MUSLIM PERSONAL LAW

OUT LINE :

1. Gift or Hiba
2. Muslim Family Laws Ordinance – Salient Features
3. Laws of Inheritance
4. Will
5. Marriage
6. Dower
7. Dissolution of Muslim Marriage
8. Divorce
9. Maintenance
10. Parentage, Legitimacy, and Acknowledgement
11. Guardianship
12. Waqf

GIFT OR HIBA:
It 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.”
Essential Elements of a Gift: The essential elements of a gift are:
1. The donor
2. The donee
3. The absence of consideration
4. The subject-matter
5. Declaration of gift by the donor
6. An acceptance of the gift, express or implied, by or on behalf of the
donee, and
7. Delivery of possession of the subject of gift.
Kinds of Hiba or gift: It has its four kinds that is
1. Areeat,
2. Sadqah,
3. Hiba-bil-iwaz, and
4. Hiba-bil-shartl-iwaz.
 They are defined as follows:
1. Areeat: The grant of a licence or giving of the use of enjoyment or
usufruct of a thing (use of something without consideration) is called
areeat.
The four essentials of an areeat are that
(i) Can be revoked;
(ii) It must be a transfer of ownership in the property;
(iii) It must be for a definite period, and
(iv) It does not devolve upon the heirs of the donee on his death.

2. Sadqah: It is a gift made with the object of acquiring religious

merit or spiritual benefit. It is made on permanent and non-
returnable basis.

3. Hiba-bil-iwaz: It is a gift for consideration and looks like a sale

and has all incidents of a contract of sale.
It resembles a sale in that
(a) transfer of title is complete without delivery of possession, and
(b) all the incidents of sale attach to it, including —
(i) the liability of being pre-empted, where the law of pre-emption is in
force, and
(ii) the right to return a thing for a defect.

3 To constitute a valid Hiba-bil-iwaz,

The following two conditions must be present:

(i) Actual payment of consideration (iwaz) on the part of the donee; and
(ii) An intention on the part of the donor to divest himself in praesenti of
the property, and to confer it upon the donee. Inadequacy of its
consideration absolutely immaterial. Whatever its consideration is, it
must be actual with intention. A pen can be sold in rupees one million
and BMW car in rupees ten.

4. Hiba-bil-shart-ul-iwaz: Where a gift is made with a stipulation (shart)

for a consideration (iwaz) it is called hiba-ba-shart-ul-iwaz. In the case
of hiba- ba-shart-ul-iwaz, delivery of possession is necessary, and the
gift is revocable until the iwaz is paid. On payment of iwaz
(consideration) by the donee, the gift becomes irrevocable.
It is also called contingent gift, which becomes valid upon happening of
certain thing.
According to Transfer of Property rules Hiba is a “transfer of property
made immediately and without any exchange.”
Syed Ameer Ali says, “it is a voluntary gift which is made without
consideration of property or substance of the thing by one person to
another so as to constitute the donee, the proprietor of the subject
matter of gift.”
Baillie says, “conferring the right of property without an exchange.”

Essentials of valid gift: Gift is not valid until certain conditions are
fulfilled such as:
1. Offer: The donor makes it.
2. Acceptance: To whom offer is made, the donee, accepts it.
3. Delivery of possession: It constitutes and completes gift.
4. Subject matter: It must be transferable and must be transferred
actually.
5. Sound mind: Person of unsound mind is not capable to make gift.
6. Major: Donor must attain age of majority before he makes gift.
7. Free consents: Consents of donor and donee must be free. Coercion
invalidates gift.
8. Muslim: Transfer of property in term of gift is subject to Islam. Non-
Muslims are excluded from this transaction.
9. Solvency: Insolvency makes person unable to make gift. Conditions
for donee: Donee is a person to whom gift is made. His eligibility is
subject to certain conditions such as:
1. Any person: He may either be Muslim or otherwise.
2. Mind: Donee may be a person of sound or unsound mind.
3. Age: Majority or minority do not restrict him to become as donee.
4. Guardian: He may act as donee for his Ward.

Exceptions: Person who is non-existent may not become as donee. But

in opinion of some jurists, person whose birth is expected within six
months, gift can be made in his favour. Guardian or father of unborn
person may act as donee for him until his birth takes place. Extent of
donor’s power: Whole of property is subject of gift and it can be made
even in favour of legal heir.

Gift of Musha Musha: It is an undivided share in property.

Kinds of Musha:
It has two kinds as follows:

1. Where property is divisible: A gift can be made after the property is

divided. Otherwise it shall remain invalid but not void. When the
property in which the donor has an undivided share is capable of
partition, the gift is irregular, but not void. Such a gift may be perfected
and rendered valid by subsequent partition and delivery to the donee of
the share given to him.

2. Where property is indivisible: Undivided share may be subject of a

valid gift, which is capable of partition. When the property in which the
donor has an undivided share is capable of partition the gift is valid.
For instance, 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 is valid since a staircase is incapable of division.
Motorcycle or cow is best example of indivisible property.

Exceptions: Musha is subject of conditions as under:

1. Husband and wife: Where they make gift even from divisible property
cannot invalidate gift.
2. Legatee: If a legatee makes gift to another and transfers share, is
valid gift.

Revocation of gift:

There are two reasons which govern the revocation of gift, as follows:
1. Before delivery: Since gift remains incomplete before delivery,
therefore it is revocable before delivery.
2. By Court: Courts are also competent to invalidate the gifts.

Exceptions in revocation: Gift cannot be revoked in following

conditions:
1. Husband and wife: They cannot revoke their gifts after or before
delivery of possession.
2. Blood relatives: Where donor and donee fall within prohibited
degrees and are so related.
3. Death: Death of donee restricts its revocation.

Subsequent transfer:
Where donee subsequently sells or makes gift to another than it
becomes irrevocable.
5. Destruction: Destruction or lose makes gift irrevocable.
6. Inflation: Increase in price of gift makes it irrevocable.
7. Conversion: Where gift so made has changes its actual shape or
becomes un-identifiable, i.e., wheat is converted into flour by grinding or
clothe has been stitched.
8. Consideration: Where gift was made in consideration.
9. Sadqah: It is also irrevocable. Conclusion The gift is a contract
consisting of a proposal or offer on the part of the donor to give a thing
and acceptance of it by the donee. So it is a transfer of property
immediately and without any exchange.

MUSLIM FAMILY LAWS ORDINANCE –

SALIENT FEATURES Muslim Family Laws Ordinance has brought

certain changes, such as:
1. Formation of arbitration council: It facilitates both husband and
wife to settle their disputes by amicable ways by putting them in
arbitration which consists on Chairman and two members one each
from both sides.
2. Registration of marriages: Previously marriages were not got
registered thus many problems were created at the time of evidence in
Court. Muslim Family Laws Ordinance made it very easy to prove
marriage by presenting the documents of registration of marriage.
3. Form of Marriage Registration: Government has prescribed form of
marriage registration in which all necessary details are incorporation
particularly interest of woman is protected such as right of divorce and
settlement of dower.
4. Polygamy: Although it is not prohibited but it requires written
permission from the existing wife. This has protected the interest of
emotional affiliations.
5. Divorce: Divorce also follows the laws as marriage follows the laws.
Muslim Family Laws Ordinance has prescribed the rules and
regulations of the dissolution of Muslim Marriage. Divorce also requires
Court decree. Valid grounds for the dissolution of marriage are provided
in the rules.
6. Maintenance: Husband is made liable to provide maintenance to his
wife, which is necessary in life.
7. Dower: Dower is provided in the prescribed form of marriage and if it
is unfixed then customary or proper dower remains payable.
 LAW OF INHERITANCE

Narrated by Abu Huraira may Allah be pleased with him-: The prophet
peace be upon him said: "Learn the fara'id (laws of inheritance) ‫ا ﻟ ﻔ ﺮا ﺋﺾ‬
‫ ﻋ ﻠ ﻢ‬and teach it, for it is half of knowledge and it is (easily) forgotten,
and it is the first thing to be taken from my nation".
Ibn Majah and Daraqutni Inheritance is an important branch of the
family law of the Muslims.

The death of a person brings about a transfer of most of his rights to

persons who are called his heirs and representatives.
The transferable rights include all rights to property, usufruct, many
dependent rights, such as debts and [unrecognizable word] in action,
rights to compensation, etc., and the transmissible obligations are those
capable of being satisfied out of the estate of the deceased. What is left
after the payment of funeral expenses and the discharge of his debts
and obligations is to be distributed according to the law of inheritance.

