Muslim Personal Law
Q.1 What are different modes of pronouncement of Talaq? discuss. (2001)
Q. What are different modes of Talaq. (2002)
Q. Define Divorce what are different modes of dissolution of marriage. (2004)(2005)
Q. What are different modes of "Talaq" and consequences. (2006/A)
Q. What are different modes of Talaq. (2002)
Q. Define Divorce what are different modes of dissolution of marriage. (2004)(2005)
Q. What are different modes of "Talaq" and consequences. (2006/A)
1. Introduction:
Divorce is one of the mode of dissolution of the marriage tie of the husband and wife. it is the right of the husband and the wife. it is the right of the husband to dissolve the marriage. divorce is a vexed question in Islamic law. Talaq or divorce is regarded by Holy Prophet (P. B. U. H) to be the most detestable before Allah of all the permitted things for it prevents conjugal happiness and proper up bringing of children.
2. Meaning:
Divorce means dissuasion or rejection.
3. Definition:
I. General definition:
It is the exercise of absolute power of pronouncing unilateral divorce of the husband. when its proceeds from the husband it is called Talaq.
4. Forms of Divorce:
Under Hanfis: Under Hanfis Talaq may be either oral or written.
Under Shia: Oral pronouncement must be coupled with two male witnesses.
5. Capacity for Divorce:
A Muslim of sound mind, who has attained puberty may dissolved his marriage.
6. Who can not pronounce Divorce:
Following persons can not declare or pronounce Talaq.
(i) A minor (ii) Unsound person.
7. Nature:
A Muslim husband has right to pronounce Talaq without any cause.
8. Divorce under compulsion:
Under Sunni law:
if Divorce is pronounced under compulsion it is valid.
Under Shia law:
The Shia law does not recognize Talaq pronounce under compulsion or intoxication.
9. Ways of Divorce:
Following are the ways of divorce.
(i) By the husband at his will without the intervention of a court.
(ii) By the mutual consent of the husband and the wife without intervention of the court.
(iii) By the court.
10. Modes of dissolution of marriage:
Following are the different modes of the dissolution of the marriage.
(i) Apostasy (ii) Death of either party.
(iii) Divorce.
(iv) Option of repudiation or puberty.
(v) Cancellation of an irregular marriage.
(v) Cancellation of an irregular marriage.
11. Different kinds of Divorce:
I. Talaq-E-Ahsa:
It consist of a single pronouncement of divorce. it is irrevocable even after the expiration of period of Iddat.
II. Talaq-E-Hasan:
It is effected when the husband repudiates his wife during a Tuhr in which he has not had carnal connection with her, and he repeats the repudiation during the next two Tuhrs. so makes the divorce final and irrevocable.
III. Talaq-Ul-Biddat:
It consist of
(a) Three pronouncement during a single. Tuhr either in one sentence.
(b) A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage.
It becomes irrevocable immediately it is pronounced irrespective of Iddat.
IV.Ila: If a husband, having attained puberty, Sweras by God not to have Sexual intercourse with his wife for a period of four months or more or for unspecified period. he is to make Ila.
V. Zihra: If husband compares his wife to his mother or any other female with in prohibited degree, the wife has right to refuse- to him until he has performed penance. in default the wife has to right to apply for inudicial divorce.
VI. Khula: Khula is separation by putting an end to martrimonial bond and rights. it is that kind of divorce in which the wife agrees to give a consideration to the husband from her release of the marriage tie.
VII. Mubara'at: A Mubara'at is a dissolution of the marriage by the agreement. there is mutual desire for separation of the spouses in this kinds of divorce. the offer in a mubara'at divorce may proceeds from the husband or the wife.
VIII. Lian: The wife is entitled for divorce if her husband has falsely charged her with adultery. if the charge is proved to be false, the marriage will be dissolved.
Appeal: No appeal can be filed against the decree of the court on this ground i. e. lian.
IX. Divorce in absence: Divorce can be pronounced in the absence of the wife. it is essential that husband should pronounce the name of wife. such divorce is valid and called divorce in absence.
X. Contingent divorce: Divorce may be pronounced so as to take effect on the happening of a future event. such divorce is called contingent.
12. Legal consequences:
Legal consequence of the divorce are as under:
(i) Sexual intercourse becomes unlawful.
(ii) Iddat becomes incumbent.
(iii) Remarriage between the same parties become impossible until the wife lawfully marry another person and lawfully divorced by him after theconsummation of the marriage.
(iv) Dower become immediately payable.
(v) Right to contract another marriage.
(vi) Mutual right of inheritance cease.
13. Conclusion:
the divorce is the a mode of dissolution of the marriage. a husband can divorce her wife without assigning any reason. it is an extra judicial power of the husband to dissolve the marriage.
I. Talaq-E-Ahsa:
It consist of a single pronouncement of divorce. it is irrevocable even after the expiration of period of Iddat.
II. Talaq-E-Hasan:
It is effected when the husband repudiates his wife during a Tuhr in which he has not had carnal connection with her, and he repeats the repudiation during the next two Tuhrs. so makes the divorce final and irrevocable.
III. Talaq-Ul-Biddat:
It consist of
(a) Three pronouncement during a single. Tuhr either in one sentence.
(b) A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage.
It becomes irrevocable immediately it is pronounced irrespective of Iddat.
IV.Ila: If a husband, having attained puberty, Sweras by God not to have Sexual intercourse with his wife for a period of four months or more or for unspecified period. he is to make Ila.
V. Zihra: If husband compares his wife to his mother or any other female with in prohibited degree, the wife has right to refuse- to him until he has performed penance. in default the wife has to right to apply for inudicial divorce.
VI. Khula: Khula is separation by putting an end to martrimonial bond and rights. it is that kind of divorce in which the wife agrees to give a consideration to the husband from her release of the marriage tie.
VII. Mubara'at: A Mubara'at is a dissolution of the marriage by the agreement. there is mutual desire for separation of the spouses in this kinds of divorce. the offer in a mubara'at divorce may proceeds from the husband or the wife.
VIII. Lian: The wife is entitled for divorce if her husband has falsely charged her with adultery. if the charge is proved to be false, the marriage will be dissolved.
Appeal: No appeal can be filed against the decree of the court on this ground i. e. lian.
IX. Divorce in absence: Divorce can be pronounced in the absence of the wife. it is essential that husband should pronounce the name of wife. such divorce is valid and called divorce in absence.
X. Contingent divorce: Divorce may be pronounced so as to take effect on the happening of a future event. such divorce is called contingent.
12. Legal consequences:
Legal consequence of the divorce are as under:
(i) Sexual intercourse becomes unlawful.
(ii) Iddat becomes incumbent.
(iii) Remarriage between the same parties become impossible until the wife lawfully marry another person and lawfully divorced by him after theconsummation of the marriage.
(iv) Dower become immediately payable.
(v) Right to contract another marriage.
(vi) Mutual right of inheritance cease.
13. Conclusion:
the divorce is the a mode of dissolution of the marriage. a husband can divorce her wife without assigning any reason. it is an extra judicial power of the husband to dissolve the marriage.
Q.2 Define Waqf and discuss its essential. what are the valid objects of a Waqf. (1998)
1. Introduction:
Waqf is an important social institution of Islam. it is a permanent dedication by a Muslim of some specific property for religious and pious purpose. every Muslim of sound mind may dedicate his property by way of waqf. it may be made verbally or in writing.
2. Meaning:
Literal means tying up or detention.
3. Definition:
Waqf act 1954
"According to Sec. 3(i) waqf means the permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable."
4. Kinds of waqf:
(a) Private waqf: It is waqf which is made for private individual.
(b) Public waqf: It is dedicated to the public at large. it is made purely for some religious or pious purpose.
(c) Quasi waqf: It is partly public and partly private.
5. Requisites of a valid waqf:
Following are the requisites of a valid waqf
I. Permanent:
The dedication must be permanent. a waqf which is made for a limited period is not valid.
II. Irrevocable:
Once a valid waqf is made, it cannot be revoked.
III. Unconditional:
If there is a condition for making waqf it will be invalid. the waqf should be unconditional.
IV. Inalienable:
Waqf should be inalienable.
V. Certainty:
Waqf property should be certain. if the object are uncertain the waqf will be void.
VI. Registration:
A waqfnama by which immoveable property of the value of Rs. 100/= or above requres to be registered under the registration act.
6. Primary rules relating to waqf:
Following are the primary rules relating to waqf.
(i) The subject of the waqf should be dedicated perpetuity.
(ii) All human rights should be diversted there from.
(iii) It should be made non heritable and inalienable.
7. Form of Waqf:
Following may be the form of waqf:
(i) Verbal (ii) Oral
8. Contingent Waqf:
There should be no element of contingency in waqf. it is essential to the validity of a waqf that the appropriation should not be made to depend on contingency.
9. Subject of waqf:
Any immovable or moveable, dividable or individable property having certainty of which the waqf is the owner may be the subject matter of the waqf. a Musha may be the subject of waqf, except waqf for mosque.
