Saturday, January 28, 2012
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Islamic Personal Law (Paper)
Note: Answer three questions from part-I and one question from part-II. Question No.1 is compulsory. All the questions carry equal marks.
Q # 1: Explain any four of the following:
1) Shia Schools (A03) 30) Sunni Schools (S03)
2) Ahl-al-Raij (A03) 31) Distant Kindred (A03-A04)
3) Specified Dower (A03) 32) Talaq (A06)
4) Zihaar (A03-A05) 33) Talaq a Badai (A05)
5) Talaq-e-Masnoona (A03) 34) Talaq-e-Ashan
6) Talaq-e-Hassan (S03) 35) Talaq-e-Slasah (A04)
7) Khayar I Balugh (A06) 36) Mubarat (A04)
8) Difference between “Khula” and “Mubarat” (S07) 37) Khula (S03-A04-S05)
9) Irregular Marriage (S03) 38) Muta marriage (A04-A05-A08)
10) Effect of apostasy on marriage (A07) 39) Void Marriage (A03-A04-A08)
11) Iddat (S03-A04-S04-A05-A07)
12) Maintenance /maintenance of wife (A03-A04-S04-A07)
13) Option of puberty (A03-A04-S05) 40) Parentage (A03-A05)
14) Shahadat Ala-al-Shahahdah (A03) 41) Sharers (S03-S04-S05)
15) Residuaries (S03-S04-A05) 42) Proper dower (S04-S05)
16) Deferred Dower (S03-S04-S05-A08)
17) Suit for dower and limitation (A07)
18) Will (S04) 43) Death illness (A06)
19) Musha (A03-A04-A06-A08) 44) Death Bed Gift (S03)
20) Conditional gift (A04) 45) Contingent gift (S04)
21) Gift in future (S04) 46) Waqf ala-al-aulad (S03)
22) Paternity (S03)
23) Essentials of acknowledgement of paternity (A07)
24) Legitimacy (S03) 47) Custody of child (S04)
25) Defacto guardian (S04-S05-S07) 48) Mutawalli (S04-S07)
26) Imprecation Lohan (A04) 49) Quran as source of law (A06)
27) Minor (A06)
28) Effect of Acknowledgement (S07)
29) Arbitration counsel (A08)
Q#1: A Muslim dies having behind father, mother, daughter, 2 son’s daughters. Distribute the estate of the deceased according to Hanafi law of inheritance. (A03)
Q#2: A Muslim dies leaving behind father, mother, two brothers, and one sister, distribute the estate of the deceased according to the Hanafi law of inheritance? (S03)
Q#3: A Muslim dies leaving behind one widow, one daughter and one brother distribute the estate of the deceased according to the Hanafi law of inheritance? (A04)
Q#4: A muslim dies leaving behind widow, mother, father’s father, distribute the estate of the deceased according to the Hanafi law of inheritance? (S04)
Q#5: A Muslim dies leaving behind husband, mother and father‘s father; distribute the estate of the deceased according to the Hanfi law of inheritance? (S05)
Q#6: A Muslim dies leaving behind mother, sister and father distribute the estate of the deceased according to the Hanfi law of Inheritance? (A05-A06)
Q#7: A Muslim dies leaving behind one widow, mother, father’s father and a sister; distribute the estate of deceased according the Hanfi law of inheritance? (S07)
Q#8: What is the difference b/w Shia and Sunni Law of inheritance? (A06-S07)
Q#9: A Sunni Muslim dies leaving behind father, father’s mother, mother’s mother two daughters and a son’s daughter, distribute his estate amongst the heirs. (A08)
Q#10: What do you mean by “Dissolution of Marriage”, write down the kinds of it in detail? (S07)
Q#11: Enumerate various grounds for the dissolution of marriage under the dissolution of Muslim marriage act 1939? (A04-S05)
Q#12: According to the dissolution of marriage Act 1939 under what circumstance a Muslim woman can get divorce discuss in detail. (A06-A08)
Q#13: Define marriage and what are the essentials of a valid marriage, what is the legal effect of void and invalid marriage? (S04)
Q#14: What are the essentials of a valid marriage? Describe in detail: Prohibition of marriage on the ground of fosterage? (A08)
Q#15: What are the different kinds of marriages distinguish b/w them? (A03-A05)