Heritable property: Following is the property, which will be divided into

heirs after meeting the necessary expenses, as the priority set by Islam.
There would be no distinction in movable and immovable property.
1. First of all funeral expenses of deceased will be paid.
2. Expenses of obtaining probate and letters of administration from the
competent Court.
3. Wages for personal services to the deceased within the three months
of death.
4. Later debts of the deceased will be paid. a) Debts to Allah (Unpaid
Zakat etc.) b) Debts to humans
5. Deferred dower is also debt.
6. Will or Waseeyat to be implemented (not exceeding 1/3 of the
property).
7. Remaining is divided among heirs. If at the time of division of
property other relatives, orphans or poor are present give them out of it
(Quran 4:8). It’s optional, and if all the heirs agree.

The Hanafi Law of Succession

The Sunni law recognizes three classes of heirs:

(1) Sharers or Ashab-ul-Furud - The sharers are those heirs whose

shares or proportions have been fixed / prescribed in the Quran. They
take their specific portions and the residue is then divided among the
Agnates.
(2) Residuaries or The Asabah or Agnates - The residuaries are those
heirs, who are not entitled to prescribed share of inheritance, but are
entitled to succeed to residue after satisfaction of sharers’ claim.

(3) Distant kindred or Dhauil-arham or Cognates or Uterine Relations i.e.

blood relations who do not fall in the category of sharers or residuaries.
Sharers or Ashab-ul-Furud Primary Heirs or Obligatory Heirs are
referred to as Ashab-ul-Furud means “possessors of obligatory share”.
These are the family members with fixed shares whose share is
exclusively set by Quran. Hence, they are called Quranic heirs or
Obligatory shares. See the verses 11 & 12 in Surah Nisa

4. All together there are twelve primary heirs, nine are mentioned by
Quran and three are added by Fuqaha using Qiyas (Analogy).These
include:

CATEGORY GENDER HEIRS NINE from Quran:

Explicitly mentioned in Quran

PARENT MALE
1. Father SPOUSE MALE
2. Husband SIBLINGS MALE
3. Uterine Brothers (brother from mother full or half – Having same
mother)
PARENT FEMALE
4. Mother SPOUSE FEMALE
5. Wife (ves) CHILDREN FEMALE
6. Daughter (s) SIBLINGS FEMALE
7. Full Sister (s) SIBLINGS FEMALE
8. Consanguine sisters (Half-sister from father)
SIBLINGS FEMALE
9. Uterine sisters (Half-sister from mother) THREE from Qiyas (analogy)
and Ijma (Consensus): Added by Jurists based on Qiyas (Analogy).
They replace (father, mother, daughter) in their absence. Grandmother
is also mentioned in Hadith.

GRANDPARENTS MALE
10. True Grandfather (A male ancestor between whom and the deceased
no female intervenes, e.g., Father’s Father (FF) or Father’s Father’s
Father (FFF).
False Grandfather means where a female intervenes, e.g., mother’s
father (MF), father’s mother’s father (FMF) or father’s father’s mother’s
father (FFMF)).

GRANDPARENTS FEMALE
11. True Grandmother CHILDRENS FEMALE
12. Son’s daughters (How ever low in chain)

Shares of the Primary Heirs Spouses Husband will inherit If his wife has
no descending heirs (children) - 1/2 share of full bequest. I
f his wife has descending heir - 1/4 share of full bequest.
Wife will inherit If her husband has no descending heirs - 1/4 share of
full bequest.
If her husband has descending heir - 1/8 share of full bequest.
(Co-wives share the same fixed amount i.e. Fard – Only 1/8th will be
divided among all).
Parents Parents shall get 1/6th each, if deceased has children. If
deceased has no children, Mother will inherit 1/3rd share of total
bequest (legacy) and the rest 2/3 of it belongs to the father.
If deceased has brothers and sisters then mother shall inherit 1/6th of
bequest (legacy) and the remaining five-sixth of the inheritance belong to
the father.
True Grandfather will replace the father in case father is not alive and
his share will be 1/6. Grandfather will be totally excluded, if father is
alive.
True Grandmother will replace the mother in case mother is not alive
and his share will be 1/6. Sons & Daughters

1. If deceased has 1 daughter and no son then daughter shall inherit ½

share of full bequest.
2. If deceased has no son but 2 or more than 1 daughter then all of
them shall inherit 2/3rd of the total bequest (legacy) and shall divide
among them equally.
3. Son will get the double share as the share of a daughter. Brothers &
Sisters

1. If deceased has neither parents nor children but only brother and
sister (two only), then each of them two shall have a 1/6 share of full
bequest.
2. If deceased has neither parents nor children but brothers and sisters
(more than two), then they will have 1/3 share of full bequest.
3. In case of brothers and sisters the sharing ratio will be 2:1.
4. If deceased has neither parents nor children & brothers but has a
sister, she will get ½ share.
5. If deceased has 2 sisters, they will get 2/3rd share equally.
6. If sister dies issue-less then brother shall inherit (residuary) all
property.

List of residuary in order of succession

SUNNI LAW

(I) Descendents.
(1) Son.
(2) Son’s son (How low-so-ever – (HLS).
(II) Ascendants.
(3) Father.
(4) True Grandfather (How high-so-ever – (HHS).
(III) Descendents of father.
(5) Full Brother.
(6) Full Sister.
(7) Consanguine brother.
(8) Consanguine sister.
(9) Full brother’s son.
(10) Consanguine brother’s son.
(11) Full brother’s son’s son.
(12) Consanguine brother’s son’s son.
(IV) Descendents of True Grandfather (How high-so-ever – (HHS).
(13) Full paternal uncle.
(14) Consanguine paternal uncle.
(15) Full paternal uncle’s son.
(16) Consanguine paternal uncle’s son.
(17) Full paternal uncle’s son’s son.
(18) Consanguine paternal uncle’s son’s son.
(19) Male descendents of more remote true grandfathers, i.e., deceased’s
paternal uncles and their sons and son’s sons.

List of distant kindred in order of succession

Sunni Law:
There are three classes of heirs, namely, sharers, residuaries, and
distant kindred. Distant kindred are all those relations by blood who,
are neither sharers nor residuaries. They have blood relationship but
normally they do not inherit but in rare cases they may inherit if there
is no residuary.
They do not fall in first and second categories and also inherit little.
Distant kindred are four in classes.
The following is a list of Distant Kindred comprised in each of the four
classes:
(I) Descendants of the deceased:
(1) Daughter’s children and their descendants.
(2) Children of son’s daughters (How low-so-ever – (HLS) and their
descendants.

(II) Ascendants of the deceased:

(3) False grandfathers (How high-so-ever – (HHS).
(4) False grandmother (How high-so-ever – (HHS).

(III) Descendants of parents:

(5) Full brothers’ daughters and their descendants.
(6) Consanguine brothers’ daughters and their descendants.
(7) Uterine brothers’ children and their descendants.
(8) Daughters of full brothers’ sons (How low-so-ever – (HLS) and their
descendants.
(9) Daughters of consanguine brothers’ sons (How low-so-ever – (HLS)
and their descendants.
(10) Sisters’ (foster, consanguine, and uterine) children and their
descendants.

(IV) Descendants of immediate grandparents (true or false):

(11) Full paternal uncles’ daughters and their descendants.
(12) Consanguine paternal uncles’ daughters and their descendants.
(13) Uterine paternal uncles’ and their children and their descendants.
(14) Daughters of full paternal uncles’ son (How low-so-ever – (HLS) and
their descendants.
(15) Daughters of consanguine paternal uncles’ son (How low-so-ever –
(HLS) and their descendants.
(16) Paternal aunts (foster, consanguine, and uterine) and their children
and their descendants.
(17) Maternal uncles and aunts and their children and their
descendants. and Descendants of remoter ancestors (How high-so-ever –
(HHS) (true or false).

Legatee: The term legatee refers to any person or entity that receives
an inheritance from a will.
Types of Legatees: There are two types of legatees:
1) Related persons and
2) Unrelated persons.
Unrelated legatees are further subdivided into four kinds as follows:
1. Succession by contract: Both Shia and Hanfi schools are agreed on
succession by contract. In case of death, partner inherits who has
contractual relationship and in case of death of other partner, the first
one inherits.

2. Acknowledged kinsman: This is the person who is acknowledged as

relationship being brother for the purpose of inheritance, in the absence
of real relatives. Majority of jurists agrees.

3. Universal legatee: He should be non-relative and eligible only for

1/3rd of the total legacy (bequest). But this is applicable in the absence
of legatee, i.e., sharers, residuaries, and distant kindred should not alive.
4. Government or Bait-ul-Ma’al: If there is neither legatee nor
contractual relationship, acknowledged kinsman, and universal legatee,
then all of the legacy (bequest) will go to government.

According to the Shia school this will be utilized for the poor people who
reside within the city. But according to the Sunni law it may be utilized
in all over the world. It is justified that government is the overlord of the
state.

Obstacles to succession: There are certain impediments to succession:

(1) Slavery, because a slave has no right to property.
(2) Homicide, a person killing another does not inherit from the latter.
(3) Difference of religion.
(4) Difference of territorial jurisdiction either natural or constructive.

