Muslim Personal Law Short Study Notes (LLB Part 2)

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MUSLIM PERSONAL LAW - SHORT STUDY NOTES
LLB PART-II
LIST OF TOPICS
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
Book Recommended:
1. Principles of Mahomedan Law by D. F. Mulla.
2. Questions and Answers on Mohamedan Law by
Bashir Ahmed (Gold Medalist-in-Law).

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GIFT OR HIBA
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.

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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.

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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: Two reasons govern 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.

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4. 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.

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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.

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LAW OF INHERITANCE
Narrated Abu Huraira may Allah be pleased with him-:
The prophet peace be upon him said: "Learn the fara'id (laws of inheritance) ‫اﻟﻔﺮاﺋﺾ‬ ‫ﻋﻠﻢ‬ and 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.

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(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)

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Shares of the Primary Heirs
Spouses
Husband will inherit
If his wife has no descending heirs (children) - 1/2 share of full bequest.
If 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.

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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.

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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.

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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.

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(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:
Related persons and 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.

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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.

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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 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.

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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.

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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.

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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.

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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:
1. 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.

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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.

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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

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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: A marriage may be
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 iddet. 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 iddet, but the duration of the iddet 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.

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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.

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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 iddet. A marriage with a woman before completion of her iddet
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.

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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.

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• 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.

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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.

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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.

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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.

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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.”

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Woman shall inherit in case her husband dies during her period of Iddet, 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: Bidat 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:

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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 iddet.
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:

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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 iddet
takes effect. She is supposed wife until iddet 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 iddet. 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.

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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:
1. In the presence of valid contract of marriage.
2. Wife is able for intercourse, i.e., she has attained age of puberty and not suffering from any
dread disease.
3. She must be in control of husband and live with him.
4. If she goes to her parents and neither husband invites her nor she refuses to come, shall
establishes the claim of maintenance.
5. If wife refuses to come to husband’s house and her refusal is justifiable, makes claim due.
6. 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.

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6. When she enters in apostasy.
7. When husband dies and she remains in iddet.
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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 immoveable 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.

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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

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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.

52 | P a g e
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.

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vi Registration
A waqfnama by which immoveable 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.

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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.

Muslim Personal Law Short Study Notes (LLB Part 2)

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