Draft code on Islamic Law Applicable to Muslims in India · PDF file• The Muslim Law as...

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BISMILLAHIRAHMANIRAHIM

In The Name Of Allah The Benevolent and The Merciful

Draft code on Islamic Law

Applicable to

Muslims in India

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INTRODUCTION

• The Muslim Law as it exists today consists of the express injunctions of the

Qur'an, Sunnah, the practice and teaching of the Holy Prophet (Pbuh), and

the opinion of the Jurists which consists of Ijma, known as consensus and

Qiyyas, known as Analogical deduction.

• The Sharia injunctions are of five kinds. First, Farz (mandatory), second,

Wajib (obligatory), third Makruh(avoidable), fourth Jaiz (acceptable) and

fifth Halal (allowed) and Haram (prohibited). These injunctions mainly

cover the day to day life of a practicing Muslim.

• But the civil law which relates to marriage, divorce, dower, legitimacy,

guardianship, gift, wakf, wills and inheritance are now collectively called as

Muslim Personal Law in India.

• During Muslim Supremacy in India we find the Mughal Emperors were

Hanafis and the Qazis appointed by them administered the Hanafi law.

• Emperor Aurangazeb ordered to collect Fatwas and Fatawa e Alamgiri was

the source of Sharia law.

• In the beginning of British period The Muslim Law was applied as a branch

of Personal Law to those who belong to the Muslim in accordance with the

principles of their own school viz., Sunni or Shia or sub school viz., Hanafi

or Shafei

• However, the personal law was also intertwined with the local culture and

customs. Particularly, the Indian culture and customs in respect of marriage,

dowry and divorce led to practicing of rituals which are Un Islamic .

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• Therefore, the Application of Shariat Act 1937 restored to the Muslims

their own personal law in almost all cases and prohibited the customary law

which was prevelent.

• On the direction of Warren Hastings, The Hedaya, an Arabic compilation of

Sharia, was translated by Charles Hamilton.

• The Muslim Law also called as Muhammadan Law, Mohammedan Law,

Mohomedan Law etc., applied in India has its sources to be found in well

known legal text such as Hedaya and Fatwa -e-Alamgiri.

• The principles of Mohammedan Law were compiled by the great Islamic

Scholors an d Jurists like Sir Abdur Rahim, Tyabji, Fyzee and Mulla and

even by Hindu scholars.

• However, these compilations are more useful and helpful to the student of

law and to the courts for reference. As far as a common Muslim is

concerned, the Sharia is being applied only by the interpretation of Sharia

by Ulama, by fatwa from various Madarasas.

• The Ulemmas never studied the Principles of Mohamedan law as applied in

the courts of law nor did the lawyers and the courts know the fiqh as taught

in the Madaresas.

• A Muslim had to follow the Islamic law; every man in the street could not be

learned in the Sharia; being ignorant, he was asked follow the opinion of

those who knew better.

• Many at times the interpretation and fatwas are conflicting as there is no

independent judgment. This conflicting interpretation of Sharia has led to

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confusion among the Muslims in India and has brought criticism from

outside.

• These arbitrary Fatwas or interpretation, given to suit their own purpose or

given unmindfully of changing social condition, has been the focus of media

attention and intense discussion. The modern civilisation and changing

social conditions has very much affected the Muslim family.

• An ideal Muslim matrimonial law has not been used prudently but misused

and Muslim women are made to suffer and discriminated.

• There is no understanding of the principles behind the law. There is lack of

uniformity in operation and application of Islamic law which warrants for an

urgent need to formulate the Quranic frame work of Sharia and bring it as

legislation.

• The extent of diversity of the Islamic world, with current developments in

the constitutional and international laws has tried to define justice more

minutely because to maintain one’s position and acceptability in the global

fraternity, no country can implement law which negates International

Convention of Human Rights.

• No doubt there is an intense struggle by the activists to uphold human rights

especially woman’s right throughout the Muslim world due to its conditional

support to CEDAW or other international Charters.

• Various international conventions have forced the signatory countries to

legislate laws to uphold human rights, women rights and children’s rights.

Many Islamic and non- Islamic countries have codified and enacted the

Muslim family law.