Rule of exclusion: It has two kinds, i.e., partial exclusion and total
exclusion.

Rule of exclusion Total Partial Permanent Temporary Homicide:

In case of homicide murderer would be excluded for the purpose of
inheritance as per the tradition. There are two points of views, i.e.,
Sunni and Shia sects (schools).
Sunni: Homicide either intentional or accidental would exclude to the
murderer. Though right of defence is available which does not affect
inheritance.
Shia: Only intentional murder would deprive to the murderer.
Illegitimacy: Inheritance to illegitimate is different in both sects
(schools) Sunni and Shia as follows: ·
Sunni: Illegitimate is deprived in inheritance but he inherits from
mother or other maternal relatives. ·
Shia: Illegitimate is deprived from both parental and maternal sides.

Permanent exclusion: Difference of religion excludes from inheritance

but there are two viewpoints as follows: ·
Sunni: Non-Muslim can’t inherit from Muslim.
Shia: Non-Muslim cannot inherit from Muslim but Muslim can inherit
from Non-Muslim.

Temporary exclusion: It has two kinds as follows:

Temporary exclusion Total exclusion Partial exclusion
1. Total exclusion: Orphan grandson (BMÌ‚ ÁÎNÍ) is deprived from the
inheritance of his grandfather.
2. Partial exclusion: Here example of Husband and Wife is applied.
Difference of allegiance (loyalty or faithfulness): Muslim of State at War
cannot inherit from the Islamic State and vice versa.

Rule of estoppel in succession or inheritance means that first statement

can’t be revoked. A person who has never admitted a child, as his son
can’t claim inheritance after his death, being his son. Here rules of
estoppel are applied. Vested inheritance: Muslim heirs acquire an
absolute interest in specific shares of the estate of their ancestor, even
before distribution. The time of distribution is not material. Succession
opens at the position prevailing at the moment of death of the ancestor.
‘Vested inheritance’ may occur i.e. if an heir dies before distribution, but
was alive at the ancestor’s death, the share of his/her vested
inheritance passes on to his/her heirs.

Rule of Spes Successionis (Chance of getting succession): It does

mean hope of succession. It also does mean that person wants to sell
his property on which he has no right of ownership but expecting
succession. Property can be sold only after getting right of ownership.
Inheritance is decided only after the death. Such an expectancy does not
amount to an interest in property and cannot be made the subject
matter of a transfer.

Shia Law of inheritance: According to Shia law, there are two classes
of heirs:
1. Heirs by consanguinity, and
2. Heirs by special cause or contractual relationship. Special cause
is also further subdivided in two classes:
(1) By marriage.
(2) By special relationship.

This kind further is subdivided in following classes:

(1) Slave who has been released.
(2) Imam. Heirs by consanguinity Heirs by consanguinity mean those
heirs, who are blood relations. These heirs are further classified info
following classes / groups:

Group – 1 (a) Parents (Father & Mother).

(b) Children & Other lineal descendants (How low-so-ever – (HLS).

Group – 2 (a) Grandparents (True as well as False) (How high-so-ever –

(HHS)
(b) Brothers, Sisters, and their descendants.

Group – 3 (a) Parental Uncles & Aunts (How high-so-ever HHS)

(b) Maternal Uncles & Aunts.

If group 1 dies and there is only one daughter, she will inherit entire
bequest (legacy or estate). Within one group all are entitled to inherit
and no one can exclude remaining other one in the same group. All will
simultaneously inherit.
Group 1 excludes group 2 & 3. Group 2 excludes group 3. One group
excludes remaining other one. Both sections within one group inherit
simultaneously.

Priority: Following is the priority list according to the Shia law:

1. Sharers.
2. Residuaries.
3. Released slave.
4. Succession by contract.
5. Return to sharers.
6. Imam or poor people of city. Issue-less widow does not inherit. Fixed
sharers in Shia law:

There are nine classes who inherit, list of which is as follows:

1. Husband.
2. Wife.
3. Father.
4. Mother.
5. Daughter.
6. Uterine (maternal) brother.
7. Uterine (maternal) sister.
8. Full sister.
9. Consanguine (paternal) sister.

WILL
Will is a desire of a person to transfer property to another, which takes
effect after his death. Will is a legal declaration of the intention of the
testator with respect to his property, which he desires to be carried into
effect after his death.

To whom it can be made:

There is no restriction to make Will in favour of any person, other than
heir or legatee. It can be made in favour of person or institution such as
school, mosque, or library etc.
The most important matter which regulates this rule is that it must be
lawful object in whom favour it is to be made.

Limitation: It has certain limitation, particulars of which are as stated:

1. Capacity: Person who disposing of his property by Will must be

competent.
He must be person of sound mind and if he is occasionally person of
sound and unsound mind, he must be a person of sound mind at the
time of making Will. He also should be person of sound mind at the time
of death. It is presumed that there may be chance to change Will if he is
person of sound mind when he died.

2. Existent property: Property, which is not existent or of future nature

cannot be subject matter of a valid Will. It should also be existent at the
time of death of testator.
3. Possession of property: Person making Will should have possession
of the property so subject of Will. Possession of present property
constitutes valid Will. Future possession is sufficient to invalidate it.
4. Limited portion: A person so desirous cannot dispose of his property
more than one third of the surplus of his estate after payment of funeral
expenses and debts.
5. Subject of Will: Legatee or heir cannot take property out of Will.
6. Time of execution: Property in Will is delivered after death of
testator. Will remains suspend during the lifetime of testator. It becomes
effective only after his death.
7. No formality: There is no formality to execute the Will.
8. Acceptance: Until the subject of Will does not accept it, it remains
invalid. Acceptance in life has no effect.

Capacity of testator: There are some qualifications of testator such as:

1. Major: Only a major can dispose of his property by way of Will. Minor
may receive property but cannot make Will.
2. Possession: Future possession of property does not operate Will.
Possession of property must be there at the time of making Will.
3. Wise: A person who is not wise cannot make Will. Lunatic person
may make Will during interval period.
4. Solvent: Insolvent person cannot make Will.

Subjects of will: Following are the persons to whom Will can be made:
1. Minor: Majority is no more important as far as the receipt of Will is
concerned. Majority is the condition of making Will while it is
disregarded at the time of delivery of property.
2. Unsound mind: It can be delivered also to the person of unsound
mind and his wise-ness is negated.
3. Existent: Only existent person is taken into consideration for Will.
4. Non-existent: Conditional Will can be made for the person who is
still in womb. Will shall be valid if he is born within six months after
making Will. His next friend may accept Will, otherwise implied
acceptance is presumed.
5. Acceptance: Where there is not acceptance, there is no execution of
Will. Legatee must accept it.
6. Free consents: Consents of the person who accepts it should be free
without using influence of his superior. Coercion, fraud, and
misrepresentation invalidate Will.

Forms of Will: Will can be made either expressly or implied – verbally

or in writing or regardless it is verbal or written, intention of testator
must be clear.

Exception: Although Will cannot be made in favour of heir or legatee

but there is exception to this rule. If there are more than one legatees
and they do not object if Will is made in favour of one, it shall be valid. If
there is one legatee, he can acquire property by way of Will. Free
consents after death of testator should be obtained. Any single heir may
consent so as to bind his own share. If heirs deviate at the time of death
of testator, Will in favour of heir would become ineffective. Bequest
cannot be made in favour of murderer legatee. Bequest also can be
made to the person who is not legatee or heir. In determining whether a
person is or not heir, regard is to be had, not to the time to the
execution of the Will, but to the time of the death of testator.

Revocation of Will: Bequest can be revoked at any time either

expressly or by implication.
1. Express revocation: Revocation is express when testator revokes the
bequest in express terms either written or oral.
2. Implied revocation: Conduct of testator revokes the bequest. Any
act of testator which adds or extinct the proprietary rights, operates
revocation. Where a testator builds a house, Will of piece of land revokes.
When animal is slaughtered, bequest is revoked. When a piece of metal
is converted into vessel, Will of metal is revoked. Sale of gift of house
revokes its Will.
3. Revocation by subsequent Will: Where a same property is
bequested to another, subsequent Will shall revoke to prior Will.
Exception: Where same property is bequeathed subsequently to
another person in the same Will, prior bequest shall not be extinguished,
but is shall be divided equally.

4. Revocation by refusal: If person refuses to accept property of Will,

shall make Will invalid. It shall return property to legal heirs.

DEATH-BED-ILLNESS: It is a malady (ailment, illness, disease)

which induces an apprehension of death in the persons suffering from it
and which eventually results in his death.
It is an essential condition of death- bed-illness that the person
suffering from the malady must be under apprehension of death.
The most valid definition of death-bed-illness is that one, which it is
highly probable, will issue fatally.