10. Valid object of waqf:
(i) Mosques and for imman to conduct worship there in.
(ii) The distribution of alms to poor.
(iii) Grant to takia.
(iv) Observance of the anniversaries of the waqf and member of his family involving as it does the feeding of the poors.
(v) Prayer ground.
(vi) Dargahs.
(vii) Hospitals and dispensaries.
(viii) Construction of free boarding house.
(ix) Eidgah
(x) Reading of Holy Quran in public.
(xi) For making and keeping of Tazias.
(xii) Celebrating the birth the Hazrat Ali Murtaza.
11. Conditions:
(i) The subject of waqf must belong to waqf.
(ii) The objects of a waqf must be indicated with certainty.
(iii) Declaration must be permanent.
(iv) Delivery of possession must be there.
12. Revocations of waqf:
In case of testamentary waqf:
A testamentary waqf time of creating a non-testamentary waqf, the waqif reserves to himself the power of revoking the waqf, the waqf will be invalid.
In case of non-testamentary waqf:
Where at the time of creating a non-testamentary waqf, the waqif reserved to himself the power of revoking the waqf, the waqf will be invalid.
13. Waqf during marzul-maut:
A waqf made by will or during marzul maut can not operate upon more than one third of the net assets without the consent of heirs.
14. Conclusion:
The creation of waqf represents dedication of some property, according to Muslim legal principles meant it in the a way of God. the declaration must be premanent mature. the objects of waqf must be definite.
1. Introduction:
Waqf is an important social institution of Islam. it is a permanent dedication by a Muslim of some specific property for religious and pious purpose. every Muslim of sound mind may dedicate his property by way of waqf. it may be made verbally or in writing.
2. Meaning:
Literal means tying up or detention.
3. Definition:
Waqf act 1954
"According to Sec. 3(i) waqf means the permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable."
4. Kinds of waqf:
(a) Private waqf: It is waqf which is made for private individual.
(b) Public waqf: It is dedicated to the public at large. it is made purely for some religious or pious purpose.
(c) Quasi waqf: It is partly public and partly private.
5. Requisites of a valid waqf:
Following are the requisites of a valid waqf
I. Permanent:
The dedication must be permanent. a waqf which is made for a limited period is not valid.
II. Irrevocable:
Once a valid waqf is made, it cannot be revoked.
III. Unconditional:
If there is a condition for making waqf it will be invalid. the waqf should be unconditional.
IV. Inalienable:
Waqf should be inalienable.
V. Certainty:
Waqf property should be certain. if the object are uncertain the waqf will be void.
VI. Registration:
A waqfnama by which immoveable property of the value of Rs. 100/= or above requres to be registered under the registration act.
6. Primary rules relating to waqf:
Following are the primary rules relating to waqf.
(i) The subject of the waqf should be dedicated perpetuity.
(ii) All human rights should be diversted there from.
(iii) It should be made non heritable and inalienable.
7. Form of Waqf:
Following may be the form of waqf:
(i) Verbal (ii) Oral
8. Contingent Waqf:
There should be no element of contingency in waqf. it is essential to the validity of a waqf that the appropriation should not be made to depend on contingency.
9. Subject of waqf:
Any immovable or moveable, dividable or individable property having certainty of which the waqf is the owner may be the subject matter of the waqf. a Musha may be the subject of waqf, except waqf for mosque.
10. Valid object of waqf:
(i) Mosques and for imman to conduct worship there in.
(ii) The distribution of alms to poor.
(iii) Grant to takia.
(iv) Observance of the anniversaries of the waqf and member of his family involving as it does the feeding of the poors.
(v) Prayer ground.
(vi) Dargahs.
(vii) Hospitals and dispensaries.
(viii) Construction of free boarding house.
(ix) Eidgah
(x) Reading of Holy Quran in public.
(xi) For making and keeping of Tazias.
(xii) Celebrating the birth the Hazrat Ali Murtaza.
11. Conditions:
(i) The subject of waqf must belong to waqf.
(ii) The objects of a waqf must be indicated with certainty.
(iii) Declaration must be permanent.
(iv) Delivery of possession must be there.
12. Revocations of waqf:
In case of testamentary waqf:
A testamentary waqf time of creating a non-testamentary waqf, the waqif reserves to himself the power of revoking the waqf, the waqf will be invalid.
In case of non-testamentary waqf:
Where at the time of creating a non-testamentary waqf, the waqif reserved to himself the power of revoking the waqf, the waqf will be invalid.
13. Waqf during marzul-maut:
A waqf made by will or during marzul maut can not operate upon more than one third of the net assets without the consent of heirs.
14. Conclusion:
The creation of waqf represents dedication of some property, according to Muslim legal principles meant it in the a way of God. the declaration must be premanent mature. the objects of waqf must be definite.
Q.3 Define marriage. discuss legal effects of valid, and irregular marriage. (2002)
Q. What is marriage? what do you understand by valid, irregular and void marriages? (1999)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlock, the mutual relation of the husband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
4. Proof of marriage:
Marriage can be proved by two modes.
(i) By the direct evidence of the witnesses.
(ii) By the written document i. e. documentary evidence.
5. Presumption of marriage:
If there is no direct evidence or documentary evidence such case prolonged and continues living together as husband and wife shall be presumed as marriage.
6. Classification of marriage:
Classification of marriage is as under.
(a) Valid. (b) void. (c) Irregular.
(a) Valid: A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void: A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and absolute. so it is no marriage at all.
Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular: An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular marriage irregularity arises from an accidental circumstances.
Legal effect of valid marriage:
Following are the legal effects of valid marriage.
(a) Lawful sexual intercourse: The sexual inter course becomes lawful.
(b) Mutual rights of inheritance: Mutual rights of inheritance are established.
(c) Legitimacy of child: The children born out of the wedlock are legitimate.
(d) Right of maintenance: The wife becomes entitled for maintenance.
(e) Right of dower: The wife becomes entitled to dower.
(f) No right of interest in property: Neither of the spouse acquire any interest in property of the other by reason of marriage.
(g) Observation of iddat: The wife has to observe the iddat in case of death of her husband or in case of divorce.
(h) Rules of affinity: The rules of affinity come into operation in case of valid marriage.
(I) Examples:
(i) A marriage without withnesses.
(ii) A marriage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
(II) Legal effects of void marriage:
Follwoing are the legal effects of void marriage.
(a) No rights and obligation: The void marriage creates no right and obligation upon any party.
(b) Illegitimate childern: The childern born out of such marriage are illegitimate.
(c) No rights to inheritance: The death of one them dose not entitle the other to inherit form the deceased.
(III) Legal effect of irregular marriage:
(i) Legal effect where consummation has not taken place:
The irregular marriage has not legal effect if consummation has not taken place.
(ii) Legal effect if consummation has taken place:
If consummation has taken place the irregular marriage has following legal effects.
(a) Legitimacy of children: The children born out of such marriage are legitimate.
(b) Right of dower:The wife is entitled of dower.
(c) Observation of iddat: The wife has to observe the period of iddat.
(d) Right of inheritance: No right of inheritance is created the husband and wife.
(f) Right of issues: The issues are entitled to share the inheritance.
7. Conclusion:
The legal effects of three kinds of marriages are different in nature. a void marriage being illegal is null and void abinitio. an irregular marriage is not unlawful in it self but it has no any legal effect before consummation.
Q.4 Define marriage (Nikah) what are its essentials. (2005)
Q. Define marriage. what are the essentials of a valid marriage according to Islamic law? (2003)
Q. Define marriage? explain the essential conditions of a lawful marriage. (2000)(2001)(2006/A)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlocks, the mutual relation of thehusband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
4. Objects of marriage:
Following are objects of a marriage.
(i) Legalization of sexual inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.
5. Nature:
Muhammedan marriage is purely contractual. it is considered a religious duty. it is an act of Ibadat which is called Sunnat-Muwa-Kkidah.
6. Capacity for marriage:
(i) Every Muslim of sound mined, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if the is brought about without his consent.
7. Essentials of marriage:
Following are the essentials of a marriage.
I. Offer (Ijab) There are must be offer by one party. it is also called Ijab.
II. Acceptance (Qubul) The offer so made should be accepted by or behalf of the other party. it is called Qubul.
III. Offer and acceptance must be in the same meeting:
The offer and acceptance must both be made at the same meeting. an offer made at another meeting do not constitute a valid marriage.
IV. Freedom: The parties contracting marriage should be free persons. marriage with a slave girl is permitted.
V. Consideration: There must be some consideration in marriage which is fixed amount dower by the parties of marriage. A marriage without dower is void.
VI. Majority: The parties contracting marriage should be major. the majority act does not apply on marriage, divorce, maintenances cases. majority means age of puberty.
VII. Persons of opposite sex: Marriage is a contract between two persons of opposite sex. there is no concept of marriage of same sex in Islamic personal law.
