Portal:Muslim law

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1.Introduction to Islam

-Meaning of Islam

-Degrees of obedience in Islam

-Period of Hazrat Mohammad (P.B.U.H) (A.D. 570-632)

-Genealogical tree o f Prophet Hazrat Mohammad ((P.B.U.H)

-Philosophy of Islam

-The period of Caliphs

-The period of Imams

-The Omayedas (A.D 661-750)

-Abbasides (A.D 750-1258)

-History of Growth of Muslim law

2. Source of Muslim Law

-Quran

-Hadish or Sunna

-Ijmaa

-Qiyas

-Istihsan

-Istislah

-Istidlal

-Fatwas

-Fiqa

-Custom

-Legislation

-How Courts are to be guided or bound by different sources of law

3. Schools of muslim law

a. Schools of Sunni law

-The Hanafi School

-The Maliki School

-The Shafei School

-The Hanbali School

-Muqallids and Ghair Muqallids

b. School of Shia law

-The Zaidi School

-Ismaili School

-The Ithna-Ashari School


c. School of Mutazilas

4. Application of muslim law in india

- Meaning of Muslim Law

-Extent of Application

-Matters which are applied not expressly directed by Legislature

-Rules of Muslim Law not expressly applied to Muslims

-Matters which expressly directed to be applied by Legislature

-Authority for application of Muslim Law

-Legislative enactments which interfere with the application of Muslim Law

-Family arrangement or settlement

-Shariat Act, 1937 is not applicable to State of Jammu and Kashmir

-Provisions not applicable at all

5. Statutes applicable to muslims

-The Bombay Regulation of 1827

-The Punjab Laws Act, 1872

-The Madras Civil Courts Act, 1873

The Central Provinces Laws Act, 1875

The Oudh Laws Act, 1876

The Ajmer-Merwara Laws Regulation III of 1877

The Bengal, Agra and Assam Civil Courts Act, 1887

The Government of India Act, 1935

The N.W.F Province Muslim Personal Law (Shariat) Application Act, 1935

The Shariat Act, 1937

The Cutchi Memons Act, 1938

The West Punjab Muslim Personal Law (Shariat) Application Act, 1948

Persons to whom muslim law is applicable

-Faith in God

-Belief in unity

-Belief in Hazrat Muhammad (PBUH) as His messenger of God

-Belief in the day of Judgment

-Belief in all the essentials of Islam

-Judicial classification

PERSONS TO WHOM MUSLIM LAW IS APPLICABLE Faith in God....

Belief in unity

Belief in Hazrat Muhammad (PBUHI as His messenger of God).

