Indian Muslim Law in Nutshell

KEYWORDS:-Mahomedanism-PERSONAL LAW-

“law is dynamic and its meaning cannot be pandemic but purposeful”

Muslim Law

Sources of Muslim Law

(1) Quran (2) Sunna (3) Ijma (4) Quiyas.

(5) Customs (Urf) (6) Judicial Precedents. (7) Legislation. (8) Good Conscience and Equity.

Indian Commentators

Baillie (1875), Ameer Ali (1912) and Tyabji (1940)

FYZEE .._ : Outlines of Mohammadan Law

‘TYABJI, F. B. : Mohammadan Law

MULLA : Principles of Mohammadan Law

AMEER ALI : Mohammadan Law Vols. 1 and 2

VERMA, B.R. : Mohammadan Law (5th Edition )

Shia School

Sunni School

 Marriage (Nikah)

The consummation of marriage is  of the essential requirements of a valid Muslim marriage
(i) Muta or temporary marriages are lawful. (i) Muta marriages are not lawful.
(ii) Only the father and grandfather are recognised as legal guardians for marriages. Marriages contracted by others have no legal effect. (ii) Besides father and father’s father how highsoever, brothers, other paternal relations, mother and maternal uncle, etc., are also recognised as legal guardians for marriage.
(iii) Presence of two witnesses is essential at the time of dissolution of marriage, while at marriage, they are not essential. (iii) Two witnesses are not necessary at the time of dissolution of marriage, but are necessary at the time of marriage.
(iv) Marriage cannot be cancelled on the ground of inequality between the two parties. (iv) Marriage can be cancelled on the ground of inequality between the two parties.
(v) They do not recognise the doctrine of valid retirement, i.e., the presumption of the consummation of marriage if the husband and wife retire into the nuptial chamber and there is no impediment to sexual intercourse. (v) The doctrine of valid retirement is recognised.
(vi) Re-marriage after the third triple repudiation is never legalised. (vi) Such re-marriages are legalised.
(vii) Ten months is the longest period of gestation. (vii) The period of gestation is two years.
(viii) Marriages are either valid or void. (viii) Marriages may be irregular also besides being valid or void.

 Dower

(i) The minimum amount for dower is not fixed. (i) Ten dirhams is the minimum amount of dower.
(ii) Presumption of 500 dirhams as the maximum in case there is no stipulation. (ii) No upper limit.
(iii) Presumption of prompt dower in absence of any Stipulation. (iii) The part is prompt and the part is deferred.

Talaq

Mulla on principles of Mahomedan law (Nineteenth (SIC)1990) states vide para 310:-

“310. Talak may be oral or in writing.–A talak may be effected (1) orally (by spokenwords) or (2) by a written document called atalaknama (d).

(1) Oral Talak. — No particular form ofwords is prescribed for effecting a talak. If thewords are express (saheeh) or well understoodasimplying divorce no proof of intention is required.If the words are ambiguous (kinayat), the intentionmust be proved (e). It is not necessary that thetalak should be pronounced in the presence of thewife or even addressed to her (f). In a Calcuttacase the husband merely pronounced the word”talak” before a family council and this was heldto be invalid as the wife was not named (g). Thiscase was cited with approval by the JudicialCommittee in a case where the talak was validthough pronounced in the wife’s absence, as thewife was named (h). The Madras High Court hasalso held that the words should refer to the wife (i).The talak pronounced in the absence of the wifetakes effect though not communicated to her, butfor purposes of dower it is not necessary that itshould come to her knowledge (j); and her alimonymay continue till she is informed of the divorce(k). As the divorce becomes effective for purposesof dower only when communicated to the wife,limitation under Article 104 of the wife’s suit fordeferred dower ran from the time when the divorcecomes to her notice (l), under the Act of 1908. Seealso the Limitation Act, 1963.

Words of divorce.–The words of divorcemust indicate an intention to dissolve the marriage.If they are express (saheeh), e.g., “Thou artdivorced.” “I have divorced thee,” or “I divorcemy wife for ever and render her haram from me”(Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.21 they clearly indicate an intention to dissolvethe marriage and no proof of intention isnecessary. But if they are ambiguous (kinavat),e.g., “Thou art my cousin, the daughter of myuncle, if thou guest” (Hamid Ali v. Imtiazan (1878) 2 All. 71 or “I give up all relations and would haveno connection of any sort with you” (Wajid Ali v.Jafar Husain (1932) 7 Luck. 430, 163 L.I.C. 209,(32) A.O. 34 the intention must be proved.

Pronouncement of the word talak in thepresence of the wife or when the knowledge ofsuch pronouncement comes to the knowledge ofthewife, results in the dissolution of the marriage.The intention of the husband is inconsequential,Ghansi Bibi v. Ghulam Dastagir (1968) 1 M.L.J. 566.

