Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:05:36 PM

Course Contents:

1.      Muslim Personal Laws including relevant enactment and Quranic Verses, for example, Dissolution of Muslims Marriages Act (VIII of 1961); Muslim Family Laws Ordinance (VIII of 1961); West Pakistan Muslim Personal Law (Shariat); Application Act (V of 1962).

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).

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 (ӯN) has 1 daughter and no son then daughter shall inherit share of full bequest (legacy 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 th and in inverse situation, i.e., if he is issue-less then he shall inherit share.

2.      If husband dies then wife shall inherit half of husbands share as mentioned in former line.

3.      If deceased has neither parents nor issues then husband shall inherit th 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 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 (OQAi) is derived from (TiA) which is left over or residuary. Who is called (TiA) 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 (BM̂ N) (as per Shariat) has no representation as regard of legal heirs. Both Sunni and Shia sects (schools) are agreed upon it.

 

 

 

Grandfather (P)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Died)

Son (A)

 

Son (B)

(Died)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Grandson

Grandson

Grandson

 

 

 

(C)

(D)

(E)

 

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.

 

 

 

 

Rule of exclusion

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

Partial

 

Permanent

Temporary

 

Homicide: In case of homicide murderer would be excluded for the purpose of inheritance as per the Tradition (MB TAjο - Tj MBA). 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: (jBA nA Tj nA jBA Tj .q N A TiAN ) Non-Muslim cant 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 (LjZiAe) cannot inherit from the Islamic State (nAiAe) and vice versa.

Rule of estoppel in succession or inheritance means that first statement cant be revoked. A person who has never admitted a child, as his son cant claim inheritance after his death, being his son. Here rules of estoppel are applied.

Temporary exclusion: It has two kinds as follows:

 

 

Temporary exclusion

 

 

 

 

 

 

 

 

 

Total exclusion

Partial exclusion

1.      Total exclusion: Orphan grandson (BM̂ N) 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 (rBU): 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 (~jAg).

2.      Residuaries (Jv).

3.      Distant kindred (BYiAg).

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 (BA OI) as per Sunni school of thought and it will go to poor inhabitant as per Shia school of thought.

Impediments in inheritance (OQAi PBjZ): 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., Fathers Father (FF) or Fathers Fathers Father (FFF). False Grandfather means where a female intervenes, e.g., mothers father (mf), fathers mothers father (fmf) or fathers fathers mothers 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.      Sons daughter.

6.      Uterine or maternal sister.

7.      Full sister.

8.      Consanguine (Jv) 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 fathers share?

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Son

All the rest being residuary, i.e., 17/24th

Wife

Being fixed sharer 1/8th of full or 3/24th

Father

Being fixed sharer 1/6th of full or 4/24

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.

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Son

Being residuary all the rest @ 2:1

Daughter

Being residuary all the rest @ 2:1

Wife

Being fixed sharer 1/8th

Father

Being fixed sharer 1/6th

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Daughter

All the rest, i.e., 12/24th

Wife

1/8th or 3/24th

Father

1/6th or 4/24th all the rest being residuary or return to sharer

1 + 1 + 1

2 8 6

12 + 3 + 4 = 19

24 24

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

Wife

1/8th

Father

1/6th and all the rest being residuary

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

Mother

1/3th

Father

2/3rd and all the rest being residuary

 

Propositus (Deceased)

 

 

Only Mother

Being fixed sharer in the absence of children 1/3rd & all the rest of 2/3rd being residuary

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 if there are no children or in case of the presence of offspring. Children of son are also eligible to inherit while offspring of daughter are ineligible.

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

Husband

Father

2/3rd and all the rest being residuary.

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Son

Being residuary all the rest @ 2:1

Daughter

Being residuary all the rest @ 2:1

Husband

Being fixed sharer 1/8th

Father

Being fixed sharer 1/6th

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.

