Family Law 1

Hindu Law Q. Discuss the sources of Hindu Law. Hindu Law From thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In this modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Application of Hindu Law A precise definition of Hinduism does not exist. Hence, it is impossible to define a fixed criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is used. Further, in this land, several religions have been born and they they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered to be Hindu with respect to application of Hindu Law. 1. Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere declaration and actions are enough for becoming a Hindu. 2. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian. 3. Persons who are not Muslim, Christian, Jew, or Parsee by religion. 4. Persons who are not governed by any other religious law will be governed by Hindu Law.

Origins of Hindu Law It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas.

Sources of Hindu Law Sources of Hindu Law can be divided into two parts - Ancient and Modern.

1. Ancient Sources Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into four categories: A. Shruti Shruti means "what is heard". It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas - rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of women from inheritance, and partition but these are not very clearcut laws. During the vedic period, the society was divided into varns and life was divided into ashramas. The concept of karma came into existence during this time. A person will get rewarded as per his karma. He can attain salvation through "knowledge". During this period the varna system became quite strong. Since vedas had a divine origin, the society was governed as per the theories given in vedas and they are considered to be the fundamental source of Hindu law. Shrutis basically describe the life of the Vedic people. The vedic period is assumed to be between 4000 to 1000 BC. During this time, several pre-smriti sutras and gathas were composed. However, not much is known about them today. It is believed that various rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into existence. B. Smruti Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a written memoir of the knowledge of the sages. Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the study of vedas and the incorporation of local culture and customs became important. It is believed that many smrutis were composed in this period and some were reduced into writing, however, not all are known. The smrutis can be divided into two - Early smritis (Dharmasutras) and Later smritis (Dharmashastras). Dharmasutras The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate the shakhas to which they belong. Some of the important sages whose dharmasutras are known are : Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu. They explain the duties of men in various relationship. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas and local customs.

Gautama - He belonged to Sam veda school and deals exclusively with legal and religious matter. He talks about inheritance, partition, and stridhan. Baudhayan - He belonged to the Krishna Yajurved school and was probably from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal uncle's daughter. Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya marriage. Vashistha - He was from North India and followed the Rigveda school. He recognized remarriage of virgin widows.

Dharmashastras Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However, they were a lot more systematic and clear. They dealt with the subject matter in three parts   

Aachara : This includes the theories of religious observances, Vyavahar : This includes the civil law. Prayaschitta : This deals with penance and expiation.

While early smrutis deal mainly with Aachara and Prayaschitta, later smrutis mainly dealt with Vyavahar. Out of may dharmashastras, three are most important. Manusmriti This is the earliest and most important of all. It is not only defined the way of life in India but is also well know in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the the first human. This was probably done to increase its importance due to divine origin. Manusmriti compiles all the laws that were scattered in pre-smriti sutras and gathas. He was a brahman protagonist and was particularly harsh on women and sudras. He holds local customs to be most important. He directs the king to obey the customs but tries to cloak the king with divinity. He gives importance to the principle of 'danda' which forces everybody to follow the law. Manusmriti was composed in 200 BC. There have been several commentaries on this smruti. The main ones are: Kalluka's Manavarthmuktavali, Meghthithi's Manubhashya, and Govindraja's Manutika. Yajnavalkya Smriti Though written after Manusmruti, this is a very important smruti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes

most of the points given in Manusmriti but also differs on many points such as position of women and sudras. He was more liberal than Manu. This was composed in around 0 BC. Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa. Narada Smriti Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general, it is based on Manusmriti and Yajnavalkya smriti but differ on many points due to changes in social structure. He also gives a lot of importance to customs. This was composed in 200 AD. C. Commentaries and Digest: After 200 AD, most the of work was done only on the existing material given in Smrutis. The work done to explain a particular smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smruitis. As noted ealier, some of the commentaries were, manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means 'New Word' and is paramount source of law in all of India. It is also considered important in Bengal and orissa where it relents only where it differs from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in smritis. The basic objective of these texts was to gather the scattered material available in preceeding texts and present a unified view for the benefit of the society. Thus, digests were very logical and to the point in their approach. Various digests have been composed from 700 to 1700 AD. D. Customs Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrutis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types: 1. Local Customs - These are the customs that are followed in a given geographical area. In the case of Subbane vs Nawab, Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law. 2. Family Customs - These are the customs that are followed by a family from a long time. These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath vs Heeramonie and Bikal

vs Manjura, Privy Council observed that customs followed by a family have long been recognized as Hindu law. 3. Caste and Community Customs - These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws. For example, most of the law in Punjab belongs to this type. Custom to marry brother's widow among the Jats is also of this type. 4. Guild Customs - These are the customs that are followed by traders. Requirements for a valid custom 1. Ancient : Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness, however, 40yrs has been determined to be a ancient enough. A custom cannot come into existence by agreement. It has to be existing from long before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu. In the case of Rajothi vs Selliah, a Self Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom, since that is a function of legislature. 2. Continuous: It is important that the custom is being followed continuously and has not been abandoned. Thus, a custom may be 400 yrs old but once abandoned, it cannot be revived. 3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly what it is. 4. Reasonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values. 5. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter has been held invalid. In the case of Chitty vs. Chitty 1894, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another was held to be not immoral. In the case of Gopikrishna vs. Mst Jagoo 1936 a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of husband was held to be not immoral. 6. Not against public policy: If a custom is against the general good of the society, it is held invalid. For example, adoption of girl child by nautch girls has been held invalid. In the case of Mathur vs Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy. 7. Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case of Prakash vs Parmeshwari, it was held that law mean statutory law. Proof of Custom The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove

a custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to notice of the court repeated, no further proof is required. existence of a custom can also be proved through documentary evidence such as in Riwaz-i-am. Several treaties exist that detail customary laws of Punjab. Usage and Custom The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts.

Modern Sources Hindu law has been greatly influenced by the British rule. While it might seem that the British brought with them the modern concepts of equity and justice, these concepts existed even in dharamashastras albeit in a different form. Narada and Katyayana have mentioned the importance of dharma (righteousness) in delivering justice. However, we did not have a practice of recording the cases and judgments delivered. So it was not possible to apply stare decisis. This process started from the British rule. The following are the modern sources of Hindu law: 1. Equity, Justice, and Good conscience Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of 'reasonableness' must prevail. According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on 'Nyaya'. This principle has been followed by the privy council while deciding cases. 2. Precedent The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state. 3. Legislation In modern society, this is the only way to bring in new laws. The parliament, in accordance with

the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages. Also, most of the Hindu laws have now been codified as mentioned in the beginning.

Critical Comments In the past, due to the vast size of the country, various kinds of customs prevailed. Further, due to lack of effective communication, there were several contradictions among the practices and the judgment delivered. Thus, the country went on the way to being divided. Instead of becoming the law of the land (lex-loci), Hindu Law became the law of a person. However, this can only be an excuse for the past. Today, because of media and communication, judgement delivered in one place is felt in another. A practice or custom followed in a village can be repugnant to people in cities. We must take advantage of this situation and put the country on the course of a unified law. Instead of being a country of personal laws, we should true have a single law of the land. Time is ripe for implementing article 44. This will ensure the future unity and integrity of our country.

Q. Define the term "Guardian" under Hindu Minority and Guardianship Act 1956. What are the powers and liabilities of a guardian? How and when can a testamentary guardian be removed? In Hindu dharmashastras, not much has been said about guardianship. Due to the concept of joint families, a child without parents was usually cared for by the head of the joint family. Further, it was well accepted that the king is the guardian of all the orphans. Thus, no specific laws were required regarding guardianship. During British period, guardianship was primarily based on the extension of paternal authority. Thus, after parents, elder brothers,paternal uncles, and then maternal relations used to look after the interests of the minor. The British also introduced the concept of testamentary guardians in India. The concept of guardianship has changed from paternal power to the idea of protection in modern times and the HMG Act 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core. A person below the age of 18 yrs is considered to be a minor as per Section 4 of HMGA 1956. Such a person is not capable of taking care of himself or of handling his affairs and thus requires help, support, and most importantly, protection, which is usually provided by the parents. However, in many unfortunate cases, parents are not available and in those cases other relatives or persons come to the rescue. Thus, parents and other people who look after a minor are called as guardians in general parlance. Sec 4 of HMGA 1956 defines Guardian as follows:

Definition as per Section 4 of HMG 1956

Guardian means a person having the care of a person of a minor or of his property or of both the person and his property. This includes:    

natural guardian guardian appointed by the will of a natural guardian (testamentary guardian) a guardian appointed or declared by court a person empowered to act as such by the order of Court of Wards.

This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor without authority of law, can also be a guardian under the above definition and is called a de facto guardian. De facto guardians include self appointed guardians and guardians by affinity, such as guardians for a minor widow. However, a person does not have right to sell or deal with minor's property if he is merely a de factor guardian as per section 11.

Natural Guardian (Sec 6) Section 6 of HMG Act 1956 defines only three natural guardians:   

For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less than 5 yrs of age will be with the mother. For an illegitimate boy or a girl, the mother, and after mother, the father. For a married woman, the husband.

It further states that no person shall be entitled to be a natural guardian of a minor if  

he ceases to be a Hindu or he renounces the world completely by becoming a sanyasi.

Here, by father and mother, natural father and mother are meant. Step father or step mother do not have any right to guardianship unless appointed by court. As per section 7, natural guardianship of an adopted son passes on to his adoptive father and after adoptive father, to adoptive mother. Position of Father Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a guardian after his death even if the mother was alive. This is not the case now. Further, as held in the case of Lalita vs. Ganga AIR 1973 Raj., a fathers right to guardianship is subordinate to the welfare of the child. In the case of Githa Hariharan vs RBI AIR 1999 SC held the mother to be the natural guardian in spite of the father being alive and further held that the word "after" means "in the absence" rather than "after the life" of the father. Thus, if a father is incapable of protecting the interests of a minor due to any reason, he can be removed from guardianship. Position of Mother The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the

mother has right to custody of a minor less than 5 yrs of age. This does not mean that mother does not have the right to custody after 5 yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it was held that a mother's right to guardianship is not lost upon conversion to another religion if she is able to provide proper care to the minor. Further, in Kumar vs Chethana AIR 2004, SC has held that the mother's right to guardianship is not lost automatically after her remarriage. In all such cases, welfare of the child has to be considered above all including the convenience and pleasure of the parents. Position of Husband In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the guardianship of a minor wife belongs to the husband. However, due to section 13, a court may revert the guardianship to the father or mother depending on the best interests of the minor. Powers of a natural guardian (Sec 8) Section 8 of HMGA 1956 describes the powers of a natural guardian as follows: 

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 

A guardian can do any act, subject to provisions of this section, that are necessary or are reasonable and proper for the benefit of the minor or the benefit of the minors estate. But the guardian, in no case, shall bind the minor by a personal covenant. The guardian cannot, without prior permission from the court, o mortgage, charge, or transfer the immovable property of the minor by way of sale, gift, exchange, or otherwise. o lease the immovable property for a term more than 5 years or where the lease ends one year after the minor attains majority. Any sale of immovable property in violation of the above two points, is voidable at the insistence of the minor. The court shall not give permission for sale of immovable property unless it is necessary or clearly in the benefit of the minor.