Q#16: What are the essential of a valid marriage? Differentiate b/w a valid, void and irregular’s marriage? (S03)
Q#17: Discuss the different modes of Talaq according to Muhammadan law? (A03-S05)
Q#18: What are the different modes of Talaq and when Talaq become irrevocable? (S04)
Q#19: According to Muhammadan law what duties lie on a husband for the maintenance of his wife discuss in detail? (A05)
Q#20: What is Doer? What are the kinds of Dower according to quantity and payment? (A06)
Q#21: What is “Dower”, enumerate the various kinds of dower? Who is responsible to pay dower? (S07)
Q#21: Define specified dower Distinguish between prompt and deferred dower? (S03-A04)
Q#22: Define Waqf can a Muslim create Waqf in favor of his children and descendants? (A03)
Q#23: What are essential of valid Waqf, who can appoint Mutawalli? (A04)
Q#24: Enumerate the qualification and powers of a Mutawali under the Islamic law? (S03-)
Q#25: What are the conditions of Waqf, describe the qualification of Mutawalli and his powers? (S05)
Q#26: What kind of properties can be made subject of Waqf, when can Mutuwali be removed. Is the office of Mutawalli is hereditary? (S04)
Q#27: What are the elements of Wakf? Distinguish between Islamic Wakf and English Trust. (A08)
Q#28: Define Will in what circumstances can a will be revoked? (S05-A06)
Q#29: How much of his/her estate a Muslim can dispose off by will? Does Quran lays down this limit of testamentary power? (A03)
Q#30: In whose favor a will can be executed and how a bequest can be revoked? (S07)
Q#31: What is the difference b/w Gift and will? Describe the necessary elements of each one? (S03-A04)
Q#32: Define gift. What are the essentials of a valid gift? Also explain the circumstances under which delivery of possession is not necessary to complete a valid gift? (A08)
Q#33: What is Gift whether a Gift can be revoked by the donor if so give reasons? (A05)
Q#34: Discuss the law relating to death bed gift (Gift Marz-ul-Maut)? (S04)
Q#35: What is option of puberty explain and how this right can be exercised? (A05)
Q#36: Explain Khulla, illa and Zehar? Also distinguish between Khulla and Mubraat? (A08)
Q#1: Upto what age of her minor children is a mother entitled to their custody of their person and when does she lose the right of custody? (A03-A04-S05)
Q#2: Under what circumstances a court may remove a guardian? (A03-A04-A05)
Q#3: Enumerate the grounds under which a guardian can be revoked? (A06)
Q#4: What matters shall a court consider in appointing a guardian discuss and in which cases the court is not authority to appoint the guardian of property of minor? (S07)
Q#5: Which court will deal with the appointment of guardian of the person and property of a minor? (A05)
Q#6: What are the obligations on the guardian of property of minor appointed by the court? Discuss. (S03)
Q#7: Who is the person competent to file an application for the appointment of a guardian? (S03-A04)
Q#8: Who are entitled to guardian ship of the person of a minor discuss in detail? (S04)
Q#9: Describe the Qualification for the appointment of a guardian of a minor? (S05)
Q#10: What are the rights, duties and liabilities of guardian under the Guardian and Ward Act? (A06)
Q#11: What are the duties and limitations of the powers of guardian of property appointed or declared by the court? (S07)
Q#12: Define Hazawat and distinguish b/w legal and natural guardian? (S04)
Q#13: a)What are the kinds of guardian under Guardian and Ward Act?
b)Under what circumstances court can appoint a public servant as guardian of minor’s property (A08)
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31: What is meant by Talaq-e-Ahsan?
