Class Notes on Family Law II – Unit V (2nd Sem / 3 year LL.B)

Wills

Privileged Wills and Unprivileged Wills – Indian Succession Act

Privileged Will

A privileged will be a will written by a testator when he is:

  1. A soldier employed in an expedition or engaged in actual warfare
  2. An airman employed or engaged on expedition or warfare; and
  3. A mariner at Sea

Requisites

  1. May be made orally before two witnesses
  2. If the testator is alive for one month after such oral declaration, then the privileged Will becomes invalid
  3. The content of the Will can be written by another person but it must be signed by the testator
  4. Attestation not necessary
  5. It can also be written by another person under the direction of the testator
  6. If he has given only instruction then such instructions can be considered as Will after his death

Unprivileged Will

Unprivileged will is a will written by any person other than the person included under the privileged will.

  1. The testator must sign or affix his mark to the Will
  2. If it is written under his direction, then it must be signed by other persons in his presence and by his directions
  3. The signature or mark must be placed in the right place for giving effect to the Will
  4. The Will must be signed by two or more attesting witnesses. Such witnesses must sign in the presence of the testator but at different times.

Revocation of Wills – Sec. 70 of the Indian Succession Act

  • Subsequent will or Codicil
  • Instrument of Revocation
  • Destruction of a Will
  • Subsequent marriage of the testator

Revival of a Revoked Will

  • Express Revival: It is effected by re-execution. An unprivileged will by codicil, which has been revoked in any manner, shall be revived by re-execution showing intention to revive the same.
  • Constructive Revival: Duly executed codicil showing an intention to revival.

Cheese Vs. Love Joy

Govinda Ramanuja Vs. Ram Charan Das

Interpretation or Construction of Wills

  1. Technical words unnecessary
  2. Admission of circumstantial evidence – Patent ambiguity and Latent ambiguity
  3. Bequest to persons of incorrect description (Bireshwar Vs. Ardhachandar)
  4. Doctrine of Benevolent construction (To give validity)
  5. Consideration of the whole Will
  6. Inconsistent bequests

Void Wills or Void bequests

Death of Legatee at the time or prior to the testator’s death

Will to unborn persons – Sec. 112

112. Bequest to person by particular description, who is not in existence at testator’s death.-Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.

Exception.–If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.

Illustrations

(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is void.

(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B’s death the legacy goes to C’s son.

(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies. The legacy goes to the representative of D.

(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest son is void.

(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B’s death. C’s son is entitled to the 1,000 rupees.

Bequest to person not in existence at testator’s death subject to prior bequest – Sec. 113

113. Bequest to person not in existence at testator’s death subject to prior bequest.- Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Illustrations

(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void.

Will or bequest violating the rule against perpetuity – Sec. 114

114. Rule against perpetuity.- No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

Illustrations

(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void.

Bequest to take effect on failure of prior Interest – Sec. 116

116. Bequest to take effect on failure of prior bequest.- Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.

Illustrations

(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.

Direction for accumulation – Sec. 117

117. Effect of direction for accumulation.- (1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of–

(i) the payment of the debts of the testator or any other person taking any interest under the will, or

(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or

(iii) the preservation or maintenance of any property bequeathed; and such direction may be made accordingly.

Bequest for religious and charitable purposes – Sec 118

118. Bequest to religious or charitable uses.- No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons:

“Provided that nothing in this section shall apply to a Parsi.”

Illustrations

A having a nephew makes a bequest by a will not executed and deposited as required—

  • for the relief of poor people;
  • for the maintenance of sick soldiers;
  • for the erection or support of a hospital;
  • for the education and preferment of orphans;
  • for the support of scholars;
  • for the erection or support of a school;
  • for the building and repairs of a bridge;
  • for the making of roads;
  • for the erection or support of a church;
  • for the repairs of a church;
  • for the benefit of ministers of religion;
  • for the formation or support of a public garden;

All these bequests are void.

Kinds of legacies

Protection of property of the deceased

Family Courts Act, 1984: Constitution, powers, and its functions

Need for Uniform Civil Code

Article 44 of Indian Constitution

Meanings

  1. Codicil: A codicil is a document that amends, rather than replaces, a previously executed will.
  2. Bequest: The act of giving or leaving personal property by a will.
  3. Perpetuity: Time without end; eternity.

 

Class Notes on Family Law II – Unit IV (2nd Sem / 3 year LL.B)

Will and Inheritance: Will – Meaning, Difference between Will and Gift

Wills in Mohammedan Law

A will is the declaration by the owner as to how his property is to be distributed after his death.

