Family Law Flashcards

Question

Shia-Sunni divide and 'Muharram'.

Answer 1

1. After Prophet Mohammad, one group favoured the nomination of Ali as the rightful successor, while the other advocated for a leader chosen by an election. 2. The former group, which supported the nomination of Ali, was called the Shias and those who favoured an election were called the Sunnis. 3. In fact, the Sunnis held the elections, and Abu Bakr, the father-in-law of the Prophet, was elected as the first Caliph (Khalifa). 4. The Shias maintained all along, that the Caliphate was hereditary and was rightfully vested in Ali, and the direct male line of the Prophet by divine will. Therefore, they regard the first three Caliphs as usurpers. 5. The Sunnis however, claimed that ascendancy to the throne depended upon the sanctity of the faithful, as decided by their votes, expressed through an election. 6. “The rift between the Shias and the Sunnis became very wide and rather irreparable, and this **incident is remembered with solemn grief by the Shias, as ‘Muharram’.”**

Answer 2

1. The primary sources of Muslim law are the Quran, the Sunnat (traditions of the Prophet), the Ijma and the Qiyas. 2. Other sources of relevance are the legislations, judicial decisions and customs. 3.

Answer 3

1. The Quran is not a book of law, but it is concerned with the conduct of life. 2. It distinguishes truth from falsehood and right from wrong. It is divided into ‘Sura’ or Chapters, 3. It also contains provisions for safeguarding the interests of minors and the disabled, for raising the general status of women and for settling questions of inheritance and succession, on equitable grounds. 4. Women were granted inheritance rights and were considered independent individuals, capable of holding property and disposing it of as full owners. 5. “As it is divine in character, it cannot be altered, amended or modified by any human agency, or even by an institution. 5

Answer 4

1. The Sunnat, as also the traditions of the Prophet, are the primary source of Muslim law, second in point of time and authority, to the Quran. 2. 'Sunna’ means the model behaviour of the Prophet, and the narration of what the Prophet **said, did or allowed tacitly, is called ‘Hadis’ or traditions. ** 3. As the Prophet was the religious and later, the political leader as well, people came to him with their questions and problems and looked up to him to get his opinion. 4. The Prophet sometimes, gave his own opinion, and sometimes, he gave it after consultations with his companions, but his verdicts were inspired by divine authority. 5. All that he enjoined by words, were collectively, **called the ‘Sunnat-ul-qaul’.** 6. He himself was a role model, and whatever he did, became an example for others to follow. This was called **‘Sunnat-ul-fail’, i.e., ‘what he did himself”**

Answer 5

1. The third source of law, both in point of time and in importance, is the Ijma. 2. This term denotes the **consensus of opinion of the companions of the Prophet, or even of highly qualified legal scholars**. 3. Law is primarily used for the betterment of the society, and hence, as the society can never be static, law also has to respond to the changing needs of the society. 4. New problems and new questions emerge and throw new challenges before the judicial authorities, and therefore, the Ijma assumes an importance of its own. 5. The binding authority of validity of the Ijma is traced to a verse in Quran ‘the way is by counsel in their affairs.” 6. “Where the Quran and Hadis were silent on an individual problem, the legal scholars of great learning, called ‘Mujtahids’, were enjoined to deduce a valid conclusion from the Quran and the Sunnat. 7. This was differentiated from a free opinion or advice and was called ‘Ijtihad”

Answer 6

1. **Qiyas means reasoning by analogy or analogical deductions from the above three sources of law, with the exercise of reason.** 2. It applies in cases where although one particular factual situation is not covered by the language used in the primary sources, it is nevertheless covered by applying the rule of reason. 3. It does not lay down a proposition of law and is more in the nature of an application of law, as it is contained or obtained from the above three sources. 4. The Qiyas is not universally recognised as a source of law. Shias do not accept it”

Answer 7

1. The Pre-islamic customs and traditions, which were not expressly repealed by the Quran and Hadis, and were also not contradictory to it, along with the **Quran, Hadis and Ijma, collectively form the source of Muslim Law**. 3. In order to bring about a uniformity these customs were abrogated, in all personal matters, they were made subject to Muslim law, and **the Muslim Personal Law (Shariat Application) Act, 1937**, was passed.

Answer 8

1. Muslims are divided into two sects—Sunnis and Shias. This division was political in origin, as it centered around the question of who the successor of Prophet should be and the method of his appointment. 2. Later on, jurisprudential differences also surfaced”

Answer 9

Maximum vigilantibus non dormientibus, Jura subvenient

Answer 10

The Sunnis are further divided into four sub-schools, and the Shias are divided into three sub- schools. Both of them have their own books and authorities”. Sunni Schools - 1. Hanafi School 2. Maliki School. 3. Shafei School 4. Hanbali School.

Answer 11

1. The Hanafi school was founded by Abu Hanifa, the great Imam, in his native city Kufa, in 8th century AD, and is also called the Kufa school. 2. This system of law is called Hanafi law and was favoured by the Abbasid Caliphs. 3. In India, a sizeable population of Sunni Muslims is that of Hanafis and often, Sunni law is referred to as Hanafi law.” 4. “The well-known legal textbook of this school is Hedaya, while other important works are Durr-ul-Mukhtar, Radd-ul-Mukhtar and Al-Mukhtasar. 5. In addition to it, in the 17th century, the Fatwa-I-Alamgiri, compiled at the command of the Mughal emperor, Aurangzeb, also includes the Hanafi doctrines”.

Answer 12

1. Maliki school was founded in 8th century AD, at Medina in Saudi Arabia, by Malik ibn Anas. 2. He expounded the traditions and perfected the doctrine of judicial practice of Medina. 3. He followed the traditions of only the Prophet and in case of any conflicts in these traditions, relied on the Ijma of the Mujtahids of Medina. 4. The doctrines of the Maliki school are contained in the **Kitab-ul- Muwatta**. 5. Followers of the Maliki school are found in Spain, Morocco and North and East Africa.”

Answer 13

1. Shafei school was founded by Muhammad ibn Idris ash Shafei, in the early 9th century. 2. A pupil of Malik ibn Anas, he was the **founder of the doctrine of Qiyas and established Ijma as a source of law**. 3. The important books of this school are the Minhaj-al-Talibin and the commentaries on it, viz., Nihajat-al-Muhtaj and Tuhfat-al-Muhtaj. 4. In India, Sunni Muslims of the Southern region, adhere to the Shafei school”

Answer 14

1. Founded in the 9th century by Ahmad ibn Hanbal at Baghdad, Iraq, this school relied on the traditions and **perfected the doctrine of ‘usul**’. 2. Ahmad ibn Hanbal, who was a pupil of Imam Shafei, is said to have collected over 80,000 Hadis in ‘Musnad al Imam Hanbal’. 3. The followers of this school are found in Central Arabia and in a few places in Syria and Central Asia. 4. The authoritative books of this school are the Taat-ur-Rasul and the Kitab-ul-Alal.

Answer 15

“Shias are divided into three schools: ” 1.Zaidya school 2. Ismailya school 3. Ithna Asharis

Answer 16

1. The followers of the Zaidya school recognise Zaid as their fifth Imam” 2. They follow the principles of elective and not nominated Imamate, but the Imam must come from the family of the Prophet. 3. Zaidy Imams are the rulers of northern Yemen in south Arabia. 4. India does not have followers of this school.”

