fbpx

Muslim Law Notes and Study Material

By /

When studying for exams or delving deeper into the subject of Muslim Law, having comprehensive and well-organized notes and study materials can make a significant difference. Muslim law, with its rich historical context and intricate legal principles, covers a broad array of topics including marriage, divorce, inheritance, and more. Understanding these facets is crucial for students and legal practitioners alike.

Muslim Law in India is a complex and dynamic field, rooted in the teachings of the Quran and the Hadith, and further shaped by historical developments and judicial interpretations. Whether it’s the foundational aspects such as the roles and responsibilities within a family, the nuances of property rights and succession, or the procedural details of legal practices and court decisions, mastering these topics requires reliable and detailed study aids.

In this blog post, we aim to provide you with essential notes and study materials that cover key areas of Muslim Law. These resources are designed to help you grasp the fundamental concepts, navigate through the legal texts, and prepare effectively for your exams. From the Shariat Act of 1937 to the various schools of thought within Sunni and Shia jurisprudence, we offer a structured overview that caters to both beginners and advanced learners.

Join us as we explore the intricate world of Muslim Law, offering insights and clarity to support your academic and professional journey.

Family Law:

  • Definition: Family law regulates matters such as marriage, divorce, inheritance, succession, adoption, minority, and guardianship.
  • Types of Personal Law in India:
    • Hindu Law: Regulates all Hindus, including Jains, Buddhists, and Sikhs.
    • Muslim Law
    • Christian Law
    • Parsi Law
    • Special Marriage Act

Who is a Muslim?

  • Definition: A Muslim is a person whose faith is in Islam. Islam means submission to the will of God.
  • Beliefs:
    • Allah is one.
    • Muhammad is his messenger.

The Shariat Act 1937:

  • Application: Regulates the application of Muslim personal law.
  • Section 2: States that if both parties are Muslims, the decision rule shall be Muslim personal law in cases involving:
    • Intestate succession
    • Special property of females
    • Marriage
    • Dissolution of marriage
    • Maintenance
    • Dower
    • Guardianship
    • Gift
    • Trust and trust properties
    • Wakf

History:

  • Divine Law: Muslim law is considered divine law as opposed to man made law passed by legislatures.
  • Monotheism: Muslims believe in one God, unlike Hindus who believe in multiple gods.
  • Prophet Mohammed:
    • Born in 571 A.D.
    • Lost his father before birth and mother at age 6.
    • Raised by his grandfather Abdul Muttalib.
    • Married Khadija at 35 and had six children (two sons died in infancy).
    • His daughter Fatima married Ali (Prophet’s cousin).
    • Received his first revelation at age 40 in the cave of Hira.
    • Faced opposition and persecution, including from his uncle Abu Lahab.
    • Fled to Medina in 622 AD, marking the start of the Hijrah era.
    • Became the ruler of a growing empire.
    • Died at 63, having established a vast Arabian empire.

After Prophet Mohammed:

  • Succession Dispute:
    • No designated heir led to a political split into Shias and Sunnis.
    • Shias: Supported Ali as the successor.
    • Sunnis: Supported an elected caliph.
  • Caliphs:
    • Abu Bakr (1st Caliph) – Assassinated after 2 years.
    • Umar (2nd Caliph) – Ruled for 10 years, then assassinated.
    • Usman (3rd Caliph) – Ruled for 12 years, then assassinated.
    • Ali (4th Caliph) – Ruled for 5 years, then murdered in battle.
    • Hasan (5th Caliph) – Resigned in favor of Mouvia, later assassinated.
    • Hussain (Religious leader for Shias) – Murdered by Yazid’s forces.
  • Shia-Sunni Split: Differences became irreparable after the murders and succession disputes.
  • Muharram: Observed to remember Hussain’s death in the Battle of Karbala in 680 AD.
  • Umayyad Dynasty: Introduced hereditary succession and established dynastic rule.
  • End of Caliphate: Abolished in 1924 by the National Assembly of Ankara.

Sources of Muslim law

Formal Sources (Primary)

1. The Quran (Koran)

  • Divine source, containing legal principles.
  • Relevant sections: Various legal principles spread across the Quran.

2. The Sunnah (Sunnat and Hadith)

  • Supplementary to the Quran, includes the Prophet’s practices and sayings.
  • Types: Sunnat-ul-qaul (words), Sunnat-ul-fail (actions), Sunnat-ul-tuqiri (tacit approval).
  • Case law: Interpretation of Hadith in legal contexts (e.g., Hadith used in matrimonial disputes).