A: This is an Arabic word means “the best”. It is a form of talaq which is recommended). Therefore, this form is also called as Talaq-e-Sunnah. A talaq to be of ahsan form, the proceedings of divorce are as follows:
1. The husband must pronounce the formula of talaq in a single pronouncement
2. The wife must be in a state of purity
1. The husband must abstain from the intercourse, during the period of iddat, which is three months from the date of declaration or if the woman is pregnant, after the delivery .
EXCEPTIONS: The following are the exceptions:
1. When the marriage has not been consummated, talaq may be pronounced even if the wife is in her menstruation
2. Where the parties have been away from each other for a long period.
3. Where the wife is old and beyond the age of menstruation, the condition of purity is unnecessary.
CONSEQUENCES: the following are the consequences:
1. A ahsan form is revocable during the period of iddat.
2. Resumption of conjugal rights i.e. intercourse, is a clear indication of revocation.
3. After expiration of iddat period, the divorce becomes irrevocable.
2. A Muslim wife, after the divorce, is entitled to maintenance during the period of iddat, and so her child or children.
32: What is GIFT TO BAILEE?
A: Where the subject of gift is already in the possession of the donee as bailee, the gift may be completed by declaration and acceptance, without formal delivery of possession.
33: What is MISSING HUSBAND?
A: The wife is entitled to obtain a decree for the Dissolution of her marriage if the whereabouts of the husband have not been known for a period of four years.
But a decree passed on this ground will not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court must set aside the decree.
A: Where a gift is made with a condition for a return it is called Hiba-ba-Shsart-ul-Iwaz. As in the case of Hiba so also in the case of Hiba-ba-Shart-ul-Iwaz delivery of possession is necessary to validate the gift.
35: What is Talaq-ul-Bidaat or Talaq-e-Badai?
A: This consists of (a) three pronouncements made during a single tuhr either in one sentence, e.g., “I divorce three thrice” or on separate sentence, e.g., , I divorce thee, I divorce thee”. (b) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage i.e. “I divorce three irrevocably”
A talaq is the badai mode becomes irrevocable immediately it is pronounced, irrespective of iddat.
Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife or a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked.
36: What is Meant by ILLA?
A: This is a kind of Divorce. Divorce by Ila is a kind of constructive divorce. If a husband, having attained puberty, swears by God not to have sexual intercourse with his wife for a period of four months or more or for unspecified period, he is said to make ila.
If the husband having made ila, abstains from intercourse during the period comprised in the ila, the marriage is dissolved with the same legal results as if there had been one irrevocable pronouncement of talaq made by the husband.
37: Who are Ahl-ul Ray?
A: A Mujtahid is one who is authorized to expound the position is just like a juris-consult of the Roman Law. Thus not every person can exercise Ijtihad but only those qualified Mujtahids and a Mujtahid is one who exercises Ijtihad. One who is fit to do Ijtihad. It is the exclusive provilege of a Mujtahid. The Quran has two types of verses:
QUALIFICAITON OF A MUJTAHID:
According to Sadru’sh Shariat and Fakhru’l Islam, the following qualifications are laid down for a Mujtahid;
1. He must have a through knowledge of the Quran and must be able to interpret it. A knowledge of the Arabic language is also a prerequisite.
2. He must be a master of Traditions.
3. He must be fully acquainted with the theory of repeal; should be able to judge the repealed and the repealing texts and the circumstances leading to repeal.
4. he must be well-versed in the science of Islamic Jurisprudence. And as regards juristic opinions he should be able to arrive at conclusions as to which of the conflicting views is correct or is more in consonance with the spirit of the Quran and Traditions.
5. He must be a man of should judgment and piety, should be able to go behind, whenever necessary or possible, the texts and the objectives of Shariah.
