IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q 7    Upto What Age of her Minor Children is a Mother Entitled to the Custody of their Person and when does she lose the right of Custody.

 

A:                The Mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father.

                   Failing the mother, the custody of a boy under the age of seven years, and a girl who has not attained puberty, belongs to the following female relatives in the order given below:

1.                   Mother’s mother, howhighsoever

2.                 Father’s mother, howhighsoever

3.                 Full sister

4.                 Uterine sister

5.                 Consanguine sister

6.                 Full sister’s daughter

7.                 Uterine sister’s daughter

8.                  consanguine sister’s daughter

9.                 Maternal aunt, in like order as  sister

10.              Paternal aunt, also in like order as sister

 

A female including the mother, who is otherwise entitled to the custody of a child, loses the right of custody:

1.       If she marries a person not related to the child within the prohibited degrees, but the right revives on the dissolution of the marriage, by death or divorce

2.       If she goes and resides, during the subsistence of the marriage at a distance from the father’s place of residence.

3.       If she is leading an immoral life, as where she is a prostitute

4.       If she neglects to take proper care of the child.

 

 

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q: 6   Who are the Persons Competent to file an APPLICATION for the Appointment of Guardian?

 

A:                Section 8 of the Guardians and Wards Act lays down that:

“ An order shall not be made under the last foregoing section 7 except on the application of:

1.                   The person desirous of being or claiming to be, the guardian of the minor.

2.                 Any relative or friend of the minor.

3.                 The Collector of the District or other local area within which the minor ordinarily resides or in which he has property.

4.                 The Collector having authority with respect to the class to which the minor belongs.”

An application for the appointment of a guardian can be made either by the person who wishes to be appointed or by any relative or friend of the minor, or by the Collector. Clause (b) gives wide scope for all interested in the minor to apply. Ties of blood are not necessary. It is competent to any friend of minor to approach the Court in case of the minor being ill-treated and to invoke the protection of the court on behalf of the minor. Thus, where a Hindu father was going to marry his daughter at the young age of four years, and the Guru of the community to which the father belonged applied to be appointed guardian of the person of the minor on the ground of her early marriage of which would expose her to the risk of premature widowhood, it was held that any friend of a minor may approach the court in the case of the minor being ill-treated and invoke the protection of the court on behalf of the minor. But it is not competent for a friend of the minor who is an outsider and not a relative to invoke the protection of the court for a minor who is in the lawful custody of her father, unless the applicant can satisfy the court that it is for the welfare of the minor that an order should be made against the father.

APPLICATION BY DEBTOR: Where a debtor offered to deposit in the court the amount alleged by him to be in deposit with him on behalf of the minor and asked the court to appoint a guardian for minor in respect of that amount, it was held that the debtor could be regarded as a friend of the minor and, therefore, he had locus standi to file the application.

AN INSTITUION CANNOT APPLY: under clause (a) the person who is desirous of being appointed can apply for being appointed. The duties and qualifications of a guardian do not permit any institution coming under this clause for being appointed a guardian of a minor.

AN OFFICIAL TURSTEE CANNOT BE APPOINTED: Excepting the Collector there is no other office who can be appointed a guardian of the property of minor.

MINOR CANNOT APPLY: Under the English Law, an infant possessed of property, whose father and mother are dead, and for whom there is not testamentary guardian has, after attaining the age of 14 (in the case of female, 12) the power of applying to the court for appointment of a guardian for himself, or herself. But the law gives the minor no such power. The persons who can make an application for the appointment of a guardian have been enumerated in the various clauses. A minor is not covered by any of the clauses and hence he cannot make an application himself for the appointment of a guardian for his person or property. This is also because a minor not being sui juris is incapable of making an application in a court For the same reason a minor cannot make an application as a fried or relation under clause (b) for the appointment of guardian of an other minor.

APPLICATION ESSENTIAL: From the language of Section 8 it is clear that a guardian cannot be appointed without an application under this Act. It is not open to a court to appoint a guardian at its own initiative. But once an application has been made in accordance with the provisions of Section 8 the jurisdiction of the court under the Act comes into play and it is open to it, as a result of the enquiry initiated on the application to appoint any other person as guardian of the minor provided the former has expressed his willingness to act as a guardian. But the court is competent to appoint only such person as guardian who either claims by his own application to be appointed guardian, or is proposed for appointment by some relative or friend of the minor. But a third person (i.e. one who neither applies himself nor is proposed by anybody else) cannot be appointed guardian. 