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• Codification of Islamic Law is not a new thinking. Great Islamic scholars,

Jurists, Ulamas have accepted that Muslim Law in India should be codified

to bring all Muslims irrespective of their School and sub schools under one

uniform Islamic Law based on Qur'an, Sunna and Sharia.

• It has become important to formulate the Islamic Law within Qur'anic frame

work with a reformative thinking to suit the modern day expectation.

• The Islamic Law is not static but has an inherent nature of adaptation which

could even be applied to a modern civilisation and in changing social

condition.

• There is nothing in the theory of Islam to force the principle of blind

imitation on the Muslims.

• Application of Ijtihad, the independent and prudent interpretation of law, has

become necessary to promote fiqh e Ijtihad (evolving new legal principles

on the basis of old one ) to meet the challenges of the modern civilisation

and changing social condition.

• In various Muslim countries major portion of the Personal Law have been

reformed and codified. This has been done in Egypt, Turkey, Iran, Palastine,

Pakistan, Philipines, Bangladesh with success.

• What is attempted in this draft code, is not an introduction of new Islamic

law or Sharia law. It is again a compilation of Sharia law as accepted and

applicable to Indian Muslims either taken from Hedaya or from the texts of

the Jurists. An attempt to give the law in the shape of an enactment for easy

applicability.

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Statement of Objects and Reasons

• The Muslim Personal Law has been legislated globally with the hope that

codification will introduce the rule of law in family matters and end the

arbitrariness of judicial decisions. The time has come to codify the law

relating to Muslim marriage, divorce, maintenance, custody of children,

adoption and inheritance in India within the frame work of Quran, Hadith

and Sunna.

• This Act is to consolidate and clarify the provisions of Muslim law and

related procedure regarding Muslim marriage, divorce, maintenance,

custody of children and inheritance.

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PREAMBLE

“An Act to consolidate and clarify the law relating to

Marriage, Divorce, Maintenance, Guardianship and

Inheritance among Muslims in India.”

Section 1. Short title and extent:

(1)This Act may be called

The Islamic Family Act 2012

or

The Muslim Personal Law 2012

Or

Muslims Marriages and Divorce Act 2012

Or

Muslims Marriage, Divorce, Maintenance, Guardianship & Inheritance Act 2012

(2) It extends to the whole of India and applies to the Muslims domiciled in the

territories to which this Act applies.

Section : 2. Application

2. Application of the Act: (1) This Act applies

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(a) to any person who is a Muslim by religion,

(b) to any person who is a convert or re-convert to Islam.

Sec.3. Definitions.—In this Act, unless the context otherwise requires,—

• Arbiter means and includes a representative of each of the parties to a

matter dealt with under this Act.

• Arbitration (Marriage) council means a body consisting of the Chairman

and a representative of each of the parties to a matter dealt with under this

Act.

• Chairman of the Arbitration council (Marriage Council)

Means the chairman either appointed by the State Government or by the

District Collector or by the Wakf Board or The Chief Kazi, District Kazi or a

Muthawalli or anyone appointed by the Governing Body of a mosque or Jamath

• Balique (Puberty) is the age when a girl first gets her menstrual cycle.

• Dower (Maher) means and includes a mandatory marriage gift payable by

the man, as a token of respect, to the woman whom he proposes to marry,

contrary to receiving any dowry from her and to show his capacity to

maintain her. The payment of Maher may be prompt or deferred but

specified.

• Muslim : A Muslim is one who has faith in Allah’s existence, His unity and

all His characteristics; who believes in His Messengers, all His revealed

Books and the Day of Judgment; and who affirms that Prophet Muhammad

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is His Last Prophet and who has faith in all the essentials of the religion

Islam and follow the Injunctions of Holy Quran.

• Nikkah (Marriage): Marriage is an agreement between a man and a

woman with mutual rights and obligation and such marriage is Sunnet-e-

muakkadah (Prophet’s tradition) if both man and woman are capable of

cohabitation; and the man has the capacity to provide for maintenance and

marital rights to the woman.

• Ijab (proposal) means the word in which a proposal is made by either party

to the marriage, directly or through a guardian or representative.

• Qubul (acceptance) means the words in which the proposal is accepted by

the other party to the marriage.