Considering the variety of qualifications, it has subsequently been stated that the Mujtahids should be divided into various grades so that, if they have specialized in a particular branch of Islamic Law, they would be Mujtahids for that specific aspect.
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21: SCHOOLS OF ISLAMIC LAW:
A: SUNNI SCHOOLS?
1. The Hanafi School: This is the most famous of the four Schools of Hanafi Law. This school was founded by Abu Hanifa (699-767 A.D). the school is also known as “Kufa School”. Although taught by the great Imam Jafar-as-Sadik, the founder of the Shia was also a pupil of Abu Abdullah ibn-ul-Mubarak and Hamid bin-sulaiman and this may account for his founding a separate school. This school was favoured by the Abasid Caliphs and its doctrines spread for and wide. Abu Hanifa earned the appellation. “the Great Imam”. The school was fortunate in possessing, besides Abu Hanifa, his two more celebrated pupils, Abu Yousaf (who became the Chief Kazi at Baghdad) and Imam Muhammad Ash-Shaybani, a prolific writer, who has left behind a number of books on jurisprudence. The founder of the school himself left very little written work. The home of this school was Iraq but it shares this territory with other schools although there is a fair representation. The Ottoman Turks and the Seljuk Turks were Hanafis. The doctrines of this school spread to Syria, Afghanistan, Turkish Central Asia and India. Other names connected with the Kufa School are Ibn Abi Layla and Safyan Thawri. Books on the doctrines are al-Hidaya of Marghinani (translated by Hamilton). Radd-al-Mukhtar and Durr-ul-Mukhtar of Ibn Abidin and al-Mikhtasar or Kuduri. The Fatawa-I-Alamgiri collected in Aurangzeb’s time contain the doctrines of this school with other material.
1. The Maliki School: This School was founded by Malik ibn Anas (713-795 A.D.), who was an inhabitant of Median. Malik passed his life there and expounded the Traditions. He incurred the wrath of the Abbasids by his ruling that an oath of allegiance given, under duress, to the Abbasids was not binding. Later he was forgiven and it is said that Haroun-al-Rashid visited him at Medina. Malik came of a family known for its learning. Although taught by a teacher who emphasized independent exercise of reason in interpretation. Malik leaned towards jurisprudence based on the Quran and Hadia. Of the later Sunna (Infra) he followed only those of the Prophet. When Traditions conflicted, Malik depended on Ijmaa for the solution of conflict. But the relief only on the Ijmaa of the Mediness Mujtahids (infra). Malik also perfected the dectrine of the judicial practice of Medina. Malik’s book Kitab-al-Muwatta systematized the law. Another important book containing Malik doctrines is al-Mukhtasar off Khalil ibn Ishak. The Risala of Ibn Abi Zayd is also an authority.
The teachings of Malik Ibn Anas spread from Medina and Uper Eguypt to Central and West Africa, Spain, and Eastern Arabian Coast with Hanbalis and Shiites. At one time Morocco was a great center of Maliki doctrines. Malik’s great pupil Shahnun died in 854 A.D. but by then he had firmly established the Maliki School.
3. The Shafii School: This school was founded by Muhammad Ibn Idris ash-Shafi (767-820 A.D.). He was a pupil of Malik ibn Anas but lived a part of his life at Baghdad and the rest at Cairo. Ash-Shaffi was foremost in jurisprudence and methodology of law. He was responsible for the doctrine of Qiyas (infra) but he ruled that an analogy may be based rightly on the Quran or Hadis or Ijmaa (infra). He established Ijmaa as a source of law. He recognized only the sunna (infra) of the Prophet. Ash Shafii’s famous work is Kitab-ul-umm. A large number of boks have been written on Shafii school of which Tuhfat-al-Muhtaj of Hajar and Nihajat at Muhtaj of Ramli, both commentaries on Nawavi’s Minhaj al Talibin are standard authorities. Al Ghazzali’s al-Wajiz is also well-known.
