Law of Inheritance:
Basic principle of
it is that nearer (proximate) excludes remote. Inheritance is made from the
divisible property after meeting the funeral expenses and retirement of debt, then
residuary (whatever left) is divided.
Following Injunctions are based
on Sura Nisa, verse no. 11.
1.
If deceased (Ó¯ÌN¿)
has 1 daughter and no son then daughter shall inherit ½ share of full bequest
(legacy – î·jM).
2.
If deceased has no male issues but 2 or more
than 1 female issues then all of them shall inherit 2/3rd of the
total bequest (legacy) and shall divide among them equally.
3.
Parents shall get 1/6th each.
4.
If deceased has not issues and has only mother,
she shall inherit 1/3rd share of total bequest (legacy).
5.
If deceased has more brothers and sisters then
share of mother shall go to 1/3rd.
Now verse no.
12 starts of the former Sura.
1.
If wife is deceased then how much share husband
shall take? There are two possible situations. He may be either issue-less or
has issue. If husband has issue then he shall inherit ¼th and in
inverse situation, i.e., if he is issue-less then he shall inherit ½ share.
2.
If husband dies then wife shall inherit half of
husband’s share as mentioned in former line.
3.
If deceased has neither parents nor issues then
husband shall inherit ¼th bequest (legacy).
4.
If deceased has two brother and sister, mother
shall inherit 1/6th of bequest (legacy).
5.
If there are more than 2 brothers and sisters
then they shall inherit 1/3rd equally.
6.
Deceased, who was issue-less but had a sister,
she will get ½ share.
7.
If sister dies issue-less then brother shall
inherit (residuary) all property.
8.
If deceased had 2 sisters, they will get 2/3rd
share equally.
9.
If there is brother and sister then ratio shall
be 2:1.
Inheritance (OQAiË) is derived from (TiA) which is left over or
residuary. Who is called (TiAË)
or legatee? In pre-Islamic history, married woman was excluded. Husband and
wife were excluded each other. Descendents were preferred on ascendant.
Rule of representation:
1.
To determine the legal heirs.
2.
To determine the legal share.
Orphan grandson
(BMÌ‚ ÁÎNÍ) (as per
Shariat) has no representation as regard of legal heirs. Both Sunni and Shia
sects (schools) are agreed upon it.
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Grandfather (P)
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(Died)
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Son (A)
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Son (B)
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(Died)
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Grandson
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Grandson
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Grandson
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(C)
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(D)
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(E)
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There are two possible methods
to distribute bequest (legacy), i.e., per stripe (as per legal share) and per
capita (equal). Share will be decided as per relationship with grandfather. Equal
status will be adopted with regard of grandfather. Rule of representation is
not applicable in both cases.
Rule of exclusion: It has two kinds,
i.e., partial exclusion and total exclusion.
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Rule of exclusion
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Total
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Partial
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Permanent
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Temporary
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Homicide: In case of homicide murderer
would be excluded for the purpose of inheritance as per the Tradition (½MB´» TAjο Ü - TjÍ Ü ½MB´»A).
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: (j¯B¸»A
Á¼nÀ»A TjÍÜË Á¼nÀ»A j¯B¸»A TjÍ
Ü.Øq ÅÎN¼¿ ½ÇA TiAÌNÍ Ü)
Non-Muslim can’t inherit from Muslim.
·
Shia: Non-Muslim cannot inherit from
Muslim but Muslim can inherit from Non-Muslim.
·
Difference
of allegiance (loyalty or faithfulness): Muslim of State at War (LjZ»iAe) cannot inherit from
the Islamic State (ÂÝn»AiAe)
and vice versa.
Rule of estoppel in succession or
inheritance means that first statement can’t be revoked. A person who has
never admitted a child, as his son can’t claim inheritance after his death,
being his son. Here rules of estoppel are applied.
Temporary exclusion: It has two kinds as follows:
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Temporary
exclusion
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Total exclusion
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Partial exclusion
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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.
Vested inheritance: When a person is died soon after property is
divided, it is decided later on that who is the legal heir and what will be the
share.
Rule of spessuccessioness (ÓÄÎrÃBU): It does mean hope
of succession. It also does mean that person wants to sell his property on
which he has not right of ownership but expecting succession. It is also called
before opening of inheritance. He can sell property on which he has not
ownership but he is expecting to be succeeded. Property can be sold only after
getting right of ownership. Inheritance is decided only after the death. It is
illegal hope of succession.
Exception: Dower is property of wife either in cash or property.
Husband may transfer the property in-spite of dower. She becomes owner of the
property which her husband has given to her in-spite of dower. Husband may say
at the time of transfer of property that he shall not inherit from the property
of dower. He can waive off his share in advance. This is his right. This is the
only exception in this case.
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 not 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.
5. Deferred
dower is also debt.
6. Legacies
subject to the limitation of power of Will.
7. Legal
heirs.
8. Insisted
or acquired property.
Who are the persons or institution entitled to inherit:
1. Sharers
(~Ëj°»AËg).
2. Residuaries
(îJv§).
3. Distant
kindred (ÂBYiÜAËg).
Following is the priority list in which property will be divided:
1)
Sharers.
a) By
consanguinity. It means kinship like son, daughter etc. They have fix share.
b) By
special cause such as husband, wife etc. These are contractual relationships.
2)
Residuaries.
They are the blood relatives but share of them is not fixed.
3)
Return
to sharers. If some of share is left over after distribution to the legal
heirs after meeting the necessary expenses, residuary share will be gone
towards sharers. If there is no residuary, then it will go to existing sharers.
4)
Distinct
kindred.
5)
Acknowledged
(adopted or sworn) kinsman.
6)
Universal
legatee. If deceased has made Will covering more than 1/3rd,
then Will shall not be termed valid or legal. It will be given to whom it is
assigned.
7)
If there is neither legal heir nor other
receivers then property will go to Bait-ul-Maal
(¾BÀ»A
OÎI) as per Sunni school of thought and it will go to poor inhabitant as per Shia school of
thought.