• Wali ( guardian): Guardianship in general is the legal right due to which a

person’s authority over another person is enforced and in particular the

marriage guardianship is the legal authority due to which a person can

contract a marriage on behalf of a woman

• Nafaqah or Nifak (maintenance): signifies all those things which are

necessary to the support of life, such as food, clothes, and shelter .

Mata (compensatory provision):

• Mata or Matat is a present paid to the divorced wife in case of divorce by

husband. Mata is made incumbent in the way of gratuity, or compensatory

gift from the husband on account of his having thrown into a forlorn state by

his separation from her . (Allah has commanded saying “GIVE HER A

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PRESENT, THE RICH ACCORDING TO HIS WEALTH AND THE

POOR ACCORDING TO HIS POVERTY”

• Tuha’r: is the purity period between two menstrual cycles for a woman

during which Talaq could be pronounced.

• Iddat : is the period fixed by the Shariat for the woman for the termination

of the effects of marriage ;Iddat for a divorced woman is the three complete

menstrual courses; and if she is a pregnant woman Iddat is till the end of

pregnancy; Iddat is a the period or term by the completion of which a new

marriage is rendered lawful for a divorced or widowed woman

• Talaq-e-Ahsan : The Talaq Ahsan or most laudable divorce is where the

husband repudiates his wife by a single Talaq within a Tuh’r ( period of

purity) and then leave her to the observance of Iddat. This mode of Divorce

is most laudable for two reasons. First , esteemed are those who gave no

more than one Talaq until the expiration of Iddat, as holding this to be an

excellent method than that of giving three Talaq by repeating the sentence

on each of the two succeeding Tuh’rs. Secondly, because in pursuing this

method the husband leaves it still in his power to recover his wife by

reversal of the Talaq during the Iddat or even after the expiration of Iddat

• Talaq-e-Hasan: the Talaq Hasan or laudable divorce is where the husband

repudiates the wife by three pronouncement of Talaq in three consecutive

Tuh’rs and the intervention of the Arbitration council in each

pronouncement is sine qua non or condition precedent.

( A saying of Prophet (Pbuh) delivered to Ibnu Amir, “ One thing required

by Sunna is that you wait for the Tuh’r or Tohr and pronounce a Talaq in each

Tuh’r or Tohr)

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Explanation:

In both, Talaq-e-Ahsan and Talaq-e-Hasan, the pronouncement of Talaq is

preferably directly to the wife, in the presence of two witnesses or conveyed

by writing, attested by two witnesses.

• Talaq-e-Biddat (Tripple Talaq in one sitting): The Talaq Biddat or

irregular divorce is where the husband repudiates his wife by pronouncing

the Talaq three times at once or where he repeats the sentence thrice within

one Tohr or Tuh’r. This mode of irregular divorce is against law and

prohibited.

• Talaq-e-Tafweez (Delegated right to Divorce): Talaq Tafweez or

delegation of divorce is where the husband delegates or commits the

pronouncement of Talaq to his wife, desiring her to give the effective

sentence at her option, liberty and will. This form of Talaq is not in practice.

• RIJAAT: Rijaat means restitution, which signifies the husband returning to

or receiving back his wife after divorce and restoring her to the former

situation and a man may return to a wife repudiated by one or two reversible

Talaq. He may take her back before the expiration of the Iddat.

(“ YOU MAY RETAIN THEM WITH HUMANITY” Holy Quran)

Khula:

Khula means the termination marital relationship in consideration for a

returnagreed upon by parties. In practice the woman requests the husband “ Give

me Khula in return of Mehr (Dower) “ The divorce will take place by the word

Talaq or Khula or Mubaraat or by declaration by the Arbitration council or by a

decree of court. In the case of Khula the wife requests to be released and the

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husband agrees for a certain consideration which is usually a part or the whole of

the Mehr.

(“ NO CRIME IS IMPUTED TO THE WIFE OR HER HUSBAND IN

RESPECT OF THE MATTER IN LIEU OF WHICH SHE HAS RELEASED

HERSELF” Holy Quran.)

Talaq-e-Mubaraat:

Dissolution of marriage by the consent of the spouses is known as Mubaraat. The

word Mubaraat denotes the act of freeing one another mutually. In Mubarrat both

husband and wife part happily. According to Hanafi law, the husband proposes

dissolution and the wife accepts it at the same meeting.