The Shafii school spread in lower Egypt, Hejaz, South Arabia and East Africa. It has some adherents in Iraq and had a hold in Persia but lost ground to Shiites. There are very few Shafiis in India (mainly on the West Coast) but it has large numbers in Indonesia, Malaysia and South East Asia.
4. The Hanbali School: Every modification of principles which took people away from the traditions of the Prophet caused a reaction among those who held to the Transitions. This was particularly so when. The Traditionests followed the teachings of Ahmed Ibn Hanbal (780-855 A.D). born at Baghdad, Ahmed Ibn Hanbal was a pupil of Imam Shafii,. He perfected the doctrine of usul. He was author of several books chief among which are Musnad al-Imam Hanbal, Taat-ur-Rasul and Kitab-ul-Alal. The most exhaustive work on hanbali doctrines has been written by Muwaffak al-Din. Two Hanbali scholars (ibn Taymiyya and his pupil Ibn Kayyin-al-Jawayza) wrote on Siyasa and Sharia (infra).
The Hanbalis spread to Persia but lost ground to the Shiites. Hanbalis are to be found in Syria and Palestine. The Wahabi movement in Saudi Arabia (Started by Mohammad ibn Abd –ul-Wahab about the middle of 18th century) has introduced a paritan attitude and all innovations based on Qiyas (infra) and rai (infra are rejected as 0pposed to Traditions of the Prophet.
In India there is a sect known as Ghair Muqqallad, who do not strictly follow any school and who are akin to wahabis.
THE SHIA SCHOOL (03): THE Shia School owes its origin to Imam Jafar as Sadik the 6th Imam of the Imamias. This makes it earlier in point of time to most of the Sunni schools discussed above. There are many differences between Shia and Sunni jurisprudence. Shias do not accept any Tradition attributed to the Prophet (infra) unless it comes from the household of the Proophet (not accept the validity of any decision not endorsed by an Imam. The Imamia Shias are divided into two main branches – Akhbari and Usuali. The Akhbaris accept certain resolutions of former scholars but not the Usulis. The latter accept only those which are approved by their Imams. As, however, the Imams may not be available it is permissible to interpret by the application of reason (aql). In other words Ijmaa is valid only if the Imam could not be consulted. Conversely there is no room for equity, public policy or analogical deduction if the Imam were available.
The Shias are found in Persia where they form the largest majority. Elsewhere they are generally in a minority.
The School of Mutazilas is a rationalist branch founded by Wasil bin Ata. He was a pupil of Imam Hasan of Basra, a liberal philosopher, but went beyond his master and is known as a dissenter.
22: What is TALAQ-E-HASSAN OR TALAQ-E-THALATE?
A: Talaq-e-Hassan is also an approved from, but less approved. It consists of three successive pronouncements during three consecutive periods of purity. Each of the pronouncements should have been made at a time when no intercourse has taken place during that particular period of purity.
FOR EXAMPLE: The husband pronounces talaq on his wife for the first time during a period when wife if free from her menstrual course. The husband and wife has not come closer together during this period of purity This is first talaq during first tuher. Thereafter, in the following period of purity, at a time when no intercourse has taken place, husband pronounces the second talaq. This talaq is again revoked by express words or conduct, and the third period of purity. During this period of purity, no intercourse having been taken place, husband for the third time pronounces the talaq. This third pronouncement operates in law as a final and irrevocable dissolution of marital tie.
ESSENTIALS: The following are the essentials:
1. There must be three successive pronouncements of talaq
2. In case of a menstruating wife, the first pronouncement should be made during the period of tuhr, the second during the next tuhr, and the third during the third tuhr.
3. In case of non-menstruating wife, the pronouncements should be made during the successive intervals of thirty days.
23: What is DEATH BED GIFT?
A: A Muslim has unlimited powers to dispose of his property by way of gift, but the law has imposed restrictions on the donor’s power to dispose of his property by a gift during marz-ul-maut.