Answer 17

1. Section 197 Cr.P.C. has been enacted for affording some protection to “public servants” including Judges and Magistrates. 2. In the case of Judges and Magistrates, they have to function without any fear or favour, affection or ill will. 3. As long as they act bona fide, they need protection for fearlessly administering justice and any person dissatisfied with their verdicts cannot straightaway prosecute them for the judgment which may not be either palatable or to their liking. 4. Similarly, a “public servant” may have several enemies many of whom will be those disgruntled elements who were not able to get official favours from the “public servants” 5. Such disgruntled elements may be waiting for an opportunity to launch frivolous or vexatious prosecutions against such unobliging “public servants”. 6. That explains the protection under Section 197 Cr.P.C. afforded to “public servants” who are amenable to Government control. 7. Case Laws to follow - Bhagwan Prasad Shrivastava v NP Mishra. 8. PIL v UOI. 9. Chaudhary Parveen Sultan v State of WB (2009).

Answer 18

The object of prosecution sanction under S. 197 CrPC is to save 'public servants' from firvolous and vexatious prosecution.

Answer 19

1. The object and purpose underlying this Section is to afford protection to public servants against “frivolous”, “vexatious” or “false” prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. 2. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty.

Answer 20

1. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. 2. and have to be considered dehors the duties which a public servant is required to perform. 3. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned. (Vide **Chaudhury Parveen Sultana v. State of W. B. (2009)**

Answer 21

A trial without a valid sanction where one is necessary is a 'trial without jurisdiction' rendering the proceedings void ab initio. (R. Chari v State of UP).

Answer 22

1. It is not enough that the judge, magistrate or 'public servant' concerned is holding such post. 2. It should be further shown that they are not removable from their office except by or with the sanction of the appropriate government and that the alleged offence was committed by them while acting or purporting to act in the discharge of their official duties during the time when they were employed in connection with the affairs of the appropriate government. 3.

Answer 23

In the case of a public servant who has either ceased to hold office or has retired from service also, sanction under Section 197 Cr.P.C. to prosecute him for an offence which attracts the said Section, is a must. This is because of the employment of the words **“who was at the time of commission of the alleged offence, employed”**

Answer 24

If, as per the Rules or Regulations governing the Government servant, a lower officer of the Government has been invested with the power to appoint or dismiss such Government servant, then it cannot be said that such Government Servant is removable by or with the sanction of the Government so as to necessitate a prosecution sanction under Section 197 Cr.P.C

Answer 25

1. The Section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. 2. Nor is it confined to cases where the act which constitutes the offence, is the official duty of the public servant concerned. 3. Such an interpretation would involve a contradiction in terms, because an offence can never be part of an official duty. 4. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. 5. **The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty**. 6. The essential requirement is a reasonable nexus between the alleged act and official duty and it does not matter if the act exceeds what is strictly necessary for discharge of the duty. (Vide – **Abdul Wahab Ansri v.State of Bihar [2000]**

Answer 26

1. An ostensible act in purported exercise of official duty but done in bad faith is also covered by S. 197 CrPC. 2. The true legal position is explained by Alagiri Swami J and H.R. Khanna J. in Pukhraj v State of RJ (1973) as follows - 3. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. 4. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. 5. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. 6. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. 7. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty.

Answer 27

1. In State of H.P. v. M.P Gupta (2004). it was held by the Apex Court that it was no part of the official duty of a public servant to commit offences punishable under S. 467, 468 and s. 471 IPC and, therefore, there was no need for any sanction to prosecute such a public servant. 2. In **State of Kerala v Padmanabhan Nair (1999)**, it was held by the Apex Court that it was no part of the duty of a public servant while discharging official duties to enter into a 'criminal conspiracy' for committing criminal breach of trust and as such it cannot be said that sanction under S. 197 CrPC is a condition precedent for launching a prosecution for offences under S. 406, 409 read with S. 120B of IPC.

Answer 28

“Public servants” who commit offences punishable under Sections 166 A, 166 B, 354, 354 A, 354 B, 354 C, 354 D, 370, 375, 376, 376 A, 376 C, 376 D or 509 of the Indian Penal Code are liable to be prosecuted for those offences without prosecution sanction under Section 197 (1) Cr.P.C. in the light of the Explanation to Section 197 (1) Cr.P.C. inserted by Amending Act 13 of 2013 with effect from 03-02-2013.

Answer 29

1. The Supreme Court observed that when the case of the prosecution is entirely based on the extra-judicial confession being circumstantial in nature then the accused cannot be convicted for the offence unless the chain of circumstances is completed by the prosecution. 2. It may be noted that the entire case of the prosecution is based on circumstantial evidence. **The principles concerning circumstantial evidence are fairly settled and are generally referred as the “Panchsheel” principles.** 3. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. 4. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete. 5. It must also be established that the chain of circumstances is consistent with the only conclusion of guilt. 6. The margin of error in a case based on circumstantial evidence is minimal. 7. For, the chain of circumstantial evidence is essentially meant to enable the court in drawing an inference. 8. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.”, the Judgment authored by Justice Satish Chandra Sharma observed. 3. relying on the extra-judicial confession made by the accused to the PW 1 (an interested witness being a father of deceased child). 4. The confessions, one made after a voluntary visit to the police station and the other made after arrest from the house, stand on materially different footings from the point of view of voluntariness. The likelihood of the latter being voluntary is fairly lesser in comparison to the former. 5. Furthermore, the extent of acceptability of an extra-judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. 6. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. 7. The standard required for proving an extra-judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. **The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra-judicial confession**

Answer 30

It may be noted that the entire case of the prosecution is based on circumstantial evidence. **The principles concerning circumstantial evidence are fairly settled and are generally referred as the “Panchsheel” principles.** 3. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. 4. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete. 5. It must also be established that the chain of circumstances is consistent with the only conclusion of guilt. 6. The margin of error in a case based on circumstantial evidence is minimal. 7. For, the chain of circumstantial evidence is essentially meant to enable the court in drawing an inference. 8. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.”, the Judgment authored by Justice Satish Chandra Sharma observed.

Answer 31

1. It is also noteworthy that the purpose of criminal trial is not only to ensure that an innocent person is not punished, but it is also to ensure that the guilty does not escape unpunished. 2. A judge owes this duty to the society and effective performance of this duty plays a crucial role in securing the faith of the common public in rule of law. 3. Every case, wherein a guilty person goes unpunished due to any lacuna on the part of the investigating agency, prosecution or otherwise, shakes the conscience of the society at large and diminishes the value of the rule of law.

Answer 32

The amount of Mahr can vary widely based on cultural, economic, and personal factors. It can be anything of value agreed upon by the bride and groom, whether it be money, property, jewelry, or any other tangible asset. However, it is essential that the Mahr be reasonable and affordable for the groom to fulfill his obligation. Overall, Mahr is not just a financial transaction but carries significant symbolic and cultural importance within Islamic marriages, emphasizing mutual respect, commitment, and financial protection for the bride.

Answer 33

1. the object of the provision for interim maintenance in the Cr.P.C., 1973 was to address the destitution and vagrancy which becomes a precursor to the commission of offence. 2. It was intended to ensure that no one is driven to penury compelling them to commit crime for their survival. 3. With this object, it was intended that at least some money must be given for sustenance and subsistence of the wife and the children.

