FAMILY LAW-II
UNIT-III
🧬 Parentage
1. Maternity and Paternity
Maternity: Established by birth of the child from the mother.
Paternity: Legally recognized if child is born within lawful wedlock or
within 280 days of dissolution of marriage, provided the mother
remains unmarried.
2. Legitimacy and Acknowledgment
Legitimacy: A child born in a valid marriage is legitimate.
If not within lawful wedlock, legitimacy depends on acknowledgment
by the father.
Acknowledgment:
o Must be clear, voluntary, and consistent.
o Once acknowledged, the child enjoys inheritance rights.
👨👩👧👦 Guardianship
3. Meaning
Legal authority to take care of a minor and/or their property.
4. Kinds of Guardianship
De jure guardian: Recognized by personal law (e.g., father, paternal
grandfather).
De facto guardian: Not legally appointed but assumes responsibility.
Guardian appointed by court: Under the Guardians and Wards
Act, 1890.
Guardian for marriage (Jabar): Usually the father or male relative.
5. Removal of Guardian
Court can remove guardian for misconduct, negligence, or
incompetence.
6. Difference between Sunni and Shia Law in Guardianship
Aspect Sunni Law Shia Law
Father → Paternal
Order of guardians Only Father
grandfather
Can sell minor’s property in
De facto guardian Has no authority
need
Guardian for Limited
Recognized
marriage recognition
🎁 Gift (Hiba)
7. Definition
A voluntary transfer of property without consideration during the
lifetime of the donor.
8. Requisites of Valid Gift
Declaration by the donor
Acceptance by the donee
Delivery of possession
9. Gift Formalities
No writing or registration required (except for immovable property
in certain cases).
Delivery of possession is essential unless it's a constructive delivery.
10. Revocation of Gift
Before possession: Can be revoked.
After possession: Cannot be revoked except by court decree under
specific conditions.
11. Kinds of Gift
Hiba-bil-iwaz: Gift for consideration.
Hiba-ba-shart-ul-iwaz: Gift made with condition of return.
Sadaqah: Charitable gift.
Areeat: Temporary transfer of use, not ownership.
📝 Wills (Wasiyat)
12. Meaning
A legal declaration of a person’s intention to be carried out after
death.
13. Requisites of Valid Will
Testator must be of sound mind and adult.
Made voluntarily, without coercion.
Property must be specified.
Cannot exceed 1/3rd of estate without heirs' consent.
14. Revocation of Will
Can be revoked any time before death.
By a new will, or by destroying the original document.
15. Distinction Between Will and Gift
Basis Will Gift
When
After death During lifetime
effective
Not required during
Possession Must deliver possession
lifetime
Irrevocable after
Revocability Revocable
possession
16. Difference Between Sunni and Shia Law in Wills
Aspect Sunni Law Shia Law
Limit on Up to 1/3rd of property without
Same
property heirs' consent
Beneficiaries Cannot will to legal heirs without Can will to any heir
Aspect Sunni Law Shia Law
consent
Two male or one male + two Two male Muslim witnesses
Witnesses
females preferred
UNIT-IV
🕌 WAQF
1. Definition of Waqf
Waqf is a permanent dedication of property (movable or
immovable) for a religious, pious, or charitable purpose as recognized
by Muslim law.
The ownership is transferred to God, and the property becomes
inalienable.
2. Essentials of a Valid Waqf
Permanent dedication
Property must be specific and identifiable
Purpose must be religious, charitable, or pious
Unconditional and irrevocable
Made by a competent person (sound mind, adult Muslim)
3. Kinds of Waqf
Public Waqf: For general public purposes (e.g., mosques, schools).
Private Waqf (Waqf-alal-aulad): For family, with ultimate benefit
reserved for charity.
Waqf by user: Long-standing use of property for religious purposes.
4. Creation of Waqf
Can be created orally or in writing
No need for registration unless under Waqf Act
Can be created inter vivos (during lifetime) or by will (limited to
1/3rd property)
5. Revocation of Waqf
Irrevocable once created.
Cannot be cancelled even by the Waqif (creator), unless declared
invalid legally.
6. Salient Features of the Waqf Act, 1995
Enacted to regulate and manage waqf properties in India.