A death-bed gift:
1. When made to a non-hair, cannot operate on more than a third of the testator’s estate after payment of funeral expenses and his heirs give their consent, after the death of the donor, to the excess taking effect. If they do not consent, the gift take effect only in respect of a third of the donor’s estate.
2. When made to an heir, is altogether invalid, unless the other heirs consent thereto.
24: What is Meant by LEGITIMACY?
A: The fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution provided the mother remaining unmarried shall be conducive proof that he is the legitimate son of the man unless it can be shown, that the parties to the marriage had no access to each other at any time, when he could have been begotten. As regards a child born after 280 days of the dissolution of marriage the court may presume its legitimacy if it thinks that the child is likely to be legitimate. Regard being had to the common course of natural events in their relation to the facts of a particular case i.e., marriage may be presumed in certain circumstance namely:
1. From continued cohabitation
2. From acknowledgement by the father (Article 128 Qanun-e-Shahadat Order 1984)
According to Article 128, Qanun-e-Shahadat Order, 1984, that the fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of 6 lunar months from the date of marriage or within two years after its dissolution the mother remaining unmarried shall be conclusive proof that he is the legitimate child of tht man, unless:
1. The husband had refused or refuses to own the child
2. the child was born after the expiration of six lunar months from the date on which the woman had accepted that the period of iddat had come to an end.
25: What is WAQF UL AWLAND?
A; A wakf-alal-awlad is a wakf created for settler’s own family and his descendants. It is really wakf in favour of unborn descendants.
Before the passing of the Mussalman Wakf Validating Act, 1913, a valid wakf could be created for the benefit of the settler’s descendants, including unborn persons, provisions be made for charitable objects. If the effect of the deed was to give the property substantially to charitable uses it would be valid, but if its effect was to give the property in substance to the settler’s family it would be invalid. The real object should not have been the aggrandizement of the family. The dedication to charitable purposes should not have been remote and illusory or made to take effect in a very remote contingency.
But after the passing of the Mussalman Wakf Validating Act, 1913, a Muslim can create a wakf for:
1. The maintenance and support of his family
2. His own maintenance and support and for the payment of his debts out of rent and profits if the settler is a Hanfi Muslim.
The ultimate benefit in all such wakfs should be reserved religious, pious or charitable purposes of a permanent character according to Muslim Law. But such purposes may be postponed until after the extinction of the family, children or descendents of the wakif. So now substantial dedication to charity is not necessary. It may seem to be remote and illusory but the wakf will be valid if ultimate benefit is reserved for charitable purposes.
26: What is IRRIGULAR MARRIAGE?
A: An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arisen from an accidental circumstances, such as the absence of witnesses. Thus the following marriages are irregular, namely:
1. A marriage contracted without witnesses
2. A marriage with a fifth wife by a person having four wives
3. A marriage with a woman undergoing iddat
4. A marriage prohibited by reason of difference of religion
5. A marriage with a woman so related to the wife that if one them had been a male, they could not have lawfully intermarried.
EFFECTS OF AN IRREGULAR MARRIAGE: An irregular marriage can be terminated by before or after consummation. An irregular marriage has no legal effect before consummation. If consummation has taken place.
1. the wife is entitled to dower, proper or specified whichever is less.
2. She is bound to observe Iddat
3. The issue of the marriage is legitimate
4. An irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife.
SHIA LAW: The Shia law does not recognize the distinction between irregular and void marriage. According to that law, marriage is either valid or void. Marriages that are irregular under the Sunni Law, are void under the Shai Law.
27: What is PARENTAGE?
A: parentage is the legal relation of parents including father and mother to their children. Paternity and maternity are the branches of parentage.
