Source of Mohammedan/Islamic law

Role of Quran and Custom

Quran:
Considered direct word of God and takes precedence over all other sources. Provides clear guidance on many legal matters, such as inheritance, marriage, and criminal law. its interpretation can be complex
Customs (Urf or Taamul):
Generally considered a secondary source. Can be used to supplement or clarify Islamic law, but they cannot contradict the Quran or Sunnah

Mohammedans / Musalman

Person whose religion is Islam(means submission to will of God). Islam is religion which says God=Allah is only one. Mohammad was his messengar(Rasool).
Person can be muslim by:

Sects on Islam (Shia, Sunni)

Sunni Sect of Islam (Majority)

Shai Sect of Islam (Minority)

Sunni sect schools

Shai sect schools

Sunni vs Shai

Nikah(Marraige)

Many muslim jurists have given definition for marraige, in eyes of muslim law, marraige is a civil contract(not sacrament) for:
- Legal validity for sexual relationships
- To legalize children
Zina: unlawful intercourse between man and woman.
Hindu marraige is sacrament, as it involves religious ceremonies.
Limited Polygamy: Man is not allowed to marry more than 4 wives at a time.

Terms

Types of Nikah(Muslim Marraiges)

Essentials of Muslim Marraige

Talaq

Talaq(Arabic means to release) is reject marraige by HUSBAND. Muslim husband has unrestricted rights to divorce his wife without giving any reason.

Essentials of Valid Talaq

1. Age: Any husband who has reached puberty can give talaq without providing reason.
2. Consent: Husband must have free consent. Hanafi Law(Talaq under unde influence, fraud, intoxication are valid)
3. Witness: Sunni: Talaq without witness is valid. Shai: Atleast 2 competent witness should be present.
4. Presence of Wife: Its not required that wife should be present at time of pronouncement of talaq.

Types of Talaqs

Conditions under which Wife can seek divorce

1. Absence of husband: Husband missing for 4 years
2. Failure to maintain: Husband did not maintained wife for 2 years
3. Husband imprisoned: imprisoned for 7 years or more
4. Impotent Husband: If he is impotent at time of marriage
5. Insane, Leprosy, Veneral Disease: If insane for period of 2 years
6. Cruelty by Husband: Habitual assault, force to lead immoral life, does not treat 1 wife with equality.

Cases

Acknowledgement of paternity / Iqrar-e-nasab

Legal process that establishes a father-child relationship and gives the child legal rights and responsibilities
Used when there's uncertainty about the child's legitimacy or parentage.

Conditions for Acknowledgement of paternity

Minor in Muslim Law

Minor: a person under the age of 15

Guardianship in Muslim law

1. Natural or Legal gurdian: Father
2. Testamentary gurdian: Person appointed as gurdian in will. Father or paternal Grandfather has right to appoint Testamentary gurdian
3. Court appointed Gurdian: In absence of natural or Testamentary gurdian, court has right to appoint gurdian
4. Defactor Gurdian: Person who is not natural nor Testamentary gurdian, but taken gurdianship duties

Powers of Gurdian of Minor in Muslim Law

Manage property(buy, sell, lease movable property), Carry business(on minor's name), take debt on minor's name, Pledging goods only for duration of minor's minority.

Hizanat (means right of custody and guardianship of a child)

Mother has the right to custody until the child reaches puberty, and then until they turn 7 years old
The natural guardian of a child is the father or paternal grandfather.
If the mother is deceased, the mother's mother is entitled to custody
Non-Muslim is not eligible to get the custody of the child

Terms

Dower (Mahr)

As per Mulla: Dower is property or its equivalent which wife is entitled to recieve from husband in consideration of marraige.
In Mohammedan law, dower is obligation imposed on husband as mark of respect to wife.
It can be paid in full at time of marraige or divided into 2 parts: 1 called by wife before conjugal relationship, 2nd before death of either parties or by divorce.

Objective of Dower

1. Impose obligation on husband as mark of respect for wife
2. Place check on sudden, unaccountable divorce
3. To provide subsistence after dissolution of marraige

Kinds of Dower

Is Dower a Debt

Other terms

Pre-Emption (also called Shufa)

This is preferential right of owner of immovable property to acquire an adjacent property.
Example:
A and B are owners of adjacent houses. B wants to sell his house. C wants to purchase, but A has more rights to buy the house at same price. A is called pre-emptor or Shufee.
Right of pre-emption is a weak right that can be defeated by lawful methods.
Law is applicable to muslims in India except in tamil nadu
pre-emption being beneficial to community life is taken by Hindus as law in some parts of Bihar, Gujarat(Godhra, Surat).

Essentials of pre-emption

1. Right to pre-emption is only available to owner of immovable property
2. It is enforced against any purchaser irrespective of reglion, caste or creed.

Categories of pre-emptors

1. Co-owners (Shafi-i-Sharik): People who inherit properties of common ansectors.
2. Participant in immunities(Shafi-i-Khalit): 2 or more people having common right of way or drainage etc
3. Owners of adjacent properties (Shafi-i-Jar): neighbors of immovable properties.

When rights of pre-emption are available?

