Family Law II 1 Qa Answers
Family Law II 1 Qa Answers
Family Law II 1 Qa Answers
Family Law-II Mohd. Law & Indian Succession Law (Karnataka State Law University)
MODEL ANSWERS
Vice Principal
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period. Prophet started to get the divine messages from God (Allah) from the
609 AD, since then prophet began to get divine messages, & these divine
messages were being communicated to the people of Mecca from time to
time, & those people did not believe in the messages of Allah given to them
& also disbelieved everything hat he said about Allah to them, the first task
of prophet Mohammed was to make them believe in the messages & the
existence of the only God (Allah). The result of that, most of the revelations
was of religious or spiritual in nature & it did not contain any positive law.
In 622 AD prophet Mohammed went to Medina where the messages of God
were already revealed at Mecca were very easily accepted & followed. In the
revelations at Medina, prophet generally laid the principles to regulate the
conduct of the people i.e. the positive law they had been revelations solving
each & every problem of the society this continued till the death of prophet
most of the law making revelations were made between 622 & 632 AD.
Laying down rules of the positive law were collected & contained in
the holy book called Quran.
The second period from 632-661:
This period was called the period of first four caliphs of Islam.
Prophet during his time had been an absolute authority on law & religion.
He was very spiritual as well as administrative head of the Muslim state.
After his death the question was about his successor. Majority of them
favored election & accordingly elections were held in which Abu Bakar was
elected, hence Abu Bakar became the first caliph & heded the community of
Muslims, he was very popular among the people even during the life of
prophet. Abu Bakr died in 634, & after him Omar was elected as the second
Caliph, Omar was the chief for 10 years & was assassinated in 644 AD.
After him Osman was the third caliph after elections, he headed the
community for 12 years but he was also assassinated by the opponents & Ali
became the fourth Caliph. Ali too was killed in 661 AD. The four caliphs are
known as the rightly guided caliphs they are also called as Khulfi-i-Rashidin
because they have the privilege to be very close companions of prophet.
After the death of prophet the divine messages were in a scattered
form, some of them were only in the memories of the people.
Distinguishable feature of this period is that all the divine messages were
collected arranged subject wise & written to give a final shape. This
collection of divine messages is called Quran the Holy book of Muslims, the
first compilation was done by Zaid & during the third caliphs time i.e.
Osman he asked Zaid to once again revise the holy book & the earlier
version of Quran was destroyed. The only authentic version of Quran
available to us is the Osmans compilation. Another feature of this period is
that the traditions of prophet were strictly followed. In this stage the only
source of law was the Quran & the traditions of prophet.
The third period (661-900AD) : Ali was appointed the 4th caliph & was the last of
the rightly guided caliphs , after death of Ali Hussains son was made the caliph ,
but Hassan being very pious & like saint did not want to involve himself into
administration he voluntarily resigned , after him the Muavia became the next
caliph of the Muslim world, from him started the Umaiyad dynasty . During his
time two events took place, one is the seat of caliphate was shifted from Medina to
Damascus & secondly the office of caliph which had been elevated was made
hereditary. Muavias son Yezid was made the next caliph. Although Hassan son of
Ali was not involved in administration was poisoned to death, subsequently Husain
was also killed at Karbala, during the rule of the Umaiyad’s caliphate became a
regular kinship & the kings were interested in capturing & expanding the empire
than development of law. In 750 AD the Umaiyads were captured by the Abbasids
who were the descendents of the prophet uncle Abbas & made they capital as
Bagdad. These too did not contribute much towards law. Further the exposition of
law was taken by the learned scholars of at Mecca &Medina & Kufa, the study of
law by individual scholars brought lots of conflicting opinions. Each scholar began
to claim his interpretation to be correct one. The academic differences gave birth to
various sects among the sunnies , similarly the shias were divided into various
sects , during this period only authoritative traditions were taken to be as
law .where law was not avaluable in the text of Quran or the traditions’ a
theoretical expansion of law was undertaken by the jurists ( ijma) & the analogical
deductions (Quias) . Both the methods were found to be superb juristic approaches
to finding of the law for the society. New concepts in the juristic sciences such as
equity, reasoning, public welfare etc... Were also introduced during this period.
