• Muslim Law

  • The Muslim Law or Islam Law is a part of Family Law. It is a personal law and a branch of civil law that is applied by courts in regard to family matters when the parties are muslims.

    Principle Schools of Muslim Law

    • Sunni School
    • Shia School

    Principle Sources of Muslim Law

    • Quaran as the source of Muslim Law
    • Customs
    • Judicial Decisions
    • Legislation

    Gift (Hiba):

    • Definition of Hiba
    • Constitutional validity of Hiba
    • Declaration of Gift
    • Acceptance of Gift
    • Gift to a child in womb
    • Gift to a juristic person
    • Gift to a Minor or lunatic
    • Gift through a trust
    • Gift of insurance policy or life estate
    • Gift of dower
    • Gift of services
    • Doctrine of Musha
    • Conditional and Contingent Gifts
    • Revocation of gifts
    • Irrecoverable gifts

    Wills:

    • Definition of a Will
    • Essential conditions of a will
    • Joint legatee
    • Lapse of legacy
    • Subject-matter of will
    • Abatement of legacies
    • Conditional and Contingent Will
    • Revocation of wills
    • Death-bed gifts
    • Death-bed acknowledgement of gifts

    Waqfs:

    • Definition of Waqfs
    • Essentials of a valid Waqf
    • Waqf by non-muslim
    • Waqf of Musha
    • Difference between Waqfs and Trust
    • Doctrine of Cyprus
    • Modes of creation of Waqf
    • Muslim religious endowments
    • Public and private mosques
    • Idga
    • Imambara
    • Qbristan

    Inheritance:

    • Pre-Islamic Customs
    • Islamic Reforms
    • General principles of Islamic inheritance
    • Sharers
    • Doctrine of Increase
    • Doctrine of Return
    • Differences between Sunni and Shia law of inheritance.

    Parentage and Legitimacy:

    • Parentage
    • Maternity
    • Paternity
    • Legitimacy
    • Presumption of legitimacy under Islamic Law
    • Acknowledgement of paternity
    • Adoption according to Islamic Law
    • Differences between Adoption and Acknowledgement

    Guardianship:

    • Types of Guardians according to Islamic Law
    • Natural Guardian
    • Testamentary Guardian
    • Guardian appointed by Court
    • De-facto Guardian
    • Powers and functions of Guardians
    • Mother's rights of custody (Hizanat) of child
    • Father's rights of custody (Hizanat) of child
    • Custody of Illegitimate Child
    • Custody of Minor Wife
    • Guardianship for marriage
    • Guardianship of property

    Marriage:

    • Essentials of a Muslim marriage
    • Iddat
    • Kinds of marriage
    • Muta marriage
    • Restitution of conjugal rights

    Dower:

    • Concept of Dower
    • Proper Dower
    • Specified Dower
    • Prompt and deferred dower
    • Remission of dower
    • Rights of dower

    Dissolution of Marriage:

    • Talaq
    • Kinds of talaq
    • Ila
    • Zihar
    • Divorce by wife
    • Delegated talaq
    • Divorce by mutual concent

    Maintenance:

    • Maintenance of Wife
    • Maintenance of Divorced Wife
    • Maintenance of Widow
    • Maintenance of Children
    • Maintenance of Illegitimate Children
    • Maintenance of Parents
    • Maintenance of Relatives
    • Maintenance of Daughter-in-law

    "Hiba" ["Gift"] Under Muslim Laws:

    Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from the use in Mohammedan law.

    In the Mohammedan law a gift is a transfer of property or right by one person to another in accordance with the Mohammedan laws, which includes the following:-

    a) A “hiba”, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and

    b) An “ariat”, the grant of some limited interest in respect of the use or usufruct of some property or right.
    Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.

    The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions which are covered by the general term "gift". A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is called a contract) but the principle may be applicable even to gift.

    In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are:

    (a)   The absence of consideration;

    (b)   the donor;

    (c)    The donee;

    (d)   The subject-matter; 

    (e)   the transfer; and the acceptance.

    The concept of gift is diametrically opposed to any presence of consideration or compensation. In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be established by different circumstances such as donee taking a property or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given raises a presumption of acceptance.

    'Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind).