Impediments in inheritance (OQAiË PB¿jZ¿): There are
certain relatives who are deprived in inheritance, e.g., murderer, difference
of religion, survival children decrease share under Sunni and Shia law etc.
Males having fixed share in bequest (legacy or estate):
1. Father.
2. Grandfather
or True Grand Father. 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).
3. Husband.
4. Maternal
or uterine brother.
Females having fixed share in bequest (legacy or estate):
1. Wife.
2. Mother.
3. True
Grandmother.
4. Daughter.
5. Son’s
daughter.
6. Uterine
or maternal sister.
7. Full
sister.
8. Consanguine
(ÓJvÃ) sister.
Propositus is a deceased person whose property is being distributed
to its sharers.
How many shares are distributed
and what are conditions when share would be changed? First we will look that
when father will inherit and how much he will inherit and under what
conditions. If son dies leaving his sharers, what will be situation of father’s
share?
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Propositus (Deceased)
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Son
All the rest
being residuary, i.e., 17/24th
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Wife
Being fixed
sharer 1/8th of full or 3/24th
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Father
Being fixed
sharer 1/6th of full or 4/24
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1 + 1
8 6
3 + 4 = 07
24 24
Thus wife will get 3/24th
share while father will get 4/24th share. Since son is not fixed
sharer so he will get the entire rest share being residuary, i.e., 17/24th
share.
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Propositus (Deceased)
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Son
Being residuary
all the rest @ 2:1
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Daughter
Being residuary
all the rest @ 2:1
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Wife
Being fixed
sharer 1/8th
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Father
Being fixed
sharer 1/6th
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Propositus (Deceased)
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Daughter
½
All the rest,
i.e., 12/24th
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Wife
1/8th
or 3/24th
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Father
1/6th
or 4/24th all the rest being residuary or return to sharer
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1 + 1 + 1
2 8 6
12 + 3 + 4 = 19
24 24
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Propositus (Deceased)
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Wife
1/8th
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Father
1/6th
and all the rest being residuary
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Propositus (Deceased)
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Mother
1/3th
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Father
2/3rd
and all the rest being residuary
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Propositus (Deceased)
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Only Mother
Being fixed
sharer in the absence of children 1/3rd & all the rest of 2/3rd
being residuary
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In case of True Grand Father (TGF) same conditions will be followed as in the
case of father. Only one condition will lie, i.e., father has been died. True Grand Father (TGF) will receive
inheritance if daughter is not alive (died).
Husband inherits as sharer ½ if there are no children or ¼ in case
of the presence of offspring. Children of son are also eligible to inherit
while offspring of daughter are ineligible.
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Propositus (Deceased)
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Husband
½
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Father
2/3rd
and all the rest being residuary.
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Propositus (Deceased)
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Son
Being residuary
all the rest @ 2:1
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Daughter
Being residuary
all the rest @ 2:1
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Husband
Being fixed
sharer 1/8th
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Father
Being fixed
sharer 1/6th
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Mother as a fixed sharer: There are two conditions from one of
which she gets 1/6th and from second one she gets 1/3rd
share.
There are two conditions for her
share upto 1/3rd, i.e.,
1. There
should be no children.
2. No
two or more brothers or sisters, i.e., no more than one brother and/or sister
should alive.
They shall get nothing but they
shall reduce the share of sharers.
There are two conditions for her
share upto 1/6th, i.e.,
1. There
should be children.
2. There
should be two or more than two brothers and/or sisters alive.
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Propositus (Deceased)
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Mother
1/3rd
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Father
All the rest
being residuary, i.e., 2/3rd which is left over.
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Propositus (Deceased)
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Mother
1/3rd
due to presence of one sister
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Father
All the rest
being residuary, i.e., 2/3rd which is left over.
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Sister
She shall get
nothing being not fixed sharer
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Propositus (Deceased)
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Sister
She is excluded
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Brother
He is excluded
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Father
Being residuary
all the rest, i.e., 5/6th
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Mother
Being fixed
sharer 1/6th
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Propositus (Deceased)
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Son
He is excluded
Being residuary
all the rest by 2:1
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Daughter
She is excluded
Being residuary
all the rest by 2:1
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Father
Being fixed
sharer he shall get 1/6th
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Mother
Being fixed
sharer she shall get 1/6th
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Propositus (Deceased)
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Daughter
2/3rd
of the rest equally
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Daughter
2/3rd
of the rest equally
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Father
Being residuary
he shall get all the rest whatever left over
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Mother
Being fixed
sharer she shall get 1/6th
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Propositus (Deceased)
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Mother
1/3rd
of the remaining whichever is left over
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Father
All the rest
being residuary
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Husband
½
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Propositus (Deceased)
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Mother
1/3rd
of the 3/4th
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Father
All the rest
being residuary whichever is left over after wife & mother
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Wife
¼
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Maternal True Grand Mother (MTGM) shall get share if there is no
mother and no nearest grandmother is alive.
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Propositus (Deceased)
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Mother
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Grandmother
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Grandmother
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Grandmother
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Grandmother
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In the presence of nearest,
remote will be excluded.
Paternal True Grand Mother (PTGM) shall get share if there is no
mother, no nearest True Grand Mother, no father, and no nearest intermediate to
grandfather alive.
In the following cases doctrine of return to sharer is applied:
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Propositus (Deceased)
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Daughter
½ and the rest as
return to sharer
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Propositus (Deceased)
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Mother
1/3rd
and the rest as residuary
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Maternal or uterine brother
and/or sister shall get the share at 1:2 ratio. If they include with other
sharers then they shall get at 1:1 ratio, i.e., they are more than one thus
their share is 1/3rd equally. In case only one brother or sister
exists then he or she shall get 1/6th share and in case of more than
one brothers and/or sisters they shall get 1/3rd equally. Share of
husband shall remain ½ or ¼ and share of wife shall restrict upto ¼ or 1/8. It
varies with or without progeny of deceased.