• Faskh-e-Nikah (Dissolution of Marriage )

Faskh means Judicial annulment of a marriage

• Nikkah-Nama

Means a certificate of marriage in a prescribed form

• Talaq or Khula or Mubaraat -Nama

Certificates of divorce in prescribed form

Court means

The District Court or the Family court as established by the The Family Courts Act.

Kazi

A scholar in Islamic Law and being appointed as a public functionary,

celebrating marriages and performing other rites and ceremonies presiding at

divorces and required to perform any other duties or ceremonies prescribed by the

Sharia Law.

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CHAPTER II

Conditions of a Muslim Marriage

Section 4: A marriage may be solemnised as per Sunnah, between two Muslim, if

the following conditions are fulfilled;

1. both party to the marriage are not within the prohibited relationship;

2. the man of 21 years and the woman of 18 years of age and both capable

of giving consent for an ijab (proposal) and qubul (acceptance) and for the woman

such consent be given either personally or through a wali;

3.in the presence of two witnesses;

4.the man offering a proper Maher (dower) as prescribed hereunder to the

woman and such maher be paid promptly or deferred;

Explanation I : Prohibited relationship means;

1.Prohibited due to consanguinity-father like or mother like, children like

which includes brother’s and sister’s children;

2. Prohibited due to affinity–

a) spouse’s father or mother and spouse’s children through earlier marriage;

b) a man is prohibited to marry two sisters and cohabit with them;

c) a man is prohibited to marry the divorced wife unless intervened by a

cohabited marriage, and such intervening marriage shall be a natural one and not

for the purpose of remarrying; (“ IF HE DIVORCES HER , SHE IS NOT, AFTER

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THAT LAWFUL TO HIM, UNTIL SHE MARRY ANOTHER HUSBAND” –

Holy Quran)

3. Prohibited due to fosterage - foster mother or her husband and their

children.

Explanation II: Maher (Dower) shall be in the form of movable or immovable,

gold or silver or cash or of any kind acceptable by the woman or her wali, but the

value shall not be less than one’s gross annual income and the minimum notional

income of man shall be fixed as per Minimum Wages Act.

Section 5. Conditions on polygamy:

1. No man, during the subsistence of an existing marriage, shall except with the

previous permission in writing of the Arbitration Council (Marriage Council),

contract another marriage, nor shall any such marriage contracted without such

permission be registered under this Act or any other law in force.

2. An application for permission under sub section (1) shall be submitted to the

Chairman of the Arbitration council (Marriage Council), in the prescribed manner

together with prescribed fee, and shall state reasons for the proposed marriage, and

whether the consent of existing wife or wives has been obtained.

3. On receipt of the application under sub section (2), the Chairman shall ask the

applicant and his existing wife to nominate a representative, and the Arbitration

council (Marriage Council), so constituted may, if satisfied that the proposed

marriage is necessary and full fill the Quranic injunctions, grant, subject to such

condition if any, as may be deemed fit;

4. In deciding the application the council shall record its reasons for the decision

and such decision shall be final and shall not be called in any court;

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5. Any person who contracts another marriage without permission of the council

will be committing on offence of bigamy as defined in Indian Penal Code.

Section 6:

Registration of Marriage:

1) The marriage shall be registered as per the Nikkah Nama provided in the

Schedule I and such Nikkah Nama shall be registered and maintained by, Chief

Qazi of the state or District Qazi or Marriage Registrar appointed by the state or

Muthawalli or the managing committee of a Mosque and

2) may also be registered with the competent authority under the Marriage

Registration Act of the state and for this purpose the Nikkah Nama shall be

accepted as proof of marriage. The competent authority shall not refuse to register

the marriage if the marriage has been performed in accordance with this Act.

