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KLE LAW ACADEMY BELAGAVI
(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)
STUDY MATERIAL
for
FAMILY LAW II
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Compiled by
Dr. Jyoti G. Hiremath, Asst.Prof.
Reviewed by
Dr. B Jayasimha, Principal
B.V. Bellad Law College, Belagavi
This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided.
II SEMESTER LL.B. AND VI SEMESTER B.A.LL.B. COURSE - V : FAMILY LAW - II : MOHAMMEDAN LAW AND INDIAN SUCCESSION ACT
CLASS NOTES
Contents
Part I - : Mohammedan Law : (127 pages)
- Application of Muslim Law
- History, Concept and Schools of Muslim Law
- Sources of Muslim Law
- Marriage
- Mahr / Dower
- Dissolution of marriage and Matrimonial Reliefs
- Parentage
- Guardianship and Hizanat
- Maintenance
- The Muslim Women(Protection of Rights on Divorce)Act,
- Hiba / Gifts
- Administration of Estate
- Succession
- Wassiyat / Wills
- Shuffa / Pre-emption
- Wakfs, Mutawalli, and Wakf Boards Part II- : Indian Succession Act, 1925, the Family Courts Act, 1984 and the Indian Divorce (Amendment) Act,2001 (105 pages)
- Domicile
- Christian Succession
- Parsis Succession
- Wills and Codicils
- Succession Certificate
- Family Courts Act, 1984
- Indian Divorce (Amendment) Act,
- Need for Uniform Civil Code References
- Mulla, "Principles of Mohomedan Law", 22 nd^ Edn, Lexiz Nexis
- Diwan Paras, "Muslim Law in Modern India", 14th^ Edn., Allahabad Law Agency
- Online Articles
-- Even one of the parents is muslim, their child is muslim but general law in India is that a child carries religion of father. Muslim law can’t be modified by customs.
ii. Muslims by conversion —
a. Muslim who profess Islam - A non-muslim may become a muslim by professing Islam i.e. acknowledging that there is only one God and Mohmmad is his prophet or by undergoing the ceremonies of conversion to Islam. Such Muslim is governed by the Shariat Act.
-Profession with or without conversion is necessary and sufficient to remove the disability/ having another religion—observed by Lord Macnaughten.
- Abdul Razak v. Aga Mohammad (1893)21 I A at p. 64 -- A wealthy muslim died without heir. One AbdulRazak made claim to his estate on the plea that he was the son of the pre- deceased brother of Abdul - that brother married a burmese woman Mah Thai, buddhist by religion but it was not established that she had been converted to Islam before and after marriage- but she use to recite muslim prayers—held—marriage of Abdul’s brother with Buddhist woman was void under Muslim Law and Abdul Razak become illegitimate child, hence can't inherit property of the deceased.
- Resham bibi V Khuda Baksha 1938 Lah 277- A Muslim wife to end her unhappy married life renounced Islam and prayed that muslim law of apostasy shall be applied to her & to dissolve marriage. The Judge ordered to eat her pork which she denied – showed that her apostasy was insincere –person’s religious belief is not a tangible thing-but is mental statues--- still court accepted her say of not having faith in allah etc. and granted her prayer.
b. Conversation to Islam
By ceremonies of conversion like - Going to mosque Affirmation to Imam’s questions like 'Are u voluntarily accept Islam ?' Recitals of kalma- Imam gives muslim name to convert Registration in a register kept in the mosques. Conversation of a muslim from one sect to another doesn’t amount to apostasy- when a convert doesn’t practice the new faith, he will continue to be muslim Conversation should be bonafide - Skinner v. order (1871) 14MIA309 – a Christian women related to married Christian man – to legalize both converted to Islam by
ceremony of conversation - issue of validity of marriage arose wherein the Court held it as null and vide as is done to deceive only. Many cases of fraudulent & dishonest conversation came up before courts. Ram kumari Case, 1891 wherein a Hindu woman adopted Islam for automatic dissolution of marriage and married another. Rakeyabibi v Anil Kumar (1948)22 Cal 119- a wife to get rid of impotent husband converted to Islam. In both the cases conversion was held as not a bonafide conversion. Effects of conversion : can be discussed based on following questions- How far conversation can change the existing rights & status of the convert? How far muslim law applies to the convert & his descendants?