A will takes effect on the testator’s death and may be revoked at any time before his death.

Revocation need not be express.

A subsequent will shall impliedly revoke the previous will.

Any Mohammedan, male or female completed 18 years and of sound mind can execute a will.

Under the Shia Law, a person has taken poison to commit suicide cannot make a will.

Essentials of a valid Will

  1. It should be lawfully made and should exist at the time time of the legator’s death.
  2. According to Muslim law, Will can be made orally or by clear gestures and they are valid.
  3. The legator’s intention to make the will
  4. Terms and conditions of the Will
  5. Precision of the Will
  6. A written will need not be formal but fulfill the following conditions:
    1. The legator’s clear intention should be proved
    2. His signature is not essential
    3. If the Will is signed, it need not be attested

The Wills in Muslim Law resemble similar to the ‘Privileged Will’ of the Indian Succession Act.

The will is revocable by the testator and so, the Will which is not revoked after being made, is enforceable. Revocation can be done only by the legator during his lifetime and not by his heirs or after his death.

Revocation of a Will by the legator may be express or implied by the legator’s conduct.

A subsequent sale or gift of the property bequeathed Will amount to revocation of the Will.

If a legator bequeaths a certain property to a particular person and later bequeaths it to another person, then the latter amounts to revocation of the former Will.

Under the Hanafi law, if the legatee dies before the legator, then the Will lapses. In Hanafi Law, in such a case, the following rules shall apply:

  • After the legatee’s death, the legator can revoke the Will
  • If the legator does not revoke th Will, it will pass on to legatee’s heirs.
  • If the legatee has no heir, the Will shall lapse

General Rules of Mohammedan Law of Inheritance

The Mohammedan Law of Inheritance is a system of inheritance. It imposes a restriction upon the testator to bequeath only 1/3rd by Will. The rest 2/3rd of the property is available to the heirs. The testator cannot bequeath 1/3rd of his property to any heir, and such a bequeath is void if other heirs do not consent to it after the testator’s death.

The only criticisms of the Law of Inheritance in Mohammedan Law is that it creates fragmentation of the estate and it becomes uneconomical to divide agricultural lands.

  1. Applicability
  2. Heritable property
  3. No joint family
  4. No rule of primogeniture
  5. Transfer of ‘spes successionis’
  6. Estoppel
  7. No disability for female heirs
  8. Life estate and vested remainder
  9. Vested inheritance
  10. Principle of representation
  11. Exclusion from inheritance

Contingent and Conditional Bequests

Will made in death bed or during illness

When a person creates/makes a gift out of an apprehension of imminent death and dies later, it is called “Death-Bed Gift”. In other words, if a person makes a gift during illness and dies later, it is called Death-Bed Gift or Marz-Ul-Maut.

It is subject to two restrictions:

(i) disqualification of heir; and

(ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may be relaxed with the consent of the heirs.

The Death-Bed-Gift is valid only when the donor dies of illness during which the will was made.

Essentials of Death-Bed Gift:

  1. There must he an apprehension as to immediate death.
  2. Such fear of death must be subjective
  3. The illness must not be for a long period to make the patient used to it.
  4. To effect the transfer of property, by way of gift in anticipation of death.
  5. Mere apprehension of death as to old age is not sufficient.

Transfer of Property– Section 129 deals with Death-Bed Gift or Donatio Mortis Causa.
Indian Succession Act, 1925– Section 191 deals with Death-Bed Gift with regard to movable property.

Examples of death illness: Pneumonia, Galloping consumption, rapid consumption, etc.

Muslim law of Inheritance – Shia and Sunni schools

Shia Law

Hanafi or Sunny Law of Inheritance

Hiba or Mohammedan Law of Gift

Distribution of property under Indian Succession Act of 1925 (Of Christians, Parsis and Jews)

Domicile – Sec. 4 – 22 of the Indian Succession Act, 1925

Introduction

Indian Succession Act, 1925 is based on few of enactments such as the Indian Succession Act, 1865, Hindu Wills Act, 1870, the Probate and Administration Act, 1881.

Section 4. Application of Part.-This Part shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina.

Indian Succession Act is applicable to persons of Indian domicile as governed by provisions Sec. 5 to 19 of the Act. However, the Act is not applicable if the deceased was a Hindu, Mohammedan, Budhist, Sikh or Jain.