Section 7:

Mutual rights and Obligation of the parties to the Marriage

1. Both man and woman have mutual rights and obligation on each other.

2. It is obligatory for the husband to provide Nifka or maintenance for the wife;

3. The subsistence of the wife is incumbent on the husband.

(LET HIM SUPPORT HER ACCORDING TO HIS ABILITY- Quran)

4. A husband must maintain his wife’s servants; ( Imam Abu Hanifa)

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5. A wife must be accommodated with separate habitation; but the husband may

have control over the visitors; but shall not prevent the parents and the relations of

the wife from seeing and conversing as it would amount to breach of ties of

kindred.(Hedaya)

Chapter III

Divorce (Talaq)

Section: 8. A Muslim Husband may Divorce his wife on any one or more of the

following grounds, namely:- that she

(i) has treated him with cruelty(both mentally or physically);

(ii) has deserted for a continuous period of not less than two years;

(iii) after the solemnization of the marriage, had voluntary sexual intercourse

with any person other than him( to be proved in accordance with Sharia law of

evidence);

(iv) has failed to perform the marital obligations, disobeyed in performing

religious or lawful matters and

(v) on any other ground which is valid and reasonable in accordance with Holy

Quran, Hadith and Sunna

Section 9.Talaq by a Muslim husband:

(i) Any man who wishes to divorce his wife shall give the Chairman of the

Arbitration council (Marriage Council), a notice in writing of his intention to do so,

and shall supply a copy thereof to the wife;

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(ii) The Chairman shall ask the applicant and his wife to nominate a

representative each and shall constitute an Arbitration council, for the purpose of

reconciliation between the parties, and shall take all steps necessary to bring about

reconciliation;

(iii) If the reconciliation fails, and the council is of the opinion that the husband

has valid reason for a divorce, the council shall direct the husband to follow any

one of the mode namely, Talaq-e-Ahsan, or Talaq-e-Hasan, and the husband shall

strictly follow the procedure of pronouncing the Talaq ; and

(iv) if the council is of the opinion that the husband is unreasonable and

pronouncement of Talaq will seriously affect the wife and children in particular

and the society in general, shall forbid the husband from pronouncing Talaq.

( v) if a divorce is effected the same shall be recorded in the prescribed form of

Talaq Nama provided in the schedule and the same shall be the proof of divorce for

all purposes.

CHAPTER IV

Dissolution Of Marriage by a Muslim Wife

Section 10. A Muslim wife shall be entitled to obtain divorce either under

Khula or under Talaq-e- Tafweed (Delegated right to Divorce) on any one or more

of the following grounds namely:-

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(i) that the whereabouts of the husband have not been known for a period of

four years;

(ii) that the husband has neglected or has failed to provide for her

maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of

seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his

marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues

to be so;

(vi) that the husband has been insane for a period of two years or is suffering

from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian

before she attained the age of fifteen years, repudiated the marriage on attaining

the age of eighteen years:

viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct

even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over itor

(e) obstructs her in the observance of her religious profession or practice, or

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(f) if he has more wives than one, does not treat her equitably in accordance

with the injunctions of the Quran;

(ix) on any other ground which is valid and reasonable in accordance with Holy Quran, Hadith and Sunna .

(extracted from Dissolution Muslim Marriages Act 1939)

Section 11. Divorce by Khula or under Talaq-e- Tafweed: Any woman who

wishes to obtain Khula or exercise the right under Talaq-e Tafweez, she shall apply

to the Arbitration council and the procedure under section 9, there above, shall

“Mutadis Mutandis” be applicable, and if reconciliation fails the council shall

declare divorce by Khula or Tafweez, as the case be and issue Khula or Tafweez

nama in the prescribed form provided in the schedule.

Section 12:

Divorce by consent (Talaq-e-Mubaraat): If both parties wish to dissolve the

marriage by mutual consent, they shall apply together to the Arbitration council

and the provisions and procedure under section 9, there above, shall “Mutadis

Mutandis” be applicable, except reconcilation and the council shall declare the

marriage dissolved and issue Mubarat nama .

Section 13:

Intervention of court to grant divorce:-

(1) For any reason, if the Arbitration council (Marriage Council) proceedings

did not culminate in to any form of Talaq either at the instance of the husband or

the wife, the parties may apply to the court having jurisdiction, under the provision

of this act for a decree of divorce;

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(2) the court on appearance of parties shall appoint an Arbitration council as

provided in the Act, and if the reconciliation fails, and after enquiry, if the court is

of the opinion that the parties have valid reason for a divorce, in the case of

husband, shall, direct the husband to follow any one of the mode namely, Talaq-e-

Ahsan, or Talaq-e-Hasan and grant a decree of divorce, and in the case of wife

shall grant a decree of divorce by Khulla.

