of the Acts relating to registration is in force, registration of such gift deed is
essential. But it is not so if the writing merely recites the fact of a prior gift. See, Fyzee, at pp.
219-20: Tyabji, at p. 350.
7. Syed Mold Salim Hashmi v. Syed Abdul Fateh, AIR 1972 Pat 219.
8. (1998) 1 BLJR 552.
X] GIFT (mBA) 269

document), then, unless that deed is registered, its entity is zero, and so, the Hiba
again becomes unproved). Because, Section 49 of the Registration Act says that
a document required by Section 17 of the Transfer of Property Act is ineffective
unless it is registered. That is, an oral Hiba is alright if it can be proved
independently, but if its existence is claimed on the basis of an executed deed
(written document), then that deed has to be a registered deed if immovable
property is involved). Because, said the Court, what the Section 129 of the TPA
saves is an oral Hiba, and not a Hibanama (Deed) executed.9
In Muslim Law oral gift can validly be made.'° A written gift deed
Hibanama need not be executed. If the oral gift fulfils the requisite conditions
(as discussed next just below), viz, declaration, acceptance and delivery, the gift
is complete. This declaration can be in writing and can be produced to prove the
factum of a completed gift. Such declaration need not be registered. The Kerala
High Court in M. Rawther v. Charayil" held:
"A deed of gift executed by a Muslim recording a gift made according
to the three conditions laid down by Muslim Law is merely evidence of a
completed gift. and as such is not compulsorily registrable and is admissible
in evidence notwithstanding Sections 17 and 49."
An example of such an oral gift and a written declaration can be found in G.
Mujeer Ahmed v. Mohd. Zafrul1& 2: a declaration for having gifted a property by
A to B on date reads as follows:
"That on date the donor declared his intention to give a gift of scheduled
property and made such declaration and ... there was acceptance by the
donee on the same day and delivery of possession was also made on same
date and consequently under Muslim Law the said gift was validated and
completed on same date."
Therefore, it was held that the document (declaration) could be understood
as a declaration of the gift and it is not a document requiring to be registered.
Thus, the three essentials of a gift are:
(1) declaration of the gift by the donor;
(ii) acceptance of the gift, expressly or impliedly, by or on behalf of the
donee; and
(iii) delivery of possession of the subject-matter of the gift to the donee.
See, for example, the facts in Abdur Rahman v. Athfa Begw& 3. A made a
deed only stating that she had transferred the scheduled property by way of

9. Madhurani Singh v. Subhas Chandra Ghosh, (1998) 1 BUR 552.

10. G. Mujeer Ahmed v. MoM. Zafrulla, (2000) 5 Kant LI 94.
11. AIR 1972 Ker27.
12. (2000) 5 Kant Li 94. See, further S. 4: Registration and S. 5: Constitutional Validity of Oral
Gifts (infra).
13. AIR 1998 Kant 39.
270 MUSLIM LAW [CHAP.

settlement deed upon the beneficiary B to hold it forever, subject to the condition
that A shall during her lifetime be entitled to the usufruct ('fruits' of the property,
i.e. income, etc. from it), and also right to reside in it. A did not make over the
possession of the property to B, not even symbolic, even the documents of the
title were not given, and the deed did not also recite that the gift was accepted by
the donee.
In these conditions the Karnataka High Court held the deed was not a valid
gift.
'Oral gifts made by Muslims are as legal and enforceable as gifts through
registered documents. If an earlier oral gift in proved is respect of its factum, it
will certainly have precedence over a subsequent written gift, even if registered.'
But the former must be proved, and if not, it is no gift at all. Thus, in ShaikAvula
Mastan v. Shaik Abid, A claimed that certain agricultural land was gifted to him
by X in 1967. 8, on the other hand pleaded that the same piece of land was in
fact gifted to him by X by a gift deed (i.e. a written gift document - hibanama) in
1979. A submitted no evidence to prove the fact of the oral gift having been
made; B, on the other hand proved the gift by documentary evidence. Therefore
A's claim was rejected and B's claim upheld)4
Where the settlement deed created only a life interest in favour of the
defendant and the executant did not say that he divested himself of the ownership
over the property. it was held the document was not a gift deed
If any of the above conditions is missing, the gift is not complete.
Here we must note that there is a distinction between a simple Hiba and
Hiba-bil-ewaz. As observed by the Kerala High Court recently:
"The consensus of the judicial opinion is that Hiba-bil-ewaz in India is
not a gift but is a transaction in the nature of sale, and if it relates to
immovable property of the value of Rs 100 or onwards it can only be by a
registered instrument as provided under Section 54 of the Transfer of
Property Act."16
(i) Declaration.—Declaration does not mean simply an announcement of
the gift but it also entails that the donor should have a real intention of making
the gift. Tyabji says: "Where there is no real and bona fide intention to transfer
the ownership of the subject of gift, an alleged gift may be of no effect." 17 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

14. (2007) I ALD 793; A.P. HC.

15. Chandma Bibi v. 5k Mo/id. Sahib, 1997 Mad UR 631 Mad HC.
16. Inibichimoideenkutty v. Pathumunni (imma, AIR 1989 Ker 148 at p. 151.
17. Tyabji, at p. 347.
X] GIFT (mBA) 271

option of the creditors. Such intention however cannot be inferred from the mere
fact that the donor owed some debts at the time of the gift. 18
(ii) Acceptance.—The donee must accept the gift. This acceptance may be
express or implied (that is, by conduct). But the gift of a debt to a debtor or his
heir is valid without acceptance and is not invalidated by his rejection. For
example, A owes Rs 100 to B. B makes a gift of this debt of Rs 100 to A, which
A does not accept and insists on paying the money to B. The gift shall, however,
be valid and effective even on A's refusal to accept it. Also, no acceptance is
required when gift is to a son or ward by the father or guardian. 19
The acceptance of the gift must be by a person competent to accept. Till the
gift in favour 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 favour of minor children and one of the donees 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.20
(iii) Delivery of possession.—When the donor makes a declaration of a gift
and the donee accepts, then the possession of the thing gifted should also be
given to the donee. Such delivery of possession may be actual or constructive.
Normally, the question as to whether possession has been delivered to make
the gift complete is considered relevant only when such an issue is raised
between the donor on the one hand and those claiming under him on the other.
Once the donee accepts the gift and was also specifically found to have been,
even on the date of the gift deed, in possession of the property, it is not given to
persons other than the donor, who was alive, to challenge the validity of the gift
on the ground of want of delivery of possession.21
If there are more donees than one, possession by one co-sharer is presumed
to be in the name and on behalf of other co-sharers. If the co-sharer does not
admit claim of a person believing that the real co-sharer is someone else, then he
cannot be held to put up an adverse claim to the whole of the gift property,
excluding the claim of any other co-sharer. He should be considered as only
expressing his doubt about the title of a particular co-sharer.22

18. See, Mulla, at p. 150. And where a gift was claimed to have been made by a gift deed but not
known to any of the heirs of the donor, he died, the claiming son could not explain how that
hiba remained a secret from every member for 30 years, it was held the gift cannot be termed
as valid - Mohd. Ibrahim Khan v. Azad Rasul & Co., AIR 2008 Raj 187 (NOC).
19. Alibai v. Bai Asi, AIR 1934 Bom 21.
20. Abdul Gafoor v. Abdul Samadh, 1998 AIHC 2907.
21. Syed Muslan v. Syed Mubarak, 1997 Mad LJR 92.
22. Sabura Animal v. All Mohd., AIR 1970 Mad 411.
272 MUSLIM LAW [CHAP.

Registration of gift deed could not in any way do away with the need of the
delivery of possession. Thus, for example, where A makes a gift of a house
belonging to him in favour of B, through a registered deed, but does not deliver
the possession to B, the gift is incomplete, and therefore void.23
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 of.24
Thus, if A makes a gift of the corpus of a property to B, but reserves the
usufruct to himself and continues in physical possession of the property, the
payment by B of Government revenue after the date of the gift in respect of the
property, amounts to constructive possc ssion of the property by B, and the gift is
complete and valid.25
Or, if A makes a gift to B of his landlord rights over lands in the occupation
of tenants, the gift is complete as soon as the tenants, by direction of A, have
paid, or undertaken to pay, rents to B.26
Or, where A makes a gift to B of a promissory note which becomes payable
on delivery and endorsement, the gift is complete as soon as the note has been
endorsed and delivered to the donee.27
Or, A, having a deposit account at a bank, hands over to B the bank's receipt
for the same, saying, "After taking a bath I will go to the bank and transfer the
papers to your name." A dies before accomplishing his promise. This is not a
valid gift of A's claim upon the bank, and B takes nothing by it.28
A gift of immovable property of which the donee is in actual possession is
not complete unless the donor physically departs from the premises with all his
goods and chattels, and the donee formally enters into possession.29
A gift of immovable property which is in the occupation of tenants may be
completed by a request of the donor to the tenants to attorn to the donee, or by
delivery of the title deed, or by mutation in the Rnu R..gi5tcr.
In case of an equity of redemption, a gift of the equity may be made validly
by the mortgagor giving to the mortgagee a proper notice that the ownership in
the property has been transferred to the donee, subject to the rights of the

23. MuIla, at p. 158. V

24. Fyzee, alp. 237, citing Kairum Bi v. Mariam Bi, AIR 1960 Mad 447.
25. Mulla,atp. 158.
26. Wilson, at p. 344.
27. ibid.
28. Ibid.
29. Mulla, at p. 161. But see, Exception (a) infra.
X] dilFr(HIBA) 273

mortgagee. In such a case, physical possession need not, because it cannot, be

transferred.30
In one case31 the Court held:
"A distinction has to be made between a gift of the entire property and a
gift of a parcel of it. A property which is made the subject of a usufructuary
mortgage is split up into two parcels: the equity of redemption and the
mortgagee's rights. The equity of redemption is as much property as
mortgagee's rights in the mortgage and there is no bar to a person owning
only the equity of redemption, making a valid gift of the same...
(Thus) where the property gifted is subject to a usufructuary mortgage,
what is gifted is merely the equity of redemption and not the physical
possession of the property itself. The equity of redemption is not capable of
being physically delivered and the donee cannot be put in actual possession.
Authorising the donee to redeem the mortgage and take possession of the
property, by incorporating a declaration to that effect in the gift deed, it
could be spelled out that such possession as the property was capable of was
delivered and, therefore, there was a valid gift of the property."
Exceptions to this general rule.—There are certain cases in which delivery
of possession is not necessary at all. These exceptions are as follows:32
(a) Donor and donee reside in the same house.—In such a case, the donor
can complete the gift without physical transfer of possession.
A Muslim lady, who had brought up her nephew as her son, executed a deed
of gift, in favour of the nephew, of a house in which they were both residing at
the time of the gift. The lady never departed from the house physically, nor was
the house formally given to the nephew, but the property was transferred, and the
rents were recovered, in his name. It was held that the gift was valid, although
there was no physical delivery of possession.
The Madras High Court in Ibrahim Bivi v. Pakkir Mohideen 33 held "that
where the property gifted is a house and the settlor and the settlee reside in that
house, it is not necessary for the settlor formally to depart from the house in
order to indicate that the settlee has been given possession of the property
gifted." This view l'as been taken because of the clear pronouncement of the
Privy Council to the 3ime effect in Musa Miya v. Kadar Bax34 and that of the
Supreme Court in Katheessa Umma v. Narayanath Kunhamu35.

30. Fyzee, at p. 232.

31. S. Khaioon v.AmirAli, AIR 1972 AP 243.
32. Fyzee, at pp. 232-237.
33. AIR 1970 Mad 19.
34. AIR 1928 PC 108.
35. AIR 1964 SC 275.
414 MUSLIM LAW [CHAP.

But mere living together does not always mean that delivery of possession is
not necessary.
For instance, a Muslim lived in the house of his sister and made a gift of his
estate to the sister's son. There was no delivery of possession of the estate and it
was held that the gift was invalid. Here it must be noted that the subject-matter
of gift was not the house in which the man and his sister lived but some other
property.
Similarly, a Muslim lady executed a deed of gift in favour of her nephew of
a house in which they both resided. The deed contained no mention that
possession was given to the nephew. The gift deed was also not delivered to the
nephew, and the lady continued to pay Municipal taxes. In these circumstances,
it was held that the gift was invalid.
P and D were sons of deceased X. D claimed to be owner of suit property-a
certain house, on basis of gift deed executed by his deceased father in his favour.
D was not living in that house, in fact it was rented out to tenants by X. There
was no evidence to show that the tenants had attomed D to collect rent in respect
of that house ('attorned' means to acknowledge him as landlord and self as his
tenant and consider him as authorised to collect rent as owner). So, D has failed
to prove delivery of possession, gift deed was not valid.36
Similarly, even where donor and donee are living together (in the same
house), though actual physical possession may not be given by aonor to aonee,
some overt act in furtherance to hiba was essential to complete the gift37.
In Pocker v. Kathiya,38 the Kerala High Court has held that a Muhammadan
gift will not be éomplete unless there is delivery of possession of the property
gifted. Even if the donor and donee reside together, separate parting away of the
property is essential. Where the donee has taken actual physical possession of the
house after execution of the gift deed, the gift deed will not become invalid on
the ground that the donor continued to live in the suit hou.39
(b) Husband to wife.—Where a married couple lives in a house which
belongs to the husband, the husband may make a gift of the house to the wife,
without physical delivery of possession. In Amina Bibi v. Khatija Bibi40 a
husband had made a gift of his house to his wife. He had given the keys of the
house to the wife, left the house for a few days, but had returned afterwards and
lived with her till his death. It was held that the gift was valid.'"

36. Sir- Abdul Zabar v. Sk. Abdul Razak, Orissa HC, (2008) AIHC 3448.
37. Mohd. 1brhim Khan v. Azad Rasul, (2008) 1 CCC 201 Raj HC.
38. (2000) 1 KLT 430.
39. Chanda Bai v. Shaida Jan, 1996 AIHC 3586 All.
40. (1864) 1 Born HCR 157.
41. The other leading case on the subject is Ma Mi v. Kallander A,nmal, (1927)54 IA 23. The
same rule is applicable in the case of wife making a gift to the husband (Fyzee, at p.234).
X] GIFr(HIBA) 275

When donor and donee are husband and wife and reside in the same
property, gift can be completed by some overt act by the donor and donee. When
the deed recites that possession has been handed over, the burden to prove to the
contrary is on the person who disputes that claim. The husband executed gift
deed in favour of his wife; it was stated therein that the possession was
transferred to the wife. The donor and donee were residing in the same property.
Held it was not necessary for the husband to physically depart from the house,
nor was formal entry in the name of the donee essential. The reason being they
were husband and wife. Moreover, the gift deed mentions transfer of possession.
The gift deed executed in the wife's favour was held to be a valid gift under
Muslim Law.42
Cases mentioned in (a) above are also applicable here.
In Mohd. Sadiq v. Fakra Jahan 43 the husband wrote a gift deed in favour of
his wife declaring that he had gifted and delivered the possession of his property
to her. The gift deed was delivered to her but the mutation was not done. The
court held that as the donor and the donee were husband and wife, delivery of
possession was not necessary. There was evidence of his intention to gift the
property and this was manifested by the delivery of the gift deed which declared
that delivery of possession was done. Even the mutation was not indispensable.
The gift was held to be effective.
On similar facts, where the donor created a gift inter vivos in favour of his
wife and minor children who were residing with him in the same house, the High
Court held that considering relationship between donor and donees actual or
physical delivery of property by donor and acceptance of same by donees was
non-called for. In this case the mother had accepted the gift for herself and her
minor children; held a valid acceptance.
Now consider the following facts and offer your solution before consulting
the citation. The donor was the husband and donee the wife. The donor through a
registered deed declared gift of the property to his wife and through her to her
minor children. Acceptance by her was also contained in that deed. Delivery of
possession was also declared. She was entitled to get the property muted in the
name of the donees. Both parties were residing together. The donor reserved
right to reside and manage the property and collect rents and change tenants. In
these circumstances was it a valid gift?45
In another case the husband gifted his immovable property to his wife and
got the mutation done in the public records in her name. He, however, continued

42. Pathumnia v. Pokku, AIR 1998 Ker 134.

43. (1932)59 IA I.
44. K. Abdul Hameed v. Sabira Begum, (2006) 7 AIR Kant R 289 Kant (DB).
45. Halimbibi v. Abdul Raheman Abdul Rahim Gopipura, Surat, 199bAIHC 1553 Guj HC.
 276 MUSLIM LAW [CHAP.

to live in that house and kept realising the rents. It was held that the donor and
donee were husband and wife and so could continue to live with her in that
house. The act of collecting the rents was deemed to have been done on her
behalf.46 Even the delivery of the registered gift deed by the husband to the
mother of the minor wife and the mother's acceptance were held to constitute a
complete gift. Both the husband and the wife were living in the house of the
wife's mother, and the wife had no father or grandfather alive, nor any executor.
The delivery of the gift deed to her mother instead of the minor wife herself did
not invalidate the gift, as the intention was well established.47
(c) Father to child: Mother to son: Guardian to ward.—No transfer of
possession is necessary where a father or mother makes a gift of immovable
property to their minor child. The same is the rule between guardian and ward.
The rationale of this principle is that it would be absurd if the owner of the
property (that is, parent) hands over possession to himself as guardian of the
child.
But if a gift is made to a minor by a person other than the father or guardian,
delivery of possession to the father or guardian is necessary.
Fyzee says that since the real basis of the exception is that delivery of
possession is excused only when legal guardianship of the minor vests in the
donor, thus, a gift by a person other than the father or guardian is complete only
by the seisin48 of the father or guardian. Thus a mother, who is not a legal
guardian, cannot accept a gift on behalf of her minor child, if a legal guardian
exists.
However, the following observations of the Court in Ibrahim Bivi v. Pakkir
Mohideen49 have also to be kept in mind:
"It is not necessary that in all cases, the donor should hand over
possession to the natural guardian of the minor donee. In proper
rirc,,rn.SiflflCCS the donor can titht constitute himselt as the guardian or
indicate some person, other than the natural guardian of the minor, as the
guardian of the minor's property and hand over possession to such guardian
if circumstances are such as to justify such a course of action."
Where the donee is residing in the suit property along with the donor as his
son, and is a major, no interference of a guardian is required. The facts of the
case were as follows: The donor had no issue of his own. He had accepted the
donee as his son. The donee was residing with donor since the age of six months
till the death of the donor. The donor orally gifted suit property to the donee,

46. Ahima v. Khat,ja, (1864) 1 Born HCR 157.

47. Kabisa Umma v. Pathakia Narainath, AIR 1964 SC 275.
48. Seisin-taking possession.
49. AIR 1970 Mad 17.
X] GIFT (mBA) 277

handed over possession to him. The gift was recorded in a memorandum. The
donor continued to stay with the donee and had agreed to pay rent for the same.
The Gujarat High Court held the gift as a complete gift according to Muslim
Law and as such it was excluded from registration and stamp duty. 50 [This case
can also fit into sub-head (a) (supra).]
Daughter, her husband and their two minor sons were living in the house of
the daughter's father. He gifted his landed property to the two grandsons, but
neither effected mutation of the property nor handed over possession to the
father of the two sons in the capacity of their legal guardian, and also continued
to manage the property. On these facts the Privy Council held that the gift was
not complete because the father, not the grandfather, was the legal guardian of
the sons and there was no reason to relax the requirement of delivery of
possession. The mere fact that the grandfather was bringing up the children did
not justify an exemption from the rule. 51 By 'legal guardian' what is denoted in
this context is the legal guardian of the property. Father, his executor, father's
father and his executor—are the legal guardians of a minor's property—in that
order. So long as any of the above four are alive and capable, delivery of
possession must be given to one of these in that order, even if the gift is made by
grandfather—paternal or maternal. Mother is not legal guardian if the father is
alive, so even she has to deliver possession to the father of the minor if she gifts
property to her minor sons; but not so if none of the legal guardians is alive.
(d) Gift to donee in possession.—Where the subject of the gift is already in
the possession of the donee, the gift is complete by declaration and acceptance,
without formal delivery of possession.
A piece of cloth is deposited with R, who says to the owner, 'Give it to me'.
The owner says, 'I have given it to thee'. The gift is complete, as the donee is
already in possession of the thing gifted.52
A makes a gift, without delivery of possession, of a house to a servant in his
employ for the collection of rents. The gift is void, for a servant who only
collects rents cannot be said to be in possession of the house of which he collects
the rents.53
4. Registration

A gift may be oral or written. A written document may be only a statement

of the fact of a prior gift or it may be an instrument by which the gift is effected.
The former needs no registration, the latter must be registered. So only an
instrument of gift needs registration. The Indian Registration Act, 1908 (relevant

50. Pathan Talibkhan Abdul v. Pathan Huseukhan Abdul, 2001 AIHC 1400.
SI. Musamian v. Kader Bux, AIR 1928 PC 108.
52. Tyábji, at p.418.
53. MulIa. at p. 169.
278 MUSLIM LAW [CHAP.

Sections 16 and 49) does not prescribe a registered instrument for a valid gift, it
only requires that if the gift is effected by a written instrument, then it must also
be registered. Attestation is not essential. So an oral gift is not ruled out by the
Registration Act, and is recognised by the Muslim Law. In Kamarunnissa Bibi v.
Hussaini Bibi54 a verbal gift of landed property followed by transfer of
possession was considered valid. Sections 122-129 of the Transfer of Property
Act, 1882 deal with gifts. By Section 123 it is provided that a gift of immovable
property must be effected by a registered instrument signed by the donor and
attested by at least two witnesses, and that a gift of movable property may be
effected either by a registered instrument signed as aforesaid or by delivery. But
Section 129 exempts Muhammadan gifts from the application of Section 123.
The rule that a Muhammadan can make an oral gift is a general rule, it must
therefore give way to any special rules relating to any gift of any particular
kind of property. Thus where the Bihar Tenancy Act required that gift of
occupancy holding must be effected by registration, that being a special Act,
the exemption under Section 129 was not available. 55 Again, a Hiba-bil-ewaz
being regarded as a transaction in the nature of sale and not a gift in the general
opinion of the courts, it could only be effected by a registered instrument under
Section 54 of the Transfer of Property Act if it related to an immovable property
worth Rs 100 or more.56
The Andhra Pradesh l4ich Court makes out ver y clear the distinction
between an oral gift reaffirmed by - or placed in memory by a written
document and a gift by written deed. It says: If unregistered document is one
which merely refers to a previous oral gift, it can be acted upon, notwithstanding
the fact that it was not registered. However, if gift is made through such
unregistered document itself, registration becomes compulsory 57. Further, the
High Court clinches the finality of an oral gift in another case by saying that
'oral gift on a particular date if proved to be true will take precedence over a
written gift deed for the same property dated subsequent of the above oral gift
even if it is through a registered gift deed written down. Because a
Muhammadan gift becomes complete when it is made orally and then the same
property cannot be gifted again even by writing.
5. Constitutional validity of oral gifts
In a judgment delivered by Mr Justice V.R. Krishna Iyer in Makku Rawther
v. Manahapara Charayil59 it was held that oral gifts of "secular" as

54. ILR (1880)3 All 266 (PC).

55. Bibi Sharjfan v. Sk Salahuddin, AIR 1960 Pat 297.
56. Jmbichiinoideenkulty v. Pathumunni Um,na, AIR 1989 Ker 148.
57, Chand Bee v. Hameedunnissa, (2007) 1 An LD 810.
58. Sk. Avula Mastan v. Sk. Abid, (2007) I An LD 793.
59. AIR 1972 Ker27.
X1 GIFT (HIBA) 279

dist,inguished from gifts of "religious" nature should conform with the

requirements of writing, attestation and registration as laid down in Section 123
of the Transfer of Property Act, 1882, in order to survive the scrutiny of Article
14 of the Constitution. By classifying gifts into religious and secular categories,
this judgment imports into the fabric of Islamic Law something which was
hitherto unknown. It therefore requires a close consideration.
Section 129 of the Transfer of Property Act provides that "Nothing in this
Chapter (which deals with gifts) ... shall be deemed to affect any rule of
Mohammadan Law."
Section 123 lays down the manner in which a gift has to be effected and
prescribes the need for a registered instrument signed by the donor and attested
by at least two witnesses if the subject-matter is immovable property.
Now, according to Krishna Iyer, J., the Muslim jurists, though evolving the
three ingredients of declaration, acceptance and vesting of possession, do not
give any "hint anywhere of any taboo of a MussWman reducing a gift to writing,
to get it attested or to get it registered by any public authority." He then goes on
to assert that "there is absolutely no conflict between Section 123 and the rules
of Muslim Law except, may be where religious or charitable gifts are made."
Seen in this context, it is not justifiable to classify various communities for
purposes of documentation, attestation and registration of purely secular gifts.
"The position may be basically different in wakfs, trusts and gifts of a
religious or pious or charitable nature like sadaqa. Indian humanity is not
secular enough to obliterate religious sentiment. Article 25 protects the right
to religious practice and Article 15 does not proscribe religious grouping
altogether. So much so, gifts prompted by piety or possessed of a sacred
savour may be classified on a religious differentia; not so, purely secular
transfers. A gift by a Muslim paramour to a heathen mistress cannot claim
immunity from Section 123 on godly grounds. To hold that any gift, be it of
the most mundane and profane category or not, is absolved from the
reasonable prescriptions of Section 123 of the Act by the mere incantation of
a particular religion is to make a shambles of Articles 14 and 15(1) and
simulacrum of Article 44. The old laws must be tuned up to the new law of
the Constitution and the spirit of the times. Religious and charitable transfers
stand on different footing."
According to Krishna Iyer, J., such a reading of the Muslim Law of gift will
not go counter to Section 2 of the Shariat Act, 1937, because—
"the application of Muslim Personal Law to gift precludes the
application of other laws which do not run counter to the rules of Muslim
Law... Moreover, the expression 'gifts' in Section 2 along with trusts and
trust properties and wakfs takes colour from the society of these words."
280 MUSLIM LAW [CHAP.

"It is therefore right as a matter of construction to limit the scope of the

expression 'gift' in Section 129 of the Act to that category of gifts which
have a religious import or charitable motivation. ...Purely secular gifts
cannot get the protection of Section 129 if that provision is read down to
vindicate a reasonable classification."
"Whatever mi ght have been the content of the word 'gift' in Section 129
when it was originally enacted, its meaning has to be gathered today in the
constitutional perspective of Articles 14, 15, 25 and 44. As years go on,
meaning of words change and the changing circumstances illuminate the
new import of that meaning.. .when interpreting the provisions of law,
susceptible to different meanings, a judge has to pay due regard, though to a
limited extent, 'to the policies which he believes to represent the sober
second thought of the community that framed it and are suited to its
inarticulate needs'."
With great respect to the learned judge it is submitted that the thesis
propounded by him creates more problems than it solves. First, it is impossible
to differentiate between religious and secular gifts in all cases, because, to repeat
the oft quoted dictum of Mahmood, J., "It is to be remembered that Hindu and
Muhammadan Laws are so intimately connected with religion that they cannot
readily be dissevered from it." Second, the argument of the learned Judge that "a
gift by a Muslim paramour to a heathen mistress cannot claim immunity from
Section 123 on godiy grounds is a sworn mat cuts oom ways. ii me rviusiim
paramour" says that the gift to the, "heathen mistress" is sadaqa, to compensate
her for the many "difficulties" that she had undergone; there is hardly any
ground to reject his contention, nor there is anything in Islam prohibiting such a
woman to be the recipient of such a sadaqa.
As is well known, the concept of charity in Islam is very wide. An act which
ordinarily may not look charitable is really so under Islam. Thus, a gift to one's
own descendants or relations will be charitable. In majority of the cases,
t1icforv, tht disdnction between religious or charitable and non-religious or
non-charitable may become extremely difficult. To entrust this delicate and
nearly impossible task to a Judge is to give him unbridled power leading either to
miscarriage of justice or confusion.
Third, regarding the contention of Justice Iyer that the old laws must be
tuned up to the new law of the Constitution, it is submitted that where a person
was having some right by virtue of his personal law, it was not truncated upon by
the Constitution. Provisions of Muslim Law relating to polygamy, unilateral
power of divorce by husband, the rule of inheritance whereby male takes double
than a female, the apostacy and its effect on marriage and maintenance, are only
a few examples where equality before law is affected either on the ground of
religion or sex, and still Article 14 is of no help.
X] GIFT(HI8A) 281

Fourth, Justice Iyer's contention that "the expression 'gifts', in Section 2 (of
the Shariat Act) along with trusts and trust properties and wakfs takes colour
from the society of these words" is hardly convincing. He completely ignores the
fact that in case of trusts and wakfs there is no express exemption from
registration and attestation as in the case of gift by virtue of Section 129, which
could not be impeached merely on the ground that it will come in clash with
Article 14 of the Constitution in case it includes secular gifts. If religious object
of a gift could save it from the requirements of registration, etc., as Justice Iyer
contends, trusts and wakfs having religious objects must also be so exempt. But
they are not. Because there is no statutory exemption in their case as in gifts.
Fifth, in view of the established principles of Muslim Law, Justice Iyer's
classification of Muslim gifts into religious and secular groups, granting one the
privilege of being orally made, goes against the norms of interpreting Muslim
Law. Because, "if one finds a question well thrashed out and in later centuries a
particular interpretation adopted by the leading doctors and textbook writers, it
would not be proper for us in the twentieth century to go behind such a
consensus of opinion and decide a point contrary to that opinion. ...That a course
of action would unsettle the Muhammadan Law". Although these observations of
Sir Shah Sulaiman, C.J., in Anis Begam v. Mohd. Istafa6° were expressed in
another context, yet they hold good in the present case.
There is another side of the matter which also deserves consideration.
Registration of a gift deed is not an anti-religious or sacrilegious act. It does not
interfere with the observance of religious rites. It ensures a proper authentic
record of the property transaction which is ultimately beneficial to the parties
themselves. As the Muslim jurists have themselves acknowledged in their
definitions, hiba is regarded as a part of the law of contract, the concept of
contract underscores the concept of hiba. Just as other sales and contracts by
Muslims are subject to the civil laws of the country, there is nothing unusual in
covering these transactions also under the ordinary civil laws. The only grudge
can be on account of the requirement of registration fees, but no Muhammadan
jurist has claimed or justified immunity from the secular taxation. An exemption
from some legal formalities should be claimed in such areas where it is essential
to keep intact religious rites, ceremonies or observances of essentially religious
character. Too much insistence on immunities lom general laws of the land
breeds separatist tendencies. Instead of advancing hairsplitting arguments to
claim an immunity, the Muslim society should willingly come forward to claim
maximum integration with the general legal system of the country.6'

60. ILR 1933 All 743.

61. Muslims derive benefit from the provisions of the Insurance Act—See infra, at p. 229—
'Insurance policy'.
 MUSLIM LAW [CHAP.
282

Nonetheless, oral gifts of every kind can still be made in all the states, except
Kerala.
6. Who can make gifts
Every Muslim male or female who is major and sane may make a gift,
provided he or she is not subject to any force or fraud. A married Muslim female
can also make a gift.
Where the female is a pardanashin lady, she is presumed to be ignorant of
the result of her acts. Thus, where a pardanashin lady signed a gift deed
believing that it was to take effect only after her death, it was held that the
transaction was not voluntary, and the deed was void.62
Ordinarily when a competent person makes a gift but later claims to have
done it under undue influence, etc., has to prove that alleged fact. In exceptional
cases like those of a pardanashin lady, the onus of proof may shift to the person
claiming the benefit of the gift. There is no hard and fast rule in this regard. In
several cases where it appeated that the donor did not fully un.etand the
implications of the gift made by him or her, the courts have regarded the
transaction as wholly ineffective. Otherwise, where the understanding could
clearly be established, the courts have refused to presume the existence of undue
influence.63
If the donor is sufienng trom me aeatn-iiiness, or maraz-ul-maur, suen a gin
is a called donatis mortis causa. Strictly, it is neither exactly a gift, nor exactly a
legacy (will), but a mixture of both.
In order to constitute the death-illness, it is essential that-
(i) the illness must cause the death of the ill person;
(ii) the illness must cause apprehension of death in the mind of the
deceased64 ; and
(iii) there must be some external symptoms of a serious illness.
A gift made during maraz-ul-maut cannot take effect beyond one-third estate
of the donor, after paying funeral expenses and debts, unless the heirs give their
consent, after the donor's death. Nor such a gift can take effect, if made in favour
of an heir, unless the other heirs give their consent, after the donor's death.65

62. Fyzee, at pp. 224-25.

63. MahL'oob Khan v. Abdul Rahim, AIR 1964 Raj 250.
64. Where on basis of facts the Court comes to the conclusion that a person suffering from TB for
last two-to-three years and making an oral gift and then death ensuing one month later-there
was no apprehension of death in his mind, the gift would not be treated as marj-ul-maut gift.
- Sk. Nurbi v. Pathan Mastanbi, (2004) 3 CLT 364 (AP).
65. Mulla, at p. 147.
xJ GIFT (HIBA) 283

A gift in death-illness takes place only when the donor dies. Such a gift is
subject to all the conditions necessary for the validity of a simple gift, including
delivery of possession by the donor to the donee.
An insolvent may also make a hiba with bona fide intention; but a gift to
defraud the creditors is voidable at their option. The mere fact that the maker of
the hiba owed some debts does not raise a presumption that the hiba was made
to defraud the creditors. Thus rushd (sanity), bulugh (majority), maliki
(ownership) and free mind or no undue influence—are the ingredients of
capacity to make hiba.
7. In whose favour (donee)
A gift may be made in favour of the following:66
(i) Any living person who is capable of holding property.—Thus, strictly
speaking, a gift to an unborn person is invalid. Take the example of A, who
makes a gift to B, and aftei B's death, to his male heirs. B has got no male heirs
at the time of the gift. The gift is invalid.
(ii) Child in the womb.—A gift to an unlom person may be made provided
the child is born within six months from the date of the gift, because, in that case,
it is presumed that the child was actually existing as a distinct entity in the
womb.
(iii) Unborn person.—A gift of a limited interest in the usufruct to property
(ariat) may be made to an unborn person provided that the person is in existence
when the interest opens out for him. Thus, if a life interest is granted to A and
thereafter to B it is sufficient if B is in existence at the death of A;
notwithstanding the fact that at the time of making the gift, B was non-existent.
(iv) Juristic persons.—Gifts may be made validly to such juristic persons as
mosques,67 durgahs, and charitable institutions like schools.
(v) Non-Muslims.—A gift may be made to a non-Muslim. The gift property
will be subject to the personal law of the donee, once he gets possession of it.
(vi) Two or more persons.—Where a gift is made to two or more donees
without dividing the property, its validity is governed by the provisions of the
doctrine of mushaa (discussed later on in this Chapter).

66. Verma, at pp. 535-36.

67. Mulla however has doubted whether a mosque has been unexceptionally accepted as a juristic
person. Citing this doubt of Mulla the Gauhati High Court in Mst Sahida Khatun v. Secy.,
Tezpur Hindustani Muslim Panchayat, (2001) 2 GLR 93 has held that a mosque is not a
juristic person; Suits cannot be brought by or against mosques as artificial person.
284 MUSLIM LAW [CHAP.

8. What may be given in gift

All mal or forms of property over which control may be exercised are proper
subjects of gift. These include all ma!, whether ancestral or self-acquired,
movable, or immovable, corporeal or incorporeal.
A corporeal thing means that which exists in material form, for example,
money, house, land, etc. whereas incorporeal property means that which does not
exist in material form, for example, uebts, choses in action, a right to receive a
specified share that may be made by pilgrims at a shrine, an insurance policy
notwithstanding the fact that the money is not existing and is to be realised in
future, equity of redemption, Government promissory notes, negotiable
instruments, etc. It is useful to examine in detail the validity of gifts of some of
the above incorporeal properties. Since delivery of possession is an essential
ingredient of hiba, one view is that hiba of incorporeal objects is not possible
since their physical possession is not possible. However, this is not so, hiba of
incorporeal property can also be made. When a gift of actionable claim is made
by an instrument in writing, the Gujarat High Couit holds tue view that the
acceptance of the gift by the donee is essential. 68 Mulla says—'The donor must
so far as it is possible for him, transfer to the donee that which he gives, namely,
such right as he himself has; but this does not imply that where a right to
property forms a subject of gift, the gift will be invalid unless the donor transfers
what he himself does net possess, namely, the corpus of the prcpert. :
evidence the reality of the gift by divesting himself so far as he can, of the whole
of what he gives.'69
(a) Equity of redemption.—A Muslim mortgagor can make a valid gift of
his equity of redemption even if the mortgagee is at the time in possession.70
Thus, for example, where A owns six immovable properties and mortgages three
with possession to M, and then makes a gift of all the six properties to D and puts
him in possession of the three properties not mortgaged to M, it has been held
that the gift is valid.
(b) Insurance policy.—The Insurance Act of 1938 makes a statutory
provision whereby any person can, in certain circumstances, assign his policy,
his personal law notwithstanding. Section 38 deals with assignment and transfer
of insurance policies. By way of one very common illustration—a Muslim
husband (H) insures himself and assigns his policy to his wife (W), with the
condition that if W predeceases H, the assignment will be inoperative and the
interest in it will revert to H. This transaction may be considered as creating a
valid contractual obligation between the insurer and the assured. Tyabji argues

68. Iqbal v. CED, AIR 1964 Guj 452.

69. See, Mulla (1977) at p. 166.
70. Fyzee, at p. 227.
X] GIFT (mBA) 285

that the matter is outside the pale of Muhammadan Law and such transactions
are valid. Or else it may be regarded as a gift by a Muslim vitiated by a
contingency and therefore invalid under Muhammadan Law. Or it may also be
argued that it is a valid gift with a condition annexed, hence the condition is void
and the gift valid. To do away with all these difficulties, Section 38(7) of the
Insurance Act lays down that notwithstanding any law or custom having the
force of law to the contrary, an assignment in favour of a person made with the
condition that it shall be inoperative or that the interest shall pass to some other
person on the happening of a specified event during the lifetime of the person
whose life is insured, and an assignment in favour of the survivor or survivors of
a number of persons, shall be valid. 71 Thus, a husband may assign his insurance
policy to his wife by a valid endorsement that on the condition that in the event
wife predeceases him, this assignment shall become null and void. It was held
that the gift was valid.
Or, X may assign his policy to Y, on the condition that if X dies in Y's
lifetime, the interest in the policy shall go to Z or, X may validly assign his
policy to A, B, C and D, or the survivor or survivors of them in equal shares.
(c) Property held adversely to donor.—Where a donor has a property
which is in adverse possession of another person, then the donor cannot make a
gift of this property unless he obtains and delivers its possession to the donee.
A executes a deed of gift in favour of B, conferring on him the proprietary
right to certain lands then in possession of Z, and claimed by Z adversely to A. A
dies without acquiring possession of the lands. After A's death B sues Z to
recover possession from him. The suit must fail, for the gift was not completed
by delivery of possession to B.72
But, if the donor cannot regain actual possession from the adverse possessor,
he shall do all that he can to complete the gift so as to put it in the power of the
donee to obtain possession.
X makes a gift of immovable property in favour of Y. At the time of the gift
property is in the possession of Z who claims ii' adversely to X. Y sues Z to
recover possession joining X as a part defendant. X by his written statement
admits Y's claim. Z contends that the gift is void, for at the time of the gift Z was
in possession and no possession was ever given to Y. The gift was held to be
complete and valid, for the donor has done everything in his power to complete
the gift.73
(d) Gift of corpus (ayn) and usufruct (manafi).—The corpus may be given
as gift (hiba) but where only the usufruct is given, it is not hiba but ariya.