Intestate Succession of the Act are not applicable to parsis.

The object of the Indian Succession Act is to consolidate the Indian laws relating to succession, as the then existing statues and other enactments were not certain and they were repugnant to one another.

“Domicile” means the relationship between a person and a State for determining the personal status and the law applicable to such a person in the matter of majority, marriage, divorce, and succession.

For the purpose of Indian Succession Act, for dealing with the succession, the domicile is essential.

Section 5. Law regulating succession to deceased person’s immoveable and moveable property, respectively.-

(1) Succession to the immoveable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.

(2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.

Properties are divided into two types namely, movable and immovable properties. The movable property is governed by the law of succession of the country in which the deceased had his domicile at the time of his death.

However, as far as immovable properties are concerned, the rules of succession are governed by the law of the place where the property is situated. Domicile of the person at the time of his death is immaterial.

Illustrations

(i) A, having his domicile in India, dies in France, leaving moveable property in France, moveable property in England, and property, both moveable and immoveable, in India. The succession to the whole is regulated by the law of India.

(ii) A, an Englishman, having his domicile in France, dies in India, and leaves property, both moveable and immoveable, in India. The succession to the moveable property is regulated by the rules which govern, in France, the succession to the moveable property of an Englishman dying domiciled in France, and the succession to the immoveable property is regulated by the law of India.

Rules of Domicile

Only one domicile is allowed for a person.

There can not be a person without a domicile.

Domicile has two essential factors. Such as:

a. Factum of Residence: Physical habitation for an indefinite period.

b. Animus: Present intention to reside for an indefinite period.

Types of Domicile

1. Domicile by birth or Domicile of origin

Section 7. Domicile of origin of person of legitimate birth.- The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death.

Illustration

At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in England, whatever may be the country in which he was born.

2. Domicile by Choice

Section 10. Acquisition of new domicile.- A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.

Explanation.- A man is not to be deemed to have taken up his fixed habitation in India merely by reason of his residing there in the civil, military, naval or air force service of Government, or in the exercise of any profession or calling.

Acquisition of domicile in a foreign country where he has resided permanently with the intention of living there permanently. Appointment as Ambassador, Consul in a foreign country does not constitute domicile of choice.

Rules of domicile regarding certain persons

1. Minor

Section 14. Minor’s domicile.- The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin.

Section 17. Minor’s acquisition of new domicile.- Save as hereinbefore otherwise provided in this Part, person cannot, during minority, acquire a new domicile.

Minor can have only domicile of birth and not choice. In the case of legitimate minor, the domicile of the minor is that of his father and in the case of illegitimate minor, it is his mother’s. If the domicile of the mother is changed, then the domicile of the minor is also changed automatically.

2. Woman

Section 15. Domicile acquired by woman on marriage.- By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.

Section 16. Wife’s domicile during marriage.- A wife’s domicile during her marriage follows the domicile of her husband.

A minor female can have domicile of her parents only. After marriage, her domicile is that of her husband. If she is a unmarried major, she can change the domicile as per her will and pleasure. The domicile of the divorced woman does not follow the domicile of her divorced husband.

3. Illegitimate child

Section 8. Domicile of origin of illegitimate child.- The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.

The domicile of the illegitimate child is that of its mother. After attaining majority, it can change the domicile as per the will and pleasure. If the illegitimate child is a woman, after her marriage, she gets the domicile of her husband.

4. Lunatic

Section 18. Lunatic’s acquisition of new domicile.- An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.

A lunatic cannot change the domicile. If a lunatic is a married woman, her domicile is that of her husband. A lunatic can have only domicile of origin, unless it is changed by the guardian, or parents or husband.

Procedure for acquiring domicile

Section II of the Indian Succession Act prescribes the mode of acquiring domicile in India.

Declaration

The person wishing to acquire the domicile of India should declare his intention in writing.

Deposit

Such declaration in writing must be deposited with the Registrar of Domiciles, who is appointed by the Government of India for this purpose.

Residence

The person making such declaration and deposit must have resided in India for at least one year prior to the date of presentation of the declaration for depositing with the Registrar of Domiciles.