SECOND APPLICATION AFTER REFUSLA OF THE FIRST: Where an application has been dismissed on merits a second application for the appointment of the same person is not competent. But if the same person files the second application proposing the name of another person than himself for the appointment of a guardian the application is competent. Nor is a court precluded from entertaining a second application for appointment of guardian to the same minor, where the first was made by another person nor notwithstanding that a previous application by the same person has been dismissed in default. But where an order appointing guardian has been made no attempt to set aside at the instance of the party who opposed the appointment should be countenanced.

LIMITATION: there is no limitation for presenting an application for guardianship. It could be presented at any time within two limits namely:

1.       The date of the birth of the minor

2.       The date of the completion of 18 years at the time of the appointment and not at the time of the application.

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q 5    What are the OBLIGATIONS on the Guardian of Property of Minor Appointed by the Court?

 

A:                Once a person, whether natural guardian or a stranger, is appointed guardian of a minor by order of the Court passed in accordance with the provisions of the Act, as contained in Sections 28 to 31, he is clothed with all the obligations imposed with the ward’s property. It is not in his power to throw off those obligations by the exercise of his own volition and pose as a natural guardian and act in that status.

                   PRECEDENCE OF RIGHT FOR GUARDIANSHIP OF PROEPRTY: According to Islamic Law, the following person s are entitled to be guardians of the property of a minor. They have the following order of precedence:

1.                   the father,

2.                 The executor appointed by the father’s will.

3.                 the father’s father.

4.                 The executor appointed by the will of the father’s father.

In default of these guardians the court may appoint a guardian for the protection and preservation of the minor’s property:

1.       MOTHER: She as such, is not the legal guardian of her minor son. She is only a de factor guardian and is therefore not competent to transfer the property of the minor.

2.       BROTHER: He is not a legal guardian of his minor sisters.

3.       UNCLE: Paternal uncle is not a legal guardian under Muslim Law.

4.       OTHER PERSONS: Only the persons mentioned above can act as guardians of the property of the minor. Failing such persons, the court may appoint a proper guardian. Persons not so appointed but acting as de facto guardians cannot bind the minors by their acts.

STATUS OF TESTAMENTARY GUARDIAN: The father or grandfather of the minor may appoint a guardian of his minor children by his will, and such guardian will have the power of a legal guardian.

STATUS 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 not merely viodable but void.

MAJOR DUTIES OF GUARDIAN OF THE PROPERTY OF A MINOR: section 27 enjoins upon a guardian to deal with the minor’s property as carefully as it were his own. In case, the guardian has been negligent he is liable for the profits which could have been received but for his gross and willful default.

STANDARD OF CARE: the standard of care required is that by which he has to be judged is that of a prudent man who is acting carefully with his own money. If the guardian is proved to have used ward’s money in his personal business, the ward will be entitled to receive principle sum, as well as the profits guardian has made out of the use of that money.

BREACH OF TRUST: It  is cardinal principle of law that every plain neglect of duty amounts to a breach of trust, and the guardian must compensate his ward for any loss occasioned to ward’s money.

GENERAL POINT OF VIEW OF THE COURT: It is normal practice that no court will uphold a transaction which it considers that a man of ordinary prudence would not have made, in respect of his own property; but where the transaction is sanctioned by the court no court would set aside it.

RECOVERY OF THE POSSESSION OF THE MINOR’S PROEPRTY: A guardian who has been appointed must make all attempts to obtain possession of the property of the minor. A certificated guardian, who has accepted the position of a trustee by virtue of an order passed by a court of law, cannot be say that he did not do his duty but let the properties remain under the management of somebody else. If he does not take any step to reduce into possession the properties of the minor, there is undoubtedly willful default and neglect of duty on the part of the guardian and the court will be entitled to pass a decree for accounts on the basis of default and neglect. 

If through his negligence he has lost some of the property of the ward, and has subsequently spent his own money for recovery of such properties, he will not entitled to recover the money thus spent from the minor but the money spent on recovery of possession from somebody at the time of his accepting office, will be payable to him.

LEGAL PROCEEDINGS: A guardian is under obligation to deal with the property of his ward as if it were his own and to do every thing which is reasonable and proper for the protection and benefit of the property entrusted to him. A guardian may, as such, bring a suit to preserve and protect the rights of the ward.