Baillie: Where the malady is of long continuance as for instance,

consumption or alluminuria, and there is no immediate apprehension of
death, the malady is not death-bed-illness. It may become death-bed-
illness if it subsequently reaches such a stage as to render death highly
probable, and does in fact result in death.
Hidaya: A malady is said to be of “long continuance” if it has lasted a
year, a disease that has lasted a year does not constitute death-bed-
illness, for “the patient has become familiarized to his disease which is
not then accounted as sickness”. But this limit of one year does not
constitute a hard and fast rule, and it may mean a period of about one-
year.

Essential ingredients: To constitute a malady death-bed-illness,

there must be:
1. Proximate danger of death, so that there is preponderance (majority,
primacy, dominance, supremacy, influence) of apprehension of death.
2. Some degree of subjective apprehension of death in the mind of the
sick person.
3. Some external indicia chief among which would be inability to attend
to ordinary avocations (hobby). Opinion of third person either relative or
doctor is immaterial and state of mind of sick person becomes material.
There may be other reasons apart from fatal disease; such as
apprehension of destruction of plane during flight, sink of ship, air
storm, and death penalty also constitute death-bed- illness.

Effects of death-bed-illness on different transactions:

Where marriage is conducted during death-bed-illness: It has two effects:
1.Legal status: This marriage is legally irregular.
2. Validity: Consummation converts it into valid. Also death of second
companion constitutes it as valid.

2. Dower: There is no validity of fixation of dower during death-bed-

illness. If dower remains unpaid, proper dower shall be determined and
whatever its amount appears, lesser shall be payable.

3. Divorce: If divorce takes place during death-bed-illness due to swear

or imputation of un- chastity (slander), widow shall inherit upon death
of her husband during probationary period. Death has not effect on
inheritance for husband. Male shall inherit in any way.

4. Gift: If all property is given in gift to non-sharer, it shall be valid upto

the extent of 1/3rd . Remaining shall go to fixed sharers. If gift is made
to sharers they shall not inherit and gift shall become invalid.

5. Acknowledgement of debt: Debts are paid out of legacy of deceased

person before inheritance. Acknowledgement of debts during health
shall prevail. Acknowledgement of debt during death-bed-illness shall be
paid later. If estate of deceased does not cover all debts it shall be
distributed proportionately. Acknowledgement in favour of legatee
becomes valid. In Shia law it is valid upto 1/3rd . In Shafi law all is
valid.

6. Trust: If trust is created out of all property, only upto the extent of
1/3rd shall prevail. If legatees give their consents in favour of trust
without any objection, entire property shall vest to trust

MARRIAGE
Contract of marriage is defined as “it is a religious contract between a
man and a woman the object of which is legalization of sexual
intercourse, procreation (reproduction), legitimization of children, and
regulation of social life.”

Importance: There are several Traditions of Hazrat Muhammad (PBUH)

such as:
1. Marriage is my Sunnat and he is not among us who does not
solemnize (celebrate, venerate) it.
2. Marriage completes conviction (faith).
3. Whoever may pay dower must solemnize (celebrate) marriage. The
above Traditions prove the contract of marriage obligatory.

Essentials of contract of marriage: A valid marriage cannot solemnize

without following essentials: 1. Offer (Ijab).
2. Acceptance (Qabool).
3. Two Muslim witnesses.
4. Sanity.
5. Capacity of parties.
6. No legal disabilities.
7. Same meeting. According to Malki and Shafi schools contract of
marriage is made only through guardian.
No one directly may solemnize (celebrate) marriage.

According to Hanfi school any wise and adult may give his consents.
Shia law does not follow the condition of witnesses. However they
demand witnesses at the time of divorce.

Who may be guardian: In Malki school only father is guardian.

Under Shia school father and grandfather are admissible.
According to Hanfi school male relative within prohibited degree
(impediments) may be guardian. Option of puberty is given to the minor
when he attains the age of majority, which is in this case eighteen (18)
years.
According to Hanfi school if father or grandfather decides the marriage
of minor then option of puberty is not granted to the minor after he
attains the age of majority, i.e., eighteen years.

Imam Yousaf permits option of puberty in any circumstances. According

to prevailing Law of Land, i.e., Dissolution of Muslim Marriage Act,
option of puberty is given to every person upon the attaining of age of
majority.
Two years are given to the person concerned to decide whether he wants
to accept the marriage of minority or not. But if the marriage of minor
comes into his knowledge late after attaining the age of majority, then
the period of two years of option of puberty will start from the date of
such knowledge. Period for option of puberty in the opinion of some
jurists is three years.

When contract of marriage is confirmed: When female demands her

dower and male pays it, marriage confirms.
If female receives her dower but later on she tries to annul the contract
of marriage then rule of estoppel applies.
Under the guardianship of father or grandfather, consummation of
marriage also confirms the marriage. It should be with consents of both
male and female.
In case where Court appoints guardian who may be third person apart
from blood relative, there Court grants permission of contract of
marriage keeping in view of interest of minor.
Age of majority remains eighteen years for the purpose of marriage.

Kinds of marriage: There are three kinds of marriage which are given
below;
1. Valid
2. Irregular
3. Void
A marriage, which is not valid, may be either void or irregular. A
void marriage is one which is unlawful in itself the prohibition against
marriage being perpetual and absolute. Thus, a marriage with a woman
prohibited by reason of consanguinity, affinity, or fosterage is void.

Effects of valid marriage: A valid marriage confers upon the wife the
right to dower, maintenance, and residence in her husband’s house,
imposes on her the obligation to be faithful and obedient to him, to
admit him to sexual intercourse, and to observe the iddat.
It creates between the parties prohibited degrees of relations and
reciprocal rights of inheritance.

Effects of void marriage: A void marriage is not marriage at all. It does

not create any civil rights or obligations between the parties. The
offspring of a void marriage are illegitimate.

Effects of irregular marriage: An irregular marriage may be terminated

by either party, either before or after consummation, by words showing
an intention to separate, as where either party says to the other “I have
relinquished (remised, left, neglect) you”.
An irregular marriage has no legal effects before consummation. If
consummation has been taken place then:
1. Wife is entitled for dower either proper or specified whichever is lesser.
2. She is bound to observe the iddat, but the duration of the iddat both
on divorce and death is three courses.
3. The issue of the marriage is legitimate. But an irregular marriage
though consummated, does not create mutual rights of inheritance
between husband and wife.

Impediments of contract of marriage: There are some legal disabilities

or prohibitions to make the contract of marriage. List is as follows:
1. Absolute prohibition: It is total prohibited contract of marriage and
it cannot be made in any circumstances.
(1) Consanguinity. (1) Mother and all female ascendants (How high-so-
ever – (HHS)).
(2) Daughter and her female descendents (How low-so-ever – (HLS)).
(3) Sister and her female descendants (How low-so-ever – (HLS)).
(4) Brother’s daughter (How low-so-ever – (HLS)).
(5) Mother/father’s sisters (not her descendants (How low-so-ever –
(HLS))).

(2) Affinity (because of Marriage or Nikkah): According to Hanfi law

adulterous relatives are also included in affinity and daughter from such
woman is prohibited.

According to Shia law it is prohibited as the consanguinity is prohibited.

(1) Mother-in-law.
(2) Wife’s daughter (stepdaughter).
(3) Son’s wife or son’s son’s wife (How low-so-ever – (HLS).
(4) Step mother.

(3) Fosterage: In Sunni law some relatives are allowed to make contract
of marriage in case of fosterage. They are as follows:
(1) Sister’s foster mother.
(2) Foster sister’s mother.
(3) Foster brother’s sister.

How the fosterage is established: When woman feeds child with her
milk then fosterage is established.
According to Hanfi school feeding once creates fosterage.
As per Shafi school at least five times feeding establishes fosterage.
Under Shia law 15 times’ or twenty four hours’ feeding establishes
fosterage.

What is duration of feeding: Majority agrees on two years’ feeding. But

Imam Muhammad and Imam Yousaf who were disciples of Imam Abu
Hanifa specify the feeding upto 2½ years.

Age of foster mother: Majority agrees that the age of foster mother
should be at least nine years which is age of majority in some cases.
Plurality of husbands: It is not lawful for a Muslim woman to have
more than one husband at the same time. It is void marriage.

2. Relative or temporary prohibition: It defectives contract of

marriage but in certain circumstances it may be converted into valid
contract of marriage if so rectified.

(1) Unlawful conjunction. A man may not have at the same time two
wives who are so related to each other by consanguinity, affinity, or
fosterage, that if either of them had been a male, they could not have
lawfully intermarried, as for instance, two sisters, or aunt and niece.
The bar of unlawful conjunction renders a marriage irregular, not void.
(2) Polygamy. A Muslim man is allowed to marry upto four women at
the same time but at the same time he is not allowed to have fifth
marriage. Such fifth contract of marriage is irregular.
(3) Absence of proper witnesses. Two male witnesses or one male and
two female witnesses are necessary to confirm the contract of marriage
while marriage in contrast put the contract into irregular contract of
marriage.
(4) Difference of religion. A Muslim cannot make contract of marriage
with Non-Muslim like Hindu, idol-a-tress, or a fire-worshipper.
(5) Woman undergoing iddat. A marriage with a woman before
completion of her iddat is irregular.

