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FAMILY LAW II IMPORTANT QUESTIONS
SHORT ANSWER QUESTIONS
1. SCHOOLS OF MUSLIM LAW, SHIA SCHOOL
2. WHAT IS DOWER (MAHR)? EXPLAIN ITS OBJECTS
AND CLASSIFICATION, WITH RELEVANT CASES. (DEFERRED DOWER)
3. PATERNITY ACKNOWLEDGEMENT
4. GUARDIANSHIP UNDER MUSLIM LAW AND DIFFERENT KINDS OF
GUARDIANSHIP
5. HIBA (GIFT).
6. WILL(WASIYAT), DISCUSS THE REQUISITES OF A VALID WILL
AND DISTINGUISH BETWEEN WILL AND GIFT UNDER MUSLIM LAW
7. MUTAWALLI, WHO MAY BE APPOINTED? POWERS OF MUTAWALLI OVER THE
WAKF PROPERTY.
LONG ANSWER QUESTIONS
1, SOURCES OF MUSLIM LAW, ORIGIN & DEVELOPMENT OF MUSLIM LAW.
2. ESSENTIAL REQUIREMENTS OF MUSLIM MARRIAGE.
DISTINGUISH BETWEEN VOID, IRREGULAR & VALID MARRIAGES.
WHO IS MOHAMMEDAN? EXAMINE THE MOHAMMEDAN THEORY OF
MARRIAGE.
3. EXPLAIN DIVORCE AMONG MUSLIMS. DIFFERENT MODES OF DIVORCE.
WHEN A MUSLIM WIFE CAN GET DIVORCE. PUBERTY (OPTION OF PUBERTY).
4. DEFINE WAQF. EXPLAIN THE ESSENTIALS & KINDS OF WAQF.
HOW IT IS CREATED AND REVOKED?
5. STATE THE SALIENT FEATURES & GROUNDS FOR DIVORCE PROVIDED
TO THE HUSBAND & WIFE UNDER THE INDIAN DIVORCE ACT, 1869.
CASE LAWS
1. MARRIAGE WITHOUT DOWER.
2. HINDU MALE CONVERTING TO MUSLIM FOR SECOND MARRIAGE.
3. INHERITANCE.
4. A MUSLIM WANTS TO MARRY HIS WIFE’S SISTER.
**5. A Sunni/Shia woman marrying a Christian Male.
- Inheritance among residuaries.
- Triple Talaq.
- Sunni inheritance.
- Minor girl’s marriage and her custody.
- Inheritance table.
- Maintenance of wife after Iddat period.
- Lien over the property for recovery of Dower debt.
- Testamentary power and its limits.
- Marriage during the Iddat period.**
PAPER-II :
FAMILY LAW-II
(Muslim Law and Other Personal Laws) Unit-I: Origin and development of Muslim Law - Sources of Muslim Law - Schools of Muslim Law – Difference between the Sunni and Shia Schools – Sub-schools of Sunni Law - Operation and application of Muslim Law - Conversion to Islam - Effects of conversion - Law of Marriage, nature of Muslim Marriage – Essential requirements of valid Marriage - Kinds of Marriages - distinction between void, irregular and valid marriage - Dower (Mahr) - Origin, nature, and importance of dower, object of dower and classification of dower. Unit-II: Divorce - Classification of divorce - different modes of Talaq - Legal consequences of divorce - Dissolution of Muslim Marriage Act, 1939 - Maintenance, Principles of maintenance, Persons entitled to maintenance - The Muslim Women (Protection of Rights on Divorce) Act, 1986 - Effect of conversion on maintenance and difference between Shia and Sunni Law. Unit-III: Parentage - Maternity and Paternity - Legitimacy and acknowledgement - Guardianship - Meaning – Kinds of guardianship - Removal of guardian - Difference between Shia and Sunni Law. Gift - Definition of Gift - Requisites of valid gift - Gift formalities - Revocation of gift - Kinds of gift. Wills - Meaning of Will - Requisites of valid Will - Revocation of Will - Distinction between Will and Gift - Difference between Shia and Sunni Law. Unit-IV: Waqf _ Definition - Essentials of Waqf - Kinds of Waqf – Creation of Waqf - Revocation of Waqf - Salient features of the Waqf Act, 1995 – Mutawalli – Who can be Mutawalli - Powers, and duties of Mutawalli - Removal of Mutawalli and Management of Waqf property. Succession - Application of the property of a deceased Muslim - Legal position of heirs as representatives - Administration - Waqf Tribunals and Jurisdiction. Unit-V: Special Marriage Act, 1954 - Salient features of Indian Divorce Act, 1869 - Domicile - Maintenance to dependents/ Spouses - Intestate succession of Christians under the Indian Succession Act, 1925. Suggested Readings:
- Tahir Mahmood: The Muslim Law of India , Law Book Company, Allahabad.