Belief in the day of Judgment

Belief in all the essentials of Islam

PROMULGATION OF OR CONVERSION TO ISLAM

1. Promulgation of Islam-Procedure.

2. Conversion must be bona fide.

3. Conversion to Islam and its effect.

SECTS AND SUB-SECTS UNDER MUSLIM LAW

1. Sunni sub-sects

2. Sunni sects and communities in India...

3. Mappillas belong to the Shafei School.

4. Shia ssub-sects

5. Shai sects and communities in India

6. Table of Sects and Sub-sects

7. Presumption as to sect....

8. Presumption as to sub-sect....

9. Application of sect law

10. Law of the defendant's sect will prevail

11. Inheritance to the estate

12. Change of sect

13. Mode of change of sect

ON MARRIAGE

A. Concept of marriage

1. Definitions of marriage...

2. Nature of marriage...

3. Purpose of marriage...

4. Marriage should not be conditional or contingent

5. Muslim marriage under the Special Marriage Act, 1954

B. Essentials of a valid marriage..

6. Capacity for marriage

7. Majority or adulthood.

8. Age of puberty

9. Proposal and acceptance..

10. Form of marriage

11. Witnesses....

12. Marriage ceremonies

13. Free consent of the parties is necessary

14. Whether registration of marriage is compulsory.

15. Compulsory registration of marriages-Judicial approach

16. Validity of marriage certificate by Mutawalli...

17. Agency of Vakils in marriages.

C. Prohibited Degrees in marriage

18. Prohibition due to consanguinity (tahrim un-nasab)....

19. Prohibition due to affinity (tahrim-al-mushaherat)

20. Prohibition due to fosterage (tahrim-ar-raza).

21. Prohibition due to plurality...

22. Prohibition due to difference of religion..

23. Prohibition due to unlawful conjunction.

24. Prohibition due to marriage during Iddat...

25. Prohibition due to divorce.

26. Prohibition due to pilgrimage to Mecca..

27. Prohibition due to supervenient irregularity

D. Classification of marriage..

28. Valid marriage (Sahi)

29. Void (Batil ) Marriage

30. Irregular (Fasid ) Marriage.

31. Test for determining class of marriage..

32. Marriage with pregnant woman is irregular

33. Whether concealment of pregnancy by the wife at the time of marriage would render the marriage invalid....110

34. Marriage with sister of existing wife whether irregular or void

35. Marriage during iddat period..12

37. Marriage with fifth wife...112

38. Marriage without consent... 112

39. Marriage with non-Muslims....

40. Marriages between Shia and Sunnis..113

41. Removal of defects to validate irregular marriages

42. Distinction between void and irregular marriages....

E. Effects of various types of marriages.

44. Effects of a void (batil) marriage

F. Legal remedies to the parties...

46. Remedies available to the husband

47. Remedies available to the wife

G. Muta (temporary marriage)

48. Shia Law on Muta

49. Sunni Law on Muta

50. Condtion of a valid muta marriage

51. Capacity to contract a Muta marriage..

52. Formalities of a Muta marriage..

53. Legal prospects of Muta marriage

54. Dissolution or termination of Muta marriage.

55. Number of wives.

H. Proof of marriage..

57. Scope and principle...

59. Acknowledgment of marriage..

60. Consummation of marriage...n

61. Valid retirement and consummation-Distinguished..

62. When valid retirement is equivalent to consummation

63. When valid retirement is not equivalent to consummation..

ON DOWER (MAHR)

A. Nature and definition of dower

1. Dower-Meaning of.

2. Dower is a pious obligation undertaken by the husband at the time of marriage

3. Dower is a fundamental feature of the marriage.

4. Dower whether is a consideration.

5. Dower is not consideration in modern sense of term in

6. Maxim debitor non praesumitur donare

7. Dower whether payable on divorce..

8. Character of dower.

9. Right of dower and right of mortgagee in possession...

10. Payment of dower on divorce

11. Whether gifts or presents given by husband amount to money.

12. Whether kharch-e-pandan is equivalent to pin money

13. Dower is an unsecured debt...

14. Dower debt is not exactly synonymous with a commercial debt

15. When dower becomes due

16. Whether heirs are personally liable for dower debt

17. Whether dower is an actionable claim

18. Right to recover dower as a debt.

19. Dower may become restrictive measure on the exclusive right or divorce by the husband

Classification and amount of dower

20. Specified Dower (Mahr-i-Musamma or Mehr-i-Tafweez 21. Proper dower (Mehr e misl)

22. Prompt Dower (Mehr i muajjal)

23. Deferred Dower (Mahr-e-Muwajjal)

24. Fixation or settlement of specified dower

25. Time for fixing specified dower

26. Amount of specified dower .

27. Amount of and addition to specified dower (Mahr-e tafweez)

28. Power to reduce dower

29. Fictitious or sham dower

30. Non-payment of prompt dower Effect of..

31. Time for fixation of prompt dower.

32. Determination of prompt dower.

33. Right to claim prompt dower does not precede

34. Non-payment of prompt dower-Rights of wife

35. Recovery of prompt dower-When

36. Recovery of deferred dower-When

37. Interest of wife in deferred dower is a vested and not contingent one.

38. Payment of deferred dower..

39. Proper dower in a case of wati-bil-shubhah

41. Recovery of proper dower-Determination of

42. Whether dower is prompt or deferred-Determination of

43. Difference between prompt and deferred dower

44. Determination of amount of dower

45. Amount of dower

46. Minimum limit of amount of dower

47. Mode of payment of dower.

Subject of dower

48. Subject of dower

49. Stipulation in favour of father of the bride..

50. Dower can be any such money or property of any kind permissible in Shariat.

51. One marriage as the dower for another marriage is not valid

Capacity to make a contract for dower

52. Persons entitled to make contract

53. Liability of father to pay dower on behalf of minor son

54. Contract of dower may be made by father

55. Circumstances under which dower may be satisfied.

56. Confirmed dower cannot be forfeited

F. Relinquishment or discharge of dower.

60. Suretyship for dower

61. Relinquishment/remission of dower (hiba-e-mahr)..

62. Remission of dower-Consent

63. Age of wife for the purpose of remission.

64. Age of majority for relinquishment of dower

65. Whether conditional relinquishment of dower is barred in Muslim law

66. Right of retention or lien...

67. Right of alienation of property by widow

68. Right of retention is not capable of alienation.

69. Transfer of property in lieu of dower

70. Widow's right to possession of husband's estate in lieu of dower

71. Whether right of retention in lieu of dower is heritable

72. Whether right of retention in lieu of dower is transferable

73. Widow's lien for dower.

74. Whether the possession of the widow or divorcee should be with the consent of the husband or the heirs.

75. A widow in lieu of her dower debt cannot mortgage her right of possession

76. Presumption of possession

77. Liability to render full account of income and profit..

78. When absolute title does not pass by virtue of gift-Effect...

Suits and limitation period for dower...