These powers also include the following     

right in education right to determine religion right to custody right to control movement right to chastisement

In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held that the meaning of "necessity" and "advantage" of a minor are quite wide and the courts have the power to widen their scope as per the case facts before giving the permission. As per section 12, no guardian can be appointed for the undivided interest in the joint property of the minor. However, the court may appoint a guardian for the complete joint family if required. Custody of a minor Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to

be considered, though his wishes may be disregarded in his best interest. That a mother is preferred to father for custody is not right. Better economic condition of the father than maternal grandfather is considered to be in favor of the father. In Kumar vs Chethana AIR 2004, SC has held that mother's remarriage is not a sufficient cause in itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant. To ensure the welfare of the child, the custody may even be given to the third person as was given to the mother and grand father by SC in case of Poonam vs Krishanlal AIR 1989. In the case of Re Madhab Chandra Saha 1997, a father was never active in the interest a minor and after a long time demanded the guardianship. His claim was rejected. In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living with friends and may beget children from others, was not considered appropriate for custody in the minor's interest. Power over minor's property In general, a guardian may do all acts that are in the interest of the minor. A third party may deal safely with the guardian in this respect. However, this excludes fraudulent, speculative, and unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate the minor's property if it is necessary as determined by SC in Hanuman Prasad vs Babooee Mukharjee 1856. However, this rule has been restricted through sec 8, which mandates courts permission before alienating the minor's interest in the minor's property. Also, a guardian does not have any right over the joint family interest of a minor. In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of minor's immovable property without courts permission is voidable and not void ab-initio. It further held that Sec 60 of Limitations Act would be applicable when the minor repudiates the transaction. In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the consideration. Liabilities of a guardian     

Since the legal position of a guardian is fiduciary, he is personally liable for breach of trust. he is not entitled to any compensation unless explicitly specified in a will. A guardian cannot take possession of minor's properties adversely. must manage the affairs prudently. liable to render all accounts.

If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the guardian's liability comes to an end. Rights of a guardian A guardian has a right to  

represent the minor in litigations. get compensation for legal expenses from minor's property.

  

sue the minor after he attains majority to recover expenses. refer matters to arbitration if it is in the best interest of the minor. have exclusive possession of minor's property.

Removal of a guardian Court has the power to remove any guardian in accordance to section 13.   

ceases to be a Hindu. becomes hermit or ascetic. court can remove if it finds that it is not in the best interest of the child.

Testamentary Guardian (Sec 9) A person who becomes a guardian due to the will of a natural guardian is called a testamentary guardian. Section 9 defines a testamentary guardian and his powers. 

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For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any person to act as the guardian of the child after the death of the father. However, if the mother is alive, she will automatically become the natural guardian and after her death, if she has not named any guardian, the person appointed by the father will become the guardian. A widow mother who is a natural guardian, or a mother who is a natural guardian because the father is not eligible to be a natural guardian, is entitled to appoint a person to act as a guardian after her death. For an illegitimate child, the power of appointing a testamentary guardian lies only with the mother.

Powers A testamentary guardian assumes all powers of a natural guardian subject to limitations described in this act and to the limitations contained in the will. A testamentary guardian is not liable personally for the expenses and he can ask the guardian of the property of the minor to meet the expenses through the property. The rights of the guardian appointed by will cease upon the marriage of the girl.

Guardianship by Affinity In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the rightful guardian of a minor widow. However, this view has not been adopted by Nagpur HC. Madras HC also did not hold this view and held that the welfare of the child is to be considered first before anything else.

De Facto Guardian Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the minor merely on the ground of his being the de facto guardian. There is controversy regarding the status of a de facto guardian. Some HC consider that alienation by de facto guardian is void while alienation by de jure guardian is voidable (Ashwini Kr vs Fulkumari, Cal HC 1983),

while some HC have held that both are voidable (Sriramulu' case 1949). It is now well settled that de facto guardian does not have the right to assume debt, or to gift a minor's property, or to make reference to arbitration.

Welfare of the minor is of paramount importance (Sec 13)  

While appointing or declaring a guardian for a minor, the count shall take into account the welfare of the minor. No person shall have the right to guardianship by virtue of the provisions of this act or any law relating to the guardianship in marriage if the court believes that it is not in the interest of the minor.

Thus, under this doctrine, any guardian may be removed depending on the circumstances on per case basis and the court may appoint a guardian as per the best interests of the minor.

Q. What are the requisites/essential conditions of a valid adoption according to Hindu Adoption and Maintenance Act 1956? What are the effects of a valid adoption? Can a valid adoption be canceled? Historical Perspective Since the Vedic period, Hindu society has given a lot of importance to male child. It was said that a male child saves the father from 'put' hell, hence the male child is called Putra. This was the main reason which has prompted the son-less to adopt a male child. Manusmriti says that when the natural father and mother give wholeheartedly their son with the offering of water to another person in distress, it is called Dattak. Vashistha has given several guidelines on dattak. It says that the father and the mother of an offspring have complete right on selling or giving the offspring to another. A Dattak cannot be taken from the person who has only one son. A child whose kinsmen are not known cannot be taken as dattak. A woman had no right to adopt. Sounaka has said metaphorically that a Dattak son must be a reflection of the father, which means that a Dattak can only be taken from a mother whom the person could have married before her marriage. Thus, one could not adopt doughter's son, sister's son, or mother's sister's son. Thus, the practice of Dattak in the old days had been practiced mostly for religious reasons. This

is also evident from the fact that only a male child was to be adopted because only he can perform the religious duties for the father. Slowly, the secular reasons such as continuance of the family name also became important. More recently, ulterior motives such as changing the course of inheritance of property has also prompted people to adopt. Based on the above three authors and many other customs, the Dattak ceremony primarily involved a Dattak grahan, i.e. the actual giving and taking of the child and a Dattak homam. However, there were several controversies because there was no one standard rule. So, in 1956, the Hindu Adoption and Maintenance Act was enforced which standardized as well as modernized the rules and process for adoption. Some important features of this act are: 1. Adoption has been made a secular thing. There is no necessity of any religions ceremonies or other religious aspects. 2. Both a man and a woman can adopt on their own right. 3. Both a boy or a girl can be adopted. 4. Orphans, out of cast children, or children in close relation, can also be adopted. 5. Widow, widower, and bachelors can also adopt. 6. In the case of Naidu vs Naidu AIR 1970, SC has held that the court need not look into the motives of adoption.

Requisites for Adoption Section 6 of the HAM Act 1956 lays down the following 4 requirements 1. 2. 3. 4.

The person who is adopting must have the capacity and the right to adopt. The person who is giving the child in adoption must have the capacity to give. The person who is being adopt must be eligible to be adopted. The adoption must satisfy all the rules given in this act.

Section 7 describes which Hindu Male is capable of adoption: 1. Any Hindu male who has attained the age of majority and who is of sound mind can adopt. 2. If he is married, he must take consent from his wife. If he has multiple wives, consent from all the wives is required. In the case of Bhooloram vs Ramlal AIR 1989, MP HC has held that if the consent of the wife living with the husband is obtained but the consent of the wife living away has not been obtained then the adoption is void. 3. A wife's consent is not required is the wife has completely renounced the world and has become a Sanyasin, has changed her religion and has ceased to be a Hindu, or has been proven by a competent judge to be mentally unsound. Section 8 describes which Hindu Female is capable of adoption:

1. She must be a major and must not be mentally unsound. 2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T Shankar, AIR 2001, SC has held that consent from a co-widow is not required because a widow can adopt on her own right. 3. A married woman is allowed to adopt only if the husband has renounced the world completely, or is of unsound mind, or has ceased to be a Hindu. This is a big change from pre-act situation. Earlier, a woman had no right to adopt. Section 9 describes who has the capacity to give a child in adoption 1. Only the natural father has the right to give a legitimate child in adoption. However, the father must get consent from the natural mother unless the mother has been declared by a competent court to be of unsound mind, has renounced the world, or has ceased to be a Hindu. 2. If the father is mentally unsound, or has renounced the world, or has ceased to be a Hindu, or is dead, the mother can give the child in adoption. 3. Only the mother of an illegitimate child has the right to give the child in adoption. However, she cannot adopt the child herself because a giver cannot be taker at the same time. 4. If both the natural mother and father are dead, or have renounced the world, or have abandoned the child, or are of unsound mind, a guardian, testamentary or court appointed can give a child in adoption, including to the guardian himself, upon prior permission of the court. 5. While granting permission, the court must see the welfare of the child and the wishes of the child depending on the child's age. In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto. Thus, a manager or secretary of an orphanage, or the person in whose case the child is, of the person who has brought up the child can give the child in adoption. Section 10 describes who is capable of being adopted 1. The child must be a Hindu. 2. The child must not have already been adopted. 3. The child must be unmarried. However, if a custom to the contrary exists, such an adoption may take place. 4. The child must be less than 15 yrs of age. However, if a custom to the contrary exists, such an adoption may take place. There is no restriction on who can be adopted regarding Sapinda relationships. Even a daughter's son, or sister's son can be adopted. Section 11 describes some other conditions for a valid adoption

1. If a male child is being adopted, the person who is adopting must not already have a son, son's son, or son's son, whether natural or adopted. 2. If a female child is being adopted, the person who is adopting must not already have a daughter or son's daughter. 3. If a male is adopting a female child, then their age difference must be greater than 21 yrs. 4. If a female is adopting a male child, then their age difference must be greater than 21 yrs. 5. Two persons cannot adopt the same child. 6. The actual giving and taking of the child must happen. Only mere intention of giving and taking is not enough. The child must be transfered from the home of the natural parents, or in case of orphans, from the place he grew up, to the adoptive parent's home. The ritual or ceremony of Dattak homam is not necessary. In the case of Sandhya Supriya Kulkarni vs Union of India, AIR 1998, these conditions were challenged on the ground that they violate fundamental rights, however, SC held that personal laws do not fall under the ambit of part III of the constitution.