INVESTMENTS: It is well-settled rule that a guardian while making an investment of the property of the minor, is legally bound to act honestly and faithfully and exercise his own sound discretion like a man of ordinary prudence and intelligence use in their own affairs. He has no power to start an entirely new business unless compelled by necessity and for protection and benefit of the minor.

COMPROMISE: The natural guardian is competent to protect his interests and enter into a compromise provided it is for the benefit of the minor. This is question of fact and must be decided meticulously and jealously in each and every case depending upon its own circumstances.

DEBTS INCURRED FOR NECESSITIES: No doubt, a guardian cannot make covenants in the name of his ward so as to create personal liability on the minor, yet it does not mean that the minor is necessarily exempt from all liabilities in respect of simple contracts entered into by the guardian. If the debts were incurred for necessaries, the ward would be bound to pay them on the general principle embodied in Section 68 of the Contract Act.

NATURE OF NECESSARIES: Necessaries are those suited to minor’s condition in life and include such things as are reasonably required for the nourishment, clothing, lodging, education, health and decent behavour, and appearance of the minor according to his standard in life and fortune. The personal law of minor also plays an important part in the determination of his necessities.

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q: 4   Define “HAZANAT” and Distinguish between Legal and Natural Guardia

 

A:                Hizanat means custody of a minor, or in other words, the guardianship of the person of a minor.

                   The right may be lost under certain circumstances. According to the Islamic Law, the mother loses his right when the male child attains the age of seven years and the girls attain the age of puberty which is fifteen years. But as this rule of Islamic Law is subject to the Indian Majority Act, the right to custody should be deemed to continue till the minor attains the age of 18 years.

                   A female (including a mother) otherwise entitled to the custody of a child loses the right to the custody:

1.       If she marries a person not related to child within the prohibited degrees, but the right revives on dissolution of the marriage by death or divorce.

2.       If she is ‘wicked’ as where she is a prostitute or a professional singer, or has committed theft or other criminal offence which make her unworthy to be trusted.

 

Following are the persons legally entitled to act as guardian of the property of the minor in order of preference:

1.       The father

2.       the executor appointed by father’s will

3.       The father’s father

4.       the executor appointed by the will of the father’s father and failing all these

5.       the person appointed by the Court to act as guardian of the minor’s property.

Thus there are three kinds of legal guardians of the minor’s property:

NATURAL GUARDIANS: These are the father and father’s father. The father is the primary natural guardian. If he grows too old and infirm and unable to discharge his duties he may delegate his power to another person to act as the guardian of the minor even inter vivos.

IMPORTANT Q/A OF GUARDIANS AND WAFDS ACT, 1890 By Zulfiqar Ali Chandio

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Q 3:   Who is Entitled to become a Guardian for Property and Person of a Minor?

 

A:                Following are the persons legally entitled to act as guardian of the property of the minor in order of preference:

1.                   The father

2.                 the executor appointed by father’s will

3.                 The father’s father

4.                 the executor appointed by the will of the father’s father and failing all these

5.                 the person appointed by the Court to act as guardian of the minor’s property.

Thus there are three kinds of legal guardians of the minor’s property:

1.       NATURAL GUARDIANS: These are the father and father’s father. The father is the primary natural guardian. If he grows too old and infirm and unable to discharge his duties he may delegate his power to another person to act as the guardian of the minor even inter vivos.

2.       TESTAMENTARY GUARDIANS: These are the executors of the will of the father and father’s father. If an executor is appointed generally and not for the particular purpose of looking after the property of the minor, such general executor may appoint his executor to act as guardian of the minor’s property.

3.       GUARDIANS APPOINTED BY COURT: Court appoints guardians of the property in the absence of guardians mentioned above. Their appointment, powers and duties are governed by the Guardian and Wards Act.

IMPORTANT Q/A OF ISLAMIC PERSONAL LAW By Zulfiqar Ali Chandio

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Q 18: Who can Make WILL, whether Will can be made to the Heirs.?