- Aquil Ahmed: Text Book of Mohammadan Law, Central Law Agency, Allahabad.
- G.C.V. Subba Rao: Family Law in India , S.Gogia & Company, Hyderabad.
- Asaf A.A.Fyzee: Outlines of Mohammadan Law , Oxford University Press, Delhi.
- Mulla: Principles of Mohammedan Law.
- Paras Divan: Family Law (Hindu, Muslim, Christian, Parsi, and Others) , Allahabad Law Agency, Allahabad.
- M.A. Qureshi: Text Book on Muslim Law , Central Law Publications, Allahabad. 8.B.R. Varma, Mohammedan Law, Delhi Law House, New Delhi.
The marriage is valid even though no mention of the dower made by the contracting party (Hassina Bibi v Zubaida Bidi). The above opinions are based on the argument that marriage is a civil contract and dower is a consideration for the contract. But it is submitted that the above opinions are erroneous because even in those cases where no dower is specified at the time of marriage, marriage is not void on that account, but the law requires that some dower (proper or customary dower) should be paid to the wife. Abdur Rahim correctly observed, “It is not a consideration proceeding from the husband for the contract of marriage, but it is an obligation imposed by the law on the husband as mark of respect for the wife as is evident from the fact that the non- specification of dower at the time of marriage does not affect the validity of marriage”. Objects of dower (mahr):
- To provide a check upon the capricious use on the part of the husband to divorce the wife or terminate the marriage at will.
- Property or money which a woman receives as Mahr is her exclusive domain, without any interference even from her parents or in-laws.
- Mahr is regarded as a mark of respect for the wife, in which a friend or partner pays to another in a civilized society.
- Muslim woman gets respect according to her own (dower) property as she is not dependent on anyone.
- It acts as a deterrent to polygamy.
- To provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of the marriage by divorce. Classification of dower (mahr): The dower may be classified into:
- Specified dower (Mahr-i-musamma): If the amount of dower is stated in the marriage contract, it is called the specified dower. Specified dower is again divided into: a. Prompt dower (mu’ajjal mahr): It is payable immediately after marriage on demand. b. Deferred dower (muw’ajjal mahr): It is payable on the dissolution of marriage either by death or divorce.
- Customary (proper) dower (Mahr-i-mishl). 3. Paternity acknowledgement (ikras/iqrar). Answer: Muslim law does not recognize the institution of adoption which is recognized by other systems. Under the Hindu law adoption is intimately connected with religion having relation to the repose of the souls of the departed and the preservation of the household divinities. “Where the paternity of a child, that is, his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception of birth, Muslim Law recognizes ‘acknowledgement’ as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for the purposes of inheritance”. The ‘acknowledgement’ applies only to cases of uncertainty as to the legitimacy, but the effect of acknowledgement always proceeds upon the assumption of lawful marriage, between the parents of the acknowledged child.
Conditions of valid acknowledgement:
- Intention to confer legitimacy,
- The acknowledger is of sound mind and an adult,
- The child’s mother will become the wife of acknowledger,
- The acknowledgement must be not merely of sonship,
- The acknowledger must be at least twelve and half years older than the person acknowledged.
- The child must not be offspring of Zina,
- The child should not belong to others,
- Legal marriage possible between parents of the child acknowledged, Effects of acknowledgements: Acknowledgement of paternity raises a twofold presumption
- One in favour of son-claimant, and
- The other in favour of the wife claimant. In the case of a son, it produces all the legal effect of natural paternity and vests in the child the right of inheriting from the acknowledger. In the case of the wife, i.e., the mother of the acknowledged son, it has the effect of giving her the status of legal wife and hence the right of inheritance.
- Adoption not recognized in Muslim Law.