Effects of Adoption Section 12 says that an adopted child is deemed to be a natural child of his adopted parents for all purposes. All relations with the natural parents and family are severed and new relationships with the adopted parents are established. Only exception is that the adopted child cannot marry anybody from his natural family in contravention of Sapind and prohibited relationships. It further says that the adopted child is not divested of his property that has vested in him before adoption and that an adopted child cannot divest anybody of his vested property after adoption. An important change from the old law here is that the concept of "relating back", which means that when a widow adopts a child the adoption is considered to be done from the date the husband died, has been abolished. However, in the case of Sawan Ram vs Kalawati AIR 1967, SC has held that the deceased father is sill considered the adoptive father. Section 13 says that subject to any ante-adoption agreement, the adoptive parents do not lose their right of alienation of their property after adoption. Section 14 describes the position of mothers in certain situations: 1. When a male adopts with the consent of the wife, the wife becomes the adoptive mother. 2. If a single adoptive father later marries, the wife of the adoptive father becomes the step mother. 3. If a single adoptive mother later marries, the husband of the adoptive mother becomes the step father. 4. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife becomes the adoptive mother and other wives become the step mothers. Section 15 says that a valid adoption cannot be canceled either by the adoptive father or mother. Neither can the adopted child renounce the adoptive parents and go back to the family of his birth.

Section 16 says that whenever any document made under any law in force at the time, purporting to record an adoption, and has been signed by the giver and taker of the child, is produced before the court, the court shall presume that the adoption has been made in accordance with the provisions of this act unless and until it is disproved. In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the plaintiff brought a suit for partition and possession. However, he failed to provide any proof of the adoption. His adoptive father was estranged from adoptive mother and the adoptive mother had asked for maintenance for herself but not for the adoptive son. There was no document or agreement. The plaintiff could not provide any essential details such as date of adoption or fixing of Muhurtam etc. Thus, SC held that there was no adoption and the alleged adopted son had no right in the property. Section 17 forbids receipt of any payment as a consideration for the adoption. If any such payment is taken, he shall be punishable by 6 months imprisonment and/or a fine or both.

Q. Who are "dependents" for the purpose of maintenance under Hindu Adoption and Maintenance Act, 1956? What do you understand by maintenance? In what cases a wife can claim separate residence without forfeiting her right to maintenance from husband? Historical Perspective Joint family system has been a main feature of the Hindu society since vedic ages. In a joint family, it is the duty of the able male members to earn money and provide for the needs of other members such as women, children, and aged or infirm parents. In Manusmriti, it has been said that wife, children, and old parents must be cared for even by doing a hundred misdeeds. HAMA 1956 codifies a lot of principles governing the maintenance of dependents of a Hindu male. Under this act, the obligation can be divided into two categories - personal obligation and obligation tied to the property.

Dependents based on personal obligation Personal obligation means that a Hindu is personally liable, irrespective of the property that he has inherited or his earnings, to provide for certain relations who are dependent on him. These relations have been specified in the following sections of HAMA 1956. Section 18(1) declares that whether married before or after this act, a Hindu wife shall be entitled to claim maintenance by her husband during her lifetime. Sec 18(2) says that a wife is entitled to live separately without forfeiting her right to claim maintenance in certain situations. 18(3) that a wife shall not be entitled to separate residence and maintenance of she is unchaste or ceases to be a Hindu. In the case of Jayanti vs Alamelu, 1904 Madras HC held that the obligation to maintain one's wife is one's personal obligation and it exists independent of any property, personal or ancestral. Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or illegitimate, and aged or infirm parents. 20(2) says that a child, legitimate or illegitimate, can claim maintenance from father or mother, until the child is a minor. 20(3) says that the right to claim maintenance of aged or infirm parents and unmarried daughter extends in so far as they are not able to maintain themselves through their other sources of income. In this case, a childless step-mother is also considered a parent.

Dependents based on obligation tied to property A person has obligation to support certain relations of another person whose property has devolved on him. In this case, this obligation is not personal but only up to the extent that it can be maintained from the devolved property. Section 21 specifies these relations of the deceased who must be supported by the person who receives the deceased property. 1. 2. 3. 4.

5.

6. 7.

8.

father mother widow, so long as she does not remarry son, predeceased son's son, or predeceased son's predeceased son's son until the age of majority. Provided that he is not able to obtain maintenance from his father or mother's estate in the case of grandson, and from his father or mother, or father's father or father's mother, in the case of great grandson. daughter or predeceased son's daughter, or predeceased son's predeceased son's daughter until she gets married. Provided that he is not able to obtain maintenance from his father or mother's estate in the case of granddaughter, and from his father or mother, or father's father or father's mother, in the case of great granddaughter. widowed daughter, if she is not getting enough maintenance from her husband's, children's, or father in law's estate. widow of predeceased son, or widow of predeceased son's son, so long as she does not remarry and if the widow is not getting enough maintenance from her husband's, children's or her father or mother's estate in the case of son's widow. illegitimate son, until the age of majority

9. illegitimate daughter, until she is married. Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. Thus, this obligation is to be fulfilled only from the inherited property and so it is not a personal obligation. 22(2) says that where a dependent has not received any share, by testamentary or intestate succession, he shall be entitled to maintenance from those who take the estate. 22(3) says that the liability of each heir is in proportion to the estate obtained by him. 22(4) says that a person who himself is a dependent cannot be forced to pay any amount of maintenance if the amount causes his share to reduce below what is required to maintain himself.

Maintenance Maintenance means the right of dependents to obtain food, clothing, shelter, medical care, education, and reasonable marriage expenses for marriage of a girl, from the provider of the family or the inheritor of an estate. The basic concept of maintenance originated from the existence of joint families where every member of the family including legal relations as well as concubines, illegitimate children, and even slaves were taken care of by the family. However, maintenance does not mean unreasonable expectations or demands. In the case of Ekradeshwari vs Homeshwar in 1929, Privy Council had enunciated certain principles in governing the amount of maintenance. It said that maintenance depends on a complete analysis of the situation, the amount of free estate, the past life of the married parties and the family, the requirements of the claimants, and a consideration regarding future changes.

How much maintenance Section 23(1) says that courts will have complete discretion upon whether and how much to maintenance should be given. While deciding this, the courts shall consider the guidelines given in sections 23(2) and 23(3). Section 23(2) says that that while deciding the maintenance for wife, children, and aged or infirm parents, the courts will consider: 1. 2. 3. 4.

the position and status of the parties. the reasonable wants of the claimants. If a claimant has a separate residence, is it really needed. the value of the estate and the income derived from it or claimant's own earning or any other source of income. 5. the number of claimants. Section 23(3) says that while determining the maintenance for all other dependents the courts shall consider the following points: 1. 2. 3. 4. 5.

the net value of the estate after paying all his debts. the provisions, if any, made in the will in favor of the claimants. the degree of the relationship between the two. the reasonable wants of the dependent. the past relations between the deceased and the claimants.

6. claimant's own earnings or other sources of income. 7. the number of dependents claiming under this act. Discretion of Court In the case of Mutyala vs Mutyala 1962 AP HC held that amount of maintenance cannot be a matter of mathematical certainty. Position and Status of parties In the case of Kiran Bala vs Bankim 1967 Calcutta HC observed the living standard of the wife, and her reasonable wants in determining the maintenance amount. Reasonable wants In the case of Kiran Bala vs Bankim 1967 Calcutta HC observed that the husband had a second wife and so the fact that the claimant is living separately will not go against her in determining the amount. In the case of Krishna vs Daimati 1966 Orrisa HC held that when a minor child lives with the mother, the necessities of the child constitute reasonable demands of the mother. Separate earning of the claimant Whether the claimant has separate earning on income is a question of fact and not a question of presumption. It cannot be, for example, presumed that a college educated girl can maintain herself. In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of 250/- PM from her father. This was not considered to be her income but only a bounty that she may or may not get. However, income from inherited property is counted as the claimant’s earning. Arrears of Maintenance In the case of Raghunath vs Dwarkabai 1941 Bom HC held that right of maintenance is a recurring right and non-payment of maintenance prima facie constitutes proof of wrongful withholding.

Wife's right to separate residence without forfeiting the right to maintenance Section 18(2) says that a wife can live separately and still claim maintenance from husband in the following situations. 1. Desertion: It the husband is guilty of deserting the wife without her consent, against wife's wishes, and without any reasonable cause, the wife is entitled to separate residence. In the case of Meera vs Sukumar 1994 Mad, it was held that willful neglect of the husband constitutes desertion. 2. Cruelty: If husband through his actions creates sufficient apprehension in the mind of the wife that living with the husband is injurious to her then that is cruelty. In the case of Ram Devi vs Raja Ram 1963 Allahbad, if the husband treats the wife with contempt, resents her presence and makes her feel unwanted, this is cruelty. 3. If the husband is suffering from a virulent form of leprosy. 4. If the husband has another wife living. In the case of Kalawati vs Ratan 1960 Allahbad, is has been held that it is not necessary that the second wife is living with the husband but only that she is alive.

5. If the husband keeps a concubine or habitually resides with one. In the case of Rajathi vs Ganesan 1999 SC, it was held that keeping or living with a concubine are extreme forms of adultery. 6. If the husband has ceased to be a Hindu by converting to another religion. 7. For any other reasonable cause. In the case of Kesharbai vs Haribhan 1974 Mah, it was held that any cause due to which husband's request of restitution of conjugal rights can be denied could be a good cause for claiming a separate residence as well as maintenance. In the case of Laxmi vs Maheshwar 1985 Orrisa, it was held that if the husband fails to obey the order of restitution of conjugal rights, he is liable to pay maintenance and separate residence. In the case of Sobha vs Bhim 1975 Orrisa, mere drinking habit is not a sufficient cause for separate residence. Section 18(3) says that a wife is not eligible for separate residence and maintenance if she is unchaste or has ceased to be a Hindu. In the case of Dattu vs Tarabai 1985 Bombay, it was held that mere cohabitation does not by itself terminate the order of maintenance passed under 18(2). It depends on whether the cause of such an order still exists.

Concept of Marriage - Sacramental or Contractual? Historical Perspective - Manu, ardhangini, marriage is an essential sanskara, man is incomplete without wife. Once performed, it cannot be dissolved. Modern Perspective - Civil contract. Can be dissolved. Cannot force to live together. Equality of sexes. Can't be done without consent.

Why is it Sacramental?

Why is it Contractual?

As per Contract Act 1872, contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even voidable only on that ground. In the case of Venkatacharyalu vs Rangacharyalu 1980, it was held that the person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage.

The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable.

Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without "saptapadi" is void. In the case of Dr. A N Mukherji vs State

Marriage is no more permanent since divorce is available by mutual consent.