If a man says to his wife that she has beendivorced yesterday or earlier, it leads to a divorcebetween them, even if there be no proof of adivorce on the previous day or earlier.”

((f) Ma Mt v. Kallander Ammal, supra;Ahmad Kasim v. Khatoon Bibi (1932) 59Cal. 833, 141 L.I.C. 689, ( 33) A.C. 27;Fulchand v. Nazib Ali (1909) 36 Cal.184, 1 L.I.C. 740; Sarabai v. Rabiabai(1905) 30 Bom. 536 (obiter).

(g) Furzund Hussein v. Janu Bibee (1878) 4 Cal. 588.

(h) Rashid Ahmad v. Anisa Khatoon (1932) 59 I.A. 21, 54 All. 46, 135 L.I.C. 762 ( 32) A.P.C. 25.

(i) Asha Bibi v. Kadir, supra.

(j) Fulchand v. Nazib Ali, supra.

(k) Ma Mt v. Kallandar Ammal, supra;Abdul Khader v. Azeera Bee (1944) 1M.L.J. 17, 214 I.C. 38, (44) A.M. 227.

(l) Kathiyumma v. Urathel Marakkar(1931) 133 L.I.C. 375, (31) A.M. 647.

1) Talaq must be pronounced orally and the words of Arabic language to be used. 1) Talaq can be given orally or in writing
2) Witnesses are required while doing so 2) Witnesses are not required
3) Talaq pronounced in state of intoxication or by force is void 3) Talaq given in state of intoxication or under pressure is not held void.
4) `Talaq-ul-Sunnat’ is recognised as best form of Talaq 4) `Talaq-i- Biddat’ and `Talaq-ul-Sunnat’ both are recognised.

Guardianship

The mother of a daughter upto the age of 7 years and of son upto 2 years is legally entitled as “Guardian” Mother of a daughter upto age of 7 years and of a son upto age of attaining puberty is entitled to guardianship.

Maternity

If a child is born as a result of illicit relation of mother, the child is treated as motherless. Maternity of a child is recognised from such mother who gave birth to child without having any consideration of the reasons of birth.

Waqf

The Wakf Act 1913

Without delivery of possession of property the `Waqf is invalid. Mere declaration is enough for valid `waqf’

Pre-Emption[Shufaa]

Right of pre-emption is recognised only in case of co-sharer who are two in number. Besides co-sharer a participator in the appendages or neighbour owner of property can claim right of Pre-emption.

Wills[Vasiyyatnama]

(i) A person in an absolute owner of the one-third of his estate and can bequeath that one-third without the consent of the other heirs. Consent of the heirs essential.
(ii) In case of the legatee’s death in the lifetime of the testator, the legacy passes to his heirs unless it is revoked by the testator. It lapses.

 Inheritance[Faraid]

(i) There are only two classes of heirs namely sharers and residuaries. Three classes :
(a) Sharers,
(b) residuaries
(c) Distant kindered.
(ii) According to the law of primogeniture, the eldest son gets the deceased father’s garment, the signet-ring, the sword and the Quran. The doctrine of primogeniture is not recognised.
(iii) A Shia childless widow is not permitted to take any share in her husband’s immovable property. There is no such distinction between real and personal property and the childless widow can inherit even the immovable property.
(iv) Only the husband and not the wife is entitled to return. Both husband and wife can take by return.
(v) A man is excluded from inheritance if he has intentionally caused the murder of the person whom he is going to inherit. He is excluded from inheritance, no matter, the murder was intentional or unintentional.
  • GIFT(HIBA)
  • Maintenance
  • Restitution of Conjugal Rights
  • Option of Puberty
  • Iddat of `Talaq’
  • Dissolution of Muslim Marriage
  • Institution of adoption
  • Acknowledgement of legitimacy[Acknowledgement under Muslim Law is a rule of substantive law and not a rule of evidence]
  • The power of a guardian on the property of a minor
  • Death Bed Illness (MARZULMAUT) Gift
  • Immediately on the death of a Mohammedan, the property is vested-Explanation
  • Doctrine of increase (Aul) and Radd
Case laws

AIR 2008 SCW 6100 : (2008) 9 SCR 377 : (2008) 8 SCC 12 : JT 2008 (9) SC 37 : (2008) 8 SCALE 557

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(SUPREME COURT OF INDIA)
Faqruddin (Dead) through L. Rs.
Appellant

Versus

Tajuddin (Dead) through L. Rs.
Respondent

(Before : S. B. Sinha And Lokeshwar Singh Panta, JJ.)

Civil Appeal No.3643 of 2008 (arising out of SLP (C) No. 20565 of 2006, Decided on : 16-05-2008.