71. Fyzee, at pp. 222-23.

72. MulIa, at p. 137.
73. Fyzee, at p. 228 citing Mulla.
 286 MUSLIM LAW [CHAP.

However, it does not mean that Muslim Law does not allow gifts that do not
transfer full ownership. Life interests are considered valid; so also the following
gifts: (a) the right to collect a specified share of the rent of undivided property,
(b) rights in Zamindari lands, etc.
In the leading case on the subject 74 the Privy Council made a distinction
between the gift of the corpus and usufruct and observed that over the corpus of
the property the Muslim Law recognises only absolute dominion, heritable, and
unrestricted in point of time; but where a gift of the corpus seeks to impose a
condition inconsistent with such absolute dominion, the condition is rejected as
repugnant. However, interests limited in point of time can be created in the
usufruct of the property and the dominion over the corpus takes effect subject to
any such limited interests. This distinction runs all through the Muslim Law of
gifts of the usufruct (ariyç4) and usufructuary bequests.
Applying this principle the Andhra Pradesh High Court held that where the
donor had given absolute rights to the appellant and what had been retained was
the limited right of maintenance to enio y the income out of the property and that
too even without the right of alienation, it cannot be contended that the gift was
incomplete for want of delivery of possession. The intention of the donor while
executing the gift deed is very clear that she intended to deliver the entire
domain of this property with absolute rights in favour of the appellant/plaintiff,
but however only retaining the right to enjoy the income without the right of
alienation during her lifetime. This comes within the purview of the exception
mentioned (above) by the Privy Council. The gift deed was held valid - Bepari
Shaik Peeran v. Kwnalapura4'n Mahaboob Bi75.
Ariya.—Thus, ariya is to transfer the right to enjoy the use or profits without
any return (Fyzee). The grant of a licence, resumable at the grantor's option, to
take and enjoy the usufruct of a thing is called areeat (Mulla). According to the
Durr-ul-Mukhtar, 'to make a person the owner of the substance of a thing
without consideration is a hiba (gift), while to make him the owner of the profits
only, without consideration is an ariya or com-modatum'. According to Hidaya a
hiba is a transfer of ownership without consideration. A hiba-bil-ewaz is a
transfer of ownership for a consideration. An areeat (Mulla adopts this spelling,
while Fyzee spells it as Ariya) is not a transfer of ownership, but a temporary
licence to enjoy the profits so long as the grantor pleases. A hiba is revocable
except in certain cases. A hiba-bil-ewaz is not revocable in any case. An ariyat is
revocable in every case. Fyzee says 'the law of ariya has been somewhat
neglected in India, but since the passing of the Shariat Act, 1937, it is likely to
assume greater importance.76

74. Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan, (1948)75 IA 62.
75. (2003) I CLT 207 (AP).
76. Fyzee, at p. 267.
X1 GIFT (HU3A) 287

It is important here to understand fully the distinctions between Hiba and

ariyaJ'
- Hiba - Ariya
1. The donor must be a person 1. Majority not essential.
- who has attained majority. -
2. Ownership of the property shall 2. It is the transfer of the use or
be transferred. usufruct only and not the
ownership.
3. It must not be conditional or 3. It may be subject to conditions
- limited in time. limiting the duration of use.
4. It must be immediate and not 4. It may be in futuro.
- contingent. -
5. Gift of mushaa cannot be made, 5. Doctrine of mushaa does not
- except in few cases. - apply.
6. Acceptance is necessary for its 6. Acceptance is not a condition.
completion.
(e) Gift of mush aa.—Mushaa has been defined as an undivided share in an
immovable or movable property.
As delivery of possession is one of the essentials of a valid gift, thus the
possession to be delivered must be separate and exclusive. Hence, gift of an
undivided share (mushaa) in a thing capable of division is void, according to
Hanafi Law. According to Shafli and Shiite view, however, the gift of mushaa is
valid, provided that the donor, after withdrawing his control from the subject-
matter of gift, delivers it to the donee.
Mushaa (literal meaning: confusion) in law denotes the mixing up of the
proprietary rights of more than one person in a thing (as in joint ownership),
where each co-owner has a right until partition of the property.
Mushaa may be of two types: those joint properties which are indivisible,
and those divisible.
Where property is indivisible.—A gift may be validly made of an
undivided share (mushaa) in a property which is incapable of being divided; or
where the property can be used to better advantage in an undivided condition.
Such indivisible things may be a staircase, small house or small bath. Thus,
A, who owns a house, makes a gift to B of the house and of the right to use a
staircase used by him jointly with the owner of an adjoining house. The gift of
A's undivided share in the use of the staircase is not capable of division;
therefore it is valid. 78 And a gift of a share in the business of a Turkish bath is

77. Verna, at pp. 532-33.

78. Wilson, at p. 352 citing Kasim Husain v. Sharfu n -Nissa, ILR (1883) 5 All 285, adopted by
Fyzee 239 and Mulia 169.
288 ML'SIAM LAW [CHAP.

valid, for the bath is not capable of division and would be ruined if it were
divided by metes and bounds.79
Where property is divisible.—The gift of ,nushaa of a property which is
capable of being divided is irregular but not void. Subsequent division and
delivery of possession renders the gift as valid.
A, a partner in a firm, makes a gift of his share of the partnership assets to B.
The gift is not valid unless the share is divided off and handed over to B.80
There are six exceptions to this general rule.tt
Exception 1.—Where the gift is made by one co-heir to another.—For
example, a Muslim woman dies leaving a mother, a son and a daughter as her
only heirs. The mother may make a "lid gift of her undivided share in the
inheritance to the son, or to the daughter, or jointly to the son and daughter.
Exception 11.—Where the gift is of a share in a Zamindari or taluka.—For
instance, A, B and C are co-sharers in a certain Zamindari. Each share is
separately assessed by the Government. and has a separate number in the
Collector's book, and the proprietor of each share is entitled to collect a definite
share of rents from the Zamindari. A makes a gift of his share to Z without a
partition of the Zamindari. The gift is valid, for it is not a gift strictly of mushaa,
the share being definite and marked off from the rest of the property.
Exceptio!U -When the gift is to two or more per.tons.— .1' aI::
a house to A and B in equal shares as tenants in common. The property is not
divided off although their shares are clearly defined, possession of their specific
shares is not given to A and B. The gift is valid.82
Exception IV.—Where the gift is of a share in freehold property in a large
commercial town.—Thus, where A, who owns a house in Bombay makes a gift
of a third of the house to B, the gift is valid, because the property is situated in a
large commercial town.
Exception V.—Where the gift is of shares in a Land Company.
Exception VI.—Where a property is gifted out absolutely to a person with a
condition that he shall make certain periodical payments out of the recurring
income of the property, such payments are not governed by the doctrine of
mushaa.
Devices against doctrine of mushaa.—Where the divisible property is not
divided the gift of such property is rendered only fasid (irregular) but not batil
(void) by the application of the doctrine of mushaa. Therefore it is possible to

79. MuTla, at p. 169.

80. MuIla, at p. 171.
81. Ibid, at pp. 170. 171, Fyzee, at pp. 241-243.
82. Why? (For ans., see, the para under sub-head 'Where Property is divisible.')
 GIFr(HII3A) 289
xJ

employ a device in order to get over the defect. The donor may first sell the
properly to the donee at a fixed price and then absolve him of the debt, that is the
price.83
Is the doctrine of mushaa unadapted to progressive society?—Delivering
the judgment in Mohd. Mumtaz v. Zubaida Jan 84 their Lordships of the Privy
Council said: "The doctrine relating to the invalidity of gifts of mushaa is wholly
unadapted to a progressive state of society, and ought to be confined within the
strictest rules." It was considered that the gift of an undivided share is valid in
anything which can be used to better advantage in an undivided condition. The
rigour of the rule has, therefore, been considerably relaxed and courts have from
time to time made efforts to adapt the rule to its new surroundings, and to
interpret it in a way as to make it consistent with the principles of justice, equity
and good conscience. This accounts for the above six exceptions to the rule.85

9. Conditional, contingent and future gifts

The conditional gifts may be of two types: (i) conditional gifts, and (ii) gifts
with conditions.
(i) Conditional gifts.—Conditional gifts or gifts that are suspended on a
condition are invalid, unless the condition is such that it can be fulfilled
immediately, in which case it constitutes the acceptance. Thus, if the donor says,
"when tomorrow comes, then thou art discharged from my debt," the gift is
invalid in Hanafi Law. If however the creditor says to his debtor, "If I die, you
will be absolved from my debt," it is valid, as constituting a legacy.
"A condition which is capable of immediate fulfilment becomes the
acceptance if it is performed and the gift is valid. Thus, when a person says to
another: "If you owe me money you are absolved from it," or, "This slave is
yours if you set him free," then existence of the debt or the emancipation would
constitute acceptance on the part of another.86
(ii) Gifts with conditions.—If a gift is made subject to a condition which
hampers in the way of Pull ownership of the gifted property, the gift is valid, but
the condition is void.
Illustrations
(i) A house is given on condition that it shall not be sold. The restraint on
alienation is void, and the house belongs absolutely-to the donee.87

83. Fyzee, at p. 267.

84. (1889) 16 IA 205.
85. Verma, at p. 541; MuIla, at p. 172.
86. Kamila Tyabji, at pp. 28, 29.
87. Wilson, at p.354.
290 MUSLIM LAW [CHAP.

(ii) A house is given to a person for life, on condition that it shall return to
the donor, or his heirs, as the case may be, on the death of the donee. The donee
takes an absolute interest, notwithstanding the condition (Wilson).
(iii) If a Sunni Muslim says, "this mansion is to thee ommree (for thy life),
and when thou art dead, it reverts to me", the gift is lawful, and the condition is
void.88
(iv) A makes a gift of a house to B on condition that he shall not sell it, or
that he shall sell it to a particular individual. The condition is void, and B takes
an absolute interest in the house (Mulla).
(v) A makes a gift of certain property to B. It is provided by the deed of gift
that B shall not transfer the property. The restraint against alienation is void, and
B takes the property absolutely (Mulla).
(vi) A says to B "If you help me in this affair, I shall give you my house".
Since the validity of gift depends on B rendering help, the gift is void. Here it
must be noted that A never gives possession of the house to B; he merely gives a
promise; hence, it does not come under the case where there is transference of
ownership with certain restraints, which are regarded as void, while upholding
the validity of the gift. Thus, the important thing to be seen in gift with condition
is, whether the donor first transfers full ownership to the donee and then places
some restriction, or whether he places a condition and its fulfilment first and then
the transfer or ownership. in ue rormer case, gift is yalta ana conoition vota,
while in the latter, the whole gift is void.89
Contingent gift.—A gift cannot be made to take effect on the happening of
a contingency, i.e., a future uncertain event. A classical example of a contingent
gift is ruqba. D says: 'My mansion is thy ruqba' that is, 'If you die, it is mine; if
I die, it is yours.' It is void. 90 Similarly, the gift by A to B for life, and in the
event of the death of B without leaving male issue, to C, is as regards C a
contingent gift, and therefore void (Mulla). Gifts of insurance policy, though of
contingent nature may be effectively made by virtue of Section 38(7) of the
Insurance Act, 1938, as noted supra. Further Section 39(5) provides that in the
case of the death of the nominee before the maturity of the policy, the amount of
the policy is payable to the holder. To illustrate, 5, a Shia muslim, took an
insurance policy on his life and assigned it to N, his wife, with the condition that

88. Mulla, at p. 176.

89. If the condition does not operate on the corpus of gift, it would not make it void. Thus, where a
gift is made on the condition that the donee shall pay all the debts of the donor, the condition
would be valid.
The transfers for consideration stand on different footing from gift. Whereas any partial or
absolute condition in a gift would be void, in the case of transfer for consideration, condition
of partial restraint on transfer would be valid. Verma, at pp. 591-92.
90. Fyzee, at pp. 222.
X] GIFT (HIBA) 291

if N died before the policy matured for payment, or if S survived on the day of
maturity, the gift would be revoked and the assignment rendered ineffective. N
died before the policy matured. N's heir and S both made a claim to the amount
of the policy. The court upheld the claim of Son the basis of Section 39(5) of the
Act in Sadiq Ali v. Zaheeda Begum9t.
Gift in futuro.92—A gift cannot be made so as to take effect at any future
time, whether such time is definite or indefinite. The following illustrations will
make it clear.
Illustrations
(i) A makes a gift to B of "the fruit that may be produced by his palm tree
this year". The gift is void as being a gift of future property.
(ii) A Jagirdar executes a deed of gift in favour of his wife purporting to give
to the wife and her heirs in perpetuity Rs 4000 every year out of the income of
certain villages. The gift is void, as being a gift of the future revenue of the
villages.
(iii) A executes a deed of gift in favour of B, containing the words "so long
as I live, I shall enjoy and possess the properties, and I shall not sell or make gift
to anyone, but after my death, you will be the owner". The gift is void, for it is
not accompanied by delivery of possession and it is not to operate until after the
death of A.
(iv) A is entitled to receive offerings at a shrine. He makes a gift of this right
to receive all future offerings. The gift is valid, because, the thing gifted is the
right of the donor to receive offerings. This right is a determinate thing and is not
subject to any fluctuations; hence, a fit subject of gift.
10. Gifts in the form of trust

The basic concept of gift in Islam is that the donor should transfer the whole
bundle of rights (ownership) which he possesses over the corpus to the donee;
delivery of possession is therefore essential. But if the donor transfers the corpus
with a simple condition (which the donee accepts) to receive the recurring
income of the corpus during his life, the gift and the condition are both valid.93
A transfers and endorses Government promissory notes into the name of his
son B, and delivers them to B as a gift, with a condition that B should pay the
income thereof to A during his life. Both the gift and the condition are valid, and
B is bound to pay the income to A during A's life (Mulla).

91. ILR(1939)61 All 957.

92. MuIla,atp. 174; Verna, at pp. 600-601.
93. Nawab UmjadAly v. Mohumdee Begum, (1867) 11 MIA 517.
 292 MUSLIM LAW [CHAP.

Such stipulation is not void, as it does not provide for a return of any part of
the corpus. The stipulation may also be enforced as an agreement raising a trust
and constituting a valid obligation to make a return of the proceeds during the
time stipulated.
Illustrations
(i) A Muslim lady makes a gift of certain properties to her nephew on the
condition that he should pay her Rs 900 every year for her maintenance. The gift
is not valid, for the payment of Rs 900 is not made dependent upon the profits of
the corpus being sufficient to meet it (Mulla).
(ii) X makes a gift to Y of his property on condition that Y shall pay X's
debts. The gift is valid, and also the condition provided debts are not more than
the gifted property (Mulla).
(iii) A Muslim lady executes a trust deed in favour of her sons with a
condition that she was to remain in possession so long as she lived, with power
to deal with the rents and profits and that the legal estate was to pass to her sons
after her death. Here the conditions are invalid as the donor reserves the legal
and beneficial interest; the gift is also invalid as possession is not given to sons
and also because it is a gift infuturo (Mulla).
The principle described and illustrated above has been extended by the
Courts in India t asc: wherc a gift is made subject to the condi tion that t
donee shall pay the income to a person nominated by the donor during the life of
such person.94
Illustrations
(i) A Muslim makes a gift of his house to his son with a condition that the
son should give the 1/3rd income of the house to a person during his life. Both
the gift and the condition are valid.
(ii) A makes a gift of certain property to her son B, with a condition that B
should pay out of the income thereof Rs 40 every year to C during C's lifetime.
Both the gift and condition are valid and B is bound to pay Rs 40 per year to C.
11. Revocation of gift

According to Muslim Law, all voluntary transactions are revocable; hence,

gifts may also be revoked. There is, however, a difference between completed
and incompleted gifts; i.e. after or before the delivery of possession.
Before delivery.—A gift may be revoked by the donor at any time before
delivery of possession. The reason is that the gift is no gift before delivery of
possession, and hence, the rules relating to gifts do not apply over it.

94. MuIla, at p. 177.

xJ GIFT (HIBA) 293

In Bibi Riajan Khatoon v. Sadrul A1ain95 the Patna High Court held that
revocation of gift is permissible if the donor has not relinquished his control over
the property and the donee has not been put in possession of the same.
After delivery.—When a gift is made and the subject-matter of the gift is
duly transferred to the possession of the donee, its revocation is only possible (a)
by the intervention of the court of law, or (b) by the consent of the donee; a mere
declaration on the part of the donor is not enough.

Illustration
A makes a gift of a house to B and B accepts it; but before the delivery of
possession A changes his mind; this is an incomplete gift; and if no further steps
are taken by in pursuance of his original intention, the gift does not take effect.
It is best not to call this a revocation at all, because the gift never materialised.
The situation would have been entirely different if A's change of mind would
have come after delivering possession of the house to B. In that case, A could
have never revoked the gift unless B himself agreed to it or a court of law had
permitted it.96
Only the donor has the right to revoke a gift, not his heirs after his death. It
is the donor whose law will apply to revocation and not that of the donee. Mulla
observes: Where a settlor reserves to himself the power of revocation, the
question arises whether gift made through the medium of trust is valid, and, if
valid whether the settlor is entitled to exercise the power of revocation. Beuman,
was of the opinion that the reservation of the power of revocation detracted
from the completeness of the gift. In such a case the donor could not be said to
have parted with all control over the subject of the gift and therefore there was
no valid gift.97
The following completed gift cannot be revoked even with the consent of the
donee, or intervention of the Court:98
(i) where it is made by the husband to his wife, or vice versa;99
(ii) where the donor and donee are related to one another within the
prohibited degrees by consanguinity;
(iii) where the donor or donee dies;

95. AIR 1996 Pat 156. Also Gau HC in Anwar Ali v. Mozibul Hoque, (2005) I Gau LR at p. 127.
96. Largely based on Fyzee, at p. 265. The exj.aiation is by the author.
97. Cassaniauly Jaibajbhai Peerbhai v. Curriinbhoy Ebrahim, ILR (1911) 36 Born 214: 12 IC 225
at pp. 248-249, cited by MuIla, 181.
98. Wilson, at pp. 356-357; Mulla, at p. 179.
99. Mumtaz Begunt v. Ahmed Khan, (1996)3 ALD 490:
The Andhra Pradesh High Court held that a gift cannot be revoked when the donor is husband
or wife of the donee. "Tyabji says that the Shiite authorities are agreed that to revoke such a
gift is abominable, and some hold it unlawful, but the better opinion is that it is unlawful."
 MUSLIM LAW [CHAP.
294

(iv) where the thing given is destroyed or lost;

(v) where the thing given has passed out of the donee's possession by
sale, gift or otherwise;
(vi) where the thing given has been increased in value;
(vii) where the thing given is so changed that it cannot be identified (for
example, when wheat is grinded into flour);
(viii) where the donor has received a return (ewaz) for the gift;
(ix) where the motive of the gift is religious or spiritual, for in this case the
gift amounts to sadaqa.
The Shia Law differs from the Hanafi Law in the following particulars:
(a) a gift to any blood relation, whether within the prohibited degrees or
not, is irrevocable after delivery of possession;
(b) a gift by a husband to his wife, or 100 by a wife to her husband, is
according to better opinion, revocable;
on the part of the donor
(c) a gift may be revoked by a mere declaration
without any proceedings in court.' 0'
12. Gifts involving return (ewaz)
(1) Hiba-bil-eWaZ.—After the gift has been made, the donee may offer to
make a reciprocal gift, to the person making the primary gift,"' then the
reciprocal gift is called the ewaz or return for the primary gift. If this return gift
is accepted then it is Hiba-bil-ewaz (or gift with return) .'°3
Illustrations
D, and
(i) D makes a gift to R of a horse. R then makes a gift of a camel to
states that the gift of the camel is a return foi the primary gift of the horse, D
accepts. Here, the gift of the camel is the return or ewaz for the primary gift of
the horse, and it is Iljba-bil-ewaz)04
(ii) A Muslim died, leaving as his heirs his widow, and his brother. His
estate was kept joint, and managed by his brother, who made annual payments to
the widow. Later, he gave away certain property in her favour. Two days after,
she presented to him her share in her husband's estate. It is a case of Hiba-bil-
ewaz (Tyabji).

100.Baillie, Vol. II at pp. 205-206.

1963 All 469 cited in Baillie, Vol. II at p.205.
101. Someshwar v. Barkat U1!ah, AIR
102. The adequacy of consideration is not material; anything or any amount may be given out. What
is important is the actual and bona fide payment of consideration.
103.Tyabji, at p.443.
104.Tyabji, at p.444.
 xJ GIFT (HIBA) 295

(iii) A makes a gift to his cousin B, saying, "It is in consideration of your

being my cousin." It is not Hiba-bil-ewaz; it is simply a gift.
(iv) A had fallen ill; B had given him great comfort during illness. After
recovering from the illness, A makes certain gift to B "for having with cordial
affection and love rendered service to me, and maintained and treated me with
kindness, and shown all sorts of favour to me". It cannot be Hiba-bil-ewaz. It
may be a Hiba, provided A delivers possession of the gifted thing to B.
(a) Indian forin of Hiba-bil-ewaz.—There is an Indian form of Hiba-bil-
ewaz, as distinguished from the classical concept described above, where (i)
delivery of possession is not necessary, and (ii) an undivided share in property
capable of division (mushaa), may be transferred. Although this goes counter to
the classical concept, nevertheless the anomaly is now so well established in
India that the Indian Courts generally give recognition to them. Mulla explains
the peculiarities of the Indian law thus: Hiba-bil-ewaz is in reality a sale, and has
all the incidents of a contract of sale. Accordingly, possession is not required to
complete the transfer and mushaa may be lawfully transferred by it. It was a
device for effecting mushaa. Two essential requirements are (1) actual payment
of ewaz by the donee, and (2) donor's bona fide intention to part with the
property in praesenti. As to the first, adequacy of consideration is not material;
'even a gift of a ring may be a sufficient consideration' (Privy Council in
Khujooroonissa v. Roushan Jehan'° 5); even a copy of the Koran is a good
consideration; but mere promise to pay is not; nor is 'love and affection' or
'relationship' [(iii) and (iv) above] as they cannot be valued in terms of money.
As to the second, when property was transferred to the donee subject to a
reservation of the possession and enjoyment to the donor and his wife during
their lives, the Privy Council held that there was no intention on the part of the
donor to divest himself in praesenti of the property and the transaction could not
be upheld as a Hiba-bil-ewaz.'°6
The High Courts of Calcutta, Madras, Lahore, Allahabad, Patna and Nagpur
have held that a transaction of this character is nothing but a sale, therefore,
where the property is immovable and worth Rs 100 and above, it must be
effected by a registered instrument vide Section 54 TPA. As a sale it also gives
rise to a right of pre-emption. The Privy Council also considered it as a sale.
Bye Mukasa (bay 'al-muqasa!).— Fyzee notes one more 'curious form of
Hiba-bil-ewaz in India called bye mukasa. This is a transfer of property by the
husband to the wife in lieu of mahr, and an agreement by the wife not to claim
dower. It is in Indian law a sale and the formalities of the law of gift, like

105.(1876)2 Cal 184 at p. 197:3 IA 291 at p. 308 cilçd by Mulla.

106. Chaudhrj Mehdi Hasan v. Mohd. Hasan, (1906)8 All 439 at p.453: 33 IA 68 cited in Mulla,
at pp. 181-185.
296 MUSLIM LAW [CHAP.

possession, need not be followed strictly; but registration is necessary where

immovable property is concerned, and such a gift cannot be made orally. 107
Illustrations
(i) A and B, two Muslim brothers, were owners of certain villages held by
them as tenants-in-common. A died leaving him surviving his brother B and a
widow W. Some time after A's death, B executed a deed whereby he granted two
of the villages to W. Two days after the grant, but as part of The same transaction
W executed a writing whereby in consideration of the grant to her of the two
villages she gave up her claim to her husband's estate in favour of B. The
transaction is a hiba-bil-ewaz, and it is valid, though possession may not have
been delivered.108
(ii) A Muslim executes a deed in favour of his wife whereby he grants
certain immovable property to her in lieu of her dower. Possession of the
property is not delivered to the wife. The transaction is valid, and it is hiba-bil-
ewaz,109
(iii) A Muslim lady, who owns an undivided share (mushaa) in an
immovable property which is capable of division, executes a deed whereby she
transfers her share in the property by way of gift to her two nephews in
consideration of the nephews paying Rs 999 to her every year. The transaction is
110
hiba-bil-ewa? and is valid in suite of it being a transfer of mu.cho"
(b) Why Indian form is recognised?--At the time when the rules relating to
hiba-bil-ewaz (and hiba-ba-shart-ul-ewaz) arose in Islamic countries it seems to
have been more common than it is nowadays for persons to enter into
transactions that can be best described as lying midway between gifts strictly so
called, and barter. The notion underlying a hiba-bil-ewaz was something of the
following nature: D makes a gift to R, and R spontaneously (out of the feeling of
gratitude) makes a gift to D, saying that his gift is a return for the gift that D had
made him. In modern society R would probably desist from making such a gift.
and would deter his gift till some suitable occasion arose, supplying a pretext for
the gift. Mutual gifts of our own times are in essence the same as the hiba-bil-
ewaz of the Muslim lawyers. A person who receives a present feels himself
under a social obligation to give a present in return, though as a matter of
delicacy he disguises the reciprocity of his gift by waiting for a suitable
occasion. 111

107. Fyzee, at p.212.

108. Fyzee; Mulla.
109. MulIa.
110. MuIla.
Ill. Tyabji, at p.446.
 X] GIFT (HIBA) 297

(2) Hiba-ba-shart-uI-ewaz.—When a gift is made with a stipulation (shart)

for a return (ewaz), it is called hiba-ba-shart-ul-ewaz. The distinctions between a
hiba-bil-ewaz and hiba-ba-shart-ul-ewaz are (a) that in former the intention to
make an ewaz is an afterthought; (b) while in the latter the two go hand in hand;
(c) the return is contemplated by both parties in the hiba-ba-shart-ul-ewaz. In the
hiba-bil-ewaz, it is the donee under the primary gift who of his own accord
thinks of making a return, and offers it to the primary donor, while in hiba-ba-
shart-ul-ewaz, there is stipulation for a return before making the gi ft. 112
Where a hiba-ba-shart-ul-ewaz is made, and the stipulation is unlawful both
the gift and the stipulation are void. For instance, the donor says: 'I give this to
you, and make a condition that you should not sell it, and you should not make a
gift of it to others'—in such a case, the stipulation and gift are both invalid.
(Tyabji)
After the gift and the return have been completed by delivery of possession,
neither of them can be revoked.
D makes a gift of a house to S and puts him in possession. Thereafter S gives
D a camel as an ewaz and D accepts it. Later, D purports to sell the house to T.
The sale has no effect. 113

The return gift must be made with all the formalities necessary for hiba, i.e.,
offer, acceptance and delivery of possession.
13. Life estate and Life interest
(a) Distinction between life estate and life interest.—Tyabji" 4 explains
the difference between life estate and life interest through the following dialogue
(condensed by the author) between a layman and an Arab lawyer, whom he
consults regarding the disposition of his property consisting of an orchard and
camel:
Client.—"l want to give my orchard and camel to A for life. I want to
make him owner for life."
Arab lawyer.—! feel great difficulty in understanding your
requirements. If you want to make A owner, it means that the property will
be under the absolute control of A and after his death it will devolve upon
A's heirs; as the notion of ownership implies that the owner has absolute
right of unlimited duration over it. So, do you wish A to be the owner, or do
you wish to give him rights short of ownership.

112. ibid, at p. 447:

113.Fyzee, at p. 272 citing Tyabji, at p. 460.
114.Tyabji, at p.491.
298 MUSLIM LAW [CHAP.

Client.— "My desire is that A should be life owner; only his rights should be
so limited that after his death he should have no claim on the orchard and
camel."
Arab lawyer.—"I see what you want to give to A. You want to give him
right to hold orchard and camel in his possession, and to get their profit and
use. You will serve your purpose if you give A the usufruct for A's life. In
this way alone, A will not be made owner, which you do not want him to
become, of the orchard and camel. And as he will not be the owner, he will
not be able to transfer orchard or sell or kill camel. And since his usufruct is
limited to his own life, his heirs cannot inherit the orchard or camel."
In the above example, if the client could lawfully have made A the owner of
the properties for life, it would have been life estate. But since it is unknown to
Muslim Law, the Arab lawyer had great difficulty even in understanding this
notion, quite foreign to him. The advice which he gives to his client is to create a
life interest, which alone is recognised in Muslim Law. This example holds good
in India.
Fyzee explains with clarity thus—'Estate' is a term of art in English Law
and has a definite meaning in its technical sense. A 'life estate' implies the
transfer of the corpus of the property to a certain person with certain limitations
as to its use and alienations. In this technical sense of the term, a life estate was
declared by the Privy Council ir. Sardar Nawazish AE Kha
unknown to Muhammadan Law as administered in India, but life interests were
well known and would be created. Before coming to that subject, we may revise
the difference between corpus (ayn) and usufruct (manafi); both can be subjects
of gift.
The ayn is the substance of a thing, e.g. a plot of land, a house, a camel or a
book. Manafi (singular, manafaa) is literally the profits or produce. It means, not
the thing itself, but its use, benefit produce or profits; e.g., the right to reside in a
house, the right to fish in the pond, the right to take the produce, fruits of a
garden, the recurring income of partnership, dividends on shares, interests on
government loans or stock.
The right to take the produce is intimately connected with the notion of time,
or duration; therefore, you may transfer the mana.fi (usufruct) for a specific
duration, time. But the notion of time-limit does not govern the transfer of
corpus, ayn; the notion is that it is the absolute transfer of ownership, and is
therefore for an indeterminate duration, in simple words—forever.
Now hiba is a transfer of the corpus; hence the rule that hiba cannot be cut
down by a repugnant condition of time-limit. Therefore according to
Muhammadan Law as received in India, you can make gift of the corpus, ayn. Or
you may make gift of the usufruct, ariya, wasiyat-bil-manafi, rawrith, etc., these
X1 GIFT (HIBA) 299

are the ways of making gift of usufruct. A life interest may therefore be
considered as a transfer of the usufruct for a well-defined period. 5
There is a fill discussion of the law on this subject in the judgment of Sir Wazir
Hasan as reported in Amjad Khan v. Ashraf Khan116. That case challenged the
doctrine accepted by Hanafi lawyers that a gift to A for life conferred an absolute
interest on A; a doctrine based on a saying of the Prophet. 117 An amree of life
grant is lawful to the grantee during his life and descends to his heirs. The
meaning of amree is a gift of a house (for example) during the life of the donee,
on condition of its being returned upon his death. An amree is nothing but a gift
and a condition and the condition is invalid: 'but a gift is not rendered null by
involving an invalid condition.' Sir Wazir Hasan in his judgment examined the
appropriate texts and all the relevant decisions of the Privy Council. He pointed
out the distinction in Muslim Law between the corpus and the usufruct, between
the thing itself and the use of the thing. On the construction of the deed which
was in question in the case before him, he came to the conclusion that the donor
intended to confer on his wife not the corpus, but a life interest only, that such
life interest could take effect as gift of the use of the property and not as part of
the property itself, and that there was nothing in Muslim Law which compelled
him to hold that the intended gift of a life estate conferred an absolute interest on
the donee. This case was taken in appeal to the Privy Council. 118 The Board
agreed with Sir Wazir Hasan on the construction of the deed in question that
only a life interest, it came to an end on her death, and the appellant, who was
her heir, took nothing and if the life interest was bad the wife took no interest at
all and the appellant was in no better case.
Limited interests have long been recognised under Shia Law. There is no
difference between the several schools of Muslim Law in their fundamental
conception of property and ownership. A limited interest takes effect out of the
usufruct under any of the schools. In dealing with a gift under Muslim Law, the
first duty of the Court is to construe the gift. If it is a gift of the corpus, then any
condition which derogates from absolute dominion over the subject of the gift
will be rejected as repugnant; but if on construction the gift is held to be one of a
limited interest the gift can take effect out of the usufruct, leaving the ownership
of the corpus unaffected except to the limited interest.
(b) Life interest. 11 9—In Muslim Law, therefore, both the corpus (ayn) and
usufruct (manafi) of a property can be the subjects of gift. A gift of the usufruct

115.Fyzee, at pp. 244-247.

116.AIR 1925 Oudh 568: ILR (1929)4 Luck 305: AIR 1929 PC 149.
117.Hedaya, Bk. III at p. 309.
118. Amjad Khan v. Ashraf, (1929) LR 65 IA 213.
119.Fyzee, at pp. 244-264.
300 MUSLIM LAW [CHAP.

for a definite period is called life interest. Life interest may be created in the
following ways:
(i) By family wakfs;
(ii) By will;
(iii) By the rule in Urniad All Khan case:
(iv) By the rule in Ashraf Khan case;
(v) By Nawazish All Khan case; and
(vi) By family settlements.
(I) By family wakfs.—A makes a wakf of his property for the benefit of his
children and descendants, and on the extinction of the line of his lineal
descendants, to a school. The children and the descendants will have life interest
in the property generation after generation.
(ii) By will.—A life interest can be created by will. Thus, if a life interest is
given by will to A for life, and thereafter to B, the life interest in favour . of A is
valid.
In a Calcutta decision 120, it was held that a Muslim cannot, under cover of
law relating to life-grants, dispose of more than one-third of his estate. A bequest
of the entire property for a certain period to the exclusion of other heirs cannot
be valid unless the heirs have consented to it Such consent is to be given after
the death of the testator, or is not revoked after testator's death, if it is given
before testator's death.
(iii) By the rule in Umjad All Khan case. 12 1—The point in issue in this case
was: whether a real transfer of property by a donor in his lifetime under the
Muslim Law, reserving not the dominion over the corpus of the property, nor
any share of dominion over the corpus, but simply stipulating for and obtaining a
right to the recurring produce during nis lifetime, is an incomplete gift by the
Muslim Law?
Their Lordships of the Privy Council held both the gift and the condition as
valid. This is a recognition of life interest.
(iv) By the rule in AshrafKh. case.—The decision of the Privy Council in
Hameeda v. Budlun 122, and Abdul Gafur v. Nizamuddin' 23, and some of the High
Courts in India have expressed the opinion that life interest was nothing more
than a gift with condition. If the condition was repugnant to the gift, the
condition was void and the gift was valid. Thus, it was held that if A gave to B a
life interest in a certain property, B took it absolutely.

120.Anarali Taraidar v. O,narAli, AIR 1951 Cal 7.

121.Nawab UmfadAly v. MohumdeeBegum,(I867) II MIA 517.
122.(1872) 17 WR 525.
123.(1892) 19 IA 170.
 X] GIFT (HIBA) 301

But this view is not correct. Delivering the judgment in Amjad Khan v.
Ashraf Khan 124, Mr Wazir Hasan, Additional Judicial Commissioner, arrived at
various conclusions:
(a) Giving an interest in a certain property is different from and is not
the same thing as, the gift of the corpus.
(b) Where the intention of the donor is to give the corpus of and the
absolute interest in the property gifted to one person and that gift
is accompanied with a reservation of a limited estate in the same
property in favour of another, both the gift and the reservation, are
valid.
(c) When the donor merely creates a life interest in the donee and
reserves the reversion of the-property to his heirs, the donee of the
life interest cannot take the property absolutely.
This case went to the Privy Council, which approved the view of Mr Wazir
Hasan, A.J.C., and laid down two propositions:
(i) that a life interest cannot be enlarged into an absolute interest, and
(ii) that the validity of a life interest by the law of gifts was an open
question.
Following this case, the modern tendency is to favour the validity of life
interests.
(v) By Nawazish Ali Khan case. 125 —The propositions of law laid down by
the Privy Council in this case are:
(a) That Muslim Law makes no distinction between real and personal
property; nor does it recognise the splitting up of ownership of
land into estates;
(b) That there is a clear distinction between the corpus of the property
and its usufruct;
(c) That interests for a limited duration can therefore be lawfully
made.
The judgment also says that if a Muslim, executes a deed and attempts to
limit the succession to male heirs only by creating successive life interests, and
thus to create a line of succession unknown to Muslim Law, he cannot do so.
Also known as gift over, it was held to be void in Shia Law also.
Another important case on life-grants is Anjuman Ara Begum v. Nawab Asf
Kader126. The High Court observed:

124. AIR 1925 Oudh 568: ILR (1929)4 Luck 305: AIR 1929 PC 149.
125. Nawazish Ali Khan v. Ali Raza Khan, (1948)75 IA 62: AIR 1948 PC 134.
126. (1955)2 Cal 109.
302 MUSLIM LAW

The true approach when a Muslim grant calls for consideration is first to
construe the deed as a whole. If the grant is found to be an absolute grant, no
further question arises. If, however, the grant is found to be a limited grant, the
direct or the immediate subject-matter of the gift has to be ascertained. If it is the
corpus any restrictive condition, affecting the same, will be invalid. If subject-
matter of the grant is the limited interest and not the corpus, the grant takes effect
as a valid grant.
(vi) By family settlements.—An agreement settling disputes between the
parties of a family, and which also involves a transaction for a consideration, is
called "family settlement". Life interest may be created by such agreements.
For example, a Muslim wife agreed not to claim her inheritance if husband
executed wakf of the whole property. The husband created such a wakf. After the
death of her husband she could not claim inheritance on any thing. Similarly, a
wife sues husband for her dower. A compromise has been made whereby the
wife accepts life estate in a portion of property in lieu of dower. The husband
accepts life-estate in other property. Both husband and wife renounced
inheritance. The settlement was held to be valid (Tyabji).
14. Shiite law of life interests
The scope of life interest is somewhat broader in Shiite law, which
recognises its followinu three forms
(i) Umra, the grant of usufruct for life;
(ii) Sukna, the right to reside in a house for life;
(iii) Rukba, the right to take usufruct for a fixed period.
Following are the essentials of a life interest in Shiite law:
(a) Delivery of possession to the life-tenant;
(b) Existence of the grantee. When there are many grantees; succeeding
grantees should be in existence at the time when their interests begin;
(c) The subject-matter of life interest should be such as may be used
without being consumed in the process.
The grantor is free to revoke a life grant at any time before his death, except
where it is for a religious purpose, or for an indeterminate period.
 XI

Pre-emption
(Shufa)
1. Meaning, origin and development

Shufa means conjunction, here it denotes the right of the owner of a property
which is in conjunction—that is adjacent—to another property. Haq means right.
So, haq-shufa means right to subsequent purchase of a property adjacent to own
from another fresh purchaser. In practice it means a right to dislodge a fresh
purchaser and step in his shoes in respect of an adjacent property. It is a right to
dislodge stranger from entering into ones neighbourhood. These simplified
statements are subject to legal technicalities as would be unfolded in the
following discussion. The Roman legal system also recognised such system, but
with certain difference. There the vendor was obliged to sell his immovable
property to a determined person if he (the latter) offered to purchase it on the
same conditions as the intended vendee had offered. This was based on terms of
contract and also of positive law. It was a relationship governing the vendor and
the determined person; if the property was already sold to a vendee, the
determined person had no right to disturb the former. In India, on the other hand,
it is not confined to a 'perspective purchaser' only; in fact it originates after the
sale is complete and affts the fresh purchaser and runs up to the passing of the
decree in the suit for the right. It is a sort of acquisition by compulsory purchase.
The origin of pre-emption is embedded in the sayings of the Prophet. A
number of these Traditions are given in Hedaya (p. 548):
"A neighbour has a right, superior to that of stranger, in the lands
adjacent to his own."
"The right of shufa holds in a partner who has not divided off and taken
separately his share."
"The neighbour of a house, and the neighbour of land has a superior
right to those lands and if he be absent, the seller must wait his return:
Provided, however, that they both participate in the same road."
304 MUSLIM LAW [CHAP.

Muslim jurists, however, differed in their interpretation of these traditions.

Thus, for example, they put forward different categories of persons having the
right of pre-emption.
Hanafi Law recognises three categories: (i) a co-sharer in the property sold,
(ii) a participator in the amenities and appendages of the property, and (iii) a
neighbour owning an adjoining immovable property Shia Law restricts pre-
emption to co-owners in the undivided property and that too when their number
is two. Shafli Law recognises pre-emption only among co-sharers.
Both Shia and Shafli Law do not recognise pre-emption on the ground of
vicinage or on the ground of participation in appendages.
2. Advent of shufa in India
Pre-emption in village communities in India had its origin in the Muslim
Law, and was apparently unknown in India before the time of the Mughal rulers.
In time customs of pre-emption grew up and were adopted among village
communities. The law of pre-emption was mainl y introduced and given effect tn
by the Muslim judges who were bound to administer Muslim Law during the
Mughal period. Under their administration it became, and remained for centuries,
the common law of the country, and was applied universally both to Muslims
and Hindus, because in this respect the Muslim Law makes no distinction
between persons of different races and creeds. In British India. ri ghts to nre-
emption had in some provinces been given effect to by various Acts, and by
contract between the sharers in a village. But in all cases the object was, and still
is, to prevent strangers to a village from becoming sharers in a village, or in a
property, where such intrusion by a stranger may be injurious to that society)
3. Definitions
MuLLA: "The right of shufa or pre-emption is a right which the
owner of an immovable property possesses to acquire
by purchase another immovable property which has
been sold to another person.112
MAHMOOD, J.: "...a right which the owner of certain immovable
property possesses, as such, for the quiet enjoyment of
that immovable property, to obtain, in substitution for
the buyer, proprietary possession of certain other
immovable property, not his own, on such terms as
those on which such latter immovable property is sold
to another person.113

1. See, Digambar Singh v. Ahmad Said Khan, (1914) 42 All 10; Gobind Dayal v. lnayatullah,
ILR (1885)7 All 775.
2. Mulla, at p. 255.
3. Per Mahmood, .1., in G id Dayal v. Jnayalullah, ILR (1885) 7 All 775.
 PRE-EMPTION (S1-IUFA) 305
XI]

4. Nature of the right of pre-emption

The leading case on the law of pre-emption is Gobind Dayal v. !nayatullah4.
The obervations of Mahmood, J., in this case are still regarded as authority on
the subject. But before this decision came, the leading case on pre-emption was
5k. Kudratullah v. Mohini Mohan Saha 5 . Certain curious propositions were laid
down in this case by Mitter, J., which were, it is submitted, erroneous. He
propounded, for example:
because, on
(i) The right of pre-emption does not exist before actual sale,
the one hand, the pre-emptor has no right of prohibiting the sale, and
on the other hand, the vendor is not bound to offer the property for
purchase to the pre-emptor before selling it to a stranger.
(ii) The sale, in respect of which pre-emption might be claimed, passed
full ownership to the vendee, and did not involve any defect of title,
because, it could not be regarded as an infringement of a pre-existing
pre-emptive right.
From the above two propositions, the learned Judges of the Calcutta High
Court concluded that right of pre-emption is nothing but mere right of
repurchase.
Mahmood, J., forcefully countered this view by observing that he is
astonished to see that Mitter, J., and others hold that there is nothing whatever in
the Muslim Law which imposes on any one the obligation of making the first
offer to his neighbour, nor is there anything to show that the right of pre-emption
is based on any such obligation, the non-fulfilment of which would prevent the
stranger from acquiring a complete and valid title to the property by virtue of his
purchase.
Refuting these allegations, Mahmood, 3., observes that Muslim Law
originates from Koran and the sayings of the Prophet; and law and religion in
Islam are so intimately connected that they cannot readily be dissevered from
each other. He then cites a Tradition of the Prophet, that:
"It is not law ul for any one to sell till he informs his coparcener
(neighbour) who nay take or leave it as he wishes; and if he has sold
without such information, the coparcener has a preferential right to the
share" (Aini)
"Pre-emption exists in all joint properties, whether land, or house, or
grove. It is not proper for him (owner) to sell till he has offered it to his
coparcener, who may take it or reject it; and if the vendor fails to do this, his
coparcener has the preferential right to it until he is infonried" (Muslim).

4. ILR (1885)7 All 775.

5. (1869) 4 Beng LR 134.
 306 MUSLIM LAW [C&.