Parsis Intestate succession and Non Parsis

Intestate succession

Succession certificate

Probate and letters of administration, powers and duties of executor

 

Class Notes on Family Law II – Unit III (2nd Sem / 3 year LL.B)

Matrimonial Remedies under Islamic Law and Indian Divorce Act, 1869 (Amended Act)

Nullity of marriage – Bar to matrimonial relief

Alimony and Maintenance

Alimony and Maintenance as an independent remedy

A review under Muslim law

Indian Divorce Act, 1869 – provisions under the Criminal Procedure Code, 1973

Maintenance of divorced Muslim Women under the Muslim Women (Protection of Rights on Divorce) Act, 1986

 

Class Notes on Family Law II – Unit I (2nd Sem / 3 year LL.B)

Development of Islamic Law

Introduction

Islam means “submission to the will of God and establishment of peace”. Muslim Law had its origin in Arabia, where the Prophet Mohammed started it and the Mohammedan invaders in India brought the religion to India. Before the advent of Islam in Arabia, the Arabians were following various superstitions and were not leading a disciplined life.

According to the Muslim religion, God created the universe and He prescribes a pattern of behavior which the human beings must observe.

The Holy Quran

It is the divine communication of Prophet Mohammed with the Allah, the only God according to the Muslim religion.

The Quron is the holy of sacred book and the basic text of the Muslim religion.

The Muslim Law is founded upon Quron.

The Shariat

Stages in the development of Mohammedan Law

Stage of Quranic precepts

Stage of Collection

Stage of Theoretical study

Stage of evolution of Ijtihad and Taqlid

The Fifth period

Sources of Islamic law

Classical Sources of Mohammedan Law

  1. Quran or The Holy Kuran
  2. Sunna
  3. Ljmaas
  4. Qiyas

Position of Classical Sources in India

Taglid means that the court should not give their own interpretation of Quron. However, traditionally settled legal principles must be accepted as such, though it is contrary to Quron. The settled laws must be followed as such even if they are not modern, just or logical. News rules of law can not be introduced.

Other Sources of Muslim Law in India

  1. Legislative Enactments
  2. Judicial precedents
  3. Texts of Jurisprudence

Customary practices

Mohammedan people  are governed by both codified laws that are enacted by the State as well as the informal laws based on customary practices which differs from cultural, social and political scenario.

  • Shariat Application Act
  • Dissolution of Muslim Marriage Act
  • Muslim Women (Protection on Divorce) Act

Schools of Islamic Law

Sunni School

On the death of the Prophet, Mohammed Abubeker was elected as the successor. Those who supported the election were called Sunnies. They are predominant Muslims in India.

Sub Schools among the Sunnies

  1. The Hanafi School
  2. The Maliki School
  3. The Shafei School
  4. The Hanbali School
  5. The Zaydi School
  6. The Jafari School
  7. The Ismaili School
  8. The Ibadi School

Popular Schools in India

  1. The Hanafi School
  2. The Shafei School
  3. The Jafari School
  4. The Ismaili School

Shia School

Those persons who did not support the election  to fill the vacancy of the Prophet were considered Shias. They supported the succession to the office by inheritance and by election.

Concept of Marriage: Definition, object, nature, essential requirements of a Muslim marriage

Introduction

According to Mohammadan law, the marriage is a civil contract and not a sanctity. So, all the requirements of a valid agreement are also required for Mohammadan marriage. But for the capacity of parties, the Mohammadan law prescribes 15 years as puberty.

Abdul Khader vs. Salima

Essentials of a valid marriage

According to Muslim Law, Marriage or `Nikah` as the Muslims call the nuptial ceremony is an agreement underlying a permanent relationship based on mutual approval.

Essential Features of Muslim Nikah 

  • A Muslim marriage requires proposal called the Ijab from one party and acceptance or Qubul from the other as is necessary for a contract.
  • There can be no marriage except for the free consent and such consent should not be obtained by means of compulsion, deception or unjustified influence.
  • Just as in case of agreement, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
  • The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement, which is enforceable by law, provided it is sensible and not opposed to the policy of Islam. In the case with a contract the same policies are folowed.
  • The terms of a marriage contract may also be changed within the legal limitations to suit individual cases.
  • Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the violation of marriage contract.

Requirements of Muslim Nikah

The solemnization of a Muslim marriage needs strict following of certain rules and regulations. They are called the basic fundamentals of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be.

The essentials of Muslim marriage are as follows:

  • Proposal and Acceptance
  • Competent Parties
  • No legal Disability

Absolute Prohibition

There is absolute prohibition of marriage in case or relationship of consanguinity. In this case the situation is such that the relationship has grown up of the person through his/her father or mother on the ascending side, or through his or her own on the descending side. Marriage among the persons associated by affinity, such as through the wife it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted.