1969, a person could not be convicted of bigamy because he performed 3 marriages without doing necessary ceremonies. Marriage is no more eternal since widow remarriage is permissible. Even now bachelors are not eligible to perform Marriage is no more holy because a marriage several religious ceremonies. Only married can be done without all the ceremonies such as couples are allowed. Thus, it still retains its vivah homam. Only saptapadi is required. sacramental property. No-fault divorce, as available in western countries, is not available in HMA 1955. Thus, breaking up of a marriage is very difficult. Conclusion: It is has a unique blend of sacramental and contractual characteristics.

Essential conditions of a valid Hindu marriage. Is there a provision for punishment for violating the conditions? Section 5 1. Section 5 (1) Must not have a spouse alive. Kanwal Ram vs H. P. - Essential ceremonies are a must for committing the offence of second marriage. Priya vs Suresh - Mere admission by the parties is not enough. Proof of essential ceremonies is required. 2. Section 5 (2) neither party is 1. incapable of giving consent due to unsoundness of mind. 2. though capable of giving consent, is unfit for marriage and procreation of children due to mental disorder. Alka vs Abhinash - MP HC held that "and" must be read as "or". 3. suffers from recurrent attacks of insanity. Balakrishna vs Lalitha - "Incurable" is not a requirement. Only recurrent attacks, irrespective of whether curable or incurable, provided enough ground. 3. Boy is over 21 and girl is over 18. Rabindra vs Sita - Marriage in contravention of this clause is, nevertheless, valid. 4. parties are not within degrees of prohibited relationship. 5. parties are not sapindas Punishment Section 17 says that section 494 (bigamy without concealment - 7yr + fine) and 495 (bigamy with concealment - 10 Yrs + fine) of IPC will apply for bigamy. Section 18(a): 15 days + 1000/- for contravention of 5(3) Section 18(b) : 30 days + 1000/- for contravention of 5(4) and 5(5)

What is the difference between Void and Voidable marriage? What are the consequences of a Void marriage? Void Defined by section 11

Defined by section 12

Grounds -

Grounds:

1. Performed in contravention of 5(i), 5(iv), or 5(v) 2. Ceremonies in section 7 not performed. 3. In contravention of section 15 - Divorce not granted yet or time to appeal has not elapsed.

1. Unable to consummate - Impotence (not same as Samar vs Snigdha - Full and complete penetrati degree of satisfaction is immaterial. Kanthy vs Harry - Unduly large male organ am Laxmi vs Babulal - Absence of vagina, even tho Jagdeesh vs Seela - Husband lived with wife for Held that it was because of incapacity, nervousne Shewanti vs. Bharua 1971 - Wife was sterile an intercourse. Held not impotent because capacity intercourse. 2. In contravention of 5(ii) - Mentally unsound. Alk 3. Consent obtained by force or fraud.

Force - Rice vs Rice - threatened with pistol. Fraud - Rama vs Mohinder 1996 - Did not tell t Fraud - Purbi vs Basudev 1969 - Husband's preFraud - Som Dutt vs Raj Kumar 1986 - Wife co 4. Girl was pregnant by some other person Mahendra vs Sushila 1965 -Girl's admission to Marriage does not exist at all.

Marriage is fully valid until it is declared void by the cou

No consequences of marriage - right in property, conjugal rights, maintenance.

Full consequences while marriage lasts.

No decree of court is necessary. Decree can be obtained by either person.

Court decree is necessary. Marriage can be avoided only annulment, marriage will remain valid. If one person die

If someone calls the wife a concubine, it will not amount to defamation.

Decree is given retroactively.

Effects of a void marriage Section 16 - Children of void (sec 11) or annulled voidable (sec 12) marriage, though termed legitimate under section 16, do not get any right in the joint family of parents. They have right in personal self earned property of parents. Spouses cannot claim any matrimonial reliefs. Illustration - A and B are brothers. W is B's wife but marriage is void. A dies without any

children. B can claim all of A's property. In the case of Sudarsan vs State 1988, it was held that this legitimacy is conferred only in cases when marriage is void on account of sec 11 and not if a marriage is void due to another reason such as lack of proper ceremonies.

Explain Judicial separation. What is the difference between Judicial Separation and Divorce? On what grounds can a decree of Judicial Separation be passed? Judicial separation is a state of marriage authorized by the court where a husband and wife do not live like a married couple. In many situations it becomes impossible for either spouse to live with the other person. At the same time, they either do not want a divorce or do not have enough ground for divorce. In such a situations, court may grant a decree of judicial separation. Judicial Separation Section 10 - Marriage still exists therefore cannot do adultery etc.

Divorce Section 13 - Marriage ends. Can remarry subject to sec 15.

Not obligatory for the petitioner to cohabit with Cannot be undone. the partner. Can be rescinded by petition of either party if court is satisfied. Grounds for Judicial separation are same as given in section 13(1), which are applicable for divorce. A wife has the grounds given in section 13(2) as well. These are given below under Divorce.

Section 13 (1) At fault Grounds (i)

Adultery -

Voluntary intercourse with third person. Does not include rape.

Vira Reddy vs Kistamma 1969 - One single act of adultery is enough for divorce or judicial separation. Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high probability is required. Sanjukta vs Laxmi 1981 - Circumstantial evidence is sufficient.

Cruelty Legal concept of cruelty has varied from time to time, place to place, and situation to situation. In early law, intention was considered an essential element of cruelty but in modern law it is not so. The intention of the law is to protect the innocent party from any harm -physical or mental. Scolding or nagging have also been considered as cruelty.

Definition There is no precise definition of cruelty because the term is so wide. Several situations and cases over past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane 1970 Bom, it was held that cruelty could be through words, gestures, or even by mere silence. A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was held that any conduct that poses a danger to life, limb, or health - physical or mental, or causes reasonable apprehension of such danger, is cruelty. Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension of danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion to the husband, causing his hospitalization, it was held to be cruelty even though she did not mean to hurt her husband because it caused reasonable apprehension of danger. However, now it is not required. The clause merely says, "if the respondent has treated the petitioner with cruelty". In the case of GVN Kameshwara Rao vs G Jalili 2002, SC held that it is not necessary that the act has caused a reasonable apprehension in the mind of petitioner. The emphasis will be on the act or conduct constituting cruelty. It further held that social status of the parties, their education must be considered while determining whether the act constitutes cruelty or not. Thus, what amounts to cruelty in one case may not amount to cruelty in another.

Intention to be cruel is not material Earlier intention was necessary but now it is not so. In the case of Jamieson vs Jamieson 1952, House of Lords observed that unintentional acts may also amount to cruelty. In Williams vs Williams 1963 Allahbad, the necessity of intention in cruelty was finally rejected in India. In this case husband was insane and constantly accused the wife of adultery. This was cruelty without intention. Thus, in the case of Bhagwat vs Bhagwat 1976 Bom, when husband tried to strangulate wife's brother and he younger son in a fit of insanity, he was held to be cruel. Temporary insanity or schizophrenia cannot be a defense against the plea of cruelty.

Cruelty need not only be against the petitioner In Bhagwat vs Bhagwat, cruelty against his step daughter was held as cruelty against wife.

The act or omission need not only be of the respondent Since most women have to live in husband's joint family, they have to put up with their actions also. In the case of Shyam Sundar vs Santa Devi 1962, the wife was ill treated by the in-laws and husband stood their idly without caring for wife. This was held as cruelty. However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband's stand of neutrality regarding wife and mother and his inaction about his mother's nagging of his wife was not considered cruelty because it is normal wear and tear of a married life.

Cruelty of Child Generally, cruelty by child towards one parent does not amount to cruelty. However, in the case of Savitri vs Mulchand 1987 Delhi, mother and son acted in concert and the son tortured the father by squeezing his testicles to force him to do what they wanted him to do, was considered cruelty against the wife.

Types of cruelty - Physical and Mental Physical Cruelty Injury to body, limb, or health, or apprehension of the same. In the case of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much so that she had to lodge police complaint even though injury was not serious. It was held that serious injury is not required.

Mental Cruelty In Bhagat vs Bhagat 1994 SC held that a conduct that causes such a mental pain and suffering that makes it impossible to live with that person is mental cruelty. Mental cruelty must be such that it cannot reasonably be expected to live together. This has to be judged on the circumstances of the case. In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled abuses at the husband and quarreled over trivial matters so much so that he became a laughing stock in the locality. This was held to be mental cruelty against the wife. In Saptami vs Jagdish 1970 Calcutta, false accusations of adultery were held to be mental cruelty. Yashodabai vs Krishnamurthi 1992 - Mere domestic quarrels with mother in law is not cruelty. Shobha vs Madhukar 1988 SC - Constant demand for dowry is cruelty. In the case of Jyotishchandra vs Meera 1970, husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.

Desertion 3 Types - Actual Desertion, Constructive Desertion, Willful neglect.

Actual Desertion - factum of desertion, animus deserdendi, Without reasonable cause, without consent, 2 yrs must have passed. Lachman vs Meena - 1964 - Wife was from rich family. She was required to live in joint family of husband. She went back to parents. Kept making fake promises of return but never did. Held desertion. Jagannath vs Krishna - Wife became brahma kumari and refused to perform marital obligations. Held desertion. Bipinchandra vs Prabhavati SC 1957 - Husband went to England. Husband's friend came to house in India. Husband came back. Alleged affair, which was refuted by wife. Wife went to her parents for attending marriage. Prevented her from coming back. Held no desertion by wife. Sunil Kumar vs Usha 1994 - Wife left due to unpalatable atmosphere of torture in husband's house. Held not desertion.

Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered deserter. Jyotishchandra vs Meera 1970 - Husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to live separately. Held desertion by husband.

willful Neglect - If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion. Balihar vs Dhir Das 1979 - Refusing to perform basic marital obligations such as denial of company or intercourse or denial to provide maintenance is willful neglect.

Reasonable Cause 1. If there is a ground for matrimonial relief. ( ground for void, voidable marriage or grounds for maintenance under sec 18 of HAMA). 2. If spouse is guilty of a matrimonial misconduct that is not enough for matrimonial relief but still weighty and grave. 3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with that spouse. Chandra vs Saroj 1975 - Forcing a brahmin wife to eat meat.

Without Consent Bhagwati vs Sadhu Ram 1961 - Wife was living separately under a maintenance agreement. Held not desertion.

Other Grounds Section 13 (ii) : ceased to be a Hindu. Section 13 (iii) unsound mind. - includes mental disorders such a incomplete development of brain or psychopathic disorder or schizophrenia Section 13 (iv) virulent and and incurable Leprosy Section 13 (v) communicable venereal disease Section 13 (vi) renounced the world Section 13 (vii) presumed dead - not heard of in 7 years.

Section 13 (1-A) Breakdown Theory (i) no cohabitation for 1 yr after passing the decree of judicial separation. (ii) no cohabitation for 1 yr after passing the decree of restitution of conjugal rights. Effected by provisions in section 23.