It is perfectly clear from the above traditions that the very concept of pre-
emption necessarily involves the existence of the right before the sale.
Thus, the law of pre-emption creates a legal servitude running with the land.
Sale is not the real cause of pre-emption. The real cause is the situation of the
properties in question. The right comes into being after the sale, which clearly
shows the intention to dispose of the property. The right exists, therefore,
independently of and antecedent to the sale.
The right of pre-emption is not a right to repurchase, but it is a right of
substitution, entitling the pre-emptor to stand in the shoes of the purchaser. This
view has recently been adopted by the Supreme Court of India in Bishan Singh v.
Khazan Singh6 , where Subba Rao, J., summarised the rules of pre-emption thus:
(1) The right of pre-emption is not a right to the thing sold but a right to
the offer of a thing about to be sold. This right is called the primary or
inherent right.
(2) The pre-emptor has a secondary right or a remedial right to follow the
thing sold.
(3) It is a right of substitution but not of repurchase, i.e., the pre-emptor
takes the entire bargain and steps into the shoes of the original vendee.
(4) It is a right to acquire the whole of the property sold and not a share of
the property sold
(5) Preference being the essence of the right, the plaintiff must have a
superior right to that of the vendee or the person substituted in his place.
(6) The right being a very weak right, it can be defeated by all legitimate
methods, such as the vendee allowing the claimant of a superior or
equal right being substituted in his place.
The statement that 'it is not a right to repurchase' must be understood in its
context. It means it is not a eace of any repurchac, but it particular subsequent
purchase under certain circumstances which compel the fresh buyer to resell.
The requisites are:
(i) the pre-emptor must be the owner of immovable property in the
neighbourhood of the property sold;
(ii) there must be a sale of certain property not his own;
(iii) the pre-emptor must stand in certain relationship to the vendor in
respect of the property sold.
Discussing the nature of the right, Mahmood, J. in Gobind Dayal (supra)
shows on the basis of Hedaya that sale is not the cause of pre-emption, it is the

6. AIR 1958 Sc 838, The Supreme Court cited with approval several portions of the judgment of
Mahmood, J., in Gobind Dayal v. Inayatullah, ILR (1885) 7 All 775.
 PRE-EMPTION (SHUFA) 307
X11

situation of the properties in question; at the same time, the right to enforce the
pre-emptor's right comes into being after the sale. This means that neither the
sale of every property nor the sale to every other person would give rise to the
right. As explained later, the right arises only in certain situations. Any action by
pre-emptor before actual sale is premature.
About the nature of this right as to whether it is a personal right or an
incident of property, there was divergence of views between some High Courts.
According to Calcutta and Bombay High Courts it was a right to repurchase from
the buyer, while Allahabad High Court held it to be an incident of property. The
Supreme Court has accepted the latter interpretation—it is an incident annexed to
the property. 7 Although it is essentially a right in rem, from the time it arises up
to the time of decree, it is restricted as a personal right, which is neither heritable
nor transferable.8
According to Mulla (Section 231) the following 3 classes of persons and no
others, are entitled to claim pre-emption:
(1) A co-sharer in the property (Shafi-i-Sharik).
A mukarraridar (lessee in perpetuity) holding under co-sharer has no
right to pre-empt as against another co-sharer.
(2) A participator in immunities and appendages, such as a right of way
or a right to discharge water (Shaft-i-khalit), and
(3) Owners of adjoining immovable property (Shafi-i-Jar), but not their
tenants, nor persons in possession of such property without any lawful title.
A wak4f or mutawalli is not entitled to pre-empt, as the wakf property does
not vest in him.
The first class excludes the second, and the second excludes the third. But
when there are two or more pre-emptors belonging to the same class, they are
entitled to equal share of the property in respect of which the right is claimed.
So in Abdulaziz Mohammad Kothiwale v. Ismailbeg Kashimbeg Miraz9
where the plaintiff was a tenant of his wife who was a mortgagee of the suit
property from the first defendant, the former's claim to pre-empt was negatived.
The second defendant was the adjoining owner; his right of pre-emption was
upheld; the agreement of sale was executed by the first defendant in favour of
the plaintiff, this agreement, it was held, could not defeat the very right of pre-
emption of the second defendant. The sale agreement therefore could not be
enforced, it was decided.
Describing the utility of the right of pre-emption, Mahmood, J., further
observed that this right, no doubt, operates as a restriction to the free sale of

7. See, Mohd. Ismail v. Abdul Rashid, (1956) 1 All 143.

8. See, Audh Bihari Singh v. Gajadhar, AIR 1954 SC 417.
9. 2004 AIR Kant 11CR 710.
 308 MUSLIM LAW [CHAP.

property, thus diminishing its market value, but its utility outweighs its
drawbacks. Even in countries like Germany a similar right (retractrecht) was
enforceable. And if this was the case in a country where distinction of caste and
creed do not exist, it seems that this right must not be lightly dealt within a
country like India, where difference of caste, religion, etc., presents quite the
opposite state of things. This discussion brings us to an inevitable question:
Whether the law of pre-emption infringes the fundamental right to hold and
dispose of property, guaranteed under Article 19(1 )0 of the Constitution?
5. Constitutionality of pre-emption

The High Courts of Rajasthan, Madhya Bharat and Hyderabad had held that
pre-emption on the ground of vicinage (ownership of adjoining immovable
property) was void after the advent of the Constitution, being an unreasonable
restriction on the right to acquire and dispose of property under Article 19(1 )(,
but pre-emption as between co-sharers (shaft-i-shareek) or owners of dominant
and serviep t tenements (shafi-i-kha1it) was saved by the reasonable restriction of
Clause (5) of the Article. 10 Then came two decisions of the Supreme Court
upholding the above view. In Bhau Ram v. Baij Nat& 1 the Supreme Court held
the custom of pre-emption by vicinage, though a liability attached to property,
operated as a restriction on the right to dispose of property; not being in public
interest, this restriction was not reasonable. moreover, it divided societ y on the
basis of caste and religion, which was prohibited by Article 15 of the
Constitution. The same view was maintained in Sant Ram v. Labh Singh 12. The
decisions affected only the vicinage type, the co-sharer type custom was
unaffected; it had been already recognised in Audh Bihari case (supra).
"However", as correctly pointed out by Paras Diwan, "in this case the
constitutional validity of the law of pre-emption was not challenged before the
Supreme Court. In fact, the constitutional validity could not have been
challenged in this cac, as it was a pre-constitutional case, where the leave to
appeal had already been granted by the Privy Council. After the coming into
force of the Constitution of India the appeal was heard by the Supreme Court.
Thus, from this case, no inference can be drawn that the Supreme Court had
upheld the constitutional validity of the law of pre-emption based on co-
ownership."3
By the Constitution (Forty-fourth Amendment) Act, 1978, the fundamental
right to property enshrined in Article 19(l)(f), as well as Article 31 has been

tO. Punch Guja v. Amar Singh, AIR 1954 Raj tOO; Babulal v. Gowardhandas, AIR 1956
MB I;
Mod Bai V. Kandkari, AIR 1954 Hyd 161.
It. AIR 1962 SC 1476.
12. AIR 1965 SC 314.
13. Muslim Law in Modern India (3rd Edn.) at p. 220.
310 MUSLIM LAW

Pre-emption has become the customary law even among the Hindus. Thus,
customary right to pre-emption exists among the Hindus of Bihar; (This entire
discussion should be taken as regulated by the latest decision of the Supreme
Court.) Syihat, parts of Maharashtra and Gujarat, such as Surat, Godhra and
Ahmedabad; parts of U.P., such as Banaras, Muzaffarnagar, and Saharanpur;
Delhi and Bengal 19 However, the right of pre-emption is extended to Hindus
only after being established.
The burden of proving a custom lies on the person who establishes it.
Where, however, its existence is generally known and judicially recognised, it
need not be proved afresh. A custom to be judicially recognised must be ancient
and invariable.
(iii) By statute, the law of pre-emption is applied in the following regions:
PUNJAB The Punjab Pre-emption Act, 1913
OUDH The Oudh Laws Act, 1876
AGRA The Agra Pre-emption Act, 1922
C.P. C.P. Land Revenue Act (Section 151)
BERAR Berar Revenue Code (Sections 176 to 178)
HYDERABAD Zabta Shikrnidaran (Paras 12 and 14)
(iv) Right of pre-emption may also arise in certain cases by contract
between sharers in certain villages.
Contracts of pre-emption are found noted in the wajib-ul-arzz of various
villages, especially in Uttar Pradesh. The pre-emption in such cases is governed
by the terms of the contract. If the contract is limited to the period of settlement,
for example, the right would not be enforceable after the expiry of that period. It
is immaterial whether the terms of the contract are in consonance with the
provisions of Muslim Law of pre-emption. The terms of the contract will have
overriding effect.
7. The pre-emptor
The following classes of persons are entitled in Hanafi Law to pre-empt:
(i) Shafi-i-Shareek: a co-sharer in the property.
A co-sharer is a person who has an undivided share in the property subject-
matter of sale. Shareek means co-sharer. There must be full ownership in the
land pre-empted, so when merely leasehold interest is sold, the right to pre-empt
does not arise. To illustrate—A and B are joint owners of a house; if A sells it to
P, B can pre-empt; but if A only leases it to P, B cannot claim any right of pre-
emption.

19. Verna, at pp. 783-84.

 XI] PRE-EMPTION (SHUFA) 309

taken away from Part III of the Constitution and reduced to a simple
constitutional right subject to 'law' under Article 300-A. In this changed status,
it is only of academic value to discuss the pros and cons of the decisions referred
to above. However, the moot point that may still be raised is—can a State agency
like the judiciary be used to implement a customary rule (of pre-emption by
vicinage) that requires discrimination on the ground of caste or religion
emphatically prohibited by Article 15(1)? Our answer is in the negative. With the
heralding of the 21st century, we have surely arrived at a point of time when the
Supreme Court's pronouncement relating to pre-emption can be said to be
perfectly compatible with the mood of the society.
However, the above discussion has lost much of its relevance now; in A.
Razzaque Bagwan v. Ibrahim Haji Mo/id. Husain 14 the right of pre-emption was
claimed on the ground of being shaft-i-jar and shaft-i-shareek, having property
adjoining to the suit house. The Supreme Court held that the law of pre-emption
based on vicinage was void, unconstitutional. The claim was disallowed.
6. Application of the law of pre-emption
The 'application' depends upon fcur factors: Is
(1) The law of pre-emption is applied to Muslims throughout India as a
matter of justice, equity and good conscience, except in the State of
Madras. There the Court 16 refused to apply it on the ground that it
imposed unwarranted restrictions upon the liberty to transfer property.
In Bombay too, it was held that pre-emption placed a clog upon the
freedom of sale, under the Transfer of Property Act and the Indian
Contract Act. 17
(ii) By custom, the law of pre-emption is applied also to Hindus in certain
localities, like Bihar.
If the custom is in variance with Muslim Law of pre-emption, the custom
would prevail. Thus, where a custom does not require strict compliance with the
formality of :alab-i-ish-had, it would not be obligatory on the pre-emptor to
observe it as a condition precedent to the enforcement of such a right. 18

14. (1998) 8 SCC 83: AIR 1999 Sc 2043. Once more pre-emption was claimed in Kumar
Gonsusab v. Mo/id. Miyan, (2008) 10 scc 153: (2008) 73 All LR 496 (SC) but the Apex
Court did not deem it relevant to go into the question of the validity of this right because the
claim of the right of pre-emption was based by the respondents merely on the basis of
'agreement for sale', whereas the right can arise only when there is a proper 'contract of sale'.
The Supreme Court did remark that the right of pre-emption is a weak right and is not looked
upon with favour by courts.
IS. Fyzce, at p. 339.
16. Ibrahim Sail., v. Muni-Mi-ud-din Saib, (1870) 6 MHCR 26.
17. Mo/id. Beg v. Narayan Meghaji Paul, ILR(1915)40 Born 358.
18. Za,nirHusain v. Daula g Ram, ILR (1833)5 All 110::
XI) PRE-EMPTION (SHUFA) 311

Under Shafli (Sunni sect) Law, only a co-owner or a co-sharer is entitled to

claim pre-emption right. Under Shia Law the right is available only when the
number of co-sharers is two, not more than two. According to the Punjab High
Court the objects of this right are to avoid disharmony between neighbours, to
protect the integrity of the village community, to avoid fragmentation of land
holdings, to reduce the chances of litigation and to promote domestic comfort.20
A person would not be a co-sharer for the purposes of pre-emption merely
because there is some common burial ground or chaupal, or some common road
or watercourse, or some property is left in joint occupation for convenience.
Persons jointly liable for the payment of revenue, even though the property has
been partitioned, would however be co-sharers.2'
(ii) Shaft-i-khalit: a participator in immunities and appendages, such as a
right of way.
However, a person would not become shaft-i-khalit merely because branches
of a tree in his house projected over the land sold, or he is only entitled to a right
of support from a wall standing on the property sold, or because he and the
vendor are both entitled to draw water from a Government watercourse.
There are three ways in which a person may be considered to be a shafi-i-
khalit:22
(i) He may be the owner of a dominant heritage;
(ii) He may be the owner of a servient heritage;
(iii) The property sold as also the property of the pre-emptor may be a
dominant heritage to a third person's property.
Dominant and servient heritage.—A owns a house which he sells to B. M
owns a house towards the north of A's house, and is entitled to a right of way,
through that house. N owns a house towards the south of A's house, separated
from A's house by a partition wall, and having a right of support from that wall.
Both M and N claim pre-emption of the house to B. Here M is a participator in
the appendages, while N is merely a neighbour, for the right of collateral support
is not an appendage. M is therefore entitled to pre-emption in preference to N. It
is immaterial that M's right of way has not been perfected by prescription under
the Easements Act.
In the above example, the house owned by M is a dominant heritage, and the
pre-empted house is a servient heritage, for M has a right of way through it. M
would still remain a "participator" in the appendages, if the pre-empted property
was the dominant heritage and his property was the servient heritage.23

20. Urtam Singh v. KartarSingh, AIR 1954 Punj 55.

21. Verma,atp.550.
22. MuIla, at pp. 212-13.
23. MulIa, at p. 259.
312 MUSLIM LAW (CHAP.

In the Bhau Ram and Sant Ram cases (supra), the Supreme Court has held
the right of pre-emption valid when based on certain appendages like common
staircases, common entrance, etc. -
(iii) Shaft-i-jar: The owner or neighbour of adjoining immovable property.
(This, however, must now be read subject to the decision of the
Supreme Court in Bhau Rain case24 holding pre empti3n oz the
ground of vicinage as unconstitutional).
The right of pre-emption on the ground of the vicinage does not extend to
estate of large magnitude, but is confined to houses, gardens, and small pieces of
land.
If there are more than one pre-emptor belonging to different categories, the
first category or class excludes the second, and the second excludes the third.
[See, illustration (a) below]. But if the claim be made by two or more persons
belonging to the same class, they are entitled to equal shares of the pre-empted
property on tendering their respective quotas of the purchase money.25
Illustration
A mansion is situated in a street which is not a public thoroughfare and
belongs to two persons, one of whom sells his share. The right of pre-emption
belongs in the first place to the other partner in the mansion. If he surrenders his
right, it belongs to the inhabitants of the street equally, without any distir.cti"
between those who are contiguous and those who are not so. If they all surrender
the right, it belongs to the owner of any house immediately contiguous to the
house in question, even though not abutting on the private street.26
Exceptions.—There may be cases in which one person is considered to be
co-sharer with the vendor in a closer and more intimate sense than another, and
is on that ground allowed precedence [See, illustration (a) below]. There may
also be cases in whith a person who shares with the vendor the whole of a
certain easement may have priority over one whose participation is less complete
[See. illustration (b) below].27
Illustrations
(a) A group of houses belonging to different owners are situated on a street.
In the same group of houses, there is a house belonging to two persons, one of
whom sells his share in it. The right of pre-emption belongs first to the partner in
the house, then to the owners of the group of the houses, and then to the people
in the street, who are all alike. If all these give up their right, it belongs to the

24. (1954) 1 All U 151-56.

25. Wilson, at p. 4O.
26. Baillie, at p.402.
27. Baillie, at p. 42.
xi] PRE-EMPTION (SHUFA) 313

neighbour behind the mansion, who has a door opening into another street, and
who is therefore simply a neighbour, and not a participator in the appendages
(Wilson).
(b) If, in the above illustration, there be another private street leading from
the first-mentioned street, and a house in it is sold, the right of pre-emption
belongs to the inhabitants of this inner street, because they are more specially
intermixed with it than the people of other street. But if a house in the outer
street is sold, the right of pre-emption belongs to the people of inner, as well as
to those of the outer street, for the intermixture of both in the right of way is
equal (Wilson).
(c) If there be two houses on opposite sides of a public street, and one of
them is sold, there is no pre-emption except for the adjoining neighbour
(Wilson).
(d) If there is a small channel or canal from which several gardens are
watered, and some of them are sold, the owners of all the gardens are pre-
emptors, without any distinction between those who are and those who are not
adjoining (Wilson).
(e) A is the owner of a land, just adjoi:ing to which is the land of B: After
B's plot of land, there is a kutcha road, on the other side of which is the plot of
land belonging to C. The kutcha road is a public thoroughfare. B and C sell their
lands to D. Here A is entitled to whole of the land belonging to B and C, and not
merely the portion on his side of the road.28
(f) A, who owns a piece of land, grants a building lease of the land to B. B
builds a house on the land, and sells it to C. A is not entitled to pre-emption of
the house, for he is not a co-sharer, nor a participator in the appendages of the
house, nor an owner of adjoining property. His mere ownership of the land on
which the house has been built, gives no right of pre-emption (Mulla).
Benami transactions.—A secret purchase of shares in a village in the name
of another (benami) does not cozistitute the real purchaser co-sharer for the
purpose of pre-emption, so as to enable him to defeat an otherwise bona fide
purchaser, who has no notice of the previous secret sale.29
8. Characteristics of sale giving rise to pre-emption

The right of pre-emption does not arise out of gift, charity, inheritance, or
bequest. It must be a sale where:
(i) there must be an exchange of immovable property for money or
property; and

28. Mulla, at p. 260.

29. Wilson, at p. 407.
314 MUSLIM LAW [CHAP.

(ii) there must be an actual transfer of ownership from the vendor to the
vendee.
The right of pre-emption does not arise in the following cases:
(1) A contract to sell at a future time;
(ii) A sale with reservation (to either vendor or vendee) of an option of
repudiation;
(iii) A lease, even in perpetuity.30
As sale alone gives rise to the right of pre-emption, it is important that the
exact point of time, when the sale is said to be complete, is known.
According to an Allahabad decision of 1894,3 1 sale is complete where the
price is paid, and possession is delivered. It is immaterial that it does not amount
to sale under the Transfer of Property Act.
The Privy Council, however, held in Sitaram Baurao v. Jiaul Hasan32, that
the intention of parties must be considered in each case to decide which system
of law is to be applied. This view has oeen rejected by the Supreme Court in
Rain Saran v. Domini Kuer33. The facts of the case were these—P executed a
sale deed of a house on 31st January 1946, in favour of D, and presented ii for
registration on the same day. On hearing of the sale, RS made a talab-e-
muwathaba (the first demand) on 2nd February 1946. The deed was copied out in
the Registrars 000ks on 9th i'eoruary 1946. RS ñiea a suit rot pre-empuuli. £
resisted the suit on the ground that the sale was completed only on 9th February
1946, and not earlier. Therefore, the demand was made prematurely. The
Supreme Court (by 3 to 2) held that the demand was made prematurely and must
fail. 34 Thus the requirements of the Transfer of Property Act, Sections 54 and 61,
must be completed where so required. Earlier also in Radhakishan
Laxminarayan v. Shridhar35 the Supreme Court had held that a transfer of
property had to be in compliance with the TP Act only where so required by it
and Muhammadan Law or any other personal law of transfer of property could
not override the statute. "The right of pre-emption is a weak ri pht the courts
would not go out of their way to help the pre-emptor. It is neither illegal nor
fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by
all legitimate means."

30. Wilson, at p. 407.

31. Begam V. Mohd. Yakub, ILR (1894) 16 All 344. See also, Janki v. Girjadat,
ILR (1885)7 All
482 (FH).
32. (1921)48 IA 475.
33. AIR 1961 SC 1747: (1962) 2 SCR 474.
34. Fyzee has criticised this judgment as harsh and technical, seemingly based on the prevailing
view that pre-emption was unconstitutional and therefore should be discouraged, (4th Edn.) at
pp. 344-45.
35. AIR 1960 SC 1368.
 PRE-EMPTION (SHUFA) 315
XI]

Whether transfer in lieu of dower is sale?—In Fida Ali v. Muzaffar All 36, the
Allahabad High Court held that such a transfer is sale, provided it is in
satisfaction of a previous obligation.
Full Bench of the Allahabad
Later on, in Ghulam Abbas v. Razia Begum 37, a
High Court took the view that transfer in lieu of dower amounts to sale. This
view would now prevail in Oudh too.
On the other hand, the Oudh Chief Court held it to be a hiba-bil-ewaz.
Fyzee opines that the Oudh view "appears to be more in consonance with
justice".38
No right of pre-emption in other transfers.—The right does not accrue in
the following types of alienations of property:
1. Gifts
2. Sadaqa
3. Wakf
4. Inheritance
5. Bequest
6. Lease, even though in perpetuity
7. Mortgage, and
8. Conditional sale.39
The wakif has no right of pre-emption on behalf of the
wakf property; nor
can God, as the ultimate sovereign and owner of property, claim pre-emption on
behalf of the foundation. The conception of God being impleaded as a party in a
claim before a Kazi is so foreign to Muslim religion and Muslim jurisprudence
that Muslim jurists have nowhere discussed whether a suit can be filed on behalf
of God Almighty.40
Sale of leasehold interest in the land does not give rise to the right of pre-
emption as held by the Supreme Court in Munnilal v. Bishwanath Prasad.
There must be full ownership in the land pre-empted, and the pre-emptor also
must have full ownership to maintain a suit for pre-emption, because reciprocity
is the basis of the Muhammadan Law of pre-emption.

36. ILR(1882) 5 All 65.

37. AIR 1951 All 86 (FB).
38. Fyzee, at p. 345. *
39. Aquil Ahrnad, Mohammedan Law (1987) at p. 273.
40. Giriraj Kunwar v. Irfan AU, AIR 1952 All 686.
41. AIR 1968 SC 450.
316 MUSLIM LAW [CRAP.

9. Difference of religion or sect

Difference in religion of buyer, seller and pre-emptor.----lf all parties are
Muslims, there is no problem and the law of pre-emption will be applicable. But
it cannot be applied in the following cases (consequently, no pre-emption):
(i) If all parties are Hindus. and there is absence of a relevant custom;
(ii) If the vendor and the vendee are Hindus, but the pre-emptor is a
Muslim;
(iii) If the pre-emptor is a Hindu, and the vendor and the vendee are
Muslims;
(iv) If the vendee is a Muslim, and the pre-emptor and the vendor are
Hindus;
(v) If the vendor is a Muslim, and the pre-emptor and the vendee are
Hindus;
This is so because Muslim Law is a personal law, and not the common law
of the land, and the rights and obiigations must be reciprocal;4'
(vi) What will be the position, if the pre-emptor and the vendor are
Muslims, but the vendee is a Hindu?
The above statements about the religions of the three parties may be tabled
as follows to better anureciate the position for am,roachian the answer—
Vendor Vendee Pre-emptor Right to Pre-empt
Muslim Muslim Muslim Yes
Hindu Hindu Hindu Depends upon local custom
Hindu Hindu Muslim No
Muslim Muslim Hindu No
Hindu Muslim Hindu No
Muslim Hindu Hindu No
Muslim Hindu Muslim
As to the last question, there are two views propounded by different High
Courts. According to the Calcutta High Court, if the vendee is a Hindu, a
Muhammadan pre-emptor cannot enforce his right of pre-emption. "We
cannot ... in justice, equity and good conscience, decide that a Hindu purchaser in
a district in which the custom of pre-emption does not prevail as amongst
Hindus, is bound by the Muhammadan La.v, which is not his law, to give up
what he has purchased to a Muhammadan pre-emptor." 43 The Allahabad High
Court, on the other hand holds that the right is enforceable by a Muslim pre-
emptor even against a Hindu purchaser, because the Muhammadan owner of

42. Fyzee, at p. 337, citing Gobind Dayal v. Inayatu!lah, ILR (1885)7 MI 775.
43. Sk. Kudratullah V. Mahini Mohan Saha, (1869)4 Beng LR 134. •_•.0 y
 XI] PRE-EMPTION (SHUFA) 317

property is under an obligation imposed by the Muhammadan Law to offer the

property to his Muhammadan neighbours or partners before he can sell it to a
stranger, and this is an incident of his property which attaches to it whether the
vendee be a Muhammadan or non-Muhammadan. 44 While the Patna High
Court45 holds similar view, the Bombay High Court 46 agreed with the Calcutta
High Court. Fyzee comments that the Calcutta and Bombay High Courts had
based their verdicts on the premise that the right of pre-emption was a right of
repurchase from buyer, however, the view of Mahmood, J. that pre-emption was
a right of substitution and, therefore, an incident of property, likening it to a
servitude running with the land47 has been adopted by the Supreme Court", and
therefore the question is no longer open to doubt.49
Since there is no direct verdict of the Supreme Court on this specific
question, it is still open to consider the pros and cons of this conclusion. The
strongest point in favour of a positive answer is the raison d 'etre of the custom,
namely, in the words of Mahmood, J. "The intrusion of a stranger as a co-sharer
must not only give rise to inconvenience, but disturb domestic comfort if not, as
in some cases, lead to breach of the public peace." And, 'if such a law of
inheritance (i.e. Muhammadan Law) were not mitigated by the law of pre-
emption, the result would be serious - inconvenience, and possibly even
disturbance more particularly on account of Zenana system, which prohibits
invasion of privacy.' 50 With this premise it may be argued that the Hindu
religion of the vendee makes him still more a stranger, an intruder, and
strengthens the claim of the Muslim pre-emptor.
On the other hand, the positive answer entails certain consequences in the
nature of constitutional incompatibility, and also raises certain ethical questions.
Can a person be compelled to bear an obligation without a corresponding right?
Fyzee himself approves the principle of reciprocity in connection with the rights
of Shia-Sunni duo under the head 'Conflict of Laws—Religion of Buyer, Seller
and Pre-emptor' thus—"ln India, all religions are treated with equality, and,
therefore, in this branch of the law the principle of reciprocity should be
logically applied. Hence, on general principles, it would be unfair to apply the
law of pre-emption and to create rights in favour of persons who would not be
subject to corresponding obligations."5 ' Applying this principle to a Shia vendor
and Sunni pre-emptor, and also vice versa, the claim of pre-emption fails. In this

44. Govind Dayal v. lnayatullah, ILk (1885)7 All 775.

45. Achutananda Pasait v. Biki Bibi, ILR (1922) I Pat 578.
46. Hamedmiya Badamiya Saheb v. Dr. Joseph Benjamin, hR (1928)53 Born 525.
47. Sk Kudratulla v. Mahini Mohan Shaha, (1869)4 Beng LR 134.
48. Bishan Singh v. Khazan Singh, AIR 1958 SC 838.
49. Fyzee, Outlines of Mohammadan Law (41h Edn.) at p. 339.
50. GovindDayal v. Inayatullah, ILR(1885)7 All 775.
51. Fyzee, op. Cit., at pp. 345-46.
318 MUSLIM LAW [CHAP.

connection he discusses in detail the case of Pasha Beguin v. Syed Shabbar

Hasan52 and concludes: "It will be recalled that this reasoning (viz. 'applying the
principle of reciprocity') is the one put forward by Mahmood, J. in the leading
case of Govind Dayal v. Jnayatullah, and the majority (in Pasha Begun) cited it
with approval and adopted the principle of reciprocity as being in consonance
with justice and eauit y."53 As 'ri ght in favour of a person not subject to
corresponding obligation' is 'unfair', mutaris mutandis, obligations without
corresponding right would also be unfair. If this is true in case of a vendor, it is
equitably true in case of a vendee. In fact, from ethical point of view, vendee is
the party which deserves the protection the most, for it is the only party that
bears the brunt of the transactions.
As the 5th line in the above table shows, if a Hindu sells his property to a
Muslim purchaser, a Hindu pre-emptor cannot enforce his claim. If this, is so
because pre-emption is a rule of Muslim Personal Law, then the question arises
why should a Hindu be forced to submit his property for the implementation of a
rule of Muslim Personal Law? And for what reciprocal right? The Hindu vendee
owes no obligation towards the Muslim vendor or the Muslim pre-emptor. To
say that the right of pre-emption is a servitude on the property is only to restate a
particular rule of Muslim Personal Law, and not a general law. So far as the
application of personal law is confined to followers of that religion, there may be
a case of reasonable classification, but when two parties are distinguished in their
reciprocal rights, inter se rights—on the ground of religion only, it is a case of
violation of the equality clause under Article 14 and the non-discrimination
clause under Article 15(1). Are the grounds like 'inconvenience' 'domestic
discomfort', 'disturbance of privacy', 'likely breach of public peace' truly
religious concepts or secular social concepts? After the advent of the
Constitution, these 'justifications' are jarringly incompatible with the ideal
enshrined in Article 51 -A(e).54
Now that the Supreme Court has held right to pre-emption on the ground of
vicinage claimed by Shafi-i-Shareek and Shaft-i-Jar both unconstitutional in A.
Razzaque Bagwan v. Ibrahim Haji Mohd. Husain 55 . There is no justification now
in a positive answer tQ any of the lines in the table. The above discussion was to
point out the unconstitutionality involved in the discrimination on the ground of
religion. This "feeble right" becomes still feebler in the zone of constitutional
law and should be derecognised. In fact, in our opinion, any implementation of
pre-emption will be void.

52. AIR 1956 Hyd I.

53. Fyzee, at p. 347.
54. It shall be the duty of every citizen of India—'to promote harmony and the spirit of common
brotherhood amongst all the people of India transcending religious ... diversities...'.
55. (1998)8 SCC 83: AIR 1999 SC 2043.
 PRE-EMPTION (SHUFA) 319
X11

Difference of school.—(i) If both the parties belong to one and the same
school, the rules of that particular school apply.
(ii) If the vendor is a Shiite and the pre-emptor a Sunnite, then Shia Law
shall apply according to the Allahabad High Court, and unni Law according to
the Calcutta High Court.
(iii) If the vendor is Sunni and pre-emptor Shia, Shia Law will apply. This is
so because the right of pre-emption must have a reciprocal duty towards the
vendor, i.e., if in future the present pre-emptor sells the property, the present
vendor may opt to pre-empt—at that time he must be entitled to do so. Now,
since with Shia vendor Shia Law applies, the Sunni pre-emptor in the above
example, will lose; thus there is absence of reciprocity. (Reciprocity means A
should be allowed to pre-empt the sale by B only if B could also pre-empt the
sale by A.)
Illustrations
(a) A, a Sunni sells his land to B, a Sunni. His neighbour C, a Shia, sues for
pre-emption on the ground of vicinage. Pre-emption will not be allowed. Shia
Law which is applicable in this case does not recognise pre-emption on the
ground of vicinage.
(b) A, a Shia, sells his land to B. C, a Sunni neighbour claims pre-emption on
the ground of vicinage. In this case, pre-emption should not be allowed
according to the Allahabad High Court view, which recognises Shia School in
this case. Pre-emption will be allowed by the Calcutta High Court, but this view
does not hold good now after the Supreme Court verdict, striking down pre-
emption on the basis of vicinage as unconstitutional.
(c) A house is owned by A, B, C, and D. A and B are Sunnis, C is a Shia and
D is a Christian. A sells his share of the house to D. Both B and C make the
prescribed demand (talab) and bring a joint suit for pre-emption. Who will
succeed?
Answer—D, the vendee is a Christian—a non-Muslim. According to the
Allahabad and Patna High Courts the right of pre-emption can be claimed
because it is not necessary that the vendee should also be a Muslim. According
to the Bombay and Calcutta High Courts, no right can be claimed.
Now the vendor A is Sunni and the pre-emptor C is Shia. Between them the
Shia Law of pre-emption should be applied (on the ground of reciprocity).
According to Shia Law, the law of pre-emption does not apply if there are more
than two co-sharers. Here there are four co-shares (A, B, C, D). Hence C, a Shia,
cannot be entitled to pre-empt.
Now about B—a Sunni. The rule is that making a non-entitled person a co-
plaintiff frustrates a suit. C is a non-entitled person (as seen above). B makes him
320 MUSLIM LAW [CHAP.

a co-plaintiff. So B's suit fails. Had he sued independently, he would have

succeeded, as he is a Sunni and Sunni Law would have applied.56

10. Formalities to be observed

"No person is entitled to pre-empt unless he takes the proper steps at the
proper time, and conforms strictly to the necessary formalities."57
There are three necessary formalities known as the three demands.
(i) The first demand (Talab-i-Mowasibat).—On receiving the information
of the sale, the pre-emptor must immediately declare his intention to assert his
right, (mowasiba literally means 'to jump'. The idea is of a person jumping from
his seat, as though startled by news of the sate).
The haste in which this demand is to be made is highlighted by the Hedaya
where it says that if a pre-emptor receives the information of a sale by letter, and
the information is contained in the beginning of the letter, and he reads on to the
end without making his demand, the right is lost. (This, however, must not be
taken literally, it is only an example). The law simply requires extreme
promptness.
A delay of 12 hours was held in an Allahabad case to be too long. So also
delay of 24 hours was considered too long by the Nagpur High Court. A Calcutta
case is typical: the pre-emptor, on hearing of the sale, entered his house, opened
a chest and took out a sum of money (to pay to the buyer), and then made the
first demand, he was denied the right to pre-empt, because of delay.
No witnesses are necessary, nor any particular language or form, for making
this demand.
The pre-emptor cannot make a delay by taking the plea that he had reason to
believe the real price should be much lower than that notified to him.
Being a feeble right, 'as it is the de-seizing of another of his property merely
in order to prevent apprehended inconveniences 58 , the formalities must be
strictly observed. 59 The Allahabad High Court has held that it being a weak right,
any legitimate device is sufficient to defeat it. The law is that the demand should
be made in a reasonable time. What time is reasonable, is a question which is to
be answered on facts of each case. 60 The requirements of talab were abolished
by a Government notification of 1927 in the former Jaipur State.6'

56, Aquil Ahmad, at p. 279.

57. Fyzee. Strict observance of formalities is necessary because "the right of pre-emption is but a
feeble right, as it is the dc-seizing of another of his property merely in order to prevent
apprehended inconveniences".
58. !Iedaya, at p. 550.
59. Mulla, at p. 274.
60. Rajendra Kumar v. Rameshwar Dos Milla!, AIR 1981 All 391.
6l Radha Ba!labh Haldiya v. Pusha La! Agarwa!, AIR 1986 Raj 88.
xi] PRE-EMPTION (SHUFA) 321

(ii) The second demand (Talab-i-ish-had).—The pre-emptor must, with

the least practicable delay, make a second demand, either personally or through
an aènt. He must (a) refer to his first demand; (b) do so in the presence of two
witnesses; and (c) do so in the presence of either the vendor (if he is in
possession), or the purchaser, or on the premises.62
There is no definite form for making this demand. The pre-emptor may very
well say, "such a person has bought such a house of which I am the pre-emptor; I
have already claimed my privilege of shufa and now again claim it: be you
therefore witness thereof."
It is permissible to combine the first two demands, provided the pre-emptor
assembles two witnesses, and makes the demands in the presence of the vendor
or vendee, or on the premises. Talab-i-ish-had may be made by letter also.
(iii) The third demand (Talab-i-Tamlik).—The third demand, or speaking
more precisely, a legal action, is only necessary when the first two demands fail.
Such a suit must be filed within one year of the purchaser taking possession of
the property, if it is corporeal; or within one year of the registration of the
instrument of sale, if incorporeal.63
The legal suit claiming pre-emption should be in regard to the whole of
property; a claim to a part of the estate sold is not sufficient.
11. Subject-matter of pre-emption
Ordinarily only immovable property can be a subject-matter of pre-emption.
The Prophet had limited it to only a mansion and a garden, whence the law
expanded the rule to embrace houses and landed property. Pre-emption must be
claimed of the whole of the estate, because otherwise by breaking up the bargain,
the pre-emptor would be at liberty to take the best portion of the property and
leave the worst part of it with the vendee. 64 The rule would apply to those
transactions which, while contained in one deed cannot be broken up or
separated. However, if several distinct properties are sold by one contract, it is
not necessary that he should claim all of them, in such a case he may choose one
and leave others. So also where the pre-emptor is one of many, he may claim his
saleable share and tender the. price. Fixtures and trees are appendages of the land,
and therefore immovables. Some Shia authorities permit pre-emption right over
moveables like apparel, ucensils, animals, etc. Shafli law disallows pre-emption
right on indivisible property.

62. Fyzee, at p.349.

63. Limitation Act, Art. 10.
64. Sheobharos Rai v. Jiach Rai, ILR (1886)8 All 462.
 MUSLIM LAW [CHAP.
322

12. Legal effects of pre-emption65

(i) When the claim of pre-emption is complete, the pre-emptor steps in the
shoes of buyer.
(it) If the sale has been completed when the claim to the right of pre-emption
is enforced, the original buyer becomes the new seller, and the pre-emptor as the
new buyer.
(iii) The pre-emptor does not become liable for any contingent charges
incurred by the buyer, such as brokerage or agency.
(iv) The buyer is entitled to receive or retain the rents and profits of the land
during the interval between the date of its sale to himself, and its transfer to the
pre-emptor.
(v) As the pre-emptor takes the property from the buyer, and not the seller,
the buyer must always be a party to the suit. But after the pre-emptor has taken
possession of the land, there is no need of seller.
13. Loss of the right of pre-emption
The right of pre-emption is lost in the following three ways:
(i) omission to claim, or waiver;
(ii) death of pre-emptor before enforcement; and
(iii) forfeiture of right.
(i) Omission to claim, or waiver.—A person entitled to pre-empt loses this
right if he express!) or impliedly waives it (e.g., if he says, "I have made void
the shufa", or, "have caused it to drop"), or omits to assert immediately his right.
(ii) Death of pre-emptor.—Under Hanafi Law, the right of pre-emption is
extinguish..d where the pre-emptor dies before enforcing it by suit, even if he
made the two demands.
Under Shafli and Shiite law, however the right to pre-empt devolves upon
pre-emptor's heirs, in the proportion of their right of inheritance.66
(iii) Forfeiture of right.—The right of pre-emption is forfeited if
(a) the pre-emptor releases it for a consideration;
(b) the pre-emptor tries to dispose of the subject of pre-emption to a
stranger;
(c) partition is made of a property in respect of which the right of pre-
emption can only be claimed by coparceners; or

65. Tyabji, at pp. 718-20.

66. Tyabji, at pp. 696-97.


xi] PRE-EMPTION (SHUFA) 323

(d) there is some statutory disability with the pre-emptor as regards

purchase of land in question. For example, the pre-emptor was not a
member of the agricultural tribe within the meaning of the
Bundelkhand Alienation Act, 1903. There was no provision in the Act,
entitling an intending purchaser to get the sanction of the Collector to
bring a suit for pre-emption. It was held that the claimant could not
pre-empt, as the Act provides the property should not be sold to the
pre-emptor.67
14. How pre-emption is evaded
Modern writers 68 maintain that there may be only one feasible way of
evading pre-emption. That is, when the pre-emption right of a neighbour may be
defeated by the vendor reserving to himself a strip, however narrow, of the land
or house, immediately bordering on the neighbour's property.
Such an evasion, however, is no more required, as the Supreme Court's
verdict invalidating pre-emption on the ground of vicinage itself deprives the
neighbour of his right' to pte-empt.
Although Tyabji mentions a number of other devices of evasion, yet Fyzee
feels the modem Court would be very much hesitant to accept any device which
interferes with the right of pre-emption. "It will be found that no 'tricks or
artifices' can defeat the pre-emptive right in our Court." (Mahmood, J.) The fact,
however, is that the modern judicial opinion is against this right.
15. Sunni Law and Shia Law of pre-emption—Comparison69
Topic Sunni Law Shia Law
Property Indivisible property miy be No. Only divisible
pre-empted. property may be pre-
___________ empted.
2. Pre-emptor Three types of pre- Only one type - a co-
- ptors— sharer; and only if they are
(i) Co-sharer: any nos; two in number, not if
more.
(ii) participator in;
Immunities and
appendages;
(iii) Owners of adjoining
property (vicinage,
neighbour).

67. Tyabji, at p. 700.

68. For example, Wilson, at p. 420; Mulla, at p. 280; Fyzee, at p. 354.
69. See, K.P. Sharma, at pp. 305-06; M.P. Tandon, Muslim Law in India (9th Edn. All) at p. 218.

pp-

324 MUSLIM LAW

- Topic Sunni Law Shia Law

31 Right to sue Only in lifetime of the The heirs of the claimant
• claimant pre-emptor; right pre-emptor inherit the
extinguishes if his death right to proceed with the
occurs when suit is pending. suit.
4. Formalities The first and the second The distinction not so
of demand demands must be distinctly essential; only insistence
made, and delay not on quick demand; and
condonable. delay on reasonable
- - ground may be condoned.
5. Reduction of The pre-emptor is entitled to No. Pre-emptor has to take
price the benefit of the reduction the property from the
of price by the vendor after vendee at the contract
completion of contract.

6. Improvemen improvements on th The first option is with the
ts on the property by the vendee post- vendee Ao remove the
property sale may be optionally taken improvementc.70
by pre-emptor on payments
for these.