Full sister shall get ½ or 1/3rd
or being residuary. Following conditions shall apply:
1. No
son is alive.
2. No
daughter is alive.
3. No
son’s children are alive.
4. No
father is alive.
5. No
grandfather is alive.
6. No
brother is alive.
Doctrine of increase/decrease (ei/¾Ì§ ¾ÌuA): It increases
or decreases the share of sharers. Following is an instance, which increases
the share of sharers, but actually it decreases the share of sharers:
¼
+ ¼ + ¼ + ¼ + ¼ = 5/4 = 5/5
Denominator means lower and
nominator means higher. Following is an instance:
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Propositus (Deceased)
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Husband
½
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Sister
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Sister
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2/3rd
(equally)
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1 + 2
2 3
3 + 4 = 7 = 7
6 6 7
Scrutiny:
3 + 4
7 7
3 + 4 = 7
7 7
Husband shall get 3/7th
and both sisters shall get 4/7th equally.
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Propositus (Deceased)
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Husband
½
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2 Full Sister
2/3rd
(equally)
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Mother
1/6th
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1 + 2 + 1
2 3 6
3 + 4 + 1 = 8 = 8
6 6 8
Husband shall get 3/8th
share, while 2 full sisters shall get 4/8th equally, and mother
shall get 1/8th of the total legacy.
List of residuary in order of succession – Sunni Law:
(I)
Descendents.
(1)
Son.
(2)
Son’s son (How low-so-ever – (HLS).
(II)
Ascendants.
(3)
Father.
(4)
True Grandfather (How high-so-ever – (HHS).
(III)
Descendents
of father.
(5)
Full Brother.
(6)
Full Sister.
(7)
Consanguine brother.
(8)
Consanguine sister.
(9)
Full brother’s son.
(10)
Consanguine brother’s son.
(11)
Full brother’s son’s son.
(12)
Consanguine brother’s son’s son.
(IV)
Descendents
of True Grandfather (How high-so-ever – (HHS).
(13)
Full paternal uncle.
(14)
Consanguine paternal uncle.
(15)
Full paternal uncle’s son.
(16)
Consanguine paternal uncle’s son.
(17)
Full paternal uncle’s son’s son.
(18)
Consanguine paternal uncle’s son’s son.
(19)
Male descendents of more remote true
grandfathers, i.e., deceased’s paternal uncles and their sons and son’s sons.
List of distant kindred in order of succession – Sunni Law: There
are three classes of heirs, namely, sharers, residuaries, and distant kindred.
Distant kindred are all those relations by blood who, are neither sharers nor
residuaries. They have blood relationship but normally they do not inherit but
in rare cases they may inherit if there is no residuary. They do not fall in
first and second categories and also inherit little. Distant kindred are four
in classes. The following is a list of Distant Kindred comprised in each of the
four classes:
(I)
Descendants
of the deceased:
(1)
Daughter’s children and their descendants.
(2)
Children of son’s daughters (How low-so-ever –
(HLS) and their descendants.
(II)
Ascendants
of the deceased:
(3)
False grandfathers (How high-so-ever – (HHS).
(4)
False grandmother (How high-so-ever – (HHS).
(III)
Descendants
of parents:
(5)
Full brothers’ daughters and their descendants.
(6)
Consanguine brothers’ daughters and their
descendants.
(7)
Uterine brothers’ children and their
descendants.
(8)
Daughters of full brothers’ sons (How
low-so-ever – (HLS) and their descendants.
(9)
Daughters of consanguine brothers’ sons (How
low-so-ever – (HLS) and their descendants.
(10) Sisters’
(foster, consanguine, and uterine) children and their descendants.
(IV)
Descendants
of immediate grandparents (true or false):
(11) Full
paternal uncles’ daughters and their descendants.
(12) Consanguine
paternal uncles’ daughters and their descendants.
(13) Uterine
paternal uncles’ and their children and their descendants.
(14) Daughters
of full paternal uncles’ son (How low-so-ever – (HLS) and their descendants.
(15) Daughters
of consanguine paternal uncles’ son (How low-so-ever – (HLS) and their descendants.
(16) Paternal
aunts (foster, consanguine, and uterine) and their children and their
descendants.
(17) Maternal
uncles and aunts and their children and their descendants.
and
Descendants of remoter ancestors
(How high-so-ever – (HHS) (true or false).
There are two types of legatees, i.e., 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. Amount of Diyat is excluded from the legacy
(bequest). Sufi people disagree with this thought.
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
resides 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.
Shia Law of inheritance:
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Group – 1
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(a)
Parents (Father & Mother).
(b)
Children & other lineal descendents (How
low-so-ever – (HLS).
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Group – 2
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(a)
Grand parents (true as well as false) (How
high-so-ever HHS)
(b)
Brothers, sisters, and their descendents.
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Group – 3
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(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: There are two classes of priorities, i.e.,
1. By
consanguinity, and
2. By
special cause (contractual relationship). Special cause is also further
subdivided in two classes:
(1)
By marriage.
(2)
By special relationship. This kind further is
subdivided in three classes:
(1)
Slave who has been released.
(2)
Inheritance by consanguinity.
(3)
Imam.
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.
Share of husband: He inherits ¼ or ½.
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Propositus (Deceased)
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Husband
|
Father
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Mother
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Brother
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½
|
1/6th
|
1/6th
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Excluded
|
Sunni School
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Being residuary
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½
|
1/6th
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1/6th
|
Excluded as he
relates to Group 2
|
Shia School
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||||
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Propositus (Deceased)
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Father
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Mother
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Wife
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Residuary
|
1/3rd
of 3/4th
|
1/4th
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Sunni School
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Residuary
|
1/3rd
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1/4th
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Shia School
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Propositus (Deceased)
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Daughter
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Paternal Uncle
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½
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Residuary, i.e.,
½
|
Sunni School
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Entire
|
Excluded
|
Shia School
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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 (Á¼mË
îμ§ "A Ó¼u) 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
(LBVÍA).