Answer 34

1. The most unique feature of the DV Act, 2005 is that while the remedies were essentially civil in nature, but considering the delays in civil adjudication, the procedures prescribed were of Cr.P.C., 1973. 2. Under the DV Act, 2005, the provision for interim monetary relief was incorporated to provide the wife with immediate succour. 3. The monetary relief as provided under Section 20 of the DV Act, 2005 is far more expansive than the right of interim maintenance recognised under Section 125 of Cr.P.C., 1973. 4. The relief is not limited to maintenance but also included expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence inter alia loss of earnings, medical expenses, the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person, in addition to the maintenance for the aggrieved person as well as her children

Answer 35

1. In the case of Rajnesh vs. Neha, (2021) 2 SCC 324, the Supreme Court, while considering the aforementioned provisions and Acts, observed that the distinction between maintenance under HAMA, 1956 and HMA, 1955 is that the right under Section 18 of the HAMA is also available during the subsistence of a marriage, without any matrimonial proceeding pending between the parties. 2. However, once the divorce is granted, the wife can seek permanent alimony only under Section 25 of HMA, 1955. 3. Additionally, the relief of permanent alimony under Section 25 of HMA, 1955 is available to both spouses irrespective of their gender, however, only the wife can seek maintenance from her husband under Section 18 of HAMA, 1956. 4. The Supreme Court in the case of Chand Dhawan vs. Jawaharlal Dhawan (1993) 3 SCC 406 discussed the interplay between the provisions of maintenance in HMA, 1955 and HAMA, 1956, It is only when the marital status is affected or disrupted by the Court under HMA, 1955 that the claim for permanent alimony can be made under Section 25 of HMA, 1955 and if there is no disruption of the status, then the wife has to necessarily claim maintenance under HAMA, 1956.

Answer 36

To avoid conflicting orders and overcome this issue of overlapping jurisdiction, the Apex Court in Rajnesh (supra) laid down certain guidelines which are reproduced herein below: - 1. Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding. 2. It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding. 3. If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding 4. Hence, once an Order has been made by one Court, the subsequent modification/variation of the said Order shall also be pursued before the same Court.

Answer 37

1. (After giving explanation of law) - We may now consider the facts in hand. Essentially, what has transpired is that ……… 2.

Answer 38

1. Moreover, a three Judge Bench of this Court in Naveen Kohli v. Neelu Kohli held that repeatedly filing of criminal cases by one party against the other in a matrimonial matter would amount to cruelty and the same was reiterated by a Division Bench of this Court in K. Srinivas Rao v. D.A. Deepa

Answer 39

this Court in R. Srinivas Kumar v. R. Shametha, Munish Kakkar v. Nidhi Kakkar and Neha Tyagi v. Lieutenant Colonel Deepak Tyagi has held that an irretrievable marriage is a marriage where husband and wife have been living separately for a considerable period and there is absolutely no chance of their living together again. In all the above cited three cases, this Court in exercise of its power under Article 142 of the Constitution of India has dissolved the marriage on the ground of irretrievable breakdown as a ground, which otherwise does not exist under the Hindu Marriage Act. 14. In Naveen Kohli (supra), a strong recommendation has been made by this Court to the Union of India to consider adding irretrievable breakdown down of a marriage as a ground for divorce under the Hindu Marriage Act.

Answer 40

1. In Samar Ghosh v. Jaya Ghosh a three judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13 (1) (ia) of the Act. 2. An important guideline in the above decision is on the approach of a Court in determining cruelty. 3. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. 4. While dealing in the case of Samar Ghosh (supra) this Court opined that cruelty can be physical as well as mental: - “46…If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse and Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.

Answer 41

Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husbandor wife after marriage not to have child from the marriage may amount to cruelty.

Answer 42

1. delegated divorce is recognized both by the Sunnis and the Shias. 2. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any person. 3. He may delegate the power, absolutely or conditionally, temporarily or permanently. 4. A permanent delegation of power is revocable, but a temporary delegation of power is not. 5. The 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. 6. The power of Talak may be delegated to the wife, and as Fyzee observes, "This form of delegated divorce is perhaps that 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." 7. It is now commonly used in pre nuptial agreements. 8. Mhd khan v Shahmai - delegate power of divorce 9. Delegation of power to divorce may be made even in the post-marriage agreements between the husband and the wife. 10. 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 wife will have the right of pronouncing divorce on herself, such an agreement is vahd, and such conditions are reasonable and not against public policy.

Answer 43

In Md. Khan v Shahmai,^ under a pre-nuptial agreement, a husband, who as a Khana Damad, imdertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house. The husband left the house without paying the amount. The wife exercised the right and divorced herself It was held that it was a valid exercise of the power of talak delegated to her.

Answer 44

1. The power so delegated to the wife, either under a pre-marriage or post-marriage agreement, is not recovable by the husband. 2. In the talak-i-tafweez, though it is the person to whom the power is delegated who exercises the power of divorcing, the divorce in the eyes of the law is made by the husband. 3. Thus, when a wife is delegated the power of divorce, and in exercise of that power she pronounces the divorce, the power is exercised on behalf of the husband who had delegated it to her.

Answer 45

1. Two forms of constructive divorce have existed in Muslim law, Ila and Zihar. 2. According to Abdul Rahim, "In some cases the conduct of the husband will have the effect of a repudiation, though he did not use the word talak or any other expression with the intention of dissolving the marriage. This is when he swears that he will have nothing to do with his wife and in pursuance of such oaths abstains from her society for four months. The legal effect of such a conduct would be a single irrevocable divorce. This form of divorce is known as Ila. 5. The Shafis and the Shias hold that this does not result in talak, but merely gives the wife the right of judicial divorce. 6. If the husband resumes intercourse with his wife, or has retracted from it before the expiry of the period of four months, the ila does not take place and stands cancelled.

Answer 46

Zihar, on the other hand, is an inchoate divorce. In this "form, the husband expresses his dissatisfaction with his wife by comparing her with the back of his mother, or sister, or any other woman within the degrees of prohibited relationship. 2. In such a case the wife acquires a right to refuse cohabitation with her husband till he performs a penance. 3. If the husband refuses to perform the penance, the wife gets a right of judicial divorce. 4. Tyabji remarks that zihar has hardly any significance so far as the law courts in India are concerned;

Answer 47

Formalities of Talak 1. No school of the Sunnis prescribes any formalities for talak. 2. On the other hand, the Shias insist that divorce must be pronovmced orally and in the presence oftwo competent witnesses. 3. It is interesting to note that the Shias do not require the presence of witnesses for marriage, but insist on the presence of two competent witnesses for divorce, 4. while the Sunnis do not require any witnesses for divorce, though insist on the presence of two competent witnesses at the time of marriage. 5. The Sunnis permit divorce in writing, too, but the Shias insist that talak should be oral, unless the husband is physically incapable ofpronouncing it orally 6. The Supreme Court has held that talaq to be effective has to be pronounced. The term "pronounce" means to proclaim, to utter formally, to utter rhetorically, to declare to articulate. (Ghausibibi v Ghulam Dastgir) 7. When the words clearly denote talak, the intention of the husband is inconsequential.

Answer 48

1. If the words used in the pronouncement of talaq are not clear or are ambigious, then the proof of intention is necessary. 2. It is not necessary that the talaq should be pronounced in the presence of the wife; nor a notice of divorce is required. 3. But the wife must be named; if she is not named talaq will not be valid. 4. Since on talaq, the dower becomes payable and the wife has to undergo idda, the communication of talaq is necessary. (Fulchand v Nazib). 5. The period of limitation for the purpose of recovery of her deferred dower will start running only from the date when the communication of talaq reaches her.

Answer 49

1. Sunnis recognise written talaq which may be in two forms - manifest talaq, and unusual talaq. 2.

Answer 50

1. When the talaqnama (the writing of talaq is properly written so as to be legible and clearly indicating to whom and by whom it is addressed, it is in the customary form. This is known as manifest talaq. 2. It may be executed in the presence of the kazi, the wife's father, or any other relations or witnesses. 3. If the talaqnama is not subscribed in the aforesaid manner, it is called unusual talaq, and the intention to divorce has to be proved. 4. As has been state earlier, the Shias recognise written divorce only when the husband is physically incapable of pronouncing oral talaq.