Presumption of marriage: It means that marriage, which is presumed,

has been taken place when continuous cohabitation as couple has been
proved, the man has acknowledged the paternity of the child, or he has
acknowledged the woman as wife, unless the contrary is proved.
Valid retirement: It is meeting in hidden portion of the home or area
where cohabitation can take place but they did not commit intercourse
is called valid retirement.

DOWER
Dower: It is a consideration of contract of marriage, which the wife is
entitled to receive from her husband.
Importance:
1. Quran has underlined the importance of dower. You must wish them
(wives) in consideration of property.
2. It is one of an obligation imposed upon husband toward his wife as a
symbol of respect.
3. If the dower is not specifically provided at the time of contract of
marriage then it is presumed that it has been provided in limited term.
It is notable thing that dower may remain un-decided. It will not make
the contract invalid. Marriage will take place without its provision. It will
remain payable in case it is not specifically provided.
4. It is a right of wife and wife may refuse cohabitation if it is not paid
on demand.
5. Wife may remit dower but according to Court’s decision remission of
dower does not debar woman to claim it again. Object to remit the dower
is to achieve pleasure of husband.
6. Minor may receive dower but cannot waive off (remit) the dower.
Guardian may also not waive off it. Guardian is obliged to protect
interest of minor. Gifts of husband do not form dower.
7. Dower is a debt and payable after death from the legacy of husband,
before distribution of his estate, apart from inheritance.
8. If prohibited goods are settled as dower then it shall be presumed
that it is unsettled and proper dower shall apply.

Subject matter of dower: Anything, which is permissible in Islam, may

be settled as dower. Following cannot be subject matter:
1. All the things which are prohibited in Islam, e.g., wine, pig etc.
2. Future goods cannot be dower, i.e., growing corps.
3. Personal services by the husband.
Limitation of dower:
• Under Shia law there is neither upper nor lower limit of dower.
• According to the Hanfi and Shafi schools the minimum limit is 10
Dirham. Settlement of less than 10 Dirham shall be presumed 10
Dirham.
• Under Shia law undecided dower shall not exceed 500 Dirham. If the
dower remains unpaid on demand, wife may refuse intercourse
(cohabitation or consummation) until or unless it is paid.
In Hanfi School after consummation, wife may again refuse cohabitation
if dower remains unpaid after demand.

Kinds of dower: In Islamic law dower is divided in two kinds, i.e.,

Specified and proper / customary dower. Specified dower is further
subdivided in two kinds, i.e., prompt and deferred dower.

Graph of dower is as follows: Dower Specified Proper or Customary

Prompt Deferred Specified dower: It is on the part of husband whether
what amount he likes to settle at the time of contract of marriage. It
cannot be settled less than 10 Dirhams in any case. Proper (Customary)
dower: Unsettled dower will be decided with proper or customary dower.
Average dower of wife’s father’s family, i.e., sister of her father shall
determine the proper dower.

Prompt dower: It is a dower which is either payable at the time of

contract of marriage or on demand at any time. It is payable within
three years on demand. If it is not paid within three years after death or
divorce and the case is not brought in Court, it will be considered time
barred. Deferred dower: It is a kind of dower, which is paid if divorce or
death takes place. In the opinion of Imam Muhammad and Imam Yousaf,
disciples of Imam Abu Hanifa, after consummation it cannot be refused
if dower remains unpaid on demand.

Proper dower: Following points are to be taken into consideration for

the settlement of proper (customary) dower:
1. Personal qualification of wife such as education, age, character, and
beauty etc.
2. Dower settled in paternal family of wife.
3. Social status of father’s family of wife.
4. Economic conditions of husband.
5. Any other important condition which must be considered at the time
of deciding the matter. Confirmation of dower:

Dower shall be confirmed when:

1. The marriage is consumed, i.e., cohabitation is done.
2. Valid retirement is happened.
3. Death of either the husband or the wife occurs;
• In case of death even there is no consummation, full dower is payable.
• Valid retirement does not establish dower.
• If divorce takes place without consummation of marriage and there is
no valid retirement ½ dower shall be payable.
• If divorce takes place due to any fault of wife, dower shall be lapsed.
• If divorce takes place without consummation and settlement of dower,
dower shall not be payable.

Remedies available to wife: Where husband commits default in

payment of dower, following remedies are available for his wife:
1. Wife may refuse cohabitation until dower is paid.
2. Right of dower as debt.
Wife may bring civil suit against her husband for the payment of dower.
It is a debt and remains payable after the death of her husband.
3. Wife may retain her deceased husband’s property, and may obtain
such possession in lieu of dower.

DISSOLUTION OF MUSLIM MARRIAGE: A Muslim married woman can

obtain a decree for the dissolution of her marriage on any one or more of
the following reasons before consummation, namely:

1. Disappearance: If husband disappears and no one knows his

whereabouts till four years, may cause claim of dissolution of marriage.
2. Negligence: If husband neglects his wife habitually and does not take
her care, she may invoke for dissolution of marriage.
3. Failure in maintenance: This is duty of husband to provide
sufficient maintenance necessary for life. If he fails, wife may claim
dissolution of marriage.
4. Sentence: Sentence to husband for or more than seven years in
commission of offence puts wife in demand of dissolution of marriage.
5. Failure in marital obligations: Marital relationship is right of wife.
Three years’ continue non-performance, without any reasonable cause,
is sufficient ground for dissolution of marriage.
6. Impotency: Impotency of husband at the time of marriage and still
its continuity is valid ground for dissolution of marriage.
7. Dread disease: If husband is suffering from any dread disease such
as leprosy or virulent venereal disease since two years may cause
dissolution of marriage.
8. Marriage in minority: If father of minor girl has given her in
marriage before attaining age of fifteen years, she may revoke marriage.

Where the marriage has not been consummated, following reasons

shall be sufficient grounds for the dissolution of marriage:
1. Habitual assault: If husband habitually assaults his wife and makes
her life miserable by cruelty of conduct even without physical ill-
treatment, may cause demand for dissolution.
2. Infamous life: If her husband associates with others women and
leads infamous life, shall amount reasonable ground for dissolution.
3. Induces for immoral life: Dissolution becomes necessary when
husband attempts to force her to lead immoral life.
4. Illegal prevention: When husband sells her property without her
consents and without any valid reason and prevents her to exercise her
legal rights, dissolution becomes imperative.
5. Obstruction in religious practice: A Muslim woman can exercise
her religious practice and may adopt religious profession. Obstruction of
husband in discharge of above obligations is valid reason for dissolution
of marriage.
6. Inequitable treatment: Muslim husband may have more than one
wives in certain cases but he has to treat all of them equitably. If he fails
to do so may one of his wives put in dissolution of marriage.

Decree of dissolution of marriage is not passed in following cases:

1. Where the sentence has not been final by Court, but if sentence
became final after all appeals, decree shall be issued.
2. Where husband appears within six months after passing such decree
and prepares to perform his conjugal duties. Decree, which has been
issued, shall be set aside.
3. Where he ceases his impotency within one year after making an
application in Court.
 DIVORCE
Divorce: It is discussed in Quran in Sura Al-Baqra under verses nos.
226, 236, 237, Sura Al- ahzab verse no. 49, Sura Mujadila verses nos.
3 and 4, and Sura Talaq verses from 1 to 7.

Literal meaning: It means to discriminate, leave, or reject. In

Islamic law it is release from the tie of the marriage either
immediately or eventually. It can take place personally or through an
agent. Right to divorce may be delegated. It may be either express or
implied. Cessation of relationship (tie) of marriage: Following are the
viewpoints of different Muslim jurists:

1. Sunni school emphasis on the wording of divorce. A word of

“divorce” can cease contract of marriage. Intention is no more
important in the case of divorce.
2. Shia law considers the presence of witnesses important at the time
of dissolution of marriage whereas Sunni do not regard the presence
of witnesses on such occasion. Presence of wife is not required for the
dissolution of contract of marriage, i.e., divorce but its
communication to her is important.
Limitation of time period for the claim of dower money is three years
from the date of such communication of divorce in this case.

Disqualification of divorce: Under certain conditions, the

right to divorce ceases:
1. Minor: He has no right of divorce even his guardian cannot
exercise the right of divorce. In case where male is minor and female
is major, guardian may get exercise the right of divorce but only
through Court.
2. Person of unsound mind: During the course of unsound mind, he
cannot use this right.
3. Unconscious person: During the course of unconsciousness
divorce cannot take place and remains invalid.
4. During sleep: It has no legal effects. However in case of ratification
(acknowledgement or confirmation) after getting up, divorce would
take place and become valid.
5. While intoxication: Voluntary intoxication is not excused in
divorce. It is treated as willful and makes divorce valid and effective.
In case involuntary intoxication or under coercion, under Hanfi
school divorce is invalid.
 There are certain Traditions on the subject of divorce such as, “all
divorces are valid except of minor and person of unsound mind.”