70. K.P. Sharma, at pp. 305-06. M.P. Tandon, Muslim Law in India (9th Edn. All) at p.218.
 xII

Will
(Wasiyat)

1. Concept and meaning

A pre-Islamic Arab's capacity to dispose of his property by will was as full
as his power to deal with it by acts inter vivos. He was free to make will in
favour of any one he chose, and there was nothing to prevent him from giving
away his entire property to some rich stranger, leaving his own children, parents
and kindred in want. He was also at liberty to give preference to one heir to the
exclusion of others.1
After the advent of Islam, when Koran laid down specific rules for the
distribution of inheritance, it was thought undesirable to allow him to tamper
with the course of devolution of property through unrestricted rights of making
wills. Islam placed a restriction on the testator's power, so that he was not
allowed to bequeath more than one-third of his estate.
This limit of one-third is not laid down in the Koran, but is based on the
following tradition:
"Sa'd ibn Abi Waqqas said: I was ill in the year of the conquests of
Mecca, and was near dying, and the Prophet came to see me, and I said: 'Oh
Messenger of God, verily I have mich property, and no heir except my
daughter, may I then make a will, leaving all my wealth for religious and
charitable purposes?' He said, 'No'. I said, 'May I do so with 2/3rd of it?'
He said, 'No'. I said, 'Shall I with 1/2 of it?' He said, 'No'. I said, 'May I
with 1/3rd of it?' His Highness said, 'Make a will disposing of 1/3rd in that
manner; for 1/3rd is a great deal, particularly of this great wealth which you
possess, for verily if you die and leave your heirs rich, it is better than
leaving them poor to beg; for verily the money which you expend for God's

1. Abdur Rahim, at p. 15.



[CHAP.
326 MUSLIM LAW

pleasure, you will be rewarded for, even to the mouthful which you lift up to
your wife's mouth."2
Another version of the same Tradition runs as follows:
"Sa'd ibn Abi Waqqas said: 'His Highness came to see me when I was
sick, and said, 'Have you made your will leaving anything to be expended in
the way of God, and for charitable purposesT I said, Yes, I intended to do
so'. He said, 'In what proportion of your wealth have you intended so
doing?' I said, 'All my wealth is for the road of God'. The Prophet of God
said, 'Then what have you left your children?' I said, 'There is no necessity
for my leaving anything to them, for they are rich.' His Majesty said, 'Make
your will leaving 1/10th in the road of God'. And I continued repeating my
desire to leave more, till at last the Prophet said, 'Then make your will
leaving 1/3rd for that purpose, and 1/3rd is a great deal.113
In the above tradition, the Prophet's answer might very well have been taken
as applying only to that particular case, which was that of a man leaving one
daughter and no ether heirs; but it appears, in fact, to have been treated by
lawyers of all Schools, both Shia and Sunni, as guarding the rights of all
inheritors however remote, and as permitting bequests to the extent of one-third,
even when these are Sons as well as daughter.4
A will offers to the testator the means of correcting to a certain extent the
law of sueccssiofl, and enabling some of those relatives who are excluded fror
inheritance to obtain a share in his property, and of recognising the services
rendered to him by a stranger. At the same time the Prophet has declared that the
power should not be exercised to the injury of the lawful heirs, and restricted the
testator from bequeathing more than one-third of his estate. It is difficult to
explain why this 'imit of one-third has been fixed; probably Roman Law might
have influenced this fixation.5
The rule of one-third was recognised by our Courts as early as 1806, and
8 and
later on in Ekin Bibee case6 , Jumunoodeen Ahmad case 7 , Baboojan case
Sukoomat Bibee cujt.
The word wasiyat also means a moral exhortation, in our context it means a —
declaration in compliance with moral duty of every Mussulman to make

2. Mischat-u1-MaSabih, XII, xx at p. 1.
3. Mjschat-Ul-MaSab1j, XII, xx at p. 2.
4. Wilson, at p. 299.
i at p. 569, and Ameer Au, Muslim Law (Abridged
5. Fyzee, at pp. 356-57, citing Ameer All,
Edn., 1938) at p. 366.
6. (1864) 1 WR 152.
7. (1865)2 WR Me's 69.
8. (1868) 10 WR375.
9. (1874) 22 WR 400.
xii] WILL (WASIYAT) 327

arrangements for the distribution of his property. Thus, the Muslim Law of wills
presents a compromise between two opposite tendencies—namely, one, not to
disturb or interfere with the divine law of distribution of property after death, and
two, the supposed moral duty of every Muslim to make arrangements for the
distribution of his property within the prescribed limits. 10 According to Fyzee the
Muhammadan sentiment is in most cases opposed to the disposition of property
by will, and yet it is a moral exhortation, it is thus a reconciliation between the
dual insistence on moral exhortation as well as legal rectitude.1 1
The will of a Muslim is governed in India subject to the provisions of the
Indian Succession Act, 1925, by the Muhammadan Law (Tyabji).
2. Definitions
DURRUL MUK}ITAR: "Will is an assignment of property to take
effect after one's death.1112
HEDAYA: "Wasiyat means an endowment with the
property of anything after death—as if
one person should say to another, give
this article of mine, after my death, to a
particular person.1113
TYABJI: "The legal declaration of the intentions of
a Muslim with respect to his property,
which he desires to be carried into effect
after his death."4
3. Form of will
It may be made orally or in writing. Convenience, however, demands that it
should be in writing. If the will is in writing it need not be signed; and if signed,
it need not be attested. The only requisite is that the intention of the testator
should be clear; thus, a dumb person, or a person who is unable to speak due to
illness, may make valid wills through gestures. For instance, a sick man is unable
to speak from weakness. Another man addresses him and says, "Do you give
away one-third of your estate to Z'?" If the sick person gives a clear nod with his
head, the will is complete.
If the intention is clearly expressed, a will takes effect as a will even if it is
described as tam liknama, or is in any other form. The term tamlik is one of
general import and may be applied to a gift, to a sale or to a will. Where a man

10. Paras Diwan, at p. 209.

I. Fyzee, at p. 356.
2. Durrul Mukhtar (1st Edn., 1913) at p.402.
13. Hedaya, at p. 670.
14. Based on the definition given in the Indian Succession Act (39 of 1925),*. 2.
328 MUSLIM LAW [CHAP.

leaves one testamentary writing or several testamentary writings it is the

aggregate or the net result that constitutes his will. A document in the nature of
instructions by the deceased to his legal advisors or to his relative as to the
instructions to be given to the legal advisor as to the disposition of his property
would operate as a valid will and may be admitted to probate. But if the intention
is not clear, it will not take effect as a Will. 15 But a document with following
words, "I have no son, and I have adopted my nephew to succeed to my property
and title," was held not to constitute a will. The onus of establishing an oral will
is always very heavy; it must be proved with utmost precision, the contents and
intention must be implicit from the circumstances. So, the formalities are not
material, the essentials are:
(i) the testator must be competent;
(ii) the bona fide intention must be clearly expressed;
(iii) it must be intended to operate after his death;
(iv) the quantitative limits of the property must be observed;
(v) the qualitative requisites of the subject-matter of the will—the
property—are satisfied; and
(vi) the legatee must be competent to take the bvnefit. We shall discuss
these topics below.
4. Who can make willa
A Muslim who is of sound mind and is major can make a will. Although
according to Muslim Law majority is dependent on the age of puberty, which is
supposed to be reached at 15 years of age, yet the Indian Majority Act recognises
only the age of 18 years as a requisite for the purposes of will.
But if a guardian of his person or property has been appointed by Court or
his property has come in charge of the Court of Wards, he will attain majority on
completion of 21 years.
Apostacy.—According to Hanafi School, apostacy does not invalidate a will
if it is otherwise lawful. A will by a female apostate is lawful according to the
sect to which she apostatises. However, all these customary rules are otiose after
the coming into force of the Caste Disabilities Removal Act 1850, under which
apostacy is no more a disqualification.
Unsound mind.—If a will is made by an insane person, it would remain
void even if he subsequently recovers and remains sane till death. Conversely a
will made by a person of sound mind becomes void if subsequently he becomes
insane and remains so till death. A will by an insane made during lucid interval
shall remain valid Q.nly if the insanity does not last longer than 6 months.

15. B.R. Verma, Mohammedan Law (6th Edn., 1991) at p. 508.

 Xli] WILL (WASIYAT) 329

Insolvancy.—Debts have priority over legacy. If the testator is in debt to the

full amount of his property, the bequest would not be lawful unless the creditors
relinquish their claims.
A person condemned to death may also make a will.
A purdahnasheen lady is also competent to make a will. The Court would
scrutinise more carefully the element of free consent in such a case.
• will by a person under coercion, undue influence or fraud is disallowed.
• will made by a person after he has taken poison or has done any other act
towards the commission of suicide, is not valid. The Shia Law, however, says
that if the person made the will and then committed suicide, the bequest would
be valid. 16
A minor may make a will, but its validity would be postponed to the event
when, after attaining majority, he ratifies it. Such a will is very weak, as it is
open to attacks on the grounds that it has been made under force, coercion or
undue influence.
For wills made by persons suffering with death-illness, see, Section 5(2)
below.
The law of onus.—The person who propounds a will (i.e. claims the
existence of a valid will) is under greater obligation to prove by clear evidence
that the will was executed by the testator and at the time of the execution he was
a free agent and possessed of a sound and disposing state of mind. However, in
the case of a settlement as well as a will, , so long as the execution of the
document is proved, the onus is on the person who asserts that the document had
been obtained by undue influence. In case other than a will, at any rate the
person who alleges, has to prove that the executant did not have the mental
capacity to comprehend the nature of the transaction. 17
5. What and how much can be bequeathed
Subject of will.—It is not necessary that the property bequeathed by will
must be in existence at the time of the making of the will. It may, or may not be;
but it must be so at the time of the death of the testator; for, the will takes effect
from the point of the time the maker of the will dies. This is the vital point of
difference between a will and a giti. Thus, A writes a will 'I give to B the plot X
that I shall purchase at Jodhpur'. If this plot is purchased by A later, on A's death,
B will get it as a legatee. But if A fails to purchase it, and dies, B cannot say that
the plot should be purchased from the testator's property and given to B in
compliance with A's 'will'.—for there is no 'will' in that case.

16. Mulla, at p. 136.

Ii. B.R. Verna, at p. 509.
330 MUSLIM LAW [CHAP.

Anything, movable or immovable, over which the right of property may be

exercised or which may form the subject of exchange or barter, or a fractional
share thereof, or the usufruct of a thing, may be lawfully disposed of by will. A
bequest remains valid and operative, though subsequent to the making of the will
the testator makes any changes or improvements over the property subject to
such changes as imply a revocation by the testator. Thus, A bequeaths a house to
B and later modernises it, B will get the improved building. A gives a plot to B
by will, and later builds a house over it, B will get the plot and A's heir will get
the house. But if A bequeaths a house to B, and later pulls down the house, B gets
nothing. 18
(1) What?—The subject-matter of will may be:
(i) the corpus of a property, which must be in existence at the time of
testator's death, and could be non-existent at the time of making the
will;
(ii) the usufruct of an existing property for a limited time or for lifetime of
the Ti,+- —P..
•flJUfl*SJA& flfl L5UL.#._ £.)LkS
.,,.
OI4Lfl UO tha, Jk U

beneficiary under a wakf. It is permissible that the corpus may be

given to one person and the usufruct of the same property to another;
(iii) the vested remainder. Suppose A bequeaths the usufruct of a property
to B, for B's lifetime, and then the whole of property to C. C has
vested remainder in the nrnpert
Thus the Muslim Law differentiates between the corpus of the property and
the usufruct of the property. The corpus means the body, the physical form of the
property, such as a house means the construction. Usufruct means the fruits, the
benits, the uses, i.e., the intangible rights flowing from the property. Thus, in
regard to the house, the usufruct means the right to live in it, rental income from
it, etc. The bequest must vest in the legatee the absolute ownership over the
corpus, and the corpus must physically exist at the time of death. The usufruct
ma' on the other hand be given tor a limited peiiud, $n this period relates to
thc lifetime of the legatee, it is called life interests. For example A bequeaths to B
the jight to live in the house of A tili e (b) dies. It is permissible to give the
corpus to one person and the usufruct to another over the same property at the
same time. Thus A's bequest may say—B will live in the house till B's death and
thereafter C will get the house. As to such position, there was a controversy
earlier; now the position as made clear by the Privy Council, stands thus 19 : In
Amjad Khan V. Ashraf Khan20 the facts were—H made a gift of his property to
W subject to the conditions—(a) W would remain in possession during her
lifetime, (b) after her death the entire property would revert to C. The questions,

18. Ameer All, at p. 631.

19. See, Verna, at p. 594-95.
20. AIR 1925 Oudh 568: ILR (1929)4 Luck 305: AIR 1929 PC 149.
 WILL (WASIYAT) 331
XII]

were—(i) was this an absolute gift with void conditions, and (ii) would the gift
of a life interest be valid under Muhammadan Law? On the first point the Privy
Council decided that as the intention to grant only a life interest (and not full
rights of ownership) was clearly expressed, it would be only a life interest and
would not be enlarged into an absolute estate. On the second point no opinion
was considered necessary (but see another case infra). This decision made one
thing clear, that if nothing more than limited interest for life is intended to be
transferred by gift, it would not be enlarged into an absolute interest. As a result
of this decision, the High Courts (of Oudh, Nagpur, Bombay and Calcutta) held
that grants of life-interests were valid both by way of gift of inter vivos or by will,
and they would-not be enlarged into absolute ownership.
The law developed further in Nawazish Ali Khan v. Ali Raza Khan2t . Where
the use of a house was given to a man for his life, he may be termed as a tenant
for life; the owner in waiting, may be said to possess a vested remainder. If the
out of
gift (also bequest) is found to be of limited interest the gift can take effect
the usufruct leaving the corpus unaffected, except to the extent to which its
enjoyment is postponed to the duration of the limited interest. The Privy Council
also held that there was no difference between several schools on this point and
limited interest took effect under Shia and Sunni Laws both. The settled position
now stands thus—(a) a gift or bequst of limited interest in the usufruct may be
validly made under Shia or Sunni schools. (b) The term 'life-estate' under both
laws means an interest in the usufruct only. Corpus cannot be given by will or
gift for a limited period, unlike 'life-estates' under English law. (c) A will must
be read as a whole and the language must be given its natural meaning.
The law, therefore, is now clear that a testator may make a bequest of
limited rights dealing only with the usufruct (ghallat) of the property without
bequeathing the corpus. All such rights as rent, income, profits, produce, use or
occupancy of a house, the fruits of a garden—rights by which the corpus is not
consumed are usufruct of the property. The intention of the testator should be
gathered from the terms of the bequest. It is permissible to make a bequest of the
thing itself in favour of one person and of its produce or use to another.22
Bequest of the usufruct may be for a limited period or 'forever'. The expression
'for ever' will give th legatee a right to the use for his own lifetime only. At the
expiration of the limited period or at the death of the legatee, the thing will
immediately revert to the heirs of the testator. The legatee of usufruct cannot
alienate the property.
(2) How much?—No Muslim can bequeath more than one-third of his
estate. This one-third is calculated after deducting any debts, and funeral
expenses. For example, A dies leaving Rs 10,500 His funeral costs Rs 500 and

(1978) 1
21. (1948) 75 IA 62: AIR 1948 Pc 134. See also, Rahurnoth Ammal v. Mohd. Mydeen,
MLJ 499.
22. Verma, at pp. 510-Ill.
332 MUSLIM LAW [CHAP.

his debts amount to Rs 1000; the balance is Rs 9000. Hence the bequeathable
third amounts to Rs 3000, and A cannot dispose of more than this amount.23
But suppose A bequeaths Rs 4000, then the bequest would not take effect
unless the heirs of A give their consent, after the death of A (under Hanafi Law)
or before or after the death of A (under Shia Law).

Abatement of Legacies
But if the heirs do not give consent, the Hanafi Law provides that the
bequests be rateably reduced or abated. The principle is called the "abatement of
legacies". The Ithna Ashari (Shia) Law, however, does not recognise the
principle of "abatement of legacies". Shia Law says that if several bequests are
made through a will, priority would be determined by the order in which they are
mentioned. The first bequest, takes effect first and thereafter the subsequent
bequests, unless the bequeathable third is exhausted. For example, a testator
leaves 1/12 of his estate to A, 1/4 to B and 1/6 to C and the heirs refuse their
consent to these beauests. then A would take 1/12. and B would take 1/4. but C
who is mentioned last would get nothing, as the one third (1/12+1/4=1/3) is
exhausted between A and B. There was however, a curious exception to this rule;
if in the above example, A and B are both to take 1/3 each the later bequest
prevails; so B will have preference over A who will get nothing.24
If bequests are for religious or pious purposes but cxcee tc !:;: ii -,r
one-third then, the priority would be determined in the following order:
(a) bequest for faraiz (i.e. those duties which are expressly ordained in the
Koran, for instance, performance of haj);
(b) bequest for wajibat (i.e. those acts that are recommended by the
Koran, but are not obligatory, for instance, charity on day of breaking
the fast); and
(c) bequest for nawafil (i.e. voluntary but pious acts which are not even
recommended, for instance, building a bridge or an inn).
Bequest of the first class takes precedence over that of second; and bequest
of the second class takes precedence over that of the third.25
To illustrate: A Hanafi testator bequeaths Rs 3000 to A and B jointly; he also
bequeaths Rs 3000 to named pious purposes. The 1/3rd limit permits him to give
total Rs 4000 only. Now, the rule of rateable abatement will work like this—the
excess amount of Rs 2000 will be disregarded, and only Rs 4000 will be deemed
as part of the will. Out of this, the legatees and the pious purposes—both will
share equally as a group. So Rs 2000 will go to A and B equally--i.e. Rs 1000

23. Fyzee, at p. 360.

24. MulIa, at p. 143; Fyzee, at p. 362.
25. Verma, at pp. 522-23; Fyzee, at p. 362.
xii] WILL (WASIYAT) 333

each. As to the sum of Rs 2000 for the pious purposes regard shall be had to the
rules above, and bequests for faraiz will take precedence over, and may even
exclude, those for wajibat; and bequests for wajibat will likewise have priority
over those for nawafil.26
A Muslim cannot dispose of more than 1/3rd of his estate by will; but if he
registers his existing marriage under the provisions of the Special Marriages Act,
1954, he has all the powers of a testator under the Indian Succession Act, 1925.
Thus, the Bombay High Court held in Sayeeda v. SajkP7 that the Muslim
married under Special Marriage Act, was entitled to bequeath his entire property;
but at the same time all rigours of Indian Succession Act are applicable to him;
so will made by him will have to be probated and the claimant under it will have
to establish his right only after obtaining probate of will of the deceased. (The
persons married under Special Marriage Act, 1954 are governed by the Indian
Succession Act, 1925 and not Muslim Personal Law.)
Wills during maraz-ul-maut
A gift without consideration made in maraz-ul-maut (death-illness) takes
effect as a will. Under Hanafi Law, it takes effect to the extent of bequeathable
third, if it is not in favour of the heirs, and the possession has been taken by the
donees. Under Ithna Ashari (Shia) Law, it takes effect to the extent of 1/3, even
it is in favour of heirs, provided possession is transferred. 28 According to Fyzee, a
donatio mortis causa may be described as a gift of an amphibious character, not
exactly a gift, nor exactly a legacy, but partaking of the nature of both; for in
Muhammadan Law such a gift is governed by rules deduced from a combination
of two branches of law—the law of gifts and the law of wills. 29 To constitute
marz-ul-maut, (Fyzee) or maraz-ul-maut (Mulla), there must be (1) proximate
danger of death, (2) apprehension in the mind of the sick, and (3) some external
indicia, like inability to attend to routine work, etc. 30 But nothing is conclusive; it
is a question of fact. The question of apprehension is of extreme importance; it is
essential that the gift should be made under pressure of the sense of the imminence
of death. According to the Bombay High Court the crucial test of maraz-ul-maut is
the subjective apprehension of death in the mind of the donor; and this is to be
distinguished from the apprehension caused in the minds of others. 3 ' The Fatimid
authorities lay down the salutary rule that for healthy man it is prudent to make a
will; but, for a man who is ill, it is obligatory.32

26. Fyzee, at p. 362.

27. Sayeeda Shakur Khan v. Sajid Phaniband, (2006)4 CLT 192.
28. Tyabji, at p. 817.
29. (bid, at p. 370.
30. MulIa, at p. 148.
31. Safia Begum v. Abdul Rajak, (1944) 47 Born LR 381.
32. See, Fyzee, at p. 371.
334 MUSLIM LAW [CHAP.

A gift made during maraz-ul-maut is subject to all the conditions and

formalities prescribed in Muslim Law for gifts inter vivos. Thus, transfer of
possession is a must, otherwise the 'gift' fails. Similarly, a gift by way of will
during death-illness, must comply with the two conditions—the limit of one-
third, and if made to an heir—the requirement of the consent of other heirs.
Further, the peculiarities of the Shia and Sunni Laws also apply. 33 In Commr. of
G ift Tax, Ernakulam v. Abdul Karim Mohammed34, the facts were—a Muslim
executed a document styled as "settlement will" gifting certain movables to the
assessee. The gift was made when the donor was seriously ill and apprehending
his death. Possession was delivered to the donee before death. The donor died
within six weeks of executing the document. The assessee claimed that this was
a g ift during maraz-ul-maut and as such exempt from gift tax under Section
5(1 )(xi) of the Gift Tax Act. The Supreme Court held that in view of the serious
illness of the donor and his state of mind at the time of making the gift—the gift
was in contemplation of death. It rejected the commissioner's contention that it
was a gift inter vivos simpliciter.
Reasons for limits on the testamentary power
As said above, there are two limits on a Muslim's power to bequeath—one,
as to persons—he cannot bequeath to an heir, and two, as to property—he cannot
bequeath more than one-third of his property. 35 The reason for this rule is the
policy of the Munammaaan Law, VIZ., to prevent a testator irom inreriering oy
will with the course of devolution of property among his heirs according to law.
It safeguards against a breach of the ties of the kindred, practice of favouritism
and prejudice, and violation of the Koranic principles of inheritance. The object
also includes the concern to see that no heir is left destitute.
This has been repeatedly confirmed by judicial verdicts. For example, for
recent cases, see, Asma Beevi v. M. Ameer Au 36, where it was held 'a
Mohammedan cannot by will dispose of more than 1/3rd of surplus of his estate
after payment of funeral expensc id dcbt, u,-i.-.-s consent ic obtained from the
legal heirs, after the death of the testator. This consent of other legal heirs 37 need
not be express and it may be signified by conduct showing unequivocal
intention'.
The ban against bequest to stranger (i.e. a non-heir) in excess of one-third is
subject to following exceptions, that is, may be relaxed in the following cases:
(1) where, subject to the provisions of any law for the time being in force,
such excess is permitted by a valid custom;

33. Ibid, at p. 3 72.

34. (1991)3 SCC 520.
35. For exceptions, see infra.
36. (2008)6 MLJ 92.
37. See point 6. For whom. . . infra.
XII] WILL (WASIYAT) 335

(2) where there are no heirs of the testator;

(3) where the heirs existing at the time of the testator's death, consent to
such bequest after his death;
(4) where the only heir is the husband or the wife and the bequest of such
excess does not affect his or her share. 38 To illustrate this:
(i) A bequeaths his entire property to a stranger and dies leaving his
widow as his only heir. The widow does not consent. The will is
valid to the extent of five-sixth (i.e. in excess of one-third).
Because—The bequest is valid up to 1/3rd without her consent.
Out of the remaining 2/3rd, she is entitled to inherit 1/4th, i.e.
1/6th of the whole. Therefore, the will is effecuve upto 5/6th.
(ii) bequeaths her entire property to a stranger and dies leaving her
A
husband as her only heir. The husband does not consent. The will
is valid upto 2/3rd. Because—The will is valid to the extent of
1/3rd. The husband inherits half the 2/3rd (i.e. 1/3rd of the whole)
as heir. The will is valid to the extent of 2/3rd.
The share of the husband or wife is not affected in the above cases and the
will is valid in respect of more than one-third of the property.39
A critique of the one-third rule40
As is well known, a Muslim testator may not make bequests which, in
aggregate, exceed one-third of his net estate unless, at least, heirs consent thereto
after his death (or, in the Shia view, also during his lifetime). This is in most
cases eminently reasonable. But a Sunni Muslim is also precluded from making
any bequest whatever to one who is entitled to a share in his estate as an heir
unless, again, the other heirs consent thereto after his death. This rule is intended
to prevent him from altering in any way the division of his estate between
different heirs, as prescribed under the law of inheritance. Again, moreover, this
is perfectly reasonable as a general rule; but circumstances often arise in which
there may be excellent reasons for making special provision for a disabled child,
for example, one who has been deprived of the educational or financial
opportunities enjoyed by the other members of the family. The Shia Law has
always allowed this; and such freedom of bequest, within the bequeathable third,
would seem to be the natural implication of some of the verses of inheritance in
the Koran. So, recent reforms in Egypt 41 , the Sudan42 and Iraq43 have made this

38. Verma, at p. 517.

39. Verma, at p. 522.
40. See, J.N.D. Anderson, "Islamic Law of Testate and Intestate Succession and the
Administration of Deceased Persons' Assets", in The Islamic Law in Modern India (1972) at p.
204.
41. The Law of Bequests, 1946, Art. 37.
42. judicial Circular No. 53 of 1945, Art. I.
 336 MUSLIM LAW [CHAP.

lawful for all Muslims. It is obvious, moreover, how much the relaxation of the
rule previously accepted by Sunnis in this matter would benefit widows since
their husbands could then leave them a bequest to augment their pitiably
inadequate share on intestacy.
6. For whom the bequest can be made
(i) Any person who is capable of holding property, whether male or female,
Muslim or non-Muslim, may validly avail the benefit of a bequest. Section 133
of the Mulla states that it is not necessary that the executor of the will of a
Muhammadan should be a Muhammadan. A Muhammadan may appoint a
Christian, a Hindu, or a non-Muhammadan to be his executor. Muhammadan
Law does not prohibit a will by a Muham.nadai. o favour of non-Muhammadan.
- In the matter of: Estate of Late Sri Vtuslim Siddiqui, Bhai Lal Shukla44.
(However this point was of no avail to Bhailal, as the will was not proved. The
observation therefore is purely academic truth in the context of this citation.)
(ii) Unborn nerson cannot be a leg atee. However, if the legatee is in the
womb and the birth takes place within six months from the date of making the
will, he can be a lawful legatee. Shia Law recognises a legatee born within 10
months from the date of will.
(iii) Heirs cannot be the legatees, that is, no bequest to heirs, who are
entitled to inherit. This rule is relaxed only in cases, where other heir give their
consent (after testator's death, in Hanafi Law; before or after testator's death, in
Shia Law). By giving consent, an heir can bind only his own share but not of
others.
Mulla says 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.
A bequest to an heir is not valid unless other heirs 'onsent to it For example
in one case, Bhullan v. Ehsan Elahi45 the petitioner claimed right to certain
property on the basis of a will by her father. The Delhi High Court found that the
other heirs—her brothers—had not consented to the bequest. "The findings of
the trial court were affirmed by first appellate court and it had been clearly held
that the appellant had not been able to prove on record that her brothers had
accepted the will of their father." Held by the High Court : Therefore the
appellant could not be held to be entitled to the property willed in her favour.
It is essential that the heir must be in existence at the time of testator's death.
Consent may be inferred from the conduct of heirs.

43. The Law of Personal Status, 1959, Art. 73, read with the Iraqi Civil Code, 1951, Art. 408.
44. (2007) I All LJ 567.
45. 1996AIHCl205Del.
xi!] WILL (WASIYAT) 337

Illustrations46 for (iii)

(a) A Muslim dies leaving him surviving a son, a father and a paternal
grandfar j er. Here the grandfather is not an "heir", and a bequest to him will be
valid without the assent of the son and the father.
(b) A Muslim dies leaving a son, a widow and a grandson by a predeceased
son. The grandson is not an heir and a bequest to him is valid to the extent of
one-third without the consent of other heirs, i.e. son and widow.
(c) A, by his will, bequeaths certain property to his brother. The only
relatives of the testator living at the time of the will are a daughter and the
brother. Afte the date of the will, a son is born to A. The son, the daughter and
the brother all survive the testator. The bequest to the brother is valid, for though
the brother was an expectant heir at the date of the will, he is not an "heir" at the
death of the testator, for he is excluded from inheritance by the son, and thus
becomes a non-heir at the time of the will.
(ci) A Muslirp leaves him surviving a son and a daughter. To the son he
bequeaths three-fourth of his property, and to the daughter one-fourth. If the
daughter does not consent to the disposition, she is entitled to claim a third of the
property as her share of the inheritance.
(iv) An apostate may be a legatee. A bequest to non-Muslims is valid
according to all schools except Shafli School. But in India, this rule of Shafli
Law does not apply owing to Act 21 of 1850. In the Shafli view, a bequest in
favour of an apostate is, according to better opinion, valid.47
(v) Manslayer is one who kills another person, from whom he intends to take
a legacy. Hanafi Law prohibits him to take any interest in the bequest. In Ithna
Ashari (Shia) Law, however, the more logical view is taken and only intentional
homicide leads to exclusion.48
(vi) Institutions, whether religious or charitable, can be valid legatees.
(vii) Joint Legatees—When bequest is made in favour of two or more
persons in the same will it is called a joint legacy. If the legacy fails in respect of
any one or more of these, who would be entitled to the legacy? In such cases, (a)
if a particular legatee Aas incompetent ab initio, the entire property subject-
matter of the will, goes to the remaining legatee or legatees. Thus--A makes a
bequest of 1/3rd jointly in favour of B and C (i.e. 1/6th each). B was dead at the
time of the bequest, whether A knew or not. C would get the entire 1/3rd. (h) If
the legatee becomes disqualified afterwards due to failure of some condition,
etc., the remaining legatees would get only his/their share as marked in the will,

46. MulIa,atp. 137.

47. Verma, at p. 512.
48. Fyzee, at p. 367; citing Tyabji, Wilson and Fitzgerald.
 MUSlIM LAW [CHAP.
338

and the remaining property would be considered as outside the will; i.e. only his
share would lapse. Thus—A makes a bequest of 1/3rd for B and C, if they be
poor at the time of A's death. C is rich at that time. B would be entitled to only
1/6th. (c) If definite share is marked for B and C each, and C fails to qualify,
B
would get the share marked for him. Thus, if A bequests Rs 200 for B and 400
for C, and C disqualifies, B would get Rs 200 only.
(viii) Bequest to a class.—A class of persons ("all the poor of this town")
may be made a legatee. It would jointly rank as a single legatee. According to
Abu Hanifa and Abu Yusuf, the amount may be spent on one poor person and
according to Muhammadan on at least two persons. A class may be a special
class also.49
Consent of legatee necessary.—The express or implied assent of the
legatee after the death of the testator is necessary to complete the legatee's title
to the bequest. The legatee has a right to disclaim. Under Shia Law, a legatee
may iccept part of the bequest, and disclaim the remander. 50 Acceptance
or rejection during the lifetime of the testator has no effect; even if the tegatce
had rejected the bequest during the lifetime of its author, he can accept it after
his death, and that would be valid. If however, the legatee survives the testator
and dies without assenting to the will, the assent is presumed. Under Shafii Law
the right of acceptance passes to his heirs. The law favours the positive side,
hence the impilen assent. And if the iegatee has derived any benefits iim
will, the assent is presumed. Similarly the assent of a child or a child in embryo
is presumed. Also when a class ('poor') is the legatee, the acceptance is
presumed and the will becomes irrevocable by the death of the testator44 . If the
heir has knowledge o f the bequest and still remains inactive for a long period (in
this case 23 years) and then challenges that bequest, it was held by Karnataka
High Court that it would indicate that the heir had signified consent by his
conduct-51 -
Death of legatee.—If the legatee predeceases the testator, the legacy in
Hanafi Law lapses; but in Shia Law, it passes to the heirs, if any, of the legatee.
Under this law, a will may be accepted or rejected during the lifetime of the
testator.
7. Bequests which are not absolute
"As to Future, conditional and contingent bequest, the law treats them on a
footing of equality with gifts, and unless there is special provision the rules
applicable are similar. It is to be observed that the usufructuary wills must have

49. Verma, at pp. 512-13.

50. Tyabji, at p. 804.
51. Allbux Khajasab Lakkadahare v. Smt Allabi, 26JS AIHC 517 (Kant).
 XII] WILL (WASLYAT) 339

been fairly common in early times, for the Fatawa-i-Alamgiri devotes a special
chapter to the subject."52
(i) Conditional bequest.—If a bequest of the corpus of any property is
made with a condition which derogates from the completeness of the bequest,
such condition is void and the legatee will get the property, as if no conditions
were attached to it.
For example, a Muslim made a bequest to an heir subject to the condition
that the legatee (that is, heir) should not alienate the property bequeathed. The
other heirs gave their consent to the bequest. The legatee would take the property
absolutely since the condition is void as being repugnant to the Muslim Law.
Similarly, where bequest is made to an heir subject to the condition that in
the event of his death the property shall go to X, and the other heirs assent to the
bequest, the condition is void and the heir will take the property absolutely.
A bequest of usufruct, however, can be made for a limited time; thus,
bequest of life-interest is valid.
(ii) Contingent bequest.—The bequest which has to take effect on the
happening of a contingency is void, unless permitted by a lawful custom.
(iii) Future bequest.—A bequest in futuro of the corpus of any property is
void. But bequests of usufruct infuturo for a limited period are valid.
(iv) Alternative bequest.—An alternative bequest is valid.

I11ustration53
A Katchi Memon, who had no son at the date of will, bequeathed his
property as follows: "Should I have a son, and if such son be alive at my death,
my executors shall hand over the residue of my r' operty to him; but if such a son
dies in my lifetime leaving a son, and the latter is alive at my death, then my
executors shall hand over the property to him. But if there be no son or grandson
alive at my death, my executor shall apply the residue to charity". The testator
died without having ever had a son. It was held that the gift was not conditioned
infuturo, but it was an absolute gift in the alternative and that the residue would
go to charity.
8. Revocation of wj114

A bequest may be revoked by the testator either expressly or impliedly, or

by a subsequent will.

52. Fyzee, at p. 363.

53. MulIa, at p. 144.
54. MulIa, at p. 144.
 340 MUSLIM LAW [CHAP.

Express revocation is one where the testator revokes the bequest in express
terms either orally or in writing. But a mere denial by the testator that he did not
make a will does not act as revocation of an otherwise valid will.
Implied revocation is one where the testator does an act from which
revocation may be inferred. For example, bequest of a piece of land is revoked, if
the testator subsequentiy buiids a house upon it. Similarly, a bequest of piece of
copper is revoked, if the testator subsequently converts it into a vessel.
A bequest to a person is revoked by a bequest in a subsequent will of the
same property to another person.55

Illustrations56
(i) A bequeaths a iouse to B. Subsequently A says: "The house that I gave to
B, is for C". This is an express revocation. If C is dead at the time of the second
bequest, the first bequest remains unaltered.
(ii) A bequeaths a piece of silver to B, and then fashions it into a ring.
According to Abu Hanifa, this is not a revocation, but Abu Yusuf and imam
Muhammad hold it as revocation, and this is correct.

9. Interpretation of wills

"A Muslim will must be construed," says Fyzee, "primarily in accordance

with the rules laici aown in the Monammacian law, oeanng in mmci tne social
conditions that prevail, the language employed and the surrounding
circumstances.1157
A will speak from the date of the testator's death. In construing wills, the
Court gives effect to the intention of the testator.
If the language or meaning of a will is so ambiguous that it cannot be
interpreted, the heirs have to explain it, as they think proper. For instance, if X
says in his will a small portion of my land should be given to Y', it entirely
depends upon the heirs of X to give Y whatever they like.58
The description of property contained in a will shall be deemed to refer to
and comprise of the property answering that description at the death of the
testator. For example, a poor person bequeaths to another a third of his estate,
valuing Rs 5000. Afterwards he became rich and the value of his estate rose to

55. It must, however, be clearly noted that if the same property is bequeathed to two different
persons in the same will, both persons take equal shares of the property. Thus, here, the prior
bequest is not revoked by the subsequent one.
56. Tyabji, at p. 816.
57. Fyzee, at p. 368.
58. Tyabji, at p. 813.
 xii] WILL (WASIYAT) 341

Rs 30,000. Then he died. The other person is entitled to bequeathed estates worth
Rs 10,000. The same rule applies if the testator should afterwards become poor.59
Failure of prior bequest may accelerate or avoid later bequest. For example,
A bequeaths certain property to B for life and after B's death, to C. Now, if A
revokes the bequest to B the bequest to C will be accelerated. On the other hand,
if A bequeaths life interest in more than 1/3rd of his estate to an heir and after
heir's death to charity, then if A's heirs refuse to give their consent to such a
disposition, both the bequests fail.60
If a testator bequeaths some articles without identifying any particular article
as the object of the bequest, and it turns out that he had no such article at the time
of his death, the Court must determine whether or not it was his intention that
such an article should be purchased out of his general assets and given to the
legatee. For example, a person bequeaths "a goat of my property". Unless a
contrary intention appears from the context, this will be understood to mean "a
goat to be provided out of my property, whether or not I happen to possess any
goats at the time of my death".6'
In case of a bequest of a fraction of testator's stock of certain articles, the
legatee will be entitled to the number which constituted that fraction at the time
of the bequest. Thus, for example, a testator is having forty goats at the time of
bequeathing "a fourth of my goats," but dies, having only twenty goats, the
legatee is entitled to ten goats, provided the entire value of the testator's net
assets is at least three times that of ten goats.62
But there is a different rule for bequests of a fraction of testator's stock
where the articles are not homogeneous. For instance, a testator bequeaths "a
fourth of my clothes". If the clothes are of different kinds, and some of them are
destroyed or disposed of after the date of the bequest, the legatee will only have
a fourth of those that remain in the possession of the testator at the time of his
death (and not at the time of bequest, as in the case above).63
Where (i) a Muslim leaves to a stranger by will a house exceeding in value
1/3rd of his property, and the heirs do not consent; or (ii) a Hanafi or a Daudi
Bohra makes a bequest to an heir and other heirs do not consent; or (iii) a
Muslim makes a bequest to benefit an object opposed to Islam as a religion, such
as for building a Hindu temple, or a Jewish synagogue or a Christian church, the
bequest would be void.64

59. Wilson, at p. 334.

60. Fyzee, at p. 369, citing Tyabji, at p. 813.
61. Wilson, alp. 335.
62. Jbid, at p. 336.
63. Wilson, at p. 337.
64. Fyzee, at p. 360.
 [CHAP.
MUSLIM LAW
342
- .._.i ...al

11. Sunni Law and Shia Law compared

- Shia Law
1. Bequest is valid only if the act for
commits the act for suicide before or committing suicide was done after
after making the will is valid (the act making the will. Not if thc
means,, e.g. taking poison). done first and then the will made.
2. Valid if the child is born within 10
2. Child in the womb—Bequest for
unborn person valid if the child is months of the making of the will.
born within 6 months of the making
of
3. Consent of heirs 3. Consent of heirs
(a) for bequest in favour of (a) Same
stranger up to 1/3rd
_p ro perty —not required
(b) for bequest in favour of (b) For bequest in favour of heir
heir (even 1/3rd) consent of (1/3rd) consent Not necessary. For
other heirs necessary. more than (1/3rd) necessary.

4. No presumption; but the consent of

4. Consent of the legatee presumed if
he dies before consenting. his heirs must be obtained.
5. Before or after death, both
5. Time of Consent—After death of
the testator. Conscnt before death sufficient.
is not sufficient.