- Acknowledgement and adoption – distinction. 4. Guardianship (wilayat) under Muslim Law and different kinds of guardianship. Answer: Definition of guardian: The term ‘guardian’ is defined in the Guardians and Wards Act as “a person having the care of the person of a minor or of his property, or of both his person and his property”. Who is a minor? A minor is one who has not attained the age of majority. Puberty and majority are, in the Muslim Law, one and the same. Puberty is presumed to have been attained on the completion of the fifteenth year. But now the Muslims are governed by the Indian majority Act, 1875, except in matters relating to marriage, divorce, and dower. Fifteen years is the age of the majority in general. As regards other matters of guardianship of person and property, a Muslim will be governed by the Majority Act which prescribes 18 years as the age of majority. Thus, in cases of wills, waqfs, etc., the minority will terminate on the completion of 18 years. Twenty-one years is the age of majority if the minor is under the Court of Wards, or a guardian of him has been appointed by the Court. Kinds of guardianship: Muslim Law distinction between guardian of the person, guardian of the property and guardian for purposes of marriage in the case of minors. Mohammedan Law recognizes three kinds of guardianship. They are as follows:
- Guardianship in marriage (Jabar): It is one of the essentials of a valid marriage that the parties are competent to enter into a marriage contract, i.e., among other things they must have attained the age of puberty. However, this general rule admits one exception i.e., where the marriage is contracted on behalf of the minors by the guardian. This exception is the most distinguishing feature of Islamic Jurisprudence because it empowers a father to impose the status of marriage on his minor children.
- Guardianship of person of the minor for custody (hizanat): Mother is the guardian A. According to Sunni law, custody of her male child till the age of seven years and her female child until she has attained puberty,
- Simple gift (hiba),
- Gift for consideration (Hiba-bil-iwaz): gift for a consideration already received.
- Hiba-ba-shartul-iwaz (a gift made with stipulation).
- Marz-ul-maut (Death-bed gift). 6. Will (Wasiyat), discuss the requisites of a valid will and distinguish between will and gift. Answer: A will document embodying the will is called Wasiyatnama. A will has been defined as “an instrument by which a person makes disposition of his property to take effect after his death, and which is in its own nature, ambulatory and revocable during his life. From this definition we get the following elements of will:
- Will is the conferment of right to one’s property on another,
- This conferment of right is to take effect after the death of the testator.
- The will is ambulatory and revocable during his lifetime. A will from the Musalman’s point of view is a divine institution since its exercise is regulated by the Quran. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods and of recognizing the services rendered to him by a stranger, or the devotion to him in his last moments. At the same time, the Prophet has declared that the power should not be exercised to the injury of the lawful heirs. Requisites of a valid will:
- The testator must be competent to make the will,
- The legatee must be competent to take the legacy or bequest,
- The subject of bequest must be a valid one,
- The bequest must be within the limits imposed on the testamentary power of Muslim,
- A will may be made either orally or in writing, no particular form of words is required, so long as the intention of the testator is clear,
- Revocation of will: Mohammedan Law confers on a testator unfettered right to revoke his will. He may revoke it at any time. The revocation may be either (i) express, or (ii) implied. The distinction between will and gift:
- The gift is inter vivos (between two living persons), whereas a will takes place after the death of the testator.
- The gift is an immediate transfer of right or interest, a will is a transfer of right to take effect after the death of the testator,
- In a gift transaction, delivery of possession is necessary in a will it is not required,
- The subject of the gift must be in existence at the time of gift; it need not exist at the time of making the will, it is sufficient if the subject is in existence at the death of the testator.
- The right of the donor to a gift is unrestricted. The right of making a bequest is limited in two ways.
- After Completion, a gift cannot be revoked unless by a formal decree of a Court; a will may be revoked at any time after making of it during the lifetime of the testator.
- The doctrine of Mushaa has no application in case of the disposition made by a will.
7. DEFINE MUTAWALLI, WHO MAY BE APPOINTED? STATE THE POWERS OF MUTAWALLI
OVER THE WAKF PROPERTY.
Answer: Mutawalli definition: The manager or superintendent of the waqf is called mutawalli. Under the Muslim system, in case of a waqf, all rights of ownership to the property vest in God. The Mutawalli has no right in the property. He is merely a superintendent or manager. He is not the trustee of the property. He has to see that the beneficiaries get the advantage of the usufruct. He has control over the usufruct alone and has to see that it is used for the objects of the Waqf in accordance with the desire of the Waqf. Who can be appointed as mutawalli?
