FAMILY LAW - II

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law university 3 & 5 year LLB
ANIL KUMAR K T LLB COACH
Family law - II
Most important questions (Pattern of 10 and 6 marks)
1. Explain the various sources of Muslim laws and Mohammedan law.
2. Define marriage and Muta marriage. State the differences between two.
3. Define dower? Discuss the wife’s right and remedies on non payment of
Dower.
4. Define dower? Explain the various kinds of dower?
5. What are the essentials of a valid marriage under Mohammedan law.
6. Write a note on Shariat act 1937.
7. Discuss the different modes of Talak.
8. What are the powers of guardians under Mohammedan law.
9. Define will? State the limitations on a Mohammedan in making a will.
10.What are the powers of Mutawalli.
11.Write a note on succession certificate.
12.Write a note on Death bel gift.
13.Write a note on uniform civil code.
14.Define privileged will. State the rules for executing privileged bill.
15. Who is a curator? When he shall be appointed? What are his duties.
16. Write a note on right of pre-emption and family courts.
17.Explain different forms of talak? When talak becomes Irrevocable.
18.Nullity of marriage under Indian divorce act.
19.What is Wakf? Explain the essentials of valid wakf.
20.Define domicile? What are the methods of acquiring domicile under Indian
succession act 1925.
21.Explain the law relating to guardianship of the property of a minor.
22.What are the protections available to the Muslim divorced wife under the
Muslim women ( protection of rights on divorce) act 1986.
23.Write a note on Ua and Zihar.
24.Write a note on legitimacy and legitimation.
25.Define probate? Explain the procedure for obtaining probate.
26.Explain briefly different kind of bequests.
27.Define will? What are the kinds of Wills? How the unprivileged will will be
executed.
28.Write a note on specific legacy and demonstrative legacy.
29.Write a note on private waqf and pubic waqf.
30.Explain the powers and duties of executor.
31.What is maintenance? Comment on the present law on maintenance under
Muslim law.
32.Marriage under muslim law is civil contract critically examine the
statement.
33.Define preemption? State the person who can claim preemption.
34.Who is mohammedan? State the effects of conversion of a married
mohammedan in to other religion.
35.Explain enumerate differences between sunni and shia regarding marriage ,
dower and divorce.
36.Define and distinguish between valid, void and irregular marriages under
mohammedan law.
37.What is the significance of succession certificate? State the procedure to
obtain it.
38.Differentiate Talaq and divorce.
39.Explain the legal impediments of a muslim marriage.
40. Who is an administrator? What are his duties and powers.

BY
ANIL KUMAR K TLLB COACH
1.Explain the various sources of Muslim laws and Mohammedan law.
Introduction:
Unlike the personal laws of other religions, Muslim personal law in India is largely
uncodified. This basically means that it is not based on laws made by
the legislature. Instead, it originates from several other sources of
traditional law dating back several years.

Since Prophet Mohammed had proclaimed Muslim law to be the commandment

of God, most Muslims adhere to it strictly. It dictates several spiritual, religious,
social and even legal activities of many Muslims in India. This is also probably
why the legislature did not draft separate personal laws for followers of Islam in
India.

The personal laws of Muslims provide guidance in matters of marriage, divorce,

succession, inheritance and even adoption. They are highly nuanced and even
sometimes apply differently to different factions of Muslims. For example, the
Islamic law of divorce is slightly different for Shias and Sunnis.

Primary Sources of Muslim Law in India

1) The Quran

The Quran, which all Muslims consider to be their holy book, contains direct
revelations of God through Prophet Mohammed. It is due to this reason that it is
the foundation of all Islamic laws. All tenets, teachings, principles, and practices
of Islam originate from the Quran.

It contains verses of religious nature as well as teachings regulating human

conduct. Due to its stature as Islam’s holy book, it is the final authority on Muslim
law.

2) Sunna of Hadis

Sunna basically translates to ‘path’ and means the practices, traditions, and
precedents of Prophet Mohammed. Whenever the Quran did not explain
something, the Prophet’s actions and words became the authority.
This is because people believe that even his sayings and actions derive inspiration
from God. These precedents of the Prophet are Hadis and their legal deductions
are Sunna.

3) Ijma

After Prophet Mohammed’s demise, there was a consensus in the Muslim world
that opinions of religious jurists will prevail. In other words, the Mujtahids (jurists
with knowledge of Islam) will interpret the Quran, Sunna, and Hadis.

The common opinions of the jurists on aspects that the Quran did not explain
became Ijma. This source of law is very expansive and covers many topics. In fact,
it gets almost as much importance as the Quran and the Sunna themselves.

4) Qiya

The term ‘Qiya’ basically means an analogical deduction from the existing
sources. Whenever the other sources do not explain something, Qiya helps in
deducting interpretations that seem to be the most obvious.

Qiya, however, can only explain or interpret the law but it cannot change the law
or its essence. This source of Muslim personal law ranks below other sources
because of its deductive nature.

Secondary Sources of Muslim Law in India

Apart from the primary sources we saw above, the following secondary sources
also govern Muslim law to a limited extent:

1) Legislation

Although Muslim law in India is uncodified, the Parliament has made some laws
to regulate some Islamic practices. For example, the Muslim Personal Law
(Shariat) Application Act, 1937 governs marriage, succession, and inheritance.
The Dissolution of Muslim Marriages Act, 1939 is another law regulating certain
divorce cases amongst Muslims.

2) Judicial decisions
Courts in India have at several instances interpreted Muslim law in many cases.
All these interpretations generally rely on primary sources, legislation and
opinions of jurists. Courts have settled many important legal anomalies using
judicial interpretations.

3) Customs

Customs are basically practices that people follow continuously for a long period
of time. In fact, they follow them for so long that they obtain the status of law in
some cases. Muslim law contains various customs regulating practices of people.

2.Define marriage and Muta marriage. State the differences between two.

Meaning of Muta Marriage

The meaning of ‘Muta’ is enjoyment. Muta Marriage is a marriage for a fixed

period of time that is only for sexual pleasure. Muslim Law in the Shia sect
(Athna Ashria school) recognises the concept of Muta Marriage.

Conditions and Essentials of Muta Marriage

1. The parties must have attained the age of puberty, which is above 15 years
of age.

There is no restriction on the number of Muta wives.

3. There must be free consent by the parties.

4. The time period and Dower must be mentioned in the nikah nama.

5. The cohabitation between the parties is lawful.

6. The children born out of such marriage are legitimate and have the right to
inherit the properties of both parents.

7. The husband and wife don’t have any mutual right of inheritance.

8. Muta wife is not entitled to claim maintenance under personal law, but she
can claim under Section 125 of CrPC.

9. The wife is entitled to get full Dower if the husband cohabits, but if the
husband doesn’t cohabit, then the wife is entitled to half dower.

10. Divorce is not recognised under Muta Marriage.

Muta marriage differs from the permanent marriage on the following grounds:

(1) Whereas after separation, a wife can claim maintenance from her husband
in a regular marriage, such a claim cannot be made in ‘muta’, marriage.

(2) The right of succession is secured only in a permanent marriage and not in
‘muta’ marriage. However, the children born out of this marriage can inherit
the property of their parents.

(3) The ‘muta’ marriage continues for a specific period and after expiry of that
period, marriage dissolves and it becomes illegal to continue the marriage after
that. On the contrary, the ‘Nikah’ marriage is permanent. It can be ended only
in the case of death or divorce.

(4) ‘Nikah’ is a common and popular form of marriage, whereas ‘muta’ is a

quite unpopular and uncommon form of marriage. Its unpopularity, according
to Smith, lay in the fact that in ‘muta’ marriage the woman did not leave her
home, her people gave up no rights which they had over her and the children
born out of the marriage did not belong to the husband. It conceded a greater
amount of freedom to woman and it did not recognize the affiliation of the
child to the husband’s clan. It was thus opposed to Islamic conception of
marriage.

(5) Both the Muslim communities, the Shiks and the Sunnies accept and
respect the ‘Nikah’ marriage. But the muta marriage is recognized only by the.
Shias and not by the Sunnis.

(6) The question of divorce does not arise in a ‘mutta’ marriage because it is
only for a specific period. It is automatically dissolved after the expiry of the
specific period. On the contrary, provision of divorce is prevalent in ‘Nikah’
type of marriage.

3.Define dower? Discuss the wife’s right and remedies on non payment of
Dower.
Introduction:

Dower is the amount of money or property which a woman is entitled to

receive from the husband in consideration of marriage. The significant reason
for this payment of dower is to refrain the capricious use of divorce.

Muslim marriage is like a contract in which the woman is held and the amount
or consideration of Mahr is paid to her. Dower/Mahr in Islam is necessary for a
lawful marriage and if it were not mentioned at the time of the marriage the
law will presume that the marriage did not take place. It is an essential
ingredient under Muslim Law to such an extent that even when it is
unspecified at the time of marriage is contracted then also it must be adjudged
on definite principles. If there is an agreement between husband and wife that
the wife will not claim dower/Mahr such an agreement is void and the right to
dower remains in spite of such an agreement. If the wife dies before the
payment of the dower, her legal representatives are entitled to the dower
amount.

What is Prompt Dower?

Prompt Dower– Prompt dower is payable on demand. It may be demanded by
the wife even before the consummation of marriage takes place.

If the husband sues the wife for restitution of conjugal rights (the rights,
especially to sexual relations, regarded as exercisable in law by each partner in
a marriage.) before the consummation of marriage the non-payment of
prompt dower is a complete defense to the suit.

When is Dower Payable?

When is dower payable -In the case of prompt dower, the husband has to pay
the dower amount as the wife makes a demand for it whether the marriage
has consummated or not. If any delay is caused in the payment of the dower,
the wife is entitled to get interest for the period during which the dower has
been unpaid. The wife may also refuse consummation till the husband pays the
prompt dower. In deferred dower, the husband pays the dower after the
occurrence of a particular event i.e. either on dissolution of marriage or upon
the death of husband. The husband in either case has to pay the amount
soon. The dower amount may or may not be forfeited by the wife against her
husband.

Effect of Non-payment of Dower

Under the Islamic law or Islamic legal system, Mehr or dower means money or
property which the wife is entitled to receive from the husband in consideration
of the marriage. It is basically an obligation imposed upon the husband as a
mark of respect for the wife. The reason for giving dower is to provide the wife
with subsistence if the situation like the dissolution of marriage, death of
husband or termination of a marriage by divorce arises. This is given to give
assistance to wife in such a situation so that she doesn’t feel helpless after
these misshaping. Under Section 125 of Criminal Procedure Code, 1973, Mehr
or dower is considered to be a part of maintenance while fixing the amount of
maintenance.

The right to dower is an inherent right of every Muslim wife. Under Muslim law,
following means of enforcement of the right to dower are available to a wife (or
widow):

• Refusal of Conjugal Rights

Before consummation of the marriage, the wife is entitled to deny cohabitation
to the husband till he gives her Prompt Dower on demand. A Muslim-wife can
refuse to live with her husband and refuse to him the sexual intercourse so long
as the Prompt Dower is not paid to her.

• Enforcement of Dower as Debt

Where the marriage has been consummated, the wife cannot enforce her claim
by refusing conjugal rights to the husband. In such a situation the wife can
recover her unpaid dower by maintaining an action in a court of law. She may
realise it from husband in the same manner as a creditor recovers his loan.

If the husband dies, the widow is entitled to recover the amount by filing a suit
against the legal heirs of the deceased husband. But the legal heirs of the
husband are not personally liable to pay the dower. The dower is a debt against
the estate of the deceased husband which is inherited by heirs.

• Widow’s Right to Retention

A widow, whose dower remains unpaid, has a right to retain the properties of
the husband till her dower debt is satisfied, whether there is any agreement
between the parties for this right or not.

Under this right if a wife has taken possession of her husband’s properties
lawfully (with free consent of the husband) in lieu of unpaid dower, then she is
entitled to retain that possession after the death of her husband, until her dower
is paid out of the properties retained by her.

4.Define dower? Explain the various kinds of dower?

Introduction:
Dower is also known as Mahr in Muslim law. It is one of the significant
ingredients of marriage under Muslim Law. It is an amount of money or other
property paid or provided to the wife. It could either be a specified or
unspecified dower. Mahr or Dower is the legal responsibility of a man towards
the woman as a result of marriage. The Mahr (Dower) belongs to the wife and
she can use it in any manner she likes it, neither her husband nor husband’s
relations nor even her relations can give the command to her in the matter of
using the Mahr money or property. Mahar may be fixed orally or in writing
(meharnama); it may be fixed, before, during, or soon after marriage.
According to Mulla, a dower is a sum of money that wife is entitled to receive
from her husband in consideration of marriage.

Even after divorce, Mahr is non-refundable (unless the wife remits it at her-
willingness) and it becomes the property of the wife till eternity. Even if
marriage is not consummated, it is mandatory to provide mahr to the wife.

The case of Hamira Bibi v. Zubaida Bibi, (1916) 431 A299, indicates that
Dower is an essential ingredient under the Mohammadan law to the status of
Marriage, to such an extent this is so that when its unspecified at the time the
marriage is contracted the law declares that it must be adjudged on definite
principles.
In Nasra Begum v. Rijwan Ali, AIR (1980) All 118 at P 120, The court held that
where there has been an agreement between the parties at the time of their
marriage about the amount of dower payable by the husband between
husband and wife for payment of dower the quantity becomes recoverable
under the agreement.