65. K.P. Sharma, Muslim Vidhi at pp. 383-386.

XiJJ WILL (WASIYAT) 343

6. Bequest for one who has caused 6. If the legatee intentionally caused
the death of the testator is not valid the death of the testator—the bequest
in any case. is not valid. But if the death was
caused unintentionally, it is valid.
7. Pious bequests—Priorities in this 7. Priorities—(i) Farz; (ii) for
order: first—Farz, second— others—proportionate abatement.
Wajibaat,_third _— Nawafil.
8. Secular Bequests—rule of 8. Rule of proportionate abatement
proportionate abatement. Not recognised.
9. Lapsing of the bequest—the 9. No, the legacy devolves on the heirs
legacy lapses if the legatee of the legatee. But if no heirs, it does
predeceases the legator. lapse back to the legator.
 XIII

Administration of Estates and

Payment of Debts
A. ADMINISTRATION OF THE ESTATE
"Administration of estates' means management of the property of the
deceased for a temporary period. Suppose a Muhammadan dies leaving behind
some property. He had taken some loan, some others had taken loan from him,
some had mortgaged their property with him, he had mortgaged his property
with others; he had bequeathed some property by will, incurred some expenses;
is survived by a specific number of heirs of different categories. Now all the
debts will have to be paid, the legatees and heirs will have to be given their
shares after deducting their portion of the charges on the property.lf some heirs
are minor, their property will have to be managed. The dues from others will
have to be realised. Performing all these functions means administering the
property. The person who will do it is the administrator of the property, the
representative of the estate, or the agent of the deceased. In the early days the
Kazi did all this work; now it is done by the administrator, appointed under the
Indian Succession Act, 1925, which has replaced the Probate and Administration
Act, 1881. If the deceased had appointed an executor, the above functions would
be conducted by him.
Commenting upon the principles governing "administration of estates" of a
Muslim in India, Wilson observes':
"This topic belongs partly to the substantive law of succession, and
partly to the department of adjective or procedural law. Consequently we
might expect to find, as we do find in fact, that in British India it is partly
regulated by Muhammadan Law, and partly by statutory enactments. The
question, what becomes of a man's rights and obligations at the moment of
his death, is a question of substantive, and therefore (for Muhammadans in
British India) of Muhammadan Law. But such questions as, whose duty is it
to give orders to the undertaker, to whom should the creditors of the dead
man send in their bills, from whom will his debtors be safe in taking a

I. Wilson, (5th Edn.) at p. 212.

 ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 345

receipt? who is entitled to take immediate charge of the property? and, above
all, what may, and what may not be done without the intervention of a public
officer? are questions of adjective law, the answers to which are not to be
sought, in British India, from the Muhammadan Law sources, but from the
Anglo-Indian codes or the practice of the Courts. Unfortunately the ancient
Muhammadan textwriters could not foresee this curious dismemberment of
their system by a non-Muhammadan Legislature, and saw no special reason
for drawing a sharp line between substantive and adjective law in their
expositions. Even in England the lawyer in search of a rule of substantive
law is sometimes driven to infer it from some old decision on a point of
procedure; and there is therefore nothing surprising in the fact that the
Muhammadan answer to the first of the above questions has to be gathered
mainly from passages dealing professedly with the duties of the kazi."
The duty of administering an estate, according to the law of Islam, rests on
the State, acting through the kazi. Hence it is correct to say that administration as
understood in modern law, involving necessarily the recognition of an executor
or the appointment of an administrator, was unknown to Islamic jurisprudence.2
"Administration was introduced into the fabric of Muhammadan Law by
the reception of the English concept of administration and later by the
enabling provisions of the Probate and Administration Act, 1881.113
According to the Muslim legal theory, the property of a deceased Muslim
vests in his heirs immediately after his death. But it is subject to the injunction
that the heirs are entitled to take only that residue which is left after the payment
of a legacy or debt. Since the payment of debts and legacies necessarily involves
the administration of the estate, such administration may be said to be implied in
the very spirit of Muslim Law itself.4
Muslim Law recognises four distinct purposes to which the estate of the
deceased is successively applicable:
(1) his funeral expenses;
(2) his debts;
(3) his legacies; and
(4) the claim of his heirs.
But Muslim Law is replaced by the Indian Succession Act, (39 of 1925),
which lays down the following scheme of the order of priority in which the
payments are to be made:
(I) Funeral expenses and deathbed charges;

2. Fyzee, at p. 375.
3. Ibid, at p. 3 75-76.
4. See, Mahbub Alarn v. Razia J3egum, AIR 1950 Lah 12, 19,
cited by Fyzee, at p. 378.
 MUSLIM LAW [CHAP.
346

(2) Expenses of obtaining probate or letters of administration;

(3) Wages for services rendered to the deceased by a labourer or servant
within three months of his death;
(4) Debts, according to their own priorities (discussed later on in this
chapter);
(5) Legacies, not exceeding one-third of what has been left after payments
of items mentioned in (1) to (4) above.5
This brings us to the consideration of an important question: whether vesting
of the estate in the heirs takes place immediately on the death of the propositus
or is dependent on the payment of debts.
Jafri Begam v. Amir
Vesting of estate.—Delivering his famous judgment in
Mohd. Khan 6, Mr Justice Mahmood observed:
"It is well known that the Muhammadan Law of Inheritance is based on
a passage in the fourth chapter of the Koran, which in Sale's translation is
thus rendered: God hath thus commanded you concerning your children: A
male shall have as much as the share of two females, but if they be females
only, and above two in number, they shall have two-thirds part of what the
deceased shall leave; and if there be but one, she shall have the half. And the
parents of the deceased shall have each of them a sixth part of what he shall
leave, if he have a child; but if he have no child, and his parents be his heirs,
then his mother shall have the third part. And if he have brethren, his mothe.
shall have a sixth part, after she legacies which he shall bequeath and his
debts be paid."
"In reading this passage, I have emphasised the words after the legacies
which he shall bequeath and his debts be paid. This phrase gave rise to two
difficulties in the minds of the Muhammadan jurists. The first was, whether
the circumstance that legacies were mentioned before debts gave the former
precedence over the latter in the administration of the estate of deceased
persons; and the second was, whether the word after related to the
devolution of inheritance, or to the ascertainment of the extent of the shares
to be allotted to the various heirs. The explanation of Baizawi, one of the
greatest commentators on the Koran, whose views have been universally
adopted by Muhammadan jurists, says that the word after, as used in the
Koran, simply refers to the balance of the estate after the payment of debts
and legacies, but does not affect the question of devolution. That this is the
interpretation accepted by the Muhammadan jurists in general is best known
by a passage in Al Sirajiyyah, a treatise of the highest authority on the
Muhammadan Law of inheritance, which Sir William Jones translated about
a century ago; and in citing the passage I cannot do better than adopt his

5. Fyzee, at pp. 379-80. -

6. ILR (1885) 7 All 822 (FB).
 ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 347
xiii]

words: 'Our learned in the law to whom God be merciful say: There belong
to the property of a person deceased four successive duties to be performed
by the Magistrate—first, his funeral ceremony and burial, without
superfluity of expense yet without deficiency; next, the discharge of his just
debts from the whole of his remaining effects; then the payment of his
legacies out of a third of what remains after his debts are paid; and lastly, the
distribution of the residue among his successors according to the Divine
Book, to the Traditions, and to the Assent of the Learned 7.' I have quoted
this passage to show the priority possessed by the three charges to which the
estate is subject when inherited by heirs. This order of priority is, as is
obvious from the passage, merely a direction as to the administration of the
estate, and has no bearing on the question of the exact point of time when
inheritance devolves on the heirs. When they inherit the property, they take
it, of course, subject to these three prior charges, as they would subject to
mortgages—the difference being (as pointed out by the Privy Council in the
case which I have already cited) that an encumbrance b' way of mortgage
follows the property even in the hands of bona fide purchaser for value, with
or without notice of the prior encumbrance; whilst the three charges on the
estate of deceased Muhammadan as described in Al Sirajiyyah cannot do so.
It is one thing to say that these three charges take precedence of the
inheritance, in the administration of the estate and its distribution among
heirs, and it is another thing to say that the inheritance itself does not open
up until those charges are satisfied. And it is obvious that all the arguments
adopted by Markby, J., as to debts, would, according to his hypothesis,
necessarily apply also to funeral expenses and legacies, which, like debts of
the deceased, are charges upon his estate. But I am unaware of any rule of
Muhammadan Law which would render such charges, or even mortgages, an
impediment to the devolution of property on the heirs by inheritance.
Funeral expenses, debts, and legacies, or any one or more of them, may
indeed absorb the estate of the deceased, defeating every succeeding charge;
and it is obvious that if nothing is left for the heirs they can take nothing. But
this is a proposition widely different from saying that the devolution of
inheritance is suspended till the various charges are satisfied. Indeed, on this
point, the books of Muhammadan jurisprudence leave no doubt. I have no
doubt in my mind that the devolution of inheritance takes place immediately
on the death of the ancestor from whom the property is inherited."
It is, therefore, clear that immediately after the death of a Muslim his
property devolves on his legal representatives—executor, administrator and
heirs— in that order as given in pars I below. The absence of the administrator
does not postpone the vesting of the property or its devolution on the heirs. The
reason being that the devolution is the result of the operation of the Muslim Law

7. Jones's Works, Vol. iii alp. 517.

 MUSLIM LAW [CHAP.
348

which is the substantive law. According to the general principles of Islamic

jurisprudence, there was no administration, but a mere distribution of the estate,
by the state if not by the heirs themselves, in accordance with the principles laid
down in the Sirajiyyah. The estate did not vest in the Kazi, it vested, subject to
certain obligations, in the heirs, the physical distribution taking place much later
than the apportionment in the eye of the law. A simile is drawn by Fyzee in these
words:
"It is as though the estate were a round cake which from a distance
seems entire, but as each heir approaches the table, the cake is found to be
carefully cut up and divided proportionately,8"
and all that remains to be done
is to hand over to him his particular piece.
The portion of the property that devolves on the executor is to the extent
covered by the valid will; tne rert will devolve on the administrator, and if no
administrator has been nominated this 'rest' of the portion will devolve on the
heirs. The existence of the debts will not postpone this devolution, nor suspend
the right of the heirs to distribute the estate at an y time. The devolution will be
proportionate to the respective shares under the Muhammadan Law of
inheritance and the heirs will take as co-heirs or tenants in common of their
specific shares.
1. Legal representatives of a deceased Muslim
to the extent to
(i) In case the deceased leaves a will—his executor (was:),
which the 'will' is valid;
the administrator, to whom
(ii) If he dies intestate (i.e. there is no will)—(a)
the Court has granted the letters of administration; failing whom—
the heirs9.
(b)
In first case, according to the ancient texts a non-Muslim could not be
appointed an executor of the will of a Muslim; but the courts in India have held
that religion is no bar and a Muslim may appoint a non-Muslim as an executor)0
According to Mulla 'it is not necessary that the executor of the will of a
Muhammadan should be a Muhammadan. A Muhammadan may appoint a
Christian, a Hindu or any non-Muhammadan to be his executor') I But he must
be a major and of sound mind. The executor is an active trustee of the property
bequeathed, which must not exceed 1/3rd of the deceased's estate; for the rest of
the 2/3rd, he is a bare trustee, being the representative of the testator in whom the
deceased had reposed confidence for the execution of the will. The executor is

8. Fyzec, at p. 376.
9. Verma, at pp. 368-69.
10. Verma, at p.372.
II. MuUa,atp. 146.
XIII] ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 349

entitled to remuneration if a provision is made in the will, but if he is also an

heir, the consent of other heirs is necessary. If an executor die ,; before
completing the task of administration in his lifetime, his successor, if pointed
by him, will carry out the work. Hanafi Law permits him to ar'point his
successor, but the Shia authorities deny such power unless the testator had
authorised him to do so. Where such successor was or could not be appointed,
the Court will appoint one. Where there are more than one executor, the
survivors will act. It seems under Shia Law, the Court cannot appoint an
executor so long as there is any surviving executor. 12
The second representative—the administrator is an English concept
statutorily introduced into the fabric of Muhammadan Law by the Probate and
Administration Act, now replaced by the Indian Succession Act. Under Section
2(a) of the latter, an administrator is a person appointed by a competent authority
to administer the estate of a deceased person when there is no executor. Under
Section 236, letters of administration may be granted to a person who is a major
and of sound mind. The Court (a District Court is the competent authority) has
discretion to reject for reasons recorded, any application for letters of
administration. Under Section 218 letters of administration may be granted to
any person who is entitled to the whole or any part of the property of the
deceased, but where there are more than one claimants, the Court may grant to
any one or more of them; and where there is no such applicant to a creditor of the
deceased. As already noted, an administrator is to be appointed in the absence of
an executor.
The third named legal representative is the legal heir of the deceased to
whom ultimately the property belongs and for whose interest the court operates
the law of administration. If no one applies for letters of administration, the heirs
themselves will be entitled to administer the estate. An heir of a deceased
Muhammadan may bring a suit for administration of the estate. Section 211 of
the Indian Succession Act does not debar a single heir from filing it. Each heir
can demand administration of the estate so as to demark the property that falls to
his share. He is not bound to bring a suit for partition. Administration is normally
a better course for adjustment of debts, priority of claims, etc. There is no bar to
bring a suit for administration in respect of the assets of more than one person.
Under Section 9 of the Civil Procedure Code, it is a civil suit, and the courts are
not barred to take its cognisance. In a suit by an heir for recovery of his share,
the other co-heirs are proper parties but are not necessary parties and the suit
cannot be dismissed if some co-heirs are not impleaded. The administration suit
is governed by the Limitation Act. 13

12. Paras Diwan, at p. 162.

13. Verna, at pp. 376-77.
350 MUSLIM LAW [CHAP.

2. The Requirement of Probate & Letters of Administration

It is not necessary for the heirs or administrator of a deceased Muslim to
obtain letters of administration or for his executor to obtain a probate of will, if
they are doing anything except the realisation of debts.
The legal representatives cannot obtain a decree or execute a decree for the
recovery of debts 14 due to the deceased, unless they obtain:
(i) a probate of will (if there is a will) or, letters of administration (if there
is no will), or
(ii) a certificate under any of the following Acts, or Regulations, namely:
(a) Administrator General's Act, 1913;
(b) Indian Succession Act, 1925;
(c) Bombay Regulation, 7 of 1827.'
A probate is a certified copy of the will issued by the Court under its seal to
the executor of the will. It is the authentic version of the will. A letter of
administration is a letter of appointment appointing a person the administrator of
the property of the deceased. It is issued by a district court.
The Indian Succession Act prescribes the requirement of obtaining a probate
in case of testamentary death and the letter of administration in case of intestacy.
Otherwise no ri ght as executor or legatee can be established in a court, or in casc
of intestacy, no right to any part of the property may be established. But these
provisions (Sections 212-213) are not binding on Muhammadans. As we have
seen, even without these documents, the property of the deceased will vest in the
legatee or executor or heir by the force of the Muslim Law on his death. The
rights of the heirs etc. will remain unaffected. Thus these certificates are optional
for the Muhammadans. And a court is not precluded to issue such certificates to
a Muhammadan when he applies. The effect of their absence is that a
Muhammadan will not be able to recover debts through the courts; a decree for
debts will not be granted. It is not actually necessary to obtain them before the
institution of a suit, but they are must before obtaining the decree.
3. Functions of legal representatives
All the properties of a deceased Muslim vest in his legal representative as
such. It is his duty to collect the assets, discharge the debts, pay the legacies and
distribute the estate amongst the heirs. In case of an executor, his powers granted
by will extend to the bequeathable third only, while the rest two-third of the
estate he holds as a trustee for the heirs. While in case of an administrator, his

14. Here, the term 'debt' does not include rent, revenue or profits payable in respect of land used
for agricultural purposes.
IS. Venna, at p.369.
 ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS
351
XIII]
and
functions extend to the collection of property and debts due to the deceased,
The rest of the estate vests in
paying his funeral expenses and debts due by him.
16
him as a bare trustee for the heirs.
As already noted, the estate of the deceased Muhammadan is to be applied
successively in payment of the 5 heads (mentioned earlier) as required by
Sections 320-323 and 325 of the Indian Succession Act. The residue is to be
distributed among heirs of the deceased according to the law of the sect to which
he belonged at the time of his death, and the heir has a right of contribution
against his co-heirs, if, after making remittances to the creditors, he was left with
less than his proper share of the net estate of the deceased, that is, compel his
17
co-
heirs to compensate him up to their share of the debts already paid by him. The
executor will obtain the probate of the will and distribute their shares to the
legatees according to Muslim Law, he will also distribute the residue to the heirs.
Both, the executor and the administrator have to submit the account of the
property, expenses, debts and credits to the court. He possesses the same legal
capacity as the deceased in respect of payment of debts, recovery of dues, to sue
and to be sued. But he being a trustee of the property, his powers of alienation
are subject to the restrictions imposed by Section 307(2) of the Indian
Succession Act in the interest of the heirs. He cannot purchase the property
under his administration, or apply it to a purpose other than the specified, or to
the disadvantage of the heirs. If he purchases any part of the property under his
care, any heir or any person having interest in it may get it declared void. If lie
misapplies the estate of the deceased and causes loss or damage to it, he is liable
to make it good. Similarly if he occasions a loss to the estate by neglecting to
recover any part of the property, he has to make good that amount. In all other
matters not mentioned, the relevant provisions of the Indian Succession Act,
1925, the Administrator General's Act, 1913 and the Bombay Regulation (8 of
1827) apply.
4. Recovery of credits to the property of the deceased
It is the duty of the executor or administrator to take steps to recover debts
due to the deceased. For this purpose the executor or the administrator may file a
suit against the debtors; for this he must have obtained the probate of the will or
the letters of administration, respectively. An heir may also file such suit, but he,
or in absence of a probate, the executor can file such suit only if a certificate
under Section 31 or Section 32 of the Administrator General's Act, or a
succession certificate under Part X of the Succession Act has been obtained.
However, a debtor can validly pay the amount of debt to the executor or heir
who has not obtained the abovementioned certificates. That is, the certificates are

16. Tyabji, at pp. 733-734.

17. MuUa,atP.33.
 352 MUSLIM LAW
[CHAP.

required for filing a suit, not for receiving the amount when offered by the debtor
without the intervention of the court. But if the debtor makes payment to one or
some heirs only, he is not discharged of his debts due in respect of the shares 'of
other heirs. The reason being that when a Muslim dies, his credits devolve on his
heirs in proportion to the shares of each and therefore, each heir has individual
right to receive it and dischar g e the debtor separately. 18

B. PAYMENT OF DEBTS

This part deals with the debts and liabilities on the property of the deceased.
It is not dependent on the existence or non-existence of the executor or
administrator. The ultimate liability is on the successors to the property. A
creditor of the deceased may sue the executor or administrator of the estate, and
if there is none, the heirs for the recovery of his debts. The payment of the debts
of the deceased takes precedence over the legacies and inheritance. A decree-
holder may proceed against the legatees even if there is other property sufficient
for the debts. 19 It is true that on the death of a Muhammadan, the property
devolves illilllediaLeiy on the executor or admini5trator or neir without waiting
for the discharge of the debt. The debts do not suspend the right of the heirs to
distribute the estate at any time. But this does not mean that the debts are
forgotten. The property is received by each heir subject to his proportionate share
of the debt. The debt of the deceased will get priority over his personal debt.
Extent of liability of heirs for debts

This liability is bound by two limits: (a) The total liability of all the heirs
together shall not exceed the total quantum of the property; and (b) the net
liability of each heir shall not exceed his net share in the property. The heirs are
not personally liable for the debts. So if the deceased left no assets, the debts
would remain unredeemed; and if he left insufficient assets, the payment would
be limited to the amount of the assets. Each heir succeeds to a specified share in
the property according to the Muhammadan Law of Succession. The heirs may
be living together, but there is no 'joint family property', or 'undivided family'.
There is no Karta or no notion of representativeship. There may be no partition,
yet there is no coparcenership or no doctrine of partial partition. The share of
each heir is specific and known before the death of the ancestor. As a result his
liability is also linked with his share in the property. Since they are tenants in
common and the share of each is predetermined, anyone can at any time demand
partition of the estate. For this purpose getting an administrator appointed is one
of the convenient methods, because then the questions of the exact debts of the
deceased, expenses incurred on treatment during illness, dower debts, debts
acknowledged on death bed, priority of claims, etc. can be better adjusted.

18. Ahinsa Bibi V. Abdul Kader Saheb, ILR(1901) 25 Mad 26.

19. Verma, at p. 3 78.
XIII] ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 353

(See, further next chapter for more cases on 'joint family'.)

In Jafri Begain v. Amir Mohd. Khan20 Mahmood, J., laid down three
propositions regarding the payment of debts.
Proposition 1.—When a Muslim dies leaving debts unpaid, his estate
devolves immediately on his heirs, and such devolution is not suspended till or
contingent upon the payment of debts.
Proposition 11.—A decree for a debt passed against such of the heirs as are
in possession of the estate does not bind the other heirs.
Proposition 111.—If one of the heirs, who was out of possession and who
was not a party to the proceeding brings a suit against the decree-holder for the
recovery of his share of the estate, he must pay his proportionate share of the
debt before recovering possession of his share of the inheritance.
Proposition I came under judicial scrutiny in Abdul Majeeth v.
KrishnamacJzariya. Mr Justice Abdur Rahim (author of the famous
Muhammadan Jurisprudence), approved it and observed:
"It is not correct to say that the devolution of the estate on the heirs does
not take place or is postponed until the funeral expenses and the debts and
legacies have been paid. This is evident from the following facts: if an heir
designated by the law dies after the death of the propositus, his share
descends on his own heirs and does not lapse to the general estate. Each heir
is entitled to the income that has accrued since the testator's death, in
proportion to his share, and he can transfer his share by sale or gift, subject,
it may be, as to the latter form of disposition to such restrictions as are
imposed by the doctrine of Mushaa.
As far back as 1878, the Judicial Committee (of the Privy Council) in
Bazayet Hossein v. Dooli Chund22, held that an heir-at-law was entitled to
alienate his share in spite of the fact that there were debts of the deceased
still outstanding, and it would not have been possible to hold this if the
inheritance did not devolve on the heir on the death of the propositus. Mr
Justice Mahmood in Jafri Begam v. Amir Mohd. Khan23 , has fully discussed
the question and I do not think it would be of any use to add anything more
to his reasoning."
Debts acknowIeged during death-illness.—Where the only proof of a
debt is its acknowledgment by the debtor on his deathbed, the following rules are
prescribed by the Muhammadan Law—(a) is not acceptable if it is in favour of
an heir—i.e. a person who is an heir at the time of acknowledgment. This does

20. ILR (1885)7 All 822 (FB).

21. ILR(1917)40Mad243.
22. ILR (1879)4 Cal 402 (PC).
23. ILR (1885)7 All 822 (FB).
354 MUSLIM LAW [CRAP.

not cover a person who becomes an heir afterwards; (b) The above exclusion is
subject to one exception—if other heirs consent to it, it shall be valid; (c) It shall
also be valid when in favour of a wife who was given triple talaks. Her share will
be equal to her presumed share in the estate or the actual amount, whichever is
less; (d) Such debts will be paid only after other debts are satisfied.24
5. Alienation before payment of debt
(i) Any heir may, even before distribution of the estate, transfer his own
share, and pass a good title to a bona fide transferee for value, notwithstanding
any debts that might be due from the deceased.
Illustration
A Muslim dies leaving several heirs. After his death the whole body of heirs
sell the whole of his estate without paying his debts. After the sale, a creditor of
the deceased obtains a decree against the heirs for the debt, and applies for
execution of the decree by an attachment and sale of the property in the hands of
the purchaser. He is not entitled to do so. The reason is that a creditor of a
deceased Muslim cannot follow his estate into the hands of a bona fide purchaser
for value (Mull a).
The Muslim Law does not absolve the heir of his liability for the debt, but
protects the rights of the transferee who takes the property in good faith without
notice of the claim ot the creditors and ior value. veot due by one co-sharer
cannot be enforced against the property so purchased by the third party—the
allianee. A creditor cannot attach the property.
(ii) A sale of the share of an heir in execution of a decree amounts to a
"transfer", and will pass a good title to the purchaser.
Illustration
A Muslim dies leaving two sitm a his only heirs. After his death, C a
creditor of the deceased, obtains a decree against the sisters for his debt.
Subsequently, a creditor of the sisters obtains a decree against them for his debt,
and the property of the deceased which came to the sisters' hands is sold in
execution of the decree to P. In this case C is not entitled to attach the property
in the hands of P in execution of his decree.
(iii) If the share transferred by an heir is a share in immovable property, and
the transfer is made during the pendency of a suit in which a decree is passed
creating a "charge" on the estate, the transferee will take share of the heir subject
to the charge.

24. Verna, at pp. 836-37.

xiii] ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 355

Illustration
A Muslim died leaving a widow and a son. The widow sued the son, who
was in possession of the deceased's properties, for the payment of her dower
debt. The Court passed a decree in favour of the widow. The decree created a
charge on the immovable properties of the estate. But during the pendency of the
execution of the decree, the son mortgaged his share to M, who later on sued the
son and obtained a decree for sale of the shares mortgaged to him. The share was
sold and was purchased by P, who had notice of decree. In these circumstances,
P will take the share subject to the decree in favour of the widow, whose right to
claim unpaid dower cannot be so defeated. However, if a simple money decree is
passed ultimately in favour of the widow, the transferee will get a good title. But
if the decree creates a charge on the estate, he will take the share subject to the
charge. The case will be affected by the doctrine of us pendens. 25 Where a
charge is created in favour of an heir in an administration suit on the share of
another heir and the latter transfers his share pendente lite (pending the suit), the
transferee will take the share subject to the èharge.26
6. Alienations by co-sharer before partition
When the heirs jointly hold the property of the deceased pending partition,
they are tenants in common. In Muslim Law the concept of co-sharer or co-
proprietor is applicable to Muslim family. When the members of a
Muhammadan family live in commensality, they do not fonTi a joint family in
the sense in which that expression is used in Hindu Law. 27 But- during the
continuance of the family the properties of the family are possessed by all the
members jointly. Co-heir and "co-sharer" are the terms which are emphasised to
highlight that the specific shares are allocable. The concept of Muhammadan
joint family cannot be treated as a legal unit. But where male members of a
family live in union so as to have jointness in mess, business and property, there
can be little difficulty in tracing their relations among themselves to an implied
agreement which clothes each with a representative capacity in reference to his
co-sharers. Accordingly, any acquisition made by any one member should be
considered to have been made by all. The co-heirs or co-sharers are tenants in
common. Accordingly, it was held in Dhuma Khan v. Commr. of
Consolidation28 that the brother and sister enjoying the property jointly are co-
sharers/co-owners/co-proprietors.

25. Verma, at p.386.

26. Khatun Bibi v. Abdul Wahab, AIR 1939 Mad 306.
27. The contention that since the appellants are members an undivided Muslim family therefore
they also be deemed to be 'agriculturists' - was rejected by the Bombay High Court in Abdul
Rahim Afzalsha Kazi V. Abbas Alamsha Kazi, (2005) 1 Mah LI 108.
28. 1997 AIHC 3048 On HC.
 356 MUSLIM LAW [CHAP.

Any one or more of them may alienate his or their undivided portion by
mortgaging it. When he does, the other heirs may enforce a partition and thereby
demarcate the portion falling to the lot of each of them. Suppose A had
mortgaged a part of the house in which B was also a shareholder as heir. On
demand by B partition is effected and the portion mortgaged by A to C falls to
the lot of B. B will take it free of the encumbrances created by A; the security
taken by C is subject to this right of B---to enforce partition and take the allotted
share free of any charge when every thing is being done in good faith. Now the
mortgagee can file a suit against A in respect of the share allotted to A in
substitution of the earlier portion.29
A co-owner has a right under Muhammadan Law to sell his undivided share
in the estate which he succeeds as an heir. 30 Thus, if A and B are co-sharers of a
house, A may, before partition also, sell a part of the house not exceeding his
share in the property. In that case, the purchaser C will stand in the shoes of A. In
order to get possession of his part in the house, he can claim a general partition
of the property, just as A could do. He can also plead that A may be allotted the
same portion of the house as was sold by him to C, so that tie could get its
possession. If such allotment causes no injustice to the other heir, the court may
accept his plea.31
On the other hand, if there was earlier partition, then the possession of each
co-sharer would in the absence of evidence to the contrary be referable to his
title. There is no presumption in Muhammadan Law, as it is, in favour of
jointness under the Hindu Law and therefore the general principle of attributing
possession to a lawful title will apply. So, where, in reference to the facts of the
case, the evidence on record and the circumstances proved at the trial established
that the heirs of the deceased had partitioned the estate left behind by him and
each one of them separately enjoyed what fell to his share, and where all of them
lived separately, carried on business separately, collected rent separately and
enjoyed without interference by others what might have fallen to their shares,
and were in separate possession of the properties which fell to their shares on
partition, it could not be held that they were in joint possession of the suit
properties as tenants in common.32
Family partition or family settlement could be done by oral agreement. In
law, it is permissible that a family partition or family settlement could be done
by an oral agreement, even if it is evidenced by any memorandum only as a
record of past event, it would not require registration. However, for a legal valid
allotment of properties either in a partition or family settlement, the parties to the

29. Mohd. Afzal V. Abdul Rahman, (1932) 59 IA 45.

30. Buta Rana v. MahmoodAlani, 2005 AIHC 1826 (ihar).
3!. Tikam Chandv. Rahim Khan, AIR 1971 MP 23.
32. Husna Ara Beguni v. Kishorj Devi, (1998)3 BUR 1649 Pat HC.
xlii] ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 357

transaction should have pre-existing rights in the said properties and should have
antecedent title. In family settlement, it is also possible to allot the property to a
person who may not have a clear pre-existing right or antecedent title. However,
if there is bona fide disputed claim for the purpose of bringing about harmonious
settlement in the family, there can be valid allotment by settlement. Otherwise, in
case of a self-acquired property, there cannot be an allotment of the property by
family partition or family settlement amongst others who have no joint title or
pre-existing right and also when there is no bona fide disputed claim.33

7. Suit by the creditor against heirs

When a Muhammadan dies leaving behind the burden of debts on the
property, the remedy for the creditor is to sue the executor or the administrator
and if none, the heir or heirs of the deceased. He has the option to sue one or
some or all the heirs, but he must remember, in his own interest two cardinal
principles of Muhammadan Law—one, an heir, is liable to discharge the debt
proportionate to his share in the whole property and second, a decree obtained by
the creditor will bind only the share of the particular heir against whom the
decree is obtained, not other heirs. The first point may be illustrated thus—A
Muslim, who is under a debt of Rs 3200 dies, leaving a widow (l a son (5) and
two daughters (DI, D2). They divided the estate without paying the debt; W
taking 1/8, S taking 7/16, Dl 7/32 and D2 7/32. The creditor sues Wand S for the
whole of the debt (Rs 3200). What would be the liability of W and P. = W is
liable to pay only (1/8 x 3200 = 400) Rs 400, and S (7/16 x 3200 = 1400) Rs
1400. They are not liable for the whole amount of debt.
The second point represents only one situation. There can be three situations,
with different results:
(i) Suit against all the heirs in joint possession.—If the estate has not been
distributed, the creditor can obtain a decree which can be executed against the
property as a whole without interfering with the extent of the liability of the heirs
inter se. Amongst the heirs themselves, each will get his share in the estate minus
his share in the debt, at the time of distribution or allotment. If any one is left
with less than his share, he will be entitled to contribution from the rest.34
(ii) Suit against all the heirs when the estate has been distributed among all
the heirs.—In this case the decree will mention the proportionate share of the
liability of each heir. (See, the illustration in the previous para. above).
(iii) Suit against some of the heirs.—When the estate has been allotted to
each heir according to his share and the creditor prefers to sue only some of
them, decree will be passed against the heirs who are a party to suit, and will be

33. Modinsaheb Peer Saheb Peerjade v. Meerabi, (2001)2 CLT 63 Kant HC.
34. Mo/ui. Kasam Ali v. Sadiq Ali, AIR 1938 PC 169.
 MUSLIM LAW [CHAP.
358
binding against them only. The others will not be affected. Even the heirs who
remitted the debt under the decree will not be entitled to compel the other heirs
to contribute their shares. Similarly, when all of them are in joint possession and
allotment of shares has not been done, if the creditor brings a suit and obtains a
decree against some of the heirs only, they alone will pay the debt, and the shares
(in future) of the others will not be affected. But here, the former will have a
remedy—when partition is done and an heir who did not join in the alienation for
the payment of the debt sues for possession by setting aside the alienation, he
may be required to pay his share before he can be allowed to get possession. This
is a remedy inter se the heirs.
The third possibility is that only some of the heirs are in possession of the
property and the creditors bring a decree against these some heirs only. Will a
decree against them in respect of the property in their possession bind the other
heirs also? To illustrate—A dies leaving behind B and C as heirs. A was indebted
to D. The whole of the property was in possession of B only. D brings a suit
against B only and obtains a decree for the recovery of the debt. He puts the
estate of A to sale in execution of the decree and the property is sold. Will the
purchaser be entitled to recover possession over the shares of both B and C or of
of only part of the
B alone? Will there be any difference if B was in possession
property? Conflicting decisions had been delivered by the different High Courts.
Calcutta.—According to the earlier decisions of thc Calcutta Higi Crt,
any creditor of the deceased may sue any one of the heirs who is in possession of
the whole or any part of the estate, without joining the other heirs as defendants,
to recover the entire debt. The Court was of the view that a creditor's suit was an
administration suit, and any heir in possession of the estate represented the estate
for the purpose of the suit.35
Later on, the same High Court changed its view and held that the above view
cannot be taken if the heir who was sued was in possession of the estate on
behalf of the other heirs.36
Bombay.—The High Court of Bombay took the same view in some cases as
that of the earlier decisions of the Calcutta High Court. 37 But later on it changed
its view and held that a sale in execution of a decree passed against an heir in
possession does not pass to the purchaser the interest of those heirs who were not
parties to the suit even if the heir against whom the decree was passed was in
possession of the whole estate38 (This is in conformity with Allahabad's view).

35. Mutr.ian v. AhmadA!i, ILR (1881)8 Cat 370.

36. Abbas Naskar v. Chairman, Dish. Board, 24 Parganas, ILR (1932) 59 Cal 691.
37. Khurshetbibi V. Keso Vinayek, ILR (1887)12 Born 101.
38. Bhagirathibai V. Roshanbi, ILR (1919)43 Born 412.
 ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS 359
XIII]

Madras.—In its earlier decisions, the High Court of Madras followed the
earlier rulings of Bombay, but later on adopted the view taken by Allahabad.39
Allahabad.—It was held by the Allahabad High Court that a decree relating
to debts of a deceased Muslim passed against his heirs, binds each heir who is in
possession, to the extent of their share in the estate. But such a decree does not
bind other heirs who are not in possession. This is because each heir in the law of
Islam inherits a separate and well-defined share. The share of one has no
connection with the share of another. Thus, an heir cannot be said to represent
the estate that has devolved upon the other heirs.40
Nagpur and Oudh.—These Courts have taken the same view as that of
Allahabad High Court.
This controversy was resolved by the Supreme Court in Mohd. Sulaiman v.
Mohd. Ismail41 . The background to this ratio was provided by a decision
delivered one year earlier in Daya Ram v. Shyam Sundari 42, where the Supreme
Court held that where the petitioner makes certain persons party to a suit for
decree, and after diligent and bona fide inquiry he genuinely comes to the
conclusion that the persons impleaded are the only heirs of the deceased and no
other heir was left out in the suit, the decree issued will be binding on the entire
estate. This is an exception to the general rule that persons not impleaded are not
bound by the decree. The above exception will also not apply to the non-
impleaded heirs where there was a fraud or collusion between the creditor and
the heirs. The next case—Mohd. Sulaiman (supra) involved Muslim parties on
both sides. The facts of the case were as follows: Certain property was
mortgaged by three Muslims (A, B, C) to one N, Reddy, (R). A died. R finding
that B, C, 3 widows of A and one daughter of A were in possession of the
mortgaged property, obtained a decree on his mortgage against them and in
execution sale thereof, purchased the property himself with the permission of the
Court. It was also found that R had made bona fide enquiry and had not come to
know about the existence of any other heirs. R further sold it to one P.C. Reddy
(P), and the latter further sold it to others. Mohd. Sulaiman, the plaintiff claimed
to be a son of the deceased A. The main objection was against the decree R had
obtained. R resisted this appeal on the ground that he was a bona fide purchaser
and had obtained the decree after suing for debt all the heirs in possession that he
could know of after bona fide enquiry. The Supreme Court accepted his defence
and dismissed the appeal. Held—that the principle of representation of the estate
by the heirs who were joined as parties applied to the case and the decree was

39 Paihummabi v. Viuil, ILR (1902) 26 Mad 734, and Abdul Majeeth v. Krishnamachariyar, ILR
(1917) 40 Mad 243.
40. Manni Gir v. A,narJoti, ILR (1936)58 All 594.
41 AIR 19W SC 792
42 AIR 1965 SC 10,19.
360 MUSLIM LAW [CHAP.

binding on persons who claimed to be Sons of the deceased mortgagor and who
sued for a declaration that the mortgage decree was not binding on them. The
creditor may sue all the heirs, and where the estate has not been allotted to the
heirs, he may execute the decree against the property as whole without regard to
the extent of the liability of the heirs among themselves. The creditor is not
required to sue all the heirs, he may sue some of the heirs and obtain a decree
against them. The decree may be enforced against individual heirs in proportion
to their shares in the estate. Where the creditor after diligent and bona fide
enquiry impleads some, but not all, as legal representatives, the heirs so
impleaded represent the estate of the deceased, and a decree obtained against
them binds the entire estate, including those not joined in the decree. In holding
this the Supreme Court relied on the Daya Ram case (supra).

8. Alienation for payment of debts

If there is only one heir of a deceased Muslim, the heir could validly alienate
the whole of the estate he inherits to satisfy any debt of the deceased. But if there
are several heirs of the deceased and the whole estate of the deceased is in
possession of only one heir, he has no power to alienate the shares of other heirs,
even for discharging debts of the deceased. Such an alienation, if made, would
not be binding on the other heirs, and could be set aside. The transfer will take
effect only in respect of the share of the transferor. This view has the approval of
the Privy Councii.4
In an earlier case the question before the Court was:
"When one of the co-heirs of a deceased Muhammadan, in possession of
the whole estate of the deceased or of any part of it, sells property in his
possession forming part of the estate for discharging the debts of the
deceased, is such sale binding on the other co-heirs or creditors of the
deceased."
The Court answered this question in the negative. Delivering the judgement,
Abdur Rahim, J., observed':
"The heirs of a deceased Muhammadan take their shares in severalty,
their rights being analogous to those of tenants-in-common, and not of
members of a Hindu Joint Family.45
There cannot be the slightest doubt therefore upon the principles of
Muhammadan Law and also on the authorities that one heir has no right to
deal with the shares of the other heirs".

43. Jan Mohammad v. R.B. Karin Chand, AIR 1947 PC 99.

44. Abdul Majee,n v. Krishnarnachariyar, (1916) 40 Mad 243.
45. See, Abdul Khader v. C'hida,nbaram Jhet1iyar, ILR (1909) 32 Mad 276.
 XHIJ ADMINISTRATION OF ESTATES AND PAYMENT OF DEBTS
361
If one of the heirs sells the property in excess of his own share for payment
of debt, the other co-heirs may sue for a declaration that the sale is not binding
on them. They may pray for getting the sale set aside. In such cases, the court
reserves the power to do equity and justice by requiring the heirs who seek to
recover possession to pay their proportionate share in the debt. Alternately the
vendee may be allowed to retain the portion of the other heir validly sold to
him.46
The debts of the deceased are given priority over the personal debts of the
heirs.47

46. Verma, at p. 385.

47. Ibid.
 XIV

Inheritance
1. Excellence of Muslim Law of Inheritanc&
Nearly all the modern writers have admired the Muslim system of
Inheritance for its utility and formal excellence. The views of only a few of them
are given here:
SIR WILLIAM JONES: "I am strongly disposed to believe that no possible
question could occur on the Muslim Law of
Succession which might not be rapidly and correctly
answered."
Rt MSEY: "The Muhammadan Law of Inheritance comprises
beyond question the most refined and elaborate
system of rules for the devolution of property that is
known to the civilised world."
FITZGERALD "To Muslims the Sharia Law of Inheritance is ideally
perfect; founded on the sure rock of divine revelation
and worked out in the utmost detail by that mental
ingenuity which God gave man for the purpose of
understanding revelation. The logical strength of the
system is beyond question..."
MAcNAiUTF "• ; Ic difficult to conceive any system containing
rules more strictly just and equitable."
TYABJI: "The Muslim Law of Inheritance has always been
admired for its completeness and the success with
which it has achieved the ambitious aim of providing
not merely for the selection of a single individual or
horn 'eneous 'roup of individuals, on whom the
estate of the e .msed should devolve by universal
succession, bu br adjusting the competitive claims
of all the nearest relations."

I. The Prophet is reported to have said: Learn the laws of inheritance, and teach them to the
people; for they are one half of useful knowledge (Sirajiyah).
 INHERITANCE 363

ANDERSON: "There is no aspect of the (Muslim) Law in which the

logical and technical excellencies of the Islamic
system are more advantageously displayed than in the
law of inheritance. Indeed, there is a famous dictum
attributed to the Prophet that a knowledge of the
shares allotted to the various heirs under this system
constitutes the equivalent of one-half of all human
knowledge."

2. Dual basis of Muslim Law of Inheritance

The Muslim Law of Inheritance is based on:
(i) the rules relating thereto laid down in the Koran or in the traditions;
and
(ii) the customs and usages prevailing amongst the Arabs insofar as they
have not been altered or abrogated by the Koranic injunctions or
traditions.2
Before examining the reforms introduced by Islam, let us first examine pre-
Islamic customs regarding succession.
Importance of pre-Islamic customs.—"(I)t would not be correct", says
Abdur Rahim, "to suppose that Islam profesced to repeal the entire costomary
law of Arabia, and to replace it with a code of altogether new laws. The fact is,
the groundwork of the Muhammadan legal system, like that of other legal
systems, is to be found in the customs and usages of the people amoung whom it
grew and developed.113
The pre-Islamic customs relating to succession alone can explain the reason
why different classes of rights are given, for example, to the different classes of
heirs, and why some who might be supposed to be entitled to similar rights, are
placed on different footings. Thus, in the first group of heirs—the Sharers—no
place is given to sons, though daughters, son's daughters, and even sisters are
included in it. This might seem bewildering, unless it is realised that the Sharers
consist of those who were not entitled to succeed under the customary law.
Similarly, the debris of customary law are found throughout the Law of
Succession, and often simplifies its seeming complexity.
The Koran did not sweep away the existing customs of succession, but made
a great number of amendments.4

2. Tyabji, at p. 820.
3. Abdur Rahim, at p. I.
4. Tyabji, at pp. 821-825.
364 MUSLIM LAW [CHAP.

Pre-Islamic rules of succession.-4i) The nearest male agnates succeeded

to the entire estate of the deceased;
(ii) females and cognates were excluded;
(iii) descendants were preferred to ascendants'and ascendants to collaterals;
(iv) where agnates were equally distant to the deceased, they together shared
the estate per capita.5
Improvements introduced by Islam.—(i) The husband and wife were
made heirs;
(ii) Females and cognates were made competent to inherit;
(iii) Parents and ascendants were given the right to inherit even when there
were male descendants;
(iv) As a general rule, a female w s given one-half the share of a male; this
is because of her lesser responsibilities and obligations in comparison with
males.6
All the newly created heirs were assigned specific fraction of estate, called
Sahm (share), and were called Koranic heirs or simply 'sharers'. Moreover, the
newly created heirs were mostly females.
3. Some objections: Their answers
Objection I.—"The widow receives very inadequate treatment, for her
maximum share is 114th of her husband's estate and that too is reduced to 1/8th
by the survival of any child of the deceased" (Anderson).
Answer.—The principles of Muslim Law are primarily based on the Koran.
He Koran sometimes lays down general rules whose observance much depends
on interpretation; but if there is some specific and clear injunction in the Koran,
it has to be followed literally without any question.
The Koran lays down the following rule:
"And unto them (your wives) belongeth 1/4th part of what which ye
leaves, if ye have no issue; but if ye have issue, then they shall have one
1/8th part of what ye leave" (Koran, 4: 11).
The above verse of the Koran is clear enough to need any explanation.
The position of widow would cease to look bad after we also consider the
following mitigating factors:
(i) The amount of deferred dower which she gets on her husband's
death;

5. Tyabji, at p. 829.
6. Ibid, at p. 830; Fyzee, at p. 390.
xiv] INHERITANCE 365

(ii) Obligation of children to maintain her;

(iii) Her fewer obligations.
(i) After the death of her husband, the widow gets the amount of
dower, which is apart from her share in inheritance. Generally the
amount of dower is quite a fat sum.
(ii) The presence of children, which makes her to get only 1/8th part
of the estate, also provides her with an alternative to compensate
the loss. It is one of the cardinal principles of Muslim Law that a
person in easy circumstances is bound to maintain his poor
parents. Therefore, what her son gets, for example, from the
inheritance, he has to spend it gradually on her maintenance. Seen
in this context, the reduction of her share to I/Rth does not look
harsh.
(iii) The social and family obligations of females, particularly in India,
are not very serious as that of a male. Her own maintenance is the
only serious problem before her, and it is amply guaranteed by the
provisions described above in (i) and (ii).
In spite of the above provisions, if a husband feels that his children would
not support their mother, or the dower amount, or her share in inheritance is
small, he may very well make a gift (or a will, provided his heirs give their
consent to it after his death)7 to her. He can thus provide ample means to his wife
to support herself during 'rainy days'.
Objection IL—The most controversial problem in the Muslim Law of
inheritance in India is posed by the fact that the Islamic Law of Intestate
Succession gives a son twice the share of a daughter, and a brother of the full or
consanguine blood twice that it corresponding sister (and, indeed, a widower
twice a widow's share, and a father, in certain circumstances, twice that of a
mother) (Anderson).
Answer.—Replying this self posed question, Professor Anderson recently
made some very importance observations that deserve our full attention. He
said:8
"To change all this would be to upset the whole structure of the Islamic
Law of Inheritance, which is as complex, finely balanced and
mathematically precise as any system in the world, and which rests more
directly on the explicit injunctions of the Koran than any other part of the
Shariah. The argument most frequently heard in India in favour of such
change is based on the Fundamental Rights enshrined in the Indian

7. It is interesting to note that the Egyptian law allows a bequest to an heir up to the ceiling of
one-third without any consent of heirs.
8. J.N.D. Anderson, "Muslim Personal Law of India", in the Islamic Law in Modern India
(1972) at pp. 42-43.
 366 MUSLIM LAW [CHAP.