Section 13(2) Additional grounds for wife (i) Another wife of the husband is alive. (ii) Rape, Sodomy, Bestiality. (iii) Wife was awarded maintenance under section 15 of HAM 1956 or under section 125 of CrPC and no cohabitation has occurred for 1 yr after the award. (iv) If wife was under 15 at the time of marriage and if she repudiates the marriage before 18.

Section 13-A Alternate relief in divorce proceedings - If the judge feels that sufficient grounds do not exist for divorce, he can grant judicial separation.

Section 13-B Divorce by mutual consent

Q. What is Talaq? Who can pronounce Talaq? Identifying differences between shia and sunni, explain the different modes/types of Talaq. What is Talaq e tafweez? What is the difference between Talaq ul sunnat and Talaq ul biddat. Can a muslim wife give Talaq to her husband? If yes, under what circumstances? What are the grounds on which a muslim woman can demand Talaq? State the consequences that arise from Talaq under muslim law. The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means release from a marriage tie, immediately or eventually. In a restricted sense it means separation effected by the use of certain appropriate words by the husband and in a wide sense it means all separations for causes originating from the husband. It is also generic name for all kinds of divorce but it is particularly applied to the repudiation by or on behalf of husband. In Moonshee Buzloor Rahim vs Lateefutoon Nissa, it was said that Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at his own pleasure with or without cause.

Who can pronounce Talaq? As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-tafweez, a husband may delegate the authority to the wife to pronounce talk on his behalf. The husband must posses the following qualifications to be able to pronounce a valid Talaq Shia - He must be of sound mind and attained the age of puberty. It must be pronounced orally in the presence of two witnesses unless he is unable to speak. Further, Talaq must not be pronounced under duress or compulsion otherwise Talaq is void. It must be spoken in Arabic terms and strictly in accordance to sunnat. Sunni - Only two requirements - Sound mind, attained majority. A Talaq pronounced under compulsion or intoxication is effective. It is not necessary that Talaq must be pronounced in the presence of wife. In Fulchand vs Navab Ali Chaudhary 1909, it was laid that Talaq should be deemed to have come into effect on the date on which the wife came to know of it. Intention is not necessary for a Talaq to take effect. If unambiguous words denoting irrevocable Talaq are pronounced even by mistake or in anger, it is a valid Talaq. Talaq can be effected orally or in writing (Talaqnama). If the words are express and well understood as implying divorce (e.g. "I have divorced thee"), no proof of the intention is

required. If the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle, if you goest"), then intention of the user must be proved. After the passing of Muslim Marriage Dissolution Act 1949, a muslim wife can also get a divorce on certain grounds. (Explained below) The following diagram shows various types of divorces - (Note that technically, Talaq is not same as divorce, but in the exam when these morons ask about types of Talaq, they actually mean types of divorce!)

Type of Talaq

Shia

Sunni

By Husband Talaq ul sunnat - It is a Talaq which is effected in accordance with the traditions of Prophet. It is further divided in two types - Ahasan and hasan. Ahasan - It is the most approved and considered to be the best kind of Talaq. The word ahasan means best or very proper. To be of Ahasan form, it must satisfy the following conditions 1. the husband must pronounce the formula of divorce in a single sentence. 2. the pronouncement of divorce must in done when the wife is in state of tuhr (purity),





Written Talaq is not acceptable unless the husband is unable to speak. Two male witnesses are

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



Written Talaq is acceptable. No witnesses are required. Talaq pronounce

which means when she is free from her menses. 3. husband must abstain from intercourse for the period of iddat. If the marriage has not been consummated, if the spouses are away from each other, or the wife is beyond the age of mensuration, Talaq may even be pronounced while the wife is in menses. Pronouncement in this form is revocable during the period of iddat. Such revocation may be either express or implied. It becomes irrevocable at the expiry of iddat.



required. Intention to divorce is required on the part of husband.

d even by mistake is binding.

Hasan - Hasan in arabic means "good" and so this form of Talaq is considered to be a good form of Talaq but not as good as Ahasan. To be in this form, it must satisfy the following conditions 1. there must be three successive pronouncements of the formula of divorce. 2. in case of a menstruating wife, the three pronouncements must be made in three consecutive tuhrs. 3. in case of a non-menstruating wife, the three pronouncements must be made during the successive intervals of 30 days. 4. no sexual intercourse must take place during these three periods of tuhr. It can be revoked any time before the third pronouncement. It becomes irrevocable on the third pronouncement.

Talaq ul biddat - It is a disapproved and sinful form of Talaq. It was introduced by Ommeyyads in order to escape the strictness of law. To be of this Shias and Malikis do form, it must satisfy the following conditions not recognize this 1. three pronouncements may be made during a form. single tuhr either in one sentence (e.g. "I divorce thee thrice." ) or in three sentences Shia law does not (e.g. I divorce thee, I divorce thee, I divorce recognize any form of irrevocable Talaq. thee). 2. a single pronouncement made during a tuhr clearly indicating an intention to dissolve marriage irrevocably (e.g. "I divorce thee

Recognized but considered sinful.

irrevocably"). It becomes irrevocable immediately when it is pronounced irrespective of iddat. Thus, once pronounced, it cannot be revoked. One a definite complete separation has taken place, they cannot remarry without the formality of the woman marrying another man and being divorced from him. In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932, one Ghayas Uddin pronounced triple Talaq in the presence of witnesses though in the absence of the wife. Four days later a Talaqnama was executed which stated that three divorces were given. However, husband and wife still lived together and had children. While the husband treated her like a wife, it was held that since there was no proof of remarriage, the relationship was illicit and the children were illegitimate. It has been said that this type of Talaq is theologically improper. In Fazlur Rahman vs Aisha 1929, it was held that Quran verses have been interpreted differently by different schools. Thus, it is legally valid for Sunnis but not for Shia.

Ila - (Vow of continence) - Where the husband is of sound mind and of the age of majority, swears by God that he will not have sexual intercourse with his wife and leaves the wife to observe iddat, he is said to make ila. If the husband after having pronounced ila abstains from having sexual intercourse with wife for four months, the marriage is dissolved with the same result as if there had been an irrevocable divorce pronounced by the husband. This requires following conditions 1. Husband must be of sound mind and above the age of majority. 2. must swear by God or must take a vow. 3. vow must be that he will not have sexual intercourse with his wife. 4. must abstain from sexual intercourse with his wife for four months or more after taking

the vow. It can be canceled by - resuming sexual intercourse within the period of four months or by a verbal retraction. It is not in practice in India.

Zihar - Injurious Assimilation - If a husband compares the wife with his mother or any other female relative within prohibited degree, the wife has a right to refuse herself to him until he has perfomed a penance such as freeing a slave or fasting for a month. In default of expiation by penance, the wife has the right to apply for judicial divorce. Ingredients 1. husband must be sane and adult 2. husband compares wife to his mother or any other female relative within prohibited degrees. 3. then the wife has a right - a) to refuse to have sexual intercourse with him till he has expiated himself by penance, b) to apply in court for an order directing him for a penance or to decree her a regular divorce. Legal Effects - Zihar by itself does not terminate the marriage nor does it cause the wife to lose her right to maintenance even in case of default of penance. It causes the following 1. sexual intercourse becomes unlawful 2. husband is liable for penance 3. wife can claim judicial separation if the husband persists in wrong doing. The comparison must be done intentionally and with disrespect. If the husband makes a comparison to show respect to his wife, an expiation is not necessary. This form has become obsolete.

By Wife Talaq e tafweez - A husband may delegate his power to give Talaq to any third party or even to his

Comparison must have been done in presence No such of two witness. requirement. Muta marriage may be dissolved by Zihar.

wife. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce herself from her husband under certain specified conditions (e.g. husband taking a second wife), is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy. In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement in which the defendant agreed to live in plaintiff's parental house after marriage and if he left the house, he would pay a certain sum to the plaintiff, the default of which the condition would act as divorce. It was held that the condition was not unconscionable or opposed to public policy. Note that a wife does not divorce her husband but gets herself divorced from the husband. Ameer Ali gives three kinds of tafweez - (This is given in Aqil Ahmed's book. I have no idea what is the difference between the three). Ikhtiar - giving her authority to Talaq herself. Amr-bayed - leaving the matter in her own hands. Mashiat - giving her the option to do what she likes. This does not deprive the husband from his right to give Talaq. Talaq e taliq - It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effect immediately or at some future time or event.

By Agreement Khula - Divorce at the request of wife - A wife has a right to buy her release from marriage from her husband. It must satisfy the following conditions 1. there must be an offer from the wife. 2. the offer must be accepted with consideration (evaz) for the release. 3. the offer must be accepted by the husband.

Husband must be adult, sane, free agent (mukhtar), and must have intention to divorce her.

Husband has no power of revocation but wife can reclaim the consideration during iddat. In this case, the It becomes effective as well as irrevocable (Talaq ul husband can revoke

Only two conditions Husband must be adult and sane. It is irrevocable and partners cannot resume sexual intercourse until a fresh marriage is arranged.

bain) as soon as it is accepted by the husband and the wife is bound to observe iddat. As a consideration for release by the husband, everything that can be given in dower can be given. If the wife fails to give the consideration that was agreed upon at the time of Khula, divorce does not become invalid but the husband has the right to claim the consideration. In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was defined as a divorce by consent in which the wife gives or agrees to give a consideration to the husband for her release from the marriage tie. Khula is thus the right of divorce purchased by the wife from her husband.

Mubarat - Divorce by mutual agreement - It is a form of dissolution of marriage contract, where husband and wife both are averse to the marriage and want to separate. It requires following conditions 1. Either of husband or wife can make the offer. 2. The other one must accept it. 3. As soon as it is accepted, it become irrevocable and iddat is necessary. Since it is a mutual agreement, there is no question of consideration.

By Judicial Decree Lian - False charge of adultery - When the husband charges the wife with adultery and the charge is false, the wife is entitled to sue for and obtain divorce. In Zafar Hussain vs Ummat ur Rahman 1919, the Allahabad HC accepted the doctrine of Lian. The following conditions must be satisfied 1. Husband, who is adult and sane, charges his wife with adultery or denies the paternity of her child. 2. Such charge is false.

Khula.

3. The marriage is a Sahih marriage. Features of Lian 1. Such false charge does not dissolve the marriage automatically but only gives a right to the wife to sue for divorce. The marriage continues till the decree is passed. 2. Wife must file a regular suit and just an application will not suffice. 3. Judicial separation due to Lian is irrevocable. 4. Lian is applicable only to Sahih marriage and not to Fasid ones. Retraction - A husband may retract the charge. However, the retraction must be bona fide and unconditional. It must be made before the closing of evidence.