- Any person who is of sound mind,
- He should be a major,
- Capable of performing the functions to be discharged under a particular waqf,
- Both male and female can be appointed,
- Any religion person can be appointed,
- A foreigner cannot be appointed (Shuruvan Nachiar v V.S.Mohammed Hussain Mara Catar).
- If religious duties or spiritual functions are part of the duties of a Mutawalli, a female or a non-Muslim cannot hold the offices of Sajjadanashin, Khatib, and Mujawar of a dargah or an Imam of a mosque. Who can appoint a Mutawalli?
- By the founder,
- Failing him, by the executor of the founder,
- Failing him, by the mutawalli on his death-bed,
- Failing him, by the court.
- Appointment by congregation. Powers of Mutawalli:
- Power to grant leases: A Mutawalli has no power to grant a lease of waqf property, if it is agricultural, for a term exceeding three years, and if, non-agricultural, for a term exceeding one year.
- Power to borrow money (with court permission),
- Power to sell, mortgage or dispose of waqf property (with court permission).
- He can file a suit for protecting Waqf property and for administering the Waqf property.
- A mutawalli is entitled to remuneration.
2. ESSENTIAL REQUIREMENTS OF MUSLIM MARRIAGE.
DISTINGUISH BETWEEN VOID, IRREGULAR & VALID MARRIAGES.
Answer: Definition of marriage (Nikah): The Arabic word nikah (marriage) literally means the union of the sexes and in law, this term means ‘marriage’. In Baillie’s Digest, marriage has been defined to be “a contract for the purpose of legalizing sexual intercourse, and procreation of children”. The Prophet said: “Marriage is my Sunna and those who do not follow this way of life are not my followers”, and that—“There is no monkery in Islam”. Thus, marriage, according to Muslim Law, is a contract for the purposes of legalization of intercourse, procreation of children and regulation of social life in the interest of society by creating:
- The rights and duties between the parties themselves, and
- Between each of them and the children born from the union. Objects of marriage:
- The restraint of sexual passion,
- The ordering of the family,
- The increase of the family,
- The discipline of the same in the care and responsibility of wife and children; and
- The upbringing virtuous children.
- To create legal rights.
- To create legal duties between the wife and husband and children. Essentials of valid marriage:
- Proposal and Acceptance,
- Free consent,
- Competent parties,
- No legal disability. A. Absolute incapacity: Absolute incapacity to marry arises from: a. Consanguinity: mother, g.mother, daughter, g.daughter, sister, niece or great-niece, aunt or great aunt. b. Affinity: wife’s mother or grandmother; wife’s daughter or g.daughter; wife of his father or g.father; wife of his son or son’s son c. Fosterage: foster mother or her daughter or his foster-sister. B. Relative incapacity: Relative incapacity springs from cases that render the marriage invalid only so long as the cause which creates the bar exists. The moment it is removed, the incapacity ends and the marriage becomes valid and binding. (i). Unlawful conjunction: marrying two sisters or aunt and her niece. (ii). polygamy, marrying the fifth wife. (iii). absence of witnesses, (iv). differences of religion, (v). marriage in iddat. C. Prohibitory incapacity: Muslim woman marrying more than one husband and marrying a non-Muslim. D. Directory incapacity: Marrying a pregnant woman, the prohibition of divorce, marriage during a pilgrimage, marriage with a sick man. Kinds of marriages:
- Valid (Sahih) marriage: A marriage that is neither void nor invalid is valid. In other words, a marriage that conforms in all respects with the legal requirements is a valid marriage. A marriage to be valid should follow all the essentials prescribed above.
- Void (Batil) marriage: A marriage which has no legal results is called a void marriage. A marriage contracted by parties suffering from absolute incapacity, i.e. prohibition on the grounds of consanguinity, affinity or fosterage, is void. Similarly, marriage with a woman who is the wife of another, or remarriage with a divorced wife, when the legal bar still exists will be void. They are of no legal effect and issues of a void marriage are illegitimate.