Wakf Act, 1954—Section 5—Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955—Section 10(d)—Jaipur Matmi Rules, 1945—Rule 13—Constitution of India, 1950—Article 136—Rajasthan Land Reforms and Resumption of Jagirs Act, 1952—Section 2.

AIR 1996 SCW 4032 : JT 1996 (9) SC 278 : (1996) 7 SCALE 330 : (1996) 10 SCC 705 : (1996) 5 Suppl. SCR 602

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(SUPREME COURT OF INDIA)
Mohammad
Appellant

Versus

Mohammed Beke
Respondent

(Before : K. Ramaswamy And G. B. Pattanaik, JJ.)

Civil Appeals Nos. 12378-12379 of 19% (arising out of SLP(C) Nos. 12466-66A of 1994) Decided on : 06-09-1996.

Wakf Act, 1954—Sections 2(1) and 2(r).

JT 2011 (8) SC 533 : (2011) 8 SCALE 186

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(SUPREME COURT OF INDIA)
Shehammal
Appellant

Versus

Hasan Khani Rawther and Others
Respondent

(Before : Altamas Kabir, Cyriac Joseph and Surinder Singh Nijjar, JJ.)

Special Leave Petition (C) Nos. 7421-7422 and 14303-14304 of 2008 : Decided On: 02-08-2011

Transfer of Property Act, 1882—Section 6—Evidence Act, 1872—Section 115—Spes Successionis (Relinquishment of share in property)—Chance of Mohammedan heir-apparent succeeding to an estate cannot be subject of a valid transfer or release—Ordinarily, there cannot be transfer of spes successionis but same can be avoided either by execution of family settlement or by accepting consideration for a future share—It could then operate as estoppel against expectant heir to claim any share in estate of deceased on account of doctrine of spes successionis—Having accepted consideration for having relinquished a future claim or share in estate of deceased, it would be against public policy if such a claimant be allowed benefit of the doctrine of spes successionis—In such cases, principle of estoppel would be attracted.

Mohammedan law—Succession—General principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by consent of all heirs—In effect, same also amounts to right of relinquishment of future inheritance which is on one hand forbidden and on other accepted in case of testamentary disposition.

(2011) 5 SCALE 371 : AIR 2011 SC 1695 : JT 2011 (6) SC 5 : (2011) 5 SCC 654

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(SUPREME COURT OF INDIA)
Hafeeza Bibi and Others
Appellant

Versus

Shaikh Farid (dead) by L.Rs. and Others
Respondent

(Before : R. M. Lodha and S. S. Nijjar, JJ.)

Civil Appeal No. 1714 of 2005 : Decided On: 05-05-2011

Transfer of Property Act, 1882—Sections 123 and 129—Registration Act, 1908—Sections 17 and 49—Gift of property in Mohammedans—Three essentials of gift under Mohammedan law are; (i) declaration of gift by donor; (2) acceptance of gift by donee and (3) delivery of possession—Though, rules of Mohammedan law do not make writing essential to validity of a gift; an oral gift fulfilling all three essentials make gift complete and irrevocable—However, donor may record transaction of gift in writing.

Transfer of Property Act, 1882—Sections 123 and 129—Registration Act, 1908—Sections 17 and 49—Gift of property in Mohammedans—Merely because gift is reduced to writing by a Mohammedan instead of it having been made orally, such writing does not become a formal document or instrument of gift—When a gift could be made by Mohammedan orally, its nature and character is not changed because of it having been made by a written document—What is important for a valid gift under Mohammedan law is that three essential requisites must be fulfilled—Form is immaterial—If all three essential requisites are satisfied constituting valid gift, transaction of gift would not be rendered invalid because it has been written on a plain piece of paper.

Mohammedan law—Gift—Registration—It is not the requirement that in all cases where gift deed is contemporaneous to making of gift then such deed must be registered under Section 17 of Registration Act—Each case would depend on its own facts.

JT 2010 (9) SC 229 : (2010) 10 SCR 717 : (2010) 8 SCALE 577

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(SUPREME COURT OF INDIA)
Smt. Ajambi (Dead) by Lrs.
Appellant

Versus

Roshanbi and OTHERS
Respondent

(Before : Mukundakam Sharma and Anil R. Dave, JJ.)

Civil Appeal No. 7237 of 2010 (Arising out of SLP (C) No. 5344 of 2006); Decided On: 30-08-2010

This Court in the case of Abdul Rahim and Ors. v. Sk. Abdul Zabar and Ors. reported in, (2009) 6 SCC 160 held thus: –

15. We may notice the definition of gift as contained in various textbooks. In Mulla’s Principles of Mohammadan law the “hiba” is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines of Muhammadan law defined “gift” in the following terms:

A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will….

