LLB 3rd Semester Examination, December 2016
(K-3001)
Section A
Note: Attempt all questions. Each question carries 4 marks
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
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.
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