2. Acceptance
(¾ÌJ³).
3. Two
Muslim witnesses (Æ{AÌŒ).
4. Sanity
(½´§).
5. Capacity
of parties (OμÇA).
6. No
legal disabilities (impediments – OμÇABÃ
ÓÃÌÃB³).
7. Same
meeting.
According to Malki (Ó¸»B¿) and Shafi (Ó¨¯Bq) schools
contract of marriage is made only through guardian (Ó»Ë). 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 (®Ì¼J»AiBÎa) is
given to the minor when he attains the age of majority, which is in this case
eighteen (18) years. According to Hanfi
school if father or grandfather decides the marriage of minor then option of
puberty (®Ì¼J»AiBÎa) 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 valid (sahih
– \ÎZu),
or irregular (fasid – fmB¯), or void (batil
– ½BI). 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.
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 (O§Byi) 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 (fÀZ¿
ÂB¿A) and Imam Yousaf (±mÌÍ
ÂB¿A) who were disciples of Imam Abu Hanifa (î°ÎÄY ÌIA ÂB¿A) specify the feeding upto 2½ years.
Age of foster mother: Majority agrees
that the age of foster mother should be at least nine years which is age of
majority in some cases.
Plurality of husbands: It is not lawful
for a Muslim woman to have more than one husband at the same time. It is void
marriage.
2.
Relative
or temporary prohibition: It defectives contract of marriage but in certain
circumstances it may be converted into valid contract of marriage if so
rectified.
(1)
Unlawful
conjunction. A man may not have at the same time two wives who are so
related to each other by consanguinity, affinity, or fosterage, that if either
of them had been a male, they could not have lawfully intermarried, as for instance,
two sisters, or aunt and niece. The bar of unlawful conjunction renders a
marriage irregular, not void.
(2)
Polygamy.
A Muslim man is allowed to marry upto four women at the same time but at the
same time he is not allowed to have fifth marriage. Such fifth contract of
marriage is irregular.
(3)
Absence
of proper witnesses. Two male witnesses or one male and two female
witnesses are necessary to confirm the contract of marriage while marriage in
contrast put the contract into irregular contract of marriage.
(4)
Difference
of religion. A Muslim cannot make contract of marriage with Non-Muslim like
Hindu, idol-a-tress, or a fire-worshipper.
(5)
Woman
undergoing 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 (îZÎZu P̼a):
It is meeting in hidden portion of the home or area where cohabitation can take
place but they did not commit intercourse is called valid retirement.
Dower: 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 is settled as dower then it
shall be presumed that it is unsettled and proper dower shall apply.
Subject matter of dower: Anything,
which is permissible in Islam, may be settled as dower. Following cannot be
subject matter:
1. All
the things which are prohibited in Islam, e.g., wine, pig etc.
2. Future
goods cannot be dower, i.e., growing corps.
3. Personal
services by the husband.
Limitation of dower:
·
Under Shia law there is neither upper nor lower
limit of dower.
·
According to the Hanfi and Shafi schools the
minimum limit is 10 Dirham. Settlement of less than 10 Dirham shall be presumed
10 Dirham.
·
Under Shia law undecided dower shall not exceed
500 Dirham.
If the dower
remains unpaid on demand, wife may refuse intercourse (cohabitation or
consummation) until or unless it is paid.
In Hanfi School
after consummation, wife may again refuse cohabitation if dower remains unpaid
after demand.
Kinds of dower: In Islamic law dower is
divided in two kinds, i.e., specified and proper or customary
dower. Specified dower is further subdivided in two kinds, i.e., prompt
and deferred dower. Graph of dower is as follows:
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Dower |
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Specified
|
Proper or Customary
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Prompt
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Deferred
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Specified dower: It is on the part of
husband whether what amount he likes to settle at the time of contract of
marriage. It cannot be settled less than 10 Dirhams in any case.
Proper (Customary) dower: Unsettled
dower will be decided with proper or customary dower. Average dower of wife’s
father’s family, i.e., sister of her father shall determine the proper dower.
Prompt dower: It is a dower which is
either payable at the time of contract of marriage or on demand at any time. It
is payable within three years on demand. If it is not paid within three years
after death or divorce and the case is not brought in Court, it will be
considered time barred.
Deferred dower: It is a kind of dower,
which is paid if divorce or death takes place.
In the opinion
of Imam Muhammad and Imam Yousaf, disciples of Imam Abu Hanifa, after
consummation it cannot be refused if dower remains unpaid on demand.
Proper dower: Following points are to
be taken into consideration for the settlement of proper (customary) dower:
1.
Personal qualification of wife such as
education, age, character, and beauty etc.
2.
Dower settled in paternal family of wife.
3.
Social status of father’s family of wife.
4.
Economic conditions of husband.
5.
Any other important condition which must be
considered at the time of deciding the matter.
Confirmation of dower: Dower shall be
confirmed when:
1.
The marriage is consumed, i.e., cohabitation is
done.
2.
Valid retirement is happened.
3.
Death of either the husband or the wife occurs.
·
In case of death even there is no consummation,
full dower is payable.
·
Valid retirement does not establish dower.
·
If divorce takes place without consummation of
marriage and there is no valid retirement ½ dower shall be payable.
·
If divorce takes place due to any fault of wife,
dower shall be lapsed.
·
If divorce takes place without consummation and
settlement of dower, dower shall not be payable.
Remedies available to wife: Where
husband commits default in payment of dower, following remedies are available
for his wife:
1.
Wife may refuse cohabitation until dower is
paid.
2.
Right of dower as debt. Wife may bring civil
suit against her husband for the payment of dower. It is a debt and remains
payable after the death of her husband.
3.
Wife may retain her deceased husband’s property,
and may obtain such possession in lieu of dower.
Right of maintenance or alimony (î´°Ã
Ë ÆBÃ): 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 (WY) without permission of her
husband. If the pilgrimage is obligatory then under Shia law it shall remain
due while it shall eradicate of her right in Sunni law. In majority view, if
she is working lady and proceeds to pilgrimage without permission, it shall
lapse her right.