TYPES OF MAHR or Dower

Mahr is divided into two types:

a) Specified Dower (mahrul-musamma)

b) Unspecified Dower (mahrul misal)

a) Specified Dower (mahrul-musamma)

If the amount of dower is expressed in the marriage contract, it is known as
the specified dower. Dower is usually settled by the parties either before the
marriage or at the time of the marriage or even after the marriage. If the
parties to the marriage have attained the age of puberty and are of sound
mind, they are competent to settle among themselves the amount of dower. If
the party is minor then Mahr is paid by the father on behalf of his minor son.
Mahr fixed by the father at the time of marriage on behalf of his minor son is
binding on the minor son on his majority.
• Specified Dower is further divided into two parts i) Prompt dower
(muajjal) ii) Deferred dower (muvajjal)
i) Prompt dower (muajjal) –.
 • A technical term for Prompt is Muajjal. The word Muajjal is
originated from a root meaning ‘hasten’, ‘to proceed’.
• Prompt dower is payable instantly after marriage on demand. A
wife can refuse to enter into the conjugal domicile of husband
until the payment of the prompt dower is provided.
• When dower is paid, it is usually split into two equal parts, one
part is paid at once or on-demand and the other on the death of
the husband or after the dissolution of the marriage or at the
happening of some specified event.
• Even after consummation of marriage Prompt dower does not
become deferred.
• It is only on the payment of prompt dower that the husband is
entitled to enforce conjugal rights.
• Prompt dower is payable on demand.
ii) Deferred dower (muvajjal)
• A technical term for Deferred is Muvajjal. The word Muvajjal is
originated from the root meaning ‘delayed’ or ‘deferred.’
• It is payable on dissolution of marriage either by death or divorce.
If the wife dies, her heirs may claim, the mahr. On husband’s
death or divorce, she may sue and recover.
• The wife is not entitled to demand payment of deferred dower.
• The widow has the right to relinquish her dower at the time of her
husband’s funeral by the recital of formula.
• The interest of the wife in the deferred dower is a vested one and
not a contingent one.
b) Unspecified or Proper dower (mahrul misal) –
It is the obligation as well as the legal responsibility of the husband to pay and
it does not depend upon any contract between the parties. Therefore, the
husband is bound to pay Mahr even if it is not specified. The only question
would be about the quantum. If no Mahr is paid to the wife then, the wife will
be entitled to receive the amount which is customary in the community or
respective society, what is proper dower in each case will be determined as
under –

• Concerning the social position of her father’s family.

• Her qualifications.
• The social and economic position of the husband.
• Wife’s age, beauty, fortune, understanding, and virtues.
 • Mahr paid earlier in their family (i.e., Mahr generally settled for
women in the wife’s father’s family such as her sister, paternal
aunt, etc)

5.What are the essentials of a valid marriage under Mohammedan law.

Essentials of Valid Marriage
There are various ceremonial rites which are performed in a marriage and
before marriage however they are not essential for a valid marriage and not
ley necessary. The essentials of a valid Muslim marriage are:

1. Proposal and Acceptance

2. Competent parties
3. No legal disability.
1.Proposal and Acceptance
Just like any other contract marriage also consists of a proposal, i.e. ijab and its
acceptance, i.e. qabool. In a muslim marriage both the parties of marriage (the
girl and the boy) shall agree and give their consent to get married. The
acceptance of the proposal must be done in front of two male or one male and
two female witnesses who are sane and adult and muslim. It is essential that
the proposal and acceptance both must be done at the same meeting.
It is necessary that the consent provided for the marriage is free consent and
not under any kind of influence or fear or with any condition. That will make
the marriage invalid.

In Rashida Khatoon v. S.k. Islam(2) A man promised a lady to marry her and
cohabited with her. After some time a child was born and the women claimed
the status of wife. In this case court observed that a valid muslim marriage
requires the proposal of a party and acceptance of the other in front of two
male or one male and two female witnesses and the Qaji. And both the
proposal and acceptance of it shall be done in one meeting. In the present case
there was no marriage thus the women does not constitute the status of
validly married women.

2. Competent parties
A competent party to a contract is

• An adult
• Sane
 • Free consent
If the parties to the marriage are adult which means has attained the puberty
are sane not idiot or lunatic and give their consent freely to the marriage the
marriage would be held valid.
Puberty means the age at which a persons becomes capable of performing
sexual intercourse and procreating children. Among muslims the age of
puberty was presumed to be 12 for boys and 9 for girls which is now
substituted by Child Marriage Restraint act 1978 and made provision that the
marriage of boy below the age of 21 and a girl below the age of 18 would be
child marriage and people responsible for this are subject to punishment.

3.Legal disability
It means the existence of certain circumstances under which a marriage will
not be permitted. These prohibitions are divided as follows;
• a. Absolute incapacity
• b. Relative incapacity
• c. Prohibitory incapacity
• d. Directory incapacity
A. Absolute incapacity
Absolute incapacity to marriage arises from

• Consanguinity (Qurbat)– Consanguinity means blood relationship

like mother, grandmother, daughter, sister
• Affinity(Mushaarat)– A man is prohibited from marrying his wife’s
mother or grand mother, his wife’s daughter and grand daughter,
wife of his father or grand father and wife of his son or son’s son.
• Fosterage(Riza)- A child under the age of two years suckled by a
women other than his mother becomes her foster child and he as
a man can not marry his foster mother, sister etc.
B. Relative incapacity
It is the prohibition which bars the marriage only for the duration it exists and
as soon as the causes of this prohibition are removed the marriage becomes
valid.
The following are the cases of relative incapacity;

1. Unlawful conjunction
2. Marrying a fifth wife
3. Absence of proper witnesses
 4. Differences of religion
5. Woman undergoing iddat
C. Prohibitive incapacity
It arises in following cases:
1. Polyandry (a women has more than one husband)
2. Muslim women marrying a non muslim.
D. Directory incapacity
It arises from

1. Marrying a women ‘enciente’ i.e, pregnant.

2. Prohibition of divorce
3. Marriage during pilgrimage
4. Marriage with a sickman.
Conclusion
Thus under muslim law a marriage is just like a contract which validates the
sexual intercourse between two adults who are sane, are of marriageable age,
and is valid only when it is performed in the presence of witnesses by Ijab-o-
qabool and with free consent and should defeat all the legal disabilities.

6.Write a note on Shariat act 1937.

Shariat Act could also be referred to as the Muslim Personal Law. It extends to the
entire of the Republic of India except for the State of Jammu and Kashmir.

Personal Law of Muslims under the Shariat Act

If any act includes any provisions that might be in contradiction to the spirit of
this act, it will still stand. It will stand true for all questions regarding intestate
succession. The special property of females, including personal property
inherited or obtained under contract or gift or the other provision of personal
law is included

Marriage, dissolution of wedding, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties,
and wakfs (other than charities and charitable institutions and charitable and
spiritual endowments) the rule of resolution in cases wherever the parties are
Muslims shall be the Muslim Personal Law (Shariat).
The Shariat Act provides that in a case where both the parties are Muslims then
the rule for decision shall be Muslim Law if the case involves any of the following
matters:

• Intestate succession
• A special property of the females
• Marriage
• Dissolution of marriage
• Maintenance
• Dower
• Guardianship
• Gift
• Trust and trust properties,
• Wakf
If both the parties in a case are Muslims then there shall be an application of
Muslim Personal Law.

Power to make a Declaration

Any person who satisfies all the undermentioned prescribed authority—

• that he is a Muslim
• that he’s capable and efficient to contract within the meaning of
section 11 of the Indian Contract Act, 1872
• that he’s a resident of the territories to which this Act extends
may by declaration within the prescribed kind and filed before the prescribed
authority declare that he wishes to get the advantage of the provisions of this
section, and thereafter the provisions of section 2 shall apply to the declarant
and all his minor kids and their descendants as if in addition to the matters
enumerated, adoption, wills, and legacies were also specified.
Where the prescribed authority denies a declaration under subsection 1, the
person willing to make the same may appeal to such office as the State
Government may, by general or special order, appoint in this behalf, and such
officer may, if he is satisfied that the appellant is entitled to make the
declaration, order the prescribed authority to accept the same.

Rule Making power

• The authorities could build rules to hold into impact the needs of
this Act.
• Particularly and without prejudice to the generality of the aforesaid
powers, such rules may provide for all or any of the following
matters, namely:
a. for prescribing the authority before whom and therefore the kind
within which declarations beneath this Act shall be made;
b. for prescribing the fees to be obtained for the filing of declarations
and for the attending at personal residences of someone within the
discharge of his duties beneath this Act; and for prescribing the times
at which such fees shall be collectible and therefore the manner
within which they shall be levied.
• Rules created beneath the provisions of this section shall be
published, within the Official Gazette and shall thereupon have an
impact as if enacted in this Act.
• Each rule created by the authorities beneath this Act shall be
arranged, as soon as it is made, before the State Legislature.
• Dissolution of the wedding by Court in specific but not explicitly
named or stated circumstances.—Rep. by the Dissolution of Muslim
Marriages Act, 1939 (8 of 1939), sec. 6 (17-3-1939).

7.Discuss the different modes of Talak.

Introduction:

“Muslim marriage is a contract for the purpose of legalizing sexual intercourse

and the procreation of children” is a quote by Ronal Wilson. When there is a
contract, the option to end the contract also arises by the option of parties.
Divorce under Muslim law serves that option. From the beginning, Islam
recognizes judicial and extrajudicial divorce. Divorce under Muslim law can be
done in various forms and can be classified as follows depending on the parties
to the divorce.

1. Divorce by husband
2. Divorce by wife
3. Divorce did mutually
Divorce can be done by the husband in the following three ways.

1. Talaq(repudiation)
2. Ila (vow of Continence)
3. Zihar (Injurious assimilation)
Various modes of talaq or divorce under muslim law are discussed bellow –

Talaq:

The word “talaq” is an Arabic word that means “undoing of or release from a
knot”. There is a chapter in the Quran named At-Talaq which is ordered as the
65th chapter in the Holy Quran. The chapter has verses that deal with the
provision of Talaq. Under Muslim law, a mentally sound and major husband
can divorce his wife without the intervention of the court and without
assigning a reason for his actions. This is unique nature of Talaq under Muslim
law. As it gives arbitrary power to the husband, it is regulated by certain
safeguards in practice which will be discussed.

Imam Al-Ghazali remarks that divorce under muslim law is permissible only
when the object is not to trouble the wife but only in the case where there are
extreme necessities and where the grounds are just. Pronouncing Talaq means
declaring one’s intention to divorce his wife. Talaq must be pronounced by the
husband under free consent except under Hanafi law.

Under Hanafi law, talaq is valid if it is pronounced under coercion, compulsion,

undue influence, fraud, and voluntary toxication. Talaq pronounced under
involuntary toxic is void even under Hanafi law. One should pronounce the
talaq during the period when the wife is in the pure stage i.e., “tuhr” period. In
other words. One should pronounce talaq during the interval between two
menstruations.
Talaq can be further classified as

(a) Talaq al-Sunnah:

This conforms with the dictates of the prophet. These types of talaq are in
revocable forms. A revocable form of pronouncement of talaq gives a “locus
poenitentiae” to man. It is also further divided as

(b) Talaq e Ahsan:

Talaq-e-Ahsan is the most proper form of talaq as it provides the husband with
the adequate opportunity to reconsider his divorce if he has given the divorce
in hastiness. In talaq-e-Ahsan, Talaq is pronounced during the tuhr period and
it is pronounced thrice i.e., during three consecutive tuhr periods. the
condition of tuhr is not necessary if the parties have been away from each
other for a long time or where the wife is old so that she is beyond the age of
menstruation. After the lapse of the period of Iddah after the pronouncement
of the third talaq, talaq becomes irrevocable.

Talaq e Ahsan gets completed after the period of Iddah only. It is important to
note that talaq pronounced in the Ahsan form is revocable during the period of
Iddah. Iddah is the period of three menstrual courses after the declaration of
the third talaq or if until delivery if the woman is pregnant. The revocation may
be done either by words or by conduct. Resumption of conjugal intercourse is
a clear case of revocation done by conduct. For instance, if a person
pronounces a single revocable talaq and then says that he has retained her or
cohabited with her is the form of revocation. As the husband has ample
opportunity to reconsider his divorce in this form, this is considered to be the
most proper method.

(c) Talaq e Hasan:

Talaq-e-Hasan is also considered to be the proper method though it is not

proper as the previous method. It differs from the previous method that the
third talaq pronounced during the third tuhr completes the divorce between
the husband and wife.
Illustratively, the first pronouncement of talaq is made during a tuhr period,
the followingly second pronouncement is made during the next “tuhr” period
and final or third pronouncement is made during the third “tuhr”.

Talaq Hasan completes if any form of revocation has not been done during the
in-between period. There should be abstinence from sexual intercourse during
the period in between. Talaq pronounced in Hasan form could be revoked only
until the pronouncement of the third talaq and it becomes irrevocable after
the pronouncement of the third talaq. Here, it is not necessary to wait for the
whole period of Iddah after the pronouncement of the third talaq to make
talaq complete. This is the reason which makes it not the most proper form as
the above form though it is considered as a proper method as there is time to
reconsider his decision until the pronouncement of the third talaq.