Rights & status of the convert –
- On marriage he can enjoy polygamy - -- Sarla Mudgal v UOI AIR 1995 SC1531- if monogamously married husband converts to Islam & takes another wife, taking advantages of polygamy, he will be guilty of bigamy u/s 494 of IPC & second marriage will be void.
- Conversion & dissolution of marriage – when one party accept Islam – if other spouse accepts within 3 months, marriage unaffected but in India marriage can’t be dissolved on the ground that other spouse demise for conversion.
- Application of Muslim law to convert. On conversion, usually muslim law of succession applies. During British period several laws were passed stating a person may continue to be governed by custom after his conversion. But lastly the Shariat Act 1937 passed which prohibited application of customary laws in place of Muslim Personal Law. The Shariat Act, 1937 under Sec.2 enumerates 10 matters in which every muslim will governed by Muslim law (Marriage, dissolution of marriage maintenance, dower guardianship, gifts, trust and trust properties and wakf) Agricultural lands, charities other than Wakf, Charitable and Religious endowments are excluded. In certain matters, a convert may still be governed by customs – i) A convert may governed by custom in respect of adoptions, wills &
they governed under Mapilla Marumakkattayam Act, 1939, but once a tarwad is partitioned, partitioned shares are governed by muslim law of succession.
v) Kashmiri muslims—Shariat not apply to them but customary muslim law observed which include- right of widow of kashmirs muslim to inherit estate of husband during her life time to the exclusion of all other his share of Khana muslim daughter in the property of father excluding other daughters, right of adoptive son in adoptive fathers property. Shri. Pratap J&K Law (Consolidation)Act,1977 now codified these customs.
vi) Muslim tribes of Panjub & Haryana- Customary succession laws applied to marriage, minority, divorce, adoption, guardianship, special property of female, will , gift partition etc. but now Shariat law applies.
3.A convert may still be governed by customary laws in matters which are not covered by Sec. 2 & 3 of Shariat Act for ex. Ancestral prop concept is with muslims of Punjab & Haryana.
Sec. 2 of Shariat Act exclude agriculture land but in A.P., Kerala & Madras Shariat applicable to Agricultural lands also, similarly to religious institutions.
Several British statutes now stand repealed by Shariat Act.
When a person ceases to be a muslim—if muslim convert to another religion/ he may renounce Islam, he is not a muslim.
Historical antecedents, Concept and Schools of Muslim Law Part I. Historical Antecedents:
- The First Period: Prophet Mohmmad born in 570 AD and in his adulthood often used to meditate. At the age of his 40 years got his first revelations (termed as AH 1). Initially only his wife and few others use to believe on his preaching. Abu Bakr, who after the death of Mohmmad became the First Caliph. These were followed by Ali, who, later became the fourth Caliph; Omar, who later became the Second Caliph and Osman, who later became the third Caliph. With his band of followers were persecuted, and they fled to Madina in 622 AD, the date from which begins the Hegira era.
At Madina, Mohammad was well received. Ultimately, he succeeded in not only having a large following, but also in establishing a political organisation called the Umma. By 632 AD, the Prophet ruled not only at Mecca and Madina but also over the entire region. Prophet breathed his last in 633 AD i.e. AH11.
The period between AH1 to AH11 - the last 10 years of the Prophet's life is the most glorious and fruitful in the history of the development of Muslim Law. During this period, all the verses of the Koran were composed and most of the Ahadis came into existence. Koran contains direct words of God, whrere as Ahadis contains sayings and deeds of the Prophet i.e. indirect revelations.
- The Second Period : Since the Prophet had not appointed a Successor, by way of election his followers elected the first Caliph - Abu Bakr and the institution of Caliphate initiated resulting into the second period of development of Muslim law.