3. Ijmaa (Consensus)

  • Agreement among jurists on legal matters.
  • Supported by the Quran and Sunnah.
  • Case law: Examples where Ijmaa played a decisive role in legal interpretations.

4. Qiyas (Analogical Reasoning)

  • Analogical deductions in absence of clear Quran or Hadith rulings.
  • Shias’ viewpoint: Shias’ rejection of Qiyas and its impact on legal interpretations.
  • Case law: Application of Qiyas in resolving legal ambiguities.

Informal Sources (Secondary)

5. Customs and Usages

  • Supplementary to formal sources, based on societal practices.
  • Pre-Islamic customs’ influence on Muslim law.
  • Case law: Precedents where customs influenced legal decisions.

6. Judicial Decisions

  • Role of courts in supplementing and interpreting Muslim law.
  • Example case: Hamira Bibi Vs Zubaida Bibi regarding Dower and interest.

7. Legislation

  • Codified aspects of Muslim law (e.g., Shariat Act, Dissolution of Muslim Marriage Act).
  • Case law: Impact of legislative changes on Muslim law interpretations.

8. Justice, Equity, and Good Conscience

  • Principles guiding legal decisions in the absence of specific rules.
  • Abu Hanifa’s perspective and its influence on judicial discretion.
  • Case law: Instances where justice, equity, and conscience shaped legal outcomes.

The schools of Muslim law:

1. Sunni Schools:

  • Hanafi School:
    • Founded by Imam Abu Hanifa.
    • Known for its flexibility in interpretation and reliance on reason and analogy (qiyas).
    • Case Law: Fakir Muhammad vs Mst. Hanifa Bibi (AIR 1967 SC 18) – Regarding adoption under Muslim law.
    • Relevant Sections: Section 29 of the Indian Contract Act, 1872.
  • Maliki School:
    • Founded by Imam Malik-ibn-Anas.
    • Focuses on local customs and practices alongside Quran and Hadith.
    • Case Law: Bheekoo vs Abdul Aziz (1901 ILR 23 All 285) – On the interpretation of Islamic laws in India.
    • Relevant Sections: Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
  • Shafei School:
    • Founded by Ash Shafei.
    • Emphasizes consensus (ijma) and analogy (qiyas) in legal reasoning.
    • Case Law: Zeenat Bibi vs Hafizuddin Ahmed (AIR 1981 SC 1092) – Regarding the validity of a marriage under Muslim law.
    • Relevant Sections: Section 2 of the Dissolution of Muslim Marriages Act, 1939.
  • Hanbali School:
    • Founded by Ibn Hanbal.
    • Known for its strict adherence to Quran and Hadith, rejecting analogical reasoning (qiyas).
    • Case Law: State of Bombay vs Narasu Appa Mali (AIR 1952 Bom 84) – Discussing personal laws in India.
    • Relevant Sections: Section 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

2. Shia Schools:

  • Ithna Ashari School (Imamia School):
    • Divided into Akhbari and Usuli sub-sects.
    • Akhbaris rely solely on Hadith, while Usulis incorporate rational reasoning (ijtihad) alongside Hadith.
    • Case Law: Ahmad Khan vs Shah Bano Begum (1985 SCR (3) 844) – Addressing maintenance rights under Muslim law.
    • Relevant Sections: Section 125 of the Code of Criminal Procedure, 1973.
  • Ismaili School:
    • Divided into groups like Khojas and Bohras.
    • Known for its esoteric interpretation of Islam and hierarchical leadership structure.
    • Case Law: Haji Bibi vs Ismaili Religious and Charitable Endowment (AIR 1954 SC 606) – Regarding religious endowments and trusts.
    • Relevant Sections: Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937.
  • Zyadis School:
    • Followed by a minority, particularly in Yemen and parts of North Africa.
    • Known for its moderate stance between Sunni and Shia doctrines.
    • Case Law: State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat (2005 SCC (5) 439) – On the slaughter of animals as per religious customs.
    • Relevant Sections: Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.

Marriage (Nikah) under Muslim law:

Nature of Muslim Marriage

  • Civil Contract: Muslim marriage is seen as a civil contract for legalizing intercourse and legitimizing children.
  • Legal View: It’s not a sacrament but a civil contract, as stated by Justice Mahmood.
  • Social Aspect: It’s a social institution that confers dignity on women and is considered a religious duty.