AIR 2010 SC 1414 : JT 2010 (1) SC 86 : (2010) 1 SCALE 95 : (2010) 2 SCC 654 : (2010) 1 SCR 49

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(SUPREME COURT OF INDIA)
Athar Hussain
Appellant

Versus

Syed Siraj Ahmed and OTHERS
Respondent

(Before : Tarun Chatterjee and V. S. Sirpurkar, JJ.)

Civil Appeal No. 11 of 2010 (Arising out of SLP (C) No. 24148 of 2007); Decided On: 05-01-2010

Mohammadan law—Appointment of guardian of minor children—Court is not bound by the bar envisaged under Section 19 of Guardian and Wards Act, 1890—In terms of personal law governing the minor girl her maternal relatives has to be given preference.

Guardian and Wards Act, 189—Sections 7, 9, 19 and 17—Civil Procedure Code, 1908—Section 12 and Order 39 Rule 1, Order 39 Rule 2—Mohammedan law—Sections 353 and 236.

(2007) 14 SCALE 627

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(SUPREME COURT OF INDIA)
Asokan
Appellant

Versus

Lakshmikutty AND OTHERS
Respondent

(Before : S. B. Sinha and H. S. Bedi, JJ.)

Civil Appeal No. 5942 of 2007 (Arising out of SLP (Civil) No. 20754 of 2003); Decided On: 14-12-2007

Our attention has been drawn to a decision of the Privy Council in Nawab Mirza Mohammad Sadiqu Ali Khan and Ors. v. Nawab Fakr Jahan Begam and Anr. wherein again while dealing with a case of gift governed by Muhammadan law, it was stated:

The first objection being against the tenor of the deed, the burden of proof is clearly upon those who dispute the gift. No possible reason is suggested why Baqar Ali should have desired to put a portion of this property in anyone else’s name except, possibly, an inherent propensity for benami or “ism farzi” transactions. On the other hand, the reason recited in the deed that he desired to provide his favourite wife with an alternative residence at Kairabad is to say the least of it, understandable. The portion assigned to her contained the zenana quarters, where she ordinarily put up when accompanying her husband on his apparently not infrequent visits to the kothi, and it is clear from the evidence of his other gifts to her which are now established, that he had a great desire to provide for her future comfort on a generous SCALE . Against this, all that can be said is that during his life time she exercised no individual acts of proprietorship over any portion of the Kairabad establishment; that in her and her Husband’s absence the serai was occupied by the servants of the estate; that such repairs as were necessary were done at Baqar Ali’s expense, and that no mutation of names was made in the Government records. In their Lordships’ opinion these facts are not sufficient to establish that the transaction was merely colourable. The deed was handed over to the donee and remained in her possession, and their Lordships have no doubt that Baqar Ali intended to make a genuine gift of the property to her.

JT 2002 (7) SC 520 : (2002) 7 SCC 518 : (2002) 3 Suppl. SCR 19

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(SUPREME COURT OF INDIA)
Shamim Ara
Versus

State of U.P. and AnOTHER

(Before : R. C. Lahoti and P. Venkatarama Reddi, JJ.)

Decided On: 01-10-2002

Criminal Procedure Code, 1973—Section 125.

We do not agree with the viewpropounded in the decided cases referred to by Mulla and Dr. TahirMahmood in their respective commentaries, wherein a mere plea ofprevious talaq taken in the written statement, though unsubstantiated,has been accepted as proof of talaq bringing to an end the maritalrelationship with effect from the date of filing of the writtenstatement. A plea of previous divorce taken in the written statementcannot at all be treated as pronouncement of talaq by the husband onwife on the date of filing of the written statement in the Courtfollowed by delivery of a copy thereof to the wife.

AIR 2008 SC 1915 : (2008) 5 SCR 1 : (2008) 4 SCC 774 : JT 2008 (3) SC 627 : (2008) 4 SCALE 7

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(SUPREME COURT OF INDIA)

Chand Patel
Appellant

Versus

Bismillah Begum and ANOTHER
Respondent

(Before : Altamas Kabir And J. M. Panchal, JJ.)

Criminal Appeal No. 488 of 2008 (@ S.L.P. (Cri.) No.3989 of 2006), Decided on : 14-03-2008.

Criminal Procedure Code, 1973—Section 125—Maintenance—Dispute over validity of marriage—Claimants Muslim wife and her minor daughter—Her marriage was performed with appellant professing Muslim faith, when his earlier marriage with other sister of claimant-wife was still subsisting—Such marriage need to be held irregular and not void—An irregular marriage continues to subsist till terminated in accordance with law—Wife and children of such marriage held entitled to maintenance—Appellant-husband directed to pay to claimants arrears of maintenance and ` 10,000 as cost of litigation.