Provides for:
o Central and State Waqf Boards
o Registration of Waqf properties
o Waqf Tribunals for dispute resolution
o Protection of Waqf property from unauthorized alienation
7. Recent Changes in Wakf Laws and Impact
Amendments in 2013:
o Stricter penalties for encroachment
o Better administrative powers to Waqf Boards
o Enhanced protection of waqf properties
Impact:
o Improved governance
o Reduced misuse of waqf assets
o Faster dispute resolution via tribunals
👤 MUTAWALLI (Manager of Waqf Property)
8. Who Can Be a Mutawalli
Appointed by:
o Waqif (founder)
o Court
o Waqf Board (if no valid appointment exists)
Must be adult, sane, and competent
9. Powers and Duties of Mutawalli
Manage waqf property
Maintain accounts and records
Utilize income for designated purposes
Cannot sell or mortgage property without court/Waqf Board
permission
10. Removal and Management of Waqf Property
Can be removed for:
o Mismanagement
o Breach of trust
o Incompetency
Management can be transferred to another Mutawalli or Waqf Board
⚖️SUCCESSION UNDER MUSLIM LAW
11. Application of Property of a Deceased Muslim
Debts and funeral expenses are paid before distribution.
Property is then distributed according to fixed shares (Qur’anic heirs).
No concept of joint family property.
12. Legal Position of Heirs as Representatives
Heirs are not legal representatives as in Hindu law.
Succession is individual—each heir inherits directly, not through
representation.
Rights accrue automatically upon death of the deceased.
13. Administration of Estate
No executor required unless appointed.
Distribution must be prompt and fair.
Property should not be held undivided for long.
14. Waqf Tribunals and Jurisdiction
Established under Waqf Act, 1995.
Have exclusive jurisdiction over waqf disputes.
Civil courts are barred from entertaining waqf-related cases.
UNIT-V
🔹 Special Marriage Act, 1954 (SMA)
Purpose:
Provides a civil form of marriage for people of different religions
or castes.
Ensures secular and legal recognition of marriages.
Salient Features:
Applicable to all Indian citizens, irrespective of religion.
Requires:
o Age: 21 years (male), 18 years (female)
o Notice of intended marriage
o 30-day waiting period for objections
Marriage conducted and registered by Marriage Officer.
Provides for divorce, maintenance, inheritance, and legitimacy of
children.
Offers an alternative to personal laws.
🔹 Salient Features of the Indian Divorce Act, 1869 (for Christians)
Applicability:
Governs divorce among Christians in India.
Key Features:
Grounds for divorce:
o Adultery
o Cruelty
o Desertion (2+ years)
o Conversion
o Unsoundness of mind
Allows judicial separation, nullity, and restitution of conjugal
rights.
Divorce granted by District Court or High Court.
Provides for alimony and custody.
🔹 Domicile (Legal Residence)
Definition:
A person’s permanent legal residence, determining the applicable
personal law in matters like marriage, divorce, succession.
Types:
1. Domicile of Origin – Acquired at birth.
2. Domicile of Choice – Intentionally adopted with residence.
3. Domicile by Law – For minors and legally dependent persons.
Relevance in Law:
Affects:
o Jurisdiction in divorce cases
o Application of succession laws
o Recognition of foreign marriages
🔹 Maintenance to Dependents / Spouses
Under Muslim Law:
Husband’s duty to maintain wife during marriage and iddat period
(post-divorce/widowhood).
After iddat: Maintenance limited unless by mutual agreement or
court order.
Parents, children, and relatives may be entitled to maintenance if
unable to maintain themselves.
Under Section 125 CrPC (Applicable to all):
Provides maintenance regardless of religion.
For wife (including divorced), children, and parents.
Ensures basic sustenance and prevents destitution.
🔹 Intestate Succession of Christians under Indian Succession Act,
1925
Applicability:
Applies to Christians in India when there is no valid Will (intestate
cases).
Order of Succession:
Surviving spouse and children inherit equally.
If no children:
o Spouse shares with deceased’s parents or siblings.
In absence of spouse:
o Property goes to lineal descendants, then kindred relatives.
Key Points:
No distinction between male and female heirs.
Adopted children inherit equally.
Widow does not lose inheritance upon remarriage.