 

A:                WHO CAN MAKE A WILL: Every Muslim who is of the age of majority and of sound mind is competent to executive a will. For the purposes of will, the age of majority of the testators is determined by the Majority Act, 1875. According to this Act, every minor who has attained the age of 18 years becomes a major unless the superintendence of his property has been assumed by the Court of Wards, in which case a minor becomes a major on completion of 21 years of age and not before. As already said, a minor is incompetent to make a will, but when a will is made by a minor, it may , subsequently, be validated by his ratification on attaining majority. A person cannot be deprived of his power to make a will simply because he has been condemned to death.

                   Under the Shia Law, a will made by a person who wounds himself mortally, or takes person for committing suicide, is invalid. It is because the law regards the person who has inflicted a fatal wound on himself, as suffering from want of sense, and also because he placed himself in the category of a dead man, to whom the provisions as to living persons do no apply.

                   WILL OF AN APOSTATE: there is conflict of opinion as to the validity of a will made by a Muslim who renounces Islam afterwards. The Maliki School holds that apostasy invalidates such a will, but according to Hanafis, the will would be effective, if it is lawful according to the sect from which he has apostated.

                   WILL OF AN INSOLVENT: It is of fundamental importance that the testator should be the proprietor of the subject of the will nor that he should be solvent. If his liability exceeds the assets, the bequest will not be effective unless the creditors discharge the estate from the payment of their debts.

                   NECESSARY FORMALITIES:  Under the Islamic Law, a will may be made either verbally or in writingnor any particular form is necessary to constitute a will. The only requisite is that intentions are declared with sufficient clearness to be capable of being ascertained. Thus, may unequivocal expression, written or oral will suffice. Even if it is in writing it need not be signed by the testator or attested by witnesses.

                   Further any property which is capable of being transferred and which exists at the time of the testator’s death may be disposed of by a will.

         

Whether Will can be made to the Heirs: Heirs cannot be the legatees, that is, no bequest to heirs, who are entitled to inherit. This rule is relaxed only in cases, where other heirs give their consent (after testator’s death, in Hanafi Law; before or after testator’s death, in Shia Law). By giving consent, an heir can bind only his own share but not of others.

It is essential that the heir must be in existence at the time of testator’s death.

IMPORTANT Q/A OF ISLAMIC PERSONAL LAW By Zulfiqar Ali Chandio

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Q: 16: Whether WAQF can be REVOKED?

 

A:                A testamentary waqf, that is, a waqf made by a will may be revoked by the waqif at any time before his death. Where at the time of creating a non- waqif reserves to himself the power of revoking the waqf, the waqf is invalid.

 

Q: 17: What are the ESSENTIALS of GIFT, on what Circumstances Gift can be REVOKED?

 

A:                ESSENTIALS OF A GIFT: Following are the essentials of a valid gift:

1.                   Declaration of the gift by the donor

2.                 Acceptance of the gift, expressly or impliedly, by or on behalf of the donee.

3.                 Delivery of possession of the subject-matter of the gift to the donee.

If any of the above conditions is missing, the gift is not complete.

1.                   DECLARATION: Declaration does not mean simply an announcement of the gift but it also entails that the donor should have a real intention of making the gift. Tyabi says: “Where there is no real and bona fide intention to transfer the ownership of the subject of gift, an alleged gift may be of no effect.” Gifts without intention may be Sham gifts, colourable or benami transactions, etc.

2.                 ACCEPTANCE: The donee must accept the gift. This acceptance may be express or implied (that is, by conduct). But the gift of a debt to a debtor or his heir is valid without acceptance and is not invalidated by his rejection. For example, A owes Rs 100/- to B. B makes a gift of this debt of Rs 100/- to A, which A does not accept and insists on paying the money to B. The gift shall, however, by valid and effective even on A’s refusal to accept it.

3.                 DELIVERY OF POSSESSION: When the donor makes a declaration of a gift and the donee accepts, then the possession of the thing gifted should also be given to the donee. Such delivery of possession may be actual or constructive.

In case there are more donees than one, possession by one co-sharer is presumed to be in the name and on behalf of other co-sharers. If the co-sharer does not admit claim of a person believing that the real co-sharer is someone else, then he cannot be held to put up an adverse claim to the whole of the gift property, excluding the claim of any other co-sharer. He should be considered as only expressing his doubt about the title of a particular co-sharer.

Registration of gift-deed could not in any way do away with the need of the delivery of possession. Thus, for example, where A makes a gift of a house belonging to him in favour of B, through a registered deed, but does not deliver the possession to B, the gift is incomplete, and therefore void.