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

Mother

1/3rd

Father

All the rest being residuary, i.e., 2/3rd which is left over.

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mother

1/3rd due to presence of one sister

Father

All the rest being residuary, i.e., 2/3rd which is left over.

Sister

She shall get nothing being not fixed sharer

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sister

She is excluded

Brother

He is excluded

Father

Being residuary all the rest, i.e., 5/6th

Mother

Being fixed sharer 1/6th

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Son

He is excluded

Being residuary all the rest by 2:1

Daughter

She is excluded

Being residuary all the rest by 2:1

Father

Being fixed sharer he shall get 1/6th

Mother

Being fixed sharer she shall get 1/6th

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Daughter

2/3rd of the rest equally

Daughter

2/3rd of the rest equally

Father

Being residuary he shall get all the rest whatever left over

Mother

Being fixed sharer she shall get 1/6th

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mother

1/3rd of the remaining whichever is left over

Father

All the rest being residuary

Husband

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mother

1/3rd of the 3/4th

Father

All the rest being residuary whichever is left over after wife & mother

Wife

Maternal True Grand Mother (MTGM) shall get share if there is no mother and no nearest grandmother is alive.

 

Propositus (Deceased)

 

 

Mother

 

 

Grandmother

 

 

Grandmother

 

 

Grandmother

 

 

Grandmother

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:

 

Propositus (Deceased)

 

 

Daughter

and the rest as return to sharer

 

Propositus (Deceased)

 

 

Mother

1/3rd and the rest as residuary

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 or and share of wife shall restrict upto or 1/8. It varies with or without progeny of deceased.

Full sister shall get or 1/3rd or being residuary. Following conditions shall apply:

1.      No son is alive.

2.      No daughter is alive.

3.      No sons children are alive.

4.      No father is alive.

5.      No grandfather is alive.

6.      No brother is alive.

Doctrine of increase/decrease (ei/̧ uA): 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:

+ + + + = 5/4 = 5/5

Denominator means lower and nominator means higher. Following is an instance:

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Husband

Sister

Sister

2/3rd (equally)

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.

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Husband

2 Full Sister

2/3rd (equally)

Mother

1/6th

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)               Sons 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 brothers son.

(10)           Consanguine brothers son.

(11)           Full brothers sons son.

(12)           Consanguine brothers sons son.

(IV)          Descendents of True Grandfather (How high-so-ever (HHS).

(13)           Full paternal uncle.

(14)           Consanguine paternal uncle.

(15)           Full paternal uncles son.

(16)           Consanguine paternal uncles son.

(17)           Full paternal uncles sons son.

(18)           Consanguine paternal uncles sons son.

(19)           Male descendents of more remote true grandfathers, i.e., deceaseds paternal uncles and their sons and sons 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)         Daughters children and their descendants.

(2)         Children of sons 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-Maal: 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:

 

Group 1

(a)   Parents (Father & Mother).

(b)   Children & other lineal descendents (How low-so-ever (HLS).

Group 2

(a)   Grand parents (true as well as false) (How high-so-ever HHS)

(b)   Brothers, sisters, and their descendents.

Group 3

(a)   Parental uncles & aunts (How high-so-ever HHS)

(b)   Maternal uncles & aunts.

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

Group 1 excludes group 2 & 3. Group 2 excludes group 3. One group excludes remaining other one. Both sections within one group inherit simultaneously.

Priority: 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 or .

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Husband

Father

Mother

Brother

 

1/6th

1/6th

Excluded

Sunni School

 

Being residuary

 

 

 

 

 

 

 

 

 

 

 

1/6th

1/6th

Excluded as he relates to Group 2

Shia School

 

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Father

Mother

Wife

 

Residuary

1/3rd of 3/4th

1/4th

Sunni School

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Residuary

1/3rd

1/4th

Shia School

 

 

Propositus (Deceased)

 

 

 

 

 

 

 

 

 

 

 

 

Daughter

Paternal Uncle

 

Residuary, i.e.,

Sunni School

 

 

 

 

 

 

 

 

 

 

Entire

Excluded

Shia School

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 (m μ "A Ӽu) 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 (LBVA).

