Family Law II (Muslim Law) K-3001 - December 2016

LLB 3rd Semester Examination, December 2016

Family Law (Muslim Law)
(K-3001)

Section A 
Note: Attempt all questions. Each question carries 4 marks

1. What is the extent of applicability of Muslim Law?

Answer: Section 2 of Muslim Personal Law (Shariat) Act 1937 sets the extent of applicability of Muslim Law in India. As per section 2 of the Act, Application of Personal Law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Section 2 of the Shariat Act provides that in a case where both the parties are Muslims the rule for decision shall be Muslim Law, if the case involves any of the following matters:

(1) Intestate succession (i.e. inheritance),

(2) Special property of the females,

(3) Marriage (including all incidents of marriage),

(4) Dissolution of marriage (including all kinds of divorce),

(5) Maintenance,

(6) Dower,

(7) Guardianship,

(8) Gift,

(9) Trust and trust properties, and

(10) Wakf.

2. Write a note on Fiqh.

Answer: Fiqh is an Arabic word which means deep understanding. The word faqiih means a person having knowledge and understanding. In the Qur’an, the term is used to signify deep understanding of matters especially those related to religion.

The scholars who came later confined the usage of the word fiqh to the knowledge and understanding of the guidance, the rulings and the way of life regarding the actions only, excluding the areas of belief and moral character. This terminology is represented by the famous definition that fiqh is “the knowledge of the Shari`ah rulings which are related to actions from its detailed sources.” (Mohamed Abu Zahrah, Usul Al-Fiqh). To explain those definitions further, the Shari`ah is Allah’s guidance in His Book (the Qur’an) and the tradition of His Messenger (the Sunnah), wahile fiqh is our knowledge of these rulings after exerting all effort to extract them.

3. What is the meaning of Apostacy?

Answer: Apostasy in Islam is commonly defined as the conscious abandonment of Islam by a Muslim in word or through deed. It includes the act of converting to another religion or non-acceptance of faith to be irreligious, by a person who was born in a Muslim family or who had previously accepted Islam. The definition of apostasy from Islam, and whether and how it should be punished, are matters of controversy and Islamic scholars differ in their opinions on these questions.

According to the classical legal doctrine, apostasy in Islam includes not only an explicit renunciation of the Islamic faith (whether for another religion or irreligiosity), but also any deed or utterance implying unbelief, such as one denying a "fundamental tenet or creed" of Islam. Islamic jurists did not formulate general rules for establishing unbelief, instead compiling sometimes lengthy lists of statements and actions which in their view implied apostasy. Apostasy does not include individuals who were forced to embrace Islam under conditions of duress, or acts against Islam or conversion to another religion that is involuntary, forced or done as concealment out of fear of persecution or during war. 

4. Point out the difference between Shia and Sunni law relating to guardianship.

Answer: As regards guardianship in marriage, Shia law recognises only the father and the paternal grand-father, how highsoever. Under the Sunni law, the list of guardians also includes the brother, mother etc.

5. What are the modes of revocation of wills according to Muslim Law?

Answer: Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may revoke, during his life-time, any Will made by him expressly or impliedly. Thus, if he sells, makes gift of the subject of bequest or deals with the same in any other manner like constructing a house on the piece of land bequeathed earlier, would implied revocation.

For example, where the testator gives land to his friend under a Will but a year later gifts the same to his daughter, the bequest in favour of the friend is automatically revoked. It is not necessary that for revoking an earlier will, another will must be made. A Will can be revoked by a simple and clear declaration to that effect or by a formal deed of cancellation or revocation of Will.

Section B

Note: Attempt any two questions. Each question carries 10 marks

6. What properties can be gifted according to Muslim Law?

Answer: In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property Act, 1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The English term, ‘gift’ is of a wider connotation and applies to all transactions where one transfer’s one’s property to another without any consideration. The term hiba has a narrow meaning.