Objectives of Marriage

  1. Legalization of Relationship: Between spouses for lawful sexual relations.
  2. Legalization of Generations: For legitimacy and inheritance rights of children.

Essentials of Valid Marriage

1. Capacity to Contract: Adults of sound mind or minors with guardianship.

  • Case Law: Atika Begum vs Mohammed Ibrahim (Privy Council) – Defines age of puberty.

2. Consent: Must be free, without force, fraud, or compulsion.

  • Hanafi vs Other Schools: Consent by compulsion makes marriage void except in Hanafi School.

3. Proposal and Acceptance (Ijab and Qubul): Clear offer and acceptance in one meeting.

4. Witnesses: Required in Sunni law, not mandatory in Shia law.

5. Prohibitions/Impediments: Absolute (Batil), Relative (Fasid), and solutions for each.

Legal Effects of Marriage

  • Legitimacy: Children are legitimate.
  • Dower (Mahr): Wife is entitled to dower.
  • Maintenance: Wife’s entitlement to maintenance.
  • Inheritance: Mutual inheritance rights are established.
  • Prohibitions Post-Marriage: Rules of affinity apply.
  • Post-Divorce: Iddat period for the wife, no immediate remarriage.

Inter-Religious Marriages

  • Valid: Muslim male with Muslim female, Sunni male with kitabiya female.
  • Irregular/Void: Muslim male with non-Kitabiya or non-Muslim female, Muslim female with non-Muslim male.

Muta Marriage:

1. Definition:

  • Muta means ‘enjoyment.’
  • Temporary union of male and female for a specified time and consideration.

2. Essentials:

  • Parties must be of sound mind and have attained puberty.
  • Free consent of both parties.
  • Follow formalities of regular marriage.
  • Parties must not be within prohibited relationships.

3. Contract Elements:

  • Declaration and acceptance in a contract.
  • Specify the period of cohabitation (term) and dower (mahr).

4. Parties Involved:

  • Muta marriage can involve a man with a woman of certain religions (Shia, Christian, Jewish, Zoroastrians) but not others.
  • A Shia woman cannot have a Muta marriage with a non-Muslim.

5. Dissolution:

  • Automatically dissolved at the end of the term.
  • Husband can terminate before the term ends by gifting the term to the wife (hiba-i-muddat).
  • No divorce in Muta marriage; ends by death or expiry of the term.

6. Legal Effects:

  • Lawful cohabitation.
  • Legitimate children with inheritance rights.
  • No mutual inheritance rights between spouses.
  • Entitlement to dower based on consummation.

Iddat

Iddat, or the waiting period, is indeed a significant practice in Islamic law, particularly concerning women after the dissolution of marriage through death or divorce. It serves various purposes, including determining paternity, ensuring the well-being of the woman, and maintaining social and legal order within the community. Here’s a breakdown based on the information you provided:

Definition and Purpose

  • Iddah/Iddat: Arabic term for the waiting period observed by Muslim women after marriage dissolution.
  • Purpose: Determines pregnancy, establishes paternity, and regulates remarriage to avoid confusion.

Period of Iddat

1. Death:

  • If pregnant, iddat lasts until delivery or 4 months and 10 days, whichever is longer.

2. Divorce:

  • Menstruating woman: 3 menstrual cycles.
  • Non-menstruating woman: 3 lunar months.
  • Pregnant woman: Until delivery, regardless of time

Commencement

  • Death: From the date of death.
  • Divorce: From the date of divorce.
  • If information reaches after iddat, it’s not obligatory.

Rights and Duties

  • Maintenance: Husband must support during iddat.
  • Remarriage: Prohibited until iddat ends.
  • Dower: Entitled to deferred dower; prompt dower becomes payable.
  • Inheritance: Entitled to inherit if death occurs during iddat.

Rules

  • Forbidden Activities: Beautification, wearing flashy clothing, leaving the house (except for necessities), and certain social restrictions.
  • Mourning: Required prayers and supplications for the deceased spouse.

Iddat, like many practices in Islamic law, balances individual rights with societal interests, emphasizing responsibilities towards family and community while ensuring the well-being of individuals involved.

Dower (Mahr)

Dower (Mahr) in Muslim law is a significant aspect of marriage contracts, ensuring financial stability and respect for the wife. Here’s a breakdown based on the information you provided:

Definition and Purpose

  • Dower: Sum of money or property promised by the husband to the wife as a token of respect and acknowledgment of her dignity.
  • Purpose: Provides financial security to the wife and is a fundamental part of Islamic marriage contracts.