79. Territorial jurisdiction with regard to dower.

80. Nothing in the Limitation Act can bar a suit for dower.203

81 Limitation for suits to recover prompt dower.

82. Limitation for suits to recover deferred dower..203

83. Bar of limitation for claim to dower is not relevant when widow is in possession of the property in lieu of dower

84. When dower is fixed in kind such as immovable property- Registration is necessary

85. Right of retention in lieu of dower debt is not a bar to sue for dower debt

86. Interest in dower-Scope of

87. Power of the Court to create a charge for a dower debt

88. Court shall ascertain intention of the parties while awarding dower....

ON DISSOLUTION OF MARRIAGE

A. Introduction

1. Word "divorce"-Meaning of

2. Talaq is disapproved but not prohibited

3. Views of eminent Muslim Scholars/Jurists in regard to Talaq.

4. Whether Muslim husband can divorce his wife at his whim and caprice

5. Uncontrolled use of divorce without regard to restrictions established by Shariat is a sin.

6. Talaq must be for a reasonable cause In the absence of serious reasons no one can justify a divorce.

7. Whether divorce is valid without any effort of reconciliation

8. Certificate of divorce Grant of-Role of Qazi

9. Rescission of Muslim marriage-Whether Section 65 of the Contract Act shall apply....

10. Islam recognises the principle of equity between husband and wife

11. Divorce-Modes of dissolution of Muslim marriage

B. Factors for Dissolution of Marriage.

12. Divorce due to apostasy (Ridda)...

14. Whether wife is entitled for dower where marriage is dissolved upon apostasy of wife..

15. Demise of one spouse treated as divorce

16. Option of repudiation on puberty.

17. The term "Iddat"- Meaning of

C. Talaq

18. Talaq-Definition of

19. Talaq is a form of divorce on asking.

20. Essentialities of pronouncing Talaq

21. Capacity to pronounce talaq.

22. Modes of pronouncement of talaq..

23. Talaą-us-Sunnat

24. Talaq-e-Ahsan

25. Talag-e-Hasan.

26. Talaq-ul-Bidat....

27. Forms of Talaq.

28. Talaq may be oral or in writing.

29. Talaq should be made in express word.

30. Talaq may be pronounced at any time

31. Talaq pronounced under compulsion-Validity.

32. Whether husband may pronounce talaq by issuing notice...

33. Talaq by signs.

34. Validity of talaq where husband declaring talaq in written letter to wife in the absence of proclamation of talaq not made thrice in such letter

35. Talaq by consent.

36. Presence of witnesses

38. Talaq and question of menstruation period.

39. Effectiveness of talaq-Enunciations.

40. When talaq become irrevocable..

41. Whether statement by husband in pleading filed in a proceeding for maintenance that he had already divorced the wife long ago operates as divorce.

42. The husband need not prove the form of talaq adopted by him

D- Ila

43. Ila-Meaning .

45. Capacity to make Ila.

46. Requisite of Ila

47. Time specified for making Ila

48. Revocation of Ila

E- Zihar

49. Zihar-Meaning of

50. Shia law on Zihar

51. Right of Wife on Zihar

52. Effects of Zihar on marriage tie

F. Talaq-e-tafweez...

53. Tajweez-Meaning of

54. Capacity to delegate

55. Time for delegation...

56. Binding effect of Talaq-e-Tafweez

57. Conditional Delegation.

58. Reasonable conditions for talag-e-tafweez.

59. Kinds of Talaq-e-tafweez

G. Khula.

60. Khula-Meaning of.

62. Capacity for Khula..

64. Consideration for Khula

65. Whether khula may be conditional

66. Form of expression in Khula

67. Khula under compulsion.

68. Revocation of Khula

H. Mubara'at

69. Mubara'at-Meaning of

70. Form of expression in Mubara'at

71. Difference between Khula and Mubara'at

72. Effect of Mubara'at

Judicial Divorce

73. Entitlement of wife to obtain divorce through Court....

74. Grounds on which Muslim women may obtain decree for dissolution of marriage

75. Whether Act of 1939 is retrospective in operation

76. Jurisdiction in suits for divorce.

77. After the enactment of Dissolution of Muslim Marriages Act, 1939 whether wife has a statutory right to obtain divorce from her husband..