“Responsibility or liability has been ceased in case during sleep, of

minor unless he attains the age of majority, of person of unsound
mind, and the divorce on death-bed-illness.”

Woman shall inherit in case her husband dies during her period of Iddat,
if divorce is exercised on death-bed-illness. Possibility of the deprivation
of wife from inheritance can be put as justification behind the object. In
the opinion of Imam Abu Hanifa, Muhammad, and Yousaf divorce under
coercion takes place. Intention is not taken into consideration and leads
immaterial.

But in the opinion of Imam Malik, Shafi, and Hanbal and also in Shia
law, divorce is invalid which is given under compulsion. Person
committing act of coercion either physically or mentally must use force
to injure or attempt to injure the other one who commits divorce.
Under the Pakistan law divorce under compulsion or coercion takes
place. Knowledge and/or presence of woman become immaterial.
Divorce without knowledge of woman only affects her right of
maintenance and deferred dower, which extends to knowledge and
remains valid and payable till the period of three years. Marriage,
divorce, and retraction do not consider non- seriousness and/or humor
(jest or jocularity or amusement). In Iraq, Egypt, Morocco, and Sudan
divorce under coercion leads invalid.

Kinds of divorce:
Divorce is divided into four main different categories detail of which is as
follows:
1) Divorce on the basis of consequences: It has two sub-classes as
follows:

a) Revocable: It is a divorce in which husband can retract to his wife

without making another contract of marriage. It is resumption of
marriage or withdrawal of divorce.

b) Irrevocable: It is reverse situation of the former case. Divorce once

confirmed cannot be withdrawn. Husband cannot retract without
making another contract of marriage.

2) Divorce on the basis of prescribed form: It has two categories

which are further divided in two classes each as follows:
a) Sunnat: It has two kinds as follows:

i) Ahsan: The husband gives talaq to wife (in a single sentence i.e. single
pronouncement of divorce) in state of purity (tuhr) and waits for period
of iddat. But if the marriage has not been consummated, talaq can be
pronounced on this mode at any time even if the wife is in her
menstruation. This type of talaq is revocable during the period of iddat.
After iddat, it becomes irrevocable.

ii) Hassan: There must be 3 successive pronouncements of talaq, BUT

three pronouncements are to be made in 3 successive tuhrs (in case of
menstruating women) OR consecutive intervals of 30 days (in case of
non-menstruating women).

It can be revoked any time before the third pronouncement. After third
pronouncement, it becomes irrevocable;
b) Biddat: Biddat word stands for innovation, and therefore this type of
talaq is not purely Islamic. It was innovated later (during the Umayyads)
to suit patriarchy. Here 3 pronouncements can be made during a single
tuhr. (Instant Talaq), i.e. by saying “I divorce thee” thrice at the same
instant. It is further sub-divided in two classes as follows:

i) Divorce with reference to time: This divorce takes place in different

times.
ii) Divorce with reference to numbers: All divorces are given once a time.

3) Divorce on the basis of consents of parties: It has four kinds as

follows:
a) Divorce: It is right of husband and exercisable by him.
b) Khula: It is a divorce with the consent and at the instance of the wife
in which she gives or agrees to give a consideration to the husband for
her release from the marriage tie. It is getting free in consideration of
property.
There is Tradition “don’t take back whatever you have given to them.”
Husband should not demand gifts back in case of Khula. It is not
permissible.
In Malki and Shafi schools husband can take back gifts but excessive
claim is not allowed. Wife can demand Khula.

c) By agreement: It takes place if he swears that it shall take place at

certain time. It is also like Khula, dissolution of marriage by an
agreement but the aversion (dislike) here is mutual. As in Talak so in
Khula and Mubaraat the wife is bound to observe iddat.

d) By delegation: It can be delegated in the hands of wife. It does not

deprive husband from right of divorce. Wife does not require invoking
the doors of Court and can exercise her right herself. It is right of wife
and she can say, “I take divorce”. She also can say, “I give divorce to self
on the behalf of husband on the base of right husband delegated to me.”
Right of husband remains simultaneous. If during the contract of
marriage this right is not delegated to wife, does not mean that husband
cannot delegate this right later on. It shall become irrevocable. Right
may be delegated for limited time period.

4) Other Kinds: These are four in numbers as follows:

a) Ila: It is a species of constructive divorce which is effected by
abstinence from sexual intercourse for the period of not less than four
months pursuant to a vow (promise, swear).
b) Prescription: It is comparison of wife with prohibited degrees of
marriage such as mother or sister.
It is an unlawful comparison. It puts him in repentance (penance).

c) Lian or Imputation: It is imputation over wife of sexual intercourse

with one another. It puts the relationship into divorce.

According to Hanfi school divorce takes automatically but Shafi requires

Court proceedings for its confirmation. Lian or imprecation is a ground
available to the wife to sue for divorce. In this case she must file a
regular suit for dissolution of her marriage as mere application to Court
that her husband has falsely charged her with adultery.
It is to be noted here that she is entitled to a decree only if the charge is
proved to be false, but not if it is proved to be true.

d) Judicial divorce: Courts issue the decree of the dissolution of

marriage after certain procedure. Following are the reasons against
which a competent Court issues the degree for the dissolution of
contract of marriage:
1. If whereabouts of husband remains unknown for or more than four
years to his family, relatives, neighbors, and friends. Wife may invoke
the door of Court for dissolution of contract of marriage. It is noteworthy
that if the husband appears within six months after the issuance of
decree, Court may cancel such decree thus it is reversible.
2. If maintenance is remained unpaid for a period of two years may put
contract of marriage cancel.
3. If Court has confirmed imprisonment to husband for or more a period
of seven years would cause dissolution of marriage. It excludes the
period of proceedings.
4. If without any reasonable cause or excuse husband has failed to
perform conjugal rights for or more than three years shall give right to
his wife to go to Court for dissolution of contract of marriage.
5. If husband is impotent right from the beginning of contract of
marriage. One year’s chance for improvement by way of medication is
given.
6. Two years’ insanity is also sufficient cause of dissolution.
7. Option of puberty is given to wife after attainment of the age of
puberty. She has to decide about marriage within two years.
8. Cruelty is also not tolerable and considered reasonable cause to do so.
9. Apostasy of husband dissolves the contract of marriage. Retraction or
revocation of divorce:

Husband has right of retraction before the period of iddat takes

effect. She is supposed wife until iddat expires. It is exclusive right of
husband as divorce is. Retraction is made with or without consents of
wife. When the retraction is made, it put the contract of marriage
continuous. How the retraction is made:

Following are the measures, which are adopted in retraction:

1. Conduct or words may constitute retraction.
2. It is constituted before the expiry of period of iddat. In other words it
should be before third menstrual period.
3. Presence of witnesses is advisable.
4. In Hanfi School, sexual intercourse confirms retraction but advisable
method is declaration, which makes it valid. Shafi School considers the
presence of witnesses’ mandatory.
5. Kiss with sexual desire is also equivalent to retraction.
6. If husband sees hidden part with sexual desire, it also amounts
retraciton.
7. If wife kisses her husband, according to Imam Yousaf it does not
confirm retraction. Husband shall be asked whether it is done with
sexual desire. If so, then confirmed.
 MAINTENANCE
Right of maintenance or alimony: It means that the things against
which, husband is liable to provide to his family, in result of labour,
provision of subsistence is called maintenance.

Following things come under maintenance:

1. Food, which is cooked (baked).
2. Separate house or separate passage for incoming and outgoing.
3. Clothes which are stitched. If there is contract that no maintenance
shall be payable or to be provided, presumption shall go in favor of wife
and it shall remain payable. When it becomes payable (due):

It becomes due on following reasons:

i. In the presence of valid contract of marriage.
ii. Wife is able for intercourse, i.e., she has attained age of puberty and
not suffering from any dread disease.
iii. She must be in control of husband and live with him.
iv. If she goes to her parents and neither husband invites her nor she
refuses to come, shall establishes the claim of maintenance.
v. If wife refuses to come to husband’s house and her refusal is
justifiable, makes claim due.
vi. If husband enters into 2nd contract of marriage and former wife
resides with her parents; she shall have right to claim maintenance.

When it is not payable: There are certain reasons in which

maintenance is not payable, such as:
1. When husband becomes person of unsound mind.
2. When she goes for pilgrimage without permission of her husband. If
the pilgrimage is obligatory then under Shia law it shall remain due
while it shall eradicate of her right in Sunni law. In majority view, if she
is working lady and proceeds to pilgrimage without permission, it shall
lapse her right.
3. When she becomes prisoner.
4. When she becomes disobedient.
5. When husband is transferred from one place to another and she
refuses to live with him discharges his liability.
6. When she enters in apostasy.
7. When husband dies and she remains in iddat.