VIII. Witnesses
(a) In case of Suni marriage: Either two male or one male and two female witnesses.
(b) In case of Shia marriage: No witnesses is necessary.
Qualification of witnesses:
The witness should be
(i) Adult (ii) Sane
IX. Free consent: Marriage is only valid under free consent. no person can be compelled by guardian to marry.
8. Legal effects of a valid marriage:
Following are the legal effects of a valid marriage.
(i) Sexual intercourse becomes lawful.
(ii) Issues born out are legitimate.
(iii) The wife becomes entitled to dower
(iv) The wife becomes entitled of maintenance.
(v) The husband can restrain the movements of wife in reasonable manner.
(vi) The wife has to go under period of Iddat in case of.
(a) death of her husband
(b) on the dissolution or divorce of marriage.
(vii) Rules of Affinity come into operation.
(viii) Mutual rights of ingeritance are established.
(ix) A woman does not change her status.
9. Number of Wives:
A Muslim husband may have as may as four wives at the same time, but not more. if he marries a fifth wife when he has already four, such marriage would be irregular.
10. Conclusion:
Marriage is not a sacrament but a civil contract between two persons of opposite sex. every Muslim of sound mind and has attained the age of puberty, may enter into contract of marriage. the main essentials of marriage are proposal, acceptance, witnesses, free consent and consideration which is called dower.
Q.5 Define 'marriage'. what is the difference between irrgular and void marriages. (1998)(2001)
Q. Define marriage? what do you understand by valid, irregular and void marriage. (2006/S)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
4. Classification of marriage:
Classification of marriage is as under.
(a) Valid. (b) void. (c) Irregular.
(a) Valid: A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void: A void marriage is one which is unlawful in itself the prohibition against the marriage being
perpetual and absolute. so it is no marriage at all.
(i) Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular: An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular marriage irregularity arises from an accidental circumstances.
(i) Examples:
(i) A marriage without witnesses.
(ii) A maggiage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
5. Difference between void and irregular marriage:
I. As to legal position:
Void marriage has no lawful position.
Irregular marriage is not in itself unlawful.
II. As to prohibition:
In void marriage the prohibition is perpetual and absolute.
In irregular marriage prohibition is temporary.
III. As to legitimacy:
In void marriage the children born out of the union are not legitimate.
In irregular marriage the children born out are legitimate.
IV. As to rights and obligations:
In void marriage no civil rights and obligations are arisen.
In irregular marriage if consummation has taken place some rights and obligations are arisen.
V. As to legal effect:
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
VI. As to modification:
A void marriage cannot be modified into valid marriage.
An irregular marriage can be modified into valid marriage.
6. Kinds of marriage under Shia law:
The Shia law only recognizes two kinds of marriage viz, valid and void marriage.
7. Capacity to contract marriage:
(i) Parties must be able to understand the nature of their act.
(ii) The parties must be adult.
(iii) There should be free will of the parties.
(iv) There should be no element of compulsion.
(v) There should be no legal disability.
8. Modes of avoiding irregular marriage:
Following are the modes of avoiding irregular marriage.
(a) By the court: The court can cancel the marriage if the matter is brought to its notice.
(b) By husband: The husband can repudiate his wife.
(c) By wife: The wife can also to avoid the marriage by relinquishment.
9. Conclusion:
To conclude I can say that the marriage is a civil contract. according to Sunnhi law a marriage which is not valid may be either void or irregular. the Shai law recognized only two kinds of marriage. a void marriage is not lawful whereas irregular marriage is not unlawful but unlawful for some other reason.
Q.6 Define dower and discuss its importance is Islamic law? describe its various kinds. (2000)
1. Introduction:
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount of dower may be increased after the marriage.
2. Definition of dower:
Fatawe-e-Almgiri
It is an obligation imposed by the law on the husband as mark of respect for the wife.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce. it is a mark of respect to the wife and a check on the power of husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty my enter into the contract of dower.
5. Persons who are entitled to make contract:
Following persons can make contract of dower.
(i) The parties of the marriage. (ii)Their agents. (iii) Guardian. (iv) Agent of guardian.
6. Subject of dower:
(i) Fixed sum of money.
(ii) Any thing in the category of property having value.
(iii) Property must be in existing.
7. Amount of dower:
There is no maximum limit of amount of the dower but the amount can not be less than prescribed by the law.
8. Fixation of dower:
Dower may be fixed before the marriage at the time of marriage and after the marriage.
9. Confirmation of dower:
The amount of dower becomes confirm.
(i) By consummation of marriage or.
(ii) By a valid retirement khalwat-e-sahira or.
(iii) By the death of either party i. e husband or wife.
10. Kinds of dower:
I. Specified dower:
1. Introduction:
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount of dower may be increased after the marriage.
2. Definition of dower:
Fatawe-e-Almgiri
It is an obligation imposed by the law on the husband as mark of respect for the wife.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce. it is a mark of respect to the wife and a check on the power of husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty my enter into the contract of dower.
5. Persons who are entitled to make contract:
Following persons can make contract of dower.
(i) The parties of the marriage. (ii)Their agents. (iii) Guardian. (iv) Agent of guardian.
6. Subject of dower:
(i) Fixed sum of money.
(ii) Any thing in the category of property having value.
(iii) Property must be in existing.
7. Amount of dower:
There is no maximum limit of amount of the dower but the amount can not be less than prescribed by the law.
8. Fixation of dower:
Dower may be fixed before the marriage at the time of marriage and after the marriage.
9. Confirmation of dower:
The amount of dower becomes confirm.
(i) By consummation of marriage or.
(ii) By a valid retirement khalwat-e-sahira or.
(iii) By the death of either party i. e husband or wife.
10. Kinds of dower:
I. Specified dower:
An amount settled by the parties at the time of marriage or after is called specified downer. it is also known as Mahr-I-Musamma.
Classification of specified dower:
Classification of specified dower:
Specified dower may be classified into the following.
(a) Prompt dower: Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower: Deferred dower is payable on the dissolution of marriage either death or divorce.
II. Unspecified dower:
Where dower has not been settled at the time of the marriage or after is called unspecified dower.
Classification of unspecified dower:
Unspecified dower may be classified into the following.
(a) Proper dower: Proper dower is fixed with reference to the social status of the wife and her own personal qualification.
Determination of proper dower:
Following facts are taken into consideration while determining the amount of dower.
(i) Local custom of the society.
(ii) Personal skill and qualification of the wife.
(iii) Social position of the husband.
(iv) Social status of father of thee wife.
(v) Amount of dower fixed in case of wife's sisters, paternal aunts and others nearest relatives.
11. Remission of dower:
A wife may remit the dower or any part thereof in favour of the husband or his heirs.
(a) Condition:
Remission must be made with free consent.
12. Conclusion:
the dower is a sum of a money or other property which the wife is entitled to receive from her husband. it becomes complete on the consummation of the marriage. there is no, limit on the minimum amount of the dower. the amount dower can be increased after the marriage.
(a) Prompt dower: Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower: Deferred dower is payable on the dissolution of marriage either death or divorce.
II. Unspecified dower:
Where dower has not been settled at the time of the marriage or after is called unspecified dower.
Classification of unspecified dower:
Unspecified dower may be classified into the following.
(a) Proper dower: Proper dower is fixed with reference to the social status of the wife and her own personal qualification.
Determination of proper dower:
Following facts are taken into consideration while determining the amount of dower.
(i) Local custom of the society.
(ii) Personal skill and qualification of the wife.
(iii) Social position of the husband.
(iv) Social status of father of thee wife.
(v) Amount of dower fixed in case of wife's sisters, paternal aunts and others nearest relatives.
11. Remission of dower:
A wife may remit the dower or any part thereof in favour of the husband or his heirs.
(a) Condition:
Remission must be made with free consent.
12. Conclusion:
the dower is a sum of a money or other property which the wife is entitled to receive from her husband. it becomes complete on the consummation of the marriage. there is no, limit on the minimum amount of the dower. the amount dower can be increased after the marriage.
Q.7 Define dower. what is the difference between prompt and deferred dower. (2002)
1. Introduction:
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount of dower may be increased after the marriage.
2. Definition of dower:
Fatawe-e-Almgiri
It is an obligation imposed by the law on the husband as mark of respect for the wife.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce.
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount of dower may be increased after the marriage.
2. Definition of dower:
Fatawe-e-Almgiri
It is an obligation imposed by the law on the husband as mark of respect for the wife.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce.
it is a mark of respect to the wife and a check on the power of husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage. the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower:
Deferred dower is payable on the dissolution of marriage either death or divorce.
5. Non payment of prompt dower and restitution of conjugal rights:
The wife may refuse to live with her husband and admit his to sexual intercourse. so long as the prompt dower is not paid.
6. Difference between prompt and deferred dower:
I. As to payment:
Prompt dower is payable immediately after the marriage.
Deferred dower is payable only after the dissolution of the marriage.
II. As to demand:
Prompt dower is only payable on the demand of the wife.