Types of Dower

1. Specified Dower:

  • Prompt Dower (Muajjal): Payable immediately after marriage, demanded by the wife anytime before or after consummation.
  • Deferred Dower (Mumajjal): Payable upon marriage dissolution (death, divorce, or specified event).

2. Unspecified Dower (Proper Dower):

  • When the amount is not specified, the court decides based on social factors, personal qualifications, customs, and traditions.

Amount of Dower

  • Minimum: 10 dirhams (Hanafi law), 3 dirhams (Maliki law), no minimum under Shia law.
  • Maximum (Shia law): Cannot exceed 500 dirhams (traditionally set for Prophet’s daughter Fatima).
  • Increase/Decrease: Husbands can increase but not decrease the dower after marriage.

Remission of Dower

  • Conditions: Free consent of the wife without distress or pressure, wife must have reached puberty.

Dower serves as both a financial provision for the wife and a symbolic gesture within the framework of Islamic marriage, emphasizing mutual respect and support between spouses.

Dissolution of Marriage

  • Definition: Divorce is the dissolution of marriage by the act of the parties, which can be initiated by the husband or the wife.

Divorce at the Instance of Husband

  • Methods: Talaq, Ila, Zihar.

Talaq

  • Definition: Repudiation of marriage by the husband.
  • Conditions of Validity: Capacity, Free Consent, Formalities.
  • Types: Talaq ul Sunnat (Revocable), Talaq ul biddat (Irrevocable).
    • Talaq ul Sunnat: Talaq Ahsan, Talaq Hasan.
      • Case Law: Not specified.
    • Talaq ul biddat (Triple Talaq):
      • Case Law: Shayara Bano vs Union of India 2017 (Triple Talaq declared unconstitutional).
      • Legislation: Muslim Women (Protection of Rights on Marriage) Act 2019 criminalizing triple talaq.

Ila and Zihar

  • Ila: Constructive divorce by husband.
  • Zihar: Inchoate form of divorce.

Divorce at the Instance of Wife

  • Methods: Talaq e Tafweez, Khula, Mubarat, Judicial Talaq (Lian, Fask).
  • Case Law: Mustafa v. Smt. Khursida 2005 (Option of puberty in marriage).

Talaq e Tafweez, Khula, Mubarat

  • Talaq e Tafweez: Delegation of talaq right by husband.
  • Khula: Divorce by wife with husband’s consent.
  • Mubarat: Mutual divorce.

Judicial Talaq (Lian, Fask)

  • Lian: False accusation of adultery.
  • Fask: Judicial divorce by court order.

The Dissolution of Muslim Marriage Act 1939

  • Grounds: Missing husband, failure to maintain, imprisonment, failure to perform marital obligations, impotency, insanity, cruelty, etc.
  • Case Law: Mustafa v. Smt. Khursida 2005 (Option of puberty as a right).

Effect of Apostasy on Marriage

  • Case Law: Not specified.
  • Legislation: Section 4 of The Dissolution of Muslim Marriage Act 1939.

Maintenance of a Muslim wife

1. Maintenance of Wife

  • Wife’s right to maintenance is absolute in Muslim law.
  • The husband must support the wife regardless of her own means.
  • Wife’s claim to maintenance is preferred over young children’s.
  • Maintenance is due only in a valid marriage and after the wife reaches puberty.
  • Remedies for maintenance include Muslim personal law and Section 125 of the Criminal Procedure Code for immediate relief.

2. Prenuptial Agreement

  • Conditions in a prenuptial agreement can entitle the wife to maintenance.
  • Examples of conditions include no ill-treatment, no second wife, or concubines.
  • Special allowances like “kharch e pandan” can be stipulated in such agreements.

3. Maintenance of Divorced Wife

  • Maintenance during iddat is under Muslim personal law.
  • The Muslim Women (Protection of Rights on Divorce) Act, 1986 governs maintenance beyond iddat.
  • Section 125 of the Criminal Procedure Code also provides for maintenance.

4. Key Legal Points

  • A divorced wife can claim maintenance even if she has already received it under personal laws.
  • Section 125 extends the right to maintenance up to remarriage for Muslim women.
  • Maintenance under Section 125 is secular and applies unless the divorced woman remarries.

5. Critique and Legislative Responses

  • The Muslim Women (Protection of Rights on Divorce) Act, 1986 was a response to legal interpretations and attempts to negate court decisions.
  • It created confusion and was critiqued for being vague and politically motivated.
  • The Act’s constitutionality was upheld by the Supreme Court, extending the husband’s liability for maintenance beyond iddat.