- Irregular or invalid (Fasid) marriage: A marriage contracted by parties suffering from relative, prohibitory or directory incapacity is irregular both according to Baillie and Ameer Ali. Some grounds which make the marriage irregular (fasid) are as under: A. Marriages contracted without witnesses, B. Marriage with a fifth wife, C. Marriage with a woman undergoing iddat, D. Marriage with a non-scriptural, E. Marriage by an unauthorized person, F. Marriage in contrary to the rules of unlawful conjunction. According to Shia Law marriage may only be either Valid (Sahih) or Void (batil). There is nothing like invalid marriage under Shia Law and hence marriages that are not valid are void. Those marriages which are irregular under Sunni law are void under Shia Law. However, under Shia law, a marriage contracted without witnesses is valid, it is not void. The distinction between Valid, Void and Irregular marriages: Valid – Sahih Void – Batil Irregular or Invalid - Fasid It’s a legal marriage and gives all legal rights It’s not a marriage at all and void from the beginning It’s a marriage with an inherent defect It’s a lawful marriage It’s an unlawful marriage It’s unlawful by irregularity There are no prohibitions in this marriage Prohibitions are perpetual and absolute or relative Prohibitions are temporary Wife is entitled to dower The wife is titled for dower if the consummation has taken place. On consummation, the wife is entitled to dower Children born are legitimate Children born are illegitimate Children born are legitimate Wife is entitled to maintenance Wife is not entitled to maintenance The wife can claim maintenance after regularisation of marriage Wife is required to observe iddat after the dissolution of marriage Wife need not observe iddat on the dissolution of marriage Wife is required to observe iddat after the dissolution of marriage Inheritance arises The wife and children will not get right of inheritance The wife and children will get right to inheritance There are no defects Defects cannot be cured Defects can be cured Recognized by both Sunni Recognized by both Sunni Recognized by Sunni Law,
d. Pronounced orally, e. At least two witnesses. Classification of Dissolution of Marriage :
- By the death of a party to the marriage.
- By divorce: A. By husband 1. Talaq: a. Talaq-ul-Sunnat: 1. Ahsan, 2. Hasan. b. Talaq-ul-Biddat: 1. Written divorce: When Talaq is in writing it becomes irrevocable immediately. 2. Triple divorce. 2. Ila: Where a husband was had attained majority and is of sound mind, swears by God that he will not have sexual intercourse with his wife and leaves the wife, to observe iddat he is said to make ila. 3. Zihar: The husband (who is sane and adult) compares his wife to his mother or any other female within a prohibited degree. B. By wife Talaq-e-tafweez: A husband may, either himself, repudiate his wife or delegate this power of repudiating her to a third party, or even to his wife. C. By Mutual consent: 1. Khula is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marriage tie. 2. Mubarat (divorce by mutual agreement). D. By Judicial decree under Dissolution of Muslim Marriage Act, 1939: 1. Lian (false charge of adultery). 2. Fask: When the marriage is irregular, they can go for the cancellation of marriage. Judicial Divorce (Dissolution of Muslim Marriages Act, 1939) Grounds available to Muslim woman for a decree for dissolution of marriage (Sec. 2):
- Absence of husband, for a period of 4 years.
- Failure to maintain, for a period of two years,
- Imprisonment of husband, for a period of 7 years.
- Failure to perform marital obligations, for a period of 3 years.
- Impotency of husband,
- Insanity (for two years), leprosy or venereal disease,
- Repudiation of marriage by wife (option of puberty), if the marriage is not consummated,
- The cruelty of husband,
- Grounds of dissolution recognizes by Mohammedan Law: Ila, Zihar, Khula, Mubarat, tafweez, Lian.
4. DEFINE WAKF. EXPLAIN ESSENTIALS AND KINDS OF WAKF. HOW IT IS CREATED AND
REVOKED?
Definition of Wakf: Wakf literally means detention, stoppage, or tying up. Technically it means a dedication in perpetuity of some specific property for a pious purpose or succession of pious purposes. Essentials of Wakf: A. A permanent dedication of any property, B. The dedicator (wakif) should be a person professing the Mussalman faith, C. The dedicator should be having a sound mind and not a minor or lunatic, and D. The dedication should be for purpose recognizes by the Mussalman law as religious, pious or charitable. Kinds of Wakf: Under Muslim Law, Wakfs have been classified into two categories: A. Public wakfs: A public Wakf is not created solely for the settlor’s family. It is for the general religious and charitable purposes. B. Private Wakfs (Wakf-ulal-aulad): A private Wakf is one for the settlor’s own family and descendants and is technically called, Wakf-ulal-aulad. Truly speaking, it is a family settlement by way of Wakf. How Wakf is created: Muslim Law does not prescribe any form for creating Wakf. It may be either verbal or in writing. Modes of creating: Wakf may be created either:-
- By an act inter vivos; or
- By will; or
- During death illness (marz-ul-maut); or
- By immemorial user. Revocation of Wakf: If a valid Wakf has once been created, it cannot be revoked by the Wakif for it is in the power of nobody to divest God of his ownership of the property. On the creation of the Wakf, the property at once passes to God and neither it can be reverted later nor can God be divested of the property and the Wakif or his successor-in-interest restored to it by any subsequent breaches of the terms of the Wakf Mutawalli of his office.