In deferred dower the wife is not entitled to demand it unless agreed.
III. As to wife's right to realise:
The wife is entitled to realize the prompt dower at any time.
Deferred dower is payable only when it becomes due.
IV. As to conjugal rights:
The right of restitution of conjugal right arises only after its payment.
In deferred dower there is no question restitution of conjugal rights.
7.Conclusion:
dower is the legal right of the wife. if dower is unpaid the wife is entitled to sue for the amount of dower. the widow must sue for the whole of her dower and not a part of it.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage. the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower:
Deferred dower is payable on the dissolution of marriage either death or divorce.
5. Non payment of prompt dower and restitution of conjugal rights:
The wife may refuse to live with her husband and admit his to sexual intercourse. so long as the prompt dower is not paid.
6. Difference between prompt and deferred dower:
I. As to payment:
Prompt dower is payable immediately after the marriage.
Deferred dower is payable only after the dissolution of the marriage.
II. As to demand:
Prompt dower is only payable on the demand of the wife.
In deferred dower the wife is not entitled to demand it unless agreed.
III. As to wife's right to realise:
The wife is entitled to realize the prompt dower at any time.
Deferred dower is payable only when it becomes due.
IV. As to conjugal rights:
The right of restitution of conjugal right arises only after its payment.
In deferred dower there is no question restitution of conjugal rights.
7.Conclusion:
dower is the legal right of the wife. if dower is unpaid the wife is entitled to sue for the amount of dower. the widow must sue for the whole of her dower and not a part of it.
Q.8 What are prompt and deferred dowers what remedies are available to the wife if dower is not paid. (1999)(2004)(2006/A)
Q. What are prompt and deferred dowers. what right are given to a wife if dower is not paid. (2001)
1. Introduction:
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount of dower may be increased after the marriage.
2. Definition of dower:
Mulla:
Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce. it is a mark of respect to the wife and a check on the power of husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage. the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower:
Deferred dower is payable on the dissolution of marriage either death or divorce.
5. Remedies of wife:
(a) In case of prompt dower:
In case of prompt dower if it is unpaid the wife can refuse to live with the husband and it is a complete defence in a suit for restitution of coniugal rights by the husband. the wife and after he death her legal heirs can file suit.
(i) Time period:
(a) Within three years from the date when the demand is made or.
(b) From the date when the marriage was dissolved.
(b) In case of deferred dower:
Deferred dower become due on the dissolution of marriage either by death or divorce. if it is unpaid the wife or if she dies her legal heirs can file suit.
(i) Time period:
Such suit shall be filed within three years from the date of dissolution of the marriage.
6. Liability of heirs for dower debt:
The heirs of a deceased of husband are not personally liable for the dower debt. proportionate to their respective shares in the estate.
7. Conclusion:
dower is the legal right of the wife. if dower is unpaid the wife is entitled to sue for the amount of dower. the widow must sue for the whole of her dower and not a part of it.
Q. What are prompt and deferred dowers. what right are given to a wife if dower is not paid. (2001)
1. Introduction:
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount of dower may be increased after the marriage.
2. Definition of dower:
Mulla:
Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce. it is a mark of respect to the wife and a check on the power of husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage. the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower:
Deferred dower is payable on the dissolution of marriage either death or divorce.
5. Remedies of wife:
(a) In case of prompt dower:
In case of prompt dower if it is unpaid the wife can refuse to live with the husband and it is a complete defence in a suit for restitution of coniugal rights by the husband. the wife and after he death her legal heirs can file suit.
(i) Time period:
(a) Within three years from the date when the demand is made or.
(b) From the date when the marriage was dissolved.
(b) In case of deferred dower:
Deferred dower become due on the dissolution of marriage either by death or divorce. if it is unpaid the wife or if she dies her legal heirs can file suit.
(i) Time period:
Such suit shall be filed within three years from the date of dissolution of the marriage.
6. Liability of heirs for dower debt:
The heirs of a deceased of husband are not personally liable for the dower debt. proportionate to their respective shares in the estate.
7. Conclusion:
dower is the legal right of the wife. if dower is unpaid the wife is entitled to sue for the amount of dower. the widow must sue for the whole of her dower and not a part of it.
Q.9 Define Waqf and discuss its essential. what are the valid objects of a Waqf. (1998)
1. Introduction:
Waqf is an important social institution of Islam. it is a permanent dedication by a Muslim of some specific property for religious and pious purpose. every Muslim of sound mind may dedicate his property by way of waqf. it may be made verbally or in writing.
2. Meaning:
Literal means tying up or detention.
3. Definition:
Waqf act 1954
"According to Sec. 3(i) waqf means the permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable."
4. Kinds of waqf:
(a) Private waqf: It is waqf which is made for private individual.
(b) Public waqf: dedicated to the public at large, made purely for some religious or pious purpose.
(c) Quasi waqf: It is partly public and partly private.
5. Requisites of a valid waqf:
Following are the requisites of a valid waqf
I. Permanent: it must be permanent. If a waqf made for a limited period is not valid.
II. Irrevocable: Once a valid waqf is made, it cannot be revoked.
III. Unconditional: If there is a condition for making waqf it will be invalid. the waqf should be unconditional.
IV. Inalienable: Waqf should be inalienable.
V. Certainty: Waqf property should be certain. if the object are uncertain the waqf will be void.
VI. Registration: A waqfnama by which immoveable property of the value of Rs. 100/= or above requres to be registered under the registration act.
6. Primary rules relating to waqf:
Following are the primary rules relating to waqf.
(i) The subject of the waqf should be dedicated perpetuity.
(ii) All human rights should be diversted there from.
(iii) It should be made non heritable and inalienable.
7. Form of Waqf:
Following may be the form of waqf:
(i) Verbal (ii) Oral
8. Contingent Waqf:
There should be no element of contingency in waqf. it is essential to the validity of a waqf that the appropriation should not be made to depend on contingency.
9. Subject of waqf:
Any immovable or moveable, dividable or individable property having certainty of which the waqf is the owner may be the subject matter of the waqf. a Musha may be the subject of waqf, except waqf for mosque.
10. Valid object of waqf:
(i) Mosques and for imman to conduct worship therein.
(ii) The distribution of alms to poor.
(iii) Grant to takia.
(iv) Observance of the anniversaries of the waqf and member of his family involving as it does the feeding of the poors.
(v) Prayer ground.
(vi) Dargahs.
(vii) Hospitals and dispensaries.
(viii) Construction of free boarding house.
(ix) Eidgah
(x) Reading of Holy Quran in public.
(xi) For making and keeping of Tazias.
(xii) Celebrating the birth the Hazrat Ali Murtaza.
11. Conditions:
(i) The subject of waqf must belong to waqf.
(ii) The objects of a waqf must be indicated with certainty.
(iii) Declaration must be permanent.
(iv) Delivery of possession must be there.
12. Revocations of waqf:
In case of testamentary waqf: A testamentary waqf time of creating a non-testamentary waqf, the waqif reserves to himself the power of revoking the waqf, the waqf will be invalid.
In case of non-testamentary waqf: Where at the time of creating a non-testamentary waqf, the waqif reserved to himself the power of revoking the waqf, the waqf will be invalid.
13. Waqf during marzul-maut:
A waqf made by will or during marzul maut can not operate upon more than one third of the net assets without the consent of heirs.
14. Conclusion:
The creation of waqf represents dedication of some property, according to Muslim legal principles meant it in the a way of God. the declaration must be premanent mature. the objects of waqf must be definite.
1. Introduction:
Waqf is an important social institution of Islam. it is a permanent dedication by a Muslim of some specific property for religious and pious purpose. every Muslim of sound mind may dedicate his property by way of waqf. it may be made verbally or in writing.
2. Meaning:
Literal means tying up or detention.
3. Definition:
Waqf act 1954
"According to Sec. 3(i) waqf means the permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable."
4. Kinds of waqf:
(a) Private waqf: It is waqf which is made for private individual.
(b) Public waqf: dedicated to the public at large, made purely for some religious or pious purpose.
(c) Quasi waqf: It is partly public and partly private.
5. Requisites of a valid waqf:
Following are the requisites of a valid waqf
I. Permanent: it must be permanent. If a waqf made for a limited period is not valid.
II. Irrevocable: Once a valid waqf is made, it cannot be revoked.
III. Unconditional: If there is a condition for making waqf it will be invalid. the waqf should be unconditional.
IV. Inalienable: Waqf should be inalienable.
V. Certainty: Waqf property should be certain. if the object are uncertain the waqf will be void.
VI. Registration: A waqfnama by which immoveable property of the value of Rs. 100/= or above requres to be registered under the registration act.
6. Primary rules relating to waqf:
Following are the primary rules relating to waqf.
(i) The subject of the waqf should be dedicated perpetuity.
(ii) All human rights should be diversted there from.
(iii) It should be made non heritable and inalienable.