78. Position of minor female regarding option of puberty Before and after Dissolution of Muslim Marriages Act 1939

79. Whether mere exercise of option of repudiation does operate as a dissolution of a marriage

80. Whether Section 125, Cr. Р.С. is applicable when marriage is dissolved by court at the instance of wife

81. Whether second marriage of husband amounts to cruelty to first wife

82. Decree for divorce proper on ground of mental cruelty by the husband

83. Whether second marriage by husband amounts to mental cruelty

84. Muslim wife residing in her own family house and away from her husband, entitled to claim divorce

85. Notice to be served on heirs of the husband when the husbands whereabouts are not known

J. Lian

86. Meaning of Lian...

87. Capacity for Lian..

88. Factor which constitute Lian..

89. Characteristics of Lian

90. False imputation of unchastity, to a wife and retraction by husband

91. Retraction of charge.

K. Effects of Dissolution of Marriages

92. Effect of irrevocable talaq

93. Effects of Ila....

94. Effects of Zihar.

95. Effects of Talaq--Tafweez.

96. Effects of Khula and Mubarra'at

97. Effect of Lian

98. Effect of Judicial divroce

99. Distinction between Sunni and Shia law on divorce

ON MAINTENANCE

1. Persons entitled to maintenance

2. Statutory provisions for maintenance of wives, children

3. Words, 'resides' 'is' and 'where he last resided with his wife'- Connotation of..

4. Section 125, Code of Criminal Procedure, 1973 is intended to ensure the means of subsistence for three categories of dependents viz children, wives and parents.

5. The order under Section 125, Code of Criminal Procedure 1973 is reviewable under Section 362 of the Code.

6. A person is bound to maintain his wife and children even if he is necessitous...

7. Recovery of maintenance..

8. Jurisdiction of Family Court to decide question of maintenance

9. A civil Court cannot entertain a suit against an order of Magistrate under Section 125, Cr.P.C.

10. Sentencing to jail is not a mode of discharging the liability to pay maintenance..

Maintenance of Wife

11. Right to maintenance under personal law-During continuation of marriage

12. Maintenance payable due to an agreement

13. When maintenance becomes due

14. Amount of maintenance to be fixed.

16. Whether a wife is entitled to recover arrears of maintenance from her husband

17. A husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders..

18. Statutory rights of maintenance for wife...

19. Statutory rights of maintenance under Section 125 of the Code, to wife subsist only during the continuance of marriage..

20. A "wife" does not stand in the same position as a divorced wife

21. Divorced woman-Meaning of...

22. Whether Explanation in Section 125(3) of the Code, place a second wife and a mistress on same footing.

23. Circumstances when wife is not entitled to maintenance and

24. Divorce not effective-Maintenance is obligatory wife's maintenance will not be obligatory for the husband...

25. Refusal of wife to stay with husband on just grounds Maintenance allowed..

26. Refusal of wife to live with husband due to husband keeping second wife-Wife is entitled for maintenance.

27. Right to maintenance to wife after dissolution of marriage...

28. Section 125 of Code of Criminal Procedure, 1973 and view of the Supreme Court in Shah Bano's case......

29. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986)

30. The Muslim Women (Protection of Rights on Divorce), Rules, 1987

31. Muslim Women (Protection of Rights on Divorce) Act, 1986 is enacted to specify the rights which the Muslim divorced woman is entitled to have at the time of divorce

32. Act 25 of 1986 has completely obliterated the right of maintenance to a divorced Muslim women

33. Act 25 of 1986 is prospective in operation

34. Whether a divorced Muslim woman can claim maintenance under Section 125 of Code of Criminal Procedure 1973, even after the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986

35. After passing of the Act 25 of 1986, not only right under Section 125 (1), Cr.P.C, but also the remedy under Section 125 (3), Cr.P.C. is lost...

36. How far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act 25 of 1986

37. Principle of Muslim Law limits the husband's liability to provide maintenance to the divorced wife for the period of iddat only.398

38. Concept of reasonable and fair provision and maintenance-Applicable only 'within' the period of iddat

39. Reasonable and fair provision-Meaning of

40. Section 3 of the Act 25 of 1986 does not apply if there is a decree or order of Court granting maintenance to a wife earlier.