In M. Ismail Faruqui etc. vs. Union of India and others, (1994) 5 Suppl. SCR 1

Irrespective of the status of a mosque under the Muslim law applicable in the Islamic countries, the status of a mosque under the Mahomedan law applicable in secular India is the same and equal to that of any other place of worship of any religion; and it does not enjoy any greater immunity from acquisition in exercise of the sovereign or prerogative power of the State, than that of the places of worship of the other religions.

AIR 2000 SC 1650 : (2000) 3 SCR 1081 : (2000) 6 SCC 224 : JT 2000 (5) SC 617 : (2000) 4 SCALE 176 : (2000) CriLJ SC 2433

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(SUPREME COURT OF INDIA)
Lily Thomas
Appellant

Versus

Union of India and others
Respondent

(Before: S. Saghir Ahmad And R. P. Sethi, JJ.)

Writ Petn. (Civil) No. 798 of 1995 with W. P. (C) No. 1079 of 1989, R. P. (C) No. 1310 of 1995, in W. P. (C) Nos. 509 of 1992, 347 of 1990, 424 of 1992, 503 of 1995, 509 of 1992, 588 of 1995 and 835 of 1995, Decided on: 05-05-2000.

Penal Code, 1860—Section 494—Bigamy—Conversion to Islam—Hindu husband contracting second marriage after conversion to Islam—Mere such conversion would not automatically dissolve his first marriage—Offences under Section 17 of Hindu Marriage Act read with Section 494 IPC made out against him.

If a Hindu wife files a complaint for the offence under Section 494, IPC on the ground that during the subsistence of the marriage, her husband had married a second wife under some other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. It is under this Act that it has to be seen whether the husband, who has married a second wife, has committed the offence of bigamy or not. Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage, in spite of his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494, IPC. Since taking of cognizance of the offence under Section 494 is limited to the complaints made by the persons specified in Section 198 of the Code of Criminal Procedure, it is obvious that the complaint would have to be decided in terms of the personal law applicable to the complainant and the respondent (accused) as mere conversion does not dissolve the marriage automatically and they continue to be “husband and wife”. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for judicial separation under Section 10 of the Hindu Marriage Act.

Religion is a matter of faith stemming from the depth of the heart and mind. Religion, faith or devotion are not easily interchangeable, if the person feigns to have adopted another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation, as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution, under Hindu law, marriage is a sacrament. Both have to be preserved.

AIR 1997 SC 3614 : (1997) 2 SCR 389 : (1997) 3 SCC 573 : JT 1997 (3) SC 171 : (1997) 2 SCALE 381

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(SUPREME COURT OF INDIA)
Ahmedabad Women Action Group (AWAG) and others
Appellant

Versus

Union of India
Respondent

(Before: A. M. Ahmadi, C.J.I., Mrs. Sujata V. Manohar And K. Venkataswami, JJ.)

Writ Petn. (C) Nos. 494 with 496 and 721 of 1996, Decided on: 24-02-1997.

Divorce Act, 1869—Section 10—Validity of—Discrimination—Ground available to wife, not available to husband—Provision is not discriminatory.

Taking into consideration the muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and non aggressive nature and role particularly in this country, the legislature can hardly be faulted if the said two grounds are made available to the wife and not to the husband for seeking dissolution of the marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband.

We, therefore, find that there is no substance in the challenge by the petitioner husband to the vires of the provisions of Section 10 as being discriminatory against the husband and, therefore, violative of Article 14 of the Constitution.

Mohammadan law—Gender discrimination—Violation of equality clause under Article 13 of Constitution—Chapter III of Constitution has no application on personal laws—Matter of State policy to be decided by the legislature—Challenge to personal law on the ground of gender discrimination not permissible.

AIR 1997 SC 104 : (1996) 7 Suppl. SCR 148 : (1996) 11 SCC 245 : JT 1996 (9) SC 460 : (1996) 7 SCALE 711

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(SUPREME COURT OF INDIA)
Punjab Wakf Board
Appellant

Versus

Shakur Masih
Respondent

(Before: K. Ramaswamy And G. B. Pattanaik, JJ.)

Civil Appeal No. 8225 of 1996, Decided on: 01-10-1996,

Mohammadan law—Wakf—Contingent Wakf—Validity of—Wakf created by Will made contingent to the life time of other beneficiary—Wakf is invalid.

AIR 1995 SC 605 : (1994) 6 SCC 360 : JT 1994 (6) SC 632 : (1994) 2 Suppl. SCALE 100

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(SUPREME COURT OF INDIA)
Dr. M. Ismail Faruqui
Appellant

Versus

Union of India and others
Respondent

(Before: M. N. Venkatachaliah, C.J.I., A. M. Ahmadi, J. S. Verma, G. N. Ray And S. P. Bharucha, JJ.)