The election of Abu Bakr to the Caliphate led to turmoil and dissensions in the Muslim world, giving birth to two main factions of Muslims, the Sunnis and Shias. Abu Bakr died in 634 AD, two years after election. Then Omar was elected as the Second Caliph, but on his assassination in 644 AD, Osman became the Third Caliph. On Osman's assassination in 656 AD, Ali became the Fourth Caliph but he too assassinated in 661AD.
It was during this period that the collection and edition of texts of the Koran was undertaken and completed. The final reception of the Koran took place in the reign of Osman and his edition of Koran is considered to contain most authentic text of the Koran, being free from interpolations.
- The Third Period : With the death of Ali, the Fourth Caliph, begins the third period in the development of Muslim law upto 300AH. On Ali's death, his first son Hasan, resigned in favour of
Part II : Concept of Muslim Law :
A. Fundamental tenets of Muslim Law-
i. Belief in the existence of God ii. Principle of tawhid / belief in the unity of God iii. Acceptance of Prophet Mohammad as a Rasul / Messenger of God
Based on these principles only concept of Muslim law flows. Muslim holds that the law is of divine origin. It is a revealed law(Given by God). Law must be for human beings hence developed doctrine of Ilmul - yakin (certitude) i.e. the ability to distinguish between good and evil and the same was done by the Prophet.
Muslim law further believes that the revealiations of God to Prophet are in the form og the Koran, Ahadis are supplementary to the Koran. the Ijam (consensus of the learned) supplements the Koran as well as Ahadis. Kiyas (analogy) are there to support if any matter are not covered in Koran or Ijmas or Ahadis.
On all the above principles, the Shariat is based which literally means "a road to the watering place or path to be followed". The Shariat is based on the principle that "all actions are tobe judged according to ethical principles and emphasis on duties of a man in all walks of life".
B. Religious Commandments : The Shariat lays down that the religious commandments are of five types :
i. Fard - which one must do, such as five daily prayers ii. Haram - which one must not do, such as drinking of wine iii. Mandub - which one may do, such as additional prayers on Id iv. Markrum - which one may not do, such as certain types of fishes may not be eaten and v. Faiz - acts towards which the Shariat is indifferent, such as travel by air.
Thus a distinction is made between mandatory rules and recommendary rules, between what is legally enforceable and what is morally enjoined.
C. Concept of Fiqh or Law :
Fiqh literally means 'intelligence' and under Muslim law it means 'Science of jurisprudence'. The term 'Usulul Fiqh' is the 'knowledge of those rules which directly or proximately lead to the science of Fiqh. It discusses the nature of the sources or authorities, law giver, the law, the objective of law i.e. acts, rights, obligations and tthe subjects of law i.e. those to whom law applies 'persons'. A jurist is called as 'Faquid'. According to Fyzee, 'Fiqh or the science of Islamic Law is the knowledge of one's rights and obligations derived from the Koranor the Sunna of the Prophet, or the consensus of opinion among the learned (the ijma) or analogical deductions (the Kiyas).
Muslim Law givers divide Fiqh into --
i. Usul - deals with Muslim jurisprudence ii. Furu - deals with substantive law i.e. law applicable in daily life. Part III. Schools of Muslim Law The Muslim Law is based on the teachings of the Quran and Prophet Mohammad. In all the circumstances where the explicit command is provided, it is faithfully provided but there have been many areas which are not covered by these sources and as a result, the great scholars had themselves devised their interpretation of what should be done in such a situation. As these scholars provided their interpretations (Qiyas) regarding the Muslim Law, it led to various opinions among many of them and out such difference, different schools of Muslim Law originated. Each school has its own explanation and reasons for their interpretation and it often leads to conflict in judgments. In the absence of express rules, it cannot be said that one school is better or higher positioned than other school and thus all the schools have been accepted as valid and if a person follows any of these schools, he is considered to be on the right path.