Fask - Cancellation - Muslim law allows a lady to approach a qazi for dissolving the marriage under the following conditions 1. if the marriage is irregular. 2. if the person having an option to avoid a marriage has exercised his options. 3. if the marriage was within prohibited degrees or fosterage. 4. if the marriage has been contracted by nonMuslims and the parties have adopted Islam. Before the enactment of Muslim Marriage Dissolution act, this was the only way for a muslim woman to repudiate a marriage.

Judicial Divorce - Section 2 of Muslim Marriage Dissolution Act 1939 gives the following grounds to wife belonging to Shia as well as Sunni sects, upon which she can ask for divorce 1. Absence of husband - 4 yrs. Decree passed on this ground will take affect only after 6 months of passing and if the husband shows up during the 6 months he can request the court to set the decree aside. 2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse. There is no agreement among HCs regarding the conduct of wife. In Fazal Mahmood vs Ummatur Rahman AIR 1949, Peshawar HC held that if a wife is not faithful or obedient, the husband is under no obligation to maintain her and her suit for divorce was dismissed. However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is

3. 4. 5. 6. 7. 8.

9.

entitled to divorce if the husband has failed to maintain her for two years preceding the suit even though she may not be entitled to maintenance owing to her bad conduct. Imprisonment of husband - for 7 yrs or more. Failure to perform marital obligations - for 3 yrs Impotency of husband - If the husband was impotent at the time of marriage and continues to be so. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no time period is required. Repudiation of marriage - If the wife was married before she was 15, she can repudiate the marriage before she turns 18. Cruelty of husband - cruelty involves - habitual assault, associates with women of bad repute, attempts to force her to lead immoral life, disposes off her property, obstructs her practice of religion, does not treat all his wives equally. Grounds allowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula, and Mubarat, which are provided by muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce automatically. However, if a woman reconverts back to her original faith, the marriage will stand dissolved.

Can a muslim wife give Talaq to her husband? If yes, under what circumstances? What are the grounds on which a muslim woman can demand Talaq? As per the definition of Talaq propounded in Moonshee Buzloor Rahim vs Lateefutoon Nissa, Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at his own pleasure with or without cause. Thus, a muslim wife does not have any right to give Talaq to her husband. However, there are ways through which a muslim wife can repudiate her marriage and get a divorce from her husband. These are as follows 1. Talaq e tafweez 2. Khula 3. Zihar 4. Lian 5. Fask 6. Dissolution of muslim marriage act 1939

Consequences arising from Talaq

1. Marriage - Parties are entitled to contract another marriage. If the marriage was consummated the wife has to wait until the period of iddat is over, otherwise, she may remarry immediately. If the marriage was consummated and if the husband had four wives at the time of divorce, he can take another wife after the period of iddat. 2. Dower - Dower becomes payable immediately if the marriage was consummated, otherwise, the wife is entitled to half of the amount specified in dower. If no amount is specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to apostasy of the wife, she is entitled to whole of the dower if the marriage has been consummated. 3. Inheritance - Mutual rights of inheritance cease after the divorce becomes irrevocable. 4. Cohabitation - Cohabitation becomes unlawful after the divorce has become irrevocable and children from such intercourse are illegitimate and cannot be legitimated by acknowledgment as held in In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932. 5. Remarriage - Remarriage between the divorced couple is not possible until 1. the wife observes iddat 2. after iddat she lawfully marries another man 3. this intervening marriage is consummated 4. the new husband pronounces divorce or dies 5. the wife again observes iddat A marriage done without the fulfillment of the above is irregular, not void. But mere cohabitation after an irrevocable divorce is void. 6. Maintenance - The wife becomes entitled to maintenance during the period of iddat but not during the iddat of death.

Q. What is Mahr? What is the importance of Mahr in muslim marriage? "Dower is a debt in nature.", what are its legal consequences? What are the rights of a wife at the nonpayment of dower? What are the rights of a muslim widow to retain possession of her husband's estate in lien of her dower.Who can change the Mahr? Discuss various kinds of Mahr. What is the difference between deferred and nondeferred Mahr? In pre Islamic Arabia, when the institution of marriage as we know it today was not developed, many forms of sexual relationships existed. Some were hardly better than prostitution. Men, after despoiling their wives, often turned them out, helpless and without any means. Under this background, Islam tried to provide a just treatment for wives. In Muslim Law, a husband can divorce his wife at his whim and to ensure that the woman is not left helpless and without any means, the concept of Mahr was brought in. It forces the husband to pay a certain amount to the wife either at the time of marriage or at the time of dissolution of marriage. This amount acts as a

security to the wife in case she is turned out by the husband or in her old age. Definition - As per Tyabji, Mahr is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by operation of law. It may either be prompt (Mu ajjal) or deferred (Mu wajjal). According to Amir Ali, Mahr is a consideration which belongs absolutely to the wife. In Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is like a contract where wife is the property and Mahr is the price or consideration. However, it is also true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.

Importance of Mahr Marriage in Muslim Law provides an absolute power to the husband to divorce his wife. It also allows the husband to have multiple wives. This often results in a desperate situation for women because they are left with no means to support themselves. Mahr mitigates this issue to certain extent. Therefore, Mahr is very important for balancing the rights of the husband and wife. Mahr is an absolute requirement of a Muslim marriage and so, even if Mahr is not specified at the time of marriage, the law will presume it by virtue of the contract of marriage itself. Even if a woman stipulates to forgo the Mahr, her declaration will be invalid. In Abdul Kadir vs Salima AIR 1980, J Mahmood has observed that the marriage contract is easily dissoluble and the freedom of divorce and of polygamy to a husband place the power in the hands of the husband, which the Muslim law intends to restrain by the mechanism of Mahr. Thus, right of wife to her Mahr is a fundamental feature of the marriage contract. Thus, Mahr serves the following purposes 1. to impose an obligation of husband as a mark of respect to wife. 2. to place a check on the power of husband to divorce and polygamy. 3. to provide for subsistence of wife in the event she is divorced by the husband.

Nature of Mahr Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the husband to pay Mahr to wife upon marriage. A wife has an unrestricted right to demand Mahr from husband. In Abdul Kadir vs Salima AIR 1980, J Mahmood observed that Mahr may be regarded as a consideration for concubial intercourse by way of analogy to the contract for sale. It provides the woman with the right to resist the husband until Mahr is paid. This right is akin to the right of lien of a vendor upon sold goods while they remain in his possession and so long as the price for the goods has not been paid. In Smt Nasra Begum vs Rizwan Ali AIR 1980, it was held that right to dower precedes cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid. The right of wife to her dower puts her in a similar position as that of other creditors. Just like other creditors, she must be paid out of the property of the husband. Thus, it can be said that Mahr is a kind of debt upon the husband incurred in marriage. However, at the same time, payment of Mahr is not a charge upon the estate of the husband, unless an agreement is made to that effect. The interest that a wife has over the property of her husband in lieu of dower debt is

limited to existing lawful possession towards her self enjoyment only. It does not give her the right to alienate the property. After the death of the husband, she can sue the heirs for the dower but heirs are not personally liable for it. They are liable only to the extent of their share in the inherited property. A dower can also be secured by an agreement just like any other debt. In Syed Sabir Hussain vs Farzand Hussain, a father stood surety for payment of dower by his minor son. After his death, his estate was held liable for the payment of his son's dower.

Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr) 1. Dower is like a debt and the husband is liable to pay it to the wife before the consummation of marriage. Until it is paid, the wife has a right to resist cohabitation with the husband. 2. If the wife is in possession of husband's property, she has a right to retain it until dower is paid. She does not get a title to the property and does not get a right to alienate it. 3. Wife can sue heirs of the husband for payment of dower. 4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to divorce or due to death. 5. Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her heirs can demand it. 6. If dower has not been agreed upon at the time of marriage, courts can decide the amount of dower by taking financial status of the husband, age of wife, cost of living, property of wife, into consideration.

Right of wife over husband's property Dower ranks as debt and the wife is entitled, along with other creditors, to have it satisfied on the death of husband out of his estate. Her debt, however, is no greater than any other unsecured creditor except that if she is lawfully in possession of the husband's property, she is entitled to that possession until she is able to satisfy her debt by the rents or issues accruing out of the property. She is also entitled to the possession against the heirs of the husband until her dower is satisfied. Limitations on right of retention This right arises only after the death of the husband or after divorce. During the course of marriage, a wife does not have any right to retain the property. She should have obtained the possession lawfully. Right to retention is not analogous to mortgage. Thus, she does not get title to the property in case dower is not paid. Further, if the property is mortgaged, the wife cannot retain possession against the mortgagee. Wife cannot alienate the property. She has to satisfy the dower only though the rents or other issues accruing from the property. In a leading case of Maina Bibi vs Chaudhary Vakil Ahmad 1924, one Moinuddin died leaving his widow Miana Bibi and some property. The respondents instituted a suit against the widow for immediate possession of the property. However, the widow claimed that she had the right to possession until her dower was paid. It was held that the respondents could have the

possession of their share of the property after paying the dower to the widow. The respondents did not pay and the widow continued possession. Later, the widow sold the property. The deed showed that the widow tried to convey an absolute title to the property. The respondents again filed the suit claiming that the widow did not have the right to transfer property because she only had a right to retain and did not have any right to title for herself. It was held by the privy council that a widow has the right to retain the possession of the property acquired peacefully and lawfully, until she is paid her dower. Further, she has no right to alienate the property by sale, mortgage, gift, or otherwise.

Who can change Mahr A husband can increase the amount of debt at any time, though he cannot decrease it. A wife can remit the dower wholly or partially. The remission of Mahr by wife is called Hibe e Mahr. However, she should have attained puberty to do so. She does not have to be a major to relinquish Mahr, only attaining puberty is sufficient. The remission made by the wife should be with free consent. Thus, in Shah Bano vs Iftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by husband and thought that only way to win him back was to waive Mahr, her remission of Mahr was considered without her consent and was not binding on her.

Kinds of Mahr Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper (Mahr i Misl) Specified Dower means the dower that has been agreed upon by the parties at the time of marriage. Such a dower can be settled before marriage, at the time of marriage, or even after the marriage. In case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed by the guardian is binding upon the boy and after attaining puberty or majority, he cannot take the plea that he was not a party to it. A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but he cannot settle for less that 10 dhirams in Sunni Law. Shia law has no minimum. For those Muslims who are so poor that they cannot even pay 10 dhirams, they can teach the wife Quran in lieu of paying Mahr. Specified dower can further be divided into two categories - Prompt (Mu Ajjal) and Deferred (Mu Wajjal). Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable immediately upon the marriage. 1. The wife has a right to refuse cohabitation with the husband until she is paid the dower. 2. If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until dower is paid. 3. Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if the marriage is consummated, the wife cannot refuse cohabitation after that. 4. Prompt dower does not become deferred after consummation and the wife has the right to demand and sue for it any time. 5. The period of limitation starts after demand and refusal and it is of three years.