Constitution, which provide that "The State shall not deny to any person
equality before the law' 9 .., and that 'The State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex, place of birth or any
of them'. 1() But it is vital to note that these injunctions are addressed to State
action, not to the existing personal laws."
Even so, the question may well be debated whether the principle of "double
share to the male" (which pervades much though not all, of the Islamic Law of
Inheritance) does not in fact constitute a discrimination against daughters, sisters,
etc. "on grounds only of sex". At first sight this might certainly appear to be the
case; but I think it is distinctly arguable that this is not so. It must be
remembered that celibacy is extremely rare among the Muslims of India, where
the overwhelming majority of Muslim women are married; that it is a
fundamental principle of Islamic Law that a husband must provide his wife with
a dower, while the provision of a dowry by the wife's father has no place in the
Islamic system; that it is incumbent on a Muslim husband to provide his wife
with maintenance and housing, however, poor he may be and however affluent
may be her own circumstances; and that the duty to support the children of a
marriage is invariably placed, primarily at least, on the father. In view of these
manifold obligations I think it is distinctly arguable that the greater share
normally given to males in the Islamic Law of Inheritance does not in fact,
constitute a discrimination which can be said to be based on sex alone—
particularly in view of tne fact that there is no question wnatever of the exclusion
from inheritance of a daughter, sister, mother or wife in the Sharia, common
though that often is in the customary law of different parts of the subcontinent.
It is true that when the right to inherit passes beyond the "inner" family (i.e.
parents, grandparents, children, grandchildren, brothers, sisters and spouses) the
Sunni system gives a right of inheritance to the agnates alone, to the complete
exclusion of any relative—female or even male—who is not related to the
deceased through the male line. But it is significant that the Shia' have never
followed this principle. On the contrary they treat cognates on a complete
equality with agnates, and when they grant inheritance to a male relative,
however distant, they invariably allow a female in the same degree of
relationship to take her share as well. A female who is closer in degree to the
deceased will, indeed, completely exclude a more remote male. But even among
the Shia's the distribution, as between sons and daughters, brothers and sisters,
etc. gives a double share to the male.

9. Art. 14.
JO. Art. 15(0.
Xlvi INHERITANCE 367

4. Some general rules of inheritance

Property—movable and immovable not distinguished.—The Muslim
Law makes no distinction between movable and immovable property for the
purposes of inheritance. Only one distinction recognised by the Shia Law is that
a childless widow is not entitled to a share in the land belonging to her husband.
Land does not include buildings or trees standing on it; she is entitled to a share
in the value of such buildings etc.
Ancestral and self-acquired property—no distinction.—There is no 'joint
family property' or 'separate' property. Heirship does not necessarily go with
membership of the family. A 'member' of the family may not be an heir, and
vice versa. The institution of joint family is a foreign concept in Muslim Law. It
is not contrary to law, however, for a Muslim adult male to hold assets and carry
on business on behalf of other members of the family. Such practice is common
in Andhra Pradesh. Such a case will be an instance of partnership (express or
implied) and the adult will stand in fiduciary relationship to other members.
Thus, when it was found that two brothers had used for themselves the goodwill
of their father's firm after his death and also the shares of other members under
their control entirely to their own advantage, it was held that they stood in
fiduciary relationship to the other members and the provisions (Sections 23 and
28) of the Trusts Act applied to the two)'
In Rukaiya Begum v. 0. V. Faziur Rahman 12, the Patna High Court held that
although there is no presumption of jointness and joint family business in
Muhammadans, but in certain circumstances the court may uphold such
eventuality. There is nothing contrary to law in Muhammadan adult members of
a family carrying on family business for the benefit of all members of family
including minors and females, and the court may uphold it and such legal
consequences as follow from it, although the court will not impart all the legal
consequences as in case of Hindu joint family or a lawful partnership. (See also,
last chapter under Section 6 for jointness of family).
Joint family property not being recognised, the principle of survivorship is
also not known to Muslim Law. The heirs of the deceased take their shares as
tenant in common, and not as joint tenants with rights of survivorship. They are
separate co-sharers. Acquisitions by one member are not thrown in a common
purse, nor debts incurred by one are to be shared by others. In case of a joint
business, the rules of partnership will apply and the partnership would terminate
on the death of one of the partners, unless there is evidence to the contrary.
No limited interest.—Muslim Law recognises a distinction between ayn
(corpus) and usufruct in the property (manafi). Over the corpus the law

11. Mohd. Abdul Rahim v. Mohd. Abdul Hakim, AIR 1931 Mad 553.
12. AIR 1998 Pat I.
 368 MUSLIM LAW [CHAP.

recognises only absolute dominion, heritable and unrestricted in point of time.

The manafi may be of limited duration and limited interest, and through this
manafi the dominion over the corpus may take effect subject to any such limited
interest; but over the corpus as such, the Muslim Law recognises no limited
interest.
No rule of primogeniture.—Muslim Law does not recognise the law of
primogeniture; the eldest son has no special privileges. But Verma has noted
some exceptions to this rule. The eldest son is entitled to succeed exclusively to
the wearing apparel, Koran, sword and ring (collectively called habua) of the
father. In Oudh the Estates Act recognises the family custom of primogeniture
succession governing talukdari property; the daughters are excluded. Bombay
Watan Act also recognises this custom. 13
The rule of primogeniture also rules the succession of the Gaddi of Rampur
State. "The rule of succession over the Gaddi of Rampur State and properties as
pertaining thereto, has all along been the rule of male lineal primogeniture,
according to which the eldest male heir of the last ruler inherited both the Gaddi
and the properties, had an impartible character,"—ruled the Allahabad High
Court in Talat Fatima Hasan v. Nawab Syed Murtaza Ali Khan 14. The history of
succession to the throne of the State of Rampur right from its inception about
200 years ago established that the inheritance to the Gaddi was based on male
lineal primogeniture. On the merger of the State with the Dominion of India by
means of the instrument of merger dated 15th May 1949 the said position
remained unaffected and the late Nawab held the properties as part of the Gaddi
of Rampur State. Both the Gaddi of Rampur State and the properties owned by
the said Ruler thus continued to be governed by the rule of primogeniture and the
principle of impartibility which did not come to an end with the lapse of
paramountcy and the integration of the State. The defendant, eldest son of the
late Nawab thus, in accordance with the rule of inheritance, succeeded to the
Gaddi of Rampur and the entire property then owned by the late ruler. The said
property in the matter of succession was not governed by the Muslim Personal
Law and the descendant of the late Nawab, had no right to inherit the same or
share in it. The position in this regard did not change on the abolition of privy
purses and cessation of recognition as ruler as a result of 1971 Amendment.
On the legal position of the rule of primogeniture, the Court held:
"The rule of primogeniture, and impartibility, is as much applicable to
the Muslims as the Hindus. Second, the customs of these nature have all
along been treated as law and not merely a practice. Consequently, there
neither could be a bar to plead the same, in view of Section 37 of the Bengal,
Agra, Assam Civil Courts Act, nor would be treated as abrogated because of

13. Verma, at pp. 389 and 398.

14. AIR 1997A11 12.2.
 XIV] INHERITANCE 369

Section 2 of the Shariat Act. What the Shariat Act prohibits or repeals, is the
custom in respect of the matters enumerated in Section 2 of the said Act and
not anything beyond it. It only excludes a custom contrary to the Muslim
Law of Succession etc., but there is nothing in it to indicate that it also has
the effect of overriding any law to the contrary. The rule of impartibility and
primogeniture are laws in the meaning of Section 292 of the Government of
India Act, 1935, and Article 372 of the Constitution of India. Consequently,
this can be negated only by a specific legislation repealing the same. 15
This legal position was recognised not only by the Privy Council in cases
relating to Ruler States of Punjab and Awadh, but also by the Supreme Court in
the case of Pratap Singh v. Sarojini Devil 6 The Supreme Court in the matter of
the princely State of Nabha, reiterated the time honoured legal position and
principle that, though impartibility and primogeniture in relation to Zamindari
Estates or other impartible estates are to be established by custom, in a sovereign
ruler they are presumed to exist and further held that the rule of primogeniture
applied not only to the rulership (Gaddi) but also to the entire property owned by
the ruler, and it did not come to an end with the lapse of paramountcy and the
integration of the princely States. This rule continued even after 1947-1948.
Under Article 372 the Law of Succession relating to primogeniture continued
until it is repealed.17
Birthright not recognised.—The right of inheritance or succession arises
only after the death of the ancestor or propositus. Until then the heir-apparent
does not have any entitlement of the property that would devolve on him on the
death of the ancestor. His right to succeed is nothing more than a mere spes
successionis; that is a mere chance of succession. His 'right' may be defeated in
a number of ways—the owner may transfer it in his lifetime. The principle nemo
est heirs viventis (a living person has no heir) applies to Muhammadans.
Illustration.—A has a son B. A gift his property to C. B alleges that the gift
was procured by undue influence and so sues C in A's lifetime on the strength of
his right to succeed to A's property on A's death. The suit must be dismissed, for
B has no cause of action against C, for he is not entitled to any interest in A's
property during A's lifetime. B can bring such a suit only after A's death.
An heir apparent as 5uch, cannot make any claim. For example, a Muslim
lady has a son; he dies, nen the lady dies. Can the wife of the son claim any
share in the property of the lady as representative of the predeceased son?
Answer is 'no'. 'It is well settled that only that relative can be an heir of the
deceased who is alive at the moment of the latter's death. A person who died
before the deceased cannot be his heir. The survivors of such a person can in

15. AIR 1997 All 122, paras at pp. 54,55 and 71.
16. 1994 Supp (I) SCC 734, cited in the above case.
17. Cited byAllHC supra, n. 14.
 MUSLIM LAW [CHAP.
370
same cases inherit direct from the propositus, but not in place of or in the right of
the said person who died before the propositus. And a daughter-in-law who is a
widow is excluded from claiming any share in properties of her mother-in-law.'
- See, Ashabi v. Faziyabi 18 . Similarly, where the daughter of consanguine
brother predeceased her father, her children cannot claim her father's share since
she cannot get any share in his property 19 . He cannot release his chance of
succession, or transfer it without consideration. He cannot make as valid gift of
the contingent right, the Transfer of Property Act and the Muhammadan Law
prohibit it. But if the expectant heir goes further and receives consideration and
so conducts himself as to mislead an owner into not making disposition of his
property inter vivos the expectant heir could be debarred from setting up his right
when it does unquestionably vest in him. This principle of equitable estoppel is
in consonance with the Muslim Law. 20 According to Fyzee also, the
relinquishment of a contingent right of inheritance by a Muslim heir is generally
void in M''ammadan Law; but if it is supported by good, and not necessarily
valuable consideration, and forms part of a valid family settlement, it is perfectly
valid.21
Vesting of Inheritance (Moona Sukhut).—Immediately on the death of the
propositus the heir are vested with the right of inheritance according to their
allotted shares. This vesting of the right is not dependent on actual distribution of
their shares, it does not wait for a moment. So even if such heir dies before the
distribution, his ri g ht remains intact and immediately passes to his owr
Thus—A dies leaving two sons B and C as his heirs. Before the estate is divided
or even possession is taken, B dies leaving a son D. The share of B will pass on
to his son D. This is so because what passes on death is the right of inheritance,
the corpus is only the result of the right.
We repeat for consolidation.—'In Muslim Law there is no right by birth,
right of heirs comes into existence on death of the person of whom he is an heir
(the former is called propositus). It is not lost by death of the heir before
distribution of property; howevei the hcir who ha3 prcdcccased the owner CnnC't
have right of inheritance'22.
Devolution of separate shares.—On the death of the ancestor, each heir
gets his share in separate form as assigned to him or her according to the Muslim
Law. Joint family or Joint property concept is foreign to Muslim Law. For
example A has three sons, B, C and D. On A's death, there will be three distinct
properties--of B, C and D. Even if they live and mess together, the property of

18.2004 AIR Kant HCR 2886.

19. Mo/id. Aliuddin Farooqui v. Mo/id. Karamath Hussain, 2003AIHC 3538 (AP).
20. Verina, at pp. 393-94 and Gulanz Abbas v. Haji Kayyam Au, (1973) 1 SCC I: AIR 1973 SC
554.
21. Fyzee, at p. 391.
22. Nazirkhan Mohammed v. Damodhar M. Palre, 2003 AIHC 3297 (Born).
 xiv] INHERITANCE 371

each will be distinct and separate. They may hold it as tenants in common. Even
if they conduct a joint business, the parties will be governed by the ordinary rules
of partnership.
Missing propositus.—The right to inherit the property of a missing person
would arise only on the date on which he would be presumed to have died, and
heirs would be determined on that date and not on the date on which he
disappeared.23 This period ranged between 70 years to 120 years from the date of
birth according to different authorities in Muhammadan Law. Now it will be
governed by Sections 107-108 of the Evidence Act. 24 If the person reappears, his
property will be returned to him.
Missing heirs.—If at the time of the death of the ancestor any of his heirs is
missing his share will be reserved until he reappears or is proved to be dead. The
others will be given their shares. If he reappears, he will be given his share. But
if he does not return, and is declared dead, the share reserved will devolve on the
heirs of the deceased ancestor and not on his (the missing person's) heirs. The
presumption of death will be governed by Sections 107-108 of the Evidence Act.
Illegitimate person.—Walad-uz-Zina—A bastard is considered to be the
son of his mother only. He has no father; as such neither he inherits from 'father'
(the husband of his mother) nor the 'father' inherits from him. The reciprocal
right of inheritance exists between him and his maternal relations and his mother.
They are also his residuary heirs. Of course his other descendants are his/her
spouse, and his descendants, except his father and the latter's relations. Thus if
an illegitimate person leaves a mother, a daughter and father, the daughter would
get 1/2 and the mother 116th; the remainder would revert to them by return. The
father would be excluded. Similarly an illegitimate brother and illegitimate uncle
are not entitled to inherit. But a twin brother will inherit as uterine brother.
Child of a woman divorced by Iian.—The son or daughter of a woman
who imprecated and therefore divorced by her husband by the method of han
(Walad-ul-Mula 'inah) is treated for the purposes of inheritance on the same
footing as the illegitimate son or daughter. That is, he inherits from the mother
but not from the 'father' (i.e. the woman's husband) or even the imprecator. The
only difference is that if such child has a twin brother, they inherit as full brother,
unlike as uterine brother, because the source is common and is known.
Under Shia Law the illegitimate child does not inherit even through the
mother. However, the child of an imprecated mother does inherit from the
mother and vice versa.
A child in the womb.—For the purpose of safeguarding property interest a
child in the womb (an unborn child) is deemed to be born on the date of his

23. Verma, at p. 391.

24. Rakhi Bibi v. Rahat Bibi, 7 NWP 191. See, Verma, Ibid.
372 MUSLIM LAW [CHAP.

conception. And thus he is treated as in existence on the date the propositus dies
and the succession opens out. The other heirs would be entitled to distribute the
estate among themselves only after reserving the share of the unborn. As to the
amount of the share to be reserved, the accepted view is that of Abu Yusuf, who
holds that the share of one son or one daughter, whichever is greater, should be
reserved, subject to the taking of proper security. Under Shia Law the share of
two sons should be reserved as a measure of precaution.25
Death in common calamity.—Where more than one person dies in a
common calamity, like an earthquake, and it is not proved as to who died first,
the property of each of them would be inherited by his heirs, and there would be
no mutual rights of inheritance between them. That is, the property would be
distributed among the surviving heirs as if the intermediate heirs who died at the
same time with the original proprietor had never existed.26

5. Doctrine of representation
Fyzee says that the word 'representation' has several meanings in law. For
instance, we may speak of representation to the estate of a deceased man, and in
this context we speak of 'personal representatives' i.e., executors or
administrators. The second meaning is the process whereby one person is said to
'represent' the share receivable by him through another person, who was himself
an heir. Here, we are concerned with this second meaning.
Take the example of D, the deceased, having two sons A and B. The second
son B dies in the lifetime of D, and leaves a son, S.

A B (dead)

S
Now, according to the second meaning of representation described above, S
will seek to get the share his father would have taken if living. But, neither the
Shia Law nor Sunni Law recognises this principle. Both the schools agree that A
will exclude 5, on the principle: nearer in degree excludes more remote. Also,
the link B which joined S with D is broken.
Thus, the principle of representation could not be applied for the purposes of
deciding who are entitled to inherit.

25. Verma, at pp. 408-10.

26. Ibid, at p. 411.
 XIV] INHERITANCE 373
The doctrine of representation (or, more properly of Stirpital Succession),
however, could be used in a limited way; that is, for deciding the quantum of the
share of any given person, if he is entitled to inherit.
For example, P dies leaving three grandsons; S(l) by a predeceased, son, and
S(2) and S(3) by another predeceased son. Here all the grandsons are heirs.
P

Predeceased son Predeceased son

S(l) S(2)
H1 S(3)
Here, for the limited purpose of calculating the share of each heir, Shia Law
accepts the principle of representation as a cardinal principle throughout.
Accordingly, the descendants (or ascendants) of a predeceased and in that sense
represent the son (The same principle applies to the descendants of daughter,
brother, sister or aunt).27
In Sunni Law, even this limited meaning of the term 'representation' is not
accepted. The grandsons (in the above example) would each take the same share
ascertained to them without recourse to the principle of representation. The
division among them would be per capita and not per stripes.
Recently, J.N.D. Anderson, in his book Islamic Law in the Modern World,
has criticised the rule against representations as causing much hardship. He says
that this rule is of pre-Koranic origin. The reason why this rule was not overrule?
by the Prophet was that he himself was debarred from succeeding ' his
grandfather. Thus, in order that he might not be suspected of person bias or
motives, he did not change the rule. This argument of Professor Andt. on is not,
however, convincing. There were many things which the Prophet did. even at the
cost of being assumed biased, provided he once became guided or convinced that
the thing was for the good.
In fact, (he more plausible reason behind the survival of the rule against
representation seems to be the fact that the Law of Inheritance in Islam is very
much connected with the provisions of wills and gifts, and a defect in one ma
be corrected by another. Thus, a person who has been adversely affected by this
rule may be compensated by a gift or bequest.
But there may arise situations in which the execution of a gift or will may
not be possible. In such cases, the rule against representation may really cause

27. Mulla, at p. 116.

 MUSLIM LAW [CHAP.
374

hardship. Take the example of a grandfather who dies suddenly as a result of

heart collapse, so common these days, and could not find time to make a gift or
bequest in favour of a son of his predeceased son. According to Muslim Law, on
the son of a predeceased son gets nothing of his grandfather's estate. Now, the
grandson is wholly dependent on the mercy of other relatives who have
inherited. If they chose to ignore him, the grandson could do nothing. In such
cases there is a need of reform.
In recent years, several Islamic countries have made provisions to mitigate
hardships of the son of a predeceased son. Those provisions were enacted by
Egypt, then by Syria, followed by Morroco and Pakistan. The first three
mentioned countries evolved a system of "Obligatory Bequests". Under this
heading, the "Egyptian Law of Testamentary Disposition", for example, provides
that a grandparent must make a bequest to grandchildren of their predeceased
children. This bequest should be of what the predeceased child would have
inherited, on intestacy, had he survived. It has been provided that such
"Obligatory Bcqucst" should not exceed the bequeathable third. If the
grandparent fails to make such a bequest, its existence would be presume by the
y
Court. The "Obligator Bequests" have a priority over the regular bequests.
In Morroco, such "Obligatory Bequests" operate only in favour of the
children of a predeceased son, and not of daughter.
In Pakistan, Section 4 of the Muslim Family Laws Ordinance, 1961
provides:
"In the event of the death of any son or daughter of the propositus
before the opening of succession, the children of such son or daughter, if
any, living at the time the succession opens, shall per stripes receive a share
equivalent to the share which such son or daughter, as the case may be,
would have received if alive."
Professor Anderson observes that though this certainly protects the interests
of orphaned grandchildren both simply and effectively, but it does so at the
expense of radically distorting the Islamic system of Inheritance. Of this a single
instance must suffice. Should A die survived by a daughter and the daughter of a
predeceased son, A's estate would be divided between them, in Sunni Law,
initially in the ratio of half to the daughter and one-sixth to the son's daughter
(and then if there were no other heir, three-quarters and one-quarter
respectively), whereas the position would be turned upside down according to
the law in Pakistan, where the daughter would take only one-third while the
son's daughter would receive two-thirds.
The other way in which this problem has been tackled is the system of
obligatory bequests that can find a considerable degree of support in the Islamic
 XIV] INHERITANCE 375

texts; and it has the merit of meeting the needs of the orphaned grandchildren
without in any way upsetting the structure of the law of intestate succession.28
It is high time that in India too such a reform in the Muslim Family Law
may be discussed and its merits and demerits may be explored. It should be
better that instead o roceeding arbitrarily, the Government may appoint a
Committee of representative Ulenia, who may first consider the desirability and
form of such a change, and then recommend it to the Government to transform it
into law.

6. Rules of total and partial exclusion

Both under Shia and Sunni systems, every person is entitled to inherit,
unless there is something to exclude him. A child in the womb is regarded as a
living person provided he is born alive.
Both the Shia and Sunni systems recognised two types of exclusions:
(i) partial or imperfects exclusion; and
(ii) total or perfect exclusion.
(i) Partial or imperfect exclusion.—It may come in two ways:
(a) Exclusion from one share and admission to another. For example,
daughter in the presence of son is excluded as a 'Sharer' and becomes
'Residuary'.
(b) Partial reduction of the specific share because of the presence of
certain heirs. For example, the share of wife is either 1/4th or 1/8th
according to the absence or presence of a child or child of a son, how
low soever. Similar is the case of husband, whose share is either 1/2 or
1/4th.
(ii) Total or perfect exclusion.—The term 'total exclusion' applies to cases
when although a person, related to the propositits and otherwise entitled to
inherit, is excluded by some 'legal cause'.
Both in Shia and Sunni systems this type of exclusion is based on three
principles:
Principle L---''Nearer in degree excludes more remote." (e.g. son excludes
son's son; father excludes grandfather).
Principle !I.—"A person who is related to the deceased through another is
exclude by the presence of latter." (e.g. father excludes brother).
Exception.—Mother does not exclude brother or sister.

28. J.N.D. Anderson,"Islamic Law of Testate and Intestate Succession and the Administration of
Deceased Person's Assets," in the Islamic Law in Modern India (1972) at p. 203.
376 MUSLIM LAW [CHAP.

Principle III.—"Full blood excludes half blood." (e.g. full sister excludes
consanguine sister).
Exception.—Uterine relations are not excluded on this ground.
The most important of total exclusions under Muslim Law are on the
following grounds:
(a) Religion.—According to Islamic Law, a non-Muslim cannot inherit from
a Muslim. Thus, if a Muslim apositises, he is excluded from inheritance. In
India, however, this rule does not apply after the passing of the Caste Disabilities
Removal Act, 1850. But a Hindu, who is converted to Islam and dies a Muslim,
is governed by Muslim Law, and after his death, his Hindu relatives could not
claim a share in inheritance by virtue of the Caste Disabilities Romoval Act.
(b) Homicide.—On this point, there is a slight difference of opinion
among Shias.and Sunnis.
Hanafis say that one who causes the death of another either intentionally or
unintentionally, cannot inherit from the cleceasel.
However, an act committed by an infant or insane person which causes death
of another person, does not exclude such infant or insane from inheritance.
Moreover, the act causing the death should be of direct nature; for example,
when a person has dug a well into which another falls, or placed a stone on the
road against which another stumbles and is killed in consequence are not
sufficient causes for total exclusion.
Further, if a teacher or father causes death as a result of beating given by
way of admonition, or if he has caused the death in performance of legal duty.
The bar of homicide is only personal, others who claim through him are not
barred. Illustration—A dies leaving his son B, B's son C and brother D. B had
caused A's death. B cannot succeed, but C (B's own son who claims through B)
will succocd as being ncarcr in prcfc:cnce to D.29
Several Muslim countries having been dissatisfied with the Hanafi Law on
this point have adopted Maliki principle, that one who intentionally kills or
causes the death of another, directly or indirectly, will be precluded from any
right to inherit from him, while one who kills another by accident, even by a
direct act, such as shooting a pistol or flinging a bomb, will not suffer any such
deprivation.
Shias say that the homicide must be intentional, but the absence of intention
should be clearly proved.

29. Verma. at pp. 397-98.

 XIV] INHERITANCE 377
(c) Slavery.—Both under the Shia and Sunni Laws, the status of slavery is a
bar to succession. This branch of Muslim Law, however, is obsolete in India, as
the Act 5 of 1843 has abolished the system of slavery.
(d) Illegitimacy.—A bastard, in Hanafi Law, cannot inherit from the father;
he could, however, do so from the side of mother.
In Shia Law, on the other hand, illegitimacy acts as factor for total
exclusion, and a bastard is not allowed to inherit either from mother or father. A
distinction is, however, drawn between a child of fornication and a child whose
parentage has been disallowed by the father, that is, a child of imprecation. In
case of fornication, the child is excluded from inheritance; while a child of
imprecation, is allowed to inherit from the side of mother. Sunni Law does not
recognise this distinction. The child of fornication and imprecation are both
regarded as illegitimate, and inherit from mother's side.
(e) Exclusion of daughter by custom or by statute.—There are two
statutes of limited application which excluded from inheritance. These statutes
are:
The Watan Act (Bombay), 1886; and
The Oudh Estates Act, 1869.
But now their importance is reducing. A custom prevails amongst the Gujars
and Bakkarwals of Kashmir by which a male descendent of grandfather excludes
the daughters from inheritance. 30 Whenever such custom is pleaded, the Court
examines the claims of those customs with great strictness. In Mohmedbhai
Rasulbhai Malek v. Amirbhai Rahimbhai MaIek 31 the claim was that a particular
custom excluded the daughters from inheritance, and widows take only a life
estate. It was claimed that such a custom prevailed among the Malek caste of
Anti village in Gujarat. The High Court of Gujarat examined the claim and held
that oral testimony, seeking to prove that there was a custom in particular
community excluding females from inheritance of property, was not trustworthy;
documentary proof was necessary. In this case, in juxtaposition, there was
documentary evidence proving that agricultural lands belonging to deceased
landholder were mutated in the name of his widow and daughter, which
established that there was no such custom as alleged. Besides Section 2 of the
Shariat Act, 1937 abrogated all such customs (subject to certain exceptions) as
exclude a widow and daughters from right to succession.
In another case an unsuccessful attempt of exclusion of daughter on basis of
custom was made by a Government Department. The Mutating Officer of the
State of Jammu and Kashmir excluded the daughter of the deceased from

30. Aqil Ahmed, Muslim Vidhi at p. 263; Ajiz Dar v. Fazli, AIR 1960 J&K 53, cited there.
31. AIR 200IGuj37
 MUSLIM LAW [CHAP.
378

i nheritance on the ground that she was married outside her parental home. It was
alleged that there was a custom in the village by which a daughter married
outside her parental home was excluded from inheritance. This plea of custom
was not proved by any evidence. It was held that any modification of personal
law should be specifically pleaded and evidence in support of it should be strictly
construed. To supersede personal law custom is to be established as ancient,
uniform and unambiguous. In the absence of such plea being proved, her
exclusion was held invalid.32
inheritance rights.—In one case the Supreme Court
(f) Relinquishment in
held that relinquishment of future possible right of inheritance by an heir may
debar him from inheriting.
X, a Muslim died leaving behind five Sons and a daughter and his widow as
his heirs. During has lifetime X incurred debts so heavily that all his property
would have been sold in their satisfaction. Under these circumstances, three of
his sons, who had prospered, came to his rescue so that property may be saved.
But, apparently, they paid up the debts only in order to get the properties for
themselves to the exclusion of other two sons, who executed deeds
acknowledging receipt of some cash and movable properties as consideration for
not claiming any rights in future in the properties mentioned in the deeds in
which they gave up their possible rights in future.
During the father's lifetime, when all chance or expectation of inheritance
by either of the two Sons could be destroyed by disposition of property, neither
of these two raised his little finger to object. Accordingly, the question before the
Supreme Court was whether the two Sons are estopped by their declaration and
conduct of silence from claiming their shares in the properties covered by deeds.
The Court answered it by observing:
"A bare renunciation of an expectation to inherit cannot bind the
expectant heirs' conduct in future. But, if the expectant heir goes further and
cn;idcraticn and &o conduct- himself ac to mile.d ow! IIT
not making dispositions of his property inter vivos, the executant heir could
be debarred from setting up his right when it does unquestionably vest in
him."
The Court further observed that Islamic urisprudence classifies human
actions into three categories: bad, good or neutral, and attaches varying degrees
of approval and disapproval to them.
"The renunciation of a supposed right based on an expectancy, could
not, by any test found there be considered 'prohibited' (or bad). The binding
force in future of such a renunciation vould depend on the attendant
circumstances and the whole course of conduct which it forms a part. In

2004 AIIIC 871 (J&K).

32 Ab. AhadAkhoon v. Financial Cornmr,
xlvi INHERITANCE 379

other words the principle of an equitable estoppel, far from being opposed to
any principle of Muslim Law will be found, on investigation, to be
completely in consonance with it.1133
Recently, in Modin Saheb Peersaheb Peerzade v. Meerabi 34, a plea was
taken in the written statement that during the lifetime of her father the plaintiff
Meerabi relinquished share in the properties by taking jewellery worth Rs
20,000. But the Karnataka High Court found that the requisite factual details of
the transaction were not pleaded. The only fact established was that when the
plaintiff's (Meerabi's) mother was ill and bedridden before her death, the former
was given 10 tolas of gold; however, nothing was said about the theory of
relinquishment; therefore the Court found that on facts the defendants miserably
failed to prove the relinquishment of rights in the suit properties. However,
following the above decision of the Supreme Court, the High Court reiterated
that relinquishment in family settlement or family arrangement is recognised and
permissible; the heir apparent may do so in oral or written form, provided the
plea of relinquishment is pleaded with factual details of transaction and
supported with evidence. Then it will be recognised, not otherwise, as in this
(se.
Need for modifications.—Some of the rules of exclusion described above
suffer with certain defects and need modifications. For example, the exclusion on
the basis of homicide, in Hanafi Law should be restricted to intentional
homicide; and the statutes which exclude daughters from inheritance and thus
defeat a most cardinal principle of Muslim Law, should be repealed.
7. Explanation of important terms used35
With a clear understanding of the various terms used in this chapter, the Law
of Inheritance would be easy to understand. It is recommended that the students
should first remember the meaning of these terms:
(i) Deceased orpropositus.—The person whose relations are sought to be
ascertained to inherit his estate according to the Laws of Inheritance.
(ii) Lineal descendant or Lineal ascendant.—The person who has
descended or ascended in a direct line from the other. For example; a
man, his father, grandfather, great grandfather, and so upwards, are all
lineal ascendants of the first man.
(iii) Collateral.—A person having a common ancestor with the deceased,
but who is neither a descendant nor an ascendant of the deceased; for
example, the brother or sister of the deceased.

33. Gulam Abbas v. Haji Kavyam Au, (1973)1 SCC I: AIR 1973 SC 554.
34. (2000)6 Kant Li 616 Kant HC (DB).
35. Tyabji, at pp. 833.38.
380 MUSLIM LAW [CHAP.

(iv) Paternal and Maternal relations.—Claimants related through the

father (e.g. brother, sister, grandfather) are called 'paternal relations'.
Claimants related through the mother (e.g. uterine brothers and sisters;
grandmother) are called 'maternal relations'.
(v) Agnate.—A person whose relation to the deceased can be trace
without the intervention of female links, e.g. a sons' daughter, Sons'
son, father's mother are agnates.
(vi) Cognate.—A person related to the deceased through one or more
female links (the position does not change if a male link intervenes),
e.g., daughter's son, daughter's daughter, son's daughter's son.
(vii) True Grandfather.—The agnatic grandfather between whom and the
deceased no female link intervenes; e.g. father's father and so on.
'False Grandfather'—The grandfather between whom and the
deceased one or more female links intervene.
(viii) True Grandmother.—A female ancestor between whom and the
deceased no false grandfather intervenes. If a false grandfather
intervenes, she is 'false' grandmother.
(ix) Ccnsanguinc (haD sisters and brothers. —The children of the same
father, but by different mothers.
(x) Uterine (half) sisters and brother.—The children of the same mother
but by different fathers.
8. Classes of heirs

A. HANAFI LAW OF INHERITANCE

Islam introduced some reforms in the pre-Islamic system, as we saw in the
beginning of this chapter. The newly recognised heirs had to be allotted a
position in the order of succession and their shares determined. This inevitably
led to the formulation of a complicated system of inheritance; and the divergence
of opinion among the Sunnis and Shias resulted in the creation of two systems of
inheritance. The Hanafls (Sunni) did not disturb the pre-Islamic rules, except to
the minimum necessary to accommodate the new heirs. The course adopted was
as follows: (i) first, shares were allotted to the nearest heirs as required by the
Koran and were called sharers; (ii) next, the body of agnates who were heirs
under the pre-Islamic Law was maintained intact and were called 'residuaries',
except that the few females had to be introduced. Finally, all other heirs who
were newly introduced (i.e. other females and cognates) were relegated to the
last and were described as distant kindred. Thus, agnate succession was
maintained and they retained priority. True grandfather (how high soever-
 xiv] INHERITANCE 381

h.h.s.) and son's daughter (how low soever—h.1.s.) were the surplus additions
among sharers as c npared to Shia system.36
Hanafi jurists divide heirs into seven classes, the three principal and the four
subsidiary classes.37
Principal classes.—(i) Koranic Heirs dhawul-furud (Shares);
(ii) Agnatic Heirs asabat (Residuaries);
(iii) Uterine Heirs dhawul-arham (Distant Kindred).
Subsidiary classes.—(iv) The successor by contract;
(v) The Acknowledged kinsman;
(vi)The Sole Legatee;
(vii)The State, by Escheat.
The first step in the distribution of the estate of a deceased Muslim, after
payment of his funeral expenses, debts and legacies, is to allot their respective
shares to the Koranic heirs. If any residue is left, it is to be divided among
Agnatic heirs (Residuaries). If there be neither Sharers nor Residuaries, the estate
will be distributed among Distant Kindred. The Distant Kindred are not entitled
to succeed so long as there is any heir belonging to the class of Sharers or
Residuaries. But there is one case in which the Distant Kindred will inherit with
a Sharer, and that is when the Sharer is the wife or husband of the deceased.38
In the absence of a member of the three principal classes (i.e. Koranic,
Agnatic and Uterine heirs) the right of inheritance devolves upon subsidiary
heirs, among whom each class excludes the next.
Successor by contract is a person whose right of inheritance is based on a
contract with the deceased in consideration of an undertaking given by him to
pay any fine or ransom. Fyzee says that it is merely of antiquarian interest,
because compensation for criminal offences is not payable in India.39
Acknowledged kinsman is a person of unknown descent in vhose favour
the deceased has made an acknowledgment of Kinship, not through himself, but
through another. Consequently, a man may acknowledge another as his brother
(descendant of father), or uncle (descendant of grandfather), but not as his son.40
Universal legatee.—In the absence of three classes of Principal heirs and
the above described classes of two Subsidiary heirs, a person is entitled to

36. Verma, at pp. 416-17.

37. Fyzee, at p. 397.
38. MuIla, at p.84.
39. Fyzee, at p.40!.
40. Ibid, at p.401.
382 MUSLIM LAW [CHAP.

bequeath the whole of his estate to any person, who is called the Universal
legatee.
The State, by escheat.— In the absence of either Principal or Subsidiary
heirs, and a will, the whole of a estate of a deceased would escheat to the
Government.
(i) SHARERS.—Students are advised to remember the shares of each of the
sharers in the following table. The division of inheritance much depends on it.
TABLE OF SHARERS4'

Sharers Share Conditions under which Whether excluded or

the share is inherited converted into a residuary
1. Husband 1/4 When there is a child or Excluded by none.
child of a son h.I.s.
1/2 When there is no child or
child of son his.
2. Wife (one or 1/842 When there is a child or Excluded b y none.
more) son's child h1s.
1/4 When no child or son's
child.
3. Daughter 1/2 If one When there Excluded by none.
2/3 If two is no son.
0.
J'
more
Residue Converted into a residuary
if there is a son or
two or more sons.
4. Son's daughter 1/2 If one When there Excluded by (i) son
is no son, or or son's son of higher
son's son grade,
2/3 If two ) Or one or (ii) two or more daughters
L more or by two or more son's
or of higher
daughters or daughters
more J higher son's grade,
daughter. (iii) Or by one daughter
together with two
1/6 When there is a daughter or more son's daughters of
or higher son's daughter. higher grade.
Residue Converted into a residuary
by son's son of equal
or even lower grade.
5. Father 1 1/6 When there is a son or Excluded by none.
son's son (his.)

41. Jung, at p. 197.

42. When more than one, all together will get 1/8, to be divided equally amongst them.
XIV] INHERITANCE 383

Sharers Share Conditions under which Whether excluded or

the share is inherited converted into a residuary
1/6 When there are one or in this case the father is it
plus more daughters, son's sharer and also a
Residue daughters and there is residuary.
no son nor son's son.
Residue When no child nor son's Converted into residuary
child his, in the absence of any

6. Mother 1/6 When there is a child or

son's child (his.) or
two or more brothers
or sisters whether full
blood or half and
whether they inherit
or are excluded or
there is a brother and
sister and the father.
1/3 When there is no child nor
son's child and not
more than one brother
and sister.
1/3 of When there is a wife or Converted into a residuary
Residue husband and th by the father.

7. True 1/6 When there is a child or Excluded by the father or

grandfather son's child (hIs.) and nearer true
no father or nearer grandfather.
true grandfather.
1/6+ When with daughters or
Residue only son's daughters.
Residue When no child nor son's Converted into a residuary
child. if there is no
descendant sharer or
residuary.
8. True 1/6 When no mother and no Paternal true grandmother
grandmother nearer true excluded by father or
grandmother. by a true grandfather.
Any true
grandmother is
excluded by mother
or by nearer true
grandmother, whether
paternal or maternal.
Not _a_residuary.
9. Full sister 1/2
2/3
If one1
If two?
Excluded by son or son's
son (h.l.s.) father or
or When no child true grandfather. Also
more excluded as sharer by
or son's
one or more
child
dau ghters or son's


384 MUSLIM LAW [CHAP.

Sharers Share Conditions under which

Whether excluded or
the share is inherited
converted into a residuary -
(his.) or father daughters.
or brother.
Residue Converted into residuary
by full brother, that is
-hen with one or
more full brothers
subject to not being
excluded or when
with one or more
daughters or son's
daughters and no
excluder, the full
sisters one or more
become residuaries
with daughter i.e.,
they take the residue
after deducting the
- shares of daughters.
10. Consanguine' /2 If one When no child Excluded by son or sop's
sister 2/3 If two or son's child son, father or true
or (hIs.) father or grandfather or by full
brother or full brother or by full
more
sister. sister when she is a
residuary
1/6 When with one full Sister Also excluded by one or
only, (the sister takes more daughters or
1/2 and consanguine son's daughters or by
sister takes (2/3 - 1/2 two or more full
= 116). sisters.
Residue Converted into residuary
by a consanguine
brother.
\Vh.n there ire one or
more daughters, or
son's daughters and
__________________ no excluder.
II. Uterine 1/6 If one When no Excluded by son or son's

12. Brother or 1/3 If two or child or son, father or true

sister more son's grandfather, or
child daughter or son's
(hIs.) daughter.
or Never converted into a
father, residuary.
(h.h.s.)

xlv' INHERITANCE MR

Illustrations43 (sharers)

(a) Father 1/6 (as sharer, because there are

daughters).
Father's Father (excluded by father).
Mother 1/6 (because there are daughters).
mother's mother (excluded by mother).
Two daughters 2/3
Son's daughter (excluded by daughters).
(b) Four widows . . 1/4 (each taking 1/16).
Father 3/4 (as residuary).
(c) Mother 1/6 (because there are two sisters).
Two sisters (excluded by father).
Father . . 5/6 (as residuary).
(d) Mother 1/6 (because there is a brother and also a
sister).
Brother (excluded by father).
Sister . . (excluded by father).
Father 5/6 (as residuary).
(e) Father's mother . (excluded by father).
Mother's . . (excluded by father's mother who is
mother's mother a nearer true grandmother).
Father (takes the whole as residuary).
Note.—In the illustrations (c), (d) and (e) above, the position of mother is
affected by other heirs. This is because of the rule that a person, though excluded
from inheritance, may exclude others wholly or partially. In illustrations (c) and
(d), the exclusion of mother is only partial, but in (e), it is total. In illustration
(d), the brother and sister, though they are excluded from inheritance by the
father, prevent the mother from taking the larger share 1/3. Similarly, in
illustration (e), the facr" mother, though she is excluded by the father,
excludes the mother's motier's mother.
(J) Husband .. .. 1/2
Mother . . .. 1/6 (1/3of1/2).
Father . . .. 1/3 (as residuary).
Note.—In the absence of husband and father, the mother would have taken
1/3, as there are neither children nor brothers nor sisters. Here, the huhand's
share is 1/2, and what remains is 1/2, and out of this 1/2, mother takes 1/3,
hence, 1/3 of 1/2 = 1/6.