1. Pre-emptor owns a neighboring property that shares a boundary with the property being sold.
2. If the properties share common access points, like a staircase or entrance, the owner of the adjacent property may have a pre-emption right
3. Pre-emptor must provide timely notice to the seller of their intention to exercise the pre-emption right

Elements to establish a preemption claim

1. Claimant must prove they are the owner of a adjoining property
2. The property in question must have been sold to a third party
3. The preemptor must promptly notify both the seller and the new buyer of their intention to exercise the right of preemption

Formalities to access right of pre-emption

1. Formal demand in writing: A written notice or legal document formally stating the preemption
2. Witness : In some cases, witnesses may be needed to verify the preemptor's notice
3. Legal proceedings: If the seller or new buyer disputes the preemption claim, the preemptor may need to initiate legal action
4.

Gift/ Hiba

Gift is transfer of property from one person to another without any exchange or consideration

Essential elements of a valid gift in Muslim law

1. Declaration: The donor must clearly declare their intention to transfer the property to the donee.
2. Acceptance: Gift must be accepted during the donor's lifetime. if donee is a minor or incapable of accepting the gift, their guardian can accept it on their behalf
3. Delivery: donor must divest themselves of ownership and the donee must take control of the property
4. Donor's competence: donor must be of sound mind, not a minor, and have the legal capacity to transfer the property

Gift to child in womb, juristic person, minor, insane are Valid?

gift is not valid without delivery of possession

The gift is only complete when the donor delivers possession to the donee and the donee takes possession.
Delivery is not required in cases such as:
1. A gift from a father to a minor or lunatic person
2. A gift between a husband and wife
3. When the donor and donee live in the same house
4. When the donor and donee have a co-share in the property
5. Cases of part delivery or incorporeal property
6. When the donee is already in possession

Valid / Invalid gifts

Gift can be revoked under the following circumstances

1. Before delivery: A gift can be revoked at any time before the donee(a person who receives a gift) receives possession of it.
2. With the donee's consent
3. By court decree: Gift can be revoked after delivery of possession if a court issues a decree.

Irrevocable Gifts

1. Gift between a husband and wife: A gift made between a husband and wife is irrevocable.
2. Delivery of possession: Once the donor has delivered the gift to the donee, the gift is generally irrevocable
3. Gift to a deceased donee: A gift made to a donee who has died is irrevocable.
4. Gift of a lost or destroyed item: A gift of an item that has been lost or destroyed is irrevocable.
5. Gift of an item that has increased in value: A gift of an item that has increased in value is irrevocable

Hiba-bill-iwaz, Hiba-ba-shart-ul-ewaj

Maintenance (Nafaqah)

This financial support provided to a family member by a person who is legally responsible for them

Who all are entitled for maintenance

1. Wife: husband is obligated to maintain his wife in all circumstances.
  Divorced Lady: Read Shah Bano case, Muslim lady was not entitiled for maintainece but as per ruling (July 10, 2024) Section 125 of the Code of Criminal Procedure (CrPC): court emphasized irrespective of religion every divorced woman can claim maintaince from husband.
2. Children: Children are entitled to maintenance from their parents, especially their father.
3. Parents and grandparents: Children are also obligated to maintain their parents.
4. Other relatives: Maintenance can also be paid to other close relatives in certain situations.

When Muslim woman cannot claim maintenance

She has not reached puberty
She has abandoned her husband and marital duties
She elopes with another man

Waqf

Waqf is a permanent dedication of property to Allah for charitable, religious, or pious purposes.
Waqf is not like trust where person can create and give his property to trust. In waqf property is transferred to waqf board who manages the property and owner is no longer owner of property

Essentials/Characteristics of Waqf

Permanent dedication: The property is dedicated permanently for religious, charitable, or pious purposes.
Unconditional: The settlement of the property in waqf must be unconditional and absolute. ie property cannot be taken back
Irrevocable: Once created, the waqf cannot be revoked.
Inalienable: The property cannot be sold, transferred, or encumbered.
Owner of the property: The waqf must be the owner of the property.
Soundness of mind and majority: The person making the waqf must be of sound mind and a majority.
Capacity to transfer ownership: The dedicator must have the legal right to transfer ownership of the property

Objects of waqf

Will (Wasiyat)

Legal document that outlines how a person's assets and property should be distributed after their death
Terms:
1. Testator: The person who makes the will
2. Beneficiary: The person who receives the assets and property
3. Executor: The person who carries out the will
4. Bequeathable third: A Muslim can bequeath(leave property to a person by will) up to one-third of their estate through a will.
5. Abatement of legacies: if 1/3rd of property is bequeathed, the share of beneficiaries is reduced each by 1/3rd.

Can a Will be Contingent or Conditional

A contingent or conditional will is void.
A contingent or conditional will is a bequest(legacy) that is dependent on a contingency(a future event or circumstance) or an event that may or may not happen.
For example, A gift to a wife, and then to her children after her death, would be considered a contingent gift

Law of inheritance

Special features of the Muslim law of inheritance

1. Heirs' responsibilities: Heirs are responsible for paying off the deceased's debts and charges, as well as legacies up to one-third of the estate
2. Rights of females: Equal rights to sons in ancestral property.

Shia vs Sunni Law

Acts

Shariat Application Act, 1937