Amount of maintenance: This is an amount for which a husband is

liable to provide to his wife during the course of valid marriage. This
amount varies in different schools such as:
Hanfi: Social status of both husband and wife is taken into
consideration while deciding the matter.

Shafi: Economic conditions of only husband are important and status of

wife is no more important.

Shia: Status or economic conditions are not important but the

necessities of wife such as food, clothes, and accommodation are
determinant factors in settlement of the amount of maintenance. Quran
has guided us on this topic.

One of verse of Quran says, “Maintenance is decided as per capacity of

rich and poor”. In another verse it is stated “let them live in their homes.”
Ultimately it is upto Court whatever she decides.

Remedies available to wife in case husband defaults in payment of

maintenance:
Following remedies are available to wife where husband defaults in
payment of due maintenance:
1. Wife may bring lawsuit in Court and claim maintenance.
2. She can claim divorce in Court. Failure in payment is sufficient
ground in this respect.
3. Court may punish husband upon non-compliance of his obligations
toward the payment of maintenance.

Period of claim or limitation of claim: Following is period of claim

under different sects: Shafi, Malki, and Hanbli are agreed that wife can
claim the maintenance for the past period.
Hanfi school debars wife for the claim of maintenance of the period gone.
During the course of imprisonment of wife debars her in claim of
maintenance while imprisonment of husband does not affect (defeat) the
claim of wife.
PARENTAGE, LEGITIMACY, AND ACKNOWLEDGEMENT

Parentage includes maternity and paternity.

What is a maternity? It is a relation and legal status of a child, which
determines the succession or inheritance from mother’s side.

Paternity is vice versa of maternity. It is a relation and legal status of a

child, which determines the succession or inheritance from father’s side.
Parentage is relationship with both mother and father.

Legitimacy is a name of relationship with child, which emerges in result

of legal contract of marriage between the adult male and female.

How the paternity is proved: There are certain checks, which are used
to prove paternity. They are described as follows:
1. Valid marriage between parents.
2. If the intercourse is committed by mistake.
3. If the progeny is acknowledged which is also acknowledged by the
facts and figures. If child acknowledges his mother who born after six
months of her marriage.
4. Prolonged cohabitation is also a presumption of the existence of valid
contract of marriage. It is notable that presumption is always rebut-able.
5. Birth of child during the wedlock also proves the paternity. Evidence
Act admits the paternity if child is born within 280 days after contract
of marriage.

Conditions of parentage: There are certain conditions for the

confirmation of paternity such as:
1. Just acknowledgement of child is not enough; words of legitimate
child must be expressed.
2. Age factor is also determinant factor. Age of child must be less than
the age of father. There must be difference of 12½ years’ age.
3. He is not established child of other one.
4. Acknowledgement of child himself is also necessary element for the
establishment of parentage.
5. Possibility of marriage of parents at that time.
6. One who acknowledges must be sane, wise, and adult.
7. He must express his clear intention.
8. If acknowledged once, which is valid, cannot be revoked. Rule of
estoppel applies.
Effects with reference as to child: Following effects take place:
1. Legitimacy is established.
2. Inheritance takes effect.
3. Guardianship becomes valid.
4. Valid marriage proves.
5. Relationship occurs.
6. Will become validate.

GUARDIANSHIP
Guardianship: A person having the rights over minor or his property or
both is called guardian. Who has prior right to be guardian: As per law
father and mother have priority rights to be guardian. There are no clear
injunctions of Quran over this topic, however indirect guidance is
available to reach the conclusion, i.e., guidance regarding fosterage.
Quran fixes the period for feeding to child upto two years. However this
does not relate to guardianship but definitely priority right vests to
mother.

Mother is entitled to the 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. There is guidance in Tradition of Hazrat Muhammad
(PBUH), “a woman came to him and asked about the custody of his
children, he said they will remain under your custody till seven years.”
Right of guardianship shall continue if she divorced or her husband died
and she does not remarry. If she remarries then Court shall decide the
guardianship of children. It shall be taken into consideration whether to
whom she remarries.

Duration of guardianship:
There are different opinions over this topic as follows:

Hanfi: It shall remain in force till child attains self-feeding in case of boy.
Guardianship of girl shall continue till she attains the age of puberty,
i.e., six or seven years. Then her guardianship shall be transferred
toward her father.

Malki: Boy shall remain under custody of his guardian until he attains
the art of conversation, while girl shall be under custody till her
marriage.
Shafi: Guardianship shall remain in force till seven years for both, boy
or girl. After seven years, the will of both shall determine the
guardianship.
Shia: Custody of boy restricts to two years while it extends to seven
years in case of girl. Priority right vests to mother and then father. It is
noteworthy that de facto (in fact or constructive) guardianship vests to
mother while de jure (actual or in the eyes of law) guardianship vests to
father. Maintenance (to provide the expenses for subsistence, i.e.,
necessities for life) is responsibility of father for the whole period.
Determinant factor in guardianship is welfare of the minor and not
otherwise.

Who is minor: Any child, either boy or girl, less than eighteen years of
age is minor. This age extends to twenty-two years where the guardian
has been appointed by the competent Court. In Islamic personal laws
age of puberty is fifteen years. Age of puberty is declaration of
termination of minority. It should be expressed and evident. Without
proof it shall not be valid.

Appointment of guardian: Following points are important to be noted

in the appointment of the guardian of minor, but the main object is
welfare of the minor which is to be taken into consideration while
appointment of guardian:
1. Mother has priority vested right of guardianship.
2. Religion is also important from the inheritance point of view.
3. Age of minor.
4. Age of guardian.
5. Sex whether minor is boy or girl.
6. Relationship of the claimant for guardianship with minor and what is
the object.
7. Claim of other relatives to be appointed as guardian.
8. Personal character of the claimant.
9. Capacity of the applicant whether he or she may afford guardianship.
10. In the absence of parents, the will of minor shall determine the
guardianship.
11. Will of minor in any case.

Kinds of guardianship: There are four major kinds of

guardianship as follows:
1. Guardian for marriage:
Malki: Only father is competent to be guardian. Shafi: Father and
grandfather are competent.
Shia: They endorse the point of view of Shafi’s.
Hanfi: Other than these relatives also residuaries are competent.
Guardian must be more than fifteen years of age.

2. Guardian of the person of the minor: Only mother can be guardian

as per following rules:
Hanfi: Boy shall remain in custody for seven years while girl until she
attains the age of puberty.
Malki: Boy shall be within custody until he attains sufficient
conversation ability and girl till marriage.
Shafi: Period of guardianship in either case shall extend to seven years.
After seven years, consents of the minor would be determinant factor.
Shia: Boy shall be in custody for two years and girl for seven years.

3. Guardian of the property of the minor: It contains three types of

custody such as, legal or natural, certified, and de facto.
(1) Legal: Father or father’s Will and paternal grandfather or his Will is
subject of guardianship.
(2) Certified: Family Court determines it. Court may appoint any person
as guardian keeping in view of welfare of the minor.
(3) De facto: It is voluntary guardianship not based on love and affection.

4. Testamentary guardianship: It is based on Will of the guardians.

List of preferences of guardians: 1. Maternal Grandmother.
2. Paternal grandmother.
3. Full sister.
4. Maternal sister.
5. Consanguine sister.
6. Full sister’s daughter.
7. Maternal sister’s daughter.
8. Consanguine’s sister’s daughter.
9. Maternal aunts.
10. Paternal aunts.
11. If no other relative is available then and any nearest from father’s
family shall be appointed as guardian.

When right of guardianship of female ceases:

1. When she leads immoral life.
2. If she neglects care of minor.
3. If she remarries with non-prohibited degree in relation with minor girl.
If father has been died, then following shall be priority:
1. Nearest paternal grandfather.
2. Full brother.
3. Consanguine brother.
4. Uterine brother.

Extent to hold the property of minor: Guardian appointed for the

property of the minor is responsible as follows:
1. He is responsible for the maintenance of the property of the minor.
2. He is liable to administer the property.
3. He has to refrain to sell property of the minor.