3.
When she becomes prisoner.
4.
When she becomes disobedient.
5.
When husband is transferred from one place to
another and she refuses to live with him discharges his liability.
6.
When she enters in apostasy (eAfMiA).
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 (Ó¼JÄY) 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.
Divorce: It is discussed in Quran in
Sura-al-Baqra under verses nos. 226, 236, 237, in Al-ahzab, verse no. 49,
Mujadila, verses nos. 3 and 4, Talaq, and 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 (½Î·Ë).
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 exercised 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 (Ór«):
During the course of unconsciousness divorce cannot take place and remains
invalid.
4. During sleep: It has no legal effects.
However in case of ratification (acknowledgement or confirmation) after getting
up, divorce would take place and become valid.
5. While intoxication: Voluntary
intoxication is not excused in divorce. It is treated as willful and makes
divorce valid and effective. In case involuntary intoxication or under
coercion, under Hanfi school divorce
is invalid.
There are
certain Traditions on the subject of divorce such as, “all divorces are valid
except of minor and person of unsound mind.” “Responsibility or liability has
been ceased in case during sleep, of minor unless he attains the age of
majority, of person of unsound mind, and the divorce on death-bed-illness.”
Woman shall
inherit in case her husband dies during her period of 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 effects her right of
maintenance and deferred dower, which extends to knowledge and remain valid and
payable till the period of three years. Marriage, divorce, and retraction (ªÌUi) 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
(Ó¨Ui):
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
(ÅÖBI):
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
(OÄm):
It has two kinds as follows:
i) Ahsan
(ÅnYA):
This consists of single pronouncement of divorce made during period between
menstruation followed by abstinence from sexual intercourse for the period of iddet. But if the marriage has not been
consummated, talak can be pronounced on this mode at any time even it the wife
is in her menstruation.
ii)
Hassan (ÅnY):
This consists of three pronouncements during successive Tuhrs, no intercourse
taking place during any of the Tuhrs.
b) Bidyat
(O§fI):
It also is further sub-divided in two classes as follows:
i) Divorce
with reference to time: This divorce takes place in different times.
ii)
Divorce
with reference to numbers: All divorces are given once a time.
3) Divorce on the basis of consents of
parties: It has four kinds as follows:
a) Divorce
(¶Ý):
It is right of husband and exercisable by him.
b) Khula
(©¼a):
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 or (PAiBJ¿): 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 he aversion (dislike) here is
mutual. As in Talak so in Khula and Mubara’at the wife is bound to observe iddet.
d) By
delegation or (|ÍÌ°M): 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
(ÜA):
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
(iBÈ£):
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 (OÀÈM): It is imputation over
wife of sexual intercourse with one another. It puts the relationship into
divorce. According to Hanfi school divorce takes automatically but Shafi
requires Court proceedings for its confirmation. Lian or imprecation is a
ground available to the wife to sue for divorce. In this case she must file a
regular suit for dissolution of her marriage as mere application to Court that
her husband has falsely charged her with adultery. It is to be noted here that
she is entitled to a decree only if the charge is proved to be false, but not
if it is proved to be true.
d) Judicial
divorce: Courts issue the decree of the dissolution of marriage after
certain procedure.
Following are
the reasons against which a competent Court issues the degree for the
dissolution of contract of marriage:
1. If
whereabouts of husband remains unknown for or more than four years to his
family, relatives, neighbors, and friends. Wife may invoke the door of Court
for dissolution of contract of marriage. It is noteworthy that if the husband
appears within six months after the issuance of decree, Court may cancel such
decree thus it is reversible.
2. If
maintenance is remained unpaid for a period of two years may put contract of
marriage cancel.
3. If
Court has confirmed imprisonment to husband for or more a period of seven years
would cause dissolution of marriage. It excludes the period of proceedings.
4. If
without any reasonable cause or excuse husband has failed to perform conjugal
rights for or more than three years shall give right to his wife to go to Court
for dissolution of contract of marriage.
5. If
husband is impotent right from the beginning of contract of marriage. One
year’s chance for improvement by way of medication is given.
6. Two
years’ insanity is also sufficient cause of dissolution.
7. Option
of puberty is given to wife after attainment of the age of puberty. She has to
decide about marriage within two years.
8. Cruelty
is also not tolerable and considered reasonable cause to do so.
9. Apostasy
of husband dissolves the contract of marriage.
Retraction or revocation of divorce (ªÌUi):
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
(ÿݨ¯) or words (ÿÜ̳) 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.
Parentage, legitimacy, and acknowledgement:
Parentage includes maternity and paternity.
What is a maternity? It is a
relation and legal status of a child, which determines the succession or
inheritance from mother’s side. Paternity
is vice versa of maternity. It is a relation and legal status of a child, which
determines the succession or inheritance from father’s side. Parentage is
relationship with both mother and father.
Legitimacy is a name of relationship
with child, which emerges in result of legal contract of marriage between the
adult male and female.
How the paternity is proved: There are
certain checks, which are used to prove paternity. They are described as
follows:
1. Valid
marriage between parents.
2. If
the intercourse is committed by mistake.
3. If
the progeny is acknowledged which is also acknowledged by the facts and
figures. If child acknowledges his mother who born after six months of her
marriage.
4. Prolonged
cohabitation is also a presumption of the existence of valid contract of
marriage. It is notable that presumption is always rebut-able.
5. Birth
of child during the wedlock also proves the paternity. Evidence Act admits the
paternity if child is born within 280 days after contract of marriage.
Conditions of parentage: There are
certain conditions for the confirmation of paternity such as:
1. Just
acknowledgement of child is not enough, words of legitimate child must be
expressed.
2. Age
factor is also determinant factor. Age of child must be less than the age of
father. There must be difference of 12½ years’ age.
3. He
is not established child of other one.
4. Acknowledgement
of child himself is also necessary element for the establishment of parentage.
5. Possibility
of marriage of parents at that time.