    Child Adoption Under Muslim Law

    Islam does not recognise adoption. It has nothing similar to that what is laid out in Hindu law. The only thing that Muslim law recognises is ‘Acknowledgment of Paternity’. It is the principle which establishes legitimacy of the child. Where a Muslim acknowledges a child to be his legitimate child, the paternity of that child is established upon him. It cannot be availed of to legitimise a child known to be illegitimate.

    However recently, the Supreme Court in a landmark judgment extended the right of adoption to Muslims also. In  the Case titled as Shabnam Hashmi v Union of India, (2014) 4 SCC 1, the Supreme Court declared that the right to adopt a child by a person as per the provisions of Juvenile Justice Act would prevail over all personal laws and religious codes in the country. The Three judge bench consisting of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh however maintained that personal laws would continue to govern any person who chooses to submit himself until such time that the vision of a uniform civil code is achieved.

    The petitioner, Ms. Shabnam Hashmi had moved this court back in 2005 after she was told that she had only guardianship rights over a young girl she had brought home from an adoption home. Being a Muslim, she was subject to the Muslim Shariat Law which did not recognise an adopted child to be on par with a biological child.

    In her plea, Ms. Hashmi wanted the right to adopt and the right to be adopted to be recognised as Fundamental Rights. The bench however rejected the plea by stating that the sphere of practices and beliefs in the country reflected a conflicting thought process amongst the people.

    The Hon’ble Court also stated that adoption was a matter of personal choice and there was no compulsion on any person to adopt or adopt child.

    The Juvenile Justice Act, 2002 defines adoption in Section 2(aa). It confers upon the adoptive parents and the child all rights, privileges and responsibilities that are attached to a normal parent child relationship.

    With this declaration, prospective parents, irrespective of their religious background would be free to access the provisions of the Juvenile Justice Act – a secular act, for adoption of children after following the procedure prescribed.

    Maintenance Under The Muslim Women (Protection of Rights on Divorce) Act, 1986

     Section-3, 4 & 5 of The Muslim Women (Protection of Rights on Divorce) Act, 1986, deal with the captioned subject as to how to secure maintenance for the Muslim wife & children through the Court of law. The gist of these provisions of law is as follows:   

     Mahr or other properties of Muslim woman to be given to her at the time of divorce:

    A divorced woman shall be entitled to-

    1. a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband ;
    2. where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children ;
    3. an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law ; and
    4. all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

    Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to the Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

    Where an application has been made by a divorced woman, the Magistrate may, if he is satisfied that –

    1. her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children ; or
    2. the amount equal to the sum of mahr or dower has not been paid or that the properties have not been delivered to her, make an order, within one month of the date of filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be for the payment of such mahr or dower or the delivery of such to the divorced woman :

    If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

    Order for payment of maintenance

    Where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such period as he may specify in his order.

    Where a divorced woman is unable to maintain herself and she has no relatives or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives, have not the means to pay the share of those relatives whose shares have been ordered by the Magistrate to be paid by such, other relatives , the Magistrate may, by order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954 or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as, determined by him, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.

    Option to be governed by the provisions of section 125 to 128 of Code of Criminal Procedure, 1973

    If on the date of the first hearing of the application, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

    Amount of maintenance

    The amount of the maintenance shall be purely the discretion of the Court. In determining the  amount of the maintenance the court shall have due regard to the following considerations, namely,

    1. the position and status of the parties;
    2. the reasonable wants of the claimant;
    3. if the claimant is living separately, whether the claimant is justified in doing so;
    4. the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;
    5. Any other relevant fact and circumstance.

    Muslim Personal Law (Shariat) Application Act, 1937: Constitutionality of S-2 Challenge before the Hon'ble Supreme Court Of India in batch Petitions. Issue, Whether Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 is unconstitutional, and violates fundamental rights guaranteed under Articles 14 (Equality), 15 (Non-discrimination), 21 (Life) and 25 (Religion) of the Constitution in so far as it seeks to recognise and validate talaq-e-bidat (triple talaq) as a valid form of divorce.". Particulars of some of the Petition is as follows: (i) Ishrat Jahan Versus Union Of India, WP-665 of 2016; (ii) In Re. Versus Muslim Women’s Quest for Equality, Suo Motu Writ Petition (Civil) No. 2 Of 2015. Partites to the Case: (i) The Ministries of Women and Child Development; (ii) Law and Justice, Minority Affairs; (iii) National Commission for Women; (iii) All India Muslim Personal Law Board; (iv) Jamiat Ulama-i-Hind- The other Cases where these issues figured for the consideration of the Hon'ble Supreme Court in past: (i) Ahmedabad Women Action Group v Union of India, (1997) 3 SCC 573.

