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<![CDATA[VU Help - Islamic Personal Law LLB Part 2]]> https://vuhelp.net/ Wed, 28 Oct 2026 19:16:00 +0000 MyBB <![CDATA[Translation of Sahih Bukhari, Book 63: Divorce]]> https://vuhelp.net/Thread-Translation-of-Sahih-Bukhari-Book-63-Divorce Mon, 29 Oct 2012 10:05:57 -0400 ahmad4212]]> https://vuhelp.net/Thread-Translation-of-Sahih-Bukhari-Book-63-Divorce

[FONT=&quot]Translation of Sahih Bukhari, Book 63:[/FONT]

[FONT=&quot]Divorce[/FONT][FONT=&quot][/FONT]

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[FONT=&quot]Translation of Sahih Bukhari, Book 63:[/FONT]

[FONT=&quot]Divorce[/FONT][FONT=&quot][/FONT]

Translation of Sahih Bukhari.docx (Size: 41.59 KB / Downloads: 492) ]]> <![CDATA[The Concept of Divorce under Muslim Law]]> https://vuhelp.net/Thread-The-Concept-of-Divorce-under-Muslim-Law Mon, 29 Oct 2012 10:04:04 -0400 ahmad4212]]> https://vuhelp.net/Thread-The-Concept-of-Divorce-under-Muslim-Law

The Concept of Divorce under Muslim Law

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst . Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law, which will be discussed hereafter.
Modes of Divorce: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.
There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential. In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.
Conditions for a valid talaaq:
1.) Capacity:Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.
2.) Free Consent:Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
3.) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.
4.) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.
Express Talaaq (by husband):
When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:
• Talaaq-i-sunnat,
• Talaaq-i-biddat.
Talaaq-i-sunnat has two forms:
• Talaaq-i-ahasan (Most approved)
• Talaaq-i-hasan (Less approved).
Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.
The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce. The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards”
The hasan talaaq: In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.
Talaaq-i-Biddat: It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.
Ila: Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
Zihar: In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
Divorce by mutual agreement:
Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end . The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”. This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai , under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.
Lian: If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.
Dissolution of Muslim Marriages Act 1939:
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.
Section 2 of the Act runs thereunder:
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:-
• That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.
• That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.
• That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.
• That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.
• That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.
• If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.
• That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;
• That the husband treats her with cruelty, that is to say,-
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
© Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
In Syed Ziauddin v. Parvez Sultana , Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah , a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.
In Aboobacker v. Mamu koya , the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
In Itwari v. Asghari , the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.
Irretrievable Breakdown: Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenancy by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.
Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.In practice in most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to follow as well. Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child's custody will be settled by the couple or by the courts. Women's right to divorce is often extremely limited compared with that of men in the Middle East. While men can divorce their spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen, women usually can ask for divorce only when husband's inability to support her life is admitted while men can divorce at will. However, this contentious area of religious practice and tradition is being increasingly challenged by those promoting more liberal interpretations of Islam.
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[FONT=&quot]Divorce/ traditions / Sunnah [/FONT][FONT=&quot][/FONT]
[FONT=&quot]Volume 7, Book 63, Number 180:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated Ibn 'Umar:[/FONT]
[FONT=&quot](Divorcing my wife during her menses) was counted as one legal divorce.[/FONT]
[FONT=&quot]Volume 7, Book 63, Number 186:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated 'Aisha:[/FONT]
[FONT=&quot]The wife of Rifa'a Al-Qurazi came to Allah's Apostle and said, "O Allah's Apostle! Rifa'a divorced me irrevocably. After him I married 'Abdur-Rahman bin Az-Zubair Al-Qurazi who proved to be impotent." Allah's Apostle said to her, "Perhaps you want to return to Rifa'a? Nay (you cannot return to Rifa'a) until you and 'Abdur-Rahman consummate your marriage."[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]Volume 7, Book 63, Number 187:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated 'Aisha:[/FONT]
[FONT=&quot]A man divorced his wife thrice (by expressing his decision to divorce her thrice), then she married another man who also divorced her. The Prophet was asked if she could legally marry the first husband (or not). The Prophet replied, "No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done."[/FONT]
[FONT=&quot]Divorce Tradition[/FONT]
[FONT=&quot]Volume 7, Book 63, Number 190:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated 'Aisha:[/FONT]
[FONT=&quot]A man divorced his wife and she married another man who proved to be impotent and divorced her. She could not get her satisfaction from him, and after a while he divorced her. Then she came to the Prophet and said, "O Allah's Apostle! My first husband divorced me and then I married another man who entered upon me to consummate his marriage but he proved to be impotent and did not approach me except once during which he benefited nothing from me. Can I remarry my first husband in this case?" Allah's Apostle said, "It is unlawful to marry your first husband till the other husband consummates his marriage with you."[/FONT]
[FONT=&quot]Volume 7, Book 63, Number 194:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated Abu Huraira:[/FONT]
[FONT=&quot]The Prophet said, "Allah has forgiven my followers the evil thoughts that occur to their minds, as long as such thoughts are not put into action or uttered." And Qatada said, "If someone divorces his wife just in his mind, such an unuttered divorce has no effect.:[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]Volume 7, Book 63, Number 195:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated Jabir:[/FONT]
[FONT=&quot]A man from the tribe of Bani Aslam came to the Prophet while he was in the mosque and said, "I have committed illegal sexual intercourse." The Prophet turned his face to the other side. The man turned towards the side towards which the Prophet had turned his face, and gave four witnesses against himself. On that the Prophet called him and said, "Are you insane?" (He added), "Are you married?" The man said, 'Yes." On that the Prophet ordered him to be stoned to the death in the Musalla (a praying place). When the stones hit him with their sharp edges and he fled, but he was caught at Al-Harra and then killed[/FONT]

[FONT=&quot] [/FONT]

The Concept of Divorce under Muslim Law

[FONT=&quot] [/FONT]

[FONT=&quot]Volume 7, Book 63, Number 226:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Narrated 'Abdullah:[/FONT]
[FONT=&quot]An Ansari man accused his wife (of committing illegal sexual intercourse). The Prophet made both of them takes the oath of Lian, and separated them from each other (by divorce).[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]]]> <![CDATA[Salient features of Muslim Family Law Ordinance 1961]]> https://vuhelp.net/Thread-Salient-features-of-Muslim-Family-Law-Ordinance-1961 Mon, 29 Oct 2012 10:02:47 -0400 ahmad4212]]> https://vuhelp.net/Thread-Salient-features-of-Muslim-Family-Law-Ordinance-1961

Salient features of Muslim Family Law Ordinance 1961

Background:
After the partition of India in 1947, the legislation relating to Muslim family law introduced in British India continued to govern personal status. A seven-member Commission on Marriage and Family Laws was established in 1955 with a remit to consider the personal status laws applicable in the new state and determine the areas needing reform. The Commission submitted its report in 1956, suggesting a number of reforms, including, for example, the consideration of all triple talaqs (except for the third of three) as single, revocable repudiations. The Muslim Family Laws Ordinance 1961 adopted some of the provisions of the Report of the Marriage and Family Laws Commission, aiming to reform divorce law and inheritance law relating to orphaned grandchildren, introduce compulsory marriage registration, place restrictions on the practice of polygamy, and reform the law relating to dower and maintenance in marriage and divorce, as well as to amend existing legislation with relation to marriage age
Succession. (Section 4)
Talaq/ Divorce (Section 7 )
Registration of marriage. (Section 5)
Time Period for effectiveness of divorce: (Section 7)
Union Council Registration Process: (Section 5)
Arbitration Council : (Section 7 )
Marriage Record: (Section 5)
Revocation of Divorce and Remarriage: (Section 7 )
Polygamy. (Section 6)
Maintenance of Wife: (Section 9 )
Permission from first wife : (Section 6)
Dower.( Section 10)
Payment of Dower: (Section 6)

Salient Features:
[FONT=&quot]1. [/FONT]Succession. (Section 4)
In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

[FONT=&quot]2. [/FONT]Registration of marriage. (Section 5)

Every marriage solemnized under Muslim Law shall be registered.

[FONT=&quot]3. [/FONT]Union Council Registration Process: (Section 5)

For the purpose of registration, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than on Nikah Registrar be licensed for any one Ward.

[FONT=&quot]4. [/FONT]Marriage Record: (Section 5)

The form of nikahnama, the registers to be maintained by Nikah Registrars.
This records to be preserved by Union Councils and copies of nikhanama shall be supplied to parties, and the fees to be charged .
Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.

[FONT=&quot]5 [/FONT]Polygamy. (Section 6)
If a person want to contract a second marriage , while his first marriage is existing , he shall have to acquire permission from Arbitration Council and marriage without such permission shall not be registered .

[FONT=&quot]6 [/FONT]Permission from first wife : (Section 6)
On receipt of the application, Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council if satisfied that the proposed marriage is necessary and just, grant, the permission applied for marriage.

7 Payment of Dower: (Section 6)
Any man who contracts another marriage without the permission of the Arbitration Council shall,
pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
Incase of conviction upon complaint may be punished with the simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

[FONT=&quot]8 [/FONT]Talaq/ Divorce (Section 7 )
Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
A person fail to do so shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

9 Time Period for effectiveness of divorce: (Section 7)
If the talaq, is not revoked expressly or otherwise, it shall not be effective until the expiration of ninety days from day on which notice is delivered to the Chairman.
If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period of 90 days or the pregnancy, whichever later, ends.

10 Arbitration Council : (Section 7 )
Within thirty days of the receipt of notice, the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

11 Revocation of Divorce and Remarriage: (Section 7 )
Nothing shall debar a wife whose marriage has been terminated by talaq effective from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

12 Maintenance of Wife: (Section 9 )
If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter.
And the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

Incase if the money is not paid in the due time, it shall be recoverable as arrears of land revenue.

13 . Dower.( Section 10)
Where no details about the mode of payment of dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.]]>

Salient features of Muslim Family Law Ordinance 1961

Muslim Family Laws Ordinance, 1961

1. Short title, extent, application and commencement

(1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961.

(2) It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.

(3) It shall come into force on such date as the Federal Government may, by notification in the official Gazette, appoint in this behalf.

2. Definition

(a) “Arbitration Council” means a body consisting of the Chairman and a representative of each of the parties to a matter dealt with this Ordinance:
Provided that where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council.
(b) “Chairman” means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by an Officer authorised in that behalf by any such Government to discharge the functions of chairman under Ordinance:
Provided that where the Chairman of the Union Council is a non-Muslim, or he himself wishes to make an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge the functions of Chairman, the Council shall elect one of its Muslim members as Chairman for the purposes of this Ordinance.
© “Prescribed” means prescribed by rules made under Sch. II.
(d) “Union Council” means the Union Council or the Town or Union Committee constituted under the Basic Democracies Order, 1959 and having jurisdiction in the matter as prescribed.
(e) “Ward” means a ward within a Union or Town as defined in the aforesaid Order.

3. Ordinance to override other laws, etc.

(1) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with these provisions.

(2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (X of 1940), the Code of Civil Procedure 1908 (Act V of 1908), and any other law regulating the procedure of Courts shall not apply to any Arbitration Council.
4. Succession.
In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.
5. Registration of marriage.
(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.

(2) For the purpose of registration of marriage under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than on Nikah Registrar be licensed for any one Ward.

(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance be reported to him by the person who has solemnized such marriage.

(4). Whoever contravenes the provisions of such-section (3) shall be punishable with simple imprisonment for a term which may extent to three months, or with fine which may extend to one thousand rupees, or with both.

(5). The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriage shall be registered and copies of nikhanama shall be supplied to parties, and the fees to be charged thereof, shall be such as may be prescribed.

(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.

6. Polygamy.
(1) No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.

(2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.

(3) On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, to the Collector concerned and his decision shall be final and shall not be called in question in any Court.

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall,

(a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and

(b) on conviction upon complaint be punishable with the simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

7. Talaq.
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

8. Dissolution of marriage otherwise than by talaq.
Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolves the marriage otherwise than by talaq the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.

9. Maintenance.
(1) If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

(2) A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, to the Collector concerned and his decision shall be final and shall not be called in question in any Court.

(3) Any amount payable under Sub-section (1) or, (2) if, not paid in the due time, shall be recoverable as arrears of land revenue.
PUNJAB AMENDMENT
In sub-section (2), the full-stop occurring at the end shall be replaced by a colon and thereafter the following proviso shall be added, namely:

Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons to be recorded, transfer an application for revision of the certificate from a Collector to any other Collector, or to a Director, Local Government, or to an Additional Commissioner in his Division. [Ord. II of 1975, Section 2].

10. Dower.
Where no details about the mode of payment of dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.

11. Power to make rules.
(1) The Government may make rules to carry into effect the purposes of this Ordinance.

(2) In making rules under this section, such Government, may provide that a breach of any of the rules shall be punishable with simple imprisonment which may extend to one month, or with fine which may extent to two hundred rupees, or with both.