Following are the two types of Schools --
a. Ancient Schools
b. Modern Schools
a. Ancient Schools : During the period of Umadayyas, the important step of appointing Kadis was taken. The pre-Islamic institution of arbitrators no longer remained adequate to needs of new arab society and therefore it became imperative to supplant Arab Hakim by Kadis i.e. judges, who tendering decisions in cases, coming before them exercised a very wide discretion. Thus Kadis
appointed many Muslim Scholars to translate the book. But the Sirajiyya is considered as the authoritative book of the Hanafi Law of Inheritance. The book is written by the Sheikh Sirajddin, and the first English translation is written by Sir William Jones.
B. Maliki School - This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his disciples flourished with Hanafi Schools. He discovered about 8000 traditions of Prophet but complied only about 2000 of them. When the disciples of Imam Abu Haneefa codified their law based on Ijma’a and Isthihsan. The maliki school gives the importance to the Sunna and Hadis whereas the Hanafi school gives the importance to the people and Isthihsan. As per Maliki School and Law, they rarely accept the Ijma’a. As per the Law, the person gave Fatwa challenging the sovereign authority of Khaleefa, he faced enmity and of lack of support from Muslim governments. Thus, this Maliki school did not get much popularity.
In India, there are no followers of this school but when the Dissolution of Muslim marriage act 1939 came in the picture, some of the laws and provision of this school was taken in account as they are giving more rights to the women than any other school. In Hanafi School, if the women not get any news of her husband, she has to wait till 7 years for Dissolution of the marriage, whereas in Maliki School the women have to wait 2 years for Dissolution of the Marriage. Mu- atha of Imam Malik is considered as the most authoritative book of the Maliki School. This book is also the first book written on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.
C. Shafi School - The Shafi School gets its name on the name of Muhammad bin Idris Shaffie, his period was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena. Then he started working with the disciples of Imam Abu Haneefa and went to Khoofa. He conclude the idea’s and the theories of Hanafi School and Maliki School in a friendly manner. The Imam Shaffie was considered as one of the greatest jurist of Islam. He created the classical theory of the Shaffie Islamic Jurisprudence. According to this school, they considered Ijma’a as the important source of the Muslim law and provide validity to the customs of the Islamic people and follows more methods of Hanafi School. the main contribution of Shaffie School is the Quiyas or Analogy. The Al-Risala of Imam Shaffie was considered as the only authoritative book of Islamic Jurisprudence. In that book they discuss and interpret the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal reasoning) Isthihsan (Juristic preference) and Ikhthilaf (Disagreement) in separate chapter in his book Risala. His other book Al-Umm is the authority on Fiqh (science of
way of life). The followers of Shafi School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.
D. Hanbal School - The Ahmad bin Hanbal is the founder of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the disciple of Imam Shaffie and supports Hadis. He strongly opposed the Ijthihad methods. He introduced the theory of tracing the root of Sunna and Hadis and try to get the answer all his question. His theory was to return to the Sunna of the Prophet. When the Imam Shafie left for Baghdad, he declared that the Ahmad bin Hanbal was the only one after him who is the better jurist after him. The followers of Hanbali school found in Syria, Phalastine and Saudi Arabia.
- Shia Schools :
As per Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They enjoy the political power only in Iran though they don’t have the majority in that state also. Following are the Schools under Shia sect-
A. Ithna-Asharis - These schools are based on the following of Ithna-Ashari laws. The followers of these schools are mostly found in Iraq and Iran. In India also there is the majority of the Shia muslim who follows the principles of the Ithna-Asharis School. They are considered political quietists. This school is considered as the most dominant school of the Shia muslims. the ja’fari fiqh of the Shias in most cases indistinguishable from one or more of the four Sunni madhahib, except mutah is considered as the lawful marriage. The people who follow the Ithna Asharis school believe that the last of the Imams disappeared and to be returning as Mehdi(Messiah).
B. The Ismailis - According to Ismailis school, in India there are two groups, the Khojas or Western Ismailis represents the followers of the present Aga Khan, who they considered as the 49th Imam in this line of Prophet, and the Bohoras i.e. the Western Ismailis are divided into Daudis and Sulaymanis. The Bohoras and Khojas of Mumbai are considered as the followers of this school. It is considered that the follower of these schools has special knowledge of religious doctrine.