Transferred Case (C) Nos. 41, 43 and 45 of 1993 With Writ Petn. (Civil) No. 208 of 1993 With Spl. Ref. No. 1 of 1993 With I.A. No. 1 of 1994 in T.C.(C) No. 44 of 1993 WITH Writ Petn. (C) No. 186 of 1994, Decided on: 24-10-1994.

Limitation Act, 1963—Articles 64 and 65—Adverse possession—Mosque—Title to a mosque can be lost by adverse possession.

Mohammadan law—Acquisition of mosque—Permissibility—The State can acquire a place of religious worship—A mosque has no special status—Such acquisition is not unconstitutional or offends the right to practice religion, guaranteed under the constitution. .

Under the Mahomedan law applicable in India, title to a mosque can be lost by adverse possession. If that is the position in law, there can be no reason to hold that mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple, etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right.

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, held as under:

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made in the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the Courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of Courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case”.

AIR 1991 SC 720 : (1990) 1 Suppl. SCR 433 : (1990) 4 SCC 672 : JT 1991 (5) SC 420 : (1990) 2 SCALE 481

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(SUPREME COURT OF INDIA)
P. N. Veetil Narayani
Appellant

Versus

Pathumma Beevi (dead) by L.Rs. and another
Respondent

(Before: A. M. Ahmadi And M. M. Punchhi, JJ.)

Mohammadan law—Ancestral debt—Acknowledgement by legal heirs—Intestate death—The heir making acknowledgement is liable to debt only in respect of his share of entitlement to succeed to the estate of deceased.

The heirs of a muslim dying intestate on whom falls the liability to discharge the debt, proportionate to their respective shares in the estate devolved, can hardly be classified as joint contractors, partners, executors or mortgagees. As held above they are by themselves independent debtors; the debt having been split by operation of law. Inter se they have no jural relationship as co-debtors or joint debtors so as to fall within the shadow of contrators, partners, executors or mortgagees or in a class akin to them. They succeed to the estate as tenants-in-common in specific shares. Even a signed written acknowledgement by the principal or through his agent would bind the principal and not anyone else standing in jural relationship with the principal in accordance with Section 20(2) of Limitation Act. The Muslim heirs inter se have no such relationship. In this view of the matter, we take the view that the High Court was right in confining the acknowledgment of the debts only to respondent No. 2 and not extending the acknowledgment to the other co-heirs for their independent position.

AIR 1985 SC 945 : (1985) 3 SCR 844 : (1985) 2 SCC 556 : (1985) 1 SCALE 767 : (1985) CriLJ SC 875

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(SUPREME COURT OF INDIA)
Mohd. Ahmed Khan
Appellant

Versus

Shah Bano Begum and others
Respondent

(Before : Y. V. Chandrachud, C.J.I., D. A. Desai, O. Chinnappa Reddy, E. S. Venkataramiah, And Ranganath Misra, JJ.)

Criminal Appeal No. 103 of 1981 , Decided on : 23-04-1985.

Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Note: The position of law is not the same after enactment of Muslim Woman (Protection of Rights on Divorce) Act, 1986.

Maintenance—Wife—Meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

AIR 1981 SC 798 : (1981) 2 SCR 826 : (1981) 2 SCC 226 : (1981) 1 SCALE 304

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(SUPREME COURT OF INDIA)
Radhakanta Deb and another
Appellant

Versus

The Commissioner of Hindu Religious Endowments, Orissa
Respondent

(Before : S. Murtaza Fazl Ali, A. Varadarajan And Amarendra Nath Sen, JJ.)

Mohammadan law—Wakf—Private trust—Creation of—Permissibility—Trust for the purpose of supporting the family of settler is permissible.

The Mahomedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called Waqf-allal-Aulad, where the ultimate benefit is reserved to god but the property vests in the beneficiaries and the income from the property is used for the maintenence and support of the family of the founder and his descendants. In case the family becomes extinct then the Waqf becomes a public waqf, the property vesting in God. A public Waqf under the Mahomedan law is called Waqf-fi-sabi-lil-lah.

AIR 1981 SC 1972 : (1982) 1 SCR 695 : (1981) 4 SCC 250 : (1981) 3 SCALE 1400 : (1981) CriLJ SC 1430

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(SUPREME COURT OF INDIA)
Sirajmohmedkhan Janmohamadkhan
Appellant

Versus

Hafizunnisa Yasinkhan and another
Respondent

(Before : S. Murtaza Fazl Ali And A. P. Sen, JJ.)

Criminal Appeal No. 602 of 1981 , Decided on : 14-09-1981.

Criminal Procedure Code, 1973—Section 125—Maintenance—Refusal to cohabit—Justification—Impotency of husband would be a just ground for refusal by wife to cohabit with him.