Answer 51

1. All schools of the Sunnis and the Shias agree that every Muslim male of sound mind who has attained puberty, may pronounce divorce. 2. A minor has no capacity of pronouncing talak under any circumstances. It seems that under certain circumstances the guardian of the minor may pronounce talaq on his behalf. 3. a divorce pronounced under compulsion, or in a state of voluntary intoxication, or to satisfy or please one's father or some other person, or in jest, is valid.' It is necessary that at the time of pronouncement of of talaq the husband must be awake. 4. Ameer Ali observes that for the validity of a talak pronounced Under compulsion, three conditions are necessary ; (i) the compeller must be in a position to do what he threatens to, (ii) there is a strong possibility of threat being carried out, and (iii) the threat involves some imminent and serious danger to the man. **The Shia law does not recognize divorce pronounced under compulsion, nor obtained by fraud, or given under influence.** All schools of law agree that a talak pronounced by one who happens to be delirious, or in a faint, or a sleep, or unconscious, or lost in astonishment is invalid.

Answer 52

Where a Muslim husband gives talak to his wife who is willing to live with him, and has no intention to break that marriage, the husband is liable to return the articles received from the wife at the time of marriage. (Usuf v Hurbanu).

Answer 53

1. The Khul and Mubaraa are considered by many as species of divorce by mutual consent. 2.

Answer 54

1. In mubaraa or mubaraat, the aversion is mutual and proposal for divorce may emanate from either party it alone falls under the category of divorce by mutual consent. 2. The word, "mubaraa" denotes the act of freeing each other by mutual consent. 3. Among the Sunnis when the parties to marriage enter into a mubaraa, all mutual rights and obligations come to an end. 4. The Shia law is stringent. It requires that both the parties must bonafide find the marital relationship to be irksome. 5. Among bothe Shias and Sunnis, the Mubaraa is an irrevocable form of divorce.

Answer 55

1. Under the Muslim law in modern India, a muslim wife can seek divorce in the following three cases - 2. Talaq i tafweez - when the power of divorce has been delegated to her by the husband. 3. The khul or (Khula). 4. The judicial divorce.

Answer 56

1. The word khul or khula literally means "to put off. 2. When a man or woman puts off his garments it is said that he or she has khul them. 3. A divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage 4. when a wife desires a divorce, either on account of her aversion to her husband, or for any other reason, she may obtain a release from him by giving some consideration therefor which is usually her mahr. 5. A minor, or a person of unsound mind, has no capacity to enter into a khul.

Answer 57

1.The husband has no power of cancelling the khul on the ground that the consideration has not been paid. His remedy is to sue the wife for it. 2. The consideration for khul may be anything. Usually it is the mahr whole or part of it. 3. But it may be any other property, though it should not be illusory, i.e., something over which the woman has no right. 4. If compensation is illusory, the Sunni law takes the view that the husband is not bound to release the wife. 5. It is possible that the khul may be entered into on consideration to be determined later on. 6. In such a case, consideration cannot be more than the amount of mahr unless the wife agrees. It cannot also be less than the amount of mahr, unless the husband agrees.

Answer 58

Most of the textbook writers discuss khul under the title, "Divorce by mutual consent", but it is submitted, since in the khul the desire to separate emanates from the wife, and she has to make her husband agree to it by giving consideration, it would be proper to call it divorce at the instance of the wife.

Answer 59

1. 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. 2. 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. 3. 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. 4. After the allegation of adultery is levelled by the husband on the wife, the wife is called upon either to admit the truth of the imputation or to deny it on oath. 5. If the wife takes the oath, the Kazi must believe her, and pronounce a divorce. (K Mohd Latheef v Nishath, 2004). 6. In the Muslim law of modern India, the wife is entitled to sue for a dissolution of marriage on the ground that the husband has falsely charged her with adultery. 7. It should be noted that the charge of adultery by itself, does not lead to the dissolution of marriage; a decree of the court dissolving the marriage is necessary. 8. The court will pass a decree if the charge of adultery is false; no decree will be passed if the charge is proved to be true. (Zafar v Ummat -ur- Rahman (1919)).

Answer 60

1. Renunication of Islam or conversion of a Muslim to some other religion, is called apostasy from Islam. 2. Apostasy may be express or implied. When a Muslim says, "I renounce Islam", or "I do not believe in God and the Prophet Muhammad", the apostasy is express, when a Muslim uses grossly disrespectful language towards the prophet or the Koran the aspostasy is implied. 3. Formal conversion to another religion also amounts to apostasy. However, A mere declaration, such as 'I renounce Islam' is enough, no formal conversion is necessary. (Maomedali v Hazrabai, 1955).

Answer 61

After the coming into force of the Dissolution of Muslim Marriage Act, 1939, the position is as follows : 1. The apostasy of the husband still results in an instant dissolution of marriage. 2. If a Muslim wife who belonged to another faith before her marriage, reconverts to her original faith, or to some other faith, then also, it results in the instant dissolution of marriage. (2nd Proviso, S 4. Dissolution of MM act, 1939).

Answer 62

1. Whereabouts Unknown: If the husband’s whereabouts have been unknown for a continuous period of four years. 2. Failure to Provide Maintenance: If the husband has neglected or failed to provide maintenance for the wife for a period of two years. 3. Imprisonment: If the husband has been sentenced to imprisonment for seven years or more. 4. Failure to Fulfil Marital Obligations: If the husband has unjustifiably failed to perform his marital obligations for a period of three years. 5. Impotence: If the husband was impotent at the time of marriage and continues to be so. 6. Insanity or Venereal Disease: If the husband has been insane for two years or is suffering from a virulent venereal disease. 7. Child Marriage: If the woman was married before the age of fifteen and repudiates the marriage before reaching the age of eighteen, provided that the marriage has not been consummated. 8. Cruelty: If the husband treats the wife with cruelty, whether through physical or non-physical acts, such as habitual assault, causing extreme misery, associating with women of ill repute, attempting to force her into an immoral life, disposing of her property without permission, obstructing her religious practices, or unfair treatment if the husband has more than one wife. 9. Any Other Valid Ground: The woman can also seek divorce on any other ground recognized as valid for the dissolution of marriages under Muslim law.

Answer 63

1. Tyabji CJ, in Noerbibi v Pir Bux held that 'There is no merit in preserving intact the connection of marriage when the parties are not able to, and fail to live within the limits of Allah'. 2. , Krishna Iyer J. in Yousuf V. Soweamma remarked that he was impressed with the reasoning of Tyabji CJ as it accorded well with the Islamic texts and the ethos of the Muslim community, which together, served as a backdrop for the proper understanding of the provisions of the Dissolution of Muslim Marriage Act. 3. The learned judge also observed that in Islam "the sanctity of family life was recognized; so was the stubborn incompatibility between the spouses as a ground for divorce; for it is intolerable to imprison such a couple in a quarrelsome wedlock. 4. While there is no rose that hasn't a thorn, if what you hold is all thorn and no rose, better throw it away. 5. now we have the following two breakdown grounds of divorce : 6. (a) non-payment of maintenance by the husband, irrespective of the fact whether the failure has resulted on account of the conduct of the wife. (This is based on the interpretation of clause (ii) of S. 2, Dissolution of Mushm Marriage Act), and (b) When there is "total irreconciliability between the spouses". 7. These two breakdown grounds are availabe to wife alon, and not to the husband, as judicial divorce at the instance of the husband is still not recognised in Muslim Law of modern India.

Answer 64

1. Restitution of conjugal right is also known as the 'Right to stay together'. 2. The matrimonial remedy of restitution of conjugal rights was made available to all the communities, including the Muslims, at an early period of British rule in India. 2. The remedy is available in modern India by a suit of restitution of conjugal rights in the lowest civil court. 3. The remedy is available to both the parties. 4. According to Tyabji, 'Where either the husband or wife has, without lawful ground, withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights.