The delivery of possession does not mean that the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession as the matter is susceptible of.

 

Thus, if A makes a gift of the corpus of a property to B, but reserves the usufruct to himself and continues in physical possession of the property, the Government revenue after the date of the gift in respect of the property, amounts to constructive possession of the property by B, and the gift is complete and valid.

If a makes a gift of the corpus of a property to B, but reserves the usufruct to himself and continues in physical possession of the property, the payment by B of government revenue after the date of the gift in respec tof the property, amounts to constructive possession of the property by B, and the gift is complete and valid.

If A makes a gift to B of his landlord rights over lands in the occupation of tenants, the gift is complete as soon as the tenants, by direction of A, have paid, or undertaken to pay, rents to B. Where A makes a gift to B of a promissory note which becomes payable on delivery and endorsement, the gift is complete as soon as the note has been endorsed and delivered to the donee.

 

On what Circumstances Gift can be REVOKED: A gift may be revoked by the donor at delivery of possession. The reason is that before delivery there is no complete gift at all.

Once possession is delivered, nothing short of a decree of the court is sufficient to revoke the gift, except in the following cases:

1.       Where it is made to the husband or wife during the subsistence of marriage.

2.       When the donee is related to the donor within the prohibited degrees.

3.       When the donee is dead.

1.                   When the thing given has passed out of the donee’s possession.

2.                 When the thing given is lost or destroyed.

3.                 When the thing given has increased in valued, whatever be the cause of increase.

4.                 When the thing given is so changed that it cannot be identified.

5.                 When the donor has received something in exchange for the gift.

IMPORTANT Q/A OF ISLAMIC PERSONAL LAW By Zulfiqar Ali Chandio

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Q 15: When BEQUEST  to Heir is Valid, Illustrate?

 

A:                Bequest can be made for the following persons:

1.                   ANY PERSON: Any person who is capable fo holding property, whether male or female, Muslim or non-Muslim, may validly avail the benefit of a bequest.

2.                 UNBORN PERSON: Unborn person cannot be a legatee. However, if the lactate is in the womb and the birth takes place the will, he can be a lawful legatee. Shai Law recognizes a legatee born within 10 months from the date of will.

3.                 HEIRS: Heirs cannot be the legatees, that is, no bequest to heirs, who are entitled to inherit. This rule is relaxed only in cases, where other heirs give their consent (after testator’s death, in Hanafi Law; before or after testator’s death, in Shia Law). By giving consent, an heir can bind only his own share but not of others.

It is essential that the heir must be in existence at the time of testator’s death.

ILLUSTRATIONS:

a.       A Muslim dies leaving him surviving a son, a father, and a paternal grandfather. Here the grandfather is not an “heir”, and a bequest to him will be valid without the assent of the son and the father.

b.       A Muslim dies leaving a son, a widow and a grandson by a predeceased son. The grandson is not an heir and a bequest to him is valid to the extent of one-third without the consent of other heirs, i.e, son and widow.

c.       A, by his will, bequeaths certain property to his brother. The only relatives of the testator living at the time of the will are a daughter and the brother. After the date of the will, a son is born to A. the son, the daughter and the brother all survive the testator. The bequest to the brother is valid for through the brother was an expectant heir at the date of the will, he is not an “heir” at the death of the testator, for he is excluded from inheritance by the son.

a.                  A Muslim leaves him surviving a son and a daughter. To the son he bequeaths three-fourth of his property, and to the daughter one-fourth. If the daughter does not consent to the disposition, she is entitled to claim a third of the property as her share of the inheritance.

4.       APOSTATES: Apostates cannot in any case be legatees. A bequest to non-Muslims, however, is valid according to all Schools except Shafei School.

5.       MANSLAYER: Manslayer is one who kills another person, from whom he intends to take a legacy. Hanafi Law prohibits him to take any interest in the bequest. In Ithna Ashari (Shia) Law, however, the more logical view is taken and only intentional homicide leads to exclusion.

6.       INSTITUTIOIN: Institutions, whether religious or charitable, can be valid legatees.

IMPORTANT Q/A OF ISLAMIC PERSONAL LAW By Zulfiqar Ali Chandio

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Q 14: Define WAQF. What are the Object of WAQF? Can a Muslim Create Waqf in favour of his Children and Descendants?