41. Section 125 of the Code of Criminal Procedure would apply to divorced Muslim woman, only if both parties exercise their option as contemplated under Section 5 of the Act 25 of 1986

42. Whether Section 5 of the Muslim Women (Protection Rights on Divorce) Act, 1986, may be attacked on ground of religious discrimination.

43. An application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 can lie before the Magistrate having jurisdiction in the area and not before the Family Court, under Family Courts Act, 1984.

44. The provisions of Section 3 of Act of 1986 whether oust the jurisdiction of Civil Court.

45. Word 'property' occurring in Clause (d) of Section 3 (1) of the Act 25 of 1986 should be construed as properties given by the former husband to the divorced wife during the subsistence of marriage, by way of gift or otherwise.

46. Claiming maintenance from Wakf Board Circumstances

47. Deserted wife's equity and right to maintenance-Right to residence in matrimonial home-Judicial approach.

48. Distinction between two provisions..

49. Maintenance allowance to divorced Muslim woman..

C. Maintenance of Children....

50. Primary duty and obligation of maintaining minor sons and unmarried daughters lies on the father

51. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 is applicable to minor children

52. Act 25 of 1986 does not supersede the provisions of Section 125 of the Code of Criminal Procedure in so far as they relate to grant of maintenance allowance to the children...

53. When right to maintenance of children, terminates

54. Whether an illegitimate child will be entitled to maintenance

55. Marriage with the sister of an existing wife not void (batil) but irregular (fasid)- Children of such marriage entitled to maintenance

D. Maintenance of Parents and other Relations.

56. Maintenance of parents

57. Maintenance of grand-parents

58. Maintenance of son's wife (daughter in law)

59. Maintenance of step-mother...

ON PARENTAGE AND LEGITIMACY OF CHILDREN

A. Parentage

1. Parentage- Meaning of

2. Legitimacy and legitimation- Difference between

B. Maternity

3. Maternity- Establishment of

C Paternity.

4. Paternity- Establishment of

5. Gestation- Minimum period

6. Gestation-Maximum period..

7. Burden of proving legitimacy....

8. An ante-nuptial child is illegitimate

9. Presumption of legitimacy from presumptive marriage

10. Presumption of paternity

11. Section 112 of Indian Evidence Act and Muslim Law as to legitimacy- Comparison

12. Points of distinction between Muslim Law and Section 112, Evidence Act.

D. Acknowledgment of Legitimacy..

13 .Acknowledgment

14. Acknowledgment may be express or implied

15. Legitimacy of a child by acknowledgment by the father

16. Validity of acknowledgment-Conditions

17. Doctrine of acknowledgment of parentage is limited to cases of uncertainty of legitimate descent

E. Adoption

18. Adoption is not recognised by Muslim Law

19. Adoption does not confer any rights of inheritance or other rights on the adoption son

21. Adoption by way of custom

22. Construction of adoption deed-It would not be treated as gift deed or Will

23. Distinction between acknowledgement and adoption


ON GUARDIANSHIP

A. Concept of Guardianship.

1. Guardian-Meaning of.

4. Age of majority or puberty under Muslim law

5. Age of discretion and understanding

6. While giving custody, the age of minor is also a relevant factor to be taken into consideration..

7. Right to guardianship includes right to custody of the minor



Testamentary waqf (waqi-bil-wasiyat)

Limits on testamentary waqf

Formalities of Waqf

Waqf may be made in writing or orally

Creation of waqf may be established by a declaration of owner ofproperty dedicated or may be inferred from user

In order to constitute a valid waqf it is not necessary the

Creation of waqf—Necessity of intention to dedicate-Use of word "Waqf" neither essential nor "conclusive " to establish as such

A waqf inter vivos is completed by a mere declaration of endowment by the owner, the founder

Dedication to a mosque is governed by special rules and special equity in the light of which a particular dedication has to be determined 860

A Mosque is open to all Muslims, local and others—The mosque does not belong to any particular sect

Waqf for a mosque Conditions

Whether a property like a mosque or graveyard can become waqf by long user

Fateha on graveyard implies creation of a valid waqf

Objects of Waqf

Classification of waqfs in respect of objects

Object of the waqf must be one recognised by Muslim Law as religious pious or charitable permitted by Shariat

Under Muslim Law a Waqf should have a religious motive

A non-Muslim may also create a waqf for any pu-nose which is religious under Islamic Law

Waqf exclusively for the benefit of the Waqif's family—Validity of

Waqf for the benefit of waqifs family and passing of the Musalman Waif Validating Act, 1913 (Act VI of 1913)

Word "family" in Section 3 (a) of the Mussalman Waqf Validating Act, 1913 has to be given a wide meaning

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