(d) Talaq–al Biddat:

Talaq–al Biddat includes irrevocable forms of divorce. It is not considered as a

proper form of divorce. It came into practice during the second century of
Islam when Omayyad monarchs found that the check imposed by the Prophet
Muhammad on the facility of repudiation is interfered with by the indulgence
of their caprice. And they endeavored to find a loophole from the strict nature
of law. Fyzee denounces such type of talaq as “absurd and unjust”. He also
suggests proper remedy should wipe away from them by a statue. These are of
two disapproved forms:

The triple talaq:

This is also called talaq ul Bain where three pronouncements of talaq are made
in a single tuhr. For example, saying “I divorce thee thrice” or saying “I divorce
thee, I divorce thee, I divorce thee” I.e., “Talaq, Talaq, Talaq”. Such a talaq is
unlawful in Shia law i.e., this type of talaq is not permissible under Shia law.
Maliki school of Sunni jurisprudence too denies the validity of Triple talaq.
Hanafi and Shafi consider this talaq as lawful and effective though in its
commission man incur a sin according to Shafi and Hanafi jurisprudence.

Nikkah Halala:

Nikkah Halala is important to note in addition to Talaq-e-Biddat. This is a

stringent condition laid down in order to restrict the husband to the form of
Talaq-e-Biddat as this talaq is pronounced in hastiness by the husband. The
condition is that if the husband wants to remarry the wife to whom the talaq is
pronounced, He cannot remarry her unless the wife is married to another
person and consummation must occur between them and thereafter the
dissolution of marriage occurs. Such a type of marriage is called Nikkah Halala.

This is also called as tahleel marriage. Then after dissolution, the first husband
could remarry her. If the marriage is done without this condition being
satisfied it would be an irregular marriage.

Talaq–E-Tafweez:

It is a delegated divorce. This form of divorce differ from all the above forms of
divorce as this form of divorce is at the instance of a wife. Here the power of
Talaq is delegated to the wife by the husband under an agreement between
them. The Muslim wife at the time of the marriage can reserve a right for
herself to dissolve the marriage under certain contingencies in the marriage
deed. Once the power is given by the husband to the wife, it cannot be
revoked. Tafwid is of three kinds:

Ikhtiyar – Giving wife the authority to talaq herself

Amr bi yad – Leaving the matter in the wife’s own hand

Mashia – Giving her option to do what she likes

All these kinds when discussed, get wind up in one, i.e., leaving in her hand to
do what she likes. The stipulations must be valid and not opposed to public
policy. The mere happening of the condition is not sufficient but there shall be
a formal pronouncement of divorce. This formal pronouncement of divorce
should be made either to the husband or in the presence of witnesses. The
wife must clearly explain the events entitling her to exercise her option and
also that she has actually exercised her option.

Conclusion:
The nature of talaq, its types, and its revoking nature are discussed. There are
also other forms of divorce under Muslim law. Ila and zihar are other forms of
divorce by Husband. Khula is another form of divorce by the wife. Mubaraa is
another form of divorce that is done mutually. Lian and Faskh are other forms
of dissolution of marriage which are done by the judicial process.

8.What are the powers of guardians under Mohammedan law.

Introduction:
A person who is authorized underneath the law to guard the person or property
of a minor is called a guardian. Under Muslim law, guardians are needed for the
aim of a wedding, for protecting the minor’s person and for protecting the
minor’s property.
Muslim law recognizes the following kind of guardianship:

1. A natural or legal guardian

2. Testamentary guardian
3. Guardian appointed by courts or statutory guardian
4. De-facto guardian

The Hindu law relating to guardianship of a minor child is the Hindu Minority
and Guardianship Act, 1956. According to Section 4(a) of the Act, a minor is a
person who has not attained the age of eighteen. According to Section 4(b) of
the Act, a guardian is a person who is responsible for the care of the child or
the child’s property or both.
a) Fiduciary relation of guardian to ward ( Section 20)

b) Capacity of minors to act as guardians (Section 21)

c) Duties of guardian of the person (Section 24)

d) Title of guardian to custody of ward ( section 25)

e) Duties of guardian property (Section 27)

f) Power of Testamentary guardian ( Section 28)

* Power of mortgage or charge

* Transfer by sale

* gift

* Exchange of immovable property

* Lease of any part of that property for a firm exceeding five years or for any
term extending more than one year beyond the date on which the ward will
cease to be a minor

9.Define will? State the limitations on a Mohammedan in making a will.

Introduction
“A will or Wassiyat” is a device or can we say as an instrument with the help of
which an owner of the property makes a disposition of his property, that is, to
take effect after the death of such a person and by the virtue of its nature
is rescindable.
In terms of general law in India, mentioned under Section 2 of the Indian
Succession Act, 1925. A Will is meant to dispose off property. There should be
some property that is being given to others when the testator dies. Certain
formalities must be complied with so as to form a valid Will.

A Will is the declaration by the owner as to how his property is to be distributed

after his death. A will takes effect on the testators death and may be revoked
at any time before his death.

Limitations :

1) It should be lawfully made are should exit at the time of the legator’s
death
2) Can be made orally or by clear gestures and they are valid
3) The legator’s intention to make the will
 4) Term and condition of the Will
5) Provision of the Will
6) The legator’s clear intention should be proved
7) His signature is not essential
8) If the will is signed it need not be attested
9) Revocation can be done only by the legato dining his life time and not by
his heirs

10) Revocation of a will by the legator may be express or implied by the

legator’s conduct

11) After the legatee’s death the legator’s can revoke the will

13) If the legator’s heir the will shall lapse

10.What are the powers of Mutawalli.

Introduction:
Mutawalli, is defined as the person appointed by a competent authority for
managing and administering wakf. Thus, a Mutawalli is more like a manager
than a trustee and so far as the wakf property is concerned, he has to see that
the beneficiaries get an advantage of the usufruct. Unlike a trustee, he is not
an owner of the property therefore he cannot sell the property. So, technically
the position of Mutawalli under muslim law is different from that of a trustee.
In Syed Mustafa Peeran Sahib vs State wakf board High court held that the
definition of mutawalli includes a person who for the time being manages wakf
property. Hence he is merely a manager or a supervisor.
A mutawalli has not only to bear the legal responsibilities but must perform
the religious responsibilities as well. The position of mutawalli had been
explained in the case of Syed Ahmad v. Hafiz Zahid, it stated that the position
of mutawalli is not merely the manager or servant of waqf, and to carry out the
directions of wakif as mentioned in the deed, but rather a significant one. He
has the right to exercise his discretion and take decisions diligently while
managing a wakf.
Powers and duties of Mutawalli
Being the manager and superintendent of the property he has the following
powers and duties-

• To take all reasonable actions in good faith.

• To protect the interest of the wakf.
• To discharge all the public dues, and carry out all the necessary
acts which are lawfully required.
• To appoint his successor on death bed, in case the founder and
executor of wakf are dead and there is no other way to appoint
the mutawalli.
• To carry out the directions of the board in accordance with the
said act(Wakf Act) or any rule or order.
• To furnish such returns and supply such information which is
needed by the board in accordance with the provisions of the
Wakf Act.
• To allow inspection of waqf properties, accounts or records or
deeds and documents.

11.Write a note on succession certificate.

Introduction
The provision of succession certificate is stated in the Indian succession act,
1925 with the types of property, be it movable or immovable of the deceased
person.

A Document issued by the competent court (civil) with appropriate jurisdiction,

whether in terms of territory or pecuniary, to the rightful heir of the person
who died intestate can be termed a succession certificate. This certificate
authorizes the successor to realize the debts and securities of the deceased
person. This certificate is valid everywhere in the country. The importance of
such a certificate differs with the kind of property, as movable property is of
less importance as compared to immovable property.

Legal heirs can claim the properties of the person, who died intestate, with the
succession certificate and it can be used as primary evidence of such. The
classes of legal heirs are mentioned in The Hindu Succession Act, 1956 for
Hindus. Whereas The Indian succession act is applicable irrespective of the
religion.
Rights of a certificate holder

1. Through the succession certificate, any person being a legal heir can
claim the assets and properties of the deceased.
2. To be the person who releases the debts and securities owed to or
payable on behalf of the person who died.
3. The holder shall also inherit the person’s debt and liabilities.

Who can apply for a certificate

1. Spouse of the deceased.

2. Children of the deceased. (Irrespective of gender)
3. Parents of the deceased.
4. Siblings of the deceased.

How to obtain a succession certificate

The role of the civil court comes into the picture, when the legal heir wants to
obtain the succession certificate, The jurisdiction needs to be kept in mind, this
can be ascertained by checking where the properties are situated. Names of all
heirs and details about time and place of death should be specially and
correctly mentioned in the application. Legal heirs are also bound to produce a
death certificate. Once the petition is received, the court issues a notice in the
newspaper, especially the local ones along with notice to respondents and if
more than one, to all respondents. Within the period of 45 days from the
issuance of a notice, the objection (if any) can be raised with necessary
documentary proofs.

On the expiry of the time, if the court does not receive any responses and no
one contests the petition, the court passes an order on the succession
certificate in favour of the petitioner. For issuance of the certificate, the court
levies a particular but reasonable percentage of the value of the estate as the
court fee for granting of certification. This must be paid in the form of judicial
stamp papers of a sufficient amount, after which the certificate shall be typed,
duly signed, and delivered.

Validity of succession certificate

The succession certificate is valid anywhere within India. However, where a
certificate has been granted in a foreign country, by an Indian representative
(as appointed by the union government), if the certificate is properly stamped
as per prescribed rules, then only the certificate will stand valid.

Effect of the certificate

If such payments, mentioned in the certificate, are made with bonafide
intentions then this certificate will provide protection to all parties paying
debts. Such payments shall be legally valid, and no further objections can be
raised.

There is a separate provision for determining who all will fall in the category of
legal heirs. Many times this question arises regarding the relation of caste and
the time frame for succession certificate, but the truth is that there is no time
limit prescribed for such and no relation of caste mentioned. The succession
certificate, when issued by the court after all due procedures, comes into the
category of a valid document.

There is also an alternative for the succession certificate, which is known as the
legal heir certificate along with other documents. The procedure of succession
certificate is time-consuming in comparison to others, therefore a legal heir
certificate is preferred. Both can be used in establishing inheritance and aiding
in the transfer of assets.

12.Write a note on Death bel gift.

The Muslim population of India is governed by the Muslim Personal
Law(Shariat) Application Act, 1937. Shariat is a personal civil law which deals
with succession, inheritance, marriage, and charity among Muslims. Except for
the state of Goa, India does not have a uniform civil code, and thus Muslims
are allowed to follow their personal civil law. Under this law exists a provision
for a gift which is kind of ambiguous, that is, neither exactly a gift, nor exactly a
legacy, but partaking in the nature of both, Marz-ul-Maut. Marz-ul-Maut
means death-bed gift, which is a concept recognized by many systems of law.
It is based on the principle of mortis causa meaning in contemplation of
approaching death.
Important provisions
As per Shariat law, following two restrictions are imposed on the death-bed
gifts:

• There can be no disqualification of a successor or heir.

• The net value of the property that can be disposed of must not be
greater than 1/3rd of the total value of the assets.
Except with the consent of the heirs, the Shariat law is inviolable. Therefore, no
Muslim, on his own, can disown any heir while making a will during Marz-ul-
Maut. Shariat also imposes certain conditions on Marz-ul-Maut, these are as
follows:

1. The illness or malady must result in death.

2. Such illness must cause a genuine apprehension of death in the mind
of the sufferer.
3. In case a person does not die, the will made by him will be null and
void.
4. Mere apprehension of death because of old age is not a ground for
Marz-ul-Maut. Therefore, a man dying from natural causes owing to
his old age does not come under the purview of this law.
5. There should be some external indication of the malady or serious
illness.
6. Delivery of possession must be given to the donee.
Conditions stated above are discussed as follows:

Death of the testator

The person who makes a transfer under Mar-ul-Maut must be suffering from a
serious illness or malady which results in his death. In case the person does not
die, the transfer will not be considered valid. The death of the donor is an
essential ingredient of Marz-ul-Maut gift, in case the transferor does not die,
such transfer is not considered as Marz-ul-Maut and then the only question
will be whether there has been a valid Hiba. If it is a valid Hiba then it will take
effect as Hiba.
In the case of Sarabai v. Rabiabai, the court said that to constitute a malady as
Marz-ul-Maut, there must be a proximate danger of death which causes the
preponderance of the apprehension of death, a degree of subjective
apprehension of death in the mind of the sick person, and some external
indicia, such as an inability to perform one’s ordinary avocations. Although, if a
person is attending to his ordinary vocation it does not imply that such a
person is definitely not suffering from Marz-ul-Maut.

Safia Begum vs Abdul Rajak case upholds the principle that the burden of
proving the existence of the death-illness of the donor, falls upon the party
asserting it.

13.Write a note on uniform civil code.

Article 44 of the Indian Constitution states that “the State shall endeavour to
secure for the citizens a uniform civil code (UCC) throughout the territory of
India.” The desirability of a uniform civil code is consistent with human rights
and the principles of equality, fairness and justice.

After the revocation of Article 370, the central family law Acts were extended
to Jammu and Kashmir. Although, this is another step towards implementing
UCC throughout India, still a long distance is to be covered in this pursuit.

What is UCC?