 

A:                DEFINITION OF WAQF: A waqf is an unconditional, irrevocable, perpetual dedication of the property, vested in favour of, and in the ownership of God (Allah) in such a manner that the ownership of the founder is extinguished and the usufruct of the property is used for the benefit of mankind except for purposes forbidden by Islam.

                   ESSENTIALS OF WAQF: the essentials of a valid waqf are as follows:

1.                   (Essentials written in meaning in legal terms)

2.                 Permanent dedication of any property

3.                 by a person professing Muslim faith

4.                 For any purpose recognized by the Islamic Law as religious, pious or heritable.

5.                 Under the Shia Law, delivery of possession must be there

6.                 Waqf must be immediate and un-contingent.

DISTINCTION BETWEEN TRUST AND WAQF: A trust differs from Waqf in the following aspects:

 

TRUST			WAQF
1.	No religious motive is necessary in a trust.		The motive should mostly be religious
2.	A trustee may be beneficiary.		A founder except a Hanafi Muslim cannot reserve any benefit for himself.
3.	There may be any object whatsoever.		Object should be charitable, pious or religious.
4.	It involves doubles ownership, equitable and legal. The property vests in the trustee.		Extinction of ownership of the Waqf and vesting of ownership in Allah.
5.	The trustee has superior power of using the property, because he is the legal owner.		While Mutawalli, is a mere receiver and manager.
6.	A trustee cannot demand remuneration.		Mutawalli may ask for remuneration.

 

WAQIF’S FAMILY AND DESCENDANTS: Before 1913, waqf’s created substantially or exclusively for waqif’s family and descendants were treated as invalid. But after the passing of the Mussalman Waqf Validating Act, 1913, waqfs for the benefit of family are valid.

The term “family” has been liberally interpreted by the Courts, and has never been confined to for maintenance on the wakif. In a recent case the Allahabad High Court observed:

“The word ‘family’ in Section 3 (a) (of Waqf Validating Act, 1913) has to be given a wide and not a restricted meaning and a person may belong to a ‘family’ if either he is from a common progenitor or if he is living under the same roof and is being supported and maintained by the settler. As long as one of these two conditions are satisfied, the beneficiary would be a member of the family within the meaning of the Act”.

 

OBJECTS OF WAQF: Objects of Waqf may be for the benefit of persons of for any object of piety and charity. The term “charity” includes every purpose which is recognized pious”. Every good purpose which God approves, or by which approach (Qurbat) is attained to him, is a fitting purpose for a valid and lawful waqf. Objects of a waqf may be religious, charitable or private.

Following are valid objects of a waqf:

1.       Mosques and provisions for Imams to conduct worship therein.

2.       Colleges and provisions for professors to teach in them.

3.       Aqueducts and bridges.

1.                   distribution of alms to poor and assistance to poor to enable them to perform pilgrimage to Mecca.

2.                 Celebrating the birth of Ali Murtaza.

3.                 Keeping Tazias in the month of Moharram.

4.                 Repairs of Imambaras.

5.                 Maintenance of a Khankah.

6.                 Celebrating the death anniversaries of the settlor and his family.

7.                 Burning lamps in a mosque.

 

The following are not valid objects of a waqf:

1.                   Objects prohibited by Islam.

2.                 Payment to lawyers.

3.                 Providing for the rich exclusively.

4.                 Dedication to objects which are not certain.

5.                 A direction to spend a certain sum of money for feasting Cutchi Memos every year on the anniversary of the settlor’s death.

CONCLUSION: The objects for which a waqf may be crated must be one recognized by the Islamic Law as “religious, pious or charitable. Specification of objects is not necessary. A trust for charity simpliciter, so long as it is confined to charity exclusively, is a perfectly good waqf. A waqf may be created for the settlor’s own family and his descendants provided ultimate benefit is reserved for charitable purposes. A Hanafi Muslim can make a provision for his own maintenance or for the payment of his debts out of the rents and profits of the property dedicated but there should be ultimate benefit reserved for the poor or for any other purpose recognized as religious; pious or charitable.

IMPORTANT Q/A OF ISLAMIC PERSONAL LAW By Zulfiqar Ali Chandio

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Q 13: How much of his/her Estate of Muslim can dispose of by WILL? Does Quran Lays down this Limit of testamentary powers?