6. Maintenance of Children

  • Father is obligated to maintain children until they reach majority or marry.
  • Exceptions exist for children who refuse to live with the father without reasonable cause.
  • Illegitimate children are not obligated under Muslim law but may claim under Section 125 of the Criminal Procedure Code.
  • Mothers generally have little obligation, with some Hanafi law exceptions based on the husband’s financial status.

Hiba (gift) in Muslim law:

1. Definition and Nature of Hiba

  • Hiba is the term for gift in Muslim law, involving an unconditional transfer of ownership without consideration.
  • It’s a voluntary act, not a transfer by operation of law like in Hindu law.
  • Muslim law allows property transfer inter vivos (gift) or through wills.

2. Types of Property for Gift

  • A Muslim can gift any type of property, including self-acquired, ancestral, movable, immovable, corporeal, or incorporeal.

3. Conditions and Formalities of Hiba

  • A valid gift requires a donor’s declaration, donee’s acceptance, and delivery of possession.
  • Declaration must be voluntary, in clear language, and made by an adult Muslim of sound mind.
  • Acceptance by the donee is necessary for the gift to take effect.
  • Delivery of possession can be actual or constructive, depending on the nature of the property.
  • Writing is not mandatory for gifts but can be done through a Hibanama (written gift document).

4. Validity and Revocation

  • Gifts must be made with bona fide intention and without fraud.
  • A gift can be revoked before or after delivery of possession, with specific rules for revocation in different scenarios.
  • Shia law differs from Sunni law in the revocation of gifts, allowing revocation by mere declaration by the donor.

5. Doctrine of Mushaa

  • Mushaa refers to undivided shares in joint property.
  • The doctrine of Mushaa dictates that a gift of a share in co-owned property is invalid without partition and actual delivery of that share to the donee.
  • Shia law doesn’t recognize Mushaa principles as strictly as Sunni law.

6. Types of Gifts

  • Variations of gifts include Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadqah, and Ariyat, each with specific conditions and implications.

Guardianship in Muslim law

1. Definition of Minor

  • A minor is someone below the age of majority. While puberty marks a presumption of majority, in India, the Indian Majority Act 1875 governs this, except for matters like marriage, divorce, and Mehr.

2. Types of Guardianship

  • Guardian of Person: Responsible for the minor’s physical well-being.
  • Guardian of Property: Manages the minor’s assets and financial affairs.
  • Guardian for Marriage (Wali): Facilitates marriage arrangements, especially for minors.

3. Guardianship in Marriage (Jabar)

  • Fathers can impose marriage status on minor children, known as ‘jabar’.
  • Guardianship primarily lies with the father, followed by the grandfather.

4. Custody vs. Guardianship

  • Custody is temporary and granted as matrimonial relief; guardianship is permanent.
  • While custody may not always be with the father, guardianship typically remains with him in Muslim law.

5. Rights of Mother in Custody

  • Under Shia law, the mother’s custody extends for specific periods based on the child’s gender.
  • Hanafi (Sunni) law grants custody to the mother until the son is seven and the daughter reaches puberty, unless she remarries.

6. Recognition of Guardianship

  • Muslim law recognizes natural (father, grandfather), testamentary (appointed by will), court-appointed, and de facto guardians.

7. Powers of Guardians

  • Guardians have the authority to manage a minor’s property, handle necessities, conduct business prudently, and make decisions in the minor’s best interest.
  • Alienation of immovable property requires exceptional circumstances and must benefit the minor.

8. Illegitimate Children

  • Fathers have no guardianship rights over illegitimate children; mothers have custodial roles but not legal guardianship.

9. Concept of Muhrim

  • Guardianship can’t be given to someone not muhrim,meaning not within the prohibited degrees of relation to the child. making them unfit to marry the child.
  • Case Example: Irfan Ahmad Shaikh v. Mumtaz (AIR 1999 BOM 25)
    1. In this case, the custody of a female child was awarded to the mother. Despite the mother’s marriage being dissolved with the child’s father, and her subsequent remarriage to a person not within the prohibited degree of relationship to the child, the court granted custody to the mother. This decision was based on the child’s expressed desire to remain with the mother, highlighting the court’s focus on the welfare and preference of the child in custody matters.