Answer 65

The wife can setup the following defences in a suit for restitution of conjugal rights - 1. Void or irregular marriage 2. Cruelty 3. That the husband made a false charge of adultery against the wife. Restitution will not, however, be refused if the charge is true. 4. Gross failure by the husband in the performing of the matrimonial obligations imposed upon him for the benefit of the wife. 5. That where the marriage has not been consumated or her prompt dower has not been paid, restitution of conjugal rights will be rejected. 6. When the suit for restitution of conjugal rights is not bona fide, and is filed to serve some ulterior motive, such as taking possession of wife's property, the restitution of conjugal rights cannot be decreed.

Answer 66

The wife can setup the following defences in a suit for restitution of conjugal rights - 1. That the marriage between the parties was not a valid marriage or is no longer binding. 2. The existence of a matrimonial relationship is an essential condition for a decree in the suit. 3. If the marriage is not valid, (i.e. either irregular or void) restitution will not be allowed. 4. So, also if subsequently, the marriage is terminated, for ex. by reason of the husband having become an apostate or by the exercise by the wife of the option, on attaining puberty, of repudiating her marriage or of a power to the wife of divorce, restitution will be refused.

Answer 67

1. It seems that not merely phsical cruelty but legal cruelty in its wider connotation including all instances of cruelty stated in S.2(vii) of Dis. of MM act. 2. That the husband was guilty of legal cruelty. For legal cruelty, 'there must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. 2. A simple chastisement on one or two occasions would not amount to cruelty. 3. The Mohammedan law on the question of what is legal cruelty between man and wife does not differ materially. 4. A good deal of ill treatment, even if it is short of cruelty, may amount to legal cruelty. 3. If the court is of opinion that by the return of the wife to the husband, her health and safety would be in danger. 4. If the husband keeps a concubine in the same house in which the wife lives, resulting in quareels between the two, it amounts to cruelty. 5. In Itwari v Asghari, one A took a 2nd wife, as a consquence of which his 1st wife refused to live with him. On A's petition for restitution of conjugal rights, the court held that the very act of taking a 2nd wife consitutes cruelty since Muslim law enforced in India considers 'polygamy as an institution to be tolerated but not encouraged'. 6. Also, the onus is on the husband to prove that taking of 2nd wife does not amount to cruelty or insult upon the 1st time and in the absence of it, the courts will presume that it amounts to cruelty.

Answer 68

1. That there was gross failure by the husband in the performing of the matrimonial obligations imposed upon him for the benefit of the wife. 2. Cruelty is not the sole defence. 3. The Mohammedan wife has got better rights than the English wife. 4. The Court may well admit defences founded on the violation of those rights. 5. Conduct falling for short of legal cruelty (e.g. charges of immorality and heaping of insults) may be a good defence to a suit by the husband. 6. In fact any reprehensible conduct on the part of the husband affords grounds for refusing to him the assistance of the Court. 7. Expulsion of the husband from caste has been held to be sufficient ground for refusing restitution of conjugal rights. 8. But the mere fact that the wife cannot get on with mother of the husband would not be sufficient ground.

Answer 69

1. In conclusion, we may quote the following observations of Vaidya J. of the Bombay High Court that remedy of restitution of conjugal rights - ordering an unwilling wife to go to her husband - 'Is a relic of ancient times when slavery or quasi - slavery was regarded as natural'. 2. This barbarous remedy should be sparingly awarded, 'particularly after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike.

Answer 70

1. A remarkable feature of Muslim matrimonial law is that it permits the spouses to enter into agreements, either at the time of marriage, or even thereafter. 2. These agreements, relate mainly to two aspects - 1. Regulation of matrimonial life and stipulation for dissolution of marriage on the happening of stipulated contingency. 3. It is obvious that only those agreements will be enforced which are not unlawful or contrary to public policy. 4. Ameer Ali holds the view that agreements stipulating for the following are enforceable ; (a) The husband will not contract a second marriage during the subsistence of the first. (b) The husband will not remove the wife from the conjugal domicile without her consent. (c) The husband will not absent himself from the conjugal domicile beyond a certain period. (d) The husband and wife will live in a specified place. (e) Certain amount of dower will be payable immediately after marriage or within a stated period. (f) The husband will pay to the wife a fixed sum for maintenance. , (g) The husband will maintain the children of the wife from her former husband. (h) The husband will not prevent her from receiving visits from her relations whenever she likes. It seems that reasonable conditions regarding the wife's right to reside at a stipulated place are enforceable. Agreements stipulating that certain amount will be paid periodically or in lump sum, either by way of maintenance or otherwise, to the wife after the marriage or on the happening of certain contingency, are valid and enforceable.

Answer 71

1. It should be noted that the breach of a valid condition in a kabin - nama does not necessarily confer a right of dissolving the marriage, unless there is an express stipulation to that effect. 2. If the husband commits a breach of the agreement, the consequences that are stipulated therein will ensue.

Answer 72

1. In Muslim law, a will is referred to as ‘Wasiyat’ and a document in which a person states his will is called a “Wasiyatnama”. 2. A will, also known as a Wasiyat, is a document written by the legator in favour of the legatee that takes effect after the legator’s death. 3. According to Muslim law, no one has the right to make a will for their entire property. 4. The purpose of this is to show respect for the prophet’s word in order to ensure the legal heirs’ shares.

Answer 73

Under Mohammedan Law, every will made by the testator must satisfy the following conditions which are stated as under: 1. The person by whom the will is made also known as the testator must be competent to make it. 2. The legatee, or person in whose favour the will is made, must be competent to accept the bequest. 3. The bequest subject must be lawful. 4. The bequest cannot exceed the testator’s powers, which is one-third of their estate.

Answer 74

1. Where a Muslim gets married under the Special Marriage Act, 1954, either to a Muslim or to a non-Muslim he along with his spouse and the children born of this marriage would no longer be governed by the Muslim law of succession but will be governed by the provisions of the Indian Succession Act, 1925. 2. The same consequences will follow, if two Muslims get married under Muslim law and subsequently get this marriage registered under the Special Marriage Act, 1954” 3. The primary difference between the rules governing the disposition of the property by a Will under Muslim law and under Indian Succession Act, 1925 is that under the former generally speaking a testator cannot make a will of more than one-third of his property but under the Indian Succession Act, 1925, a person can make a testamentary disposition of 100% of his property. 4. Secondly, under Muslims law, there are restrictions on the powers of a testator if he wants to make a bequest in favour of an heir, but under the Indian Succession Act, 1925, the testator has complete freedom to choose the beneficiaries under the Will. 5. He can bequeath the total property to an heir or to a stranger or for a religious or even a charitable purpose.”

Answer 75

“OBJECT OF A ‘WILL’ UNDER MUSLIM LAW 1. Law relating to Wills or testamentary disposition for Muslims is divine in nature ie regulated by the Quran and is supplemented by the traditions of the prophet. 2. There is a permissibility of making a Will to the extent of only one-third of the property. 3. The object of the Will is therefore twofold. 4. First, it prevents a person from interfering and defeating the claims of his lawful heirs. So the restriction ensures that at least two-thirds of the property must go by succession” 5. “ Secondly, by permitting the testator to bequeath one-third of his property, he is empowered to settle just claims of people, at his pleasure, who might not figure in the ‘heirs’ category” 6. “The Will to the extent of one-third can be made for a charitable, pious, or a religious purpose” 7. “The permissibility of bequests upto one-third is traced to a Hadis of the Prophet” 8.