 

A:                POWER TO DISPOSE OF BY WILL: The power of a Muslim to dispose of his property by will are limited in two ways:

1.                   The extent to which he can bequest his property

2.                 The persons in whose favour the bequest can be made.

1.       The extent to which he can bequest his property: A Muslim cannot dispose of, by will, more than a third of the surplus of his estate after payment of funeral expenses and debts. This limit of one third is not laid down in Quran; it is the outcome of a tradition narrated by Abu Vekass. He says:

“In the year of the conquest of Mecca, being taken so extremely ill that my wife was despaired of the Prophet of God came to pay me a visit of consolation; I told him that, by the blessing of God, having a great estate but no heir except one daughter, I wished to know if might dispose of it at all by will”. He replied: ‘No’. And when I severally interrogated him, ‘if might leave two-third or one-half’ he also replied in the negative, but when I asked if I might leave a third, he answered, “Yes, you may  leave a third, of your property, by will, but a third part to be disposed of by will is a great portion, and it is better you should leave your heirs rich than in a state of poverty which might oblige them to beg of others”.

Bequest in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator. If the bequest exceeds the legal third and heirs refuse their consent, the bequest abates ratably.

Under the Shia Law such consent may be given either before or after the death of the testator. Further the Shia Law does not recognize the principles of rateable distribution. 

1.       The persons in whose favour the bequest can be made. Testamentary limits as to person fall under the following heads:

a.                  Bequest to an heir

b.                 Bequest to an heir and stranger

c.                  Bequest to unborn person

d.                  Bequest to a testator’s murder

a.                  BEQUEST TO A HEIR:

i.                    SUNNI LAW: Under the Sunni Law a

bequest in favour of an heir is not valid unless the other heirs consent to it after the death of the testator. The consent during the lifetime of the testator is of no effect because of the traditional saying of the Prophet: “God has allotted to every heir his particular right”, and also because a will in favour of some only of the heirs is an injury to the ties of the kindred. Further such favourtism would lead to unequal division of property by unreasonably reducing the shares of the neglected and unfortunate defeat the policy of the Quranic injunctions as to division of heritage according to the fixed principles.

       If some of the heirs consent, the share of the consenting sharer shall be bound. In determining where a person is or is not an heir, regard is to be had, not to he time of the execution of the will, but to the time of death of the testator. The consent need not be express, it may be signified by conduct showing a fixed and unequivocal intention.

ii.       SHIA LAW: According to Shia Law a testator may leave a legacy to an heir so long as it does not exceed one-third of his estate. Such a legacy is valid without the consent of other heirs. But if the legacy exceeds one-third, it is not valid unless the other heirs, consent thereto. Such consent may be given either before or after the death of the testator.

                   2.       BEQUEST TO A HEIR AND STRANDER:

i.                    SUNNI LAW: Where under a will a legacy is given to an heir as will as a legacy to a non-heir, the legacy to the heir is invalid unless assented to by the other heirs, but the legacy to the non-heir is valid to the extent of one-third of the property.

ii.       SHIA LAW: According to the Shia Law bequests to any of the heirs, payable out of one-third of the estate are valid even without the consent of the other heirs. But a legacy in excess of one-third is not valid without the consent of the heirs. According to the Sharaya-ul-Islam, “a bequest in favour of one’s kindred is highly proper they be his heirs or not”.

                   3.       BEQUEST TO UNBORN PERSON:

i.        SUNNI LAW: Bequest to an unborn person is void. But a bequest to a child in the womb is valid provided it is born within six months from the date of the will. Fatwa-I-Alamgiri and Hedaya have laid down that the legatee must be in existence on the date the will is executed.

ii.       SHIA LAW: According to the Shia Law a bequest to a child in the womb is valid if it is born in the longest period in gestation, i.e, ten is necessary that the child must be born within six months from the date of the will. A bequest, therefore, to a person not in existence at the time of the testator’s death is invalid.

                   4.       BEQUEST TO A TESTATOR’S MURDERER:

i.        SUNNI LAW: Bequest to a person who causes the death of the testator whether intentionally or accidentally is void. The Prophet was also of the opinion that there was no legacy for the slayer, he had hastened an event which God might have delayed. The bequest to the murdered is unlawful whether it is made wound was inflicted or subsequently. If the heirs assent to the bequest, it is valid according to Abu Hanifa and Mohammad, though not according to the Abu Yusuf.

ii.       SHIA LAW: A legatee who causes the death of the testator is disentitled to take the legacy only if the death is caused intentionally and not by accident. Such a disqualification is only personal; a bequest in favour of such a legatee’s parents, children or any other descendant or ascendant would be lawful.