- A testamentary Wakf may be revoked by the author of the Wakf any time before his death.
- A Wakf during death illness (marz-ul-maut) without consent of heirs is valid only to the extent of 1/3 of the property and invalid beyond this limit. There is no revocation involved here too.
- A Wakf created by an act ‘inter vivos’ is irrevocable. If the Wakif reserves the power of revocation, the Wakf is invalid. 5. STATE THE SALIENT FEATURES AND GROUNDS FOR DIVORCE PROVIDED TO THE HUSBAND AND WIFE UNDER THE INDIAN DIVORCE ACT, 1869. Answer: The salient feature of the Divorce Act, 1869:
- Pre-independency period,
- The Divorce Act, 1869, before to Amendment Act 2001 the Act was called ‘The Indian Divorce Act, 1869, came into force with effect from 01.04.1869.
- The Divorce Act, 1869 extends to the whole of India, except the State of Jammu and Kashmir
Part-C: Problems
1. A Muslim marriage is contracted without any Dower fixed by the parties. Will such marriage be valid? Explain. (Sep-2018) Issue: Whether the marriage without fixing dower is valid? ➢ Yes When can be dower be fixed? ➢ Before Marriage, During Marriage, After Marriage Rule: According to Section 128 of Law of Shariat Marriage Act, Dower is the financial right arising from the marriage contract which is an obligation in all circumstances, even if at the time of marriage it was agreed upon that, there will be no dower. Application: Proper dower is also known as 'Customary Dower' (Mahr-i-mishl). At the time of the marriage, if no amount is fixed as dower, Sometimes the bride also accepts the marriage without any dower, under such circumstances, the wife is entitled to customary dower. The customary dower means, the amount of the dower to be paid to the wife shall be determined on the customary and proper way on the principle that what amount the other female members of her father's family, viz., her father's sisters, would get, the same amount shall be paid to the wife. It is a custom. Hence this type is known as customary dower Mahr- i-mishl. EXAMPLE : A marriage took place between A and B. either before, or after the marriage, no dower has been fixed. After some years, there is a conflict between A and B, A divorces B. Then the question arises, how much shall be payable. B's father's sister was given Rs. 10,000/- as her dower. Now the same amount i.e., Rs. 10,000/- shall be payable by A to B. This is called 'Customary Dower'. Hassina Bibi v Zubaida Bibi ‘Dower is an essential incident under the Muslim Law the status of marriage, to such an extent this is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Conclusion:- A Muslim marriage is contracted without any Dower fixed by the parties at the time of marriage is valid.
2. ‘A’ Hindu male converts into Islam and contracts a second marriage, without dissolving the first marriage. Explain the validity of the second marriage. (Sep - 2018 ) Issue:- A Hindu male converts into Islam and contracts a second marriage, without dissolving the first marriage is valid? No Rule:- Sec. 494 (Bigamy) of Indian Penal Code, 1860 applies to the second marriage. Application :- Law after the Hindu Marriage Act, 1955 : If a Hindu husband converts into Islam and without giving divorce (according to Hindu Law) to his Hindu wife, marries a Muslim girl, the marriage is not valid. Sec. 494 (Bigamy) of Indian Penal Code, 1860 applies to the second marriage. If an unmarried Hindu male converts into Islam and marries a Muslim girl, their marriage is valid. In Sarla Mudgal v. Union of India, the Supreme Court of India in its judgment in 1995 laid down the principles against the practice of solemnizing second marriage by converting to Islam, with first marriage not being dissolved. In this case, the Apex Court has struck down the second marriage as illegal under Section 494 of IPC. Conclusion:- A Hindu male convert into Islam and contracts a second marriage, without dissolving the first marriage is illegal and attracts bigamy under section 494 and punishable. 3.'M' a Muslim female died leaving her two daughters, father, mother, and husband. Distribute her property. – Sep 2018. Issue: Whether the Muslim Law applies? Yes. Whether they are Sunnis? Yes (it’s not mentioned, assuming they are Sunni Muslims. Rule: The Sunni Law of Inheritance – Topic 8 of Part- 2 Application: There are three classes of heirs in the Hanafi Law of inheritance. They are - (I) Sharers (II) Residuaries and (III) Distant Kindred.