7. Form of Waqf:
Following may be the form of waqf:
(i) Verbal (ii) Oral
8. Contingent Waqf:
There should be no element of contingency in waqf. it is essential to the validity of a waqf that the appropriation should not be made to depend on contingency.
9. Subject of waqf:
Any immovable or moveable, dividable or individable property having certainty of which the waqf is the owner may be the subject matter of the waqf. a Musha may be the subject of waqf, except waqf for mosque.
10. Valid object of waqf:
(i) Mosques and for imman to conduct worship therein.
(ii) The distribution of alms to poor.
(iii) Grant to takia.
(iv) Observance of the anniversaries of the waqf and member of his family involving as it does the feeding of the poors.
(v) Prayer ground.
(vi) Dargahs.
(vii) Hospitals and dispensaries.
(viii) Construction of free boarding house.
(ix) Eidgah
(x) Reading of Holy Quran in public.
(xi) For making and keeping of Tazias.
(xii) Celebrating the birth the Hazrat Ali Murtaza.
11. Conditions:
(i) The subject of waqf must belong to waqf.
(ii) The objects of a waqf must be indicated with certainty.
(iii) Declaration must be permanent.
(iv) Delivery of possession must be there.
12. Revocations of waqf:
In case of testamentary waqf: A testamentary waqf time of creating a non-testamentary waqf, the waqif reserves to himself the power of revoking the waqf, the waqf will be invalid.
In case of non-testamentary waqf: Where at the time of creating a non-testamentary waqf, the waqif reserved to himself the power of revoking the waqf, the waqf will be invalid.
13. Waqf during marzul-maut:
A waqf made by will or during marzul maut can not operate upon more than one third of the net assets without the consent of heirs.
14. Conclusion:
The creation of waqf represents dedication of some property, according to Muslim legal principles meant it in the a way of God. the declaration must be premanent mature. the objects of waqf must be definite.
Q.10 Who may be appointed mutwalli of waqf property? what are his rights and duties. (2005)?
1. Introduction:
Mutwalli is superintendent of manger of the waqf property. he has no right in waqf property. he looks the matters of waqf property. he has the same rights of management as an individual. the office trustee is not transferable.
2. Definition of mutawalli:
Case law Jheana Vs. Chief administator Auqaf Punjab 1992 CLC 2054
It was held that the definition of mutawalli includes a person who for the time being manages waqf property.
3. Appointment of mutawalli:
Qualification of mutawalli is as under.
(i) By the waqif. (ii) By the executor. (iii) By the mutwali.
(iv) By the order of the court.
4. Qualification of mutawalli:
Qualification of mutawalli is as under.
(i) Muhammdan or non Muhammedan.
(ii) Sound mind.
(iii) Should be of the age of majority.
5. Who can be appointed mutwalli:
Following can be appointed mutawalli.
(i) The waqif himself.
(ii) His children.
(iii) His descendants.
(iv) Any other person even a female.
(iv) Non-Muslim.
(vi) Sunni in a Shia waqf and Shia in Sunni waqf.
6. Where two or more mutawalli:
Where two or more than two mutawalli are appointed jointly and there is no express or implied direction pertaining to the succession of mutawalli in such cases the office of mutawalli will pass on the death of one holder to the survivor.
7. Rights of mutawalli:
1.If there is no provision in wakfnama about for succession of the office of mutawalli he has right to appoint his successors on his death bed.
2. He has right of remmnuneration.
3. He has right to do any thing that is reasonable for the administration and betterment of the waqf.
4. Mutawalli has right to appoint his successor if wakf deed authorize him to do so.
5. Mutawalli can appoint his successor if wakif and his executor are both dead.
6. Has right to manage the wakf property.
8. Duties of mutawalli:
(i) It is the duty of mutawalli to take care wakf property.
(ii) Mutawalli is duty bound not to sell or mortgage wakf property without the permission of the court.
(iii) He is duty bound not to grant a lease of wakf property not exceeding three years in case of agriculture property and one year in case of non-agriculture land.
(iv) Mutawalli is duty bound not to increase allowance of officers and servants.
(v) Mutawlli is duty bound not to transfer the office for another.
9. Nature of office of matawalli:
The office of mutawlli is not hereditary under Islamic law. hereditary right is not recognized.
10. Removal of mutawalli:
A mutawalli may be removed by the court.
(i) If he become unfit for the job.
(ii) If he does not perform the religious services.
(iii) If mutawalli become insolvent.
(iv) If he commit misconduct.
(v) If mutawalli commits breach of trust.
11. Conclusion:
Mutawalli is a person who manage waqf property. the office of the mutawalli is not hereditary and nontransferable. he has rights and duties under law. he can be removed by the court. on the ground of breach of trust, misconduct insolvency etc. etc.
Mutwalli is superintendent of manger of the waqf property. he has no right in waqf property. he looks the matters of waqf property. he has the same rights of management as an individual. the office trustee is not transferable.
2. Definition of mutawalli:
Case law Jheana Vs. Chief administator Auqaf Punjab 1992 CLC 2054
It was held that the definition of mutawalli includes a person who for the time being manages waqf property.
3. Appointment of mutawalli:
Qualification of mutawalli is as under.
(i) By the waqif. (ii) By the executor. (iii) By the mutwali.
(iv) By the order of the court.
4. Qualification of mutawalli:
Qualification of mutawalli is as under.
(i) Muhammdan or non Muhammedan.
(ii) Sound mind.
(iii) Should be of the age of majority.
5. Who can be appointed mutwalli:
Following can be appointed mutawalli.
(i) The waqif himself.
(ii) His children.
(iii) His descendants.
(iv) Any other person even a female.
(iv) Non-Muslim.
(vi) Sunni in a Shia waqf and Shia in Sunni waqf.
6. Where two or more mutawalli:
Where two or more than two mutawalli are appointed jointly and there is no express or implied direction pertaining to the succession of mutawalli in such cases the office of mutawalli will pass on the death of one holder to the survivor.
7. Rights of mutawalli:
1.If there is no provision in wakfnama about for succession of the office of mutawalli he has right to appoint his successors on his death bed.
2. He has right of remmnuneration.
3. He has right to do any thing that is reasonable for the administration and betterment of the waqf.
4. Mutawalli has right to appoint his successor if wakf deed authorize him to do so.
5. Mutawalli can appoint his successor if wakif and his executor are both dead.
6. Has right to manage the wakf property.
8. Duties of mutawalli:
(i) It is the duty of mutawalli to take care wakf property.
(ii) Mutawalli is duty bound not to sell or mortgage wakf property without the permission of the court.
(iii) He is duty bound not to grant a lease of wakf property not exceeding three years in case of agriculture property and one year in case of non-agriculture land.
(iv) Mutawalli is duty bound not to increase allowance of officers and servants.
(v) Mutawlli is duty bound not to transfer the office for another.
9. Nature of office of matawalli:
The office of mutawlli is not hereditary under Islamic law. hereditary right is not recognized.
10. Removal of mutawalli:
A mutawalli may be removed by the court.
(i) If he become unfit for the job.
(ii) If he does not perform the religious services.
(iii) If mutawalli become insolvent.
(iv) If he commit misconduct.
(v) If mutawalli commits breach of trust.
11. Conclusion:
Mutawalli is a person who manage waqf property. the office of the mutawalli is not hereditary and nontransferable. he has rights and duties under law. he can be removed by the court. on the ground of breach of trust, misconduct insolvency etc. etc.
Q.11 Define and discuss khula, describe the effects of divorce in detail. (2000)(2002)
1. Introduction:
Khula is a form of divorce which is based on mutual consent of the parties. prior to Islam to Islam the wife had no right to seek dissolution of marriage. in Khula the wife gives or agrees to give a consideration to the husband for her release from the marriage tie.
2. Meaning of Khula:
Khula means put off.
3. Definition:
Khula is separation by putting and end to matrimonial bond and rights.
4. Capacity of Khula:
The parties of Khula must be.
(i) Sound mind. (ii) Have attained puberty.
5. How Khula is granted:
Khula is granted in two ways.
(a) By mutual agreement.
(b) By order of the court.
6. Essentials of Khula:
(i) Consent of wife: The wife must show her consent for separation.
(ii) Consideration: The wife must give or agree to give some consideration in lieu of separation.
(iii) Consent of husband: The husband also must give his consent as acceptance of the proposal of his wife.
7. Khula under compulsion:
Under Sunni law: Under Sunni law Khula under compulsion is valid.
Under Shia law: Under Shai law Khula under compulsion is not valid.
8. Conditional Khula:
Under Sunni law: Khula may be conditional or unconditional.
Under Shia law: Conditional Khula is not allowed.
9. Revocation of Khula by wife:
An offer for khula made by the wife may be retracted by her at any time before the acceptance by the husband.
10. Time of payment of consideration:
Consideration by the wife is payable immediately after khula has been entered.
11. What may be given as consideration:
Everything which may be given as dower may be given as consideration.