Procedure for Muslim Nikah

  • According to Muslim Law it is necessary that a man or someone on his behalf and the woman or someone on her behalf should give their consent to the marriage at one meeting and two adult witnesses should witness the agreement.
  • The words meaning proposal and acceptance must be spoken in each other`s presence or in the presence of their agents, who are called Vakils or Qazi.
  • The other circumstance for a valid marriage is that the contract must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting does not constitute a valid marriage.
  • There must be exchange of views between offer and acceptance. The acceptance must not be restricted.
  • Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.
  • The parties arranging the marriage must be giving their free will and consent.

Divorce – Marriage under Islam is only a civil agreement and not a sacrament. A husband can leave his wife without any reasons or merely by pronouncing the word “Talak” thrice. However, for a Muslim woman to obtain divorce certain circumstances are necessary. The husband and the wife with mutual agreement can also put an end to the marriage.

Like Hindu law, followers of Islam have their own personal law, which states that Nikaah or marriage is a contract, may be permanent or temporary, and permits a man four wives if he treats all of them equally. There should be a proposal or `offer,` made by or on behalf of one of the two parties;

The Muslim marriage law also states that to have a valid marriage under the Muslim law, if a person is of sound mind, normal and has attained puberty at the age of 15 his or her marriage cannot be performed without his or her consent. There are certain prohibited relationships, whose marriage is considered void. Like mother and son, grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.

  • An `acceptance` of such proposal or `offer` by or on behalf of the other party;
  • The `offer` and `acceptance,` both, must be expressed in the same meeting. There is no prescribed form for proposal and acceptance. However, a proposal, made at one meeting and an acceptance, made at another meeting, will not constitute a valid marriage;
  • The offer and acceptance must be made in the presence of two male witnesses, or one male and two female witnesses, who must be adult Mohammedans of sound mind; iv. A marriage, contracted without witnesses, is not void but is considered irregular. Such irregularity can be cured by consummation.
  • However, according to Shia law, the presence of witnesses is not necessary in any matter.

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: 

  • That the whereabouts of the husband have not been known for a period of four years;
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years;
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards;
  • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
  • That the husband was impotent at the time of the marriage and continues to be so;
  • That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease.
  • That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years.

Classification of marriage

Legal effects of valid

Void and irregular marriage

Relative Prohibitions

  • Unlawful union
  • Marrying a fifth wife
  • Marrying a woman undergoing iddat
  • Marrying a non-Muslim
  • Absence of proper witnesses
  • Woman going for a second marriage even after the existence of the first marriage.
  • Marrying pregnant women
  • Marrying during pilgrimage
  • Marrying own divorced wife

Muta marriage

  1. It means a temporary marriage.
  2. The marriage is for a fixed period.
  3. This type of marriage is recognized in the Shia Law – Ithna Ashari School

Essentials of Muta Marriage

  1. The amount of dower must be fixed. It is not fixed then the marriage becomes void.
  2. If the marriage is consummated, half the amount of the dower should be paid to the wife.
  3. The period of co-habitation must be fixed. If the period is not fixed, then it is not a Muta Marriage but becomes a normal marriage.
  4. A Shia can make a valid Muta Marriage with a non-Mohammedan woman. But a Shia female cannot marry a non-Mohammedan male
  5. The Muta marriage comes to an end when the fixed period is over. Even after expiry of the fixed period, if they live together then it is presumed that the term of Muta marriage is extended.
  6. Divorce cannot take place in Muta marriage but the husband by paying the full amount of dower, can put an end to the marriage even before the expiry of the term
  7. The children born out of the Muta marriage are legitimate. They can inherit the property of the parents. But the wife and husband cannot inherit the property of each other. The Muta marriage is obsolete in India.

State regulation

Polygamy

The Muslim law permits a Muslim man to have four wives, provided he treats all of them equally.

Child marriage

Pre-emption

Wakf

Dower

Introduction

Dower is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage, It is an obligation imposed upon the husband at the time of the marriage as a mark of reverence to the wife. The wife can receive it by instituting an action as if it was a debt due to her.

This is primarily because Mohammedan marriage contract is easily dissoluble, and the husband has the freedom of divorce and also in order to restrict polygamy, the concept of payment of dower was introduced.