2.      Acceptance (J).

3.      Two Muslim witnesses ({Ǎ).

4.      Sanity ().

5.      Capacity of parties (OμA).

6.      No legal disabilities (impediments OμAB B).

7.      Same meeting.

According to Malki (ӸB) and Shafi (ӨBq) schools contract of marriage is made only through guardian (ӻ). 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 (̼JAiBa) 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 (̼JAiBa) 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 \Zu), or irregular (fasid fmB), or void (batil BI). 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 husbands 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)         Brothers daughter (How low-so-ever (HLS).

(5)         Mother/fathers 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)         Wifes daughter (stepdaughter).

(3)         Sons wife or sons sons 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)         Sisters foster mother.

(2)         Foster sisters mother.

(3)         Foster brothers sister.

How the fosterage (OByi) 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 (fZ BA) and Imam Yousaf (m BA) who were disciples of Imam Abu Hanifa (Y IA BA) specify the feeding upto 2 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 (ZZu 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 Courts 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:

 

 

 

Dower

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Specified

Proper or Customary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prompt

Deferred

 

 

 

Specified dower: It is on the part of husband whether what amount he likes to settle at the time of contract of marriage. It cannot be settled less than 10 Dirhams in any case.

Proper (Customary) dower: Unsettled dower will be decided with proper or customary dower. Average dower of wifes fathers 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 fathers 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 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 husbands property, and may obtain such possession in lieu of dower.

Right of maintenance or alimony ( B): 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 husbands 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 (ӼJY) 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 (η). 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 (r): 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 (Ui) 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 (ӨUi): 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 (BI): 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 (Om): It has two kinds as follows:

i)  Ahsan (nYA): 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 (nY): This consists of three pronouncements during successive Tuhrs, no intercourse taking place during any of the Tuhrs.

b) Bidyat (OfI): 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 (): It is right of husband and exercisable by him.

b) Khula (a): 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 dont 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 Mubaraat the wife is bound to observe iddet.

d) By delegation or (|̰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 (A): 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 (iBȣ): 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 (OM): 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 years 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 (Ui): 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 (ݨ) or words (̳) may constitute retraction.

2.      It is constituted before the expiry of period of iddet. In other words it should be before third menstrual period.

3.      Presence of witnesses is advisable.

4.      In Hanfi School, sexual intercourse confirms retraction but advisable method is declaration, which makes it valid. Shafi School considers the presence of witnesses mandatory.

5.      Kiss with sexual desire is also equivalent to retraction.

6.      If husband sees hidden part with sexual desire, it also amounts retraciton.

7.      If wife kisses her husband, according to Imam Yousaf it does not confirm retraction. Husband shall be asked whether it is done with sexual desire. If so, then confirmed.

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 mothers side. Paternity is vice versa of maternity. It is a relation and legal status of a child, which determines the succession or inheritance from fathers 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 12 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 (O): 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 OBzY) 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 (m μ "A Ӽu), 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 Shafis.

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 fathers 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 sisters daughter.

7.      Maternal sisters daughter.

8.      Consanguines sisters daughter.

9.      Maternal aunts.

10.  Paternal aunts.

11.  If no other relative is available then and any nearest from fathers 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 years 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 (J): 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 (OiB), sadqah (fu), hiba-bil-iwaz (~̨ABI J), and hiba-bil-shartl-aiwz (~̨A jrBI J). They are defined as follows:

1.     Areeat (OiB): 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 (fu): 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 J): 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 jrBI J): 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 donors power: Whole of property is subject of gift and it can be made even in favour of legal heir.

Musha (r): 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.

Back | Next

Go to Index | LL. B. I | LL. B. III | Laws | Home