(3) Rules made under this section shall be published in the official Gazette and shall thereupon have effect as if enacted in this Ordinance.
12. Amendment of child marriage restraint act, 1929 (xix of 1929). Omitted by Ord. 27 of 1981.
13. Amendment of the dissolution of muslim marriages act, 1939 (viii of 1939). Omitted by Ord. 27 of 1981.
[FONT=&quot] [/FONT]]]> <![CDATA[Marriage]]> https://vuhelp.net/Thread-Marriage Mon, 29 Oct 2012 10:00:10 -0400 ahmad4212]]> https://vuhelp.net/Thread-Marriage [FONT=&quot] [/FONT]
[FONT=&quot]MARRIAGE

1. INTRODUCTION
2. MEANING OF MARRIAGE
3. DEFINITION OF MARRIAGE

Hedeya
According to Ameer Ali
4. OBJECTS OF MARRIAGE
5. NATURE
Hazarat Muhammad (PBUH) Says
6. CAPACITY FOR MARRIAGE
7. ESSENTIALS OF MARRIAGE

I. OFFER (IJAB)
II. ACCEPTANCE (QUBUL)
III. OFFER AND ACCEPTANCE MUST BE IN THE SAME MEETING
IV. FREEDOM
V. CONSIDERATION
VI. MAJORITY
VII. PERSONS OF OPPOSITE SEX
VIII. WITNESSES
(a) In case of Suni Marriage
(b) In case of shia Marriage

Qualification of Witnesses
IX. FREE CONSENT
8. LEGAL EFFECTS OF A VALID MARRIAGE
9. NUMBER OF WIVES
10. CONCLUSION

MARRIAGE

1. Introduction:
The celebration of the marriage contract is called nikah. Marriage is enjoined upon every Muslim, and celibacy is frequently condemned by the Holy Prophet Muhammad (SAW). It is related in the Traditions that the Holy Prophet (SAW) said, “When the servant of God marries, he perfects half of his religion.”
2. Meaning Of Marriage
Marriage means wedlock’s, the mutual relation of the husband and wife. It is a contract for the legalization of intercourse and procreation of children.
3. Definition Of Marriage
Hedaya
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
According to Ameer Ali
Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.
A.A. Fyzee
Marriage in Islam is a contract and not a sacrament.
4. Objects Of Marriage
Following are objects of a marriage:
(i) Legalization of Sexual Inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.

5. Nature
Mohammedan marriage is purely contractual. It is considered a religious duty. It is an act of Ibadat which is called Sunnat-Muwa-kkidah.
Hazrat Muhammad (PBUH) says:
“If a person is in a position to maintain his wife and pay the amount of dower, he must get himself married.”
6. Capacity For Marriage
(i) Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if it is brought about without his consent.

7. Essentials Of Marriage
i Offer (Ijab)
There must be offer one party. It is also called Ijab.
ii Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. It is called Qubul.
iii Both must be in same Meeting
The offer and acceptance must both be made at the same meeting. An offer made at another meeting do not constitute a valid marriage.
iv Freedom
The parties contracting marriage should be free persons. Marriage with a slave is permitted.
v Consideration
There must be some consideration in marriage which is Dower. The parties are bound to fix amount of dower at the time of marriage. A marriage without dower is void.
vi Majority
The parties contracting marriage should be major. The majority act does not apply on marriage, divorce, maintenance cases. Majority means age of puberty.
vii Persons of opposite sex
Marriage is a contract between two persons of opposite sex. There is no concept of marriage of same sex in Islamic personal law.
viii Witnesses
a. In case of Sunni Marriage
Either two male or one male and two female witnesses are necessary.
b. In case of Shia Marriage
No witness is necessary.
c. Qualification of Witness
i He /She should be adult and sane.
ii Free Consent
8. Legal Effects of a valid Marriage
Following are the legal effects of a valid marriage:
i Sexual intercourse becomes lawful.
ii Issues born out are legitimate.
iii The wife becomes entitle of maintenance.
iv The husband can restrain the movements of his wife in a reasonable manner.
v The wife has to go under a period of Iddat in case of
vi Death of her husband.
vii On the dissolution or divorce of marriage

9. Classification of Marriage:
Classification of marriage is as under:
i Valid
ii Void
iii Irregular

i Valid
A marriage which conformes in all respects with the law is called valid marriage.
ii Void
A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. So it is no marriage at all.
Examples:
i Marriage without the consent of either party.
ii A marriage prohibited on the ground of affinity.
iii A marriage prohibited on the ground of Fosterage.
iv A marriage prohibited on the ground of consanguinity.
v A marriage with the wife of another person.
iii Irregular
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. In irregular marriage, irregularity arises from accidental circumstances.
Examples:
i A marriage without witnesses.
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.
iv A marriage with two sisters at the same time.
v A marriage to a fifth wife.

10. Difference Between Void And Irregular Marriage.
• As to legal position
Void marriages has no lawful position.
Irregular marriage is not in itself unlawful.

• As to prohibition
In void marriage, the prohibition is perpetual and absolute.
Irregular marriage prohibition is temporary.

• As to legitimacy
In void marriage, the children born out of union are not legitimate.
In irregular marriage the children born out are legitimate.

• As to rights and obligations
In void marriage, no civil rights and obligations are arisen.
In irregular marriage, if consummation has taken place some rights and obligations are arisen.

• As to legal effect
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
• As to modification
A void marriage can not be modified into valid marriage.
An irregular marriage can be modified into valid marriage.

11. Kinds of Marriage under Shia Law
The Shia Law only recognizes two kinds of marriage i.e. valid and void marriage.

12. Modes Of Avoiding Irregular Marriage
Following are the modes of avoiding irregular marriage.
i By the court
The court can cancel the marriage if the matter is brought to its notice.
ii By husband
The husband can repudiate his wife.
iii By wife
The wife can also avoid the marriage by relinquishment.

13. Legal Effects Of A Valid Marriage
Following are the legal effects of valid marriage.
i The sexual intercourse becomes lawful.
ii Mutual rights of inheritance are established.
iii The children born out of the wedlock are legitimate.
iv The wife becomes entitled for maintenance.
v The wife becomes entitled to Dower.
vi Neither of the spouses acquires any interest in property of the other by reason of marriage.
vii The wife has to observe the Iddat in case of death of her husband or in case of divorce.
The rules of affinity come into operation in case of valid marriage.
Examples:
i A marriage without witnesses
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.

14. Legal Effects Of A Void Marriage
Following are the legal effects of valid marriage.
i The sexual intercourse becomes unlawful.
ii The void marriage creates no right and obligation upon any party.
iii The children born out of the wedlock are illegitimate.
iv The wife does not become entitled for maintenance and inheritance.

15. Legal Effects Of An Irregular Marriage
Following are the legal effects of valid marriage.
i The irregular marriage has no legal effect if consummation has not taken place.
ii If consummation has taken place, the irregular marriage has following effects:
iii The children born out of such marriage are legitimate.
iv The wife is entitled to dower.
v The wife has to observe the period of Iddat.
vi No right of inheritance is created between the husband and wife.
vii The issues are entitled to share the inheritance.

16. Disabilities:
a. Number Of Wives
A Muslim husband may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four, such marriage would be irregular.
b. Religion:
i Difference of School
Muslims belonging to different schools may intermarry freely with one another, and a mere difference of a school of law, such as Shiite or Sunnite, Hanafi or Shafii is entirely immaterial.
ii Marriage with Non-Muslim
• According to Tyabji and Baillie, the rule among the Shi’ites is stricter. A Shi’ite, whether male or female cannot marry a non-Muslim in the nikah form, but he can not contract a mut’a with a kitabiyya.
• When a Muslim marries a Hindu woman, the marriage is only invalid and does not affect the legitimacy of the offspring.
• D.F. Mulla is of the view that a Muslim male may not contract a valid marriage with an idolatress or a fire-worshipper. Such marriage is not void but merely irregular. It was held in Ishan v. Panna Lal (1928).
• The marriage of a Muslim woman with a non-Muslim is only irregular, not void. The marriage of a Muslim woman with a non-Muslim is declared by the Quran to be batil, void and not merely irregular.
• According to A.A. Fyzee, a Muslim woman can not marry a Christian; such a union would be void.
• According to Ibn Kathir, marriage with an idolatress i.e. pagan woman is prohibited.
c. Foreign Marriage
• It was held in Risk v. Risk (1950) and in one another case Rex. v. Hammersmith (1917) that an unmarried Muslim may contract a valid marriage with an English woman before a registrar in England.
• A marriage between a Muslim and a non-Muslim woman, celebrated in a foreign country, is valid under Islamic Law if it is performed in accordance with the lex loci contractus.
d. Relationship
i Consanguinity
This bar is on the ground of blood relationship. A marriage with a woman prohibited by reason of blood relationship is totally void and the issue illegitimate.
ii Affinity
A man is prohibited from marrying certain relations by affinity. These are:
[/FONT]§[FONT=&quot] Ascendants or descendants of his wife
[/FONT]§[FONT=&quot] The wife of any ascendant or descendent. By way of exception, a man may marry the descendent of a wife with whom the marriage has not been consummated.
iii Fosterage
A man may not, for instance, marry his foster-mother, or her daughter, or his foster-sister. A marriage forbidden by reason of fosterage is void.

iv Unlawful Conjunction
A man is also forbidden to have two wives at the same time, so related to each other by consanguinity, affinity or fosterage that they could not have lawfully intermarried with each other if they had been of different sexes.
Under Hanafi law, generally speaking, disregard of the bar of unlawful conjunction renders the marriage irregular but not void.

17. Miscellaneous Prohibitions:
The Doctrine of Equality in Marriage (Kafa’a)
The Holy Prophet(PBUH) is reported to have recommended marriage with fit spouses:’ Marry your equals’. The Hanafis hold that equality (Kafa’a) between the two parties is a necessary condition in marriage. The following factors must be considered for determining equality:
i Family
ii Islam
iii Profession
iv Freedom
v Good Character
vi Means
18. Conclusion:
In short, marriage is not a sacrament but a civil contract between two persons of opposite sex. Every Muslim of sound mind and has attained age of puberty may enter into contract of marriage.[/FONT][FONT=&quot][/FONT]]]> [FONT=&quot] [/FONT]
[FONT=&quot]MARRIAGE

1. INTRODUCTION
2. MEANING OF MARRIAGE
3. DEFINITION OF MARRIAGE

Hedeya
According to Ameer Ali
4. OBJECTS OF MARRIAGE
5. NATURE
Hazarat Muhammad (PBUH) Says
6. CAPACITY FOR MARRIAGE
7. ESSENTIALS OF MARRIAGE

I. OFFER (IJAB)
II. ACCEPTANCE (QUBUL)
III. OFFER AND ACCEPTANCE MUST BE IN THE SAME MEETING
IV. FREEDOM
V. CONSIDERATION
VI. MAJORITY
VII. PERSONS OF OPPOSITE SEX
VIII. WITNESSES
(a) In case of Suni Marriage
(b) In case of shia Marriage

Qualification of Witnesses
IX. FREE CONSENT
8. LEGAL EFFECTS OF A VALID MARRIAGE
9. NUMBER OF WIVES
10. CONCLUSION

MARRIAGE

1. Introduction:
The celebration of the marriage contract is called nikah. Marriage is enjoined upon every Muslim, and celibacy is frequently condemned by the Holy Prophet Muhammad (SAW). It is related in the Traditions that the Holy Prophet (SAW) said, “When the servant of God marries, he perfects half of his religion.”
2. Meaning Of Marriage
Marriage means wedlock’s, the mutual relation of the husband and wife. It is a contract for the legalization of intercourse and procreation of children.
3. Definition Of Marriage
Hedaya
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
According to Ameer Ali
Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.
A.A. Fyzee
Marriage in Islam is a contract and not a sacrament.
4. Objects Of Marriage
Following are objects of a marriage:
(i) Legalization of Sexual Inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.

5. Nature
Mohammedan marriage is purely contractual. It is considered a religious duty. It is an act of Ibadat which is called Sunnat-Muwa-kkidah.
Hazrat Muhammad (PBUH) says:
“If a person is in a position to maintain his wife and pay the amount of dower, he must get himself married.”
6. Capacity For Marriage
(i) Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if it is brought about without his consent.

7. Essentials Of Marriage
i Offer (Ijab)
There must be offer one party. It is also called Ijab.
ii Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. It is called Qubul.
iii Both must be in same Meeting
The offer and acceptance must both be made at the same meeting. An offer made at another meeting do not constitute a valid marriage.
iv Freedom
The parties contracting marriage should be free persons. Marriage with a slave is permitted.
v Consideration
There must be some consideration in marriage which is Dower. The parties are bound to fix amount of dower at the time of marriage. A marriage without dower is void.
vi Majority
The parties contracting marriage should be major. The majority act does not apply on marriage, divorce, maintenance cases. Majority means age of puberty.
vii Persons of opposite sex
Marriage is a contract between two persons of opposite sex. There is no concept of marriage of same sex in Islamic personal law.
viii Witnesses
a. In case of Sunni Marriage
Either two male or one male and two female witnesses are necessary.
b. In case of Shia Marriage
No witness is necessary.
c. Qualification of Witness
i He /She should be adult and sane.
ii Free Consent
8. Legal Effects of a valid Marriage
Following are the legal effects of a valid marriage:
i Sexual intercourse becomes lawful.
ii Issues born out are legitimate.
iii The wife becomes entitle of maintenance.
iv The husband can restrain the movements of his wife in a reasonable manner.
v The wife has to go under a period of Iddat in case of
vi Death of her husband.
vii On the dissolution or divorce of marriage

9. Classification of Marriage:
Classification of marriage is as under:
i Valid
ii Void
iii Irregular

i Valid
A marriage which conformes in all respects with the law is called valid marriage.
ii Void
A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. So it is no marriage at all.
Examples:
i Marriage without the consent of either party.
ii A marriage prohibited on the ground of affinity.
iii A marriage prohibited on the ground of Fosterage.
iv A marriage prohibited on the ground of consanguinity.
v A marriage with the wife of another person.
iii Irregular
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. In irregular marriage, irregularity arises from accidental circumstances.
Examples:
i A marriage without witnesses.
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.
iv A marriage with two sisters at the same time.
v A marriage to a fifth wife.

10. Difference Between Void And Irregular Marriage.
• As to legal position
Void marriages has no lawful position.
Irregular marriage is not in itself unlawful.

• As to prohibition
In void marriage, the prohibition is perpetual and absolute.
Irregular marriage prohibition is temporary.

• As to legitimacy
In void marriage, the children born out of union are not legitimate.
In irregular marriage the children born out are legitimate.

• As to rights and obligations
In void marriage, no civil rights and obligations are arisen.
In irregular marriage, if consummation has taken place some rights and obligations are arisen.

• As to legal effect
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
• As to modification
A void marriage can not be modified into valid marriage.
An irregular marriage can be modified into valid marriage.