The object of dower

  • to create an obligation on the husband to place his wife in respect
  • to restrain the frequent use of divorce by the husband; and
  • to provide for the wife’s living after the dissolution of her marriage or death of her husband

Types of Dower

Specified Dower: 

  1. In this case, the amount of dower is stated in the marriage contract. It can be settled by the parties to the marriage either before the marriage or at the time of the marriage or even after the marriage.
  2. The minimum dower amount is ten dirhams. However, Shia Law does not fix any minimum amount of dower.
  3. According to the Prophet, the Muslim husbands who are not in a position to pay even 10 dirhams to the wife as dower, should teach Quran to the wife in lieu of dower.
  4. In the case of marriage of a minor, the guardian contracting the marriage of a minor or lunatic boy can fix the amount of dower.

Types of Specified Dower

Specified dower is divided into Prompt Dower & Deferred Dower.

Prompt Dower

  • Prompt Dower is payable on demand by the wife, unless otherwise stated at the time of the Marriage.
  • The entire dower is considered as prompt dower in the Shia Law whereas it is usual to regard half as prompt dower and half as deferred dower in Sunni or Hanafi Law.
  • It can be paid any time before or after the marriage.
  • If the prompt dower is not paid, the Wife may refuse herself to her husband.
  • If the wife is minor, her guardian may refuse to allow her to be sent to the husband’s house till the payment of Prompt Dower.
  • In such circumstances, the husband is bound to maintain the wife.
  • Ever after the consummation of marriage, amount of prompt dower can be sued for recovery.

Masthan Sahib Vs. Assam Bibi

The wife refused for consummation of marriage until the prompt dower is paid. Even after consummation of marriage, the amount of prompt dower is not paid on demand by the wife. If the husband sues for restitution of conjugal rights, a conditional decree may be granted by the Court, that the husband should pay the prompt dower within the times fixed by the Court.

When the wife makes a demand for prompt dower, it becomes a debt and as such the wife can sue for the recovery of the debt within a period of three years.

Deferred Dower

Deferred dower is payable only on the dissolution of the marriage or on the death of the husband. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage, such agreement would be valid and binding.Since, the husband can divorce his wife at any point of time without assigning any reasons, the deferred dower acts as a security to the wife and is usually very hih.

If there is no divorce, then the deferred dower becomes payable only on the death of the husband.

Immediately on the death of the husband. the deferred dower becomes a debt, which is recoverable within a period of three years subject to the Law of Limitation.

Proper Dower or Customary Dower:

In the case of dower not fixed by the parties to the marriage before the marriage or if there is a condition that the wife should not claim for any dower amount, still the wife got a right to claim dower. Such dower is called ‘Proper Dower’ or ‘Customary Dower’.

It is determined after considering the personal qualifications of wife such as age, social position of her family, economy condition of her husband, etc.

Remedies for a divorced woman or widow to enforce the dower debt

In the case of divorce

If the husband is alive and if the wife is not yet divorced, the prompt dower is immediately payable on demand by the wife. However, the deferred dower becomes payable only after divorce by the husband.

The dower debt is an unsecured debt and so it is an actionable claim and ranks with the other unsecured debts of the deceased husband.

The limitation period is three years as in case of a general debt.

If the wife is in possession of her husband’s property after the divorce, she can utilise the property to satisfy her debt. There is no limitation period for this.

In the case of death of husband

When there is no divorce, the deferred dower becomes payable only after the husband’s death.

If the prompt dower is not demanded by the wife during the husband’s lifetime, then it becomes payabe only after the husband’s death.

Maina Bibi vs. Chaudary Vakil Ahmed

Muinuddin died leaving his widow Maina Bibi. He had left immovable property which was retained possession by Maina Bibi until dower was paid.

The respondents instituted a suit against the widow for the immediate possession of their shares of the estate, for which the widow defended that she is entitled to the possession of the estate till payment of dower. The Trial Court held that the respondents were entitled to possession on the condition that they paid to the widow Rs.25,357/- within 6 months, and in default of payment, the suit shall be dismissed. The widow continued to be in possession,  since the respondents did not pay the money.

After some years, Maina Bibi executed absolute gifts of her husband’s estate in favour of some donees and gave absolute title and possession to them. The respondents filed a suit against the widow and her alienees, that the widow had only right of retention until payment of dower and could not transfer the properties.

Judgment:

The Privacy Council held that the possession of the property once peacefully and lawfully acquired, the widow gets the right till the dower is paid and such right is conferred by Muslim Law. She has no right to alienate the property by sale, mortgage, gift etc.