43. Mulla, at p. 67.

 386 MUSLIM LAW [CHAP.

(g) Widow .. .. 1/4

Mother . . . . 1/4 (1/3 of 3/4).
Father . . . . 1/2 (as residuary).
Note.—Here, the mother is entitled only to 1/3 of the remainder after
deducting the widow's share. The widow's share is 1/4, the remainder is 3/4, and
the mother's share is 1/3 of 3/4 = 1/4.
(h) Father's .. .. 1/6
mother
Mother's mother's mother (excluded by father's
mother who is a nearer
true grandmother).
Father's father . 5/6 (a residuary).
(i) Father . . . . 1/6 (as sharer).
Mother .. .. 1/6
3 Son's daughters .. 2/3 (each taking 2/9).
Note.—In the above illustration, if one of the daughters is from one son, and
two from other son, the position will remain the same. The son's daughters take
per capita and not per stripes.
U) Father 1/f
Mother .. .. 1/6
2 Son's daughters .. 2/3
Son's son's daughter . . (excluded by son's daughters).
(k) Father . . . . 1/6
Mother .. .. 1/6
Son's daughter .. 1/2
So-.i's son's daughter .. 1/6
Note.—Illustrations (j) and (k) are similar except that in (k) there is only one
son's daughter, coexisting with the son's son's daughter. Here the former does
not exclude the latter. But they are regarded as two son's daughters. As the share
of one son's daughter is fixed as 1/2, she takes this much. Now, as the combined
share of two son's daughters is 2/3, and as 1/2 has been taken out from it by the
son's daughter, hence, 1/6 remains (2/3 - 1/21/6), which is taken by son's
son's daughter. This is a typical case and must be carefully remembered.
(l)J Mother .. .. 16
2 full sisters . . 2/3 (each taking 1/3).
Consanguine sister .. (excluded by full sister).
Uterine brother .. 1/6
 INHERITANCE 387
xiv]

(m) Full sister 1/2

2 Consanguine sisters 1/6 (each taking 1/12).
Uterine
brother
Uterine 1/3 (each taking 1/6).
sister
Note.—The consanguine sisters are not excluded because the full sister is
only one. The allotment of shares is based on the same principle as discussed in
the note to illustration (k) above.
(n) A Muslim dies leaving behind 2 wives, 3 daughters and son of full
brother: Two widows would get collectively 1/8th share of the property of their
husband i.e. each wife would get 1/16th share. Three daughters would
collectively get 2/3rd share. Son of full brother of the owner of the property was
a residuary; he would get whole of the residue after deducting shares of wives
and daughters who were sharer—thus son of full brother would get 5/24th share.
In the above example if one of the widows remarried within 2 years after the
death of the husband (owner of the property), will that fact change the position?:
No. Under Muslim Law, the estate immediately devolves after the death of the
propositus. Subsequent marriage by the widow after 2 years does not affect the
position at the moment of his death. The share of the widow already devolved
upon her at the moment of his death. That remarriage will not abrogate that share.
When the suit for possession against co-heirs was filed in the above case,
one of the co-heirs was omitted to be impleaded. Will this omission become a
ground to dismiss the suit?: No. Interests acquired by heirs of a deceased Muslim
in his property are always definite, distinct and ascertained. Absence of one of
the co-heirs from the suit cannot be a ground to dismiss the suit. 44 The Allahabad
High Court had also taken the view that where a Muhammadan heir who is out
of possession brings a suit for possession against his co-heirs and omits to
implead one of the co-heirs, there is no reason why he should not be granted a
decree for so much of his share as is in possession of the heirs who are made
parties to the suit45 . The Rajasthan High Court is also of the same view that a suit
by a Muhammadan heir for partition of share is maintainable even without
impleading other heirs who are not in possession. The reason is that the shares of
Muhammadan heirs are definite and specified.46
Doctrine of Aul or Increase.—It is pretty clear that in the Muslim Law of
inheritance which allots a number or fractional parts of unity to various heirs, it
may happen that the fractions when added together may sometimes be (i) equal

44. Ibrahim v. Jamrood Bee, 2002 AIHC 1963.

45. Zabaishi Begam v. Naziruddin Khan, AIR 1935 All I lO.
46. Mohd. Subhan v. Dr. Misbahuddin Ahmad, AIR 1971 Raj 274.


388 MUSLIM LAW [CHAP.

to unity, (ii) more than unity, or (iii) less than unity. When the sum of fractions is
equal to unity, there is no problem. But if it is more or less than unity, the shares
of respective heirs are reduced or increased respectively. The process whereby
the shares are reduced is called the Doctrine of Increase (Aul); and the process
whereby the shares are increased is called the Doctrine of Return (Radd).
Increase or 'aul' is effected in the following manner:
"If the total of fractional shares allotted to sharers exceeds unity, the
share of each sharer is proportionately diminished by 'reducing the
fractional share, to a common denominator; and increasing the denominator
so as to 'iake it equal to the sum of the numerators."
Illustrations47
(a) Husband .. .. 1/2
2 full sisters . . 2/3
Since the total of 1/2 and 2/3 = 7/6 which is more than unity, doctrine of
'increase' will apply in this case.
First step.—'Reduce fractional shares to a common
Thus, 1/2+2/3 = 3/6+4/6 (here 6 is the common denominator).
Second step. --'Increase the denominator to make it equal to the sum of
numerators, and allow the individual numerators to remain'.
Thus, 3/6+4/6 becomes 3/7+4/7. (Here 7 is the sum of numerators 3 and 4).
The shares are thus proportionately reduced and the sum of fractions comes
equal to unity (3/7+4/7 = 7/7=1).
(b) Husband .. .. 1/2= 3/6 reduced to 3/8.
2 full sisters . . . . 2/3 = 4/6 reduced to 4/8.
Mother . . .. 1/6 = 1/6 reduced to 1/8.
8/6 8/8
Widow 1/4 = 3/12 reduced to 3/15.
2 full sisters.. 2/3 = 8/12 reduced to 8/15.
Uterine sister. 1/6 = 2/12 reduced to 2/15.
Mother 1/6= 2/12 reduced to 2/15.
15/12 15/15
(d) Wife

1/8 = 3/24 reduced to 3/27.
2 daughters / 2/3 16/24 reduced to 16/27.
Mother 1/6= 4/24 reduced to 4/27.
Father 1/6= 4/24 reduced to 4/27.
27/24 27/27

47. Fyzee, at p. 416, Wilson, at p.292.

 INHERITANCE 389

Doctrine of return or Radd.—If the sum total of fractions allotted to

sharers is less than unity (that is, something is left behind after satisfying the
claims of each sharer) and there is no residuary to take the residue, the residue
reverts back to the sharers in proportion of their shares.
Exception.—In the presence of any heir, neither the wife nor husband is
entitled to the 'Return'.
Illustrations48
(a) Mother . . . 1/6.
Daughter .. .. 1/2.
As the total of 1/6 and 1/2 is 2/3, thus 1/3 remains to be distributed. The
doctrine of return would apply.
First step.—'Reduce the fractional shares to a common denominator'.
Thus, 1/6+1/2 = 1/6+3/6 (here 6 is the common denominator).
Second step.—'Decrease the denominator to make it equal to the sum of the
numerators, and allow the individual numerators to remain.'
Thus, 1/6+3/6 becomes 1/4+3/4 (here 4 is the sum of numerators 1 and 3).
The shares are thus proportionately increased, so that their sum becomes equal to
unity (1/4 + 3/4 = 4/4 = 1).
(b) Husband 1/2
Mother . . . . 1/2 (1/3 as sharer and 1/6 by Return).
(c) Wife . . 1/4
Sister (for c) . 3/4 (1/2 as sharer and, 1/4 by Return).
Mother 1/6 increased to 1/5.
Full sisters . . 1/2 = 3/6 increased to 3/5.
U. brother . . 1/6 increased to 115.
5/6 5/5
(e) Husband 1/4 .. .. 4/16.
Mother 1/6 increased tol/4of3/4 =3/16.
Daughter . . 1/2 = 3/6 increased to
3/4of3/4 =9/16.
11/12 = 16/16.
(j) Mother . . . . 1/6 increased to 1/5.
Daughter . . . 1/2 = 3/6 increased to 3/5.
Son's daughter . . . . 1/6 increased to 1/5.
5/6 5/5.

48. MIIa, at pp 81-82.



390 MUSLIM LAW [CHAP.

1/8 (gets no Return) 5/40.

(g) Wife
Mother 1/6 increased to 1/5 of 7/8 7/40.
2 son's daughters 2/3 4/6 increased to 4/5 of 28/40.
7/8
I

23/24 40/40.
(hIV
Wife 1/4 4/16.
Full sister 1/2 = 3/6 increased to 3/4 of
3/4 =9/16.
C. sister • . 1/6 increased to 1/4 3/16.
of 3/4 =
11/12 16/16.
(i) Father's mother 1/6 increased to 1/5
Mother's mothetj
Full sister 1/2-3/6 increased to 3/5.
C. sister
1/6 increased to 1/5.
5/6 5/5.

(j) Father's mother .. 1/6 increased to 115

Mother's mother
Son's daughter .. 2/3 = 4/6 4/5
increased
to
5/6 5/5.

(k) Husband .. .. 1/2

Daughter's son .. 1/2.
Note. In the preRenre of an heir, whether he be of the class of 'distant
kindred' as daughter's son, the husband is not entitled to get any 'return'. The
surplus will, therefore, go to the daughter's son.
(ii) RESIDUARIES. — If there is no sharer, or if there is something left after
giving them their shares, the inheritance devolves upon residuaries in the order
specified in the following table.
TABLE OF RESIDUARIES49
I. DESCENDANTS
1. Son.--Daughter takes as a residuary with the son, the son taking a double
portion.

49. MulIa, at pp. 73-77.

 INHERITANCE 391
xv

nearer in degree excluding the more remote. Two or

2. Son's son h.l.s.—T he
more son's sons inherit in equal shares. Son's daughter h.Ls. takes as a residuary
with an equal son's son. If there be no equal son's son, but there is a lower son's
son, she takes as residuary with him, provided she cannot inherit as a sharer. In
either case, each son's son h.1.s. takes double the share of each son's daughter
h.l.s.
Note.—When the son's daughter h.l.s. becomes a residuary with a lower
son's son, and there are son's daughters h.l.s. equal in degree with the lower
Son's son she shares equally with them, as if they were all of the same grade.
II. ASCENDANTS

3. Father.
4. True grandfather h.h.s.---The nearer in degree excluding the more remote.
III. DESCENDANTS OF FATHER
sister takes as a residuary with full brother, the brother
5. Full brother.—Full
taking a double portion.
6. Full sister.—In default of full brother and the other residuaries above
named, the full sister takes the residue, if any, if there be (1) a daughter or
daughters, or (2) a son's daughter or daughters h.l.s., or even if there be (3) one
daughter and a son's daughter or daughters h.l.s.
sister takes as a residuary with
7. Consanguine brothers.—Consan guine
consanguine brother, the brother taking a double portion.
8. Consanguine sister.—In default of consanguine brother and the other
residuaries above-named, the consanguine sister takes the residue, if any, if there
be (1) a daughter or daughters, or (2) a son's daughter or daughters h.l.s. or even
if there be (3) one daughter and son's daughter or daughters h.l.s.
9. Full brother's son.
10. Consanguine brother's son.
ii. Full brother's son's son.
12. Consanguine brother's son's son.
Then come remoter male descendants of No. 11 and No. 12, that is, the son
of No. 11, then the son of No. 12, then the son's son of No. 11, then the son's
son of No. 12 and so on in like order.
IV. DESCENDANTS OF TRUE GRANDFATHER H.H.S.
13. Full paternal uncle.
14. Consanguine paternal uncle.
15. Full paternal uncle's son.
 392 MUSLIM LAW [CUAP.

16. Consanguine paternal uncle's son.

17. Full paternal uncle's son's son.
18. Consanguine paternal uncle's son's son.
Then come remoter male aescendants of Nos. 17 and 18, in like order and
manner as descendants of Nos. 11 and 12.
Male descendants of more remote true grandfathers come in like order and
manner as the deceased's paternal uncles and their sons and son's sons.
Note.—Each class excludes the next class.
Note on residuaries.—It may be noted that all Residuaries are related to the
deceased through a male.
Residuaries are of three types50:
(a) Residuaries in their own right (these are all males listed in the table of
residuaries above).
(b) Residuaries in the right of another: (these are four female residuaries:
daughter as residuary in the right of the son, the son's daughter h.l.s.
as a residuary in the right of the son's son h.l.s., the full sister in the
right of the full brother, and the consanguine sister in the right of the
consanguine brother).
(c) Residuaries with others (they are full sister and consanguine sister,
when they inherit as residuaries with daughters and son's daughters
h.l.s.)
Sharers who become residuaries.—There are six sharers who under certain
circumstances inherit as residuaries. They are:
(i) Father;
(ii) True grandfather h.h.s.;
(iii) Daughter;
(iv) Son's daughter his.;
(v) Full sister; and
(vi) Consanguine sister.
Out of these, only father and true grandfather could inherit in the double
capacity, i.e. both as a sharer and a residuary. The other four, who are all
females, inherit either as sharer or residuary. "The curious reader may ask why it
is that the said four female relations are precluded from inheriting as sharers
when they exist with males of parallel grade. The answer appears to be this, that
if they were allowed to inherit as sharers under those circumstances, it might be
that no residue would remain for the corresponding males (all of whom are

50. Milla, at pp. 7177

XtVJ INHERITANCE 393

residuaries only), that is to say, though the females would have a share of the
inheritance, the corresponding males, though of an equal grade, might have no
share of the inheritance at all".5'
Illustrations
(The illustrations given here are taken from Mulla, which is a very useful
book).
(a) Son .. .. 2/3 (as residuary).
Daughter .. .. 1/3 (as residuary).
Note.— In the presence of son, daughter cannot inherit as a sharer. The
reason why 213 has been given to son and 1/3 to the daughter is that because son
takes double of what a daughter gets. Since there is unity to be distributed,
hence, two portions of it go to the son and one portion to daughter,
(1=1/3+1/3+1/3 = 2/3+1/3=1).
(b) 2 Sons .. .. 4/7 (as residuaries, each son taking 2/7).
3 Daughters .. .. 3/7 (as residuaries, each daughter taking 1/7).
Note.—Students shall develop an instinct to divide unity into as many
fractions as may be in accord with the rule "son takes double to daughter". In the
above example, suppose you have given one each, to every of 3 daughters, then
the sons shall have two each, that is, four as a whole is required for both the
sons. Now, 4 is given to sons and 3 to daughters; its total comes to 7. Hence if
we divide unity into 7 equal shares, we can assign one each to 3 daughters and 2
each to 2 sons, (1=l/7+l/7+l/7+l/7+l/7+117+ 1/7=4/7+3/7=1).
(c) Husband 1/4 (as sharer).
Mother . 1/6 (as sharer).
Son 213of7/127/18
Daughter . 1/3 of 7/12 = 7/36 (as residuary).
Note.—The residue in the above case is what is left behind after assigning
shares to husband and mother, that is--(1/4+1/6)--7/12. If there are 2 sons and 3
daughters each son would take 2/7 of 7/12 = 1/6, and each daughter 1/7 of 7/12 =
1/12.
(d) 2 Daughters 2/3 (as sharers).
Son's son 1/3 (as residuary).
Son's son's son (excluded by son's son).
Son's son's daughter (excluded both by daughters and
son's son).
(e) Son's daughter 112 (as shares).
Son's son's soir- 1/2 (as residuary).

5I. Mulla, at p. 78.

394 MUSLIM LAW [CHAP.

Note.—The only case in which son's daughter inherits as a residuary with

the son's son (who is a lower son's son) is where she is precluded from
succeeding as a sharer, as shown in Illustration (f) below.
(J) 2 Daughters .. .. 2/3 (as sharer).
Son's daughter .. .. 1/3 of 1/3 = 1/9 as residuaries.
Son's son's son .. .. 2/3of1/3'2/91
Note.—Since there are two daughters, the son's daughter is precluded from
inheriting as sharer. She therefore inherits as a residuary with the son's son (who
is a lower son's son). Please see, Illustration (g).
(g) 2 Daughters .. .. 2/3 (as sharers).
Son's son's son .. .. 2/4 of 1/3 1/6
Son's daughter . . . . 1/4 of 1/3 1/121 as residuaries.
Son's son's daughter .. .. 1/4ofl/31/125
Note.—The son's son's daughter is entitled to inherit as residuary with the
son's son, because both are equal in degrees. This illustration presents two
peculiar features: (1) the son's son's daughter, though remoter in degree, shares
with son's daughter; and (ii) the son's daughter, though a sharer, succeeds as a
residuary with a lower son's son.
(h) Father .. . . 1/6 (as sharer).
Son (or son's son h.1.s.) . . 5/6 (as residuary).
(i) Daughter .. .. 1/2 (as sharer).
Father . . . . 1/6 (as sharer) + 1/3
(as residuary)112
(j) Husband .. .. 1/2 (as sharer).
Mother . . . . 1/6 (as sharer).
Brother 2/3 of 1/3 = 2/9 (as residuaries).
Sister 1/3 of 1/3= 1/9 J
Note.—In the presence of brother, the sister becomes residuary and takes
half of what brother gets, on the principle that male gets double to female.
(k) Daughter .. .. 1/2 (as sharer).
Full sister . . . . 1/2 (as residuary).
Brother's son .. . . (excluded by full sister).
Note.—Here, the sister cannot inherit as a sharer, because of the daughter.
She is regarded a residuary because of the presence of daughter, for there is no
residuary nearer in degree. (Please refresh your memory of the Table of Sharers
and the circumstances under which each gets a share or becomes residuary.
Unless the Tables of Sharers, Residuaries and Distant Kindreds are memorised
thoroughly, the Law of Inheritance cannot be learnt).

XIV] INHERITANCE 395

(1) 2 Daughters 213 (as sharers).

Husband 1/4 (as sharer).
Full sister . 1/12 (as residuary).
Father's paternal uncle's
son - .. .. (excluded by full sister who is a
nearer residuary).
52 Classes of heirs: held—A predeceasing father, leaving behind a son, Father
would get 1/6 in the estate of A.
(m) Daughter . . .. 1/2 (as sharer).
Son's daughter .. .. 1/6 (as sharer).
Mother .. .. 1/6 (as sharer).
Full sister .. .. 1/6 (as residuary).
(n) Daughter .. .. 1/2 (as sharer) 6/12 6/13.
reduced to
Son's daughter .. .. 1/6 (as sharer)-- 2/12 2/13.
reduced to
Husband .. .. 1/4 (as sharer)" 3/12 3/13.
reduced to
Full sister . . . . (excluded) 13/12. 13/13.
(o) Widow .. .. 1/4 (as sharer).
Mother . . .. 1/3 (as sharer).
Paternal uncle .. .. 5/12 (as residuary).
(iii) Distant kindred 53 .—The following is the list of distant kindreds, which
are grouped into four classes as that in case of residuaries:
I. Descendants of the deceased.—(1) Daughter's children and their
descendants.
(2) Children of son's daughters h.l.s. and their descendants.
II. Ascendants of the deceased.—(l) False grandfathers h.h.s.
(2) False grandmothers h.h.s.
III. Descendants of parents.—(l) Full brother's daughters and their
descendants.
(2) Consanguine brother's daughters and their descendants.
(3) Uterine brother's children and their descendants.

52. A widow dies leaving behind only 2 daughters and I full sister. Held by the Supreme Court in
Newannes v. Shaikh Mohamad, AIR 1966 Sc 702, each daughter would get 113 share in the
estate of the widow; remaining 1/3 share would be taken by full sister as residuary.
53. Mulla, at pp. 84-87, Fyzee, at p. 428 sqq.
 396 MUSLIM LAW [CHAP.
(4) Daughters of full brother's Sons h.l.s. and their descendants.
(5) Daughters of consanguine brother's sons h.l.s. and their descendants.
(6) Sister's (full, consanguine or uterine) children and their descendants.
N. Descendants of immediate grandparents (true or false).—(l) Full
paternal uncles' daughters and their descendants.
(2) Consanguine paternal uncles' daughters and their descendants.
(3) Uterine paternal uncles and their children and their descendants.
(4) Daughters of full paternal uncles' Sons h.l.s. and their descendants.
(5) Daughters of consanguine paternal uncles' sons h.l.s. and their
descendants.
(6) Paternal aunts (full, consanguine or uterine) and their children and their
descendants.
(7) Maternal uncles and aunts and their children and their descendants.
and
Descendants of remoter ancestors h.h.s. (true or false).
CLASS I OF DISTANT KINDRED

Principles of distribution and exclusion

Rule L—(a) Members belonging to the class of distant kindred inherit only
in the absence of sharers and residuaries.
(b) Among the distant kindred themselves, Class I (Descendants) exclude
Class II (Ascendants), which in turn exclude Class III (Descendants of parents),
which in turn exclude Class IV (Descendants of grandparents).
Rule II.—Nearer in degree excludes more remote.
Rule IlL Where the degrees are equal, the children of sharers and
residuaries are preferred to those of distant kindred.
Order of succession.—(l) Daughter's children.
(2) Son's daughter.
(3) Daughter's grandchildren.
(4) Son's son's daughter's children and remoter heirs.
(of the above, each entirely excludes the one who follows).
Allotment of shares.—After determining on the above principles who the
heirs are, let us proceed further and allot the shares to each. The following
simple rules must be carefully remembered.
Rule 1.—If the intermediate ancestors do not differ in their sexes, the estate
is to be divided among the claimants per capita, the male taking a double share:
XIV] INHERITANCE 397

Illustrations

(a) 2 sons of daughter (Fatima) - 4/5 (each taking 2/5).

1 daughter of daughter (Kulsum) - 1/5.
(b) sons of daughter's daughter (A) 4/6 (each taking 2/6).
2
2 daughters of a daughter's daughter (B) - 2/6 (each taking 1/6).
Rule 11.—If the intermediate ancestors differ in their sexes, the distribution
will take effect according to the following sub-rules:
Sub-rule (i): Two claimants, two lines of descent.—According to Mulla,
the simplest case is where there are only two claimants, the one claiming through
one line of ancestors, and the other claiming through another line, as shown
below:
Deceased
I
daughter (dead)
I
daughter (dead)
son (dead) daughter (dead)
I
daughter
I
son
According to Abu Yusuf.—The sex of the intermediate ancestors is to be
disregarded, and the sex of present heirs counts. The allocation of share will be:
male and female taking in the proportion of two to one. Thus, in the above
example, daughter takes 1/3 and son 2/3.
But, unfortunately, this simple rule is not followed in India, and the complex
rule of Imam Muhammad is preferred.
According to Imam Muhammad.—This method of distribution is to pause
at each degree where the sexes differ. In the above example, the sexes do not
differ in the first generation (both are daughters); but in the second generation
(one is a son and the other is a daughter). Here, applying the principle that male
takes double to female, dead son gets two shares and dead daughter gets one
share. These shares devolve upon the two present living heirs. Thus, the son gets
one share and the daughter two shares.
Sub-rule (ii): Three claimants, three lines of descent.—Take the example
of a Muslim who dies leaving a daughter's son's daughter, a daughter's
daughter's son, and a daughter's daughter's daughter, as shown below:
398 MUSLIM LAW [CHAP.

Deceased
I I
daughter daughter daughter
son 6/2) daughler (1/4) daughter (1/4)
I
daughter son
I
daughter
The first step is to stop at the first line in which the sexes of the intermediate
ancestors differs, and to assign to each male ancestor a double portion. Thus—
daughter's son = 1/2
daughter's daughter = 1'4 ', Collective share of females = 1/2
daughter's daughter 1/4 J
The second step is governed by the rule that the individual share of each
ancestor does not descend on his or her descendants as in the preceding case, but
the collective share of each male ancestors is to be divided among all the
descendants claiming through them, and the collective share of all the female
ancestors is to be divided among their descendants. Male is given double share.
Now, applying this principle to the above problem, the daughter's son stands
alone and his share descend to his daughter; but the collective share of the two
daughter's daughter is to be distributed among their descendants, on the
principle: double share to male. Thus:
daughter's daughter's son-2/3 of 1/2 = 1/3
daughter's daughter's daughter-1/3 of 1/2 = 1/6
Hence, the full answer to the problem is:
dsd 1/2
dds''1/3
ddd= 1/6
Sub-rule (iii): More than two claimants, two lines.---When there are two
or more claimants through the same intermediate ancestor, there is a further rule
to be applied. Count for each such ancestor, if male, as many males as there are
claimants claiming through him, and, if female, as many females as there are
claimants claiming through her, irrespective of the sexes of the claimants. Take
this example:
Deceased

daughter daughter
I
son (4/7) daughter (3/7)
I
I I 'I
2 sons son 2 daughters
xiv] INHERITANCE 399

Here, daughter's son (in the second degree) will count two males because he
has two surviving heirs, and the daughter's daughter will count as three females
because three of her descendants are among the surviving heirs. Thus we have:
daughter's son = 4/7
daughter's daughter 3/7
The 4/7 of daughter's son will go to his two sons equally, each taking 2/7.
The 3/7 of daughter's daughter will go to her son and two daughters, the son
taking twice the share of the daughter. Thus—
daughter's daughter's son-2/4 of 3/7=6128.
(each) daughter's daughter's daughter-1/4 of 3/7=3/28. Thus, the final
shares will be:
dss = 8/28
dss8/28
dds = 6/28
ddd=3/28
ddd = 3/28
CLASS II OF DISTANT KINDRED
Rules of distribution.—(i) The nearer in degree excludes more remote.
(ii) Among claimants in the same degree, those connected with the deceased
through sharers (Koranic heirs) are preferred to those connected through distant
kindred.
(iii) Where there are claimants both on the paternal side and on the maternal
side, 2/3 is assigned to the paternal side and 1/3 to the maternal side. The portion
assigned to the paternal side is then divided among the ancestors of the father,
and the portion assigned to the maternal side among the ancestors of the mother.
CLASS III OF DISTANT KINDRED
54 Rule (1).—The nearer in degree excludes the more remote. Thus, the
children of brothers and sisters exclude their grandchildren; the sister's son
excludes the brother's son's daughter.
Rule (2).—Among the claimants in the same degree of relationship, the
children of residuaries are preferred to those of distant kindred. Thus a full
brother's son's daughter, being a child of a residuary (full brother's son), is
preferred to full sister's daughter's son who is the child of a distant kins woman
(full sister's daughter).

54. MulIa, at pp. 94-96.

 400 MUSLIM LAW [CHAP.

Rule (3).—In the same degree of relationship, subject to rule (2) above, the
descendants of full brothers exclude those of consanguine brothers and sisters.
But the descendants of full sisters do not exclude the descendants of consanguine
brothers and sisters, and the latter take the residue, if any, after allotting shares to
the descendants of full sisters and of uterine brothers and sisters. The
descendants of uterine brothers and sisters are not excluded by descendants of
either full or consanguine brothers or sisters, but they inherit with them.
Order of succession.—(1) Full brother's daughters, f.s.'s son and d.,
u.b.'s and u.s.'s son and d.
(2) F.s.'s son and d, u.b.'s son and d, u.s.'s son and d, con b's d's and COfl S's
children, the consanguine group taking the residue.
(3) Con. b's d.s., con.s's children, u.b.'s and u.s.'s children.
(4) F.b.'s son's d.s (children of residuaries).
(5) Con. b.'s son's d.s (-do-)
(6) F.b's d's children, f.s.'s grandchildren, and u.b. and s's grandchildren.
(7) F.s.'s g. children, g. children of u.b.s and s.s, children of con b's d., g.
children of con.s. (con—group taking residue).
(8) Con. b's d's children, con. s's g. children, u.b. and s's g. children.
(9) Remoter descendants of brothers and sisters in like order.
Of the above groups each in turn must be exhausted before any member of
the next group can succeed.56
CLASS IV OF DISTANT KINDRED
57 0rder of succession—(a) P. (paternal) and M. (maternal) uncles and
aunts of the deceased, other than his f. and con. p. uncles who are residuaries.

55. Notes-
f.=fulI
Con.''consangi1ine
s.=sister
s.s=sisters
b.=brother
b.s=brothers
u.=uteflne
d.=daugther
d.sdaughters
g.children=grandchildrcn
p.=paternal
m.=maternal
h.l.s.how low soever
h.h.s. = how high soever
56. For allotment of shares, see, Mulla, at pp. 96-101.
57. lbid,atp. 101.
 xiv] INHERITANCE 401

(b) The descendants of the above h.1.s., other than Sons h.1.s. of his
(deceased's) f, and con. P. uncles (they are residuaries) the nearer excluding the
more remote.
(c) P. and M. uncles and aunts of the parents, other than the f. and con.
uncles of the father (they are residuaries).
(d) The descendants h.l.s. of all P. and M. uncles and aunts of the parents,
other than Sons h.l.s. of the f. and con, paternal uncles of the father (who are
residuaries).
(e) P. and M. uncles and aunts of the grandparents, other than the full and
consanguine paternal uncles of the father's father who are residuaries.
(/) The descendants h.l.s. of all the P. and M. uncles and aunts of the
grandparents, other than sons h.l.s. of the f. and con. P. uncles of the father's
father (they being residuaries), the nearer excluding the more remote.
(g) Remoter uncles and aunts and their descendants in like manner and
order.
Of the above groups each in turn must be exhausted before any member of
the next groups can succeed.58
These classes consist of collaterals. According to Fyzee, cases relating to
these classes "arise but rarely .... it has been thought advisable not to increase the
student's burden by a full treatment of the subject". I gratefully adopt this
observation. The curious reader, "intent upon delving into the mysteries of this
vast and complicated class, are referred to the standard works of Wilson, Tyabji
and Mulla...."
B. SWA LAW OF INHERITANCE59
The Shias changed the pre-Islamic Law by altogether abolishing the
differences between the agnates and cognates as also males and females. The
Shia system (unlike the Hanafi). shuffled all the heirs, cognates and agnates,
males and females, and then classified them for order of succession. According
to Sunni, the daughter's son (being cognate) was relegated to the last class of
heirs distant kindred. Tie Shias belonged to the party of Au. He being son-in-
law of Muhammad, this daughter's sons were entitled to a much higher position.
So the departure from the pre-Islamic agnatic predominance system.
The heirs then naturally fell into the following classes:
(1) Descendants h.l.s. whether through males or females.
(2) Ascendants—(a) immediate (parents) and (b) higher (g.parents
h.h.s.)

58. For further details as to shares, see, Mulla, at pp. 102-107.

59. See, Mulla, at pp. 110-134; Fyzee, at pp. 441464.
402 MUSLIM LAW [CHAP.

(3) Collaterals—(a) brothers and sisters (b) uncles and aunts or their
descendants.
The heirs were classified on following principles for determining the
order of succession:
(1) The descendants (males or females) were given primary position.
Only parents succeeded with them—The first group.
(2) Higher ascendants succeeded with nearest collateral (=brothers and
sisters).—The second group. The rest of the collaterals were in the last class
of heirs—The third group.
(3) The rule of proximity was observed within each class.60
According to the Shia Law, there are only two groups of heirs:
(1) Heirs by consanguinity (blood relations); and
(2) Heirs by marriage (husband and wife).
(I) Heirs by consanguinity are further divided into three classes:
Class L—(i) Parents;
(ii) Children and other lineal descendants h.l.s.
Class II.—(i) Grandparents h.h.s. (true and false).
(ii) Brothers and sisters and their descendants his.
Class III.—(i., i-aerria, and
(ii) Maternal, uncles and aunts of the deceased, and of his parents
and grandparents h.h.s. and their descendants h.l.s.
The Class I excludes Class II, and Class II excludes Class III. But the heirs
of each class, whether they are of sub-class (i) or (ii), inherit together, the nearer
in degree excluding more remote.
(2) Heirs by marriage.—Under no circumstances the husband or wife may
be excluded. They inherit together with the nearest consanguine heirs.
Sharers and residuaries in Shia Law.—Shias divide heirs into two classes,
namely sharers and residuaries; there is no class corresponding to the "distant
kindred" of Sunni Law.
The division of heirs into the above two classes is for the purposes of
determining the shares of individual heirs.
There are nine sharers who take specific shares as shown in the table below.
The descendants (h.l.s.) of sharers are also sharers.
Those heirs who are not included in the class of sharers are all residuaries.
The descendants (h.l.s.) of residuaries are also residuaries.

60. Verna, at p.417.

xiv] INHERITANCE 403

TABLE OF SHARERS (SHIA LAW)

(Mulla, p. 103)
Sharers Normal share Conditions I Share as varied
under which the by special
of one of two or more share is circumstances
collectively inherited
I. Husband 1/4 . .
When there is a 1/2 when no
lineal such descendant.
descendant.
2. Wife' 1/8 1/8 When there is a 1/4 when no
lineal such descendant.
descendant,
3. Father 116 .. When there is a (If there be no
lineal lineal
descendant, descendent the
father inherits as
a residuary.)
4. Mother 1/6 .. (a) When
there is a
lineal
descenda
nt;or
(b) When 1/3 in other
there are cases.
two or
more full
or
consangu
inc
brothers,
or one
such
brother
• and two
such
sisters, or
four such
sisters,
with the
father.
S. Daughter 1/2 213 When no son. (With the son
she takes as a
residuary.)
6.-. Uterine 1/6 1/3 When no
Lbrother parent, or lineal
7.J or sister descendant.
 MUSLIM LAW [CHAP.
404

Sharers Normal share Conditions Share as varied

under which the by special
of one of two or more share is circumstances
collectively inherited
8. Full sister 1/2 2/3 When no (The full sister
parent, or lineal takes as a
descendant, or residuary with
full brother, or the full brother
father's father. and also with the
father's father.)
9. consanguine 1/2 2/3 When no (The
sister parent, or lineal consanguine
descendant, or sister takes as a
full brother or residuary with
sister, or the consanguine
consanguine brother and also
brother or with the father's
father's father. I father.)

Note:—The descendants h.l.s. of sharers are also sharers.

Principles of distribution of property.—(i) If the deceased leaves only one
heir, the whole of property goes to him. (The older view was that if the sole heir
was wife, she would take her normal share and the rest would escheat to the
Imam. But this view is not now followed in Indian Courts; wife is equally
entitled to inherit the whole of property).
(ii) If the deceased leaves more than one heir, then the first step is to assign
shares to the heirs belonging to sharer class.
The following two rules are applied in order to determine the heirs and their
shares:
(a) The nearer in degree excludes more remote.—(For example, A dies
leaving a son B and a grandson C from a predeceased son. Here B will exclude
C.)
(b) Stirpital succession.—Succession among descendants in each of the
three classes of heirs (i.e. the three classes of heirs by consanguinity) is per
stripes, and not per capita. Thus, for example, if A dies leaving behind three
grandsons, of whom one is from one predeceased son, and two are from another
predeceased son:
Deceased

deceas[d son de son

(A) Son (112) (B) Son 1/4 (C) i on (l/4)

 xlv]
INHERITANCE
405
then A will get a share equal to that of what his father,
if alive, would have got,
i.e., 1/2; while B and C
will equally share the portion which their father would
have inherited if alive (i.e. 1/2).
Rules of succession among heirs of Class
1.—The persons who are first
entitled to succeed to the estate of a deceased Shia Muslim are the heirs of Class
I along with the husband or wife, if present. Among the heirs of Class
degree will exclude more remote. I, nearer in

In case the heirs of Class I include g

then- randchildren of predeceased children,

-the children of each son take the portion which their father, if living,
would have taken.
—the children of each daughter take the portion which their mother, if
living, would have taken.
(The same rule applies for remoter lineal descendants).
MODE OF DISTRIBUTION
Step 1.— Assign share to the husband or wife.
Step II.— Assign shares to those who can inherit as sharer only (i.e. mother
and uterine brother or sister).
Step 111.— Divide the residue, if any, among the residuaries.
Step IV.—
When there is no residuary, and the sum total of shares is less than
unity, apply Doctine of Return, and if
it is greater than unity,
apply Doctrine of Increase
Illustrations

(a) Husband .. .. 1/2 (as sharer):'

Mother .. .. 1/3 (as sharer).
Father .. .. 116 (as residuary).
(b) Wife .. .. 1/4 (as sharer):
Mother .. .. 1/3 (as sharer).
Father .. .. 5/12 (as residuary).
(c) Father .. ..
1/6 (as sharer, because there are
daughters).
Mother .. .. ' 1/6 (as sharer).
2 Daughters .. .. 2/3 (as sharer).
(a) Take the example of the following genealogical tree:


MUSLIM LAW (CHAP.

406

Deceased

(A) (B) (X) (Y)

Son (pre- Son (p.d.) daughter daughter

deceased) (p.d.) (p.d.)

TI I I
Son daughter daughter son daughter son
aS! GD! GD2 GS2 GD3 GS3
Here, the two daughters, X and Y, if living would have taken as residuaries
with the two sons A and B according to the rule of the double share to the male,
so that A and B would each have taken 2/6 and X and Y would each have taken
1/6.
A's shares 2/6 will pass on to his son and daughter according to the rule of
the double share to the male, so that GSJ will take 2/3 of 2/6 = 2/9, and GDI will
take 1/3 of 2/6 = 1/9.
B's share 2/6 will pass on to his daughter GD2.
The share of X is 1/6. It will be divided between her son and her daughter
according to the rule of double share to male: so that GS2 will take 2/3 of 1/6 =
1/9, and GD3 will take 1/3 of 1/6=1/18.
Y's share 1/6 will pass on to her son GS3.
The shares will thus be 2/9+119+2/6+1/9+l/18+1/61
Rules of succession among heirs of Class 11.—If there are no heirs of Class
I, the estate will devolve upon the heirs of Class II after deducting the share of
husband or wife, if any. The rules of succession among the heirs of Class II are
different according as to the surviving relations arc:
(1) Ascendants, without collaterals;
(2) Collaterals, without ascendants;
(3) Both ascendants and collaterals.
1. Ascendants, without collaterals.—After assigning the share of the
husband and wife, divide the residue according to the following rules:
(1) Assign 1/3 of the estate to the maternal side, and the residue to the
paternal side.
(ii) Maternal side.—The maternal grandparents take their portion, the 1/3,
and divide it between themselves, male and female sharing equally.
(iii) Paternal side.—'IJien take the paternal side; the residue is to be
divided according16 the rule double share to the male.
 xlv] INHERITANCE 407

Illustrations

Father's father . . . . 2/3 of 2/3 = 4/9 = 8/18.

Father's mother (2/3) .. 1/3 of 2/3 = 2/9 = 1/18.
Mother's father . . . . 1/2of1/3= 1/6=3/18.
(1/3)
Mother's mother} .. .. 1/2of1/3= 1/6=3/18.
2. Collateral, without ascendants.—(a) Assign the share of husband and
wife, if any;
(b) Divide the residue according to these rules:
(i) brothers and sisters of the full blood exclude consanguine brothers
and sisters:
(ii) uterine brothers and sisters are not excluded by full or
consanguine brothers and sisters; they take 1/6 or 1/3 according to
their number;
(iii) full, and in their absence, consanguine brothers take the residue;
(iv) full sisters (without full brothers); or, failing them, consanguine
sisters (without consanguine brothers) take the Koranic share of
1/2 or 2/3 according to their number;
(v) the full or consanguine brother takes double the share of the sister,
the uterine brothers and sisters take equally, brother and sister
sharing alike.
Illustrations
(1) One full brother (or in his absence, consanguine brother), there being no
other claimant, takes the whole estate.
(2) Two such brothers divide the estate equally.
(3) Two full sisters and one full brother. Estate divided into four shares-
fb.=1/2, fss = 1/4 each.
(4) One single sister, full or consanguine. 1/2 as Koranic heir, 1/2 by return.
Descendants of brothers and sisters only.—If there are no brothers or
sisters or ancestors, assign the share of husband or wife and divide the residue as
follows:
(i) The principle of stirpital succession must be followed. The share of a
full or consanguine brother is allotted to his descendants, and is
divided according to the rule of double share to the male.
(ii) The share of each uterine brother or sister must be allotted to his or her
descendants, and is divided so that male and female share alike.
(iii) If there are no children of brothers or sisters, remote descendants take
according to the above principles (y).
 MUSLIM LAW [CHAP.
408
Illustrations

(1) Husband 1/2, Koranic heir.

2 Uterine brother's daughter = 1/6, Koranic share of her father.
3) Full brother's daughter = 1/3, residual portion of the father.
= Excluded by full brother's daughter.
(4) Consanguine brother's son
3. Ancestors plus collaterals.—If the deceased leaves grandparents, in
addition to brothers and sisters or their descendants, first, assign the share of the
husband or wife, if any, and then divide the residue in the following manner:

(i) A paternal grandfather counts as a full or consanguine brother; and a

paternal grandmother as a full or consanguine sister.

(ii) A maternal grandfather counts as a uterine brother; and a maternal

grandmother as a uterine sister.
On failure of the grandparents, remoter ascendants inherit on the same
principles; and on the failure of brothers and sisters, their decendants take per
stripes and inherit on similar principles (a).
Illustrations

(1) Paternal grandfather 2/3

(=Full brother) I
Full sister -
(2) Uterine brother )
Maternal grandmother =1/3 Koranic share, each takes 1/6.
(=Uterine sister) L = 2/3 Koranic share.
2 Full sisters J
(3) Mother's father (ub.) 1/6=3/18
} 1/3 as Koranic heirs.
Mother's mother (=us.) 1/6=3/18
Rules of succession among heirs of Class III.—If there are no heirs of the
first or second class, the estate (minus the share of the husband or wife, if any)
devolves on the heirs of the third class in the order given below:
(I) Paternal and maternal uncles and aunts of the deceased;

(2) Their descendants h.l.s., the nearer in degree excluding the more
remote;
(3) Paternal and maternal uncles and aunts of the parents;
(4) Their descendants h.l.s., the nearer in degree excluding the more
remote
(5) Paternal and maternal uncles and aunts of the grandparents;
XIV] INIIFRflACE
409
(6) Their decendants h.Ls., the nearer in degree excluding the more
remote;
(7) Remoter uncles and aunts and their descendants in like order.