C. Zaidys - The followers of this school are not found in India but are maximum in number in South Arabia. This sect. of the Shia school is the most dominant among all in Yemen. The followers of these schools are considered as political activism. They often reject the twelver Shia school philosophies.
- While Muslims believe that Mahdi will have a holy war or Jihad and Islam will be spread by the sword, the Ahmadiyas believe that it will be spread by arguments and heavenly signs and not through violence.
The Muslim law is governed by the teachings of the Quran and the Prophet Mohammad. There have been many different schools which follow their own interpretations of these teachings on points on which the Quran is silent. While the major schools of Muslims can be divided under the two sects of Shia schools and Sunni schools, even the schools under these sects have been further divided into various schools. Each school has its own beliefs and practices and because is no set rule regarding the matters on which the Quran is silent, one school cannot be said to be better positioned than the other schools and thus even though there are many schools in Muslim law, they all lead to one path. Thus, the teachings of these schools can be compared to different paths which all lead to the same destination.
SOURCES of MUSLIM LAW Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic law. The primary sources, accepted universally by all Muslims, are the Koran and Sunnah. The Koran is the holy scripture of Islam, believed by Muslims to be the direct and unaltered word of Allah. The Sunnah consists of the religious actions and quotations of the Islamic Prophet Muhammad and narrated through his Companions and Shia Imams. However, some schools of jurisprudence use different methods to judge the source's level of authenticity.
As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable eventuality, jurisprudence must refer to resources and authentic documents to find the correct course of action. According to Sunni schools of law, secondary sources of Islamic law are consensus among Muslims jurists, analogical deduction, independent reasoning, benefit for the Community and Custom. Hanafi school frequently relies on analogical deduction and independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are Koran, Sunnah, consensus and aql. They use ijma under special conditions and rely on aql (intellect) to find general principles based on the Koran and Sunnah, and use usul al-fiqh as methodology to interpret the Koran and Sunnah in different circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad. According to Momen, despite considerable differences in the principles of jurisprudence between Shia and the four Sunni schools of law, there are fewer differences in the practical application of jurisprudence to ritual observances and social transactions.
I. Ancient sources : A. Preliminary Sources
The Koran
The Koran is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Koran was written and preserved during the life of Muhammad, and compiled soon after his death.
textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report's transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith classifications developed.
B. Secondary sources
All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines to follow in case the primary sources (i.e. the Koran and Sunnah) are silent on the issue. Ijma Ijma can be interpreted as Judge made law or their interpretations based on the wisdom. Koran and Sunna look into past, but Ijma and Kiyas looked into future. The orthodox muslim held that human beings have to exercise their intallect to understand them, but in that process that can't be modified and hence developed Ijma. Ijma is also termed as "Foundation of foundations". Validity of Ijma is based on a Sunna of Prophet which declares "God will not allow his people to agree on an error". Sunni jurisprudence is based on Ijmas. Hanafi's believe that the law must change with the changing time that is what reflected in Ijma. According to a Sunni doctrine, the Muslim Mujtahids(jurists) alone can have a say in the formation of the Ijma, who must be deeply learned in law and able to render correct judgement. All the schools of Sunnis accept Ijma as a source of law except Hanbals who formed usul from Sunna and gave liberal interpretation to the traditions of the Prophet. During the expansion of Islam in various parts of world Koran and Sunnas felt insufficient and their developed Ijmas. Qiyas / Kiyas Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason. Qiyas is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Koran and Sunnah. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.
Supporters of qiyas will often point to passages in the Koran that describe an application of a similar process by past Islamic communities. According to Hadith, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason." Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus, amongst Muhammad's companions.
The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently. The general principle behind the process of Kiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden. Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas). Istihsan is defined as:
- Means to seek ease and convenience,
- To adopt tolerance and moderation,
- To over-rule analogical deduction, if necessary. The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people. This doctrine was justified directly by the Koran: "Allah desires you ease and good, not hardship". Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation, and its opponents claimed that it often departs from the primary