12. An increase in the consideration:
An increase in the consideration when khula has been entered is not valid.
13. Does appeal lie against decree off khula:
Decree for dissolution of marriage on the ground of khula is not appealable.
14. Effects of divorce:
Following are the legal effects of divorce.
I. Right to contract another marriage:
The wife may marry another person.
II. Period of iddat:
The wife has to observe the period of iddat in the rules of divorce.
Remarriage with the same person:
There is no iddat for marriage with the person with whom marriage has been dissolved by Talaq.
III. Unlawfulness of cohabitation:
The sexual intercourse between the divorced couple is unlawful after the divorce has been irrevocable.
IV. Payment of dower:
If the marriage was consummated:
If the marriage was consummated the wife is entitled to immediate payment of the whole unpaid dower both prompt and deferred.
If the marriage was not consummated:
If the marriage was not consummated the wife entitled to half of the specified dower.
V. Cessation of mutual rights of inheritance:
If the divorce has become irrevocable the mutual rights of inheritance are ceased.
VI. Remarriage of divorced couple:
Where the husband has repudiated his wife by three pronouncement, it is unlawful for him to remarry again until she has married another man and the latter has divorced has after actual consummation of the marriage.
Duty of the court:
Duty of the court while deciding the case of dissolution of marriage on basis of Khula is to find out as to whether on complaint made by wife against husband that due to unlawful acts unlawfully committed by her husband she has been constrained to develop deep harted against him and them remained no possibility to narrow the gulf of harted such marriage could be required to be dissolved on basis of Khula.
16. Conclusion:
under Islamic law the wife has right to obtain dissolution of marriage on the ground of Khula. it is lawful only when there is a dislike on the part of wife. the dissolution of marriage on the basis of khula is an independent right to woman.
Q.12 What are impediments to a valid marriage under Islamic law? (2004)(2005)
1. Introduction:
Marriage is a civil contract between two persons of opposite sex which has for its object the procreation and the legalizing of children. Islamic personal law lays down some prohibition to a valid marriage on different grounds. a Muslim can marry a person with whom marriage is allowed under Shariat law. so there must be complete absence of impediments for a valid marriage.
2. Quranic verses:
Alnisa 22-24.
All others are lawful, provided ye seek them in marriage with gifts from your property, desiring chasity, not lust, seeing that ye derive benefit from them, give them their dowers at least, as prescribed, but if after a dower is prescribed, ye mutually agree to vary it, there is no blame on you and God is all knowing.
3. Meaning of impediment:
Impediment to a valid marriage means to stop a person to marry a woman or a woman to marry a man on the grounds of consanguinity, affinity, or fosterage, on the grounds of consanguinity, affinity, or fosterage.
4. Kinds of impediment:
I. Permanent:
Perpetual or permanent impediment to a valid marriage arises on account of consanguinity, fosterage and affinity. in such case impediment is absolute and eternal.
II. Temporary:
Temporary impediment arises from prohibition in the way of marriage which is not permanent in its nature and the hindrance is liable to be removed.
5. Various grounds of impediments:
I. Ground of consanguinity:
A man is prohibited from marrying.
(i) His mother or his grandmother.
(ii) His daughter or grand daughter how high soever.
(iii) His sister, whether full, consanguine or uterine.
(iv) His niece or great nice howlosover.
(v) His aunt or great-aunt how high soever.
Effect.:
A marriage prohibited by reasons of consanguinity is void.
II. Ground of affinity:
A man is prohibited form marring:
(i) His wife, s mother or grandmother howhighsoever.
(ii) His wife, s daughter or grand daughter howlosovever.
(iii) His father, s wife or paternal grand father howhighsoever.
(iv) The wife of his son or his son, s or daughter son howlsoever.
Effect:
A marriage prohibited by reason of affinity is void.
III. Ground of fosterage:
A man can not marry to this foster mother or his foster sister and foster mother, s sister all come within the prohibited degrees.
(i) Exceptions:
A man can marry to
(i) Sister's foster-mother.
(ii) Foster sister's mother.
(iii) Foster son'sister.
(iv) Foster brother's sisters.
Effect:
A marriage with a woman. prohibited by reason of fosterage is void.
IV. Ground of unlawful conjunction:
A Muslim may not have at the same time two wives who are so related to each other by consanguinity, affinity or fostrage, that if either of them had been a made, they could not have lawfully intermarried, as for instance, two sisters, or aunt and niece.
Effect:
A marriage with a woman prohibited by reason of unlawful conjunction is irregular.
V. Ground of difference of religion:
A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia, that is, a Jewess or a Christain, but not with an idolatress or a fire worshipper. a marriage, however with an idolatoress or a fire worshipper is not void but irregular.
VI. Ground of iddat:
A man can not marry a woman observing period of iddat.
Effect:
A marriage contracted with a Muhammeden lady before the expiry of iddat is irregular.
6. Plurality of husband:
It is unlawful for a wife to have more than one husband at the same time. such marriage under Islamic law is viod.
Legal effect:
(i) A Muslim woman marriage again in the life time of her husband is liable to be punished under criminal laws of Islam.
(ii) The off-spring of such marriage can not not be acknowledged as legitimate.
7. Conclusion:
To conclude I can say that the marriage among Muslim is not a Sacrament, but purely a civil contract. for a valid marriage there should be no impediments or disabilities to the marriage. Islamic law imposes certain restrictions on the right of a person to enter into martial relation with a person of opposite sex.
Q.13 What is gift (Hiba). what are the three conditions for the validity of a gift. (1998) (2001)
Q. What is gift? what are the essentials of a gift. (1999)(2002)(2005)
Q. Define 'Hiba' under what circumstances a donor can revoke a Hiba. (2000/S)
1. Introduction:
A gift is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of another. a Muhmmadan may may dispose of his whole property. the person who makes gift is called doner and to whom gift is made is called donee.
2. Meaning:
Gift or Hiba means denotion of a thing from which the donee may get benefit.
3. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
4. Kinds of gift:
Following are the kinds of gift.
(i) Hiba (ii) Hiba bil iwaz. (iii) Habi-be-Shart ul iwaz. (iv) A Sadaqah (v) Areet.
5. Persons who can make gift:
Every Muslim of sound mind and age of majority is entitled to make gift.
Disqualifications:
(i) Minor (ii) Unsound mind.
6. Extent of doner's power:
A person under Islamic law may dispose of his whole property in favour of a stranger or to any heirs.
7. Persons in whose favour hiba or gift can be made:
A hiba can lawfully be mind in favour of any of the following.
(i) Natural persons. (ii) Artificial persons.
(iii) Heirs (iv) Insance persons
(v) Any person
8. Persons in whose favor hiba or gift cannot be made:
Hiba or gift can not be made in favour of the following.
(i) Unborn child. (ii) Dead person.
Exception: A widow can make hiba of her dower in favour of her deceased husband.
9. Essentials of a valid gift:
(i) Subject of gift must belong to doner.
(ii) Subject of gift must be in existence.
(iii) Doner must make by his free will.
(iv) Acceptance by donee.
(v) Delivery of possession of the subject matter.
10. Tree conditions for validity of a gift:
Following are the three conditions for validity of a gift.
(i) Declaration (ii) Acceptance (iii) Delivery.
I. Declaration: There should be a declaration of a gift by the doner.
II. Acceptance: There should be an acceptance of the gift, express or implied by or on behalf of the donee.
III. Delivery: There should be delivery of possession of the subject of the gift by the donor to the donee.
11. Fifth of Mushaa:
A valid gift may be made of an undivided share in property either moveable or immovable.
Mushaa Mushaa is an undivided share in property.
12. Registration of gift:
Registration of deed of gift does not cure the want of delivery of possession. it is an evidence of the execution.
13. Cases where transfer of possession of gift is not necessary:
Following are the cases when transfer of possession of gift property is not necessary.
(i) No transfer of possession is required when father gifts his property to his minor child.
(ii) No transfer is required when guardian gifts to his ward.
(iii) Where the gift is already in the possession of donee.
(v) Where the property is no rent or lease and by transfer of title deed of such property.
14. Revocation of gift:
The gift can be revoked by the doner in the following way.
(i) Before delivery of the possession.
(ii) After delivery of the possession.
I. Before delivery of the possession:
A gift may be revoked by the doner at any time before delivery of the possession, because before delivery there is no gift at all.
II. After delivery of the possession:
A doner can even after the delivery of the possession of the property can revoke the gift.
It can be revoked by the followings ways.
(i) With the mutual consent of the parties.
(ii) By a decree of the competent court.
15. Circumstances when gift can not be revoked:
Under following circumstances gift can not be revoked.
(i) Death of the doner.
(ii) Death of the donee.
(iii) Where a gift is made to a person related to the doner with in prohibited degree.
(iv) Gift between spouse.
(v) Increase in value of the gift.
(vi) Destruction of the subject matter of the gift.
(vii) Destruction of the identity of the gift.
(viii) Where doner has received consideration for gift.