Answer 76

1. “The permissibility of bequests upto one-third is traced to a Hadis of the Prophet” 2. “The incident is of the year of conquest of Mecca when he had become very ill and the Prophet had visited him to console him. He told the Prophet that by God’s grace he had enough property and had no heirs except a daughter and sought his advice on whether he could dispose of his total property under a Will. The Prophet replied in the negative. He was persistent and asked whether he could do so with respect to two-third, or even half of it, the prophet again replied in the negative, but when he said if he might leave one-third, by Will, the Prophet said yes, and cautioned, that he could leave one-third by a Will, and it was better that he left his heirs rich than in a state of poverty, which might oblige them to beg from others” 3. “The law therefore is that there should be minimum disturbance as far as the laws of inheritance are concerned, and if at all the testator wants to make a bequest, he should not exceed the one-third limit”

Answer 77

1. “The general rule that testamentary disposition should not exceed one-third of the property is primarily for the benefit of the heirs as is apparent from the Hadith” 2. “This rule has two exceptions. These exceptions however do not deviate from the basic principle behind the restriction. These exceptions are: 3. When the testator does not have any heir. An heirless person can make a full bequest of his full property. 4. Where the heirs themselves consent to the bequest in excess of one-third. As the chief objective of the restriction is to safeguard the interests of the heirs, if these heirs whose shares are likely to be adversely affected by the excess bequest themselves give them consent (that should be voluntarily given), the excess bequest will be validated.

Answer 78

1. “FORMALITIES FOR MAKING A WILL 1. There are no specific formalities for making a Will. 2. There is neither any format that is laid down, nor is there any requirement that it should be in writing. 3. A Will under Muslim law can even be oral. 4. If it is in writing it need not be signed. It does not require attestation, and if it is attested there is no need to get it registered.” 5. “Instructions of the testator written on a plain paper, or in the form of a letter, that in clear cut terms provide for distribution of his property after his death, would constitute a valid Will. 6. A will under Muslim law does not require a probate. When a will is reduced into writing, it is called a wasiyatnama. 7. “Will executed under Muslim law does not require a probate. Where the Will is reduced to writing it is called a ‘Wasiyatnama’. 8. Although no formalities are required to be complied with, a Will in order to be valid and effective must display a bona fide intention on part of the testator to bequeath his property.”

Answer 79

ORAL WILL 1. Under Muslim law, a Will can be in writing or even oral. 2. In case it is oral, the intention of the testator should be sufficiently ascertained, and in comparison to a Will in writing which is easier to prove, the burden to prove an oral Will is heavy. 3. The court may require the beneficiary to prove with utmost precision, the exact words of the testator, where and when they were declared, and whether from the contents, an intention to make a Will and the distribution effected, could be ascertained clearly. ”

Answer 80

“Sound Mind 1. A Muslim who is of unsound mind cannot execute a valid Will, and if he does execute a Will or declares a Will and subsequently is cured of insanity, the Will, would still be invalid. 2. A person of sound mind and a major, if makes a Will and subsequently becomes insane, the Will made by him would become invalid, provided the insanity is permanent”

Answer 81

1. The Hindu Succession Act came into force on 17 June, 1956, with the basic objective of providing a comprehensive and uniform scheme of intestate succession for Hindus. 2. Prior to the enactment of this Act, different religious communities were governed by different succession laws, and within the Hindu community itself, there was a wide divergence with respect to application of inheritance laws. There were three broad categories,- 1. MITAKSHARA school 2. Dayabhaga school 3. Matriarchal system in some parts 4. Adivasis adhering to their customs

Answer 82

1. During the British period, English judges amalgamated Anglo-Hindu law, which deviated from the original precepts, and substantially modified, applied to all Hindus and created an uncertainty and an unnecessary confusion. It necessitated the need for clarity and a codification of the law 2. “ The co-existence of textual Shastric rules, several legislations, innumerable customs and conflicting judicial precedents, presented a bewildering maze, necessitating clarity and certainty, that could be achieved only through codification” 3. “It was felt that piece meal legislations should be avoided and an entire Hindu code, acceptable to all Hindus, by blending the most progressive elements in the various schools of law, which prevailed in different parts of the country, should be framed as an integral whole”

Answer 83

1. “the Parliament retained the dual system of separate property and joint family property.” 2. The Act provides a detailed scheme of devolution of property by intestate succession for Hindus who are subject to the application of this Act. 3. It abolishes the distinct laws of succession under the Dayabhaga and Mitakshara systems and provides a uniform law, based on natural love and affection and nearness in relationship. “For the purposes of intestate succession, it is immaterial presently, as to which school of law the intestate was adhering to. 3. It abolished the concept of limited estate for Hindu women and replaced it with absolute ownership. The incapability of a Hindu woman to hold the property as a full owner, was removed completely and she acquired full powers of enjoyment, and disposal over her properties” 4. It provides for two separate schemes of succession for male and female intestates. In case of female intestates, there is a further divergence linked with the source of acquisition of the property that is the subject matter of succession 5. It alters the character of the property inherited by the son from his father, paternal grandfather and the paternal great grandfather and makes it separate property in his hands vis a vis his progeny. Under the classical law the property inherited by the son from the father or his two paternal ascendants was the ancestral property 6.It introduced daughters and her children in her absence as the primary heirs in preference to the male collaterals and made her marital status irrelevant for determining her rights of inheritance 7. Under the Act the eligibility to succeed was not merely consanguinity but affinity as well. 8. With respect to testamentary succession, it empowers a Hindu, male or female, to make a testamentary disposition of the totality of properties, in favour of any one 9. The disqualifications for inheritance, based on physical and mental diseases, disabilities and deformities, were removed. 10. In conformity with the principles laid down under the Caste Disabilities Removal Act, 1850, a conversion does not disqualify a person from inheriting the property of an intestate, but his descendants born after his conversion, are disqualified. 11. “On the grounds of public policy, the murderer of an intestate is disqualified from inheriting his property” 12. The widow of an intestate is now his primary heir, and her rights to succeed cannot be defeated on the grounds of her unchastity. As she is an absolute owner of the property, on the day of opening of the succession, her share vests in her, and she cannot subsequently be divested of her share in the property, even if she remarries. 13. With the provisions of a uniform scheme, the matrilineal system prevalent in some parts of southern India, has been substantially affected. Except for minor points, it has virtually been abolished. 14. It preferred full blood relations over the half blood relations if the relationship was same in every other respect and relegated those related through uterine blood to a very inferior position 15. The Act specifically protected the rights of posthumous children.

Answer 84

It is pertinent to note that the right by birth was an essential feature of only one out of the three major systems of inheritance, viz., the Mitakshara. The Dayabhaga and the matrilineal systems did not recognise the right by birth to sons”

Answer 85

1. Divorce by mutual consent - S. 13B of HMA, 1955. 2. Requirements for the same. 3. Address the time period of seperation. 4.

Answer 86

Maintenence Provisions under HAMA. S. 18

Answer 87

The obligation of the husband to maintain his wife and children does not arise out of any contract but out of the status of marriage, out of jural relationship of husband and wife created by marriage.

Answer 88

1. S 18(1) of HAMA provide that a Hindu wife shall be entitled to be maintained by her husband during her life time.

Answer 89

Section 18(2) of the Act makes it clear that Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance: 1. if he is guilty of desertion; 2. if he has treated her with cruelty; 3. if he is suffering from virulent form of leprosy; 4. if he has any other wife living; 5. if he keeps a concubine in the same house in which his wife is living or habitually resides with concubine elsewhere; 6. if he ceases to be Hindu by conversion to other religion; 7. if there is any other cause justifying her living separately.

Answer 90

1. According to section 20 of the Hindu Adoption and Maintenance Act 1956, a Hindu is bound during his or her life to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. 2. But a legitimate or illegitimate child can claim maintenance from his or her father or mother, so long as the child is a minor. 3. The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends in so far as the parents or unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Answer 91

The expression "maintenance" is defined in **sub-clause (b) of section 3 of the Hindu Adoption and Maintenance Act** to include provision for food, clothing, residence, education, medical attendance and treatment. The inclusive part of the definition relates to the basic requirements in life and neither of the parents is entitled to escape liability for maintenance of the child by raising a plea that the responsibility of maintenance has been taken over by the other.