According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the substance of thing by one person to another so as to constitute the done the proprietor of the subject-matter of the gift.” Muslim law allows a Muslim to give away his entire property by a gift inter-vivos, even with the specific object of disinheriting his heirs. [Abdul vs. Ahmed, (1881) 8 IA 25]

Essentials of a Hiba

According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-

1.      The manifestation of the wish to give on the part of the donor,

2.      Acceptance of the gift, express or implied, by the done, and

3.      Taking of possession of the subject-matter of the gift by the donee, either actually or constructively. [Jamela vs. Abdul Rahman, 2001 Guj. 175]

Properties which can be gifted

All forms of property over which dominion could be exercised, or anything which could be taken into possession, or which could exist as a specific entity, or as an enforceable right, maybe the subject-matter of a valid gift. Muslim law, in this context, makes no distinction between ancestral or self-acquired or between movable and immovable property.

7. On which grounds the right of pre-emption can be made?

Answer: The word pre-emption is a right of substitution conferred on someone either by statute, custom or contract. The right is to step into the shoes of the vendee preferentially, on the terms of sale already settled between the vendor and vendee. [Vijayalakshmi vs. B. Himantharaja Chetty, (1996) 9 SCC 376]

Under Muslim law, the death of a person results in the division of his property into fractions. If an heir is allowed to dispose of his share without offering it to the co-heirs, then it is likely to lead to the introduction of strangers into a part of the estate with resultant difficulties and inconveniences. In view of this, the law of pre-emption imposes a limitation or disability upon the ownership of the property to the extent that it restricts the owner’s unfettered right to transfer of property and compels him to sell it to his co-heir or neighbor, as the case may be.

The right of pre-emption arises only in two types of transfer of property – sale, and exchange. When it arises in respect of a sale, then the sale must be complete, bonafide and valid. [Najam-un-nissa vs. Ajaib Ali, (1900) 22 All 342] Similarly, the right of pre-emption arises in respect of exchange when it is complete, bonafide and valid.

The right of pre-emption does not exist in respect of a gift, sadaqah, wakf, inheritance or lease. It does not apply to a mortgage also, but if a mortgage is foreclosed, then the right of pre-emption arises.

It has been held in various cases that the court should look into the real nature of the transaction. A deed which is called a gift, if it is, in fact, a sale, then the right of pre-emption will arise. [Bhagwan Dutt vs. Brij, 1938 Oudh 27]

The right of Pre-emption when parties belong to different sects or schools and when some of the parties are non-Muslims

Pre-emption involves three parties: the pre-emptor, the vendor, and the vendee. When all of the parties belong to same sect or school no difficulty arises. But difficulties crop up when parties belong to different schools or to different religions. It appears to be established that the right of pre-emption can be claimed only if the law applicable to the vendor recognizes pre-emption. [Pir Khan vs. Fyizaz Hussain, (1914) 36 All 488]

Under Shia law, the right of pre-emption cannot be claimed by a non-Muslim pre-emptor where the vendor and vendee are Muslims. Also, where the law of pre-emption is lex loci, or arises by custom, or is created by contract, then it is immaterial that some of the parties are non-Muslims.  

Formalities Necessary for the Exercise of the Right of Pre-emption

The Muhammedan law of pre-emption is a law of technicality, and the existence of the right depends upon the full and complete observance of formalities. Non-observance of any of the formalities will be fatal to the suit of pre-emption. The two essential formalities are called “two demands”. Fyzee says that there are three demands, though admits that the “third demand” is not really a demand.  

8. Clarify the difference between Sunni and Shia laws regarding law of Muslim inheritance.

Section C

Note: Attempt any three questions. Each question carries 20 marks

1. “The nearer in degree excludes the more remote.” Explain the statement.

2. Describe the legal effects of divorce.

3. Describe the law relating to conversion to Islam.

4. Explain the schools of Mohammadan Shia sect.

5. Explain the essential requirements of marriage.