Mu Wajjal - It means that the dower is payable upon dissolution of marriage either by divorce or by death of husband. 1. Even though it is deferred, an agreement to pay be before is valid and binding. 2. A wife does not have a right to claim dower but a husband can treat it as prompt and transfer property as payment. 3. A widow can relinquish her claim to dower at the time of the funeral of the husband by reciting a formula, but her relinquishment must be a voluntary act. 4. The interest of wife in deferred dower is a vested one and her heirs can claim it after her death. Customary or Proper Mahr (Mahr i Misl) When the amount of dower is not fixed in the marriage contract or even if the marriage has been contracted on the condition that she will not claim any Mahr, the wife is entitled to Proper Dower. The amount is to be arrived upon after taking into consideration the amount of dower settled for other female members of the father's family. It is also regulated with reference to the following factors 1. 2. 3. 4. 5.

age, beauty, fortune, understanding and virtue of wife. social position of the father dower given to her female paternal relations. economic condition of the husband. circumstances of the time.

There is no limit on the maximum limit in Sunni Law, but shia law prescribes a maximum limit of 500 dhirams, which was the amount paid by Prophet Mohammad for his daughter Fatima.

Differences between Shia and Sunni Law on Mahr Sunni Law

Shia Law

Minimum of 10 dhirams for specified dower.

No minimum limit.

No maximum limit for proper or specified dower.

Dower above 500 dhirams is considered abominable but legal.

If dower was not decided or marriage was done on condition that Dower shall be payable only no dower will be paid, dower shall be payable if marriage is if the marriage was dissolved by death irrespective of whether the marriage was consummated in this case. consummated or not. An agreement that no dower shall be payable is void.

Such an agreement by sane and adult wife is valid.

In absence of a contract, only a reasonable part of the dower is considered to be prompt. Rest is deferred.

Whole of dower is presumed to be prompt.

Q. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the kinds of Gift? State the circumstances in which delivery of possession of immovable property is not required in making a gift. What gifts are void? What is Mushaa? Explain with illustration. What is the difference between Hiba Bil Iwaz and Hiba Ba Shart ul Iwaz? Gift is a generic term that includes all transfers of property without consideration. In India, Gift is considered equivalent to Hiba but technically, Gift has a much wider scope than Hiba. The word Hiba literally means, the donation of a thing from which the donee may derive a benefit. It must be immediate and complete. The most essential element of Hiba is the declaration, "I have given". As per Hedaya, Hiba is defined technically as, "unconditional transfer of property, made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter". According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without any return. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

Essential Elements of a Gift Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, a grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express of implied acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor grandchildren. Thus, the following are the essentials of a valid gift 1. A declaration by the donor - There must be a clear and unambiguous intention of the donor to make a gift. 2. Acceptance by the donee - A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor. 3. Delivery of possession by the donor and taking of the possession by the donee. In Muslim law the term possession means only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to see who - whether the

donor or the donee - reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.

The following are the conditions which must be satisfied for a valid gift. 1. Parties - There must be two parties to a gift transaction - the donor and the donee.

Conditions for Donor - (Who can give) 1. 2. 3. 4.

Must have attained the age of majority - Governed by Indian Majority Act 1875. Must be of sound mind and have understanding of the transaction. Must be free of any fraudulent or coercive advice as well as undue influence. Must have ownership over the property to be transfered by way of gift.

A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee. Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors.

Conditions for Donee (who can receive) 1. Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also make a lawful gift to a non-muslim. 2. Donee must be in existence at the time of giving the gift. In case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void. 3. Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs.

2. Conditions for Gift (What can be gifted) 1. It must be designable under the term mal. 2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future is void. 3. The donor must possess the gift. Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya. In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that gift of usufructs is valid in Muslim law and that the gift of corpus is subject to any such limitations imposed due to usufructs

being gifted to someone else. It further held that gift of life interest is valid and it doesn't automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni. Subject of Gift - The general principle is that the subject of a gift can be 1. 2. 3. 4.

anything over which dominion or right of property may be exercised. anything which may be reduced to possession. anything which exists either as a specific entity or as an enforceable right. anything which comes within the meaning of the word mal.

In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the gift. Gift of an indivisible property can be made to more than one persons.

3. Extent of Donors right to gift - General rule is that a donors right to gift is unrestricted. In Ranee Khajoorunissa vs Mst Roushan Jahan 1876, it was recognized by the privy council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.

Kinds of Gift There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah, and Ariyat.

Hiba Bil Iwaz - Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions which together make up Hiba bil Iwaz. In India, it was introduced as a device for effecting a gift of Mushaa in a property capable of division. So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz 1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam 1876, held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient. 2. A bona fide intention on the part of the donor to divest himself of the property is essential. Gift in lieu of dower debt - In Gulam Abbas vs Razia AIR 1951, All HC held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must done through a registered instrument.

Hiba ba Shartul Iwaz - Shart means stipulation and Hiba ba Shart ul Iwaz means a gift made with a stipulation for return. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect. It has the following requisites 1. 2. 3. 4.

Delivery of possession is necessary. It is revocable until the Iwaz is paid. It becomes irrevocable after the payment of Iwaz. Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts. Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz -

Hiba

Hiba bil Iwaz

Hiba ba Shart ul Iwaz

Ownership in property is transferred Ownership in property for consideration called iwaz. But is transfered without there is no express agreement for a consideration. return. Iwaz is voluntary.

Ownership in property is transferred for consideration called iwaz, with an express agreement for a return.

Delivery of possession Delivery of possession is NOT is essential. essential.

Delivery of possession is essential.

Gift of mushaa where a Gift of mushaa even where a property Gift of mushaa where a property property is divisible is is divisible is valid. is divisible is invalid. invalid. Barring a few exceptions it is revocable. It is a pure gift.

It is irrevocable.

It is revocable until the iwaz is paid. Irrevocable after that.

It is like a contract of sale.

In its inception it is a gift but becomes a sale after the iwaz is paid.

Exceptions in delivery of possesssion The following are the cases where deliver of possession by the donor to the donee is not required -

1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land. 2. When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from the house is not required. 3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide intention of making the gift. 4. Gift by one co-sharer to other. Bona fide intention to gift is required. 5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred. 6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is immpossible. Such gift may be completed by mutation of names and transfer of rents and incomes. 7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be affected by change in ownership records and by a request to the tenant to attorn the donee. 8. Incorporeal rights - The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee. 9. Where the donee is in possession - Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.

Void Gifts The following gifts are void 1. Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such interest opens out. 2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future, is void. 3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.

Gift with a condition A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house.

Mushaa (Hiba bil mushaa)

Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the donee. Illustration A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift. A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law, A can give his undivided share of the wheat to D if he withdraws control over it but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession of 1 ton of wheat to D. In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being used by C as well. This gift was held valid because staircase is indivisible.

Revocation of a Gift Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee. The following gifts, however, are absolutely irrevocable 1. When the donor is dead. 2. When the donee is dead. 3. When the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable. 4. When donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable. 5. when the subject of the gift has been transfered by the donee through a sale or gift. 6. when the subject of the gift is lost or destroyed, or so changed as to lose its identity. 7. when the subject of the gift has increased in value and the increment is inseparable. 8. when the gift is a sadqa. 9. when anything as been accepted in return.

Q. Define Wakf and explain the essentials of a valid Wakf. What are different kinds of Wakf? How is Wakf created? Can a Wakf be created only for the benefit of one's family? What is the difference between contingent and conditional Wakf? When is Wakf complete? What are the legal

consequences of a valid Wakf? Can a Wakf be revoked? Define Mutawalli. Who can be a Mutwalli? Who are incompetent to be Mutwalli? By whom can he be appointed? Can a Mutwalli be removed? How? Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim vs A Asghar Ali AIR 1932. Technically, it means a dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, in the manner of areeat or commodate loan. Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable."

Essentials of a valid Wakf 1. Permanent Dedication of any property - There are actually three aspects in this requirement. There must be a dedication, the dedication must be permanent, and the dedication can be of the property. There is no prescribed form of dedication. It can be written or oral but it must be clear to convey the intention of dedication. According to Abu Yusuf, whose word is followed in India, mere declaration of dedication is sufficient for completion of Wakf. Neither delivery of possession or appointment of Mutawalli is necessary. The dedication must be permanent . A temporary dedication such as for a period of 10 yrs or until death of someone is invalid. The subject of Wakf can be any tangible property (mal) which can used without being consumed. In Abdul Sakur vs Abu Bakkar 1930, it was held that there are no restrictions as long as the property can be used without being consumed and thus, a valid Wakf can be created not only of immovable property but also of movable property such as shares of a company or even money. Some subjects that Hanafi law recognizes are immovable property, accessories to immovable property, or books. The subject of the Wakf must be in the ownership of the dedicator, wakif. One cannot dedicate someone else's property. 2. By a Muslim - A Wakf can only be created by a Muslim. Further, the person must have attained the age of majority as per Indian Majority Act and should be of sound mind. 3. For any purpose recognized by Muslim Law - The purpose is also called the object of Wakf and it can be any purpose recognized as religious, pious, or charitable, as per Muslim Law. It is not necessary that a person must name a specific purpose. He can also declare that the property may be used for any welfare works permitted by Shariat.

In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf provided that the income of certain shops was to be applied firstly to the upkeep of the mosque and then the residue, if any, to the remuneration of the mutawalli. It was held to be valid however, it was also pointed out that if a provision of remuneration was created before the upkeep of the mosque, it would have been invalid. The following are some of the objects that have been held valid in several cases - Mosques and provisions of Imam to conduct worship, celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an idgah, grant to colleges and professors to teach in colleges, bridges and caravan sarais. In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are no alms, the performing of ceremonies for the benefit of the departed soul is not a valid object. Some other invalid objects are - building or maintaining temple or church, providing for the rich exclusively, objects which are uncertain. Shia Law - Besides the above requirements, Shia law imposes some more requirements for a valid Wakf. There are 1. Delivery of possession to the first person in whose favour the Wakf has been created is essential. 2. Dedication must be absolute and unconditional. 3. The property must be completely taken away from the wakif. It means that the wakif cannot keep or reserve any benefit or interest, or even the usufructs of the dedicated property.