Conditions for the sale of property of the minor: Following are the
cases in which guardian of the minor may sell his property over which
he has been appointed:
1. Extreme necessities like payment of loan of deceased person like his
father.
2. Maintenance of minor.
3. If income of property is less than of its expenses.
4. Where there is clear benefit of the minor, like the double or triple
price of the property belonging to minor is offered.
5. Property is being decayed (decomposed) or destroyed.
6. If property comes in the hands of illegal occupant or possessors.
7. If business has to be carried out for the clear benefit of the minor.
If loss occurs from the sale proceed, guardian has to bear it while all
profits shall go to minor. Minor is not shareholder in loss but in profits
only. Guardian cannot sell property of the minor but he can lease it out
only for five years. Term of lease shall cease when he shall attain the age
of puberty. Only one year’s grace period is allowed. Guardian cannot
make any transaction in his own favour. How the guardianship
extinguishes or removes:
In following cases guardianship is ceased:
1. Abuse or breach of trust.
2. Failure to perform as guardian.
3. Incapacity of guardian.
4. Mal-treatment with minor.
5. Exceed of powers given by the Court.
6. If adverse effect in interest of minor occurs.
7. When guardian goes beyond the jurisdiction of the Court under which
order he was appointed.
8. Bankruptcy or insolvency puts guardianship end.
Automatic cessation of guardianship: There are certain events under
which guardianship ceases automatically such as:
1. Death either of guardian or minor.
2. If Court takes the custody of minor from individual.
3. When minor becomes major.
4. When marriage of girl is conducted.
5. When guardian becomes the person of unsound mind and unfits.

WAQF
1. Introduction:
Waqf is an important social institution of Islam. It is a permanent
dedication by a Muslim of some specific property for religious and pious
purpose. Every Muslim of sound mind may dedicate his property by way
of waqf. It may be made verbally or in writing. The real purpose of
making a waqf is to acquire merit in the eyes of the Lord; all other
purposes are subsidiary.
2. Meaning: Literal meaning is “tying up or detention”.

3. Definition: As per Waqf Act 1954 According to Sec 3 (i) waqf means
the permanent dedication by a person professing Islam of any moveable
and immovable property for any purpose recognized by the Muslim Law
as pious, religious or charitable.”

Imam Abu Hanifa defines: Waqf is the detention of a specific thing in

the ownership of the waqf or appropriator, and the devoting or
appropriator’s of its profits or usufruct in charity on the poor or other
good objects.
Thomas Patrick Hughes: Waqf means literally “Standing, stopping,
halting”. A term which in the language of the law, signifies the
appropriation or dedication of property to charitable uses and the
service of God.
Qadi Abu Yusuf and Imam Muhammad: Waqf is the tying up of the
substance of a thing under the rule of the property of Almighty God, so
that the proprietary right of the waqf becomes extinguished and is
transferred to Almighty God for any purpose by which its profits may be
applied to the benefit of His creatures.
The Shara’I ul-Islam (Shiite Law) A contract, the fruit or effect of which
is to tie up the original of a thing and to leave its usufruct free.
4. Classification of Waqf
a. According to Ameer Ali, waqf may be divided into three classes.
i. For the affluent and the indigent alike.
ii For the affluent and thereafter for the indigent alike.
iii For the indigent alone.

b. As regards relationship
i The waqif (founder of waqf or donor) (but only in Hanafi Law)
ii The family or decedents of the waqif (Waqf’ Ala’l-awlad)
iii Unrelated persons

c. A non Muslim A non-Muslim is entitled to take the benefit of a waqf,

provided that he is not an alien enemy.

5. Kinds of Waqf
Following are the kinds of waqf.
i. Private Waqf : It is waqf which is made for private individual.
ii Public Waqf : It is dedicated to the public at large. It is made purely
for some religious or pious purpose.
iii Quasi Waqf : It is partly public and private.

6. Subject of a valid Waqf: A immovable or moveable, dividable or

undividable property having certainty of which the waqf is the owner
may be the subject matter of the waqf. The subject of the waqf must be
clearly defined.

7. Subjects not for a valid Waqf:

i Rights of usufructuary mortgage.
ii A dower debt, which may or may not be paid.
iii A simple money decree
iv A waqf will not be upheld which is in fraud of the rights of certain
heirs.
8. Valid Objects of Waqf: Following are the valid objects of waqf.
1. Mosques and for imam to conduct worship therein.
2. The distribution of alms to the poor.
3. Grant of takia
4. Observance of the anniversaries of the waqif and members of his
family members of his family, involving as it does the feeding of the poor.
5. Prayer ground
6. Dargahs
7. Hospitals and dispensaries
8. Construction of the free boarding houses.
9. Eidgahs
10. Reading of Holy Quran in public
11. For making and keeping Tazias
12. Celebrating the birth of the Hazrat Ali Murtaza (RAA)

9. Form of Waqf
i Verbal
ii Oral

10. Parties to a Waqf: 1. Waqif A person who makes waqf is called

Waqif. Extent of Waqif’s Power A person under Islamic Law may declare
the whole of his property a waqf.
2. Mutawalli A person who is appointed to look after the waqf is called
Mutawalli. He acts like a manager of the waqf property.
11. Qualification of Waqif
i A Muslim
ii Who have Sound mind
iii Who have attained Majority

12. Disqualification
i Minor
ii Unsound Mind

13. Qualification of Mutawalli A person can be a Mutawalli who:

I)may be a Muslim or Non-Muslim.
II) has sound mind. iii should be of the age of majority.

14. Appointment of Mutawalli A Mutawalli can be appointed by:

i. The waqif himself.
ii The executor

15. Who can be appointed Mutawalli Following can be appointed as

Mutawalli:
i The Waqif himself
ii His children
iii His descendents
iv A female
v Non-Muslim
vi Sunni in Shia Waqf and Shia in Sunni Waqf
16. Rights of Mutawalli
i. If there is no provision in waqfnama about for succession of the office
of Mutawalli, he has right to appoint his successor on his death bed.
ii He has right to appoint his successor if waqf deed authorize him to do
so.
iii He can appoint his successor if Waqif and Executor are both dead.
iv He had right to manage the waqf property.
v He has right of remuneration.
vi He has right to do any thing that is reasonable for administration
and betterment of the waqf.

17. Duties of Mutawalli i It is the duty of Mutawalli to take care

waqf property.
ii He is duty bound not to sell or mortgage waqf property without the
permission of the court.
iii He is duty bound not to grant a lease of waqf property not exceeding
three years in case of agricultural property and one year in case of non-
agricultural land.
iv He is duty bound not to increase allowance of officers and servants.
v He is duty bound not to transfer the office of another.

18. Nature of office of Mutawalli The office of Mutawalli is not

hereditary under Islamic Law. Hereditary right is not recognized.

19. Removal of Mutawalli A Mutawalli can be removed by the court if

he/she:
i Becomes unfit for the job.
ii Does not perform the religious services.
iii Becomes insolvent.
iv Commits misconduct.
v Commits breach of trust.

20. Essentials for a valid Waqf:

i Permanent The dedication must be permanent. A waqf which is made
for a limited period is not valid. The Waqf Act 1913 Sec 2 (i) and (ii), in
waqf, the dedication must be permanent.

ii Irrevocable Once a valid waqf is made, it can not be revoked.

iii Unconditional If there is a condition for making a waqf, it will be
invalid. Waqf shoud be unconditional. If a condition is interested in a
deed of waqf, that the waqf reserves to him the power of revoking the
waqf, the waqf is void ab initio.
 iv Inalienable Waqf should be inalienable. Because perpetuity is
ensured by the doctrine that waqf property belongs to God and cannot
be alienated by human beings for their own purposes.

v Certainty Waqf property should be certain. If the objects are

uncertain the waqf will be void. The property must be in the ownership
of the waqif; it must be in his possession. For example, A bequeaths
certain land to B, who purports to dedicate it in A’s lifetime. Later A dies,
the waqf is not valid.
vi Registration A waqfnama by which immovable property of the value of
Rs. 100/- or above requires to be registered under the registration act.

21. Completion of a Waqf Abu Yusuf A dedication by way of waqf is

complete by the mere declaration. Neither delivery of possession, nor
appointment of mutawalli is essential. Imam Muhammad & Ithna Ashari
Law A waqf is not complete unless there is a declaration coupled with
appointment of mutawalli and delivery of possession.

22. Primary rules relating to Waqf: Following are the primary rules
relating to waqf.
i The subject of the waqf should be dedicated perpetuity
. ii All human rights should be diversted there from.
iii It should be made non heritable and inalienable.

23. Contingent Waqf: There should be no element of contingency in

waqf. It is essential to the validity of a waqf that the appropriation
should not be made to depend on contingency.
24. When Waqf cannot be valid
i Neither a minor nor a guardian on behalf of the minor can make a
waqf.
ii A waqf can not be made for an illegal object, for example to dealy or
defeat creditors.
25. Revocation of Waqf:
i In case of testamentary Waqf A testamentary waqf that is made by will,
may be revoked by the waqf at any time before his death.
ii In case of Non-Testamentary Waqf Where at the time of creating a
non-testamentary waqf, the waqif reserves to himself the power of
revoking the waqf, the waqf will be invalid.

26. Waqf during Marzul Maut: A waqf made by will or during Marzul
Maut cannot operate upon more than one third of the net assets without
the consent of heirs.