    • Muslim Women (Protection of Rights on Divorce) Act, 1986.
    • Nikah: Nikah Halala.
    • Talaq: Under Muslim Law: Triple Talaq (Talaq-e-bidat)
    • Polygamy.

    Concerned Courts & Fora: Muslim Laws In India  

    • All India Muslim Personal Law Board (AIMPLB)

    Legislations Governing Muslim Laws In India

    Judgments Under Muslim Laws

    Citation Of Judgments On Gifts Under Muslim Law

    • Khursida Begum (D) By Lrs. & Ors. Versus Komammad Farooq (D) By Lrs. & Anr., Civil Appeal No.2845 Of 2006, Judgment Dated: 01.02.2016, Bench: Anil R. Dave & Adarsh Kumar Goel, JJ, Supreme Court Of India- Validity of a gift deed executed by a Muslim in favour of his son was the sole question for consideration.- The gift was by father to his minor son. Property was under tenancy. The gift is by a registered deed.- The courts below held the same to be a gift of undivided share of property which was capable of division and thus invalid under Muslim Law being hiba-bil-musha.- It has also been held that gift was of no effect as possession was not delivered to the donee.- The Supreme Court reversed the concurrent finding holding, inter alia,  “14.....The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. Right to collect rent stands transferred to donee.- The SC further held, “13. Requirement of possession is  met when right to collect rent has been assigned to the plaintiff under the gift deed.”.
    • V. Sreeramachandra Avadhani (D) BY L.Rs. Versus Shaik Abdul Rahim & Anr., Civil Appeal No.2364 OF 2005, Judgment Dated: 21.08.2014, Bench: Jagdish Singh Khehar & Rohinton Fali Nariman, JJ, Supreme Court Of India: In This Case, the Court dealt with Muslim Law and the concept of Gift Deed.

    Citation Of Judgments On Talaq Under Muslim Law

    • Danial Latifi & Anr. Vs. Union Of India, Writ Petition (Civil) 868 Of 1986, Judgment Dated: 28.09.2001, Bench: G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, Doraiswamy Raju & Shivaraj V. Patil, JJ, Supreme Court Of India, 2001 (8) SC 218 [5 Judge bench]: In This Case the Court held the constitutional validity of Muslim Women (Protection of Rights on Divorce) Act, 1986.
    • Shakil Ahmad Jalaluddin Shaikh Versus Vahida Shakil Shaikh & Anr., Criminal Writ Petition No. 2201 OF 2007, Judgment Dated: 20.01.2016, Bench: M. S. SONAK, J., Bombay High Court- S-125 Cr.P.C- Legality & Validity of Talaqnama- Talaqnama alone not sufficient to prove Muslim Talaq.
    • Shamim Ara  Versus State of U.P. & Anr., Appeal (Crl.) 465 of 1996, Judgment Dated: 10.10.2002, Bench: R.C. Lahoti & P.Venkatarama Reddi, JJ, Supreme Court Of India, AIR 2002 SC 3551: In This Case the Court held that for an effective and valid talaq, it must be actually pronounced and declared by the husband.   

    Citation Of Judgments On Maintenance Of Wife & Children 

    • Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos.564-565 OF 2015, Judgment Dated: 06.04.2015, Bench: Dipak Mishra & Prafulla C Pant, JJ, Supreme Court Of India: Wife’s right to receive maintenance under section-125 Code of Criminal Procedure, 1973, is an absolute right, irrespective of religion: Muslim women are equally entitled for maintenance under Section-125 Cr.P.C.- Upholding a wife’s right to receive maintenance, the division bench of Dipak Misra and P.C. Pant, JJ., held that a wife’s right to receive maintenance under Section 125 of the Code of criminal Procedure, 1973, is an absolute right, unless disqualified. The Court reiterated that grant of maintenance to a wife is a measure of social justice and a husband is under obligation to maintain his wife. He cannot be permitted to plead his inability to do the same due to financial constraint, as long as he is able- bodied and capable of earning.

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