11. Kinds of Marriage under Shia Law
The Shia Law only recognizes two kinds of marriage i.e. valid and void marriage.

12. Modes Of Avoiding Irregular Marriage
Following are the modes of avoiding irregular marriage.
i By the court
The court can cancel the marriage if the matter is brought to its notice.
ii By husband
The husband can repudiate his wife.
iii By wife
The wife can also avoid the marriage by relinquishment.

13. Legal Effects Of A Valid Marriage
Following are the legal effects of valid marriage.
i The sexual intercourse becomes lawful.
ii Mutual rights of inheritance are established.
iii The children born out of the wedlock are legitimate.
iv The wife becomes entitled for maintenance.
v The wife becomes entitled to Dower.
vi Neither of the spouses acquires any interest in property of the other by reason of marriage.
vii The wife has to observe the Iddat in case of death of her husband or in case of divorce.
The rules of affinity come into operation in case of valid marriage.
Examples:
i A marriage without witnesses
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.

14. Legal Effects Of A Void Marriage
Following are the legal effects of valid marriage.
i The sexual intercourse becomes unlawful.
ii The void marriage creates no right and obligation upon any party.
iii The children born out of the wedlock are illegitimate.
iv The wife does not become entitled for maintenance and inheritance.

15. Legal Effects Of An Irregular Marriage
Following are the legal effects of valid marriage.
i The irregular marriage has no legal effect if consummation has not taken place.
ii If consummation has taken place, the irregular marriage has following effects:
iii The children born out of such marriage are legitimate.
iv The wife is entitled to dower.
v The wife has to observe the period of Iddat.
vi No right of inheritance is created between the husband and wife.
vii The issues are entitled to share the inheritance.

16. Disabilities:
a. Number Of Wives
A Muslim husband may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four, such marriage would be irregular.
b. Religion:
i Difference of School
Muslims belonging to different schools may intermarry freely with one another, and a mere difference of a school of law, such as Shiite or Sunnite, Hanafi or Shafii is entirely immaterial.
ii Marriage with Non-Muslim
• According to Tyabji and Baillie, the rule among the Shi’ites is stricter. A Shi’ite, whether male or female cannot marry a non-Muslim in the nikah form, but he can not contract a mut’a with a kitabiyya.
• When a Muslim marries a Hindu woman, the marriage is only invalid and does not affect the legitimacy of the offspring.
• D.F. Mulla is of the view that a Muslim male may not contract a valid marriage with an idolatress or a fire-worshipper. Such marriage is not void but merely irregular. It was held in Ishan v. Panna Lal (1928).
• The marriage of a Muslim woman with a non-Muslim is only irregular, not void. The marriage of a Muslim woman with a non-Muslim is declared by the Quran to be batil, void and not merely irregular.
• According to A.A. Fyzee, a Muslim woman can not marry a Christian; such a union would be void.
• According to Ibn Kathir, marriage with an idolatress i.e. pagan woman is prohibited.
c. Foreign Marriage
• It was held in Risk v. Risk (1950) and in one another case Rex. v. Hammersmith (1917) that an unmarried Muslim may contract a valid marriage with an English woman before a registrar in England.
• A marriage between a Muslim and a non-Muslim woman, celebrated in a foreign country, is valid under Islamic Law if it is performed in accordance with the lex loci contractus.
d. Relationship
i Consanguinity
This bar is on the ground of blood relationship. A marriage with a woman prohibited by reason of blood relationship is totally void and the issue illegitimate.
ii Affinity
A man is prohibited from marrying certain relations by affinity. These are:
[/FONT]§[FONT=&quot] Ascendants or descendants of his wife
[/FONT]§[FONT=&quot] The wife of any ascendant or descendent. By way of exception, a man may marry the descendent of a wife with whom the marriage has not been consummated.
iii Fosterage
A man may not, for instance, marry his foster-mother, or her daughter, or his foster-sister. A marriage forbidden by reason of fosterage is void.

iv Unlawful Conjunction
A man is also forbidden to have two wives at the same time, so related to each other by consanguinity, affinity or fosterage that they could not have lawfully intermarried with each other if they had been of different sexes.
Under Hanafi law, generally speaking, disregard of the bar of unlawful conjunction renders the marriage irregular but not void.

17. Miscellaneous Prohibitions:
The Doctrine of Equality in Marriage (Kafa’a)
The Holy Prophet(PBUH) is reported to have recommended marriage with fit spouses:’ Marry your equals’. The Hanafis hold that equality (Kafa’a) between the two parties is a necessary condition in marriage. The following factors must be considered for determining equality:
i Family
ii Islam
iii Profession
iv Freedom
v Good Character
vi Means
18. Conclusion:
In short, marriage is not a sacrament but a civil contract between two persons of opposite sex. Every Muslim of sound mind and has attained age of puberty may enter into contract of marriage.[/FONT][FONT=&quot][/FONT]]]> <![CDATA[Dower]]> https://vuhelp.net/Thread-Dower Mon, 29 Oct 2012 09:57:52 -0400 ahmad4212]]> https://vuhelp.net/Thread-Dower

[FONT=&quot]Dower[/FONT]

[FONT=&quot]1. Introduction:[/FONT][FONT=&quot]
[/FONT][FONT=&quot]The dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. It is also called Mahr. It may be settled before marriage, or at the time of marriage or even after the marriage. The right of wife to dower becomes complete on the consummation of marriage. The amount of Dower may be increased after the marriage.[/FONT][FONT=&quot] [/FONT][FONT=&quot]
2. DEFINITION OF DOWER
• Fatawa-e-Almgiri
It is an obligation imposed by the law on the husband, as mark of respect for the wife.
• Mulla
Dower is a sum of money or other property which the wife is entitled to receive from the hung and in consideration of the marriage.
Mr justice Mahmood
Dower, under the Muhammadan law, is some of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife. Hedays says: The payment of dower is enjoined by the law merely as a token of respect for its object (the woman)
3. IMPORTANNCE OF DOWER IN ISLAMIC LAWDower provides protection to the wife against the Arbitrary dower of the husband to pronounce Divorce. It is a mark of respect to the wife and a check on the power of husband to divorce.
4. CAPACITY TO MAKE A CONTRACT FOR DOWERThe parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
5. PERSONS WHO ARE ENTITLED TO MAKE CONTRACTFollowing persons can make contract of dower.
i. The parties of the marriage.
ii. Their agents.
iii. Guardian
iv. Agent of guardian.
6. SUBJECT OF DOWER[/FONT]
[FONT=&quot]i. Fixed sum of money.[/FONT][FONT=&quot] [/FONT][FONT=&quot]
ii. Any thing in the category of property having value.
iii. Property must be in existing.

7. AMOUNT OF DOWERThere is no maximum limit of amount of the dower but the amount can not be less than prescribed by the law.
The amount of mahr may either be fixed or not; if it is fixed, it cannot be sum less than the minimum laid down by the law.
o Minimum dower
i. Hanafi law: 10 derhams
ii. Maliki law: 3 dirhams
iii. Shafi’i law: No fixed minimum
iv. Shiite law: No fixed minimum
8. FIXATION OF DOWER:Dower may be fixed before the marriage at the time of Marriage and after the marriage.
9. CONFIRMATION OF DOWER:The amount of Dower becomes confirm:
i. By consummation of marriage of
ii. By a failed retirement khalwat-e-sahira or
iii. By the death of either party i.e. husband or wife
10. KINDS OF DOWERDower may be either specified or unspecified.
a Specified Dower (al-mahru’l-musamma)
An amount settled by the parties at the time of marriage or after is called specified dower. It is also known as Mahr-I-Musmma. Usually the mahar is fixed at the time of marriage and the Qazi performing the ceremony enters the amount in the register; or else there may be a regular contract called Kabin-nama.
In syed sabar Hussain v. Frazand Hussan , a Shiite father had made himself surety for the payment of the mahar of his minor son. Thereafter he died , and it was held that the estate of the deceased was liable for the payment of his son’s mahar.
Where the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem to the court, having regard to the husband’s means.
There are two kinds of specified dower in Islam:
i. Prompt Dower (Mu’ajjal)
It is derived from a root meaning ‘to hasten, to precede’. Prompt dower is payable immediately on demand. It may also be demanded before the consummation of the marriage the wife may refuse to live with him unless he pays the prompt dower.
ii. Deferred Dower (Muw’ajjal)
Deferred dower is payable on the dissolution of marriage either by death or by divorce.
When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at once or on demand, and the other on the deth of the husband or divorce or the happening of some specified event. But a difficulty arises when it is not settled whether the dower is prompt of deferred.
In Ithna Ashari Law, the presumptions that the whole of the dower is prompt, but in Hanafi law the position is different. The whole of the dower may be promptly awarded.

b UNSPECIFIED DOWERWhere dower has not been settled at the time of the marriage or after is called unspecified dower.Unspecified dower may be classified into Proper Dower.
• Proper Dower
Proper dower is fixed with reference to the social status of the wife and her own personal qualification.
• Determination of Proper Dower
Following facts are taken into consideration while determining the amount of dower.
i. Local custom of the society.
ii. Personal skill and qualification of the wife.
iii. Social position of the husband.
iv. Social status of father of the wife.
v. Amount of Dower fixed in case of wife’s sisters, paternal aunts and others nearest elatives.
11. Increase or Decrease of DowerThe husband may at any time after marriage increase the dower. Likewise, the wife may remit the dower, wholly or partially and a Muslim girl who has attained puberty is competent to relinquish her mahr, although she may not have attained majority (18 years) within the meaning of the Indian Majority Act. The rmission of the mahr by a wife is called hibatu’l mahr or hiba-i-mahr.
It has, however, been held in Karachi that in certain cases remission of dower cannot be upheld. (Shah bano vs. Iftikhar Muhammad, PLD 1956 (W.P), Kar.363)
12. Enforcement of DowerThe claim of the wife or widow for the unpaid portion of mahr is an unsecured debt due to her from her husband or his estate, respectively. It ranks ratably with unsecured debts, and is an actionable claim. During her lifetime the wife can recove the debt herself from the estate of the wife, including the husband, become entitled to her dower.
If a husband refuses to pay prompt dower, the guardian of a minor wife has the right to refuse to allow her to be sent to the husband’s house; and similarly, the wife may refuse the husband his conjugal rights, provided no consummation has taken place. The wife is under Islamic Law entitled to refuse herself to her husband until the prompt dower is paid; and if in such circumstances she happens to reside apart from him, the husband is bound to maintain her.
This right of refusing herself is, however, lost on consummation. Thus if the husband files a suit for restitution of conjugal rights before cohabitation, non-payment of prompt dower is a complete defence; but after cohabitation, the proper course for the court is to pass a decree for restitution conditional on payment of prompt dower. This was laid down in the leading case of Anis Begum v. Muhammad Istafa Wali Khan.
The non-payment of deferred doer by its very nature cannot confer any such right of refusal on the wife. The right to enforce payment arises only on death, divorce or the happening of a specified event.
The dower ranks as a debt and the widow is entitled, along with the other creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the tight of an unsecured creditor; she is not entitled to a charge on the husband’s property, unless there be an agreement. The Supreme Court of India had laid down (1) that the widow has no priority over other creditors, but (2) that mahr as a debt has priority over the other heirs, claims. And the heirs of the deceased are not personally liable to pay the dower; they are liable ratably to the extent of the share of the inheritance which comes to their hands.
13. The widow’s Right of RetentionIslamic law gives to the widow, whose dower has remained unpaid, a very special right to enforce her demand. This is known as the widow’s right of retention. A widow lawfully in possession of her deceased husband’s estate is entitled to retain such possession until her dower debt is satisfied. Her right is not in the nature of a regular charge, mortgage or a lien; it is in essence a personal right as against heirs and creditors to enforce her right; and it is a right to retain, not to obtain, possession of her husband’s estate. Once she loses possession of her husband’s estate, she loses her special right and is in no better position than an unsecured creditor.
The Supreme court of India had laid down that a Muslim widow in possession of her husband’s estate in lieu of her claims for dower, whether with the consent of the heirs or otherwise, is not entitled to priority as against his unsecured creditors.
The right of retention does not confer on the widow any title to the property. Her rights are twofold; one, as heir of the deceased, and two, as widow entitled to her dower and, if necessary, to hold possession must, therefore, be sharply distinguished from her right as an heir. She has no right to alienate the property by salt, mortgage, gift or otherwise and if she attempts to do so, she loses her right of retention; but the widow may assign her right of mahr.
In Maina Bibi v. Chaudhry Vakil Ahmad their Lordships expressed a doubt whether a widow could transfer the dower debt or the right to retain the estate until the mahr was paid. The Mysore High Court had decided that the right is both heritable and transferable, and not a lien, and as such, it is not transferable, Although there is a conflict of opinion, in view of Kapore Chand’s Case, the balance of authority seems to be in favour of the Patna view.
14. REMISSION OF DOWERA wife may remit the dower or any part thereof in favour of the husband or his heirs.
• Condition
Remission must be made with free consent.
15. CONCLUSION
To conclude I can say that, the Dower is a sum of money or other property whch the wife is entitled to receive from her husband. It becomes complete on the consummation of the marriage. There is no, limit on the minimum amount of the dower. The amount of dower can be increased after the marriage.[/FONT][FONT=&quot][/FONT]]]>

[FONT=&quot]Dower[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]Surah Number 65: At-Talâq (Divorce)[/FONT]

[FONT=&quot]Revealed at: Madinah[/FONT]