▪ The Uniform Civil Code (UCC) calls for the formulation of one law for
India, which would be applicable to all religious communities in
matters such as marriage, divorce, inheritance, adoption.
▪ The code comes under Article 44 of the Constitution, which lays
down that the state shall endeavour to secure a Uniform Civil Code
for the citizens throughout the territory of India.
Background of Uniform Civil Code

▪ The origin of the UCC dates back to colonial India when the British
government submitted its report in 1835 stressing the need for
uniformity in the codification of Indian law relating to crimes,
evidence, and contracts, specifically recommending that personal
laws of Hindus and Muslims be kept outside such codification.
 ▪ Increase in legislation dealing with personal issues in the far end of
the British rule forced the government to form the B N Rau
Committee to codify Hindu law in 1941.
▪ Based on these recommendations, a bill was then adopted in 1956
as the Hindu Succession Act to amend and codify the law relating to
intestate or unwilled succession, among Hindus, Buddhists, Jains,
and Sikhs.
o However, there were separate personal laws for muslim,
chirstian and Parsis.
▪ In order to bring uniformity, the courts have often said in their
judgements that the government should move towards a uniform
civil code.
o The judgement in the Shah Bano case is well known, but
the courts have made the same point in several other
major judgements.
▪ By arguing that practices such as triple talaq and polygamy impact
adversely on the right of women to a life of dignity, the Centre has
raised the question whether constitutional protection given to
religious practices should extend even to those that are not in
compliance with fundamental rights.
UCC and Implications

▪ Protection to Vulnerable Section of Society: The UCC aims to

provide protection to vulnerable sections as envisaged by
Ambedkar including women and religious minorities, while also
promoting nationalistic fervour through unity.
▪ Simplification of Laws: The code will simplify the complex laws
around marriage ceremonies, inheritance, succession, adoptions
making them one for all. The same civil law will then be applicable
to all citizens irrespective of their faith.
o When enacted the code will work to simplify laws that
are segregated at present on the basis of religious beliefs
like the Hindu code bill, Sharia law, and others.
▪ Adhering to Ideal of Secularism: Secularism is the objective
enshrined in the Preamble, a secular republic needs a common law
for all citizens rather than differentiated rules based on religious
practices.
 ▪ Gender Justice: India has separate sets of personal laws for each
religion governing marriages, divorce, succession, adoption and
maintenance.
o However, the rights of women are usually limited under
religious law, be it Hindu or Muslim. The practice of triple
talaq is a classic example.
o If a uniform civil code is enacted, all personal laws will
cease to exist. It will do away with gender biases in
Muslim law, Hindu law and Christian law that have been
often challenged by women on the ground that they
violate the right to equality.
14.Define privileged will. State the rules for executing privileged bill.
Introduction:
A privileged will is one that can be made by a member of the Armed Forces
engaged in actual warfare or employed in a certain expedition. As a will is
nothing but a legal declaration, certain formalities must be met with for
making a valid will in India. However, considering the associated possibility and
dangers of sudden death and lack of time, owing to the nature of their line of
duty, such formalities are somewhat relaxed for the armed forces. This is what
separates a privileged will from other forms of wills such as an unprivileged
will. In India, the privileged will cases are governed by the Succession Act of
1925.
the major benefits of having a privileged will in india -
The minimum age criteria is dispensed with
In contrast to other forms of will, even a person below the age of 18 years can
create a valid privileged will. This is important for young people under 18 years
of age, who are recruited in the Armed Forces. Because of their tender age,
they would not be able to create a conventional will otherwise.
Provision of Tax exemption
As per section 154 of the Indian Inheritance Tax Act of 1984, the exemption is
allowed on the assets passed on by a privileged will in india. This exemption is
granted on the estates of present/former members of the Armed Forces if an
active service has led to their death.
Extended validity
The validity of privileged will gets extended after the creator has left the
Armed Forces, has no longer been amidst the dangers of operational duties or
even after a war has ended. Also, the creator is free to make alterations in his
will even after the change of circumstances which gave him the power to make
the privileged will earlier. He will still be assumed to be in the privileged status.
Can be executed at a short notice
Because of the inherent relaxations, a privileged will in family law can be
executed at a short notice. This is extremely helpful in situations when an
Armed Force Personnel is about to put his life at risk.
a privileged will can be executed by adhering to the following rules-
• If the privileged will is written by the testator in whole, with his own
hand, there is no need to sign or attest the same
• If the privileged will is written in whole or in part by another person but,
is signed by the testator, there is no need to attest the same
• If the privileged will is written in whole or in part by another person but,
is not signed by the testator, the same will be deemed as a ‘will’ if
It is written at the direction of the testator, or
• The testator recognizes it to be his will

• It is not mandatory for a privileged will to be signed in the presence of

two independent witnesses. Also, there is no need for a witness to be
present while making any alterations to a privileged will.
A privileged will can be revoked as well, without completing the formalities
required for that of a conventional will, only if the testator has remained in
privileged status. But, if the testator is no longer in the war zone or has left the
Armed Services altogether, he must revoke the Will in complete accordance
with the provisions mentioned in the Wills Act, 1837.
15.Who is a curator? When he shall be appointed? What are his duties.
(Section 192 to 210)

In terms of the Administration of Estates Act 66 of 1965, a curator is defined as,

“any person who is authorized to act under letters of curatorship granted or
signed and sealed by a Master, or under an endorsement made in terms of
section 72 (seventy-two). A natural person may be placed under curatorship,
entailing that his or her property is under the care and/or administration of the
curator.

If the Judge of any district has appointed a curator; in respect to the whole of
the property of a deceased person, such appointment shall preclude the Judge
of any other district within the same State from appointing any other curator,
but the appointment of a curator in respect of a portion of the property of the
deceased shall not preclude the appointment within the same State of another
curator in respect of the residue or any portion thereof

Provided that no Judge shall appoint curator or entertain a summary

proceeding in respect of property which is the subject of a summary
proceeding previously instituted under this Part before another Judge:

Provided, further, that if two or more curators are appointed by different Judges
for several parts of an estate, the High Court may make such order as it thinks
fit for the appointment of one curator of the whole property.

When the owner of the property dies, the relation try to take possession of the
property. If he dies intestate the property should be legitimately taken
possession by his legal heir, if he written a will it should go the executor or
administrator.

• The Person who is entitled to possession of the property may file an

application within 6 months of the death of the testator. Before the
District Judge of the District where the property is situated.
• Any agent relative or friend may file the application on behalf of a minor
or a person who is absent.
• The judge shall examine the applicant and make other enquiries and on
satisfaction that the party in possession has no lawful title
• The district judge laws publication of notice of vacant or disbursed
possession.
 • Under the order of the District Judge, the person having right possesses is
put in possession. The decision of the District Judge is final.
• The District judge appoints an officer who shall take an inventory of
effects and the seal or service the same such an officer is called curator.
• The district judge shall take security from the curator for the faithful
discharge of his trust and may authorize him to receive out of the property
such remuneration not exceeding 5% till surplus money released by the
curator is to be paid to the court.

Powers of Curator and duties

• Prevent misappropriation or waste of property

• A Curator appointed should not exercise any authority power lawfully
belonging to the holder of the certificate
• Payment of debts etc
• Probate or letters of administration

16.Write a note on right of pre-emption and family courts.

Introduction:

Pre-emption law has its origin in the saying of the prophet. Pre-emption or
shufa means conjunction, which is adjacent. In the case of Govind Dayal v.
Inaytullah (1885), Mahmood J describes pre-emption as, “… a right which the
owner of certain immovable property possesses, as such, for the quiet
enjoyment of that immovable property, to obtain, in substitution for the
buyer, proprietary possession of certain other immovable property, not his
own, on such terms as those on which such latter immovable property is sold
to another person.”

Development through cases

Justice Mitter dealt with the case of Sk. Kudratullah v. Mahini (1869), in 2 folds;
firstly, whether the right of pre-emption exists before the actual sale of the
property? and secondly, whether the property which is subjected to the right
of pre-emption is passed on full ownership to the purchaser?

Justice Mitter’s response to both the questions was negative and affirmative
respectively. And concluded that the right to pre-emption is nothing but the
mere right to repurchase.

After 16 years in the case of Gobind Dayal v. Inayatullah explained the real
nature of the right of pre-emption. It was observed that, first, it is unlawful to
sell a property without informing the neighbour. It is up to the neighbour
either to take it or leave it. Second, the concept of pre-emption exists in all
joint properties. And preferential right arises if the vendor fails to inform the
coparcener (neighbour). Hence, right before actual sales. Sale is not the actual
cause of pre-emption.

Further, in the case of Bishan Singh v. Khazan (1958), the Supreme Court
summarized the rules and nature of pre-emption:

• The right of pre-emption is the right to offer the property to be sold.

It is the inherent right or the primary right of the adjacent property’s
owner.
• It is the remedial right of the pre-emptor to follow the thing sold.
• It is not the right to repurchase; it is the right of substitution.
• It is right to acquire the whole property, not the part of it.
• Preference is the essence of the right.
• The right provided is weak and can be defeated by appropriate
methods.

Family Courts:
Family disputes are different from property disputes and hence a separate court
of decide family disputes became necessary. The procedure of conciliation
between the marital spouses and also the protection of the interests of the
children are the twin objectives for setting up family courts.
Subject to the other provisions of this act, family court shall have and exercise
all the jurisdiction. Family courts are established in a town or city where the
population exceed 1,000,000

Appointment of Judges

1) With the concurrence of the high court the state government may appoint
one or more persons to be the judge or judges of a family court
2) When a family court consists of more than one judge qualification for a
judge
3) He should have hell a judicial office in India or the office of a member of
a tribunal or any post under the union or a state requiring special
knowledge of law for at least seven years
Or
4) He should have been an advocate of a High Court or of tie or more such
courts in succession for at least seven years.
5) A judge of a family court should not be above the age of sixty two years

Proceedings before the family court

The following are the proceedings before the family courts

a) Divorce:
A suit or proceeding between the parties to a marriage for decree
of a nullity marriage. Restitution of conjugal rights or judicial
separation or dissolution of marriage

b) A suit or proceeding for an order or injunction in circumstances arising

out of a martial relationship
• A suit or proceeding for maintenance (Alimony)
 • A suit or proceedings in relation to the guardianship of any member

17.Explain different forms of talak? When talak becomes Irrevocable.

Refer Q.No.07 for Different forms of Talak

When talak becomes Irrevocable.

• After the third pronouncement, the talak becomes complete and

irrevocable. So during the period of Iddat the sexual intercourse will not
revoke the divorce . After the third pronouncement, if the children are
born, they become illegitimate.
• Talak – ul– biddat ( Irrevocable divorce)
It is recognized in sunni law . It is not recognized in shia law.

It is called Irrevocable divorce. Here the husband pronounced Talak 3

times. After this triple pronouncement, the marriage gets dissolved and is
irrevocable
Once the Talaq is pronounced by the husband or the Talak name (Deed)
is executed, immediately the marriage gets dissolved. There is the waiting
period. This kind of divorce is not in conformity with the traditions
prescribed by the prophet and considered sinful, though it is legally valid.

18.Nullity of marriage under Indian divorce act.

Introduction:

(Section 18)

A husband or wife may present a petition to the District Court praying that his /
her marriage declared null and void.

A marriage may be nullified on the following grounds

 1) The respondent had been impotent at the time of marriage and at the
time of institution of the suit.
2) The petitioner and Respondent are in prohibited dyers of
consanguinity or affinity.
3) The Petitioner and Respondent was a lunatic or idiot at the time of the
marriage.
4) The former wife / husband of the Petitioner or respondent was living
at the time of the marriage
5) Bigamy

The grounds for voidable marriage are:

• In case the respondent is impotent

• In case of incapacity to give valid consent or forced consent of parties or
mental illness or person unfit for procreation of a child
• Underaged marriage
• If the respondent was pregnant by some other person at the time of
marriage.

19.What is Wakf? Explain the essentials of valid wakf.

Wakf literally means tying up or detention. The one who makes Waqf is
called Wakif. Deed is Wakf-nama.

According to the accepted view, Wakf is the detention of the property in the
ownership of God.

Quran is silent regarding Wakf, but Quran does say something about charity. In
simple words, when a person ties up his property to God and keeps the
usufruct for the benefit of the public. It may be religious or charitable.
Essentials of Wakf

1. There must be a permanent dedication of a property (movable or

immovable).
2. By a person professing Islam.
3. For any purpose recognised by Islam.

Other Elements

1. There must be a clear intention on the part of the Wakif to create the Wakf.
(Wakif is a creator of Wakf.)

2. Wakif must declare his intention either orally or in writing.

3. The Wakf must be perpetual, which means there should not be a fixed
period.

4. The Wakif must be the owner of the property

5. The object of Wakf should not be in conflict with Islamic principles.

6. The Wakif must be of Muslim, major, and of sound mind. Wakf by minor is
void ab initio. The guardian cannot create a Wakf on behalf of a minor.

7. Wakf should be by a person who is professing Islam.

Exceptionally, Wakf by a non-Muslim is recognised under certain conditions. It

means a Wakf may be created by a person belonging to any religion, but in
such a case, the object of Wakf must not be opposed to the creed (faith) of the
Wakif.

It means a Muslim cannot create a Wakf for the construction of a Hindu

temple, nor can a Hindu create a Wakf for the construction of a mosque.