Answer 92

1. As per the present Hindu Succession Act, the doctrine of survivorship has been abolished unconditionally. Now, if any male Hindu dies, having at the time of his death, an undivided interest in Mitakshara coparcenary, the rule of survivorship would not apply at all. 2. For example, a Hindu family comprises of a father F, and two sons S1 and S2, who form an undivided coparcenary. Each of them would have a one-third share in the joint family property. Then, S2 dies as a member of this undivided coparcenary. 3. Under the old law, on the death of S2, the surviving coparceners would have taken the share of S2 by survivorship and their share would have increased to a half each. Thus, both F and S1 would have been entitled to one half of the property on the death of S2. 4. After the amendment, and with the abolishing of doctrine of survivorship, the share of S2 would be calculated after affecting a notional partition, and that would come to one-third. 5. This one-third would not go by doctrine of survivorship and would go by testamentary or intestate succession as the case may be. 6. If there is no Will, then this one-third would go according to the Hindu Succession Act, as per which as between the father and the brother, the father will be preferred and the brother will be excluded from inheritance in his presence. Therefore, the father will get two-third of the total property and the brother would take one-third

Answer 93

Abolition of doctrine of survivorship in case of male coparceners 1. The Amending Act, by a specific provision, abolishes the incidents of survivorship—one of the primary incidents of coparcenary—when a male coparcener dies. 2. “Section 6(3) states: Section 6 (3).— where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place. 3. Thus, the traditional concept of coparcenary, where coparcenary property was held with incidents of survivorship, stands abolished expressly by the legislature.”

Answer 94

1. Abolition of doctrine of survivorship 2. Introduction of daughters as coparceners. 3. Retention of the concept of notional partition but modifies it's application. 4. Abolition of pious obligation of son to pay the debts of father. 5. De- Recognition of oral partition 6. Abolition of special rules relating to dwelling house. 7. Eligibilitiy of female coparcencers to make a testamentary disposition

Answer 95

1. One of the major changes brought in by the amendment is that in a Hindu joint family, the right by birth in the coparcenary has been conferred in favour of a daughter as well. 2. This radical change has fundamentally altered the character of a Mitakshara coparcenary. 3. According to s. 6: in a joint family governed by the Mitakshara Law, the daughter of a coparcener shall— 4. by birth become a coparcener in her own right in the same manner as the son 5. have the same rights in the coparcenary property as she would have had if she had been a son 6. be subject to the same liabilities in respect of the said property as that of a son. 7. any any reference to a Hindu Mitakshara Coparcencer shall be deemed to include a reference to a daughter of a coparcencer.

Answer 96

1. According to this provision, the discrimination against daughter has been brought to an end, as her rights and liabilities are the same as that of a son. 2. This also means that a daughter is now capable of acquiring an interest in the coparcenary property, demand a partition of the same, and dispose it of through a testamentary disposition. 3. Further, daughters would not only be empowered to form a coparcenary along with their other siblings (irrespective of gender), but would also be competent to start a joint family herself. 4. She can even be a karta, throw her self-acquired earnings into the joint family (hotchpotch) fund, something that was not possible before the amendment. 5. In other words, all the prerogatives and uniqueness of a son's position in the family is available to a daughter as well.

Answer 97

1. Section 6(2) makes it very clear that a female Hindu would be entitled to hold property with the incidents of coparcenary ownership. 2. Therefore, a distinction has been created between female members of joint family in relation to their rights over the joint family property. 3. The two classes of females are one, who are born in the family and secondly, those who become members of this joint family by marriage to the coparceners. 4. Females, who are born in the family i.e., daughters, sisters posses a right by birth in the coparcenary property and those who become members of the joint family by marriage to a coparcener, are subject to the same law as it stood before the amendment. 5. Their rights over the joint family property continue to be the same, like maintenance out of its funds, a right of residence in the family house, etc. 6. One has to understand that under the Hindu Succession Act, 1956, two categories of relatives are recognised as heirs to the intestate. One, who were related to the deceased through blood and second who were related to the deceased through marriage, i.e., who entered the family of the deceased through marriage to the male members. The disqualification of remarriage is attached to those heirs who entered the family by marriage, became widows on the death of the respective male members to whom they were married, and went out of the family again by a remarriage. Marriage or remarriage of blood relatives such as daughters, sisters, mother is of no consequence, but remarriage of son’s widow, son’s son’s widow, or brother’s widow would mean that they cease to be members of the intestate’s family, and their inheritance rights would be created in the family they are married into. After remarriage, they would be related to the intestate neither as blood relatives nor by marriage and therefore would not be eligible to be his heirs at all.

Answer 98

1. as the legislature provides that a daughter's coparcenary rights were identical to that of sons, their future marital status does not divest them of coparcenary rights. 2. Under the present amendment, a daughter of a coparcener is included as a coparcener herself without any reference or limitation with respect to her marital status. 3. Therefore, after 9th September, 2005, a daughter who was married even before this date, would be a coparcener. 4. It is interesting to note that the married daughter may have ceased to be a member of the joint family of her father after marriage, but would nevertheless be a member of coparcenary, with an entitlement to seek partition of the joint family property in her own right. 5. If she dies without seeking partition, a notional partition would be effected to ascertain her share which would go to her heirs. Therefore, not only the unmarried daughters, but daughters in general, are benefited by this amendment. 6. In order to avoid confusion and give meaning to this provision, the partitions and alienation effected prior to 20 December, 2004, have been expressly saved.

Answer 99

1. According to S. 6(2) of HSA, a female would hold the property with incidents of coparcenary ownership and the property shall be regarded as capable of being disposed of by her by testamentary disposition.

Answer 100

1. Prior to this amendment, notional partition was effected only if the undivided male coparcener had died leaving behind any of the eight class I female heirs or the son of a predeceased daughter. 2. The present amendment makes application of notional partition in all cases of intestacies. 3. Refer to Section 6(3) HSA.

Answer 101

Section 6(3).— Where a Hindu dies after the commencement of the Hindu Succession Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. **From the language of the section, two things are clear. First, the doctrine of survivorship stands abolished in case of male coparceners, and secondly, in all cases where a Hindu male dies, his interest in the Mitakshara coparcenary would be ascertained with the help of a deemed partition or a notional partition**

Answer 102

1. One of the features of classical Hindu Law that imposed upon a son, grandson or greatgrandson the liability to pay their father's debts, has been abrogated by the 2005 amendment. 2. The emphasis to pay the fathers' debts was so strong that if the son had to pay his and his father's debts, it was provided that he should pay his fathers's debts first, to free him from leading a life of bondage in the next life. 3. However, the debts contracted before the enforcement of the amendment are subject to the rules of classical Hindu law. 4. **Refer to S. 6(4) of HSA.**

Answer 103

After the commencement of the Hindu Succession (Amendment) Act, 2005, **no court shall recognise any right to proceed against a son, grandson or great grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligations under the Hindu law of such son, grandson or great-grandson to discharge any such debt**: Provided that **in case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub section shall affect**— (a) the right of any creditor to proceed against the son, grandson or great grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of any such debts and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation —For the purposes of clause (a), the expression son, grandson or great-grandson, shall be deemed to refer to the son, grandson or great-grandson as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

Answer 104

The amending Act clearly says that the term ‘partition’ used in this whole section means a partition that is in writing and duly registered or the one that is affected by a decree of court. The Act provides: Explanation —For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908, or partition affected by a decree of a court. Under TOPA - partition does not amount to a transfer of property within the eaning of s. 5,Transfer of Property Act, 1882, it is not required to comply with the primary formalities of transfer of property, i.e., writing, attestation and registration

Answer 105

1. Earlier, under this section, the right of female class I heirs was limited to a right of resident in the dwelling house. 2. Their ownership did not vest in them a right to have the house partitioned and pecifying of their shares, till the male heirs chose to destruct their joint status themselves. 3. This was a major setback on the inheritance rights of women, as iscrimination was visible not only on rounds of sex alone, but also on the marital status of daughters. 4. This provision has now been deleted and the rights of all class I heirs on any kind of property is at par with each other. 5. Daughters are eligible to inherit and enjoy the property of the father or the mother in the same manner as the son. 6. Further, irrespective of the nature of the property, whether it is a house, cash, jewelry, shares or stocks or commercial ventures, females not only have an equal share, but they can seek its partition and enjoy it without any impediment.