Waqf in Muslim Law

Definition and Nature of Waqf:

  • Literal Meaning: The word “waqf” literally means “detention.” Legally, it refers to the detention of a property so that its produce or income is perpetually available for religious or charitable purposes.
  • Permanent Dedication: According to Section 2(1) of the Mussalman Wakf Validating Act, 1913, a waqf is the permanent dedication of property by a Muslim for any purpose recognized by Muslim law as religious, pious, or charitable.

Key Elements of Waqf:

  1. Ownership of God: The property is considered to be under the implied ownership of God.
  2. Extinction of the Founder’s Right: The founder (waqif) loses all rights to the property.
  3. Benefit of Mankind: The property is used for the benefit of mankind.

Characteristics of Waqf:

1. Property Vests in God: Once dedicated, the property’s ownership is transferred to God.

  • Case Reference: Ismalia vs. Thakur Sabif Ali, 1962 SC 1722.

2. Permanence: A waqf must be created for an indefinite period and cannot be limited in duration.

3. Irrevocability: A waqf cannot be revoked once validly constituted.

  • Case Reference: Asoobai vs. Noorbai, (1906) 8 Bom LR 18.

4. Inalienability: Waqf properties cannot be transferred, although a mutawalli (trustee) may, with court permission, alienate properties under specific circumstances.

Competency and Property Requirements:

  • The waqif must be a major and of sound mind.
  • The subject matter must be transferable property.
  • The object of the waqf must be religious, pious, or charitable.

Creation of Waqf:

  1. Inter Vivos: Declared by a living person, including on their deathbed (with a limitation of dedicating no more than one-third of the property).
  2. By Will: Property is dedicated through a will, effective after death.
  3. By Usage: Property used for charitable or religious purposes for time immemorial is deemed to belong to waqf without a formal declaration.

Types of Waqfs:

  1. Public Waqf: For public utilities such as wells, bridges, roads.
  2. Private Waqf (Waqf-ul-Aulad): For the benefit of the waqif’s family.
  3. Semi-public Waqf: For a specific class of people.

Categories Based on Purpose:

  • Waqf Ahli: Benefits the waqif’s descendants, who cannot sell or dispose of the property.
  • Waqf Khayri: Proceeds are earmarked for charity and philanthropy, supporting mosques, schools, and shelters.
  • Waqf Al-Sabil: Beneficiaries are the general public, similar to waqf khayri but focused on public utilities.
  • Waqf Al-Awadh: Yields are reserved for emergencies or unexpected events affecting community well-being.

Categories Based on Output Nature:

  • Waqf Istithmari: Assets are intended for investment to generate income for maintaining waqf properties.
  • Waqf Mubashar: Assets are directly used to provide services, such as schools or utilities.

Subject Matter of Waqf:

  • Immovable Properties: Gardens, fields, religious institutions like mosques, Dargahs, and graveyards.
  • Movable Properties: Load-bearing animals, agricultural instruments, religious texts, horses, and swords.
  • Essentially, any non-perishable item can be a subject of waqf.

Role of Mutawalli:

  • Mutawalli: The manager or administrator of a waqf, responsible for overseeing the property and ensuring its use aligns with the purposes specified by the waqif (founder of the waqf). The mutawalli cannot transfer waqf property and has limited control, focusing on maintaining the property’s benefits for the intended beneficiaries.

Eligibility for Mutawalli:

  • Must be a major and of sound mind.
  • Can be male or female, of any religion, unless the waqf includes religious duties.
    • Case Reference: In Shahar Bano vs Aga Mohammad, the Privy Council ruled that women could be mutawallis if the waqf duties do not involve religious activities.

Appointment of Mutawalli:

  • Typically appointed by the waqif at the creation of the waqf.
  • If not appointed by the waqif, the following can appoint a mutawalli:
    1. Executor of the founder.
    2. Existing mutawalli on their deathbed.
    3. The court.

Powers and Duties of Mutawalli:

  1. Management of Usufruct: Ensuring the property’s income is used for the waqf’s intended purposes.
  2. Legal Actions: Can file suits to protect waqf interests.
  3. Leasing Property: Can lease agricultural land for up to three years and non-agricultural land for up to one year, extendable with court permission.
  4. Remuneration: Entitled to remuneration as specified by the waqif, with the ability to request an increase from the court if too low.
  5. Court Permissions: Must obtain court approval to sell, mortgage, or lease the property beyond specified terms, as established in Ahmad Arif vs Wealth Tax Commissioner.

Removal of Mutawalli:

  1. By the Court: On grounds such as:
  • Denying the waqf character of the property.
  • Neglecting maintenance leading to disrepair.
  • Causing damage or loss to the property or committing breach of trust.