But where the objects are secular in nature such as college, hospital, etc. then
whether the Wakif is a Hindu or Muslim or Christian, the Wakf would be valid.

8. Wakf must not be contingent or conditional.

20.Define domicile? What are the methods of acquiring domicile under

Indian succession act 1925.
INTRODUCTION
Chapter 2 of the Succession Act of India describes the Concept of Domicile. It
basically has been envisaged for the determination of the civil status of an
individual. But the term is confused sometimes either with nationality or with
the residence.

DOMICILE
Roman Law is considered to be the mother of domicile in Common law. The
general view about the term is ‘permanent home’ and it is defined by the case
of

Lord Cranworth in Whicker v Hume

As:

“By ‘domicile’ we mean home, the permanent home, and if you do not
understand your permanent home, I am afraid that no illustration drawn from
foreign writers or foreign languages will very much help you to it. I think the
best I have heard is one which describes the home as the place ‘unde non sit
discessurus si nihal avocet; unde cum profectus est, peregrinari videtur.’ I think
that it is the best illustration, and I use that word rather than definition, to
describe what I mean.”
IMPORTANCE OF DOMICILE
Domicile is important for certain reasons as follows:

1. It is a connecting factor for various legal systems.

2. It can be used as a jurisdictional link for the assumption of the
jurisdiction and for recognition and assumption of a foreign
court’s jurisdiction.
3. It determines an individual’s certain rights like right to vote, right
to hold public office, etc.
4. A person can not be without a domicile because it is necessary to
connect a person with some legal system to regulate his legal
relations.
Methods of Acquiring:
Procedure for acquiring domicile?

Section 2 of the Indian Succession Act prescribe the mode of acquiring domicile
in India

1) Declaration

2) Deposit

3) Residence

1.Declaration:

The person wishing to acquire the domicile of India should declare his intention
in writing.

2. Deposit

Such declaration in writing must be deposited with the Registrars of domiciles

3. Residence
The person making such declaration and deposit must have resided in India for
at least one year prior to the date of presentation of the declaration

Further,

1. Domicile by origin: Domicile vested with birth of an individual is

said to be domicile by origin. There are three cases of domicile
acquired by the origin. When a child takes birth, he is either
legitimate, or illegitimate, or posthumous. Birth is the first
medium through which a person gets in contact with law and
environment. Domicile by origin is also called as domicile by birth.
According to Section 7 of the Succession Act of India, 1925, a legitimate child
acquires the domicile of his father and a posthumous child acquires the
domicile of the deceased father. And according to section 8 of the same act, an
illegitimate child acquires the domicile of the mother at the time of his birth.

2. Domicile by choice: On attaining the age of majority, one has the

liberty to take and bear responsibilities. He also has the liberty to
make his own choice of domicile. A person of a sound mind who is
a majority by age can choose to acquire the domicile of a place of
his choice when he voluntarily decides to live indefinitely in a
place.
For an instance, if a person stays in India for one year and wishes to acquire
the domicile of India, then he will have to make an official application in a
prescribed manner to a designated government department expressing his
desire. These instances of domicile by choice are governed by the provisions of
Sections 9, 10, 11, 12, and 13 of the Succession Act of India, 1925.
3. Domicile by Operation of Law: In this type, domicile of a person is
determined by the domicile of another person. It is also called as a
domicile by dependence. Three categories of people are
recognized whose domicile has to classified by this type. Those
are:
• A minor
• A married woman
• A person of unsound mind
Under the provisions of sections 14 and 17 of the Succession Act of India, 1925,
the domicile of a minor including an adopted child is recognized who are
dependent on the domicile of their parents. But there are some exceptions. A
child’s domicile may be different from their parents, if:

• He is married
• He has set up a business with the consent of his parents
• He is under the service of the government of India.
The provisions of section 18 of the same act talks about the domicile of a
person who are legally disabled, in particular, a person of an unsound mind,
their domicile is dependent on their parents, guardians, or spouses, if married.
In the case of a married women, by the virtue of marriage, they acquire the
domicile of their husbands. Whereas, in two instances, the domicile of a
married woman may be ceased, firstly, if a court of a competent jurisdiction
grants a decree of dissolution of their marriage, then the domicile of the wife
automatically no longer remain depend on the husband. Secondly, when the
husband serves a prison term, the reliance of the domicile of the wife on the
domicile of the husband gets suspended till the time he is released from the
prison.

21.Explain the law relating to guardianship of the property of a minor.

Introduction:
Guardianship of a minor person means the overall supervision of the minor’s
temperament. It means that the care and welfare of the kid together with the
liability to take care of it. It is more than mere custody of the kid upon a particular
age. Let us learn more about Guardianship under Muslim Law.

What is Guardianship?

Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the
same thing. But underneath Muslim law, these two aspects of the guardianship
are different and are governed by the different laws.

The guardianship of a child means that overall oversight of the kid throughout its
minority. Father or his executor or in his absence, the paternal grandfather,
being the natural guardian, is in charge of the minor’s person. On the opposite
hand, ‘custody of the child’ simply means a physical possession (custody) of the
child upon a certain age.
Although the mother is not the natural guardian of the child under Muslim law,
she has a right to the custody of the child, until the child attains a specific age.
But the father or the paternal grandfather encompasses control over the minor
throughout the complete interval of the minority.

Muslim law recognizes the following kind of guardianship:

1. A natural or legal guardian

2. Testamentary guardian
3. Guardian appointed by courts or statutory guardian
4. De-facto guardian

Natural or Legal Guardian

Natural guardian is a one that encompasses a right to regulate and supervise the
activities of a minor. Father is recognized as the natural guardian of his kid
underneath all the schools of Muslim law. The father’s right to act as guardian of
a minor is an independent right and is given to him underneath the substantive
law of Islam.

A natural guardian is additionally known as a legal guardian. But within the

absence of the father, the father’s executor might also act as a legal guardian.
The executor could be one who is appointed by the father or grandfather to act
as the guardian of his minor kid on his behalf.

Thus, the natural guardian of a minor in order of priority are as follows:

1. Father
2. Executor of father
3. Paternal grandfather
4. The executor of Paternal grandfather
Under Muslim law within the absence of any of the above-mentioned persons,
no one else is recognized as the natural guardian of a minor.

Shia Law
Within the absence of father only paternal grandfather could act as a legal
guardian. In the presence of paternal grandfather, the father’s executor has no
right to act as legal guardian of a child.

Testamentary Guardians

A testamentary guardian may be a one that is appointed as guardian of a minor

beneath a will. Only father or, in his absence, paternal grandfather has the right
to appoint a testamentary guardian.
A non-Muslim and a feminine might also be appointed as a testamentary
guardian.

Shia Law

A non- Muslim cannot be chosen as a testamentary guardian.

Guardians appointed by Court

In case of the absence of a natural and legal document guardian, the court is
authorized to appoint a guardian for the aim of the minor’s person or property or
for both. The appointment of a guardian by the court is ruled by the
Guardianship and Wards Act, 1890 which is applicable to all the Indians
irrespective of their religion. Such guardians are also called Statutory Guardian.

De-facto Guardians

A de-facto guardian is a person who is neither a legal guardian nor a

testamentary guardian or statutory guardian, but has himself assumed the
custody and care of a child. According to Tyabji a de-facto guardian means that
an unauthorized person who, as a matter of fact, has custody of the person of a
minor or his property. A de facto guardian could be a person having no authority
for the guardianship however underneath the circumstances has taken the
responsibility to act as the guardian of a minor.

22.What are the protections available to the Muslim divorced wife under the
Muslim women ( protection of rights on divorce) act 1986.
The Act makes all assertion of talaq, remembering for composed or electronic
structure, is void. Talaq-e-biddat alludes to the training under Muslim
individual laws where declaration of the word ‘talaq’ threefold at a time by an
Muslim male The act makes revelation of talaq a cognizable offense, pulling in
as long as three years’ detainment with a fine

Indian Statutes

Indian Constitution

• The preamble read with Article 25 mentions about secularism and

sovereignty which means a person is free to practice any religion and
that India does not create difference among its citizens on their
religion. Everybody can follow their own laws. Indian constitution
guarantees to all women who lives in India many rights. India has
done numerous works to uplift women. Some of the rights worth
mentioning are:
• Right to equality Article 14: it guarantees that no person due to caste,
sex or religion shall be discriminated in India
• Article 15: which provided for reservation to women and Dalit’s as
well.
• Article 15(3), renounces practices derogatory for a women’s dignity.
• Article 16: that every person should get equal opportunity.
• Article 21: No one shall be deprived of his life and liberty. This for sure
is available for women as well so no women shall be deprived to live
her life and that she deserves liberty to choose her own way of living
a dignified and good life. This also give her a right of choosing her
husband but some data reviles that not many women gets that right
as they get married at very young age and so they didn’t got to either
live their life their way or choose her life partner.
• Article 39(d): which is a duty of state to ensure everyone in the
workplace gets paid according to their work and not their gender or
caste or religion etc. Besides them there are Article 42 and Article
51(A)(e) in the DPSP.
Maintenance

Section 125 CrPC: This section allows every woman to claim maintenance from
her husband. Husband who has sufficient means and who refuses to take care
of his wife or maintain her whoever needs it the courts makes it mandatory for
such husbands to maintain their wives with monthly payments.

Polygamy in India

Polygamy is illegitimate in India since 1956 with exception for Muslims and in
Goa. Section 494 and 495 makes polygamy a crime, also this is a ground for
divorce for those who married under the Hindu Marriage Act as such marriages
are null and void.

Right to Education

It is the fundamental parental duty to teach and educate their children up to

14 so that every female gets educated and do not become dependent on the
males for every work.

Judicial Decisions
Indian courts have put many efforts to improvise the conditions of Muslim
women in India. Some of the important judicial decisions taken by the Indian
courts are the following.

• Shah Bano case

Justice Chandrachud who passed a verdict in shah bano’s favors sixty-year-old
divorced women on the matter regarding her divorce and Mehr. Mehr is
amount of money the husband pays to his wife at the time of marriage, that
money belongs to the wife only. This case was a fight for Muslim Women’s
right in India, and against their Male gender biased Muslim Personal Laws.
Supreme Court helped those Muslim women in fight for their rightful claim
over maintenance.

• The award of Triple Talaq

Shayara Bano v. UOI & Ors. this case managed the divorce practice among
Muslims, which is if on the off chance that any Muslim man said Divorce three
times, at that point he is liberated from his marriage. The Supreme Court laid
its verdict and said that “this non-religious if we check in to the Quran and such
thing should be void and illegal” and shall not be encouraged ever at any cost.
Presently no man can divorce from the spouse by only multiple times
rehashing the words talaq. This additionally fortifies the Muslim women’s
status and rights in India.

23.Write a note on Ua and Zihar.

Zihar ( Injurious assimilation)

If the husband calls his wife as his mother or compare her with any female
relatives who are in prohibited decrees she can deny her company to him till he
attorney for it or she can apply for divorce

During spiritual penance prescribed by religion such practice is allowed, but he

should resume sexual relationship with his wife after such penance. If he does
not observe penance but calls her as his mother, she can claim divorce

Ila ( row of continence) :

In this type the husband swears that he will not have sexual relationship with his
wife for more than 4 months as per the Hanafi Law the marriage gets dissolved
irrevocably on fulfillment of this vow and the order of the court is not a
necessity, but under the shafi Law the wife gets a ground for applying for divorce
and the marriage gets dissolved by obtaining a decree of the court

24.Write a note on legitimacy and legitimation.

Legitimation

Legitimate is a Latin word, meaning to make something lawful. It basically

means adhering or conforming to the laws/rules. Saying that something is
legitimate makes it right, gives it an authoritative or binding character.
Legitimation is the noun form of legitimate.
Legitimacy

From the word, legitimate comes legitimacy which means the power to be
supported with logic and justification. There are far-reaching legal aspects
regarding the status of a child in relation to the child’s parents. A child is
considered legitimate if the child is born of lawfully wedded parents.“Lawfully
wedded/wedlock” means a lawful marriage to be customary, statutory, or
islamic.

A child is presumed to be legitimate under the following condition

• A child being born after six lunar months and one or two days more
• If a child is born termination of marriage
a. Within 2 years ( Hanafi law)
b. Within ten Lusar months (shia law)
c. Within 4 lunar month under the maliki and shafi law

The father may rebut the presumption by proving adultery on the past of the
mother. The previsions of Section 112 of the evidence act are at variance with
the rules of Mohammedan law.

That is if the child is born even a day after marriage the presumption will apply.
In the case of termination of marriage, presumption can be made only if the
child is born within 280 days and the mother should remain unmarried.

Presumption may be rebutted ( Refused by argument) if it is proved that the

spouses did not have any access to each other at the time of the child could
have been begotten

Thus, if a child in burn after 6 months from the date of marriage and within 280
days after termination of marriage would be valid both as per section 112 of the
Evidence act.
Thus, if a child is burn after 6 months from the date of marriage and within 280
days after termination of marriage would be valid both as per Section 112 of the
evidence act.

25.Define probate? Explain the procedure for obtaining probate.

Introduction:
The word ‘Probate’ means to prove or validate something. It is a procedure for
court approval of the Will as the valid and last Will of the deceased testator.
According to the Indian Succession Act, 1925, “Probate of will, when granted
establishes the will from the death of the testator, and renders valid all
intermediate acts of the executor as such.”