Of the above groups each in turn must be exhausted before any member of
the next group can succeed.
Exception—If the only claimants be the son of a full paternal uncle and a
consanguine paternal uncle, the former, though he belongs to group (2), excludes
the latter who is nearer and belongs to group (I).
Principles of distr ibution.—The most important rules are-
(i) to assign 2/3 of the estate to the paternal side and 1/3 to the maternal
side;
(ii) to divide Ec
paternal 2/3 among paternal uncles and aunts, as if they
were brothers and sisters, that is:
(a) to assign 1/3 or 1/6 among the uterine uncles and aunts, male and
female taking in equal proportions;
(b) to assign the remainder (2/3 or 5/6) among the full paternal uncles
and aunts; or failing them to the consanguine paternal uncles and
aunts. In both these cases, the distribution is according to the
double share to ne male;
(iii) to divide the maternal 1/3 among the maternal uncles and aunts in the
following manner:
(a) assign to the uterine uncles and aunts 1/3 of the maternal portion,
if there be more than two, or 116 if there be only one; and
(b) divide the remainder (2/3 of the maternal portion) among full
maternal uncles and aunts, and failing them, among the
consanguine maternal uncles and aunts.
In case (iii), (a) and (b), males and females take equally.
(iv) If there be no uncle or aunt on Cie maternal side, the paternal side
takes the whole of the estate; and similarly , where there are no
claimants of the paternal side, the maternal side takes the inheritance
exclusively.

Illustrations
1 Full paternal uncle - 5/6 x 2/3 = 5/9
2/3
f Consanguine paternal uncle - excluded by full paternal uncle.
Uterine paternal uncle -1/6 x 2/3 = 1/9

1 Full maternal uncle 5/6x 1/35/18.

1/3
f Consanguine maternal uncle—excluded by full maternal uncle.
Uterine materajl uncle -1/6 x 1/3 1/18.
 MUSLIM LAW [CHAP.
410

Doctrine of "return" in Shia Law.—If there is a residue left after

satisfying the claims of sharers, and there are no blood relations in the class to
which the sharers (Koranic heirs) belong, the residue reverts to the sharers
proportionately (This rule is subject to three exceptions).
Illustrations
(a) Uterine Sister . . . . 1/6 increased to 1/4.
Consanguine sister . . .. 1/2 = 3/6 increased to 3/4.

(b) Mother . . . . 1/6 increased to 1/4.

Daughter . . . . 1/2 = 3/6 increased to 3/4.
Brother . . . . (excluded, as being an heir of the
second class).
Exception I Spouse.—Neither the husband nor the wife is entitled to the
'return', if there is any other heir.
Illustrations

Husband .. .. 1/4.
Father . . . 1/6 increased to 1/4 of 3/4 = 3/16.
Daughter .. 1/2 = 3/6 increased to 3/4 of 3/4 =
..
9/16.
Exception II: Mother.—If the deceased leaves his mother, father and one
daughter, and also-
(i) two or more full or consanguine brothers; or
(ii) one such brother and two such sisters, or
four such sisters,
the brothers and sisters, though themselves excluded from inheritance as being
heirs of Class Il, prevent the mother from participating in the return, and the
surplus reverts to the father and the daughter proportionately to their respective
shares.
Illustrations
Mother .. .. 1/6.
Father . . .. 1/6 increased to 1/4 of 5/6 = 5/24.
Daughter . . .. 1/2 = 3/6 increased to 3/4 of 5/6 =
15/24.
2 full brothers .. .. (excluded).
xiv] INHERITANCE 411

Exception III: Uterine brother and sister.—Where uterine brothers and

sisters survive with full sisters, the uterine brothers and sisters do not participate
in Return (This rule does not apply to consanguine sisters).

Illustrations

(a) Uterine brother . . .. 1/6.

Full sisters .. . . 1/2 (as sharer) + 1/3 (by Return) =
5/6.
(b) Wife .. . . 1/43/12.
Uterine sister . . .. 1/6 = 2/12.
Full sister . . .. 1/2 (as sharer) + 1/12 (by Return) =
7/12.
Doctrine of Increase in Shia Law.—Shia Law does not recognise 1-lanafi
doctrine of Increase (Aul). Shia Law says that if the sum total of the shares
exceeds unity, the fraction in excess of the unity is deducted invariably from the
share of-
(i) the daughter or daughters;
(ii) the full or consanguine sister or sisters.
Illustrations

(a) Daughter 1/2 = 6/12 reduced to (6/12-1/12)

=5/12.
Father 1/6=2/12 2/12.
Husband 1/4 = 3/12 3/12.
Mother 1/6=2/12 2/12.

13/12 12/12.
(b) Full sister 1/2 reduced to (1/2-1/6) 1/3.
Husband 1/2.
Uterine brother 1/6.

DISTINCTIONS BETWEEN SHIA AND

SUNNI LAW OF INHERITANCE
"The starting point of both (the systems) is the fixed and immutable text
of the Koran—for the devout Muslim, the word and voice of God Himself.
How and why have these differences arisen? What are the causes—
historical, political, economic and social—which have led to this puzzling
result?"6'

61. Fyzee, at p.464.

412 MUSLIM LAW [CHAP.

There can be no doubt that the basic reason for the differences between the
two systems was political rather than juristic. According to J.N.D. Anderson, it
was Shias' allegiance to the descendants of the Prophet through his daughter
Fatima that prompted them to deny any priority of agnates over cognates. This
denial in itself involved the building of a new system quite distinct from the pre-
Islamic system, which has its influence on the Hanafi system.
This political tinge may be found in the special case where full uncle's son
co-exists with a consanguine uncle. Shias give precedence to the full uncle's son,
directly contrary to the general rule that preference of full blood over half blood
is necessary only when the claimants are equal in degree. This solitary exception
can be explained only in terms of their allegiance to Ali (the Prophet's full
uncle's son) in preference to Abbas (his consanguine uncle).
Moreover, Shias disregard the details of Sunni system that rest on the
decisions of the first three Caliphs, Abu Bakr, Umar and Usman.
According to Tyabji, 62 historically, the basis of both the systems is the
customary law of pre-Islamic Arabs. Both systems alter the customary law in
accordance with the Koranic injunctions. But, whereas the Hanafis interpret the
Koran strictly, keeping the substratum of the customary law intact, and
superimposing thereon the provisions of the Koran, the Shias interpret the Koran
in a wider sense: they interpret it as altering the old principles themselves, and as
giving rise to z. ri---,k set of principies.
Each case mentioned in the Koran is taken by the Hanafis as a specific
amendment of that particular incident of the customary law; by the Shia it is
interpreted as an instance, which has to be generalized and applied universally
wherever same or similar circumstances arise.
In his book Conflicts and Tensions in Islamic Jurisprudence 63 Noel S.
Coulson beautifully sums up the above difference by observing thus:
"In the contemplation of Sunnis, where the Koran did not expressly
reject a customary rule, it tacitly ratified it The result of this appivaeli
was—that the Sunni Law of Succession, gave pride of place to the tribal
heirs of the deceased. The women to whom the Koran gave rights of
inheritance for the first time are entitled, in appropriate circumstances, to the
fractional portion of the estate which the Koran allots to them. But where a
male agnate relative of the deceased survives, this will be the limit of their
entitlement. The male agnate, however distant a relative he might be, will
step in and claim the residue of the estate; for the female, however close a
relative she might be, she does not have the status to exclude him from
succession. Hence, if a Sunni Muslim dies intestate, survived by a daughter

62. Tyabji, at p. 827.

63. University of Chicago Press 1969.

Aft
 XIV] INHERITANCE 413

and a distant male agnatic cousin, the daughter will be restricted to a portion
of one-half of her father's estate, and the cousin will inherit the remaining
one-half as residuary heir.
For the Shia, however, the Koranic legislation was far from being
merely a series of piecemeal reforms. They maintained that the Koran laid
down the basic elements of an entirely novel legal system, including a
system of succession. It obliterated completely the pre-existing customary
law. Any rule of the customary law which was not expressly ratified by the
Koran was tacitly rejected. And, therefore, because the Koran nowhere
expressly ratifies the pre-eminent claims of the male agnates, as such to
inheritance, they have no privileged position in the Shii scheme of
succession. One of the Shia leaders is supposed to have expressed this
principle in no uncertain terms. 'As for the male agnates,' he declared, 'dust
in their teeth'. On this basis Shia Law marshals all relatives, male and
female, agnate and otherwise, into a single comprehensive scheme of
priorities based exclusively upon the nearness of their relationship with the
deceased. Within this scheme any descendant of the deceased, male or
female, has absolute priority over any collateral; so that the daughter of a
deceased Shia Muslim will totally exclude his brother, and, a fortiori, any
more distant male agnate such as a cousin, from succession and will inherit
the whole of her father's estate.1164
The basic points of difference are as follows65:
(1) Principle of agnacy.—Hanafis recognised the pre-Islamic custom of
giving preference to male over female. The text of Koran was not taken to alter
or affect the basic conception existing in Arabia regarding proximity in kinship.
The asabat (agnatic heirs) remained the most important heirs.
Shias.—The Shiites completely destroyed this principle of agnacy. "As for
the asabat, dust in their jaws," Imam Jafar-as-Sadici is reported to have said.
Unlike the Sunnis, the general provisions of the Koran with reference to
inheritance were interpreted to place both agnates and cognates on equal footing.
(2) Classification of heirs.—Hanafis—Three classes:
(1) Koranic heirs;
(2) Agnatic heirs;
(3) Uterine heirs.
This division of heirs into three classes was due to the fact that Hanafis leave
the pre-existing rights of the "asaba"—who were the customary-heirs—intact,
and giving rights to those mentioned in Koran.

64. N.J. Coulson, Conflicts and Tensions in Islamic Jurisprudence (1969) at pp. 32-33.
65. Fyzee, at pp. 464-467. -
 MUSLIM LAW [CHAP.
414

Shias.—The Shias do not leave the old rules of law as they were, but replace
them by a set of rules consisting of a fusion of the customary law and the Islamic
reforms and thus, among Shias, the classification of heirs becomes important
only when we have to deal with the question of the quantum of shares, and not
for the purposes of considering which persons are entitled to succeed.
(3) Stirpital succession—Shias.—The verse that a male shall have twice as
much as a female is interpreted by the Shias as changing the entire principle of
distribution prevailing in the pre-Islamic times, and introducing a system of
distribution on the basis of per stripes instead of per capita. The Shiite theory of
Immate is based on the principle that excellence is due to heredity and a noble
pedigeree. Circumstances like the tragedy of Karbala tended to deepen the
feeling and thus we see the theory of law that the daughter's children stand in the
shoes of daughter, and the sister's children inherit in the right of the sister; and
this principle was systematically applied in every case.
(4) Females however remote inherit on the analogy of the daughter or
sister.—The Koranic provision that the daughter is entitled to succeed with the
son is interpreted by the Shiites as applicable to all female heirs. The Shiite
jurists take the provision of the Koran as not restricted to the individual
instances of the daughter or sister, as establishing a new principle for the benefit
of females.
and the
(5) The versr ahe thc thi'c prc::irnLy af per. and children
provision that two ought to succeed concurrently, has received slightly different
verbal interpretations by the two schools, but the results are very far-reaching.
Under Sunni system, the meaning of the Koran was taken more literally,
whereas Shias extract a principle from the particular instance. Shias' method is
characteristic and throws light on their whole system.
Shias reason that if F (Father) is entitled to succeed with his own
grandchildren, h.l.s., then FF should also inherit with his grandchildren (i.e.,
with Brother and Sister of the deceased, because, they are no one else but the
grandchildren of the FF). But under Sunni Law, FF excludes Brother and Sister
(i.e. his own grandchildren) [refer to Table of Residuaries]. Therefore, in Shia
system, FF inherits with Brother and Sister and does not exclude them.
(6) Other miscellaneous points of difference.—(i)
Under Sunni Law, the
distant kindred are postponed in favour of sharers and residuaries—while under
Shia Law, they inherit along with sharers and residuaries.
(ii) The doctrine of increase is applied to all sharers alike under the Sunni
Law, whereas under the Shia-Law it operates against daughter and sister only.
(iii) The doctrine of return, under Sunni Law, does not apply to wife and
husband in the presence of any other heirs. However, if there are no sharers, then
xiv] INHERITANCE 415

both of them get by return. Under Shia Law, the wife can never get through
'return'. in India, however, the Sunni Law of return is applied to the wife also.
(iv) The Sunnis apply the principle nearer in degree excludes more remote
only to the agnatic heirs but the Shias apply it to all cases without distinction of
sex.
(v) The Suiinis do not make any distinction between real and personal
properties; the Shias, however, observe such a distinction in the case of a
childless widow who is not permitted to take any share in her husband's
immovable property:
(vi) The Sunnis do not recognise any right of primogeniture (elder son
getting preference over younger ones); Shias recognise it to some extent (eldest
son is entitled to his deceased father's word, wearing apparel, and the Koran).
(vii) Principle of representation: (See, Section 5 of this Chapter).
(7) Conclusion.—In the last, it ought to be emphasised that it is not known
exactly, how and why these differences had arisen? What were the causes—
historical, political, economic and social—which lead to this puzzling result?
Fyzee hopes "that someone with ability and experience will take an early
opportunity to proceed on a voyage of discovery".
 Bibliography
1. Abdur Rahini, Muhammadan Jurisprudence
2. Aquil Ahmad, Text Book of Mohammedan Law (Central Law
Agency, Allahabad 1982)
3. M.B. Ahmad, Administration of Justice in Medieval India
(Aligarh 1941)
3-A K.N. Ahmad, Muslim Law of Divorce (1978)
4. J.N.D. Anderson, "Islamic Law in Africa: Problems of Today
and Tomorrow", in Changing Law in Developing Countries
(London 1963)
5. Anderson "Islamic Law of Testate and Intestate Succession and
the Administration of Deceased Persons' Assets", in Tahir
Mahmood (Ed.), Islamic Law in Modern India, ILl, 1972
6. Anderson, Muslim Personal Law in India, in Tahir Mahmood,
Islamic Law in Modern India, ILl, 1972
7. Anderson, "Significance of Islamic Law in the World Today" at
9, American Journal of Comparative Law (1960)
8. Baillie's Digest
9. A.K. Bhandari, "Adoption Amongst Mohammedans - Whether
Permissible in Law", (2005) 47 JILl 110
10. V.P. Bharatiya, Religion—State Relationship and Constitutional
Rights in India (Deep & Deep, 1987)
11. Bharatiya Religious Freedom and Personal Laws, in Madhav
Menon (Ed.), National Convention on Uniform Civil Code for
All Indians, Bar Council of India Trust, New Delhi 1986


Bibliography 417

12. Carroll Lucy, "Religious Conversion and Polygarnus Marriage"

at p. 39 Journal of the Indian Law Institute (1997) at p.272
13. Carroll Lucy and Harsh Kapoor, Talak-i-Tafwid: The Muslim
Woman's Contractual Access to Divorce - in 'an information
Kit', Readers and Compilations Series, published by Women
Living under Muslim Laws, 1996
13-A. Constituent Assembly Debates (CAD) Vol. VII
13-B. Noel J. Coulson, Conflicts and Tensions in Islamic
Jurisprudence (University of Chicago Press, 1969)
13-C. Delhi Law Review, Vol. XXV (2003)
14. Vasudha Dhagamwar, "Towards Uniform Civil Code", in
Menon, N.R. Madhava, (Edn.) National Convention on Uniform
Civil Code for All Indians', Bar Council of India Trust, New
Delhi 1986.
14-A. Dharinayug, 8th April, 1973
14-B. Daily Bulletin, Vol. XXVI, Session of the International
Congress of Orientalists, 9th January 1964, New Delhi at P. 11
15. Paras Diwan, Dowry and Protection to Married Women (Deep
& Deep, New Delhi 1987)
16. Paras Diwan, Muslim Law in Modern India (Allahabad Law
Agency, 1985)
17. Paras Diwan, The Law of Parental Control, Guardianship and
Custody of Minor Children (1973)
18. Asgar Ali, Engineer "Islam and Women", The Indian Express,
5th August 993, New Delhi
19. A.A.A. Fyzec, Outlines of Mohammedan Law (3rd Edn., 1964)
20. A.A.A. Fyzee, A Modern Approach to Islam (Asia 1963)
21. A.A.A. Fyzee, "The Muslim Wife's Right of Dissolving her
Marriage" (1936) 38 Born LR, LJ 113
22, A.A.A. Fyzee, "Arabs" in Encyclopaedia Britannica,. Vol. II
(13th Edn.) at p. 284
418 Muslim Law

India,
22-A. A.A.A. Fyzee, Cases in the Muhammadan Law of
Pakistan & Bangladesh (2nd Edn. by Oxford University Press,
New Delhi 2005)
23. Ibrahim Abdel Hamid, "Dissolution of Marriage", Islamic
Quarterly Vol. III (1956) at p. 166 and Vol. IV (1957) at p. 3

24. S.M. Hasan, "Muslim Law of Legitimacy and Section 112 of the
Indian Evidence Act", in Tahir Mahmood (Ed.), Islamic Law in
Modern India, New Delhi, ILl, 1972.
25. Athar Hussain, The Prophet of Islam, 1-lanidard National
Foundation, Delhi
26. S. Jaffer Hussain, "Judicial Interpretation of Islamic
Matrimonial Law in India", in Tahir Mahmood (Ed.), Islamic
Law in Modern India, ILl, 1972.
27. Ikram, Muslim Civilisation in India, edited by A.T. Ambric
(Columbia University Press, 1964)
28. Mohammad Imam (Ed.). Minorities and the Law. ILl, 1972
28-A. Indian Express, 29th June 1986 and 17th May 1985, and 10th
October 1993 (New Delhi Edn.)
29. M.U.S. Jung, A Digest of Anglo-Muslim Law (Allahabad 1932)
30. S.A. Kader, Muslim Law of Marriage and Succession in India
(Eastern Law House, Calcutta 1998)
31. Harsh Kapoor, Lucy Carroll and Harsh Kapoor - see .supiu

32. S.A. Karim, "Muslim Polygancy and Special Marriage Act"

(1992)1 KLT3 atp.6
33. Danial Latifi, "Law of Family Wakf; Need for Reconsideration",
in Tahir Mahmood (Ed.), Islamic Law in Modern India, ILl,
1972 at p. 34
34. Tahir Mahmood, An Indian Civil Code and Islamic Law
(Tripathi, Mumbai 1976)

35. Tahir Mahmood, Family Law Reform in the Muslim World

 Bibliography 419

36. Tahir Mahmood, The Muslim Law of India (2nd Edn., 1982 Law
Book Co., Allahabad)
37. Tahir Mahmood, Islamic Law in Modern India, ILl, 1972
37-A. Tahir Mahmood, "Common Civil Code, Personal Laws and
Religious Minorities", in Mohammed Imam (Ed.), Minorities
and the Law, ILl, 1972
38. Vijay Malik, Muslim Law of Marriage, Divorce and
Maintenance (Eastern Book Co., Lucknow 1988)
39. D.F. Mulla, Principles of Mohammedan Law (18th Edn. by M.
Hidayatullah, N.M. Tripathi, Mumbai 1977)

40. N.R. Madhav Menon (Ed.), National Convention on Uniform

Civil Code for All Indians, Bar Council of India Trust, New
Delhi 1986
41. B.N. Sampath, "Uniform Civil Code: Judicial Separation and
Divorce", in Madhav Menon (Ed.), National Convention on
Uniform Civil Code..., Bar Council of India Trust, New Delhi
1986
42. K.P. Saksena, Muslim Law (1963)
43. Schacht, An Introduction to Islamic Law (Oxford 1964)
44. K.P. Sharma, Muslim Vidhi (Rajasthan Hindi Granth Academy,
Jaipur 1983)
45. Nejatullah Siddiqui, "Restraints on Polygamy and Muslim
Personal Law", in Tahir Mahmood, Islamic Law in Modern
India, ILl, 1972
46. B. Sivaramayya, "Marriage, Registration of Marriages and
Decrees of Nullity", in Madhav Menon, National Convention on
Uniform Civil Code... BCI Trust, N.D. 1986

47. Tyabji, Muslim Law

48. Kamila Tyabji, "Polygamy, Unilateral Divorce and Mahr in
Muslim Law as Interpreted in India", in Tahir Mahmood (Ed.),
Islamic Law in Modern India, ILl, 1972 at p. 142
420 Muslim Law

49. B.R. Verma, Mohammedan Law (6th Edn., 1991)

50. M. Afzal Wani, "Maintenance of Women and Children under
Muslim Law: Legislative Trends in Muslim Countries", (2003)
45 JILl 409
51. M.R. Zafar, "Unilateral Divorce in Muslim Personal Law", in
Tahir Mahmood, Islamic Law in Modern India, ILl, 1972
 Subject Index
Acknowledged kinsman, 381
Acknowledgement
comparison with adoption, 160
conditions of valid, 155-157
effects of, 157
of paternity (!qrar), 152-155
rebuttal of, 157
Administration of estates
functions of legal representatives, 350-351
legal representatives of a deceased Muslim, 348-349
principles governing the, 344-346
recovery of credits to the property of the deceased, 351-352
requirement of Probate and Letters of Administration, 350
suit by creditor, 357-360
vesting of estate, 346-348
Adoption, unknown to Muslim Law, 157-160
Alienation
before payment of debt, 354-355
by co-sharer before partition, 355-357
for payment of debts, 360-361
guardians
certified, 175-177
legal, 173-175
de facto, 177-178
Apostacy, as ground of divorce, 121-126
Application of Muslim Law in India
dissolution of Muslim Marriages Act, 37-38
early contacts of the Arabs with India, 31
East India Company, 33-34
historical, 31
422 Muslim Law

Application of Muslim law in India (contd.)

• impact of Shariat Act, 37
introduction, 30
present position, 3842
rules of interpretation, 4548
Shariat Act, 34-37
• Sultanate and Mughal period, 32-33
who is a Muslim, 4245
Ariya, distinguished from HIM, 287
Aul or Increase
doctrine of (among Shias), 411
doctrine of (among Sunnis), 387-388
Bequests
acceleration of, 341
alternative, 339
conditional, 339
consent of legatee, 338
contingent, 339
death of legatee, 338
future, 33
to any person, 336
to apostates, 337
o heirs, 336
to institutions, 337
to tuanslayer, 337
to unborn person, 336
Categories of Muslims, 45
Concept and background of Muslim Law, 1
Conditions in pre-Islamic Arabia, 3
Conjugal rights, restitution of
conditional restitution, 76-79
defence of cruelty, 74-75
neglect of matrimonial obligations, 75-76
other grounds, 76
Consideration under, See Gift
Constitution of India
Art.19(1)(f) and Cl. (5) and Art. 15 and pre-emption, 308-309
Art. 25 and Art. 44 and Muslim Law, 38-42
Art. 26 and Art. 19(1)(J) and VIIth Schedule and wakf, 225-227
 Subject-Index 423

Conversion, as ground of divorce, 129-135

Creditor, suit by, against heirs, 357-360
Criminal Procedure Code, 1973
S. 125 as remedy to cruelty by husband
as remedy to bigamy by husband, 86-87
plea of talak by husband to thwart wife's suit
for maintenance under, 106
right to maintenance, 98-102
Ss. 125, 127 and 128—Maintenance under, 187-192
S. 127—Dower or sum under customary law as a
defence to maintenance suit under, 98-102
Custom, as a source of Muslim law, 14-15
Customary Law
contrary to Islam, 34
Cy pres doctrine, 248-249
Death-illness (maraz-uI-maut)
gift made during such illness, 282, 334
will made during such illness, 282, 334
Development of Muslim law
Period I, 25
Period H
a review of the first century of Islam, 26-27
Period III
important aspects of the second century of Islam, 28
Period IV, 29
Divorce
after the advent of Islam, 104-105
ahsan, 107
apostasy and conversion as grounds of, 129-135
by act of parties, 106
by death of husband or wife, 105-106
by husband, 105, 106-112
by judicial process, 116-123
by mutual consent, 114-116
by wife, 112-114
classification of, 105
dissolution of foreign marriages, 137
divorce through agreement, 137-138
effect of compulsion, intoxication or jest, 109-I11
424 Muslim Law

Divorce (contd.)
effects of, 128
faskh, 106, 118-119
formalities necessary for remarriage, 129
grounds for decree, 119-123
hasan, 108
husband's unilateral power to divorce, 123-128
Iddat, 104, 106-108
ha, 105, 111
Khula, 105, 114-115
Lian, 106, 116-118
modes of, See classification
Mubarat, 105, 115-116
one irrevocable divorce, 109
pre-Islamic background, 103
retraction of charge, 117-118
Talak, 105, 106-111
Talak-ul-Biddat, 105, 108-111
Talak-us-Sunnat, 105, 107-108
Talak-e-Tafwid, 105, 112-114
Zihar, 105, 112
Dower or Mahi
amounts of, 94
and maintenance, 98-102
conditions of payment (of amounts of dower), 94
deferred, 91-92
definition, 88-89
kinds of, 90-92
maximum amount of dower, 93
m!riflht!fl) n m ount of dower, 93
nature of, 89-90
pre-Islamic background, 88
prompt, 91-92
specified dower, 90-91
subject-matter of, 92-93
unspecified dower, 92
widow's right of retention, 94-98
Equality, doctrine of (Kafaa), 71
Escheat, 382
Estate, administration of, 344-352
Executor, appiintment of Mutawalli by, 251
 Subject-Index
425
Family (private) wakfs
exclusively for family, 241
Position of in India, 225-227
su bstantially for charity, 242
substantially for family with some provision for charity
law after 1913, 242
law before 1913, 242
Family settlement, 302
Faskh, 106,118
Fiqh distinguished from Shariat, 25
Fosterage
prohibition to marry on account of, 69
Funeral expenses, 345
Gift or Hiba
acceptance, 271
Bye mukasa (Bay 'a1Muqasa, 295
Conditional, 289
Constitutional validity of oral gifts, 278-282
contingent, 290-291
declaration, 270-271
definitions, 26-268
delivery of possession, 271-273
essentials of a valid gift, 268-273
exceptions to the rule of delivery of possession
donor and donee reside in the same house, 273-274
father to child; mother to son; guardian to ward, 276-277
husband to wife, 274-276
future gift, 291
Of Mushaa, 287-289
to donee in possession, 277
1-fiba and Ariya dis tinguished, 287
Hibabj1ewaz
why Indian form is recognised, 296
Hiba.ba.s/wrtu1.ewa 296-297
in the form of Hiba-bi1ewaz, 294-296
introduction, 267
in whose favour (donee)
any living person, 283
child in the womb, 283
juristic p ersons, 283
 Muslim Law
426

Gift or Hiba (contd.)

non-Muslims, 283
two or more persons, 283
unborn persons, 283
is the doctrine of musha unadapted to progressive society, 289
life estate, 297-299
life interest, creation of, 299-302
life interest distinguished from life estate, 297-299
musha, gift of, 287-289
registration, 277-278
revocation of, 292-294
Shiite law of life interests, 302
trusts
gifts in the form of, 291-292
what may be given in gift
equity of redemption, 284
gifts of corpus and usufruct, 285-286
insurance policy, 284-285
property held adversely to donor, 285
who can make gifts, 282-283
Grandfather
False, 380
True, 380
Grandmother
False, 380
True, 380
Guardians
alienation by legal guardians 173-175
appointed by the Court, 175
appointment of, 162-163
certified guardians—alienations by, 175-177
de facto guardians, 177-178
kinds of, 164
Guardianship
age of majority, 163-164
appointment of guardian, 162-163
alienation by
certified guardians, 175-177
de facto guardians, 177-178
legal guardians, 173-175
 Subject-Index 427
Guardianship (contd.)
concept of in Islam, 161-162
custody of minor wife, etc., 170
definition, 161
disqualifications of guardians, 171-172
guardians appointed by Court
alienations by, 173-178
legal guardians, 173-175
Hizana, 165
in marriage, 72-73
kinds of, 165-172
legal guardians, 173-175
alienations by, 173-178
male relations, 170
mother, 165-169
of person, 165-172
of property
alienations by, 172-178
categories of guardians of property, 172-178
de facto guardians, 177-178
other female relations, 169-170
purchase of immovable property by, 178
termination of, 172
Hadith (Tradition), 7-8
Heirs
alienation by, 354-355, 360-361
cannot be legatees, 336
extent of liability for debts, 352-354
suit by creditors against heirs, 357-360
Heirs (in Banafi Law)
agnatic heirs (residuaries), 390
classes of, 380-381
Koranic heirs (Sharers), 381
Heirs (in Shin law)
by consanguinity, 402
by marriage, 402
rules of succession among heirs of Class I, 405
rules of succession among heirs of Class 11,406-408
rules of succession among heirs of Class III, 408-411
 Muslim Law
428

Hiba, See Gift

Hizana, See under Guardianship
Homicide, an excluding factor in inheritance, 376
Husband
divorce by, 123-128
divorce by the death of, 129-130
embraces Islam, 130
renounces Islam, 130
Iddat
definition of, 135
different periods of, 135
rationale, utility & periods, 135-137
reasons for observing of, 135
valid retirement, effect of, 135
Ljtihad and Taqlid, 13
ha (VOW of continence), 111
Illegitimate child
custody of, 165-169
exclusion of, from inheritance, 377-378
maintenance of, 214
Imamat, 15
Inheritance (General)
birthright, not recognised, 369-370
distinctions between Shia and Sunni Law of, 411-415
doctrine of representation, 372-375
dual basis of Muslim law of, 363
excellence of Muslim law of, 362-363
explanation of important terms used, 379-380
importance of pre-Islamic customs, 363
improvements introduced by Islam, 364
partial or imperfect exclusion, 375
pm-Islamic rule of succession, 364
primogeniture, no rule of, 368-369
relinquishment of, 378-379
rules of total and partial exclusion, 375-379
some general rules, 367-372
some objections: Their answers, 364-366
 Subject-Index 429

Inheritance (General)
Objection 1, 364
Objection II, 365
total exclusion
on account of custom or statute, 377-378
on account of homicide, 376
on account of illegitimacy, 377
on account of religion, 376
on account of slavery, 377
principles governing, 375
vesting of, 370
Inheritance (ilanafi Law).
Classes of heirs
principal classes, 381
subsidiary classes, 381
Class I of distant kindred
allotment of shares, 396
order of succession, 396
principles of distribution and exclusion, 396
Class II of distant kindred
rules of distribution, 399
Classes III and IV of distant kindred, 399400
distant kindred, 395
doctrine of Aul (increase), 387-388
doctrine of RaId, 389-390
note on residuaries, 392
principal classes of heirs, 381
residuaries, 390
sharers, table of, 382-384
sharers who become residuaries, 392-395
subsidiary classes of heirs
acknowledged kinsman, 381
sole legatee, 381
State, by escheat, 382
successor by contract, 381
universal legatee, 381
table of residuaries, 390-395
uterine heirs, See distant kindred
Inheritance (Shia law)
Classes of heirs:
430 Muslim Law

Inheritance (Shia law) (contd.)

Class I, 402
Class II, 402
Class III, 402
doctrine of 'Increase', 411
doctrine of 'Return', 410
exceptions of doctrine of 'Return'
mother, 410
spouse, 410
uterine brother and sister, 411
heirs by marriage, 402
mode of distribution among sharers of Class I, 405.
principles of distribution of property, 404
rules of succession among heirs of Class 1,405
rules of succession among heirs of Class II
ancestors plus collaterals, 408-409
ascendants, without collaterals, 406-407
collaterals, without ascendants, 406407
rules of succession among heirs of Class III, 408-409
table of sharers, 403404
Interpretation of Muslim Law
comparative authority of Hanaft Jurists, 48
general rules, 45-46
interpretation of Koran, 46
interpretation of Had it/i and ancient texts, 4647
Intoxication, divorce pronounced under, 110
Ismailiya Shias, 20
Khanqah, 241
Khojas, 35
Khula, 105, 114-115
Khyar-ul-bUlUgh, 73
Kitabiya, 70
Koran, as a source of Muslim law, 6
Koranic heirs, 380
Legatee, consent of, 338
Legatee, death of, 338
Legitimacy
meaning of, 146-148 -
pre-Islamic background, 144-145
 Subject-Index 431
Legitimacy (contd.)
presumptions of
possible rationales behind these presumptions, 148-149
whether S. 112 overrides law of legitimacy, 149-152
Lian (mutual imprecation), 116-118
Life estate, 297-299
Life interests (Hanafi law) creation of
by family wakfs, 299-300
by Nawazish Ali Khan's case, 301
by the rule inAshraf Khan's case, 300-301
by the rule in Umjad All Khan's case, 300
by will, 300
Life interest (Shia Law), 299-302
Mahr, See dower
Maintenance (Nafaqa)
See also CrPC, 1973, 219
amount of, 218-219
by agreement, 184-187
definitions of, 180-11
introduction, 179-120
of children
illegitimate children, 214
legitimate children, 213
right to, ceases, 214
of other relations, 218
of parents, 217
of wife
by agreement, 184-187
during the continuance of marriage, 182-184
under the CrPC, 192-204
under the Muslim Women Protection of Rights on Divorce) Act, 1986,
192-204
Majority, age of
in guardianship, 163-164
Maliki School, 18
Marriage or Nikah
classification of marriages
irregular, 65-66
valid, 64
void, 64-65
432 Muslim Law

Marriage or Nikah (contd.)

definitions of, 52-53
formalities of a valid, 60-61
guardianship in, 72-73
irregular, 65-66
legal effects of, 65
Muta, 66-67
Muta compared with Nikah, 63-69
nature of Muslim, 53-60
option of puberty (Khyar-ul-bulugh), 73-74
pre-Islamic background, 51-52
polygamy in Islam, 80-87
prohibitions to marriage
affinity, 69
consanguinity, 69
difference of religion, 70-71
divorce, 70
fosterage, 69
iddat, 70
Kafa,71
pilgrimage, 71-72
supervening illegality, 71
unlawful conjunction, 69-70
restitution of conjugal rights
conditional restitution, 76-79
defence of cruelty, 74-75
neglect of matrimonial obligations, 75-76
other grounds, 76
stipulations in marriage contract, 62-64
valid, 63-64
void, 65
who developed polygamy, 82
Mara-ul-Maut, See Death—illness
Maternity defined, 145-146
Memons, 35
Mother
as guardian of her children, 165-169
gift to son by, 276-277
Mubarat, 115-116
Musha, 239,287-289
 Subject-Index 433

Muslim Law
applicability of, 30
interpretation of, 45-46
schools of, 18
successive replacement of, 34-37
Muslim Women (Protection of Rights on Divorce) Act, 1986, 192-204
Muta, 66-67
Nafaqa, See Maintenance
Nikah, See Marriage
Option of puberty, See Khyar-ul-bulugh
Parentage, 145-146
Payment of debts
alienation before payment of debt, 354-355
alienation for payment of debts, 360-361
extent of liability of heirs for debts, 352-353
Mahmood, J. propositions regarding payment of debts, 353
suit by the creditor against heirs, 357-360
Polygamy in Islam
biological and psychological factors, 81
individual factors, 80
proper course of action, 82-87
who developed polygamy, 82
Pre-emption
advent of shufa in India, 304
application of the law, 309-310
benami transactions, 313
characteristics of sale giving rise to, 313-315
constitutionality of, 308-309
definitions of, 304
difference of religkn or sect
difference in religion of buyer, seller and
pre-emptor, 316-318
difference of school, 319-320
dominant and servient heritage, 311-313
formalities to be observed
the first demand, 320-321
the second demand, 321
the third demand, 321
 434 Muslim Law

Pre-emption (contd.)
how evaded, 323
legal effects of, 322
loss of the right of
death of pre-emptor, 322
forfeiture of right, 322-323
omission to claim, 322
nature of the right of, 305-308
no right of, 315
origin, meaning and development, 303-304
other transfers—no right in, 315
Sunni-Shia comparison, 323-324
Pre-emptor
servient heritage, 311-313
Shaft-i-jar, khalit, S/ia reek, 310-313
subject-matter of pre-emption, 321-322
whether transfer in lieu of dower is sale, 315
Pre-Islamic
Arabian customs, 3-5
background of divorce, 103
background of dower, 88
background of marriage, 51-52
customs, importance of, 363
rules of succession, 364
Presumption of legitimacy, 148
Probate, of will, 350
Property
corpus and usufl-uct (gift), 285-286
forms of (that may be given in gift), 284-285
gift of, held adversely to donor, 285
that may be made as wakf, 238-239
undivided share in (Musha), 287-288
Puberty, option of, 73
Qiyas
arguments against, 10
arguments in support of, 10-11
definition of, 9-11
Radd (Return)
doctrine of, in Shia law, 410411
doctrine of, in Sunni law, 389-390
 Subject-Index 435

Relevance of the study of Muslim Law, I

Remarriage, formalities for, 129
Removal of mutaWalli, 251-252
Representation, doctrine of, 372-375
ResiduarieS, See under Inheritance (Ilanafi Law)
Restitution of conjugal rights, 74-79
Revocation
of gift, 292-294
of wakf, 233
of will, 339-340
Rules of interpretation of Muslim Law, 45-46
Schools of Muslim Law
extinct schools (Sunni), 19
Hanafi, 18
Hanbali, 19
Maliki, 18
Shafi, 18-19
Shia, 20-22
Sunni, 18
Sharers (Koranic heirs)
Hanafi law, 380-381
Shia law, 401-402
Shariat Act, 26 of 1937
application of, 35-37
effect of, on customs, 35-37
objects and reasons of, 34
operations of, 34-37
whether retrospective, 37
Shariat and Fiqh
distinction between Shariat and Fiqh, 25
Shia and Sunni sects, the birth of, 15-17
Shufa, See under Pre-emption
Sources of Muslim Law
A. Shariah sources
A1-masalih al-Mursalah, 12
equity and absolute good, 11
Had ith, 7-8
Ijma, 8-9
 436 Muslim Law

Sources of Muslim Law (contd.)

Jjtihad and Taqlid, 13
Jstidlal and Istishab, 12
Istihsan, 11-12
Koran, 6
Qiyas, 9-11
arguments against, 10
arguments in support of Qiyas, 10- 11
B. Extraneous Sources
custom and usages, 14-15
legal fiction, 13-14
positive legislation, 14
Stirpital succession, 414
Talab-i-ish-had, 321
Talab-i-mowasibat, 320
Talab-i-tamllk, 321
Talak
talak not an arbitrary power, 138-140
Talak-e-Tafwid, 105, 112
Talak-ul-BidcL:, 09, 27
Talak-us-Sunnat, 105-107,127
ahsan, 107
hasan, 108
triple talak, 109
under compulsion, intoxication and jest, 109-111
Trust, distinguished from wakf, 263-264
Universal legatee, 381-382
Unlawful conjunction, 69-70
Uterine heirs (Distant kindred) in Hanafi law, 395
Valid retirement, explained, 135
Vested remainder bequest of, 330
Vicinage, Constitutionality of pre-emption on the ground of, 308-309
Wakf
administration of
non-statutory administration, 250-253
statutory administration, 253-259
application of income of, 261
conditional, 249
constitutional position of, 225-227
 437
Subject-Index

Wakf (contd.)
contingent or conditional, 249
creation of, 235-236
Cy pres doctrine, 248-249
definition of, 228-232
delivery of possession (whether necessary), 237
development of, 228
distinguished from trust, 263-264
essentials of a valid, 249
foreign influence on, 228
Imams-Remunerations to, 261-263
importance of, 225
invalid objects of, 246-248
in whose favour can be made
general public, 240
wakif's family, 240
wakif himself, 239-240
kinds of
private, 232-233
public, 232
quasi-public, 232
legal incidents of
inalienability, 235
irrevocability, 233-234
perpetuity, 234-235
meaning of, 228-232
mutawalli
appointment by Court, 251
appointment by mutawalli, 251
appointment by wak(f'S executor, 251
appointment by wakf himself, 250-251
competence for appointment, 250
limitations on power, 252-253
removal of, 251-252
objects of
invalid, 246-249
valid, 244-246
origin of, 227
position of family wakfs in India, 264-266
private, 241
statutory administration of, 253-259
 438 Muslim Law

Wakf(contd.)
subject-matter of, 238-239
el tribunal, 260
trusts and—distinguished, 263-234
uncertain objects, 246-249
valid objects, 244-246
what can be made as, 238-239
who can create (wakif), 237-238
Wakf Acts
Bengal Wakf Act, 1934, 253
Bihar Wakf Act, 1947, 253
U.P. Wakf Act, 1950, 253
Wakf Act, 1954, 253
Widow's right of retention
explained, 94-98
whether heritable and transferable, 97
Wife
divorce by the, 112-114
divorce effected by the death of, 106
embraces Islam, 130
maintenance of, 182-187
renounces Islam, 130
Wills
a critique of the one-third rule, 335-336
abatement of legacies, 332-333
alternative bequest, 339
bequests which are not absolute, 338-339
compared with gift, 342
concept and meaning, 325-327
conditional bequest, 339
consent of legatee necessary, 338
contingent bequest, 339
death of legatee, 338
definitions of 327
during maraz-ul-maut, 333-334
for whom bequest can be made, 336-338
forms of 327-328
future bequest, 339
interpretation of 340-341
 ubject-Index 439

Wills (conid.)
reasons for limits on testamentary powers, 334-335
revocation of 339-340
what can be bequeathed, and how much. 329-332
who can make, 328-329
Zihar, 105-112
Zina, offspring of, acknowledgement of, 156