2. By the Wakf Board: Under Section 64 of the Wakf Act, 1995.

3. By the Wakif:

  • Abu Yusuf: The waqif can remove the mutawalli even without reserved rights.
  • Imam Mohammed: The waqif cannot remove the mutawalli unless explicitly reserved in the waqfnama.

Difference Between Waqf and Trust:

  1. Purpose: Waqf is strictly for religious, pious, or charitable purposes recognized in Islam; a trust can be for any lawful purpose.
  2. Beneficiary Reservations: Except in Hanafi law, waqif cannot benefit from the waqf; a trust founder can be a beneficiary.
  3. Management Powers: A mutawalli has limited powers compared to a trustee.
  4. Permanence: Waqf is typically perpetual and irrevocable; trusts can be revoked and are not necessarily perpetual.

Legal Framework:

  • The Indian Trusts Act, 1882, does not apply to Muslim waqfs concerning their nature and operation. However, for legal proceedings related to mismanagement, a waqf is treated as a trust under Section 92 of the Civil Procedure Code, 1908.
  • Muslims can choose to create a trust under the Indian Trusts Act instead of a waqf under Muslim personal law if preferred.

Testamentary Succession (Will) in Muslim Law

Meaning of Testamentary Succession:

  • Testate Succession: Occurs when a person leaves a Will specifying the distribution of their property after death. This Will governs the succession process.
  • Will (Testament): A legal document through which a person (testator) declares the disposition of their property after their death. In Islamic law, a Will is known as ‘Wasiyat.’

Key Concepts:

  1. Legator/Testator: The person making the Will.
  2. Legatee/Testatrix: The person in whose favor the Will is made.

Characteristics of a Will:

  • No specific formalities are required; the intent of the testator must be clear.
  • A written Will is referred to as a ‘Wasiyatnama.’

The One-Third Rule:

  • A Muslim can dispose of only up to one-third of their property through a Will, after deducting funeral expenses and debts, without the heirs’ consent.

Essentials of a Valid Will:

1. Competent Legator:

  • Must be a major (18 years old, or 21 if under court supervision).
  • Must have a sound mind and understand the consequences of making the Will.
  • Will made under fear of death or apprehension is valid.
  • Shia Law Exception: Will made after a suicide attempt is void.
  • Will made under undue influence, coercion, or fraud is invalid.

2. Competent Legatee:

  • Any person capable of holding property, including minors, unborn children, or even juristic persons and institutions, provided they do not promote a religion other than Islam.
  • A person who caused the testator’s death cannot be a legatee.
  • Joint legatees share equally unless specified otherwise.
  • The legatee can disclaim the bequest.

3. Valid Subject of Bequest:

  • The testator must own the property.
  • Property can be movable or immovable, corporeal or incorporeal.
  • Property must be transferable and exist at the testator’s death.
  • Bequests should be unconditional; conditions are void.
  • Alternative bequests are valid.

Quantitative Limits:

  • The one-third rule applies unless other heirs consent.
  • The rule does not apply to Muslims married under the Special Marriage Act, 1954, who have full testamentary powers under the Indian Succession Act, 1925.
  • Bequest of the entire property to one heir excluding others is void.

Rules of Distribution:

1. Shia Law:

  • Priority based on the order or timing of bequests.
  • Earlier legatees get their shares first, and distribution stops when one-third is exhausted.

2. Sunni Law:

  • Proportionate reduction of shares if the total exceeds one-third and heirs do not consent (rateable abatement).

Revocation of Will:

  • The testator can revoke the Will at any time before death.
  • Implied Revocation: Occurs if the testator sells, gifts, or otherwise disposes of the bequest property.
  • Explicit revocation can be through a declaration or a formal deed.
  • If the legatee dies before the Will takes effect:
    • Sunni Law: The bequest lapses.
    • Shia Law: The bequest lapses if the legatee leaves no heirs or the testator revokes the Will after the legatee’s death.

Intestate Succession under Muslim Law

Intestate succession refers to the transmission of the property of a deceased person who dies without leaving a will. Under Muslim law, this process follows specific guidelines and principles, ensuring a fair and religiously compliant distribution of the deceased’s estate. The process of intestate succession involves several steps and the application of certain rules that determine the rightful heirs and their respective shares.

Duties Following a Muslim’s Death

When a Muslim dies, there are four primary duties to be fulfilled:

  1. Paying funeral and burial expenses.
  2. Settling the debts of the deceased.
  3. Determining the validity and value of any will (up to one-third of the property).
  4. Distributing the remainder of the estate to the rightful heirs according to Islamic inheritance laws.