It means that when a Will is probated, it gets officially certified with a seal of
the court and provides the authority to the executor to appropriately
distribute the assets of deceased testator and also to pay off bills and creditors
from that estate.

The Requirement of Probate if there is a Will?

It is not mandatory to probate a will as there are various circumstances which
make the probate of will in a certain case unnecessary but rules can vary
from state to state. When the assets are owned by people in joint names with
their children, spouses or other person, then it passes automatically by the
operation of law to the surviving owners and there is no requirement of
probate of Will in distributing the property.
However one requires a probate when the existing Will has a problem. Or, the
testator predeceases the beneficiaries named in the probate. Or, the Will has
no beneficiary named in it or when the deceased testator solely owns an
estate.

Probate is proof of the Will, i.e. evidence of the fact that a Will exists and is
authentic. As defined in the Indian Succession Act, 1925, probate is the copy of
the Will issued to the executor with a seal of court and permission to handle the
estate of the testator.

Probate is an authority given by the court to the executor named in the Will. It
is required to execute the Will as per the wish of the deceased. There is a process
to obtain a legal document called “Grant of probate” from the court.
The executor needs this authority for administering the Will. It is used for
managing the property of the deceased as per the tenor of the Will.

The procedure for probating of will is divided into four simple stages:

1. The first step involves making of application to the District Judge

through a probate petition which must be duly signed and verified by or
on behalf of the applicant. The probate petition should be in a
prescribed format under Code of Civil Procedure, 1908 and it shall be
done after 7 days of testator’s death.
2. The second step is to send the application to the High Court, under
whose jurisdiction property falls. Then a lawyer shall prepare the
application, in some cases lower court can also accept the application.
3. One needs to submit certain documents that can verify the genuineness
of the will, death certificate and other documents. These will prove that
the testator had free will.
4. When the court receives the application, it verifies all the details. Then it
invites the nearest kin of the deceased for claiming the probate. Finally,
it showcases the invitation letter at prominent places for invitation of
any objection. If after 30 days, the court files no objection, the issuance
of the probate is complete.

26.Explain briefly different kind of bequests.

Bequests are a common inclusion in estate planning documents. Trust & Will
explains different types of bequests that may appear in a will.
Courts often classify bequests into two main categories:

• Conditional Bequests: These bequests are transferred only if a particular

event has occurred (basically, there is a “condition” dictating the terms
of the bequest). For example, a bequest that reads “I transfer my gold
pocket watch to Jeff if he gets married” indicates that the watch is
legally transferred to him if and when he gets married.
• Executory Bequests: These bequests are granted only when a particular
event happens in the future. (And if that event never happens, the
bequest may never be granted.) For example, the bequest may be
worded as “Jeff will receive my gold pocket watch when the San
Francisco 49ers win the Super Bowl.” If the 49ers never win the Super
Bowl, then Jeff will not receive the watch, much to his disappointment.
The difference between conditional and executory bequests is very small and
often confusing. However, the wording of the bequest and the language used
can make all the difference. If you need help figuring out how to write a will
provision, or if you need help interpreting what someone else wrote in a will,
you may need to consult a qualified lawyer.

There are also different types of bequests, classified by what type of property
is being specified in the bequest:

• Specific Bequests: Specific bequests refer to specific pieces of property,

transferring that specific property to a specific beneficiary. This bequest
can include a variety of personal belongings, including jewelry, motor
vehicles, and household items. While a specific bequest often involves
giving a particular piece of property, it may also call for the sale of the
property. For example, instead of receiving the motor vehicle itself, the
will may call for the proceeds of a particular motor vehicle to be given to
a particular family member.
• Demonstrative Bequests: This type of bequest is required to be paid
from a specific fund or source, such as a particular bank account or the
sale of stock in a designated corporation. For example, a bequest that
gives “10 shares of Disney stock” to a beneficiary is a demonstrative
bequest. However, it is important to keep in mind that companies are
often bought, sold, or merged. Thus, you may want to include language
stating what should happen if the designated company is acquired by
another entity or changes its name.
• General Bequests: A general bequest is a precise dollar amount or
percentage that does not come from any designated asset. For example,
a bequest that gives “$100 to my cousin Jenny” is general. However, this
type of bequest may depend on the size of the overall estate. If you are
concerned that there may not be enough assets to go around, you can
provide a general bequest in the form of a percentage (such as “2% of
my estate”) rather than a particular dollar amount. You can also consult
an attorney to discuss how general bequests may be affected if the value
of the estate increases or decreases.
• Residuary Bequests: This type of bequest includes all other property
that is not distributed in the other bequests in the will. Generally, this is
the “catch-all” provision, what is “leftover” after all other bequests are
taken care of. Most of the time, this represents the bulk of the estate.
27.Define will? What are the kinds of Wills? How the unprivileged will will be
executed.
Introduction:
A “Will” is a legal document by which a person expresses as to how his/her
movable/immovable property needs to be transferred/ distributed at death.
There are different types of wills and in this blog, we will discuss one of these,
namely, the unprivileged will.
Types of Wills in India
Will is a type of legal document used to transfer the property of a person after
death as per his/her wishes. The importance of Will cannot be stressed enough
as lakhs of civil cases are pending before various Courts for resolving inheritance
disputes. Further, all Wills are revocable at any time during the life of the person
and is a confidential document. Hence, it is important for everyone to know
about the benefits of having a Will and create a Will.

Unprivileged Will
Will created by a person who is not a soldier employed in an expedition or
engaged in actual warfare or a mariner at sea is known as an unprivileged Will.
For an unprivileged Will to be valid, it must satisfy the following conditions:

• The person creating the Will must sign or affix his/her mark to the Will.
Else, some other person should sign as per the directions of the testator
(Person creating the Will) in his/her presence.
• The signature or mark of the testator or the signature of the person
signing for the testator must be placed so that it appears that it was
intended to give effect to the writing as Will.
• The two or more witnesses should attest to the will. The witnesses must
have seen the testator sign or affix his mark to the Will or has seen some
other people sign the Will, in the presence and by the direction of the
testator.

Privileged Will
Privileged Wills are Wills that may be in writing or made by word of mouth by
those in active services like a soldier, airman or mariner. The legal requirement
for the validity of a privileged Will has been reduced to enable certain persons
to quickly make a Will. The following conditions are applicable for a privileged
Will:
 • The testator writes the whole will with his own hand. In such a case, it
need not be signed or attested.
• The testator should sign the privileged Will written wholly or in part by
another person. In such a case, there is no requirement for attestation.
• A Will written wholly or partly by another person and not signed by the
testator is a valid Will if it is proved that it was written by the testator’s
directions or that the testator recognized it as his/her Will.
• A half-completed privileged Will is also considered valid if it is proved that
non-execution was due to some other reason and does not appear to be
an abandonment of intentions to create a Will.
• A privileged Will can be made by word of mouth by declaring intentions.
• If a soldier or airman or mariner has given written or verbal instruction for
the preparation of a Will but has died before it could be prepared and
executed. And such will is a valid Will.

Conditional or Contingent Wills

A Will can be expressed to take effect only in the event of satisfying certain
conditions or can be contingent upon other factors. Such a Will, which is valid
only in the event of the happening of some contingency or condition, and if the
contingency does not happen or the condition fails, is called a conditional or
contingent Will.

Joint Wills
Joint Will is a type of Will wherein two or more persons agree to make a conjoint
Will. If a Joint Will intends to take effect after the death of both persons, then it
would not be enforceable during the life-time of either. The person at any time
during the joint lives or after the death of one can revoke the joint will.

Concurrent Wills
Concurrent Wills are written by one person wherein two or more Wills provide
instructions for disposal of property for the sake of convenience. For instance,
one Will could deal with the disposal of all immovable property whereas another
Will deals with the disposal of all movable property.

Mutual Wills
In a Mutual Will, the testators confer upon each other reciprocal benefits. A
husband and wife will execute a mutual will to pass on all benefits to the other
person during their lifetime.
Duplicate Wills
The testator will create a duplicate will for the sake of safety or safekeeping
with a bank or executor or trustee. However, if the testator destroys the Will in
his/her custody, then the other Will is also considered revoked.

How to execute an Unprivileged Will?

An executor is appointed to ensure the execution of the unprivileged will. He is

given the power to make sure that the contents of the unprivileged will are
executed correctly. He is the person responsible for administering the
execution procedure of an unprivileged will under the succession act.
A probate court is given the responsibility to supervise the executor so that the
wishes mentioned in the will are honoured. It is a part of the judiciary that
handles matters mainly related to wills, estates, guardianship, conservatorship,
etc.
An unprivileged will has no effect during the lifetime of the creator. It can be
enforced only after the death of the creator (the testator). The will gives no
rights whatsoever to the inheritor (legatee) until the testator's death.
However, the testator is well within his rights to change the contents of his will
in any manner, at any time, as deemed fit to him. If an unprivileged will is
pronounced void if it is found to be executed by undue influence, force or
coercion.
An unprivileged will can be revoked as well. A revocation of unprivileged will
can be either voluntary or involuntary. Involuntary revocation of unprivileged
will can only be one by operation of law. An unprivileged will stands revoked if
the testator gets married. Revocation of the will is necessitated not only by
his/her first marriage but by any subsequent marriage as well. The testator can
make any number of wills in his lifetime, but, only the last one, executed
before his death can be enforced by law.
28.Write a note on specific legacy and demonstrative legacy.
Specific legacies ( Section 142)

It is a legacy of a particulars part of the testator’s property which is distinguished

from all other parts of the property
Eg: a gold ornament of the testator. It is not liable to abatement but liable to
ademption. A bequeathed to B

The difference between a specific legacy and c demonstrative legally is that, in

specific legally specific property is given to the legatee. In demonstrative legacy,
legally is directly to be paid out of specified property.

The following are not specific legacies:

1) In the case of a certain sum which is bequeathed the layer is not specific
merely because the stock, funds or securities in which it is invested are
described in the will

Demonstrative Legacies (Section 150)

When a testator bequeaths a certain sum of money or certain quantity of any

other commodity to be paid out of a primary fund or stock, such legacy is said
to be demonstrative legacy.

This is a legally directed to be paid out of particular fund. It is not liable to

ademption. Event if the fund ceases to Event because the legacy is not liable to
ademption, the legacy will be payable out of the general assets.

Even in case the property on which a demonstrative legacy is charged by the will
does not exist at the time of the death of the testator or has been converted
into property of a different kind, it shall be paid out of the general assets of the
testator and cannot be adeemed.

29.Write a note on private waqf and pubic waqf.

1) Public Wakf
If the property is dedicated for use of common man, then it is known as
public wakf, Eg. Wakf for construction of bridge will, road etc
 Similarly, the trust for public works of utility which may be religious and
charitable is also public wakfs for Ex Contribution of mosques, schools,
college, Hospitals etc.
In the object of the wakf is also folded, then it is called quasi public wakf.
It provides benefit partly for public and partly for private individually

2) Private Wakf:

It is a method by which a Muslim can make provision for maintenance and

support of his family and descendants. It is a kind of transfer of property
by the pun on making the wakf. Such a transfers without consideration
and only amounts to a gift. It is held to be a gift to God almighty for
certain purposes and the Wakf should be for a religious and charitable
purpose.

Public waqf: Waqfs created for public, religious, or charitable purposes

are known as public Waqfs.

Private Waqf: Private waqf are also known as ‘Waqf-ulal-Aulad.’ This type of
Waqf is established for the settler’s own family and successors. In the form of
waqf, it is a type of family settlement.

From the standpoint of its output nature, the following are the categories of
waqf:

• Waqf-istithmari: Waqf assets are meant to be invested in. These assets are
managed to generate money that will be utilised to build and restore waqf
properties.

• Waqf-mubashar: Waqf assets are utilised to generate services for charitable

recipients or other beneficiaries. Schools, utilities, and other assets are
examples of such assets.

Public waqf – A public waqf is for general, religious, or charitable purposes.

Private waqf – it is for the settlor’s family and descendants, and is technically
called waqf-ulal-aulad. However, it is also a way of family settlement

30.Explain the powers and duties of executor.

Powers of an Executor of Will

The powers of an executor who administrates a will are varied and range from
taking legal action, actual disposal of the property and the related
maintenance of the property, etc. In this article, we review the powers and
legal provisions related to the duties of the Executor of a will.

Take Legal Action

An executor/ administrator has the power to sue or take legal action for all
causes of action that survive the deceased, and may exercise the same power
for the reason of recovery of debts as the deceased has when living. The
Executor’s powers are inclusive of all demands as well as all rights that exist to
prosecute or defend any action or in the case of special proceeding existing in
favour of or against a person at the time of his decease, survive to and against
his executors or administrators except in the causes of action for defamation,
assault, as that is defined in the Indian Penal Code or other personal injuries
not leading to the death of the party.

To Dispose of Property
An executor or administrator has the power to dispose the property of the
deceased under the terms of section 211, in such manner as he may consider
fit. However in certain cases of the candidate being HMBSJ, i.e. Hindu,
Muhammadan (Muslim), Buddhist, Sikh and Jain, this power shall be subject to
some restrictions and conditions, including that without the prior permission
of the Court by which the LOA (Letters of administration) were granted, an
administrator may not mortgage, charge or transfer by gift, sale, exchange or
else any immovable property for the time being that is vested in him under
section 211, or lease of any such property for a term over five years.