Fourth period (900-1924) : in this period the Abbasids ruled for 5 centuries & the
sunnie were overthrown by the Mongols in 1258 AD for some for some time the
sunnie clan remained without any caliph in 1261 AD Abdul Khasim was made the
caliph at Cairo . The feature of this period was that the caliphs did not have any
administrative power. In the beginning of the 16th century Salem I was invited to
head the community. Therefore the caliphate was passed to Ottomans &
Constantinople became the Dar-ul-Kalifa. Subsequently the sultanate of Turkey
was abolished by Mustafa kamal Ataturk in 1922 & the caliphate was abolished
forever in the year 1924 AD. From the point of view of development of Muslim
law, this period is not significant at all because at this stage further exposition of
law had stopped. As a result of this it was such that what was already laid down as
rule of development of doctrine of Taqlid (imitation) under this doctrine the
opinions of the great jurists were followed by the scholars of this period without
anything new to it . Some popular Fatwa’s were formulated they were opinions of
the scholars.
With the abolition of the Caliphate in 1924, began the modern period of Islamic
law. This continued even after 1924 there was no caliph as a religious head to
examine & execute the traditional law of Islam. The Islamic law was separated
from the religion. The Muslim law was viewed judicially. Muslim law was largely
influenced by the modern Islamic Countries like Turkey, Tunisia, and Egypt etc …
to codify the law in such manner that the inherent character of Shariath being
preserved, the law is formulated according with the requirements of the present
society. Another significant feature is that all aspects of human conduct were
regulated by the traditional Islamic law. Before the establishment of the British
rule in India the Mughals applied Muslim Law as the law of the land, to all aspects.
After the British they changed all the system by enacting a number of statutes.
Wakf means detention according to law wakf means detention of property so that
its produce & income is always available for religious & charitable purposes. Wakf
has derived its origin from the traditions of the prophet, during the period Omar
constituted a wakf of his land, since then the practice of wakf is continued for
several centuries & it has become an important part of the religious life & social
economy of Muslim society .In Islam it is believed that after constitution of wakf
its property is owned by the Almighty (God) & it reaches beyond the human
activity .After this transfer i.e. after giving ownership to God no person has the
authority to transfer the property . In this manner the ownership of property in a
wakf is vested in God. Where as its benefits or produce is given regularly for
Section 2(1) of Musalman Wakf Validating Act 1913 defines Wakf; it means wakf
is permanent dedication of property by a person professing musalman faith, for any
purpose recognized by Muslim law as religious, pious or charitable.
Abu Yusuf & Imam Muhammad define Wakf as, it is a permanent dedication of a
specific thing in the implied ownership of God when the appropriators’ right is
extinguished, it becomes the property of God for the advantage of his creature.
The person who constitutes the wakf of his properties is called the founder of wakf
or Wakif. The wakif must be a competent person at the time of dedicating the
property in wakf, for being competent wakf a person must possess the capacity, as
well as the right to constitute the wakf.
Under Muslim law, wakf must not be un-Islamic, if the object is un-Islamic, the
wakf is void. Wakf may be created under 3 modes, dedicating the property
immediately or inter-voivoce, by dedicating the property by will i.e. testamentary
wakf & by immemorial users.
Wakf may be either public private. When the beneficiaries are from the members
from the founder’s family or his descendents the wakf is private, a private wakf is
also called as family wakf. Through the family wakf, the founder may make
provisions for the maintenance of his children and descendents of coming
generations. The origin of such wakf was tracked back to the traditions of prophet.
There are several other traditions in which the prophet allowed the creation family
wakf. According to him the support of one’s family is & children was the first duty
& necessity of every Muslim. The philosophy of Islam has been that provision for
maintenance of one’s own parents & children must be made obligatory so that they
must be made obligatory so that they may not be burdened on the society. If the
children get into wrong habits, when they have nothing for themselves they would
become the liability of the society. In order to prevent such unpleasant situations, a
Muslim is allowed to make adequate arrangements for the maintenance of his
children & descendents through the medium of trust. According to Muslim law
making provisions for the maintenance, comfort, & dignity of one’s own children
is an act equal to that of charity.