[FONT=&quot]Total Verses: 12 [/FONT]
[FONT=&quot]ALLAH in the name of The Most Affectionate, the Merciful. [/FONT]
[FONT=&quot]1. 'O Prophet! When you people divorce your women, then divorce them at the time of their prescribed periods [/FONT]
[FONT=&quot]and count the prescribed period, and fear Allah, your Lord. Turn them not out of their houses during prescribed [/FONT]
[FONT=&quot]period, nor should they themselves go out, unless they are involved in any flagrant indecency; These are the [/FONT]
[FONT=&quot]limits of Allah, and whoso crossed the limits of Allah, undoubtedly, he did injustice to his own soul. You know [/FONT]
[FONT=&quot]not that perhaps Allah may send any new commandment after it. [/FONT]
[FONT=&quot]2. Then, when they are about to reach their term, retain them with kindness or part from them with kindness and [/FONT]
[FONT=&quot]take two just persons as witnesses from among you and set up witness for Allah. By this, he who believes in [/FONT]
[FONT=&quot]Allah and Last Day is admonished. And he who fears Allah, Allah will make a way for his deliverance. [/FONT]
[FONT=&quot]3. And will provide for him whence he expects not. And he who puts his trust in Allah - He is sufficient for him. [/FONT]
[FONT=&quot]Verily, Allah is to fulfil His work. Undoubtedly, Allah has kept a measure for every thing. [/FONT]
[FONT=&quot]4. And as to your women who have no hope of menstruation; if you are in doubt, then their prescribed period is [/FONT]
[FONT=&quot]three months, and for those who have not yet menstruated. And the period of the pregnant women is when [/FONT]
[FONT=&quot]they give birth to children. And whose fears Allah, Allah will make his work easy. [/FONT]
[FONT=&quot]5. This is the Commandment of Allah that He has sent towards you. And whoso fears Allah, Allah will put off his [/FONT]
[FONT=&quot]evils and will give him immense reward. [/FONT]
[FONT=&quot]6. Make the women to dwell where you yourselves dwell according to your means, and do not harm them so as to [/FONT]
[FONT=&quot]straiten them. And if they are pregnant, then give them their maintenance till they give birth to children, And if [/FONT]
[FONT=&quot]they suckle children for you, give them their wages and consult together reasonably. But if you mutually [/FONT]
[FONT=&quot]disagree then soon he (father) will get another woman for sucking.[/FONT]
F[FONT=&quot]Dissolution of Marriage[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]"Generally speaking married couples make their best efforts to continue their marital relations in cordiality and happiness."(1) There are those occasions where it becomes impossible for a couple to maintain a viable relationship (i.e. neglect, abuse, etc.). In these cases "the Shari'ah takes a very reasonable view of such an intolerable situation and instead of forcing the couple to stay together...."(2) it permits a divorce.[/FONT]
[FONT=&quot]There are three kinds of divorce in Islam:[/FONT]
[FONT=&quot]The first is Talaq (by the husband) and the second is Talaq Al-Bida'h (Divorce of Innovation) and Khul' (by the wife).[/FONT]
[FONT=&quot]Talaq[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Talaq has two forms:[/FONT]
[FONT=&quot]1. Talaq ar-Raji': [/FONT][FONT=&quot](revocable divorce) which has two types:[/FONT]

[FONT=&quot]Talaq Ahsan:[/FONT][FONT=&quot] (the most approved divorce). It is meant as a means to heal the breach between a couple and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.[/FONT]
[FONT=&quot]Talaq Hasan: [/FONT][FONT=&quot](approved). In this form divorce is pronounced in three successive periods. After the first two the husband has the right to take his wife back if they so desire to reunite but if he pronounces divorce a third time it becomes irrevocable. The wife must marry another at this time.[/FONT]

[FONT=&quot]2. Talaq al-Bain: [/FONT][FONT=&quot](irrevocable divorce). This is a divorce that with three pronouncements in successive sittings or at the same sitting or before the consummation of the marriage. There is no return allowed under these circumstances unless the woman has an intervening marriage.[/FONT]
[FONT=&quot]"Talaq is a right available mainly to the husband, but not to the wife. Even though Islam allows divorce, the Prophet (pbuh) says: 'Of all things that Islam has permitted, divorce is the most hated by Allah.' Hasty and wanton use of the right of divorce is regarded as most condemnable in Islam." (3)[/FONT]
[FONT=&quot]Surah Al-Baqarah 229: "A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness."[/FONT]
[FONT=&quot]This could be likened to the "three strikes and you're out" policy.[/FONT]
[FONT=&quot]Talaq Al-Bida'h (Divorce of Innovation)[/FONT][FONT=&quot][/FONT]
[FONT=&quot]This was a type of divorce that made its appearance after the death of the Prophet (pbuh). It is where the man pronounces Talaq three times at one sitting or sends it in writing to his wife. This is a sin against the precepts of the Shari'ah and was severely denounced by the Prophet and Khalif `Umar would whip a husband who did such a thing.[/FONT]
[FONT=&quot]Khul'[/FONT][FONT=&quot][/FONT]
[FONT=&quot]This a divorce that is instigated by the wife. It is where she applies to a Qadi for divorce.[/FONT]
[FONT=&quot]Surah An-Nisa' 128 : If a wife fears cruelty or desertion on husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men's souls are swayed by greed. But if you practice self-restraint, Allah is well-acquainted with all that you do.[/FONT]
[FONT=&quot]In the case of Khul', the wife must return all or part of the mahr (the dower). A case in point, where the woman would be allowed to keep the mahr, is what Imam Malik said and that was if a wife was forced by her husband to enter Khul', she would be entitled to get the mahr back.[/FONT]
[FONT=&quot]The issue of divorce is covered in more detail in the book "Woman in Shari'ah (Islamic Law)" by 'Abdur Rahman I. Doi.[/FONT]
[FONT=&quot]
1. IntroductionDivorce is called in Arabic as Talaq ( ). In its primitive sense the word
The holy Prophet (PBUH) is reported to have said:
“ With Allah, the most detestable of all things permitted is Divorce.”
A.A. Fyzee:
“The reforms of Prophet Muhammad (PBUH) marked a new department in the history of Eastern legislation. He restrained the power of divorce possessed by the husbands; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge.”
Case Law Definition (divorce):
AIR 1932 Oudh 34
It is the freedom from the bondage of the marriage.

2. Classification:a By the death of spouse:
The death of the husband or the wife operates in law as dissolution of marriage. When the wife dies, the husband may remarry immediately, but the widow has to wait for a certain period before she can remarry. This period is called idda’.
b Talaq:
The word talaq is usually rendered as repudiation. It comes from a root (tallaqa) which means to release (an animal) from a tether. In law, it signifies the absolute power that the husband possesses of divorcing his wife at all times.
The divorce operates from the time of pronouncement of talaq. The presence of the wife is not necessary; nor need notice be given to her. In Hanafi law, no special form is necessary whereas Ithna’ Ashari law insist on a strict formula being used.
In Ithna’ Ashari law, the pronouncement of talaq, in the Arabic tongue, must be uttered orally in the presence and hearing of two male witnesses who are Muslims of approved probity.

3. Types of TalaqThere are two types of Talaq:
i. Talaqu’ s-Sunna (Approved Form)
o Ahsan FormThe ahsan form consists of one single pronouncement in a period of tuhr, followed by abstinence from sexual intercourse during idda’.
Where the parties have been away from each other for a long time, or where wife is old and beyond the age of menstruation, the condition of tuhr, is unnecessary.
A pronouncement of made in the ahsan form is revocable during ‘idda. This period is three months from the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the divorce at any time during the ‘idda. Such revocation may be by express words or by conduct. The divorce is revoked under Hanafi as well as Ithna’ Ashari law.
After the expiration of the ‘idda the divorce becomes irrevocable. A Muslim wife, after divorce, is entitled to maintenance during the ‘idda and so also her child, in certain circumstances.
o Hasan FormThe hasan is also an approved form, but less approved than the first ahsan. It consists of three successive pronouncements during three consecutive periods of purity (tuhr). Each of these pronouncements should have been made at a time when no intercourse has taken place during that particular period of purity.
The husband pronounce talaq on his wife for the first time during a period when wife is free from her menstrual courses. The husband and wife had not come together during this period of purity. This is the first talaq.
He resumes cohabitation or revokes this first talaq in this period of purity. Thereafter, in the following period of purity, at a time when no intercourse has taken place, husband pronounces the second talaq.
This talaq is again revoked by express words or by conduct, and the third period of purity is entered into. In this period, no intercourse having taken place, husband for the third time pronounces the formula of divorce.
The third pronouncement operates in law as a final and irrevocable dissolution of the marital tie. The marriage is dissolved; sexual intercourse becomes unlawful; ‘idda becomes incumbent; remarriage between the parties becomes impossible unless wife lawfully marries another husband, and that other husband lawfully divorces here after the marriage has been actually consummated.
The Ithna ‘Ashari and the Fatimid schools, however, do not recognize the remaining two forms and thus preserve the ancient conventions of the times of the Lawgiver.
The second is a form in which the Holy Prophet (PBUH) tried to put an end to a barbarous pre-Islamic practice. This practice was to divorce a wife and take her back several times in order to ill-treat her.
ii. Talaqu’l - Bid’a (Disapproved Forms)
Following are the disapproved forms of Talaq.
o The triple declation:In this form three pronouncements are made in a single tuhr, either in one sentence, e.g. ‘I divorce thee triply or thrice; or in three sentences, ‘ I drivorce thee, I drivorce thee’. Such a talaq is lawful, although sinful, in Hanafi law; but in Ithna ‘Ashari and the Fatimid laws it is not permissible. This called at-talaqu’l-ba’in, irrevocable divorce.
o The Single, irrevocable declaration:Another form of the disapproved divorce is a single, irrevocable pronouncement made either during the period of tuhr or even otherwise. This form is also called at-talaqu bain and may be given in writing. Such a bill of divorcement comes into operation immediately and serves the marital tie. This form is not recognized by the Ithna ‘Ashari or the Fatimid school.
o Option of PubertyIf a Muslim minor has been married during minority by a guardian, the minor has the right on attaining majority to repudiate such marriage.
This is called khiyar al-bulugh, the option of puberty. Such a minor may be given in marriage either by the father or grandfather or by any other guardian.
In case of a girl married during minority, she is entitled to dissolution of her marriage if she proves the following facts. According to Dissolution of Muslim Marriages Act of 1939, section 2(vii):
Firstly, that she was given in marriage by her father or other guardian.
Secondly, that the marriage took place before she attained the age of 15.
Thirdly, that she repudiates the marriage before she attained the age of 18.
Fourthly, that the marriage has not been consummated. Consummation of marriage before the age of puberty does not deprive the wife of her option.
The right of repudiation is lost first, on consummation. It has been held, however, that a wife’s right is not determined by mere consummation if she was ignorant of her right according to Tyabji.
Secondly, the right is also lost in the case of a female if on attaining puberty and on being informed of the right, she does not repudiate the marriage within a reasonable time. By the statute, the wife must exercise the option before she attains the age of 18.
o Talaq under compulsion or under the influence of intoxicationBy a peculiar rule of Hanafi law, as distinguished from the Fatimid, Ithna ‘Ashari or Shafe’I law, a divorce pronounced under compulsion or under the influence of intoxication is valid and effective.
According to A.A. Fyzee:
“The rule appears to be unjust, and should be abolished.”
o Ila’In Ila’ the husband swears not to have intercourse with the wife and abstains for four months or more. The husband may revoke the oath by resumption of marital life. After the expiry of the period of four months, in Hanafi law the marriage is dissolved without legal process, but in Itha ‘ Ashari and Shafi’I law, legal proceedings are necessary.
o ZiharIn Zihar, the husband swears that to him the wife is like ‘the back of his mother’. If he intends to revoke this declaration, he has to pay money by way of expiation, or fast for a certain period. After the oath has been taken, the wife has the right to go to the court and obtain divorce or restitution of conjugal right on expiation.
o Khul’ and Mubara’aThe Fatawa ‘Alamgiri lays down:
“ The woman can release herself form the tie by giving up some property in return in consideration of which the husband is to give her a khula, and when they have done this a talak ul-bain would take place.”
The word khul’ means leterally ‘to take off clothes’ and thence, ‘to lay down one’s authority over a wife’; and the word mubara denotes the act of ‘ freeing one another mutually.’
One of the earliest instances raising a case of khul’ is Moonshee Buzul-ul-Reheem v. Luteefut-oon-Nissa, where their Lordships of the Privy Council says:
“ It appears that by the Muhammad Law divorce may be made in either of thow forms: Talak or khula.”
Form
In Hanafi law, the husband proposes dissolution, and the wife accepts it at the same meeting. The proposal and acceptance need not be in any particular form. The contract itself dissolves the marriage and operates as a single talaq-i-bain, and its operation is not postponed until the execution of the khu’-nama. In Ithna ‘Ashari law, as is to be expected, certain forms are to be strictly followed and witnesses are required.