(ix) Where the purpose of the gift is Sadqa.
16. Conclusion:
the gift is a contract consisting of a proposal or offer on the part of the doner to give a thing and acceptance of it by the donee. so it is a transfer of property immediately and without any exchange. there must be clear intention by he doner to transfer the possession to the doner for a valid gift. if can be revoked by the doner.
Q. What is gift? what are the essentials of a gift. (1999)(2002)(2005)
Q. Define 'Hiba' under what circumstances a donor can revoke a Hiba. (2000/S)
1. Introduction:
A gift is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of another. a Muhmmadan may may dispose of his whole property. the person who makes gift is called doner and to whom gift is made is called donee.
2. Meaning:
Gift or Hiba means denotion of a thing from which the donee may get benefit.
3. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
4. Kinds of gift:
Following are the kinds of gift.
(i) Hiba (ii) Hiba bil iwaz. (iii) Habi-be-Shart ul iwaz. (iv) A Sadaqah (v) Areet.
5. Persons who can make gift:
Every Muslim of sound mind and age of majority is entitled to make gift.
Disqualifications:
(i) Minor (ii) Unsound mind.
6. Extent of doner's power:
A person under Islamic law may dispose of his whole property in favour of a stranger or to any heirs.
7. Persons in whose favour hiba or gift can be made:
A hiba can lawfully be mind in favour of any of the following.
(i) Natural persons. (ii) Artificial persons.
(iii) Heirs (iv) Insance persons
(v) Any person
8. Persons in whose favor hiba or gift cannot be made:
Hiba or gift can not be made in favour of the following.
(i) Unborn child. (ii) Dead person.
Exception: A widow can make hiba of her dower in favour of her deceased husband.
9. Essentials of a valid gift:
(i) Subject of gift must belong to doner.
(ii) Subject of gift must be in existence.
(iii) Doner must make by his free will.
(iv) Acceptance by donee.
(v) Delivery of possession of the subject matter.
10. Tree conditions for validity of a gift:
Following are the three conditions for validity of a gift.
(i) Declaration (ii) Acceptance (iii) Delivery.
I. Declaration: There should be a declaration of a gift by the doner.
II. Acceptance: There should be an acceptance of the gift, express or implied by or on behalf of the donee.
III. Delivery: There should be delivery of possession of the subject of the gift by the donor to the donee.
11. Fifth of Mushaa:
A valid gift may be made of an undivided share in property either moveable or immovable.
Mushaa Mushaa is an undivided share in property.
12. Registration of gift:
Registration of deed of gift does not cure the want of delivery of possession. it is an evidence of the execution.
13. Cases where transfer of possession of gift is not necessary:
Following are the cases when transfer of possession of gift property is not necessary.
(i) No transfer of possession is required when father gifts his property to his minor child.
(ii) No transfer is required when guardian gifts to his ward.
(iii) Where the gift is already in the possession of donee.
(v) Where the property is no rent or lease and by transfer of title deed of such property.
14. Revocation of gift:
The gift can be revoked by the doner in the following way.
(i) Before delivery of the possession.
(ii) After delivery of the possession.
I. Before delivery of the possession:
A gift may be revoked by the doner at any time before delivery of the possession, because before delivery there is no gift at all.
II. After delivery of the possession:
A doner can even after the delivery of the possession of the property can revoke the gift.
It can be revoked by the followings ways.
(i) With the mutual consent of the parties.
(ii) By a decree of the competent court.
15. Circumstances when gift can not be revoked:
Under following circumstances gift can not be revoked.
(i) Death of the doner.
(ii) Death of the donee.
(iii) Where a gift is made to a person related to the doner with in prohibited degree.
(iv) Gift between spouse.
(v) Increase in value of the gift.
(vi) Destruction of the subject matter of the gift.
(vii) Destruction of the identity of the gift.
(viii) Where doner has received consideration for gift.
(ix) Where the purpose of the gift is Sadqa.
16. Conclusion:
the gift is a contract consisting of a proposal or offer on the part of the doner to give a thing and acceptance of it by the donee. so it is a transfer of property immediately and without any exchange. there must be clear intention by he doner to transfer the possession to the doner for a valid gift. if can be revoked by the doner.
Q.14 Define will what is the difference between will and gift. (2002)
1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. where as a gift is the transfer of property without any exchange. it is made for love and affection.
2. Definition of will:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
3. Essentials of a valid will:
Following are the essentials to a valid will under Islamic law.
(i) Declaration by the testator.
(ii) Testator must be compentent to declare.
(iii) The subject of the will must be valid.
(iv) It must be within limits imposed on the testator.
(v) The legatee must be competent to take the possession of the property.
(vi) Offer by the testator.
(vii) Acceptance by the legatee.
4. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
5. Essentials of a valid gift:
(i) Subject of gift must be belong to donor.
(ii) subject of gift must be in existence.
(iii) Done must make by his free will
(iv) Aceptanace by donee
(v) Deliver of the possession of subject matter.
6. Difference between gift and will:
I. As to completion:
Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.
7. Conclusion:
the gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. the gift and will are two different things under Islamic law.
Will is a conferment of right which is to effect after the death of the testator. where as a gift is the transfer of property without any exchange. it is made for love and affection.
2. Definition of will:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
3. Essentials of a valid will:
Following are the essentials to a valid will under Islamic law.
(i) Declaration by the testator.
(ii) Testator must be compentent to declare.
(iii) The subject of the will must be valid.
(iv) It must be within limits imposed on the testator.
(v) The legatee must be competent to take the possession of the property.
(vi) Offer by the testator.
(vii) Acceptance by the legatee.
4. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
5. Essentials of a valid gift:
(i) Subject of gift must be belong to donor.
(ii) subject of gift must be in existence.
(iii) Done must make by his free will
(iv) Aceptanace by donee
(v) Deliver of the possession of subject matter.
6. Difference between gift and will:
I. As to completion:
Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.
7. Conclusion:
the gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. the gift and will are two different things under Islamic law.
Q.15 What is meant by 'Acknowledgement' of paternity in Islamic law? what are valid conditions for such an acknowledgement. (2003)
Q. Write a detailed note on parentage. (2006/S)
Q. Write a detailed note on parentage. (2006/S)
1. Introduction:
Parentage includes paternity and maternity. it is the result of institution of marriage. so parentage id the legal relationship of parents to their children. the establishment of paternity confers a status of legitimacy on the child. the child acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or illicit relation. acknowledgement is a mode to establish paternity.
2. Acknowledgement of paternity:
Muhammadan law recognizes the doctrine of acknowledgement of paterinty where the paternity of a child i. e. his father can not be proved by proved by establishing a marriage between the parents at the time of conception of the birth.
3. Application of the doctrine:
The doctrine applies only to cases of uncertainty as to the legitimacy. it can be done only where the paternity of the child has not been or can not be proved from any other person, the child is not the off spring of zina and the circumstance of his birth are such that he could be a legitimate child of his father.
4. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied
(ii) Express
5. Capacity for making acknowledgement:
(i) Person who is sound mind.
(ii) Have attained the age of puberty.
6. Conditions of a valid acknowledgement:
I. Ages of the parties:
The ages of the parties must be such that it is possible that they may be father and son. the person who makes acknowledgement must be at least 12 1/2 year elder than the person acknowledged.
II. Intention:
The acknowledgement must not be merely sonship but if legitimate sonship.
III. Prof of legitimacy:
The child so acknowledged must not be known as the child of another.
IV. Confirmation:
Acknowledgement must be confirmed by the child so acknowledged if he is of adult age.
7. Nature:
The acknowledgement once made and proved cannot be rebutted. so a man who makes acknowledgement can not rebut it.
8. When acknowledgement is void:
When the mother of the acknowledged child could not be possibly have been the lawful wife of the acknowledger at any time. when the acknowledge could have been begotten, the acknowledgement will be void.
9. Effect of acknowledgement:
In the case of the son it produces all the legal effects of natural paternity and vests in the child the right of inheritance in case of wife, the mother of the acknowledge son as effect of giving her the status of a legal wife and entitlement of inheritance and maintenance.
10. Rules of presumption as to legitimacy:
Rules of presumption as to legitimacy are as under.
(i) A child born with in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
Exception:
(i) If husband accuses her wife of adultery in the court such child would be illegitimate of proof.
(ii) A child born with in 2 years after the termination of marriage is presumed to be legitimate.
11. Establishment of paternity:
Paternity of a child is establishment by marriage between the parents of child.
12. Establishment of legitimacy:
When the paternity of a child is establishment its legitimacy is also established.
13. Conclusion:
To conclude I can say that, the doctrine of acknowledgement of paternity confers a status of legitimacy on a child whether a son or a daughter. it is a kind of legal evidence. once the acknowledgement is made the right to disclaim is lost. the acknowledgement child may be a son or a daughter.
Parentage includes paternity and maternity. it is the result of institution of marriage. so parentage id the legal relationship of parents to their children. the establishment of paternity confers a status of legitimacy on the child. the child acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or illicit relation. acknowledgement is a mode to establish paternity.
