Muslimpersonallaw-shortstudynotesllbpart 2-181210104408 PDF

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MUSLIM PERSONAL LAW - SHORT STUDY NOTESLLB PART-IILIST OF TOPICS1. Gift or Hiba2. Muslim Family Laws Ordinance – Salient Features3. Laws of Inheritance4. Will5. Marriage6. Dower7. Dissolution of Muslim Marriage8. Divorce9. Maintenance10. Parentage, Legitimacy, and Acknowledgement11. Guardianship12. ...

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MUSLIM PERSONAL LAW - SHORT STUDY NOTES LLB PART-II

LIST OF TOPICS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

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

The donor The donee The absence of consideration The subject-matter Declaration of gift by the donor An acceptance of the gift, express or implied, by or on behalf of the donee, and Delivery of possession of the subject of gift.

Kinds of Hiba or gift: It has its four kinds that is 1. 2. 3. 4.

Areeat, Sadqah, Hiba-bil-iwaz, and 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. 3|Page

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. 4|Page

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 SALIENT FEATURES

LAWS

ORDINANCE

–

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) ‫ ﻋﻠﻢ اﻟﻔﺮاﺋﺾ‬and 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. 7|Page

(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 3. Uterine Brothers (brother from mother full or SIBLINGS MALE 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

GRANDPARENTS CHILDRENS

FEMALE FEMALE

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)). 11. True Grandmother 12. Son’s daughters (How ever low in chain) 8|Page

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. 9|Page

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)

(II)

(III)

(IV)

Descendents. (1)

Son.

(2)

Son’s son (How low-so-ever – (HLS).

Ascendants. (3)

Father.

(4)

True Grandfather (How high-so-ever – (HHS).

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.

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)

(II)

(III)

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.

Ascendants of the deceased: (3)

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

(4)

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

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...