In khul’ the wife makes some compensation to the husband or gives up a portion of her mahr; but this is not absolutely necessary. The Egyptian code of Hanafi Law, Art. 275, based upon the classical authorities, lays down: ‘ A khul’ repudiation can validly take place before or after consummation by the wife.
Abu Hanifa holds that, in the absence of agreement, mahr is deemed to be relinquished by the wife both by khul’ and by mubara’a.
Imam Abu Yusuf lay down that mahr is deemed to relinquish by mubara’a, but not by khul’.
Imam Muhammad holds that mahr is deemed to be relinquished neither by khul’ nor by mubara’a.
Khul’ and mubara’a operate as a single, irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary.
In either case, ‘idda is incumbent on the wife, and in the absence of agreement.
4. Dissolution by judicial processi Li’an (Mutual Imprecation)
Divorce by mutual imprecation is mentioned in the Quran and is supported by the traditions of the Holy Prophet (PBUH). It is reported that a man from the Ansar accused his wife of adultery. The Holy Prophet (PBUH) thereupon asked them both to take an oath; then he ordered them to be separated from each other.
The procedure of Li’an may be described briefly as follows:
A husband accuses his wife of adultery, but is unable to prove the allegation. The wife in such cases is entitled to file a suit for dissolution of marriage.
At the hearing of the suit, the husband has two alternatives:
a He may formally retract the charge.
b The husband may, however, not retract and, if he persists in his attitude, he is called upon to make certain oaths. This is followed by oaths of innocence made by the wife. After these mutual imprecations, the judge pronounces that the marriage is dissolved.
c No appeal can be filed against the decree of the court on this ground i.e. lian.
5. Judicial Rescissiona Faskh
The word Faskh means annulment or abrogation. Hence it refers to the power of the Muslim Qazi to annul a marriage on the application of the wife. The law of faskh is founded upon the Quranic injunction.
Abdullah Yusuf:
“The act, applies to every Muslim, to whatever school of law he belongs.”
b The Dissolution of Muslim Marriages Act 1939:Section 2 lays down that even a single ground mentioned in the
i. Missing HusbandThe wife is entitled to obtain in a decree for the dissolution of her marriage if the whereabouts of the husbands have not been known for a period of four years; but a decree passed on this ground will not take effect for a period of six months form the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the court must set aside the decree.
ii. Failure of maintainIf the husband has neglected or has failed to provide for the wife’s maintenance for a period of two years, Section 2(ii) has been the cause of a difference of judicial opinion.
In Fazal Mahmud v. Ummatur Rahim, a Peshawar case, it was held that the section does not abrogate the general principles of Islamic law; therefore, before a husband can be said to have neglected or failed to provide maintenance, it must be shown that the husband was under as legal duty to provide such maintenance.
Where the wife refuses to reside with her husband or fails to discharge her marital obligations, without any reasonable cause, she can not claim maintenance, and therefore she is not entitled to divorce.
The Singh High Court has taken a different view. In Nur Bibi v. Pir Bux (AIR 1950) Sindh 8., it was laid down that where a husband has failed to provide maintenance for his wife for a period of two years immediately preceding the suits, the wife would be entitled to a dissolution of her marriage under section 2(ii) of the Act, in spite of the fact that on account of her conduct in refusing to live with her husband, she would not have been entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband has failed to maintain her.
The true rule appears to be:
o that the failure to maintain under the statute need not be willful; mere inability due to, for instance, to poverty or even other causes, is sufficient.
o That the wife, willfully refusing to stay with the husband, would be out of court if she proceeded under the section.
In Shafii law, apart from ‘inability to maintain’, as such, ‘neglect or failure to maintain’ is a good ground for the wife to dissolve her marriage.

iii. Imprisonment of husband
If the husband is sentenced to imprisonment for a period of seven years or more, no decree can be passed until the sentence has become final.
iv. Failure to perform marital obligation
If the husband fails to perform without reasonable cause, his marital obligations for a period of three years.
v. Impotence
It must be proved that the husband was important at the time of marriage, and that he continues to be so; but before passing a decree on this ground, the court is bound, on application by the husband, but not otherwise, to make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent. If the husband satisfied the court, within a year, that he is no longer impotent, no decree can be passed.
A.A. Fyzee:
“ After this probationary year, if the incapacity of the husband continued, the marriage would be dissolved.”
The two chief differences are:
Firstly, that the ignorance of the wife regarding the impotency of her husband needs not to be proved. She can obtain a divorce even if she knew of it.
Secondly, that the adjournment of the case for one year is not essential. It is only on the application of the husband that an adjournment may be obtained. If no such application is made, the decree dissolving the marriage can be passed without delay.
Thirdly, under the statute, the onus is thrown on the husband to prove that he is free from the physical defect of impotence.
vi. Insanity, leprosy, venereal disease
If the husband (i) has been insane for a period of two years, or (ii) is suffering from leprosy or (iii) a virulent venereal disease.
vii. Cruelty
If the husband treats the wife with cruelty, which means that he:
o habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conduct does not amount to physical ill treatment.
o Or associates with women of evil repute or leads an infamous life
o Or attempts to force her to lead an immoral life
o Or disposes of her property or prevents her from exercising her practice legal rights over it
o Or obstructs her in the observance of her religious profession or practice
o Of if he, having more wives than one, does not treat her equitably in accordance with the Quranic injunctions.
These rules may be found in Abdul Rahman’s (Institutes of Mussalman Law) and another book on Fiqh, Ruddul-Muhtar.
Incompatibility of temperaments, dislike or ill will, are not sufficient grounds under the Muhammadan law for obtaining dissolution. In a learned and exhaustive judgment Sayeeda Khanam v, Muhammad Sami (PLD 1959 (WP) Lahore 113, F.B), Cornelius C.J. discussed this question authoritatively and dealt with the nature of incompatibility; divorce and khul; meaning of shiqaq, citing iv. 34,35.
In Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 (WP) Lahore 566) in which the facts were strongly in favour of the wife, the Maliki view that in a fit case the arbitrator (hakams) had the power to dissolve the marriage was adopted and the law molded more in consonance with the spirit of the Quran, as interpreted in modern times.
The wife is entitled to dissolution of marriage on restoration of what she received in consideration of marriage if the judge apprehends that parties will not observe the limits of God.
viii. Apostasy, Conversion
A Muslim may renounce Islam, and this is known as apostasy (ridda); or a non-Muslim may embrace Islam and this is called conversion. According to the general principles of Islamic law, a person who embraces Islam is immediately governed by Islamic law. But a man who renounces Islam suffers greatly under civil as well as criminal law.
If a Muslim husband who renounces Islam is an apostate and as such his marriage with his Muslim wife is dissolved ipso facto (by the fact).
According to Syed Ameer Ali, when a Muslim married couple abandon Islam and adopt another faith, their marriage is not dissolved but remains intact.

ix. Wife renounces Islam
o the mere renunciation of Islam by a Muslim wife does not by itself dissolve her marriage.
o The above rule does not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
o The act of 1939 gives a remedy, the statute provides that apostasy by itself does not dissolve the marriage, unless it is that a woman re-embraces her former faith.
x. Wife embraces Islam
o The conversion of a non-Muslim wife to Islam does not ipso facto dissolve her marriage with her husband, and the ancient procedure of ‘offering Islam’ to the husband and on his refusal obtaining a dissolution of marriage as laid down in the text.
o It was held inter alia (among other things) that, immediately upon the conversion of Madad Bibi to Islam, her marriage with her hindu husband was dissolved and her marriage to Baqar Shah was lawful; wherefore her children by him were legitimate (Faiz Ali Shah v. Ghulam Akbar Shah, PLD 1952, Azad Jammu and Kashmir, 32).
6. Effects of Dissolutioni. Matrimonial intercourse
After the dissolution is effective, matrimonial intercourse between the parties becomes unlawful. Nevertheless, the parties may, in certain circumstances, lawfully remarry.
ii. Remarriage, reconciliation.
A divorced couple can not always remarry.
iii. Fresh marriage
where the marriage was consummated, the wife has to wait till the expiration of her ‘idda in order to be able to remarry. The husband if he has four wives, must wait until the completion of the divorced wife’s ‘idda.
Where the marriage was not consummated, the parties can remarry immediately, without waiting for the expiry of the ‘idda.
iv. Dower
If the marriage was consummated, the whole dower is immediately due; if not, half the dower is payable.
v. Maintenance
The husband has to provide maintenance to the wife during ‘idda.
vi. Inheritance
So long as the divorce is revocable one spouse can inherit from the other; but when the divorce becomes irrevocable, the rights of inheritance terminate inter se.

7. Procedure of Talaq (Divorce)a. Notice
The husband will send notice:
i. to the Chairman
ii. to the wife
b. Form of Notice
Notice shall be in writing.
c. Purpose of Notice
The purpose of notice is to inform about the dissolution of marriage.
d. Time for granting Notice
Notice shall be given at the time when the husband has pronounced divorce.

e. Reconciliation between the parties
The chairman is required to bring about reconciliation between the parties for this purpose he is to give notice to the parties to nominate their representatives. However, he can not compel any person to appear before him.
f. Effectiveness of Divorce
Divorce would not become effective unless and until period of ninety days has elapsed with effect from the date of receipt of notice of divorce by the chairman of the union council and by the wife. The expiry of 90 days is an essential.
g. Divorce to pregnant woman
Divorce to pregnant woman shall be affected by the delivery of the child.
h. Remarriage of the same parties
Nothing shall debar a wife whose marriage has been terminated by Talaq effective from remarriage the same husband, without an intervening marriage with a third person, unless such termination is for the time so effective.
i. Revocation of Divorce
The husband can revoke the divorce before the expiry of ninety days.
j. Punishment
Whoever contravenes the provisions shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
k. Commencement of Iddat
Iddat means waiting period. The most approved definition of iddat is the term by the completion of which a new marriage is rendered lawful. The observance of iddat is necessary where cohabitation has taken place.
Prof. N.J. Coulson:
“Idda is a period of waiting imposed upon a wife after the termination of her marriage.”
i. In case of divorce
o If consummation of marriage has taken place and the marriage is dissolved by divorce, the duration of iddat is three courses, or if the woman is pregnant, till delivery.
o Woman has not to observe the period of iddat if marriage was not consummated. In such case, she can marry immediately after the divorce.

ii. In case of death of husband
o The period of iddat commences from the date of death of her husband. She is bound to observe the period of iddat for four months and ten days or if the woman is pregnant, till delivery.
o If the marriage was not consummated, iddat has to be observed in the case of death of husband, but not in the case of divorce.
iii. In case of termination of Muta’
On the expiry of the period, where there has been cohabitation, a short ‘idda of two courses is prescribed; however, if there has been no consummation, no ‘idda is necessary.[/FONT]
[FONT=&quot] [/FONT]
Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and the Bid'a or irregular.
Talaq Ahsan or the most laudable[FONT=&quot][1][/FONT] divorce is where the husband repudiates his wife by making one pronouncement within the term of Tahr (purity. when the woman is not passing through the period of menses) during which he has not had sexual intercourse with her, and she is left to observe her 'Idda.
Talaq Hasan or laudable divorce is where a husband repudiates[FONT=&quot][2][/FONT] an enjoyed wife by three sentences of divorce, in three Tuhrs
Talaq Bid'a or irregular divorce is where a husband repudiates his wife by three divorces at once. According to the majority of the jurists, the Talaq holds good, but it is against the spirit of the Shari'ah, and, therefore, the man who follows this course in divorce is an offender in the eye of Islamic Law.

[FONT=&quot][1][/FONT] [FONT=&quot]deserving or worthy of praise; admirable; commendable[/FONT]

[FONT=&quot][2][/FONT] [FONT=&quot]Refuse to accept[/FONT]]]>

[FONT=&quot] [/FONT]

[FONT=&quot]Surah Number 65: At-Talâq (Divorce)[/FONT]

[FONT=&quot]Revealed at: Madinah[/FONT]

[FONT=&quot]Talaq Ahsan:[/FONT][FONT=&quot] (the most approved divorce). It is meant as a means to heal the breach between a couple and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.[/FONT]
[FONT=&quot]Talaq Hasan: [/FONT][FONT=&quot](approved). In this form divorce is pronounced in three successive periods. After the first two the husband has the right to take his wife back if they so desire to reunite but if he pronounces divorce a third time it becomes irrevocable. The wife must marry another at this time.[/FONT]

Disqualification For Custody.rtf (Size: 4.45 KB / Downloads: 442) ]]> Q. When is the right of female for custody loss under Islamic law. (2000)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated then to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Ward:
Every minor who has a guardian, no matter what type of guardians he has, i.e the one appointed by the court under guardians and wards act or one who ia self appointed de facto gurarian.
4. Kinds of guardian:
(i) Guardian of person.
(ii) Guardian of property.
(iii) Guardian for the marriage.
5. Who can be guardian of person:
Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father
(ii) Paternal grand father
(iii) Full brother
(iv) Consanguine brother.
(v) Full brother son
(vi) Consanguine brother,s son
(vii) Full paternal uncle
(viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother
(ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle
(v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high so ever.
6. Who can be guardian of property:
(i) Natural or legal guardian can be appinoted guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian.
7. Female when disqualified for custody:
A female including the mother, who is otherwise entitled to the custody of a child loses the right of custody.
(i) If she marries a person not elated to the child within the prohibited degree e. g, to a stranger.
(ii) If she goes and resides, during the subsistence of marriage at a distance from the father's place of residence, or
(iii) If she is leading an immoral life where she is a prostitute.
(iv) If she neglects to take proper care of the child.
Case law
Juma Khan Vs Gul Ferosho P. L. D 1972 Pesh
It was held that father is the natural guardian and is the natural guardian and is perfectly competent to get custody of the minor children from the mother after ceases to be their guardian.
8. Conclusion:
To conclude I can say that the guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed from his office under the guardians and wards act. although mother has legal right of guardianship of her minor children but she can loss her right. in circumstanced mentioned in guardian and wards act.

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Disqualification For Custody.rtf (Size: 4.45 KB / Downloads: 442) ]]> <![CDATA[State the matters to be considered by a court in appointment of a guardian of minor.]]> https://vuhelp.net/Thread-State-the-matters-to-be-considered-by-a-court-in-appointment-of-a-guardian-of-minor--11841 Tue, 04 Sep 2012 11:19:44 -0400 vustudents]]> https://vuhelp.net/Thread-State-the-matters-to-be-considered-by-a-court-in-appointment-of-a-guardian-of-minor--11841 1. Introduction:
Welfare of the minor is supreme law. the court can appoint guardian in the absence of the legal guardian under guardian and wards acts 1890. the court may also on the application of any person interested, or in its own motion remove a guardian.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian of a minor.
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend of the minor.
© The collector of the district or other local area within which the minor ordinarily resides or which he has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
4. Welfare of minor is supreme law:
Welfare of the minor is the supreme law. the court has always to bear in mind the welfare of the minor and then proceeding further to appointment of the guardian. the term welfare includes moral. spiritual and material well being of the minor.
5. Matters to be considered for appointment of guardian:
Following matters are to be considered for the appointment.
I. Age:
The age of the minor is firstly considered by the court. during tender age of a child he needs the care and affection of the person interested in him. so where a minor is above 17 years old, there is no use in pointing a guardian of his person.
II. Sex:
Under guardians and wards act a virgin should not be given in the custody of a male, if there exist no prohibition to the marriage.
III. Religion:
Under law, child must be presumed to have father's religion. the court must take into consideration this aspect while appointing the guardian.
IV. Capacity of proposed guardian:
The court must be the capacity, and qualification, of the proposed guardian.
V. Kinship with the minor:
The court must take into consideration the relationship and nearness of kin with the minor.
VI. Wishes of the minor:
The wishes of the minor are also considered by the court wile making the appointment of the guardian.
VII. Personal law of the minor:
The appointment of the guardian should be made in a way that he could not interfere in the personal law of the minor.
VIII. Wishes of the deceased parents of minor:
The wishes of deceased parent of the minor are also considered by the court.
IX. Character of the proposed guardian:
The court must take into consideration the character of the proposed guardian.
6. Conclusion:
To conclusion I can say that, the welfare of minor is an important factor in appointing the guardian by the court. the court must take into consideration age, sex, religion, character of guardian, wishes of minor and his deceased parent at the time of appointment of guardian.