The law of parentage and acknowledgement which includes paternity and maternity is the result of the institution of marriage. A Mohammaden marriage is a contract which confers the status of husband and wife on the parties and of legitimacy on the children parentage gives rise to the concepts of legitimacy and illegitimacy. As far as illegitimacy is concerned, it is totally untolerated in Islamic law and sexual relations outside marriage are condemned as illicit, and the woman or man who is involved in it is punishable for Zina. According to Sir parentage of a child is determine don the principle that it always follows the marital bed. The father of a child born in wedlock, is presumed to be the husband of the woman, giving birth to it and a child which is born after 6 months of marriage, and during its continuance, is said to be born in wedlock.
The legal effect of marriage in fixing the paternity of child also continues according to the Hanafis for two years and according to the Malikis and Shafis for four years, after the separation of divorce or death.
28: What is ZIHAR?
A: Zihar is a form of inchoate divorce. If the husband compares his wife to his mother or any other female within prohibited degree, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by penance, the wife has the right to apply for a judicial divorce.
29: What is Meant by Public Mosque?
A: Every Muslim is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of another sect or school. (Section 209 Mohammedan Law).
The right to officer prayers in a mosque is a legal right, for the disturbance of which a Muslim is entitled to seek relief in a Court of law.
30: What is Prompt Dower?
A: It is payable on demand, immediately after the marriage, unless delay is stipulated or has been agreed. It can be realized any time before or after the marriage.
Prompt dower does not become deferred. After consummation of the marriage, and a wife has absolute right to sue for the recovery of prompt dower even after the consummation. After consummation the only fact which goes against the wife is that she cannot resist the consummation of conjugal rights of the husband. Under such circumstances she can get a conditional decree.
It is only on the payment of prompt dower that the husband becomes entitled to enforce conjugal rights, unless the marriage has already been consummated. The right of restitution rises only when the dower has been paid.
Since prompt dower is payable on demand, limitation starts on demand and refusal. The period of limitation is three years. If the wife during the marriage does not make any demand, the limitation begins to run either from the date of dissolution of marriage or from the death of the husband.
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11: VOID MARRIAGE?
A: A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity, affinity or fosterage, is void, the prohibition against marriage with such a woman being perpetual and absolute.
EFFECT OF A VOID MARRIAGE: A void marriage is not marriage at all. It does not create any civil rights or obligations between the parties. The offspring of a void marriage are illegitimate.
12: What is RESIDORIES?
A: Residuaries are those who take no prescribed share, but succeed to the ‘residue’ after the claims of the shares are satisfied.
13: What is meant by DEFFERED DOWER?
A: It is payable on termination of marriage by death or divorce. In general terms deferred dower is a penal sum with the object to compel the husband to fulfill marriage contract in its entirety.
Deferred dower is payable before dissolution of marriage by death or divorce. But if there is a contract to the contrary that the payment of deferred dower earlier than the dissolution of marriage, such an arrangement would be valid and binding.
The wife is not entitled to demand payment of deferred dower unless so stipulated in the marriage contract, but the husband can treat it as prompt and pay or transfer the property in lieu of it.
The interest of the wife in the deferred dower is a vested right and not subject to any contingencies. It cannot be replaced or dispelled not even her won death and under such circumstances her heirs can claim the money if she dies.
Hazrat Ali said:
“There can be no marriage without mehr it is essential for a lawful marriage whether specified or not”.
14: What is MUTAWALI?
A: According to Section 3(f) of Waqf Act, 1954, mutawali means any person appointed either verbally under any deed of instrument by which a waqf has been created or by a competent authority to be the Mutwalli/Khadim, Mujawar Sajjada or other person appointed by a Mutawalli to perform the duties of a Mutawalli and save as otherwise provided in this Act i.e., Waqf Act, 1954, any person or committee for the time being managing or administrating any waqf property in the absence of regular Mutawalli.
According to Imam Abu Yousaf, the waqf would not be invalid even if no Mutwalli is appointed by the waqif, the waqif would himself be appointed as a Mutawalli, but according to Imam Abu Hanifah and Imama Mohammad, “the waqf itself would fail if no Mutawalli is appointed”, but the view of Imam Abu Yousaf has been accepted.