Creation of Wakf Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways 1. By an act of a living person (inter vivos) - when a person declares his dedication of his property for Wakf. This can also be done while the person is on death bed (marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf. 2. By will - when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by will but now it has been approved. 3. By Usage - when a property has been in use for charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

Kinds of Wakfs A Wakf can be classified into two types - Public and Private. As the name suggests, a public Wakf is for the general religious and charitable purposes while a private Wakf is for the creators own family and descendants and is technically called Wakf alal aulad. It was earlier considered

that to constitute a valid wakf there must be a complete dedication of the property to God and thus private wakf was not at all possible. However, this view is not tenable now and a private wakf can be created subject to certain limitation after Wakf Validating Act 1913. This acts allows a private wakf to be created for one's descendants provided that the ultimate benefits are reserved for charity. Muslim Law treats both public and private wakfs alike. Both types of wakf are created in perpetuity and the property becomes inalienable. Wakf alal aulad (can a wakf be created for one's family?) Wakf on one's children and thereafter on the poor is a valid wakf according to all the Muslim Schools of Jurisprudence. This is because, under the Mohammedan Law, the word charity has a much wider meaning and includes provisions made for one's own children and descendants. Charity to one's kith and kin is a high act of merit and a provision for one's family or descendants, to prevent their falling into indigence, is also an act of charity. The special features of wakf-alal-aulad is that only the members of the wakif’s family should be supported out of the income and revenue of the wakf property. Like other wakfs, wakf alal-aulad is governed by Muhammadan Law, which makes no distinction between the wakfs either in point of sanctity or the legal incidents that follow on their creation. Wakf alal aulad is, in the eye of the law, Divine property and when the rights of the wakif are extinguished, it becomes the property of God and the advantage accrues to His creatures. Like the public wakf, a wakf-alal-aulad can under no circumstances fail, and when the line of descendant becomes extinct, the entire corpus goes to charity. The institution of private wakf is traced to the prophet himself who created a benefaction for the support of his daughter and her descendants and, in fact, placed it in the same category as a dedication to a mosque. Thus, it is clear that a wakf can be created for one's own family. However, the ultimate benefit must be for some purpose which is recognized as pious, religious or charitable by Islam. Quasi public Wakf Some times a third kind of wakf is also identified. In a Quasi public wakf, the primary object of which is partly to provide for the benefit of particular individuals or class of individuals which may be the settler's family, and partly to public, so they are partly public and partly private.

Contingent Wakf A wakf, the creation of which depends on some event happening is called a contingent wakf and is invalid. For example, if a person creates a wakf saying that his property should be dedicated to god if he dies childless is an invalid wakf. Under shia law also, a wakf depending on certain contingencies is invalid. In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a wakf, which contained a direction that until payment of specified debt by him, no proceeding under the wakfnama shall be enforceable. It was held that it does not impose any condition on the creation of the wakf and so it is valid.

Conditional Wakf If a condition is imposed that when the property dedicated is mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif has a right to revoke the wakf in future, such a

wakf would be invalid. But a direction to pay debts, or to pay for improvements, repairs or expansion of the wakf property or conditions relating to the appointment of Mutawalli would not invalidate the wakf. In case of a conditional wakf, it depends upon the wakif to revoke the illegal condition and to make the wakf valid, otherwise it would remain invalid.

Completion of wakf The formation of a wakf is complete when a mutawalli is first appointed for the wakf. The mutalwalli can be a third person or the wakif himself. When a third person is appointed as mutawalli, mere declaration of the appointment and endowment by the wakif is enough. If the wakif appoints himself as the first mutawalli, the only requirement is that the transaction should be bona fide. There is no need for physical possession or transfer of property from his name as owner to his name as mutawalli. In both the cases, however, mere intention of setting aside the property for wakf is not enough. A declaration to that effect is also required. In Garib Das vs M A Hamid AIR 1970, it was held that in cases where founder of the wakf himself is the first mutawalli, it is not necessary that the property should be transferred from the name of the donor as the owner in his own name as mutawalli. Shia law 1. Delivery of possession to the mutawalli is required for completion when the first mutawalli is a third person. 2. Even when the owner himself is the first mutawalli, the character of the ownership must be changed from owner to mutawalli in public register.

Legal Consequences (Legal Incidents) of Wakf Once a wakf is complete, the following are the consequences 1. Dedication to God - The property vests in God in the sense that no body can claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held that even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants. 2. Irrevocable - In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his name or in any other's name. 3. Permanent or Perpetual - Perpetuality is an essential element of wakf. Once the property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the wakf of a house built on a land leased for a fixed term was invalid. 4. Inalienable - Since Wakf property belongs to God, no human being can alienate it for himself or any other person. It cannot be sold or given away to anybody. 5. Pious or charitable use - The usufructs of the wakf property can only be used for pious and charitable purpose. It can also be used for descendants in case of a private wakf. 6. Extinction of the right of wakif - The wakif loses all rights, even to the usufructs, of the property. He cannot claim any benefits from that property.

7. Power of court's inspection - The courts have the power to inspect the functioning or management of the wakf property. Misuse of the property of usufructs is a criminal offence as per Wakf Act.1995.

Revocation of Wakf In India, once a valid wakf is created it cannot be revoked because no body has the power to divest God of His ownership of a property. It can neither be given back to the wakif nor can it be sold to someone else, without court's permission. A wakf created inter vivos is irrevocable. If the wakif puts a condition of revocability, the wakf is invalid. However, if the wakf has not yet come into existence, it can be canceled. Thus, a testamentary wakf can be canceled by the owner himself before his death by making a new will. Further, wakf created on death bed is valid only up till 1/3 of the wakif's property. Beyond that, it is invalid and the property does not go to wakf but goes to heirs instead.

Mutawalli Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a superintendent whose job is the see that the usufructs of the property are being utilized for valid purpose as desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he only has a limited control over the usufructs. In Ahmad Arif vs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli has no power to sell, mortgage, or lease wakf property without prior permission of the court or unless that power is explicitly provided to the mutawalli in wakfnama. Who can be a mutawalli - A person who is a major, of sound mind, and who is capable of performing the functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot be appointed. In Shahar Bano vs Aga Mohammad 1907, Privy council held that there is no legal restriction on a woman becoming a mutawalli if the duties of the wakf do not involve religious activities. Who can appoint a mutawalli - Generally, the wakif appoints a mutawalli. He can also appoint himself as a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and the wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries. The wakif also has the power to lay down the rules to appoint a mutawalli. The following is the order in which the power to nominate the mutawalli transfers if the earlier one fails 1. 2. 3. 4.

founder executor of founder mutawalli on his death bed the court, which should follow the guidelines 1. it should not disregard the directions of the settler but public interest must be given more importance. 2. preference should be given to the family member of the wakif instead of utter stranger.

Powers of a mutawalli - Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights 1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly mentioning them in wakfnama. 2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an urgent necessity. 3. He is competent to file a suit to protect the interests of the wakf. 4. He can lease the property for agricultural purpose for less than three years and for nonagricultural purpose for less than one year. He can exceed the term by permission of the court. 5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court to get an increase.

Removal of a mutawalli Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the following situations 1. By court 1. if he misappropriates wakf property. 2. even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair. 3. knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs Mahmood Hasan AIR 1978, SC held that using wakf money to buy property in wife's name is such breach of trust as is sufficient ground for removal of mutawalli. 4. he becomes insolvent. 2. By wakf board - Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein. 3. By the wakif - As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.

Q. Discuss the nature and meaning of will. What are the essentials of a valid muslim will? Who can make a will? What are the formalities necessary for a valid will? What restrictions are imposed on a Muslim's testamentary disposition? Explain. Distinguish between shia and sunni laws regarding will.

Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, after he is dead. According to section 2(h) of Indian Succession Act 1925, Will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the injury of the lawful heirs.

Essentials of a valid Muslim will 1. Competency of the testator (who can make the will) Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he attains majority. A person of unsound mind is not competent to make a will and a will made by such a person is invalid. A will made by a person while of sound mind, who later becomes of unsound mind, becomes invalid. In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a minor may make a valid will to dispose off the property. So far as a deed is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose. Will of a person committing suicide - Under Sunni Law the will of a person committing suicide is valid. Under Shia law, a will made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any act towards committing suicide, it is valid. 2. Competency of the legatee Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar. However, no one can be made the beneficial owner of the shares against his will, therefore, to complete the transfer, the legatee must give his express or implied consent to accepting the legacy. An institution can be a legatee. A non-muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam. In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident, he can be a legatee otherwise not. Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is considered to be in existence and is a valid legatee. In Shia law, the period is 10 months, which is the maximum period of gestation. Bequest for a charitable object is valid.

3. Validity of the subject of will - To be able to will a property, it must be 1. capable of being transferred. 2. in existence at the time of testator's death even if it is not in existence at the time of making will. Thus, a bequest cannot be made of any thing that is to be performed or produced in future. 3. in the ownership of the testator. A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is void. However, a bequest with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For example, a grant is made to X for his life and then it is stipulated to go to Y after death of X. In this case, X will get the grant completely and Y will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law. 4. Extent of power of will - The testamentary power of a muslim is limited in two ways Limitations as regards to person - The general rule is laid down in Ghulam Mohammad vs Ghulam Hussain 1932 by Allahbad HC, that a bequest in favour of a heir is not valid unless the other heirs consent to the bequest after the death of the testator. Whether a person is a heir or not is determined at the time of testator's death. Under Shia law, a testator may bequest a heir as long as it does not exceed one third of his property and no consent of other heirs is required. In Hussaini Begam vs Mohammad Mehdi 1927, it was held that if all the property was bequested to one heir and other were not given anything, the bequest was void in its entirety. Limitations as regard to the amount - The general principle is that a muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless person.

Differences between Shia and Sunni Law on Will Sunni Law

Shia Law

Bequest to an heir without consent of other heirs is Bequest up to 1/3 of the property is valid invalid. even without consent. Bequest to unborn child is valid if the child is born Valid if the child is born within 10 months within 6 months of making the will. of making the will. Legatee who causes death even by accident is incapable of receiving.

Legatee who causes death by accident is capable.

For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator.

Heir's consent may be obtained before or after death.

Will of a person committing suicide is valid.

Valid only if the will is made before the

person does any act towards committing suicide. Recognizes rateable distribution.

Does not recognize rateable distribution.

The legacy lapses only if the legatee dies If the legatee dies before testator, the legacy lapses without heirs otherwise, it goes to legatee's and goes back to the testator. heirs. Legatee must accept the legacy after the death of the testator.

Legatee can accept the legacy even before the death of the testator.

Differences between Will and Gift Gift

Will

It is an immediate transfer of right or interest.

It is a transfer after death.

Delivery of possession is necessary.

Delivery of possession is not necessary.

Subject of gift must exist at the time of making gift.

Subject of will must exist at the time of death of the testator.

Right of donor is unrestricted.

It is limited up to 1/3rd of the property.

Cannot be revoked.

Can be revoked by making another will.