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Matters To Be Considered For Appointment Of Guardian.rtf (Size: 3.58 KB / Downloads: 315) ]]> 1. Introduction:
Welfare of the minor is supreme law. the court can appoint guardian in the absence of the legal guardian under guardian and wards acts 1890. the court may also on the application of any person interested, or in its own motion remove a guardian.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian of a minor.
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend of the minor.
© The collector of the district or other local area within which the minor ordinarily resides or which he has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
4. Welfare of minor is supreme law:
Welfare of the minor is the supreme law. the court has always to bear in mind the welfare of the minor and then proceeding further to appointment of the guardian. the term welfare includes moral. spiritual and material well being of the minor.
5. Matters to be considered for appointment of guardian:
Following matters are to be considered for the appointment.
I. Age:
The age of the minor is firstly considered by the court. during tender age of a child he needs the care and affection of the person interested in him. so where a minor is above 17 years old, there is no use in pointing a guardian of his person.
II. Sex:
Under guardians and wards act a virgin should not be given in the custody of a male, if there exist no prohibition to the marriage.
III. Religion:
Under law, child must be presumed to have father's religion. the court must take into consideration this aspect while appointing the guardian.
IV. Capacity of proposed guardian:
The court must be the capacity, and qualification, of the proposed guardian.
V. Kinship with the minor:
The court must take into consideration the relationship and nearness of kin with the minor.
VI. Wishes of the minor:
The wishes of the minor are also considered by the court wile making the appointment of the guardian.
VII. Personal law of the minor:
The appointment of the guardian should be made in a way that he could not interfere in the personal law of the minor.
VIII. Wishes of the deceased parents of minor:
The wishes of deceased parent of the minor are also considered by the court.
IX. Character of the proposed guardian:
The court must take into consideration the character of the proposed guardian.
6. Conclusion:
To conclusion I can say that, the welfare of minor is an important factor in appointing the guardian by the court. the court must take into consideration age, sex, religion, character of guardian, wishes of minor and his deceased parent at the time of appointment of guardian.

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Matters To Be Considered For Appointment Of Guardian.rtf (Size: 3.58 KB / Downloads: 315) ]]> <![CDATA[State the matters to be considered by a court in appointment of a guardian of minor.]]> https://vuhelp.net/Thread-State-the-matters-to-be-considered-by-a-court-in-appointment-of-a-guardian-of-minor Tue, 04 Sep 2012 10:31:09 -0400 vustudents]]> https://vuhelp.net/Thread-State-the-matters-to-be-considered-by-a-court-in-appointment-of-a-guardian-of-minor Q. What do you understand by the term guardian as used in guardians and wards act, who can be appointed as guardian.
(2002/S)
Q. Define guardian enumerate the grounds on which a guardian can be removed. (2003)
Q. Define guardian who can be appointed guardian. how can he be removed. (2004)
Q. Define 'guardian'. how can be appointed. (2005)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated than to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor of his property or his person and property.
3. Ward:
Every minor who has a guardian no matter what type of guardian he has i.e the one appointed by the court under guardians and wards act or one who is self appointed be facto guardian.
4. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian a minor:
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend to the minor.
© The collector of the district or other local area within which the minor ordinarily resides or which he has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
5. Contents of the application:
(i) Name age address sex religion of the minor.
(ii) Property of the minor.
(iii) Name and address of person having custody of the minor.
(iv) Whether a guardian of person or property.
(v) Name of the relative of the minor.
(vi) Qualification of proposed guardian.
(vii) Whether any application has been at any time made to any other court with respect to the
guardianship.
(viii) The causes which have led to the making of the application.
(xi) Any other necessary particulars.
6. Kinds of guardian:
(i) Guardian of person.
(ii) Guardian of property.
(iii) Guardian for the marriage.
7. Who can be guardian of person:
Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father
(ii) Paternal grand father
(iii) Full brother
(iv) Consanguine brother.
(v) Full brother son
(vi) Consanguine brother,s son
(vii) Full paternal uncle
(viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother
(ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle
(v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high-so-ever.
8. Who can be guardian of property:
(i) Natural or legal guardian can be appointed guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian
9. Powers of court to make order as to guardian:
When the court is satisfied that it is for the welfare of a minor that an order should be made.
(i) Appointing a guardian of this person or property or bother.
(ii) Declaring a person to be such guardian the court may make order accordingly.
10. Removal of guardian:
Guardian can be removed on the following grounds:
(i) For abuse of his trust.
(ii) Failure to perform his duties.
(iii) Incapacity to perform the duties.
(iv) For ill treatment or neglect to take proper care of his ward.
(v) Conviction of an offence implying in the opinion of the court defect of character which renders unfit him to be the guardian of his ward.
(iv) Interest adverse to the faithful performance of court.
(vii) Ceasing to reside within local limits of the jurisdiction of the court.
(viii) Insolvency in case of guardian for property of ward.
(ix) Ceasing by reason of guardian being liable to cease under personal law of the minor.
Modes of removal:
(a) By the application.
(b) By the court by it own motion.
11. Conclusion:
To conclude i can say that the guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed form his office under the guardians and wards act.

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Guardian.rtf (Size: 6 KB / Downloads: 391) ]]> Q. What do you understand by the term guardian as used in guardians and wards act, who can be appointed as guardian.
(2002/S)
Q. Define guardian enumerate the grounds on which a guardian can be removed. (2003)
Q. Define guardian who can be appointed guardian. how can he be removed. (2004)
Q. Define 'guardian'. how can be appointed. (2005)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated than to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor of his property or his person and property.
3. Ward:
Every minor who has a guardian no matter what type of guardian he has i.e the one appointed by the court under guardians and wards act or one who is self appointed be facto guardian.
4. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian a minor:
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend to the minor.
© The collector of the district or other local area within which the minor ordinarily resides or which he has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
5. Contents of the application:
(i) Name age address sex religion of the minor.
(ii) Property of the minor.
(iii) Name and address of person having custody of the minor.
(iv) Whether a guardian of person or property.
(v) Name of the relative of the minor.
(vi) Qualification of proposed guardian.
(vii) Whether any application has been at any time made to any other court with respect to the
guardianship.
(viii) The causes which have led to the making of the application.
(xi) Any other necessary particulars.
6. Kinds of guardian:
(i) Guardian of person.
(ii) Guardian of property.
(iii) Guardian for the marriage.
7. Who can be guardian of person:
Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father
(ii) Paternal grand father
(iii) Full brother
(iv) Consanguine brother.
(v) Full brother son
(vi) Consanguine brother,s son
(vii) Full paternal uncle
(viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother
(ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle
(v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high-so-ever.
8. Who can be guardian of property:
(i) Natural or legal guardian can be appointed guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian
9. Powers of court to make order as to guardian:
When the court is satisfied that it is for the welfare of a minor that an order should be made.
(i) Appointing a guardian of this person or property or bother.
(ii) Declaring a person to be such guardian the court may make order accordingly.
10. Removal of guardian:
Guardian can be removed on the following grounds:
(i) For abuse of his trust.
(ii) Failure to perform his duties.
(iii) Incapacity to perform the duties.
(iv) For ill treatment or neglect to take proper care of his ward.
(v) Conviction of an offence implying in the opinion of the court defect of character which renders unfit him to be the guardian of his ward.
(iv) Interest adverse to the faithful performance of court.
(vii) Ceasing to reside within local limits of the jurisdiction of the court.
(viii) Insolvency in case of guardian for property of ward.
(ix) Ceasing by reason of guardian being liable to cease under personal law of the minor.
Modes of removal:
(a) By the application.
(b) By the court by it own motion.
11. Conclusion:
To conclude i can say that the guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed form his office under the guardians and wards act.

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Guardian.rtf (Size: 6 KB / Downloads: 391) ]]> <![CDATA[What is meant by 'Acknowledgement' of paternity in Islamic law?]]> https://vuhelp.net/Thread-What-is-meant-by-Acknowledgement-of-paternity-in-Islamic-law Tue, 04 Sep 2012 06:49:44 -0400 vustudents]]> https://vuhelp.net/Thread-What-is-meant-by-Acknowledgement-of-paternity-in-Islamic-law Q. What is meant by 'Acknowledgement' of paternity in Islamic law? what are valid conditions for such an acknowledgement. (2003)
Q. Write a detailed note on parentage. (2006/S)
1. Introduction:
Parentage includes paternity and maternity. it is the result of institution of marriage. so parentage id the legal relationship of parents to their children. the establishment of paternity confers a status of legitimacy on the child. the child acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or illicit relation. acknowledgement is a mode to establish paternity.
2. Acknowledgement of paternity:
Muhammadan law recognizes the doctrine of acknowledgement of paterinty where the paternity of a child i. e. his father can not be proved by proved by establishing a marriage between the parents at the time of conception of the birth.
3. Application of the doctrine:
The doctrine applies only to cases of uncertainty as to the legitimacy. it can be done only where the paternity of the child has not been or can not be proved from any other person, the child is not the off spring of zina and the circumstance of his birth are such that he could be a legitimate child of his father.
4. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied
(ii) Express
5. Capacity for making acknowledgement:
(i) Person who is sound mind.
(ii) Have attained the age of puberty.
6. Conditions of a valid acknowledgement:
I. Ages of the parties:
The ages of the parties must be such that it is possible that they may be father and son. the person who makes acknowledgement must be at least 12 1/2 year elder than the person acknowledged.
II. Intention:
The acknowledgement must not be merely sonship but if legitimate sonship.
III. Prof of legitimacy:
The child so acknowledged must not be known as the child of another.
IV. Confirmation:
Acknowledgement must be confirmed by the child so acknowledged if he is of adult age.
7. Nature:
The acknowledgement once made and proved cannot be rebutted. so a man who makes acknowledgement can not rebut it.
8. When acknowledgement is void:
When the mother of the acknowledged child could not be possibly have been the lawful wife of the acknowledger at any time. when the acknowledge could have been begotten, the acknowledgement will be void.
9. Effect of acknowledgement:
In the case of the son it produces all the legal effects of natural paternity and vests in the child the right of inheritance in case of wife, the mother of the acknowledge son as effect of giving her the status of a legal wife and entitlement of inheritance and maintenance.
10. Rules of presumption as to legitimacy:
Rules of presumption as to legitimacy are as under.
(i) A child born with in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
Exception:
(i) If husband accuses her wife of adultery in the court such child would be illegitimate of proof.
(ii) A child born with in 2 years after the termination of marriage is presumed to be legitimate.
11. Establishment of paternity:
Paternity of a child is establishment by marriage between the parents of child.
12. Establishment of legitimacy:
When the paternity of a child is establishment its legitimacy is also established.
Case law
Muhammad Talat Vs Yasmeen Zohra 1992 CLC 1180
It was held that paternity of a child born in lawful wedlock, is presumed to be in the husband and mother without any acknowledgement or affirmation of parentage on his part and such child follows the status of father.
13. Conclusion:
To conclude I can say that, the doctrine of acknowledgement of paternity confers a status of legitimacy on a child whether a son or a daughter. it is a kind of legal evidence. once the acknowledgement is made the right to disclaim is lost. the acknowledgement child may be a son or a daughter.

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Acknowledgement Of Paternity.rtf (Size: 4.55 KB / Downloads: 464) ]]> Q. What is meant by 'Acknowledgement' of paternity in Islamic law? what are valid conditions for such an acknowledgement. (2003)
Q. Write a detailed note on parentage. (2006/S)
1. Introduction:
Parentage includes paternity and maternity. it is the result of institution of marriage. so parentage id the legal relationship of parents to their children. the establishment of paternity confers a status of legitimacy on the child. the child acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or illicit relation. acknowledgement is a mode to establish paternity.
2. Acknowledgement of paternity:
Muhammadan law recognizes the doctrine of acknowledgement of paterinty where the paternity of a child i. e. his father can not be proved by proved by establishing a marriage between the parents at the time of conception of the birth.
3. Application of the doctrine:
The doctrine applies only to cases of uncertainty as to the legitimacy. it can be done only where the paternity of the child has not been or can not be proved from any other person, the child is not the off spring of zina and the circumstance of his birth are such that he could be a legitimate child of his father.
4. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied
(ii) Express
5. Capacity for making acknowledgement:
(i) Person who is sound mind.
(ii) Have attained the age of puberty.
6. Conditions of a valid acknowledgement:
I. Ages of the parties:
The ages of the parties must be such that it is possible that they may be father and son. the person who makes acknowledgement must be at least 12 1/2 year elder than the person acknowledged.
II. Intention:
The acknowledgement must not be merely sonship but if legitimate sonship.
III. Prof of legitimacy:
The child so acknowledged must not be known as the child of another.
IV. Confirmation:
Acknowledgement must be confirmed by the child so acknowledged if he is of adult age.
7. Nature:
The acknowledgement once made and proved cannot be rebutted. so a man who makes acknowledgement can not rebut it.
8. When acknowledgement is void:
When the mother of the acknowledged child could not be possibly have been the lawful wife of the acknowledger at any time. when the acknowledge could have been begotten, the acknowledgement will be void.
9. Effect of acknowledgement:
In the case of the son it produces all the legal effects of natural paternity and vests in the child the right of inheritance in case of wife, the mother of the acknowledge son as effect of giving her the status of a legal wife and entitlement of inheritance and maintenance.
10. Rules of presumption as to legitimacy:
Rules of presumption as to legitimacy are as under.
(i) A child born with in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
Exception:
(i) If husband accuses her wife of adultery in the court such child would be illegitimate of proof.
(ii) A child born with in 2 years after the termination of marriage is presumed to be legitimate.
11. Establishment of paternity:
Paternity of a child is establishment by marriage between the parents of child.
12. Establishment of legitimacy:
When the paternity of a child is establishment its legitimacy is also established.
Case law
Muhammad Talat Vs Yasmeen Zohra 1992 CLC 1180
It was held that paternity of a child born in lawful wedlock, is presumed to be in the husband and mother without any acknowledgement or affirmation of parentage on his part and such child follows the status of father.
13. Conclusion:
To conclude I can say that, the doctrine of acknowledgement of paternity confers a status of legitimacy on a child whether a son or a daughter. it is a kind of legal evidence. once the acknowledgement is made the right to disclaim is lost. the acknowledgement child may be a son or a daughter.