IMPORTANT Q/A OF ISLAMIC PERSONAL LAW By Zulfiqar Ali Chandio

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Q 12:    What are the Different Kinds of Marriage. Distinguish between them?

 

A:                DIFFERENT KINDS OF MARRIAGE: A marriage in Islamic Law may be either:

1.                   Valid (Sahih)

2.                 Void (Batil)

3.                 Irregular (Fasid)

1.       VALID MARIRAGE: A marriage which confirms in all respects with law is termed as Sahih meaning thereby correct in regard to legal there should be no prohibitions effecting the parties. The prohibitions may be either perpetual or temporary. If the prohibition is perpetual, the marriage is void; if temporary, the marriage is irregular.

 

2.       VOID (BATIL) MARRIAGE: A marriage which has no legal results is termed as Batil or void marriage. This situation resembles marriage without any reality. A void marriage is an unlawful connection which produces no mutual rights and obligations between the parties. The following are the void marriages:

         

Marriage in Islam, is religious, social and legal institution and divine institution because it is given in Quran. The illegally of such unions commences from the date when the contracts are entered into and the marriage is considered as totally non existing in fact as well as law.

 

3.       IRREGULAR (FASID) MARRIAGE: A union between a man and a woman may either be lawful or unlawful. Unlawfulness may be either absolute or relative. If the unlawfulness is absolute, the marriage will be Fasid or Irregular, such as:

1.       A marriage without witnesses

2.       A marriage with a woman undergoing Iddat

3.       A marriage prohibited by reason of difference of religion.

4.       A marriage to two sisters

5.       A marriage with a fifth wife

 

DISTINCTION BETWEEN BATIL AND FASID MARRIAGES: According to Fatwa-I-Almagiri, prohibited marriages may be broadly divided into two categories, the Batil and Fasid marriages,. Batil mean those which have no legs to stand are void ab origine: the English term unanimously employed by different commentators is “void”. In this category come those that are perpetually prohibited such as marriage with one’s full sister. Under Fasid marriages are grouped those that suffer from a temporary bar, such as:

A void marriage is one which is unlawful in itself, the prohibition being perpetual and absolute.

Thus the marriage with a woman prohibited by (a) consanguinity, (b) affinity, or (c) fosterage is void.

An irregular marriage is one which is not unlawful in itself but where the irregularity arises from accidental circumstances such as the absence of two witnesses, the prohibition is temporary. Thus the following are irregular marriages:

1.                   A marriage contracted without witnesses.

2.                 A marriage with fifth wife by a person having four wives, for this objection can be removed by a man divorcing his own wife.

3.                 A marriage with a woman undergoing iddat, for the impediment ceases on the expiration of the period of iddat.

4.                 A marriage prohibited by reason of difference of religion. This objection can be removed by the wife becoming a convert to Muslim, Christian or Jewish religion or the husband embracing Islam.

5.                 A marriage with a woman prohibited by unlawful conjunction. This can be removed by the man divorcing the wife who constitutes the obstacle.

The word ‘Fasid’ seems to have been derived from the word ‘Fasid’ which has been used in the Holy Quran several items and which means disruption or disturbance of an by God. Allam Yusuf Ali has used the Engloish term ‘mischief’. A fasid marriage would, therefore, mean neither strictly an irregular marriage nor an invalid one but a marriage that is disruptive or distributive of the orderly society as ordained in the matter by God.

TERMINATION OF IRREGULAR MARRIAGE: According to the case of Mohammad Maskin v. Nasim Akhtar, 1979 CLC 55 either of the parties can avoid such a marriage by adopting one of the following modes:

1.                   The husband can repudiate his wife

2.                 Either of them can sue to avoid it

3.                 the court can itself move for its cancellation, if the matter is brought to its notice, by any pro bono publico

4.                 Either of them can, on his or her own, terminate the marriage by a simple declaration to that effect.

 

It means that the women also has, apart from the right of suing remained un-enjoyed, it can be done even behind the back of the husband but in case of consummation, he has to be informed. The idea is that the husband or wife, as the case may be, ought to know where they stand in relation to each other.