Section.14: Arbitration (Marriage) Council, Chairman, Members,

appointments, qualification and their duties:

(1) There shall be as many as Arbitration (Marriage) Councils in the

Districts,Talukas or Firkas and Villages. A recognized Masjid or Mosque or a

Jammath with a minimum of 50 or 100 of constituent Muslim families or

comprises of 300 or 500 Muslim voters shall form one Unit and two or three units

may join together to form an unit.

( 2) Each unit shall elect a chairman and as many members as required and form

an Arbitration (Marriage) Council. The members may be selected from Ulemmas,

Lawyers, Professors, Teachers, retired Govt.servants, expert counselors, trained

mediators and Social activists.

(3) The chairman and Members shall posses the minimum educational

qualification, basic knowledge in Quran and Sharia and Sunna.

(4) They shall be neutral and if any one of the party is related to them and if they

fear that they will not be just and fair they may recues themselves or the Chairman

shall forbid them from taking part.

(5) (i) The Arbitration/conciliation meeting shall be held in privacy unless the

parties agree for a public hearing.

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(ii) The parties and their Arbiter alone shall be allowed to take part and no one

shall take part unless permitted by the council.

(iii) The council shall hear both parties together in the preliminary hearing and

proceed to hear each party separately in order to find out the problem or

misunderstanding.

(iv) The council shall advice, counsel and explain the Sharia and Sunna and

social impacts and shall bestow its efforts to bring an amicable solution. Keeping

the institution of Marriage intact will be the basic principle.

(v) The Chairman and members shall act pro bano i.e; free of any charge or fee

and they shall fear Allah in doing justice.

(vi) The decision or the settlement arrived at the council shall be treated as an

Award under the Arbitration and Conciliation Act 1996.

(vii) Taking into consideration of accumulation of civil cases in the court, it shall

be lawful for the Arbitration/ Conciliation/Mediation Council to decide the pre-

litigation civil disputes as an Alternative Dispute Resolution Forum, provided the

parties expressly agree for such Arbitration/ Conciliation/Mediation. The decision

or the settlement arrived at the council shall be treated as an Award under the

Arbitration and Conciliation Act 1996 and the provision of the said act shall apply

for Arbitration and the Mediation and Conciliation rules framed by the respective

High Court shall apply to Mediation and Conciliation.

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CHAPTER V

Maintenance and Alimony ( Nifak and Mata)

Section 15(1) Nifak :

A wife is entitled for maintenance according to his capacity.

(“LET HIM SUPPORT HER ACCORDING TO HIS ABILITY – HOLY QURAN”).

(2): A wife is entitled for separate accommodation.

(3) A divorced wife is entitled for maintenance during her Iddat and other

provisions as per the provisions of Muslim Women (Protection of Rights on

Divorce) Act1986.

(4) The Children are entitled for maintenance from the father. The indigent

parents are entitled for maintenance from their son or sons. The father and mother

must provide maintenance for their adult daughters and adult sons who are

disabled.

(5): If a fair and reasonable maintenance is not paid as stated above an

application may be made either to the Arbitration Council or to the Court under the

provision of this code.

Section 16: Mata :

Notwithstanding to anything contained in any other Law in force, a divorced

Muslim women, at the time of divorce is entitled for a fair provision from the

husband if the husband initiates the divorce proceedings. The amount shall be

decided by the Arbitration council (Marriage council) taking in to consideration of

the capacity of the husband, the needs of the divorced wife and the possibility of

her remarriage.

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CHAPTER VI

Guardianship

Section. 17 (1) The mother is entitled to the custody of her male child till the age

of seven years and of her female child till puberty.

(2) While deciding the guardianship, under sub clause (1) the welfare of

the child shall be the paramount consideration.

(3) In the absence of the mother the custody shall be with the;

i) mother’s mother

ii) father’s mother

iii) full sister

In the absence of the mother and female relation, the custody of the child shall be with ;

i)the father

ii)paternal grand father

iii)full brother

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Chapter-VII

Law of Inheritance, Gift, Wills and Wakf

Section 18:Inheritance: the property of a Muslim, both movable and immovable,

after clearing the debts, shall devolve on;

(1) Class I: Quranic Heirs (Sharers) namely;

(i) husband or (ii) wife (iii) father (iv) true grandfather (v)mother

(vi) true grandmother (vii)daughter (viii)son’s daughter (ix)full sister

(x)consanguine sister (xi)uterine brother (xii)uterine sister. If the estate is not

exhausted by them and if there is any residue, it shall devolve on;

(2) Class II: Agnatic Heirs ( Residuaries) and an agnate is a person related to the

deceased through male links; in the absence of Class I and Class II the property

shall be distributed among the;

(3) Class III: Uterine Heirs (Asabaat) or distant kindred.