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Acknowledgement Of Paternity.rtf (Size: 4.55 KB / Downloads: 464) ]]> <![CDATA[Define will what is the difference between will and gift. (2002)]]> https://vuhelp.net/Thread-Define-will-what-is-the-difference-between-will-and-gift-2002 Tue, 04 Sep 2012 03:40:03 -0400 vustudents]]> https://vuhelp.net/Thread-Define-will-what-is-the-difference-between-will-and-gift-2002 1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. where as a gift is the transfer of property without any exchange. it is made for love and affection.
2. Definition of will:
Baillie:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.
3. Essentials of a valid will:
Following are the essentials to a valid will under Islamic law.
(i) Declaration by the testator.
(ii) Testator must be compentent to declare.
(iii) The subject of the will must be valid.
(iv) It must be within limits imposed on the testator.
(v) The legatee must be competent to take the possession of the property.
(vi) Offer by the testator.
(vii) Acceptance by the legatee.
4. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
5. Essentials of a valid gift:
(i) Subject of gift must be belong to donor.
(ii) subject of gift must be in existence.
(iii) Done must make by his free will
(iv) Aceptanace by donee
(v) Deliver of the possession of subject matter.
6. Difference between gift and will:
I. As to completion:
Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.
7. Conclusion:
To conclude i can say that the gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. the gift and will are two different things under Islamic law.

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Difference Between Gift And Will.rtf (Size: 4.09 KB / Downloads: 430) ]]> 1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. where as a gift is the transfer of property without any exchange. it is made for love and affection.
2. Definition of will:
Baillie:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.
3. Essentials of a valid will:
Following are the essentials to a valid will under Islamic law.
(i) Declaration by the testator.
(ii) Testator must be compentent to declare.
(iii) The subject of the will must be valid.
(iv) It must be within limits imposed on the testator.
(v) The legatee must be competent to take the possession of the property.
(vi) Offer by the testator.
(vii) Acceptance by the legatee.
4. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
5. Essentials of a valid gift:
(i) Subject of gift must be belong to donor.
(ii) subject of gift must be in existence.
(iii) Done must make by his free will
(iv) Aceptanace by donee
(v) Deliver of the possession of subject matter.
6. Difference between gift and will:
I. As to completion:
Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.
7. Conclusion:
To conclude i can say that the gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. the gift and will are two different things under Islamic law.

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Difference Between Gift And Will.rtf (Size: 4.09 KB / Downloads: 430) ]]> <![CDATA[Discuss briefly the gift under what circumstances a doner can revoke a gift. (1997)]]> https://vuhelp.net/Thread-Discuss-briefly-the-gift-under-what-circumstances-a-doner-can-revoke-a-gift-1997 Tue, 04 Sep 2012 02:22:52 -0400 vustudents]]> https://vuhelp.net/Thread-Discuss-briefly-the-gift-under-what-circumstances-a-doner-can-revoke-a-gift-1997 Q. What is gift. what are the three conditions for the validity of a gift. (1998) (2001)
Q. What is gift? what are the essentials of a gift. (1999)(2002)(2005)
Q. Define 'Hiba' under what circumstances a donor can revoke a Hiba. (2000/S)
1. Introduction:
A gift is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of another. a Muhmmadan may may dispose of his whole property. the person who makes gift is called doner and to whom gift is made is called donee.
2. Meaning:
Gift or Hiba means denotion of a thing from which the donee may get benefit.
3. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
4. Kinds of gift:
Following are the kinds of gift.
(i) Hiba
(ii) Hiba bil iwaz.
(iii) Habi-be-Shart ul iwaz.
(iv) A Sadaqah
(v) Areet.
5. Persons who can make gift:
Every Muslim of sound mind and age of majority is entitled to make gift.
Disqualifications:
(i) Minor
(ii) Unsound mind.
6. Extent of doner's power:
A person under Islamic law may dispose of his whole property in favour of a stranger or to any heirs.
7. Persons in whose favour hiba or gift can be made:
A hiba can lawfully be mind in favour of any of the following.
(i) Natural persons.
(ii) Artificial persons.
(iii) Heirs
(iv) Insance persons
(v) Any person
8. Persons in whose favor hiba or gift cannot be made:
Hiba or gift can not be made in favour of the following.
(i) Unborn child.
(ii) Dead person.
Exception:
A widow can make hiba of her dower in favour of her deceased husband.
9. Essentials of a valid gift:
(i) Subject of gift must belong to doner.
(ii) Subject of gift must be in existence.
(iii) Doner must make by his free will.
(iv) Acceptance by donee.
(v) Delivery of possession of the subject matter.
10. Tree conditions for validity of a gift:
Following are the three conditions for validity of a gift.
(i) Declaration
(ii) Acceptance
(iii) Delivery.
I. Declaration:
There should be a declaration of a gift by the doner.
II. Acceptance:
There should be an acceptance of the gift, express or implied by or on behalf of the donee.
III. Delivery:
There should be delivery of possession of the subject of the gift by the donor to the donee.
11. Fift of Mushaa:
A valid gift may be made of an undivided share in property either moveable or immovable.
Mushaa
Mushaa is an undivided share in property.
Case law:
Ghulam Haider V/S Fteh Ali P. L. D 1993
It was held conditions necessary for validity of disposition of property are majority, understanding, freedom and ownership of the subject of the disposition.
Case law:
Raj Hussain V/S Fazal Hussain 1972 SCMR 262
Gift become complete on the transfer of possession.
12. Registration of gift:
Registration of deed of gift does not cure the want of delivery of possession. it is an evidence of the execution.
13. Cases where transfer of possession of gift is not necessary:
Following are the cases when transfer of possession of gift property is not necessary.
(i) No transfer of possession is required when father gifts his property to his minor child.
(ii) No transfer is required when guardian gifts to his ward.
(iii) Where the gift is already in the possession of donee.
(v) Where the property is no rent or lease and by transfer of title deed of such property.
14. Revocation of gift:
The gift can be revoked by the doner in the following way.
(i) Before delivery of the possession.
(ii) After delivery of the possession.
I. Before delivery of the possession:
A gift may be revoked by the doner at any time before delivery of the possession, because before delivery there is no gift at all.
II. After delivery of the possession:
A doner can even after the delivery of the possession of the property can revoke the gift.
It can be revoked by the followings ways.
(i) With the mutual consent of the parties.
(ii) By a decree of the competent court.
15. Circumstances when gift can not be revoked:
Under following circumstances gift can not be revoked.
(i) Death of the doner.
(ii) Death of the donee.
(iii) Where a gift is made to a person related to the doner with in prohibited degree.
(iv) Gift between spouse.
(v) Increase in value of the gift.
(vi) Destruction of the subject matter of the gift.
(vii) Destruction of the identity of the gift.
(viii) Where doner has received consideration for gift.
(ix) Where the purpose of the gift is Sadqa.
16. Conclusion:
To conclude I can say that, the gift is a contract consisting of a proposal or offer on the part of the doner to give a thing and acceptance of it by the donee. so it is a transfer of property immediately and without any exchange. there must be clear intention by he doner to transfer the possession to the doner for a valid gift. if can be revoked by the doner.

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Gift.rtf (Size: 5.95 KB / Downloads: 470) ]]> Q. What is gift. what are the three conditions for the validity of a gift. (1998) (2001)
Q. What is gift? what are the essentials of a gift. (1999)(2002)(2005)
Q. Define 'Hiba' under what circumstances a donor can revoke a Hiba. (2000/S)
1. Introduction:
A gift is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of another. a Muhmmadan may may dispose of his whole property. the person who makes gift is called doner and to whom gift is made is called donee.
2. Meaning:
Gift or Hiba means denotion of a thing from which the donee may get benefit.
3. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
4. Kinds of gift:
Following are the kinds of gift.
(i) Hiba
(ii) Hiba bil iwaz.
(iii) Habi-be-Shart ul iwaz.
(iv) A Sadaqah
(v) Areet.
5. Persons who can make gift:
Every Muslim of sound mind and age of majority is entitled to make gift.
Disqualifications:
(i) Minor
(ii) Unsound mind.
6. Extent of doner's power:
A person under Islamic law may dispose of his whole property in favour of a stranger or to any heirs.
7. Persons in whose favour hiba or gift can be made:
A hiba can lawfully be mind in favour of any of the following.
(i) Natural persons.
(ii) Artificial persons.
(iii) Heirs
(iv) Insance persons
(v) Any person
8. Persons in whose favor hiba or gift cannot be made:
Hiba or gift can not be made in favour of the following.
(i) Unborn child.
(ii) Dead person.
Exception:
A widow can make hiba of her dower in favour of her deceased husband.
9. Essentials of a valid gift:
(i) Subject of gift must belong to doner.
(ii) Subject of gift must be in existence.
(iii) Doner must make by his free will.
(iv) Acceptance by donee.
(v) Delivery of possession of the subject matter.
10. Tree conditions for validity of a gift:
Following are the three conditions for validity of a gift.
(i) Declaration
(ii) Acceptance
(iii) Delivery.
I. Declaration:
There should be a declaration of a gift by the doner.
II. Acceptance:
There should be an acceptance of the gift, express or implied by or on behalf of the donee.
III. Delivery:
There should be delivery of possession of the subject of the gift by the donor to the donee.
11. Fift of Mushaa:
A valid gift may be made of an undivided share in property either moveable or immovable.
Mushaa
Mushaa is an undivided share in property.
Case law:
Ghulam Haider V/S Fteh Ali P. L. D 1993
It was held conditions necessary for validity of disposition of property are majority, understanding, freedom and ownership of the subject of the disposition.
Case law:
Raj Hussain V/S Fazal Hussain 1972 SCMR 262
Gift become complete on the transfer of possession.
12. Registration of gift:
Registration of deed of gift does not cure the want of delivery of possession. it is an evidence of the execution.
13. Cases where transfer of possession of gift is not necessary:
Following are the cases when transfer of possession of gift property is not necessary.
(i) No transfer of possession is required when father gifts his property to his minor child.
(ii) No transfer is required when guardian gifts to his ward.
(iii) Where the gift is already in the possession of donee.
(v) Where the property is no rent or lease and by transfer of title deed of such property.
14. Revocation of gift:
The gift can be revoked by the doner in the following way.
(i) Before delivery of the possession.
(ii) After delivery of the possession.
I. Before delivery of the possession:
A gift may be revoked by the doner at any time before delivery of the possession, because before delivery there is no gift at all.
II. After delivery of the possession:
A doner can even after the delivery of the possession of the property can revoke the gift.
It can be revoked by the followings ways.
(i) With the mutual consent of the parties.
(ii) By a decree of the competent court.
15. Circumstances when gift can not be revoked:
Under following circumstances gift can not be revoked.
(i) Death of the doner.
(ii) Death of the donee.
(iii) Where a gift is made to a person related to the doner with in prohibited degree.
(iv) Gift between spouse.
(v) Increase in value of the gift.
(vi) Destruction of the subject matter of the gift.
(vii) Destruction of the identity of the gift.
(viii) Where doner has received consideration for gift.
(ix) Where the purpose of the gift is Sadqa.
16. Conclusion:
To conclude I can say that, the gift is a contract consisting of a proposal or offer on the part of the doner to give a thing and acceptance of it by the donee. so it is a transfer of property immediately and without any exchange. there must be clear intention by he doner to transfer the possession to the doner for a valid gift. if can be revoked by the doner.