6. One
who acknowledges must be sane, wise, and adult.
7. He
must express his clear intention.
8. If
acknowledged once, which is valid, cannot be revoked. Rule of estoppel applies.
Effects with reference as to child:
Following effects take place:
1. Legitimacy
is established.
2. Inheritance
takes effect.
3. Guardianship
becomes valid.
4. Valid
marriage proves.
5. Relationship
occurs.
6. Will
become validate.
Guardianship (OÍÜË): 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 – OÃBzY) 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 (Á¼mË
îμ§ "A Ó¼u), “a woman came to him and asked about the custody of
his children, he said they will remain under your custody till seven years.”
Right of guardianship shall continue if she divorced or her husband died and
she does not remarry. If she remarries then Court shall decide the guardianship
of children. It shall be taken into consideration whether to whom she
remarries.
Duration of guardianship: There are
different opinions over this topic as follows:
Hanfi: It shall remain in force till
child attains self-feeding in case of boy. Guardianship of girl shall continue
till she attains the age of puberty, i.e., six or seven years. Then her
guardianship shall be transferred toward her father.
Malki: Boy shall remain under custody
of his guardian until he attains the art of conversation, while girl shall be
under custody till her marriage.
Shafi: Guardianship shall remain in
force till seven years for both, boy or girl. After seven years, the will of
both shall determine the guardianship.
Shia: Custody of boy restricts to two
years while it extends to seven years in case of girl. Priority right vests to
mother and then father.
It is
noteworthy that de facto (in fact or
constructive) guardianship vests to mother while de jure (actual or in the eyes of law) guardianship vests to
father.
Maintenance (to
provide the expenses for subsistence, i.e., necessities for life) is
responsibility of father for the whole period. Determinant factor in
guardianship is welfare of the minor and not otherwise.
Who is minor: Any child, either boy or
girl, less than eighteen years of age is minor. This age extends to twenty-two
years where the guardian has been appointed by the competent Court. In Islamic
personal laws age of puberty is fifteen years. Age of puberty is declaration of
termination of minority. It should be expressed and evident. Without proof it
shall not be valid.
Appointment of guardian: Following
points are important to be noted in the appointment of the guardian of minor,
but the main object is welfare of the minor which is to be taken into
consideration while appointment of guardian:
1. Mother
has priority vested right of guardianship.
2. Religion
is also important from the inheritance point of view.
3. Age
of minor.
4. Age
of guardian.
5. Sex
whether minor is boy or girl.
6. Relationship
of the claimant for guardianship with minor and what is the object.
7. Claim
of other relatives to be appointed as guardian.
8. Personal
character of the claimant.
9. Capacity
of the applicant whether he or she may afford guardianship.
10. In
the absence of parents, the will of minor shall determine the guardianship.
11. Will
of minor in any case.
Kinds of guardianship: There are four
major kinds of guardianship as follows:
1. Guardian for marriage:
Malki: Only father is competent to be guardian.
Shafi: Father and grandfather are competent.
Shia: They endorse the point of view of Shafi’s.
Hanfi: Other than these relatives also residuaries are competent.
Guardian must be more than fifteen
years of age.
2. Guardian of the person of the minor: Only
mother can be guardian as per following rules:
Hanfi: Boy shall remain in custody for
seven years while girl until she attains the age of puberty.
Malki: Boy shall be within custody
until he attains sufficient conversation ability and girl till marriage.
Shafi: Period of guardianship in either
case shall extend to seven years. After seven years, consents of the minor
would be determinant factor.
Shia: Boy shall be in custody for two
years and girl for seven years.
3. Guardian of the property of the minor: It
contains three types of custody such as, legal or natural, certified, and de
facto.
(1)
Legal:
Father or father’s Will and paternal grandfather or his Will is subject of
guardianship.
(2)
Certified:
Family Court determines it. Court may appoint any person as guardian keeping in
view of welfare of the minor.
(3)
De facto:
It is voluntary guardianship not based on love and affection.
4. Testamentary guardianship: It is based
on Will of the guardians.
List of preferences of guardians:
1. Maternal
Grandmother.
2. Paternal
grandmother.
3. Full
sister.
4. Maternal
sister.
5. Consanguine
sister.
6. Full
sister’s daughter.
7. Maternal
sister’s daughter.
8. Consanguine’s
sister’s daughter.
9. Maternal
aunts.
10. Paternal
aunts.
11. If
no other relative is available then and any nearest from father’s family shall
be appointed as guardian.
When right of guardianship of female
ceases:
1. When
she leads immoral life.
2. If
she neglects care of minor.
3. If
she remarries with non-prohibited degree in relation with minor girl.
If father has been died, then following
shall be priority:
1. Nearest
paternal grandfather.
2. Full
brother.
3. Consanguine
brother.
4. Uterine
brother.
Extent to hold the property of minor:
Guardian appointed for the property of the minor is responsible as follows:
1. He
is responsible for the maintenance
of the property of the minor.
2. He
is liable to administer the
property.
3. He
has to refrain to sell property of
the minor.
Conditions for the sale of property of the
minor: Following are the cases in which guardian of the minor may sell his
property over which he has been appointed:
1. Extreme
necessities like payment of loan of deceased person like his father.
2. Maintenance
of minor.
3. If
income of property is less than of its expenses.
4. Where
there is clear benefit of the minor, like the double or triple price of the
property belonging to minor is offered.
5. Property
is being decayed (decomposed) or destroyed.
6. If
property comes in the hands of illegal occupant or possessors.
7. If
business has to be carried out for the clear benefit of the minor.
If loss occurs
from the sale proceed, guardian has to bear it while all profits shall go to
minor. Minor is not shareholder in loss but in profits only.
Guardian cannot
sell property of the minor but he can lease it out only for five years. Term of
lease shall cease when he shall attain the age of puberty. Only one year’s
grace period is allowed. Guardian cannot make any transaction in his own
favour.
How the guardianship extinguishes or
removes: In following cases guardianship is ceased:
1. Abuse
or breach of trust.