Answer 106

After the amendment, a female coparcencer is empowered to dispose of her undivided share in the Mitakshara coparcenary through a will. The Hindu Succession act, 1956, for the first time provided competency to an undivived coparcencer to make a valid bequest of his share in Mitakshara coparcenary and the present act extends this competency to a female coparcencer as well.

Answer 107

1. In India, a person cannot be without a religion and if a person renounces his religion, but does not embrace a new one, his former religion will still be appended to him. 2. The twin-fold requirement for a conversion, therefore, is, a renunciation of the former religion and an embracing of another religion. Mere renunciation is not enough.

Answer 108

for deciding the application of the Act over Hindus, four factors must be considered: 1. that the deceased was a Hindu; 2. that though he was not a Hindu, he was also not a Muslim, Christian, Parsi or Jew, unless it can be shown that Hindu law cannot be applied to him; 3. that he is a Hindu and with his conduct, he has not ousted the application of Hindu law; and 4. that even though he is a Hindu, he may not be subject to the provisions of the Hindu Succession Act due to the application of some other law, owing to his domicile or even the form of his marriage.

Answer 109

The Act gives four yardsticks to determine who a Hindu is, viz., if the person is the child of Hindu parents or of only one Hindu parent or he is a convert or a reconvert to the Hindu faith”

Answer 110

1. Where Both the Parents are Hindus : Where both the parents profess the same religion, the time for the determination of the religion of the child is the time of its birth. The child will take the religion of the parents and will have the same religion till the attainment of majority. It is the time of the birth and not the time of the conception, that will be decisive. 2. Where only One Parent is a Hindu : Where only one parent is a Hindu, the time for the determination of the religion of the child is not the time of the birth, but a later time, linked to the way he is brought up. Where the child is brought up as a member of his Hindu parent’s tribe or community, the child would be a Hindu

Answer 111

The determination of religion is dependent on two factors, whether the child is legitimate or illegitimate, viz.: 1. one of the parents (not merely the mother) is a Hindu; and 2. the child is being brought up as a part of the Hindu parent’s tribe or community” 1. In India, a person cannot be without a religion and if a person renounces his religion, but does not embrace a new one, his former religion will still be appended to him. 2. Even a solemn declaration in a court of law, that he is not a Hindu, would not be material till he can show that he has converted to another religion. 3. The twin-fold requirement for a conversion, therefore, is, a renunciation of the former religion and an embracing of another religion. Mere renunciation is not enough.

Answer 112

Key provisions relating to maintenance of a divorced woman may be summarized as follows - 1. The divorced woman is entitled to a reasonable and fair provision and maintenance during the Iddat period from her husband. (S 3(1)(a)). 2. Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a periof of two years from the respective dates of birth of such children (S. 3(1)(b)). 3. When a divorced woman has not remarried and is not able to maintain herself after the iddat period, she is entitled to get maintenance from her such relatives who would inherit her properties upon her death. (S. 4(1)). 4. Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or such relatives or any one of them have not enough means to pay the maintenance, the liability to maintain her is upon the Waqf Board of the State in which she resides. (S. 4(2)).

Answer 113

A Constitution Bench of Apex court in Danial Latifi v UOI, the Supreme Court after discussing all the provisions of Act of 1986, summed up their conclusion as - 1. A Muslim husband is liable to make a reasonable and fair provision for the future of the divorce wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of S. 3(i)(a) of the act. 2. Liability of the Muslim husband to his divorced arising under S. 3(i)(a) of the Act to pay maintenance is not confined to the iddat period. 3. A divorced Muslim woman who is not remarried and who is not able to maintain herself after the iddat period can proceed as provided under S. 4 of the Act against her relative who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents. 4. If any of her relative being unable to pay maintenance, the Magistrate may direct the State waqf Board established under the Act to pay maintenance.

Answer 114

'Hiba' under Muslim law means transfer of property made immediately without any consideration. During the lifetime a Mohammedan can make gift of all or any part of his property. Word 'Hiba' literally means the donation of a thing from which donee may derive benefits. Every Muslim of sound mind and who has attained majority can make gift. However, under Muslim law, for the validity of gift following essential conditions must be fulfilled:- 1. There must be clear, unambigious and specific declaration of gift by Donor to Donee. 2. There must be acceptance of gift expressly or impliedly by or on behalf of donee. 3. There must be delivery of possession of subject of the gift by donor to donee.

Answer 115

1. Marriage among Hindus is a sacramental tie between a man and a woman. A sacramental marriage is considered to be a holy union between a man and a woman for the performance of religious and spiritual duties. However, marriage under Muslim law is not essentially a sacrament but is a civil contract. 2. Muslim marriage being a civil contract involves essential requirement of proposal made by one and accetance of proposal by other party (Ijab-o-Qabool) at one meeting in the presence of two male or or one male and two females. 3. It is also necessary that parties contracting a marriage must be acting under their free consent. 4. Parties to marriage must have capacity of entering into contract. In other words, they must be competent to marry. 5. Every Muslim who is of sound mind and who has attained puberty may enter into contract of marriage. 6. Thirdly, there should be no legal disability to enter into contract of marriage. 7. Fourthly - Mehr or dower is settled by husband upon his wife in consideration of the marriage. He may settle any amount he likes but the same cannot be less than 10 dirhams. Wife is entitled to claim prompt dower on demand at the time of marriage. However, deferred dower is payable on dissolution of marriage by divorce or death. 8. Fifthly = Under Mohammedan Law, marriage is not permanent tie and any Muslim of sound mind who has attained puberty may divorce his wife whenever his wife desires without assigning any reason or cause.

Answer 116

1. The marriage in Muslim law is a civil contract. Therefore, competency of the parties to marriage with regard to their age is one of the essential requirements. 2. However, in case of a minor, the consent of marriage of a girl or a boy can be given by respective guardian on their behalf. 3. It however, does not mean that contract of marriage entered into by guardian of a minor on his or her behalf will finally be imposed on such minor throughout his or her life. 4. Muslim law gives power to minor to repudiate or continue his or her marriage if he or she so likes after attaining the age of majority. 5. Such right is called '**The option of Puberty' (Kltyar-ulBulagft)**. Thus 'option of puberty' is the right to a minor boy or a girl whose marriage has been contracted through guardian, to repudiate or confirm the marriage on attaining puberty. The above said disability in old law has been removed by section 2(7) of Dissolution of Muslim Marriage Act, 1939 which provides as under:- "A woman married under Muslim law shall be entitled to obtain decree of divorce on the 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."

Answer 117

Legal disability means the existence of certain circumstances under which marriage is not permitted. These disabilities have been classified into following three heads: 1. Absolute incapacity, which arises from - consanguinity, affinity and fosterage. 2. Relative incapacity which arises from cases which render the marriage invalid so long as the cause, which creates the bar, exists and the moment it is removed the incapacity ends and the marriage becomes valid. Unlawful conjunction, fact of marrying fifth time, absence of proper witness, difference of religion and marrying with woman undergoing iddat are all cases of relative incapacity. 3. Prohibitory incapacity arises when Muslim woman have more than one husband and when Muslim woman marries non- Muslim.