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Gift.rtf (Size: 5.95 KB / Downloads: 470) ]]> <![CDATA[Define who can make a will?]]> https://vuhelp.net/Thread-Define-who-can-make-a-will Mon, 03 Sep 2012 14:19:52 -0400 vustudents]]> https://vuhelp.net/Thread-Define-who-can-make-a-will Q. Define who can make a will? what is the limit placed on the testamentary powers of a person under the Islamic law. (2003)
Q. Define will. what are the qualification of testator. (2002)
Q. Define will, what are the limitations imposed on the right of will by Islamic law. (2001)(2006/S)
Q. Define will. who can make will? what is the limits place on the testamentary powers of a Muslim under the Islamic law. (2000)
Q. Define and discuss will. what are its essential ingredient? can will be revoked. (1998)
Q. Define will. are there any restrictions on powers of testator? can a will be revoked. (2005/S)
1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. a Muslim may make his will either orally or in writing and no formalities are required. a Muslim cannot by will dispose off more than one third of the surplus of his estate after payment of his funeral expenses and debts. a bequest in future as well as contingent bequest is void under Islamic law.
2. Meaning:
The term will is form the Arabic word wasiyyat which means endowment with property of any thing after death.
Baillie:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
3. Definition of will:
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.
4. Who can make will:
Every Muslim of sound mind may dispose of property by will.
5. Qualification of testator:
Testator must be
(a) Major
(b) Sound mind
© Possessed with the ownership of property.
6. Persons who cannot make will:
Following persons can not make will.
(a) Minor
(b) Lunatic
© Unsound mind
7. Persons in whose favour will can be made:
A will can be lawfully made in favour of the following:
(a) An individual.
(b) An institution.
(a) A non- Muslim.
(d) A minor
(e) An insane.
8. Conditions of a valid will:
Following are the conditions of a valid will:
(a) Intention to give.
(b) Disposition to take affect after the death of the testator.
© Should not effect the legal shares of heirs.
(d) Should not be move than 1/3 of the property.
(f) Strange.
9. Form of will:
A will may be in express words or shows by the conduct of the co-heris. so it may be:
(i) Written
(ii) Oral/ verbal
10. Attestation:
Will should be attested by two or more witnesses.
11. Cases where will is not valid:
In following cases will is not valid
(i) A will in favoyr of legal heir.
(ii) Contingent will
(iii) Will to unborn person.
Exception:
A will may be made to a child womb, provided it is born with in six months form the date of the will.
(iv) A will in future.
(v) A will to a person who causes the death of testator.
12. Essential conditions for execution of will:
For execution of valid will following are two conditions.
(i) Payment of the funeral expenses out of the property of deceased.
(ii) Payment of any debt out of the property of deceased.
13. Nature of appointment of testator:
Appointment f testator may be for.
(i) General purpose. Or
(ii) Special purpose.
14. Parties to a will:
Following are parties to a will:
Legacy:
The property be quested.
Testator:
The person who makes will.
Legatee:
In whose favour the will is made.
15. Essentials:
Following are the essentials to a valid under Islamic law:
(i) Declaration by the testator.
(ii) Testator must be competent to declare.
(iii) The subject of will must be valid.
(iv) It must be within the limit imposed on the testator.
(v) The legatee must be competent to take the property.
(vi) Offer by testator.
(vii) Acceptance by legatee.
16. Subject of will.
The subjects of a will are as under:
(a) Property being transferred.
(b) Property must be in existence.
17. Limitations:
I. As to persons:
A bequest to an heir is not valid unless the other heir consents to the bequest after the death of the testator.
II. As to property:
A Muslim can not be will dispose of more than one third of his estate which is left after payment of his funeral expenses and debts.
Exceptions:
Following are exceptions to the limitation.
(i) A bequest of more than one third to a non heirs or upto one third to an heir is valid if consented by heirs of the deceased.
(ii) If the testator leaves no heir.
18. Revocation of will:
A will is revocable. it can be revoked by the testator at any time before his death.
(i) Mode of revocation:
Following are the modes of revocation of a will.
(a) Express:
Testator may revoke the will in express terms either orally or in writing.
(b) Implied:
Implied is that revocations where the testator does an acts from which revocation may be inferred.
19. Conclusion:
To conclude I can say that a will is the disposition of property which is to take effect at the time of the person making it. it operates from the time before his death. the subject of will may be any property capable of being transferred. a will is revocable in its nature.

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Will.rtf (Size: 6.03 KB / Downloads: 377) ]]> Q. Define who can make a will? what is the limit placed on the testamentary powers of a person under the Islamic law. (2003)
Q. Define will. what are the qualification of testator. (2002)
Q. Define will, what are the limitations imposed on the right of will by Islamic law. (2001)(2006/S)
Q. Define will. who can make will? what is the limits place on the testamentary powers of a Muslim under the Islamic law. (2000)
Q. Define and discuss will. what are its essential ingredient? can will be revoked. (1998)
Q. Define will. are there any restrictions on powers of testator? can a will be revoked. (2005/S)
1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. a Muslim may make his will either orally or in writing and no formalities are required. a Muslim cannot by will dispose off more than one third of the surplus of his estate after payment of his funeral expenses and debts. a bequest in future as well as contingent bequest is void under Islamic law.
2. Meaning:
The term will is form the Arabic word wasiyyat which means endowment with property of any thing after death.
Baillie:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
3. Definition of will:
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.
4. Who can make will:
Every Muslim of sound mind may dispose of property by will.
5. Qualification of testator:
Testator must be
(a) Major
(b) Sound mind
© Possessed with the ownership of property.
6. Persons who cannot make will:
Following persons can not make will.
(a) Minor
(b) Lunatic
© Unsound mind
7. Persons in whose favour will can be made:
A will can be lawfully made in favour of the following:
(a) An individual.
(b) An institution.
(a) A non- Muslim.
(d) A minor
(e) An insane.
8. Conditions of a valid will:
Following are the conditions of a valid will:
(a) Intention to give.
(b) Disposition to take affect after the death of the testator.
© Should not effect the legal shares of heirs.
(d) Should not be move than 1/3 of the property.
(f) Strange.
9. Form of will:
A will may be in express words or shows by the conduct of the co-heris. so it may be:
(i) Written
(ii) Oral/ verbal
10. Attestation:
Will should be attested by two or more witnesses.
11. Cases where will is not valid:
In following cases will is not valid
(i) A will in favoyr of legal heir.
(ii) Contingent will
(iii) Will to unborn person.
Exception:
A will may be made to a child womb, provided it is born with in six months form the date of the will.
(iv) A will in future.
(v) A will to a person who causes the death of testator.
12. Essential conditions for execution of will:
For execution of valid will following are two conditions.
(i) Payment of the funeral expenses out of the property of deceased.
(ii) Payment of any debt out of the property of deceased.
13. Nature of appointment of testator:
Appointment f testator may be for.
(i) General purpose. Or
(ii) Special purpose.
14. Parties to a will:
Following are parties to a will:
Legacy:
The property be quested.
Testator:
The person who makes will.
Legatee:
In whose favour the will is made.
15. Essentials:
Following are the essentials to a valid under Islamic law:
(i) Declaration by the testator.
(ii) Testator must be competent to declare.
(iii) The subject of will must be valid.
(iv) It must be within the limit imposed on the testator.
(v) The legatee must be competent to take the property.
(vi) Offer by testator.
(vii) Acceptance by legatee.
16. Subject of will.
The subjects of a will are as under:
(a) Property being transferred.
(b) Property must be in existence.
17. Limitations:
I. As to persons:
A bequest to an heir is not valid unless the other heir consents to the bequest after the death of the testator.
II. As to property:
A Muslim can not be will dispose of more than one third of his estate which is left after payment of his funeral expenses and debts.
Exceptions:
Following are exceptions to the limitation.
(i) A bequest of more than one third to a non heirs or upto one third to an heir is valid if consented by heirs of the deceased.
(ii) If the testator leaves no heir.
18. Revocation of will:
A will is revocable. it can be revoked by the testator at any time before his death.
(i) Mode of revocation:
Following are the modes of revocation of a will.
(a) Express:
Testator may revoke the will in express terms either orally or in writing.
(b) Implied:
Implied is that revocations where the testator does an acts from which revocation may be inferred.
19. Conclusion:
To conclude I can say that a will is the disposition of property which is to take effect at the time of the person making it. it operates from the time before his death. the subject of will may be any property capable of being transferred. a will is revocable in its nature.

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Will.rtf (Size: 6.03 KB / Downloads: 377) ]]> <![CDATA[Who may be appointed mutwalli of waqf property? what are his rights and duties. (2005]]> https://vuhelp.net/Thread-Who-may-be-appointed-mutwalli-of-waqf-property-what-are-his-rights-and-duties-2005 Mon, 03 Sep 2012 11:59:04 -0400 vustudents]]> https://vuhelp.net/Thread-Who-may-be-appointed-mutwalli-of-waqf-property-what-are-his-rights-and-duties-2005 1. Introduction:
Mutwalli is superintendent of manger of the waqf property. he has no right in waqf property. he looks the matters of waqf property. he has the same rights of management as an individual. the office trustee is not transferable.
2. Definition of mutawalli:
Case law Jheana Vs. Chief administator Auqaf Punjab 1992 CLC 2054
It was held that the definition of mutawalli includes a person who for the time being manages waqf property.
3. Appointment of mutawalli:
Qualification of mutawalli is as under.
(i) By the waqif.
(ii) By the executor.
(iii) By the mutwali.
(iv) By the order of the court.
4. Qualification of mutawalli:
Qualification of mutawalli is as under.
(i) Muhammdan or non Muhammedan.
(ii) Sound mind.
(iii) Should be of the age of majority.
5. Who can be appointed mutwalli:
Following can be appointed mutawalli.
(i) The waqif himself.
(ii) His children.
(iii) His descendants.
(iv) Any other person even a female.
(iv) Non-Muslim.
(vi) Sunni in a Shia waqf and Shia in Sunni waqf.
6. Where two or more mutawalli:
Where two or more than two mutawalli are appointed jointly and there is no express or implied direction pertaining to the succession of mutawalli in such cases the office of mutawalli will pass on the death of one holder to the survivor.
7. Rights of mutawalli:
1.If there is no provision in wakfnama about for succession of the office of mutawalli he has right to appoint his successors on his death bed.
2. He has right of remmnuneration.
3. He has right to do any thing that is reasonable for the administration and betterment of the waqf.
4. Mutawalli has right to appoint his successor if wakf deed authorize him to do so.
5. Mutawalli can appoint his successor if wakif and his executor are both dead.
6. Has right to manage the wakf property.
8. Duties of mutawalli:
(i) It is the duty of mutawalli to take care wakf property.
(ii) Mutawalli is duty bound not to sell or mortgage wakf property without the permission of the court.
(iii) He is duty bound not to grant a lease of wakf property not exceeding three years in case of agriculture property and one year in case of non-agriculture land.
(iv) Mutawalli is duty bound not to increase allowance of officers and servants.
(v) Mutawlli is duty bound not to transfer the office for another.
9. Nature of office of matawalli:
The office of mutawlli is not hereditary under Islamic law. hereditary right is not recognized.
Case law
Abdul Hamid V/S Govt. of West Pakistan 1985 CLC 58.
It was held in this case that as founder of wakf has the power to appoint first mutawalli and to lay down the the scheme for the succession to the office of mutawalli.
10. Removal of mutawalli:
A mutawalli may be removed by the court.
(i) If he become unfit for the job.
(ii) If he does not perform the religious services.
(iii) If mutawalli become insolvent.
(iv) If he commit misconduct.
(v) If mutawalli commits breach of trust.
11. Conclusion:
To conclude I can say that mutawalli is a person who manage waqf property. the office of the mutawalli is not hereditary and non transferable. he has rights and duties under law. he can be removed by the court. on the ground of breach of trust, misconduct insolvency etc. etc.

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Mutawalli.rtf (Size: 3.87 KB / Downloads: 470) ]]> 1. Introduction:
Mutwalli is superintendent of manger of the waqf property. he has no right in waqf property. he looks the matters of waqf property. he has the same rights of management as an individual. the office trustee is not transferable.
2. Definition of mutawalli:
Case law Jheana Vs. Chief administator Auqaf Punjab 1992 CLC 2054
It was held that the definition of mutawalli includes a person who for the time being manages waqf property.
3. Appointment of mutawalli:
Qualification of mutawalli is as under.
(i) By the waqif.
(ii) By the executor.
(iii) By the mutwali.
(iv) By the order of the court.
4. Qualification of mutawalli:
Qualification of mutawalli is as under.
(i) Muhammdan or non Muhammedan.
(ii) Sound mind.
(iii) Should be of the age of majority.
5. Who can be appointed mutwalli:
Following can be appointed mutawalli.
(i) The waqif himself.
(ii) His children.
(iii) His descendants.
(iv) Any other person even a female.
(iv) Non-Muslim.
(vi) Sunni in a Shia waqf and Shia in Sunni waqf.
6. Where two or more mutawalli:
Where two or more than two mutawalli are appointed jointly and there is no express or implied direction pertaining to the succession of mutawalli in such cases the office of mutawalli will pass on the death of one holder to the survivor.
7. Rights of mutawalli:
1.If there is no provision in wakfnama about for succession of the office of mutawalli he has right to appoint his successors on his death bed.
2. He has right of remmnuneration.
3. He has right to do any thing that is reasonable for the administration and betterment of the waqf.
4. Mutawalli has right to appoint his successor if wakf deed authorize him to do so.
5. Mutawalli can appoint his successor if wakif and his executor are both dead.
6. Has right to manage the wakf property.
8. Duties of mutawalli:
(i) It is the duty of mutawalli to take care wakf property.
(ii) Mutawalli is duty bound not to sell or mortgage wakf property without the permission of the court.
(iii) He is duty bound not to grant a lease of wakf property not exceeding three years in case of agriculture property and one year in case of non-agriculture land.
(iv) Mutawalli is duty bound not to increase allowance of officers and servants.
(v) Mutawlli is duty bound not to transfer the office for another.
9. Nature of office of matawalli:
The office of mutawlli is not hereditary under Islamic law. hereditary right is not recognized.
Case law
Abdul Hamid V/S Govt. of West Pakistan 1985 CLC 58.
It was held in this case that as founder of wakf has the power to appoint first mutawalli and to lay down the the scheme for the succession to the office of mutawalli.
10. Removal of mutawalli:
A mutawalli may be removed by the court.
(i) If he become unfit for the job.
(ii) If he does not perform the religious services.
(iii) If mutawalli become insolvent.
(iv) If he commit misconduct.
(v) If mutawalli commits breach of trust.
11. Conclusion:
To conclude I can say that mutawalli is a person who manage waqf property. the office of the mutawalli is not hereditary and non transferable. he has rights and duties under law. he can be removed by the court. on the ground of breach of trust, misconduct insolvency etc. etc.

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Mutawalli.rtf (Size: 3.87 KB / Downloads: 470) ]]>