Management of Property
An executor or administrator may, in addition to any other powers of
expenditure legally exercisable by him bear expenditure on such acts necessary
for the proper care or management of any property that is belonging to an
estate administered by him. He may do so with the permission of the High
Court, on such religious, charitable and other objects, and on such
improvements, for which reasonable and proper care for such property is
considered.

Duties of an Executor
The following are the duties of an Executor of will:

• An executor/ administrator within six months from the grant LOA

(Letters of administration). Further, within such time Court grants, the
probate or LOA may appoint and exhibit in that Court an inventory
which contains a full and true estimate of all the property in possession,
and all the credit. Also, all the debts owed by any person to which the
executor administrator entitle in that character.
• The Executor shall in like manner, within one year from the grantor
within such further time as the said Court may appoint, exhibit an
account of the estate, demonstrating the assets which have come to his
hands and how they have been applied or disposed of.

Commission & Charges

Under the Administrator-General’s Act, 1913, an executor or administrator
ensures not to receive or retain any commission or agency charges at a rate
higher than the rate fixed with reference to the Administrator-General.

An executor is the person named in the Will who will take on the responsibility
to administer the estate. The responsibilities of an executor include:

• Identify the assets and liabilities of the testator;

• make funeral arrangements;
• make an inventory of the property in the estate;
• probate the Will;
• call in the property after grant of probate is issued;
• pay all the debts and taxes;
• distribute the property to the beneficiaries.
31.What is maintenance? Comment on the present law on maintenance
under Muslim law.
Introduction:
The concept of Maintenance in Muslim law was introduced to provide support to
those people who are not capable to maintain themselves. The principle of
maintenance includes the basic requirement of a person for survival and includes
amenities like food, clothing, shelter, education and other necessities of life.

Maintenance in Muslim Law

We shall discuss the aspects of maintenance in Muslim law from the viewpoint of
the persons who are eligible for maintenance. Such persons are:

1.Wife

2. Children- Both boy and girl

3. Parents and Grandparents and

4. Any other relatives

Maintenance for Wife

Under Muslim law in India, maintenance is known as ‘Nafqah’. ‘Nafqah’ is the
amount that a man spends on his family. The right to maintenance of a Muslim
woman is absolute and not conditional on whether she can maintain herself or
not.

Hence all the Muslim women earning or not earning are eligible for the right to
maintenance which is contrary to most of the other religious acts where only
dependent women are eligible for the maintenance.

It is the duty and liability of the husband to provide adequate maintenance to his
wife in all the circumstances irrespective of his financial condition. However, a
Muslim woman cannot claim maintenance from her husband in the following
cases:
 1. She has not attained puberty.
2. She has abandoned her husband and marital duties with sufficient
reason.
3. Where she elopes with some other man.
4. In a case where she disobeys the reasonable commands of her
husband
Quantum of Maintenance
The quantum of maintenance is not prescribed under any personal law. The
court decides the quantum on the basis of the financial condition of husband and
wife and any other circumstances relevant to the case.

The Shia Law decides the quantum of maintenance by taking into consideration
the requirements of the wife. The Shafei Law determines the quantum of
maintenance by the post of the husband. Thus, the basis of determination of
quantum of maintenance is different for different sub-castes of Muslims.

Maintenance under Anti- Nuptial Agreements

A Muslim marriage is construed as a contract, an agreement that is made
between the parties to the marriage (nikah) which prescribes the rights & duties
of both husband and wife. In this agreement, the wife can stipulate some
conditions for husband and in case of breach of such conditions; she has a right
to live separately and is also eligible to receive maintenance.

The quantum of the maintenance and the terms are to be agreed and settled at
the time of marriage itself. The wife can stipulate the contract of the marriage in
case the husband ill-treats her/ or takes a second wife or keeps a concubine.

In such a case, she has the right to live separately from her husband and she is
also eligible to claim maintenance against the husband. However, it has to be
noted that the husband’s liability is limited only till the iddat period and the wife
can claim maintenance only during the period of iddat and not beyond that.
Maintenance to Muslim Divorced Woman until Her Remarriage
In terms of Section (3) (a) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife.

This includes her maintenance as well. Accordingly, the husband has to make a
fair and reasonable provision for the maintenance of the wife beyond the iddat
period as per the terms of Section 3 (1) (a) of the Act.

A divorced Muslim woman who has not remarried and who is not able to
maintain herself after iddat period can claim maintenance under Section 4 of this
act from her relatives who are entitled to her property after her death. This has
provided additional rights to Muslim women.

Maintenance of the Children

Muslim Father is under the obligation to maintain his legitimate child until he
attains the puberty age. Under Muslim Law, the father has to maintain his son
only until he attains majority.

While he has to maintain his daughter until her marriage and till the time she
goes to her husband’s home. Under the law, the father is not under a duty to
maintain the illegitimate child.

Thus after perusing the above-mentioned facts, it can be easily concluded that
the maintenance provisions of Muslim Law are different from other personal
laws and are very unique.

32.Marriage under muslim law is civil contract critically examine the

statement.

INTRODUCTION

Marriage under Mohammedan law is a legal contract or civil contract between

the bride and bridegroom and it is part of Islamic marriage. For the marriage of
Muslims, the word ‘Nikah’ is used which means ‘contract’. Nikah is an Arabic
term. The meaning of nikah is the physical relationship between man and
woman. The ‘Quran’ specially refers to marriage as “Mithaqun Ghalithun”
which means ‘a strong agreement’. This contract results marital rights and
obligations between man and woman. Marriage under Mohammandan law is
different from other religious marriage. This is not a religious ceremony
performed by bride and bridegroom, but a contract which creates marital
obligations between man and woman.

MOHAMMEDAN MARRIAGE IS NOT SACRAMENT BUT PURELY CIVIL

CONTRACT

On the basis of juristic opinion, Mohammedan law, conditions of Muslim

marriage, it can be easily recognized that Muslim marriage is a purely civil
contract because it fulfils all the conditions of civil contract like proposal,
acceptance, consideration etc. There is no religious ceremony performed in a
Muslim marriage. There are some conditions of Muslim marriage which are
similar as conditions of civil contract. Conditions of civil contract are as follows:

1. Proposal
2. Acceptance
3. Consideration
4. Free consent
5. Lawful Object
6. Competency of the parties

Conditions or essentials of Muslim marriage are as follows:

1. Ijab as Proposal
2. Qubul as Acceptance
3. Dower or Mahr as Consideration
4. Free consent
5. Competency of the parties
As we can see that all the essential of civil contract and Muslim marriage are
similar. Ijab in Muslim marriage considered as proposal and acceptance is
known as Qubul. A proposal should be made on the behalf of one party and
accepted by another party at the same time. The proposal made and
acceptance should be done in one meeting otherwise it is not a valid marriage.

Dower or Mahr is the consideration of marriage. It refers to the amount of

money and property which a bridegroom has to give to bride as consideration
of marriage for her financial security.
Free consent is the most essential point of Muslim marriage if the consent
obtained under fraud, coercion or threat etc. it is not valid marriage and
becomes void as similar to a contract.

Capacity to the parties means that the parties should be major, sound mind
and Muslims. According to the Mohammedan law, age of marriage is
considered as the age of puberty and age of 15 years.

There are some case laws where judgment goes into the favour of Muslim
marriage is a sacrament whereas some goes into favour of Muslim marriage is
a purely civil contract.

In case of Yusuf v. Sowaramma, held that there is a misconception by the

Justice, V.R. Krishna Iyer that the Muslim law does not have any religious
significance or social solemnity attach to Muslim marriage and it is a merely
civil contract.

In case of Abdul Kadir v. Saliman and Anrs, Justice Mahmood observed that
“marriage among mohammadans is not a sacrament but purely a civil
contract” Muslim marriage is a civil contract and the aim of this definition in
the eye of law that it provides legal validity to sexual intercourse or
relationship between man and woman and legalise the children. Without a
valid contract of marriage, the sexual intercourse between man and woman is
Zina or sin under Muslim law.

Many of the jurists also support that Muslim marriage is not purely civil
contract and sacramental. It is the combination of both of them. In case of Anis
Begum v. Mohammad Istafa, it is a leading case law because C.J Sir Shah
Sulaiman has tried to balance between the sacrament and civil contract in
Islamic Marriage because as per my view, in Quran and Hadith mentioned that
spouses are strictly enjoined to love and honour to each other. So, marriage
under Islam is sacrament by Quran injunction and tradition. It is the blend of
both of them.

It is not purely a contract because a civil contract depends upon the future
happening and the loss caused by that future happening. Marriage has
similarity like civil contract but it is not purely civil contract. A marriage
contract does not depend upon future happening and the loss caused by that.
This topic is still vague because many juristic said that it is a sacrament and
many in favour of that this is a civil contract and many juristic has to opinion
that it is the blend of both of them.

33.Define preemption? State the person who can claim preemption.

Introduction:
Pre-emption law has its origin in the saying of the prophet. Pre-emption or
shufa means conjunction, which is adjacent. In the case of Govind Dayal v.
Inaytullah (1885), Mahmood J describes pre-emption as, “… a right which the
owner of certain immovable property possesses, as such, for the quiet
enjoyment of that immovable property, to obtain, in substitution for the
buyer, proprietary possession of certain other immovable property, not his
own, on such terms as those on which such latter immovable property is sold
to another person.”

Further, in the case of Bishan Singh v. Khazan (1958), the Supreme Court
summarized the rules and nature of pre-emption:

• The right of pre-emption is the right to offer the property to be sold.

It is the inherent right or the primary right of the adjacent property’s
owner.
• It is the remedial right of the pre-emptor to follow the thing sold.
• It is not the right to repurchase; it is the right of substitution.
• It is right to acquire the whole property, not the part of it.
• Preference is the essence of the right.
• The right provided is weak and can be defeated by appropriate
methods.

Rights under pre-emption

When does the right arise

There are two circumstances under which the right of pre-emption arises:
In case of sale

The right to claim pre-emption arises when the property is subjected to a valid
sale. Merely an intention to sell can’t be ground for claiming the right of pre-
emption. The sale excludes inheritance, gift, waqf, bequest of a lease in
perpetuity and sale includes exchange. The sale must be bonafide.

When the sale is complete

Mere intention to sell can’t give rise to the right to claim. The right to make a
claim arises when the sale is completed. According to Muslim law, a sale is
considered to be completed when the purchaser pays to the vendor and the
possession is transferred/ delivered by the vendor. It might not be necessary
that the execution of an instrument of sale is according to the Transfer of
Property Act 1882. Section 54 of TPA states that, sale of property of the value
of Rs. 100 and upwards is not complete unless made through a registered
instrument. Further, the High Court of Patna and Calcutta stated that the right
of pre-emption doesn’t arise until registration is completed as per TPA.

Pre-emption arises from the following categories of persons. The following

three persons may be pre-emptor:

• Co-sharer by Inheritance (Shafi-i-Sharik)

• Participator in Immunities & Appendages (Shafi-i-Khalit)
• Owner of Adjoining Property (Shafi-i-Jar)
Pre-emption enforcement requisites; There are three formalities or necessary
steps that are to be followed strictly for claiming Shufa, they are known as
three demands:

• The First demand- Talab-i-Mowasibat

• The second demand- Talab-i-ishad
• The third demand- Talab-i-tamlik
According to Shia law, there is no distinction between Talab-I-Mowasibat and
Talab-I-Ishhad and therefore, only one demand needs to be made.

34.Who is mohammedan? State the effects of conversion of a married

mohammedan in to other religion.
Mohammedan law applies to Mohammedan by birth and Mohammedan by
conversion. Conversion to Islam may be done by a non Muslim who has attained
majority and is of sound mind. Apostacy means abandoning one’s religion

Persons preferring Islam or the Mohammedan religion are called Muslim. Islam
means peace or submission to God’s will.

A Muslim is one whom believes in the God Allah

• Muslim by origin
• Muslim by conversion

Islam is one of the oldest major religions in the world. Although it originates from
Arabia, people from all countries of the world follow it now. Due to its largely
uncodified nature, we must look at the sources of Muslim personal law to
understand it. This also helps in understanding various customs of Islam relating
to marriage, divorce, succession, etc.
Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by
one of the married pair would have been treated as dissolution of marriage with
effect immediately, without:

1. the decree of a judge; or

2. being a repudiation of marriage, whether the conversion was before or
after consummation.
After passing the Act in 1939, it resulted in section 4 of the Act.

1. Apostasy by husband

Apostasy from Islam from Muslim husband will have immediate effects of
dissolution of marriage. Section 4 of the Dissolution of Marriage Act, 1939 does
not apply to apostasy by the husband. The result is that apostasy of the husband
is still governed by old law under which the renunciation from Islam by a
husband will result in complete and immediate dissolution of marriage.

Where a Muslim husband converts to another religion (say Christianity), his

marriage is immediately dissolved and the wife ceases to be a Muslim wife of
that husband. As such, the wife is not governed by Muslim law and is free to
marry another person (immediately) without waiting for the Iddat period.

2. Apostasy by wife

The conversion of a married Muslim woman to a faith other than Islam does not
by itself operate to dissolve her marriage. Moreover, even after renouncing
Islam, if the wife wants, she may obtain a decree for the dissolution of her
marriage on any of the grounds specified in Section 2 of the Act.