The nature of family wakf is been observed by the Supreme Court of India that in a
wakf al aulad, the ultimate result is reserved to God but the beneficiaries & the
Income of the property is used for the maintenance & support of the founder & the
descendents, in case if the wakf becomes extinct the wakf becomes a public wakf
& the property is vested in the God. However the courts in India have recognized
family Wakf subjected to certain limitations. But the judicial limitations regarding
the nature & extent of the charity referred in such wakf have created certain doubts
as regards its applicability. The Musalman Wakf Validating Act 1913 was enacted
to remove these doubts. This legislation clearly lays down the provisions of
Muslim law on this point.
The law relating to Wakf alal-aulad under two separate heads law prior to the Act
of 1913 & law after this enactment. Before 1913, the law relating to family wakfs
was very strict. A family wakf in which they was no provision also for some
charity or benefits to the poor was never regarded as valid wakf .According to the
Anglo Indian courts it laid down that for a valid Wakf –alal-aulad it is necessary
that together with the maintenance & support of the family, they should also be
some religious & charitable work from the income of the wakf property.
Application of the whole of the property only for the benefit of founder’s children
& descendents was not possible in the name of the family-wakf. Before 1913, the
law relating to wakf –alal-aulad this can be summarized as follows.
The above mentioned conditions for a validly of family-wakf s was laid down by
Anglo Indian Courts in Abdul Fata Mohammed case, is a very good example of the
family-wakf where gift to charity is illusionary because of its remoteness. This is a
leading case on the law relating to wakf –alal-aulad before commencement of wakf
validating Act 1913.
The family –wakf is now been governed under the Wakf Validating Act 1913. This
enactment has removed the strict conditions regarding for the validity of the family
wakf. Under this legislation it is now lawful for a Muslim to constitute a family
wakf for the benefit of his children or family
Without any concurrent & substantial gift to charity. The relevant provisions
regarding family wakf are given under Sec 3 & 4 of the Act.
Q 3. Explain the difference between the sunnie law & Shia law
regarding marriage.
Under the Muslim law marriages are a civil contract for legalization of
children.
The nature of the marriage is that it is a contract in the eyes of law, &
not a sacrament .Besides being a civil contract the marriage in Islam is
also a social & a religious institution. A Muslim marriage is considered
to be a contract because the element which constitutes a marriage & the
manner in which it is completed is almost similar to that of a civil
contract.
The powers & functions of the guardians of minors’ person & property
are different. Under the personal law the following persons are
recognized as legal guardian of the minor’s property,
1. Father
2. Executer appointed by the father in his will
3. Paternal Grand father
4. Executor appointed by the executor of the Grand Father.
guardian of a minors property under the Guardian & Wards Act 1890.
Under the Muslim law the only relative who could act as the guardians
of the minors’ property is the father & the grandfather.
Earlier to the decision of the SC in the year 1994, in the year 1979, In
Gurubax Singh V/S begum Rafiya , the validity of sale of agriculture
land by a minor Muslim entered into by his mother was in question . The
Madhya Pradesh HC held that, the agreement cannot be enforced
because it was made by a minor & his mother was not entitled to enter
into the terms of transaction on behalf of the guardian. Further the court
held that the mother cannot be a legal guardian to the property of the
minor.
may perform &do all reasonable & proper acts for the realization
protection of the minors property .
The legal guardian to deal with the properties of the minor depends on
the nature of the property i.e. whether the property is movable or
immovable. It also depends on the nature of the transfer of the property
by such guardian i.e. whether it is a sale, mortgagee or lease etc in
Muslim la the transfer of movable property is very wider compared to
that of the immovable property, which is very limited.
The legal guardian’s right to mortgage the minor’s properties is the same
as that of the sale.
Under the Muslim law the guardian is entitled to sell, mortgage, and
pawn etc the movable property of his ward, provided it is urgent in the
need of the minor.
The testamentary guardian has the same power as that of the legal
guardian, as for the property of the minor is concerned the testamentary
guardian has the same powers as that of the father or the grandfather. As
the matter of fact the testamentary guardian are supposed to be the
substitutes of the natural guardian.