2. Acknowledgement of paternity:
Muhammadan law recognizes the doctrine of acknowledgement of paterinty where the paternity of a child i. e. his father can not be proved by proved by establishing a marriage between the parents at the time of conception of the birth.
3. Application of the doctrine:
The doctrine applies only to cases of uncertainty as to the legitimacy. it can be done only where the paternity of the child has not been or can not be proved from any other person, the child is not the off spring of zina and the circumstance of his birth are such that he could be a legitimate child of his father.
4. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied
(ii) Express
5. Capacity for making acknowledgement:
(i) Person who is sound mind.
(ii) Have attained the age of puberty.
6. Conditions of a valid acknowledgement:
I. Ages of the parties:
The ages of the parties must be such that it is possible that they may be father and son. the person who makes acknowledgement must be at least 12 1/2 year elder than the person acknowledged.
II. Intention:
The acknowledgement must not be merely sonship but if legitimate sonship.
III. Prof of legitimacy:
The child so acknowledged must not be known as the child of another.
IV. Confirmation:
Acknowledgement must be confirmed by the child so acknowledged if he is of adult age.
7. Nature:
The acknowledgement once made and proved cannot be rebutted. so a man who makes acknowledgement can not rebut it.
8. When acknowledgement is void:
When the mother of the acknowledged child could not be possibly have been the lawful wife of the acknowledger at any time. when the acknowledge could have been begotten, the acknowledgement will be void.
9. Effect of acknowledgement:
In the case of the son it produces all the legal effects of natural paternity and vests in the child the right of inheritance in case of wife, the mother of the acknowledge son as effect of giving her the status of a legal wife and entitlement of inheritance and maintenance.
10. Rules of presumption as to legitimacy:
Rules of presumption as to legitimacy are as under.
(i) A child born with in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
Exception:
(i) If husband accuses her wife of adultery in the court such child would be illegitimate of proof.
(ii) A child born with in 2 years after the termination of marriage is presumed to be legitimate.
11. Establishment of paternity:
Paternity of a child is establishment by marriage between the parents of child.
12. Establishment of legitimacy:
When the paternity of a child is establishment its legitimacy is also established.
13. Conclusion:
To conclude I can say that, the doctrine of acknowledgement of paternity confers a status of legitimacy on a child whether a son or a daughter. it is a kind of legal evidence. once the acknowledgement is made the right to disclaim is lost. the acknowledgement child may be a son or a daughter.
Q.16 State the matters to be considered by a court in appointment of a guardian of minor. (2001) (2002)
1. Introduction:
Welfare of the minor is supreme law. the court can appoint guardian in the absence of the legal guardian under guardian and wards acts 1890. the court may also on the application of any person interested, or in its own motion remove a guardian.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian of a minor.
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend of the minor.
(c) The collector of the district or other local area within which the minor ordinarily resides or which he has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
4. Welfare of minor is supreme law:
Welfare of the minor is the supreme law. the court has always to bear in mind the welfare of the minor and then proceeding further to appointment of the guardian. the term welfare includes moral. spiritual and material well being of the minor.
5. Matters to be considered for appointment of guardian:
Following matters are to be considered for the appointment.
I. Age:
The age of the minor is firstly considered by the court. during tender age of a child he needs the care and affection of the person interested in him. so where a minor is above 17 years old, there is no use in pointing a guardian of his person.
II. Sex:
Under guardians and wards act a virgin should not be given in the custody of a male, if there exist no prohibition to the marriage.
III. Religion:
Under law, child must be presumed to have father's religion. the court must take into consideration this aspect while appointing the guardian.
IV. Capacity of proposed guardian:
The court must be the capacity, and qualification, of the proposed guardian.
V. Kinship with the minor:
The court must take into consideration the relationship and nearness of kin with the minor.
VI. Wishes of the minor:
The wishes of the minor are also considered by the court wile making the appointment of the guardian.
VII. Personal law of the minor:
The appointment of the guardian should be made in a way that he could not interfere in the personal law of the minor.
VIII. Wishes of the deceased parents of minor:
The wishes of deceased parent of the minor are also considered by the court.
IX. Character of the proposed guardian:
The court must take into consideration the character of the proposed guardian.
6. Conclusion:
The welfare of minor is an important factor in appointing the guardian by the court. the court must take into consideration age, sex, religion, character of guardian, wishes of minor and his deceased parent at the time of appointment of guardian.
Q.17 State the matters to be considered by a court in appointment of a guardian of minor. (2001)(2002)(2006/S)
Q. What do you understand by the term guardian as used in guardians and wards act, who can be appointed as guardian.
(2002/S)
Q. Define guardian enumerate the grounds on which a guardian can be removed. (2003)
Q. Define guardian who can be appointed guardian. how can he be removed. (2004)
Q. Define 'guardian'. how can be appointed. (2005)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated than to the grandfather. if he dise the right of guardianship vests in the court.
2. Guardian:
According to guardians and wardians and wards act 1890 guardian means a person having the care of the person of a minor of his property or his person and property.
3. Ward:
Every minor who has a guardian no matter what type of guardian he has i.e the one appointed by the court under guardians and wards act or one who is self appointed be facto guardian.
4. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian a minor:
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend to the minor.
(c) The collector of the district or other local area within which the minor ordinarlly resides or which he has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
5. Contents of the application:
(i) Name age address sex religion of the minor.
(ii) Property of the minor.
(iii) Name and address of person having custody of the minor.
(iv) Whether a guardian of person or property.
(v) Name of the relative of the minor.
(vi) Qualification of proposed guardian.
(vii) Whether any application has been at any time made to any other court with respect to the
guardianship.
(viii) The causes which have led to the making of the application.
(xi) Any other necessary particulars.
6. Kinds of guardian:
(i) Guardian of person. (ii) Guardian of property.
(iii) Guardian for the marriage.
7. Who can be guardian of person:
Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father (ii) Paternal grand father
(iii) Full brother (iv) Consanguine brother.
(v) Full brother son (vi) Consanguine brother,s son
(vii) Full paternal uncle (viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother (ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle (v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how hight-so-ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high so ever.
8. Who can be guardian of property:
(i) Natural or legal guardian can be appinoted guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian
9. Powers of court to make order as to guardian:
When the court is satisfied that it is for the welfare of a minor that an order should be made.
(i) Appointing a guardian of this person or property or bother.
(ii) Declaring a person to be such guardian the court may make order accordingly.
10. Removal of guardian:
Guardian can be removed on the following grounds:
(i) For abuse of his trust.
(ii) Failure to perform his duties.
(iii) Incapacity to perform the duties.
(iv) For ill treatment or neglect to take proper care of his ward.
(v) Conviction of an offence implying in the opinion of the court defect of charaster which renders unfit him to be the guardian of his ward.
(iv) Interest adverse to the faithful performance of court.
(vii) Ceasing to reside within local limits of the jurisdiction of the court.
(viii) Insolvency in case of guardian for property of ward.
(ix) Ceasing by reason of guardian being liable to cease under personal law of the minor.
Modes of removal:
(a) By the application.
(b) By the court by it own motion.
11. Conclusion:
The guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed form his office under the guardians and wards act.
Disqualification For Custody
Q.18 Who are the entitled to guardianship of the person of a minor?
Q. When is the right of female for custody loss under Islamic law. (2000)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated then to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Ward:
Every minor who has a guardian, no matter what type of guardians he has, i.e the one appointed by the court under guardians and wards act or one who ia self appointed de facto gurarian.
4. Kinds of guardian:
(i) Guardian of person.
(ii) Guardian of property.
(iii) Guardian for the marriage.
5. Who can be guardian of person:
Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
(i) Mother (ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister. (v) Uterine mother.
(vi) Consanguine sister (vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father. (x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father (ii) Paternal grand father
(iii) Full brother (iv) Consanguine brother.
(v) Full brother son (vi) Consanguine brother,s son
(vii) Full paternal uncle (viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother (ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle (v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high so ever.
6. Who can be guardian of property:
(i) Natural or legal guardian can be appinoted guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian.
7. Female when disqualified for custody:
A female including the mother, who is otherwise entitled to the custody of a child loses the right of custody.
(i) If she marries a person not elated to the child within the prohibited degree e. g, to a stranger.
(ii) If she goes and resides, during the subsistence of marriage at a distance from the father's place of residence, or
(iii) If she is leading an immoral life where she is a prostitute.
(iv) If she neglects to take proper care of the child.
Case law
Juma Khan Vs Gul Ferosho P. L. D 1972 Pesh
It was held that father is the natural guardian and is the natural guardian and is perfectly competent to get custody of the minor children from the mother after ceases to be their guardian.
8. Conclusion:
The guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed from his office under the guardians and wards act. although mother has legal right of guardianship of her minor children but she can loss her right. in circumstanced mentioned in guardian and wards act.
Very helpful ,sir God bless you
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