We are of the opinion that if the husband was impotent and unable to discharge his marital obligations, how could be fulfil the main object of marriage, more particularly, under the Mahomedan law where marriage is a sacrosanct contract and not a purely religious ceremony as in the case of Hindu law. This would certainly be a very just and reasonable ground on the part of the wife for refusing to live with her husband, as also in cases under the Hindu law or other laws.

A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband’s parents or relations, such apprehension also would be manifestly a reasonable justification for the wife’s refusal to live with her husband. Instances of this nature may be multiplied but was have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive.

In other words, where a husband contracts a marriage with another woman or keeps a mistress this would be deemed to be a just ground within the meaning of the second proviso so as to make the refusal of the wife to live with her husband fully justified and entitled to maintenance.

The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same.

AIR 1981 SC 1243 : (1981) 2 SCR 910 : (1981) 2 SCC 509 : (1981) 1 SCALE 370 : (1981) CriLJ SC 754

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(SUPREME COURT OF INDIA)
Mst. Zohara Khatoon
Appellant

Versus

Mohd. Ibrahim
Respondent

(Before : S. Murtaza Fazl Ali, A. D. Koshal And A. Varadarajan, JJ.)

Criminal Appeal No. 761 of 1980 , Decided on : 18-02-1981.

Criminal Procedure Code, 1973—Sections 125 and 127—Wife—Meaning of—Muslim woman divorced under Dissolution of Muslim Marriages Act, 1939 is a wife entitled to maintenance.

Criminal Procedure Code, 1973—Section 125—Divorced wife is entitled to maintenance until remarriage.

Criminal Procedure Code, 1973—Section 125—Divorced woman includes a wife who has been granted a decree of dissolution of marriage.

AIR 1978 SC 1362 : (1978) 3 SCR 886 : (1978) 3 SCC 299

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(SUPREME COURT OF INDIA)
Bibi Siddique Fatima
Appellant

Versus

Saiyed Mohammad Mahmood Hasan
Respondent

(Before : R. S. Sarkaria, N. L. Untwalia And P. S. Kailasam, JJ.)

Mohammadan law—Wakf—Object of—Maintenance of family of Wakf—Permissibility—The ultimate object of the Wakf to spend income in the service of God—Such wakf is valid under the provisions of Mussalman Wakf Validating Act, 1913.

According to Shia law the waqf is irrevocable after possession is given to the beneficiaries or the Mutawalli. The settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the waqf is created. In purely metaphorical sense the expression “ownership of God” is used but unlike Hindu law, since conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the jural sence, although “the ownership of the property becomes reverted in God as he is originally the owner of all things”. The Shia authorities considered the property as transferred to the beneficiaries or to the object of the waqf. Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable. Only the usufruct and the income from the corpus of the waqf property is available for carrying out the objects of the waqf.

The waqf deed that except a portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the settlor”s family and their descendants, which is called wakf-alal-aulad. The ultimate object of the waqf was to spend income, if any, in the service of the Almighty God. In Abdul Fata Mohommed v. Russomoy, (1894) 22 Ind. App. 76 (PC) their Lordships of the Privy Council held that the gift to charity was illusory, and that the sole object of the settlor was to create a family settlement in perpetuity. The waqf of this kind was, therefore, invalid. The decision aforesaid caused considerable dissatisfaction in the mohomedan community in India. This led to the passing of the Mussalman Wakf Validating Act, 1913 which was made retrospective in operation by a subsequent Act of 1930. In view of the Validating Act of 1930. In view of the Validating Act of 1913 the validity of the wakf was beyond the pale of challenge.

AIR 1976 SC 1569 : (1976) 3 SCR 721 : (1976) 4 SCC 780

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(SUPREME COURT OF INDIA)
Syed Mohd. Salie Labbai (Dead) by Lrs. and others
Appellant

Versus

Mohd. Hanifa (Dead) by Lrs. and others
Respondent

(Before : P. K. Goswami And S. Murtaza Fazl Ali, JJ.)

Civil Appeals Nos. 1223-1224 and 2026 of 1968, Decided on : 22-03-1976

There is some dispute about the right to act as an Imam. We have already pointed out that the Mohomedan law does not favour the hereditary right of being an Imam because an Imam must possess certain special qualities and certain special knowledge of the scriptures before he can be allowed to lead the prayers. The evidence shows that the Labbais have undoubtedly been acting as Imams, though not for a continuous period. This, however, is a matter for the entire Muslim community to decide because an Imam is normally chosen under the Mahomedan law by the Muslim community.