APPOINTMENT OF MUTAWALLI: The first Mutawalli be appointed in the manner mentioned below:
1. If the waqif has laid down in the waqf Namah, for succession to the office of Mutawalli, the Mutawalli shall be appointed according to the directions maintained in the waqf Namah.
2. In the absence of any directions in the waqf Namah, the appointment shall be made according to any custom or usage regarding it.
3. In the absence of any custom or usage the appointment shall be made:
a. By the waqif
b. In the absence of the waqif by his legal representative.
c. In the absence of legal representative, by the out going Mutawalli on his death bed.
d. In the absence of all the Court may appoint a Mutawali.
15: What is SHARER?
A: Shares are those who are entitled to a prescribed share of inheritance.
16: What is Meant by SPECIFIED OR PROPER DOWER?
A: Dower may be ‘specified’ or ‘proper’ according as whether the amount of dower has been fixed or not.
When the amount is fixed between the parties, it is called ‘specified dower’. Such settlement usually takes place before or at the time of marriage. The may even be increased after the marriage.
If the amount of dower is not fixed the wife is entitled to ‘proper’ dower, even if the marriage was contracted on the express condition that she should not claim any dower. While determining the amount of proper dower, the following considerations are taken into account:
1. Personal qualities of the wife
2. Traditions prevailing in the house of wife’s father
3. Dower settled upon other sisters of the wife.
17: What is CONTINGENT GIFT?
A: A gift which is made to take effect on the happening of a certain event is called a contingent gift. Such gift cannot be made and is void:
1. A makes a gift of a certain property t B with a condition that B shall be transfer the property. The restraint against alienation is void and B takes the property absolutely.
2. A makes to B a gift of a cow attaching the condition that he shall not sell the mil. The condition is void.
3. A makes a gift to B to take effect ton B’s marrying C. The gift is void.
18: What is Meant by WILL?
A: According to Fatawa Alamgiri, it is a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
According to Islam, a bequest is a tamleek (passing of possession) of property from a dying person to any other hiring person. A bequest in Islam is a contract.
A will may be defined as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into affect after his death.
ESSENTIALS OF WILL: The following are the essentials of will:
1. Declaration by testator (free consent)
2. Acceptance of living person (Legatee)
3. Testator must:
a. major (under the majority Act, but not under the Islamic law)
b. Sound mind
c. Possessed with ownership of the property
d. Expression of the clear intention either express or implied.
4. The legatee must be competent to take the legatee.
5. The subject of bequest must be valid one.
6. Bequest must be within the limit imposed on the testamentary power of a Muslim.
19: What is DEFECTOR GUARDIAN?
A: A person may neither be a legal guardian, nor a guardian appointed y the Court, but may have voluntarily placed himself in charge of the person and property of a guardian. Such a person is called de facto guardian.
Powers of de facto guardian. A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is void.
20: GIFT IN FUTURE?
A: A gift cannot be made of anything to be performed in future nor can be made to take effect at any future period whether definite or indefinite.
1. A makes a gift to B of “the fruit that may be produced by his palm tree this year”. The gift is void as being a gift of future property.
2. A Muslim executes a deed in favour of his wife purporting to give to the heirs in perpetuity Rs 4,000 every year out of his share of the income of certain Jaghir villages. The gift is void, as being a gift of a portion of the future revenue of the village. It was also held that a gift of future revenue, being in the nature of usufruct is valid.
3. A executes a deed of gift in favour of B, containing the words “so long as I live. I shall enjoy and possess the properties, and I shall not sell or make gift to anyone, but after my death, you will be the owner”. The gift is void, for it is not accompanied by delivery of possession and it is not to operate until after the death of A.
4. A is entitled to receive a specified share in the offerings made by pilgrims at a certain shrine. A may make a valid gift of the right to receive such share. Here the thing gifted is “the right of the donor to receive a fixed share in the offerings after they have been made”.