2. Failure
to perform as guardian.
3. Incapacity
of guardian.
4. Mal-treatment
with minor.
5. Exceed
of powers given by the Court.
6. If
adverse effect in interest of minor occurs.
7. When
guardian goes beyond the jurisdiction of the Court under which order he was
appointed.
8. Bankruptcy
or insolvency puts guardianship end.
Automatic cessation of guardianship:
There are certain events under which guardianship ceases automatically such as:
1. Death
either of guardian or minor.
2. If
Court takes the custody of minor from individual.
3. When
minor becomes major.
4. When
marriage of girl is conducted.
5. When
guardian becomes the person of unsound mind and unfits.
Gift or Hiba (îJÇ): 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.”
Kinds of Hiba or gift: It has its four kinds that is areeat (O×ÍiB§), sadqah (î³fu), hiba-bil-iwaz (~̨»ABI îJÇ), and
hiba-bil-shartl-aiwz (~̨»A
¢jr»BI îJÇ). They are defined as follows:
1. Areeat (O×ÍiB§): 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.
2. Sadqah (î³fu): 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 (~̨»ABI îJÇ):
It is a gift for consideration and looks like a sale and has all incidents of a
contract of sale. It has two essentials, i.e., actual payment of consideration
and intention on the part of donor in favour of 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-shartl-iwaz
(~̨»A
¢jr»BI îJÇ): Where a gift is conditioned on the occurrence of
certain thing or incident. It is also called contingent gift, which becomes
valid upon happening of certain thing.
According to Transfer of
Property rules Hiba is a “transfer of property made immediately and without any
exchange.”
Syed Ameer Ali says, “it is a voluntary
gift which is made without consideration of property or substance of the thing
by one person to another so as to constitute the donee, the proprietor of the
subject matter of gift.”
Baillie says, “conferring the right of
property without an exchange.”
Essentials of valid gift: Gift is not
valid until certain conditions are fulfilled such as:
1.
Offer:
The donor makes it.
2.
Acceptance:
To whom offer is made, the donee, accepts it.
3.
Delivery
of possession: It constitutes and completes gift.
4.
Subject
matter: It must be transferable and must be transferred actually.
5.
Sound
mind: Person of unsound mind is not capable to make gift.
6.
Major:
Donor must attain age of majority before he makes gift.
7.
Free
consents: Consents of donor and donee must be free. Coercion invalidates
gift.
8.
Muslim:
Transfer of property in term of gift is subject to Islam. Non-Muslims are
excluded from this transaction.
9.
Solvency:
Insolvency makes person unable to make gift.
Conditions for donee: Donee is a person
to whom gift is made. His eligibility is subject to certain conditions such as:
1.
Any
person: He may either be Muslim or otherwise.
2.
Mind:
Donee may be a person of sound or unsound mind.
3.
Age:
Majority or minority do not restrict him to become as donee.
4.
Guardian:
He may act as donee for his Ward.
Exceptions: Person who is non-existent
may not become as donee. But in opinion of some jurists, person whose birth is
expected within six months, gift can be made in his favour. Guardian or father
of unborn person may act as donee for him until his birth takes place.
Extent of donor’s power: Whole of
property is subject of gift and it can be made even in favour of legal heir.
Musha (îr¿): 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.
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.
Will: It is a desire of a person to
transfer property to another, which takes effect after his death. Will is a
legal declaration of the intention of the testator with respect to his property,
which he desires to be carried into effect after his death.
To whom it can be made: There is no restriction to make Will in
favour of any person, other than heir or legatee. It can be made in favour of
person or institution such as school, mosque, or library etc. The most
important matter which regulates this rule is that it must be lawful object in
whom favour it is to be made.
Limitation: It has certain limitation,
particulars of which are as stated:
1. Capacity: Person who disposing of his
property by Will must be competent. He must be person of sound mind and if he
is occasionally person of sound and unsound mind, he must be a person of sound
mind at the time of making Will. He also should be person of sound mind at the
time of death. It is presumed that there may be chance to change Will if he is
person of sound mind when he died.
2. Existent property: Property, which is
not existent or of future nature cannot be subject matter of a valid Will. It
should also be existent at the time of death of testator.
3. Possession of property: Person making
Will should have possession of the property so subject of Will. Possession of
present property constitutes valid Will. Future possession is sufficient to
invalidate it.
4. Limited portion: A person so desirous
cannot dispose of his property more than one third of the surplus of his estate
after payment of funeral expenses and debts.
5. Subject of Will: Legatee or heir cannot
take property out of Will.
6. Time of execution: Property in Will is
delivered after death of testator. Will remains suspend during the lifetime of
testator. It becomes effective only after his death.
7. No formality: There is no formality to
execute the Will.
8. Acceptance: Until the subject of Will
does not accept it, it remains invalid. Acceptance in life has no effect.
Capacity of testator: There are some
qualifications of testator such as:
1.
Major:
Only a major can dispose of his property by way of Will. Minor may receive
property but cannot make Will.
2.
Possession:
Future possession of property does not operate Will. Possession of property
must be there at the time of making Will.
3.
Wise:
A person who is not wise cannot make Will. Lunatic person may make Will during
interval period.
4.
Solvent:
Insolvent person cannot make Will.
Subjects of will: Following are the persons
to whom Will can be made:
1.
Minor:
Majority is no more important as far as the receipt of Will is concerned.
Majority is the condition of making Will while it is disregarded at the time of
delivery of property.
2.
Unsound
mind: It can be delivered also to the person of unsound mind and his
wise-ness is negated.
3.
Existent:
Only existent person is taken into consideration for Will.
4.
Non-existent:
Conditional Will can be made for the person who is still in womb. Will shall be
valid if he is born within six months after making Will. His next friend may
accept Will, otherwise implied acceptance is presumed.
5.
Acceptance:
Where there is not acceptance, there is no execution of Will. Legatee must
accept it.
6.