Section 19: Table showing the sharers

I Spouse (a) Wife: 1/4 in the absence of children or son’s children,

his; otherwise 1/8

(b) Husband: 1/2 in the absence of children or son’s

children, hls; otherwise 1/4

II Parents (a) Mother: 1/3 in the absence of children or son’s children,

hls; 1/6 when surviving with a child or son’s child, hls; 1/3

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of estate minus spouse’s share when surviving with spouse

and father; 1/6 when surviving with two or more siblings

(b) Father: 1/6 in the absence of children or son’s children,

hls; otherwise an agnatic heir

III Grand-

parents

(a) Grandmother, hhs: single or plural 1/6 –

maternal : in the absence of mother; paternal: in the absence

of mother, father / true grandfather, hhs

(b) Grandfather, hhs: same as father in his absence

IV Daughters (a) single 1/2, plural 2/3, in the absence of son

(b) with sons: as agnatic heirs

V Son’s

daughters

(a) single 1/2, plural 2/3, in the absence of sons, son’s sons,

two daughters

(b) with a single daughter: 1/6; with son’s sons agnatic heirs

VI Full sisters (a) single 1/2, plural 2/3, in the absence of son, son’s son,

father/his father, full brothers

(b) with full brothers: agnatic heirs

VII Consanguine

sisters

(a) single 1/2, plural 2/3, in the absence of son, son’s son,

father/his father, full sister or brother, consanguine brother,

two full sisters

(b) with a single full sister; 1/6; with consanguine brothers;

agnatic heirs

VIII Uterine

siblings

single 1/6, plural 1/3, in the absence of children, son’s

children, father, true grandfather, hhs

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Section 20: (1) among the sons and daughters, the ratio will be 2:1 and they shall

exclude the other agnates.

(2) in the event of death of any son or daughter, which occurs before

the opening of succession, the children of such son or daughter, if any, living at the

time the succession opens, shall, receive a share equivalent to the share which such

son or daughter, as the case may be, would have received if alive.

Section 21 (1) Daughter’s share shall be increased to an reasonable ratio, if she is

earning and contributing to family wealth.

(2) half of her earnings shall allowed to be accumulated separately which

she can take with her at the time of marriage. And if she is not able to marry, for

whatever reason, father shall give her up to 1/3rd of his wealth to her (which father

has right to make hiba) so that she can lead independent life.

(Qur’an allows women full property rights so she can accumulate her own earnings

which will be hers and hers alone.)

Section 22 Gifts (HIBA):

(1) any Muslim may, who has attained majority and is of sound mind,

lawfully make a gift of his property to another during his life time on the following

condition:

(a) there shall be a declaration of the gift by the donar (IJAB);

(b) acceptance of the gift by the donee (QUABUL);

(c) delivery of possession.

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(2) the gift may be either oral, writing or registered

Section 23: Wills:

(1) any Muslim may, who has attained majority and is of sound mind,

lawfully make a will not exceeding one third of his property to another during his

life time. It may be either oral or in writing.

(2) a testator may at any time revoke a bequeath either expressly or

impliedly.

Section 24: Wakfs : any Muslim may, who has attained majority and is of sound

mind, lawfully make a Wakf, a permanent endowment, either for public or private

purpose.

The administration of Wakfs shall be in accordance with the “ The Wakf

Act, 1995”

Section 25: Rule making power – The Central or State Government may make

rules in consultation with Islamic Jurists to carry into effect the purposes of this

Act.

Section 26: Savings -

Nothing in this Act shall affect any right or liability acquired or incurred

before its commencement

Section 27: Repeal -

The Muslim Personal Law (Shariat) Application Act, 1937, The Dissolution

of Muslim Marriages Act, 1939 are hereby repealed.