by divorcing his first wife or when she is dead. The bar or unlawful conjunction renders a marriage irregular, not void. Application: In the given case, the male cannot marry his wife’s sister, or after marrying her, he has to divorce his first wife to make the second marriage valid. Conclusion: This marriage is Irregular.
5. Shia woman marrying a non-Muslim male. A. A Shia woman marries a Christian male. Is the marriage valid? Will it make any difference if A is a Sunni woman? – (Aug- 2015 ) (Aug 2016). B. ‘A’ Shia woman marries a Christian. Decide the validity of marriage with reasons. (May 2017). Issue: Whether a Shia woman can marry a non-Muslim male? No Rule: In Muslim law, a Sunni male can marry a Shia woman and a Shia male can marry a Sunni woman. Under Shia Law, no Muslim, whether male or female can marry a non-Muslim in the Nikah form. Marriage of a Shia male with a non-Muslim female or a Shia female with a non- Muslim male in the Nikah form is totally void. However, Shia males can contract a Muta marriage with a kitabia (including a fire-worshipper), Muslims belonging to different sects may intermarry. Thus, the marriage of a Sunni male with a Shia female is valid. A Muslim woman cannot marry any man who is not a Muslim, whether he is Kitabi (i.e., a man believing in a revealed religion possessing a Divine Book) or not Kitabi. According to Mulla, a marriage between a Muslim woman and a non-Muslim male is void. Application: The marriage between a Shia/Sunni woman and a Christian male is void. A void marriage is one, which is unlawful in itself. The prohibition against void marriage is perpetual and absolute. A void marriage (Batil-Nikha) has no legal effect. It is a Nullity. The children born out of the marriage are treated as Illegitimate. They could not inherit the properties of the father. The marriage contract by the parties, suffering from absolute incapacity is called void marriage. Conclusion: 1. Whether a Shia woman can marry a Christian male? No 2. Whether the above marriage is valid? No, it is Void 3. What happens if A is a Sunni Woman marries a Christian? Void
6.'A' Muslim male, dies intestate leaving behind 2 sons and 2 daughters. Distribute his property as per Sunni Law of succession. (Oct 2017) Issue: Are they Muslims? Yes. Is the Sunni Law of inheritance applies? Yes. Rule:
1. In the given problem even though the daughter is a sharer because a son is there she will become a residuary
- The daughter cannot inherit as a sharer when there is a son.
- (Rule No. III) When there is a female residuary taking with the male, the male takes a double of a female’s share, e.g., a son and a daughter will take 2/3 and 1/ respectively. Application: In the given problem two sons and two daughters are there. Sons’ share is 2X2 = 4 Daughters’ share is 2X1 = 2 Conclusion: According to the above equation, the sharing ratio is as below; **Son I 2/ Son II 2/ Daughter I 1/ Daughter II 1/ Total 6/
- Triple Talaq. A. ‘A’ a Muslim pronounced Talaq for 3 times to one of his wives ‘B’. Explain the rights of ‘B’ under Muslim Law. (Aug 2018) (Aug 2013). B. A, a Muslim pronounced Triple Talaq to his wife at a time. Explain the rights of such a divorced wife. (Sep 2014). Issue: Rule:** Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic Jurists as an innovation within the fold of Shariat. It commands neither the sanction of the Holy Quran nor the approval of the Holy Prophet (PBUH). It was also not in practice during the lifetime of first Caliph Abu Bakar and also for more than two years during the second Caliph Umar’s time. Later on, Hazrat Umar permitted it on account of a certain peculiar situation. It was, however a mere administrative measure of Caliph Umar to meet an emergency situation and not to make it a law permanently. But unfortunately the Hanafi Jurists later on at the strength of this instant administrative order of second Caliph declared this form of divorce valid and also pave religious sanction to it.