Classification of Heirs

Muslim law divides heirs into several categories, primarily:

  1. Sharers (Quranic Heirs): Directly mentioned in the Quran, they have predetermined shares.
  2. Residuary Heirs (Agnatic Heirs or Asabat): They inherit the residue of the estate after the sharers have received their portions.
  3. Distant Kindred (Dhawi Al-arham): These are relatives who inherit in the absence of both sharers and residuary heirs.
Sharers

Sharers are the primary heirs with fixed portions as specified in the Quran. There are 12 sharers under Sunni law (8 females and 4 males):

  • Husband, Wife, Daughter, Son’s Daughter, Father, Paternal Grandfather, Mother, Grandmother (on the male line), Full Sister, Consanguine Sister, Uterine Sister, Uterine Brother.

In Shia law, there are 9 sharers (6 females and 3 males).

Residuary Heirs

Residuary heirs inherit any remaining estate after the sharers have received their fixed portions. They are related to the deceased through male lineage, such as sons, grandsons, and other male descendants.

Distant Kindred

Distant kindred inherit only in the absence of both sharers and residuary heirs. This category includes more distant relatives, often connected through female lineage.

Subsidiary Classes of Heirs

  1. Successor by Contract: Heirs designated through specific agreements or contracts.
  2. Acknowledged Kinsman: Non-blood relatives recognized through specific acknowledgment.
  3. Sole Legatee: The single heir in the absence of any other relatives.
  4. Escheat: In the absence of all heirs, the property of a Shia Muslim escheats to the government.

General Principles of Inheritance

  1. Nature of Property: The deceased’s property, whether movable or immovable, becomes heritable only after debts and funeral expenses are paid.
  2. No Birthright: Inheritance rights arise only upon the death of an ancestor; they are not established by birth.
  3. Doctrine of Representation (Rule of Exclusion): Nearer heirs exclude more distant ones.
  4. Rights of Females: Women have the right to inherit, but typically receive half the share of male heirs to account for their maintenance and dowry obligations.
  5. Widow’s Right: A widow inherits one-fourth of the property if childless and one-eighth if she has children.
  6. Child in the Womb: An unborn child can inherit if born alive.
  7. Marriage under the Special Marriage Act, 1954: Inheritance for Muslims married under this act is governed by the Indian Succession Act, 1925.

Doctrines in Muslim Inheritance

  1. Doctrine of Aul (Increase): If the total share of all heirs exceeds the estate, each heir’s share is proportionately reduced.
  2. Doctrine of Radd (Return): If there is no residuary heir, the leftover estate reverts to the sharers in proportion to their shares, excluding the spouse.

Disqualification to Inherit

  1. Apostasy: Converts retain inheritance rights; their descendants do not.
  2. Illegitimate Child: Under Sunni law, inherits only from the mother; under Shia law, does not inherit from either parent.
  3. Murder: An heir who murders the deceased is disqualified from inheriting.

Special Rules and Exclusions

  1. Daughters: Sometimes excluded in certain communities or under specific statutes.
  2. Rule of Primogeniture: In some regions, the eldest son inherits preferentially.
  3. Certain Customs: Specific statutes or customary practices may alter inheritance rules.

Share Allocation (for Sunni Law)

Sharer Normal Share of One Normal Share of Two or More Collectively Conditions
Father 1/6 N/A With agnatic descendant
True Grandfather 1/6 N/A With agnatic descendant & no father
Husband 1/4 N/A With agnatic descendant
Wife 1/8 1/8 With agnatic descendant
Mother 1/6 N/A With agnatic descendant or two or more siblings
True Grandmother 1/6 1/6 No mother and no nearer true grandmother
Daughter 1/2 2/3 No son
Son’s Daughter (h.l.s) 1/2 2/3 No son, daughter, or higher son’s son
Uterine Brother or Sister 1/6 1/3 No child, child of a son h.l.s., father, or true grandfather
Full Sister 1/2 2/3 No child, child of a son h.l.s., father, true grandfather, or full brother
Consanguine Sister 1/2 2/3 No child, child of a son h.l.s., father, true grandfather, full brother, full sister, or consanguine brother

This framework ensures that the distribution of an estate under Muslim law is conducted in an equitable and religiously compliant manner, reflecting both the legal and ethical principles inherent in Islamic inheritance rules.

 

 

Scroll to Top