AIR 1973 SC 554 : (1973) 2 SCR 300 : (1973) 1 SCC 1

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(SUPREME COURT OF INDIA)
Gulam Abbas
Appellant

Versus

Haji Kayyam Ali and others
Respondent

(Before : A. N. Grover, M. H. Beg And A. K. Mukherjea, JJ.)

Civil Appeal No. 2134 of 1970, Decided on : 18-09-1972.

Mohammadan law—Inheritance—Relinquishment of—Renunciation of expectation to inherit in lieu of consideration received—Promissory estoppel against such heir to enforce such right of succession—Permissibility.

This is a correct statement, so far as it goes, of the law, because a bare renunciation of an expectation to inherit cannot bind the expectant heir’s conduct in future. But, if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement.

The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered “prohibited”. The binding force in future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation, to be completely in consonance with it.

AIR 1972 SC 2162 : (1973) 1 SCR 500 : (1972) 2 SCC 336

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(SUPREME COURT OF INDIA)
S. K. Mohammad Rafiq (dead) by his legal representatives
Appellant

Versus

Khalilul Rehman and another
Respondent

(Before : K. S. Hegde And A. N. Grover, JJ.)

Civil Appeals Nos. 691 and 692 of 1967, Decided on : 03-05-1972.

Mohammedan law—Right of pre-emption—Demands for pre-emption absolutely essential—Such demands to be made within fairly reasonable time.

AIR 1952 SC 358 : (1952) SCR 1133

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(SUPREME COURT OF INDIA)
Mohd. Amin and others
Appellant

Versus

Vakil Ahmad and others
Respondent

(Before : Mehr Chand Mahajan, N. Chandrasekhara Aiyar And N. H. Bhagwati, JJ.)

Civil Appeal No. 51 of 1951, Decided on : 22-10-1952.

Family arrangement—Mohammadan law—Void settlement—Effect of—Minor represented through de facto guardian in the family settlement—The settlement is void and not binding on the minor irrespective of the consideration that it benefited him and that the arrangement continued for a long time—The settlement which is void qua the minor is void altogether qua all the parties including those who were sui juris.

Mohammadan law—De facto guardian—Rights of—Transfer of property of minor by a de facto guardian is not permissible.

AIR 1954 SC 417 : (1955) 1 SCR 70

(SUPREME COURT OF INDIA)

Shri Audh Behari Singh Appellant
Versus
Gajadhar Jaipuria and others Respondent

(Before : Mehr Chand Mahajan, C.J.I., B. K. Mukherjea, Vivian Bose, N. H. Bhagwati And T. L. Venkatarama Ayyar, JJ.)

Civil Appeal No. 15 of 1951, Decided on : 23-04-1954.

Evidence Act, 1872—Section 13—Custom—Proof of—It is a matter to be established by proper evidence—Right vested upon custom becomes lex loci i.e. the law of the place affecting all persons irrespective of religion, nationality or domicile unless such incidence are proved to be part of custom.

Mohammadan law—Pre-emption—Right of—Necessity to prove custom—Distinction with Hindus claiming pre-emption—These are questions of facts to be proved on the basis of evidence.

It cannot be and is not disputed that if the right of pre-emption is set up by non-Muslims on the basis of a custom, the existence of the custom is a matter to be established by proper evidence.

When the existence of a custom under which the Hindus claim to have the same rights of pre-emption as Muhammadans, in any district, is generally known and judicially recognised, it is not necessary to prove it by further evidence. A long course of decisions has established the existence of such custom in Bihar, Sylhet and certain parts of Gujarat.

The ambit or extent of a custom is a matter of proof and the defendants were certainly competent to adduce evidence to show that the custom of pre-emption prevailing in the city of Banaras was available not against all persons who held lands within it but only against a particular class of persons.

The correct legal position must be that when a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself.

Pre-emption—Nature of right—Effect of right—The right if a personal right—It is a disability upon the ownership of the property whose owner’s unfettered right to alienate the right is affected—It is right and burden attached to land and not a personal right or burden.

The law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner’s unfettered right of sale and compels him to sell the property of his cosharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled, even though it does not amount to an actual interest in the property sold.

The benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricitng his right of sale in a certain manner, a bona fide purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.

AIR 1964 SC 275 : (1964) 4 SCR 549

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(SUPREME COURT OF INDIA)
Valia Peedikakkandi Katheessa Umma and others
Appellant

Versus

Pathakkalan Narayanath Kunhamu
Respondent

(Before : A. K. Sarkar, M. Hidayatullah And J. C. Shah, JJ.)

Civil Appeal No. 513 of 1961,Decided on : 23-08-1963.

Muslim law—Hanafi School—Gift—Validity of.

the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother’s house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. The appeal therefore succeeds. The Judgment of the High Court and of the Courts below are set aside and the suit of the plaintiff is ordered to be dismissed with costs throughout.