Free
consents: Consents of the person who accepts it should be free without
using influence of his superior. Coercion, fraud, and misrepresentation
invalidate Will.
Forms of Will: Will can be made either
expressly or implied – verbally or in writing or regardless it is verbal or
written, intention of testator must be clear.
Exception: Although Will cannot be made
in favour of heir or legatee but there is exception to this rule. If there are
more than one legatees and they do not object if Will is made in favour of one,
it shall be valid. If there is one legatee, he can acquire property by way of
Will. Free consents after death of testator should be obtained. Any single heir
may consent so as to bind his own share. If heirs deviate at the time of death
of testator, Will in favour of heir would become ineffective.
Bequest cannot
be made in favour of murderer legatee. Bequest also can be made to the person
who is not legatee or heir.
In determining
whether a person is or not heir, regard is to be had, not to the time to the
execution of the Will, but to the time of the death of testator.
Revocation of Will: Bequest can be
revoked at any time either expressly or by implication.
1.
Express
revocation: Revocation is express when testator revokes the bequest in
express terms either written or oral.
2.
Implied
revocation: Conduct of testator revokes the bequest. Any act of testator
which adds or extinct the proprietary rights, operates revocation. Where a
testator builds a house, Will of piece of land revokes. When animal is
slaughtered, bequest is revoked. When a piece of metal is converted into
vessel, Will of metal is revoked. Sale
of gift of house revokes its Will.
3.
Revocation
by subsequent Will: Where a same property is bequested to another,
subsequent Will shall revoke to prior Will.
Exception: Where same property is
bequeathed subsequently to another person in the same Will, prior bequest shall
not be extinguished, but is shall be divided equally.
4.
Revocation
by refusal: If person refuses to accept property of Will, shall make Will
invalid. It shall return property to legal heirs.
Death-bed-illness: It is a malady
(ailment, illness, disease) which induces an apprehension of death in the
persons suffering from it and which eventually results in his death. It is an
essential condition of death-bed-illness that the person suffering from the
malady must be under apprehension of death. The most valid definition of
death-bed-illness is that one, which it is highly probable, will issue fatally.
Baillie: Where the malady is of long
continuance as for instance, consumption or alluminuria, and there is no immediate
apprehension of death, the malady is not death-bed-illness. It may become
death-bed-illness if it subsequently reaches such a stage as to render death
highly probable, and does in fact result in death.
Hidaya: A malady is said to be of “long
continuance” if it has lasted a year, a disease that has lasted a year does not
constitute death-bed-illness, for “the patient has become familiarized to his
disease which is not then accounted as sickness”. But this limit of one year
does not constitute a hard and fast rule, and it may mean a period of about
one-year.
Essential ingredients: To constitute a
malady death-bed-illness, there must be:
1.
Proximate danger of death, so that there is
preponderance (majority, primacy, dominance, supremacy, influence) of
apprehension of death.
2.
Some degree of subjective apprehension of death
in the mind of the sick person.
3.
Some external indicia chief among which would be
inability to attend to ordinary avocations (hobby). Opinion of third person
either relative or doctor is immaterial and state of mind of sick person
becomes material.
There may be
other reasons apart from fatal disease; such as apprehension of destruction of
plane during flight, sink of ship, air storm, and death penalty also constitute
death-bed-illness.
Effects of
death-bed-illness on different transactions:
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.
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.
Dissolution of Muslim Marriage: A
Muslim married woman can obtain a decree for the dissolution of her marriage on
any one or more of the following reasons before consummation, namely:
1.
Disappearance:
If husband disappears and no one knows his whereabouts till four years, may
cause claim of dissolution of marriage.
2.
Negligence:
If husband neglects his wife habitually and does not take her care, she may
invoke for dissolution of marriage.
3.
Failure
in maintenance: This is duty of husband to provide sufficient maintenance
necessary for life. If he fails, wife may claim dissolution of marriage.
4.
Sentence:
Sentence to husband for or more than seven years in commission of offence puts
wife in demand of dissolution of marriage.
5.
Failure
in marital obligations: Marital relationship is right of wife. Three years’
continue non-performance, without any reasonable cause, is sufficient ground
for dissolution of marriage.
6.
Impotency:
Impotency of husband at the time of marriage and still its continuity is valid
ground for dissolution of marriage.
7.
Dread
disease: If husband is suffering from any dread disease such as leprosy or
virulent venereal disease since two years may cause dissolution of marriage.
8.
Marriage
in minority: If father of minor girl has given her in marriage before
attaining age of fifteen years, she may revoke marriage.
Where the marriage has not been consummated, following
reasons shall be sufficient grounds for the dissolution of marriage:
1.
Habitual
assault: If husband habitually assaults his wife and makes her life
miserable by cruelty of conduct even without physical ill-treatment, may cause
demand for dissolution.
2.
Infamous
life: If her husband associates with others women and leads infamous life,
shall amount reasonable ground for dissolution.
3.
Induces
for immoral life: Dissolution becomes necessary when husband attempts to
force her to lead immoral life.
4.
Illegal
prevention: When husband sells her property without her consents and
without any valid reason and prevents her to exercise her legal rights,
dissolution becomes imperative.
5.
Obstruction
in religious practice: A Muslim woman can exercise her religious practice
and may adopt religious profession. Obstruction of husband in discharge of
above obligations is valid reason for dissolution of marriage.
6.
Inequitable
treatment: Muslim husband may have more than one wives in certain cases but
he has to treat all of them equitably. If he fails to do so may one of his
wives put in dissolution of marriage.
Decree of dissolution of marriage is not
passed in following cases:
1.
Where the sentence has not been final by Court,
but if sentence became final after all appeals, decree shall be issued.
2.
Where husband appears within six months after
passing such decree and prepares to perform his conjugal duties. Decree, which
has been issued, shall be set aside.
3.
Where he ceases his impotency within one year
after making an application in Court.
Changes brought by Muslim Family Laws
Ordinance: Muslim Family Laws Ordinance has brought certain changes
towards Islam, 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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