The term domicile is not defined in the act. The domicile of a person is
the place where he has his true, fixed, permanent home therefore,
essential to constitute domicile.
a. Residence.
b. Intention of making it a home of the party.
The domicile must be acquired by residence, but residence at the
place does not necessarily make it a place of domicile, in as much
as mere resistance without any intention of making it a permanent
home would not be sufficient. Domicile is the country in which is
The effects of the grant is considered under sec 271 & 273 probate of a
will establishes the will from the death of the testator , & renders valid
all intermediate acts of the executor as such .
The powers of the executor & the administrator is dealt under sec 305 to
315 , he has the same power to sue in respect of all causes of action that
survive he deceased , & may exercise the same power for the recovery
of the debts as the deceased had when living .under sec 305 . All rights
of actions of or against the deceased, survive to or against the executor
or administrator except the course of action for deformation, assault as
defined under the IPC, personal injuries not causing death of the person
& the case where after the death of the party, the relief sought could not
be enjoyed or granting of it would be nugatory.
Section 307 the executor or the administrator has the powers o dispose
of the property of the deceased in such manner as he thinks fit.
Section 308 , an executor of the administrator may incur expenditure to
on any act necessary for the proper care & management of the estate , or
with sanction of the High Court or any religious , charitable 7 other
objects & on the improvement of the estate .
The duties of the executor & the administrator are delth under sec 316 to
330.
According to the provisions of the act he has to provide funds for
the performance of the funeral of the deceased suitable for the condition
if there is suitable condition.
Court of the land , any appeal shall preferred before the expiry of 30
days from the date of passing of orders for the Family Court .
1. Option of puberty
Under the Muslim law a minor on attaining the age of puberty , has got
the right to approve or disapprove his or her marriage which is
contracted by guardians .who was neither father nor grandfather . This is
called the right of exercising the right of Option of Puberty, marriages of
minors contracted by such guardians are deemed to be voidable at the
option of such minors. Any of such persons choose to repudiate the
marriage by exercising the right of option of puberty then the marriage is
dissolved with immediate effect. On the other hand the minor approves
the marriage it is considered as a valid marriage since its very beginning.
The exercise of this right is not compulsory, when the parties do not
exercise such right then it is presumed that he or she has approved the
marriage.
The wife can exercise option of puberty even if the marriage was
contracted by her father or her grand father. Before 1939, a Muslim wife
was not entitled to exercise option of puberty if the marriage was
contracted by father or her grand father. This has been modified by the
Dissolution of Muslim Marriage Act 1939. Section 2(vii) of this act
provides the Muslim wife is entitled to obtain decree for dissolution of
marriage, on the grounds that her marriage was contracted by her father
or her guardians during her minority.
2. Privilege wills :
Under the Indian Succession Act 1925 wills are divided into two
categories, privilege wills & unprivileged wills.
The mode or execution of the privilege has been delth under sec 66 of
the act. There are six rules for executing the privilege wills,
3. Succession certificate.
the heir of the deceased, but only furnish him with an authority to
collect the debts allow the debtors to make the payment to the
grantee without incurring any risk. The succession certificate
empowers the grantee to collect the debts & securities due to the
deceased & mention in the certificate. A succession certificate can
be granted under section 373 of the act, a succession certificate can
be granted, if the judge decides the right belongs to the applicants,
& if the applicants appeared to him to have a prime facie the best
title. The succession certificate cannot be granted to any, with
respect to any debts or security to which a right is required to be
established either by probate or letter or administration. Except in
case of the Indian Christians or where there is a previous certificate
or letter of administration already in force. The district judge
provided the deceased ordinarily resided at the time of his death, or
hand any part of his property within his jurisdiction or any inferior
court, if invested by the state government with the powers of a
District Court may grant a succession certificate.
The object of the act of 1869 was to place the matrimonial law
administered by the High Court, in the exercise of they original
jurisdiction on the same footing administered by the court for divorce &
matrimonial cases.
1. Committing of adultery
2. Has ceased to be Christian by conversion to another
religion.
3. Has been of incurable of unsound mind for a continuous
period of not less than two years immediately of
presenting of the petition.
4. Has for the period of not less than two years immediately
preceding the presentation of the petition, been suffering
from virulent & incurable form of leprosy.