Section 4 does not apply to a woman who converts to Islam from other faith and
take back her former faith. Thus, if a Hindu woman converts into Islam and
marries under Muslim law, the marriage would be ipso facto dissolved, on her
renouncing Islam and re-embracing Hinduism. However, if she does not re-
embrace Hinduism, but becomes Christianity, the marriage would not dissolve.

In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130 ) a Hindu wife
converted to Islam at the time of marriage. On her re-conversion back to her
original faith viz Hinduism, her marriage stood dissolved. Her case falls under
the second proviso to Sec 4 of the Act, and the pre-existing Muslim Personal Law
under which apostasy of either party to a marriage ipso facto dissolves the
marriage would apply.

If a husband renounces Islam, the marriage stands automatically dissolved. Thus

if his wife remarries even before the expiry of iddat, she will not be guilty of
bigamy under Sec 494 of the Indian Penal Code, 1860. In Abdul Ghani v/s Azizul
Huq [(1912) ILR 39 Cal 409], a Muslim man and woman got married. After some
time, the husband embraced Christianity but reverted to Islam during the wife’s
iddat. Before the expiry of the iddat period, however, the wife got married to
another man. The first husband thereupon filed a complaint against the wife,
her father and her second husband under Sec 494. It was held that no offence
had been made.

The court remarked:

Whatever view be taken of the uncertain status of the parties during the period
of iddat and however illegal and void under Mohammedan law the second
marriage of the woman during the period of iddat may be, there is no foundation
for any charge under Sec 494 of IPC against her. Her second marriage is not void
because of its taking place during the life of her prior husband but because of
the special doctrine of the Mohammedan law of iddat with which the Indian
Penal Code has nothing to do.

35.Explain enumerate differences between sunni and shia regarding marriage

, dower and divorce.
Introduction:
Marriage which is known as nikah in Islam is the different types of sex
relationship between a man and a woman based on certain terms. During pre-
Islamic era, women were treated as animals, and were not provided with the
right to inheritance and were made completely dependent. Prophet
Mohammad brought a complete change in the status of women.
Sl.No SUNNI LAW SHIA LAW
1. Succession to the prophet to be by Succession Mohamed the
election prophet to be by Heredictary
succession
2. Muta marriage is not recognized Muta marriage in recognized
3. Besides father grand father paternal Only father and grand father
and maternal relation can acts as act as guardian for marriage
guardian for the marriage
4. The dower is divided into prompt and The entire dower is prompt
deferred
5. There is a legal minimum of a dower There is no legal minimum of
dower
6. Divorce by Taluk can be oral or in It should be oral in Arabic
writing No witness are necessary language in the presence
witness
 7. Custody of son below 7 years and Custody of son under two
daughter till puberty should be under years and girl under 7 years to
the female relation be with the mother
8. Father is to be maintained children Father need not be
even if he is an earning member maintained by children if he is
earning
9. Gift of Musha not valid Gift of Musha is valid
10. The fifth marriage by Muslim male is Fifth marriage is void
irregular
11. Marriage without the presence of Such a marriage is void
witness is irregular
12. Marriage during Iddat is regular It is void
13. A Wakf can be created by mere There must be active transfer
declaration of property

36.Define and distinguish between valid, void and irregular marriages under
mohammedan law.
Valid (sahih)
When all the legal requirements are fulfilled and there are no prohibitions
affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can
be permanent as well as temporary, in case of permanent prohibitions: the
marriage will be void and if the prohibitions are temporary then the marriage is
irregular.

Effects of a valid marriage

• The cohabitation between the husband and the wife becomes lawful.
• The children born out of a valid marriage are legitimate and they have
right to inherit their parent’s properties.
 • Mutual rights of inheritance between husband and wife are
established. That is to say, after the death of the husband, the wife is
entitled to inherit the husband’s properties and after the wife’s death,
husband may also inherit her properties.
• Prohibited relationship for purposes of marriage is created between
the husband and wife and each of them is prohibited to marry the
relations of the other within prohibited degrees.
• The wife’s right to claim dower is fully established just after the
completion of marriage.
• The marriage gives to the wife also the right of maintenance from her
husband with immediate effect.
• After the dissolution of the marriage, the widow or the divorced wife
is under an obligation to observe the Iddat, during which she cannot
remarry.

Void (Batil)
The marriage being void ab initio creates no rights or obligations and the
children born out of such marriage are illegitimate. A marriage forbidden by the
rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with
the wife of another or a divorced wife during iddah period is also void.

Irregular (Fasid)

Due to lack of some formality, or the existence of an impediment which can be

rectified, a marriage becomes irregular, However, this irregularity is not
permanent in nature and can be removed. Thus, the marriage itself is not
unlawful. It can be made valid once the prohibitions are rectified. Marriage in
such circumstances or with following prohibitions are called ‘Fasid’.

1. A marriage contracted without required number of witnesses;

2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when
such consent is considered necessary;
4. A marriage prohibited on account of difference of religion;
5. A marriage with a woman who is pregnant, when the pregnancy was
not caused by adultery or fornication;
 6. A marriage with a fifth wife.

37.What is the significance of succession certificate? State the procedure to

obtain it.

What is a succession certificate?

For people who die intestate leaving back their assets, securities and debts, the
court intervenes to grant a certificate of succession to the legal heirs of the
person so deceased. If a person has deceased without the preparation of a will
with regard to the distribution of his assets and property, then the person is
said to have died intestate. Therefore, in such a situation of an intestate death,
a succession certificate entitles the holder of the certificate to settle down the
debts and securities and take over the remaining assets of the deceased
person. Apart from the entitlement to securities and assets, a succession
certificate also provides indemnity to all persons owing such debts or liable on
such securities with regards to all payments made to or dealings had in good
faith with a person to whom a certificate as granted.

Stage 1: Petition for Certificate of Succession

A petition for succession certificate must generally contain the following

particulars:

1. Time of death of the deceased;

2. Residence or details of properties of the deceased at the time of
death within which Judge the jurisdiction falls under;
3. Details of family or other near relatives;
4. The rights of the petitioner on the assets of the deceased;
5. Absence of any impediment to the grant of a certificate;
6. Grant of Certificate

After having made the petition, it is up to the District Judge if he wants to give
an opportunity to hear the petitioner and allow him to establish his right by
oral submissions, on the grounds of the merits of the petition so filed. Once all
the hearings, as directed by the District Judge is concluded, the Judge can
decide the right of the petitioner to be granted the succession certificate. The
Judge would then pass an order for grant of certificate specifying the debts and
securities set forth in the application empowering the person to receive
interest or dividend or to negotiate or transfer or do both.

Stage 2 – Affidavit for the Certificate of Succession

To get the certificate, the legal heirs of the deceased must file an affidavit
petitioning their claim to the property to the District or High Court of proper
jurisdiction. The affidavit also requires the petitioner to submit copies of their
passports of ration cards. The affidavit shall also include the following details:

1. Name of the petitioner;

2. Place of residence; and
3. Occupation of the petitioners

The above details are also to be provided for the next-of-kin of the deceased.
In case a legal heir wishes to relinquish his right to the estate, this must also be
explicitly mentioned in the affidavit. Once the affidavit is filed before the court
by the petitioners, the court shall give notice of the application to all next-of-
kin of the deceased. The information may also need to be made public by way
of an advertisement in a national daily for information. In the stipulated time
period, if no objection to the grant of certificate is raised either by the next-of-
kin or the public at large, the certificate will be issued soon after. It generally
takes around four months for a decision in the matter of succession certificate

Stage 3- Indemnification Bond

Once the certificate of succession has been granted to the petitioner by the
court, the next step is to sign a bond to indemnify persons entitled to the debts
and assets of the deceased. The bond will also require a surety whose own
assets are equal to or worth more than the estate of the deceased. The surety
is generally for the purpose to guarantee the legal heir.

38.Differentiate Talaq and divorce.

The main difference between Talaq & Divorce is that talaq can be sought by both
the parties without going to the court, Extra Judicially. But divorce is a remedy
given to the Muslim women to approach the count to obtain divorce from her
husband, under any of the 8 grounds mentioned there in

1) Extra Judicial divorce

This is the power of the parties to dissolve the marriage without going to
the court. Such extra judicial method of divorce in Muslim law is called
Talaq.
• Extra Judicial Divorce by husband
a) Talaq Ahsan & Talaq Hasan
b) Ila
c) Zihar
• Extra Judicial Divorce by wife
a) Talaq - I Tafweez
b) Lian
• Extra judicial divorce by mutual agreement
a) Khula
b) Mubarat
2) Judicial divorce
The wife has a right to seek divorce under the dissolution of Muslim
marriages Act, 1939. Divorce is the registration of a married woman and
her husband
Judicial divorce is a legal dissolution of marriage contract by a court or
other body having competent authorities. There are 8 grounds under
which a Muslim Woman can claim divorce from her husband

39.Explain the legal impediments of a muslim marriage.

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.
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.
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.
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.
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 howsoever.
(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 whosesoever.
(ii) His wife, s daughter or grand daughter howsoever.
(iii) His father, s wife or paternal grand father whosesoever.
(iv) The wife of his son or his son, s or daughter son howsoever.
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.
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.
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.

40.Who is an administrator? What are his duties and powers.

Introduction:
Section 2(a) of the Act, defines an administrator as a “person appointed by
competent authority to administer the estate of a deceased person when
there is no executor”. He is, therefore, appointed by the probate division of
the High Court.

The estate of executor vests in him from the date of the death of the testator.
The administrator’s estate vests in him from the date of his appointment,
before that, the judge of the probate division holds the property.
Furthermore, Chapter VII, of the Act states the duties of an Executor or
Administrator, from Section 316 to 331.

An executor or administrator holds the same power to sue for the course of
actions that survive the deceased, and also may recover the debt as the
deceased could if he were alive. He holds all rights to prosecute or defend any
action existing in favor of or against his decease, except the cause of action
against defamation. The executor is responsible for performing all the duties
regarding the funeral, inventory, and account, payment of debts from the
estate, etc.

General powers of administration.-

An executor or administrator may, in addition to, and not in derogation of, any
other powers of expenditure lawfully exercisable by him incur expenditure–
(a) on such acts as may be necessary for the proper care or management of any
property belonging to any estate administered by him, and

(b) with the sanction of the High Court, on such religious, charitable and other
objects, and on such improvements, as may be reasonable and proper in the
case of such property.
 • Commission or agency charges-
An executor or administrator shall not be entitled to receive or retain any
commission or agency charges at a higher rate than that for the time being fixed
in respect of the Administrator-General by or under the Administrator-General’s
Act, 1913 (3 of 1913).
• Purchase by executor or administrator of deceased’s property-
If any executor or administrator purchases, either directly or indirectly, any part
of the property of the deceased, the sale is voidable at the instance of any other
person interested in the property sold.

• Powers of several executors or administrators exercisable by

one-
When there are several executors or administrators, the powers of all may, in
the absence of any direction to the contrary, be exercised by any one of them
who has proved the will or taken out administration.

• Survival of powers on death of one of several executors or

administrators-
Upon the death of one or more of several executors or administrators, in the
absence of any direction to the contrary in the will or grant of letters of
administration, all the powers of the office become vested in the survivors or
survivor.

• Powers of the administrator of effects unadministered-

The administrator of effects unadministered has, with respect to such effects,
the same powers as the original executor or administrator.

• Powers of the administrator during minority-

An administrator during minority has all the powers of an ordinary
administrator.

• Powers of married executrix or administratrix-

When a grant of probate or letters of administration has been made to a married
woman, she has all the powers of an ordinary executor or administrator.

Duties Of An Executor Or Administrator

1. As to deceased’s funeral.–
It is the duty of an executor to provide funds for the performance of the
necessary funeral ceremonies of the deceased in a manner suitable to his
condition, if he has left property sufficient for the purpose.

2. Inventory and account.-

(1) An executor or administrator shall, within six months from the grant of
probate or letters of administration, or within such further time as the Court
which granted the probate or letters may appoint, exhibit in that Court an
inventory containing a full and true estimate of all the property in possession,
and all the credits, and also all the debts owing by any person to which the
executor or administrator is entitled in that character; and shall in like manner,
within one year from the grant or within such further time as the said Court may
appoint, exhibit an account of the estate, showing the assets which have come
to his hands and the manner in which they have been applied or disposed of.

(2) The High Court may prescribe the form in which an inventory or account under
this section is to be exhibited.

(3) If an executor or administrator, on being required by the Court to exhibit an

inventory or account under this section, intentionally omits to comply with the
requisition, he shall be deemed to have committed an offence under section
176 of the Indian Penal Code (45 of 1860.).
(4) The exhibition of an intentionally false inventory or account under this section
shall be deemed to be an offence under section 193 of that Code.
3. Inventory to include property in any part of India in certain cases.- In all
cases where a grant has been made of probate or letters of administration
intended to have effect throughout India, the executor or administrator shall
include in the inventory of the effects of the deceased all his moveable and
immoveable property situate in India, and the value of such property situate in
each state shall be separately stated in such inventory, and the probate or
letters of administration shall be chargeable with a fee corresponding to the
entire amount or value of the property affected thereby wheresoever situate
within India.
4. As to property of, and debts owing to, deceased.-The executor or
administrator shall collect, with reasonable diligence, the property of the
deceased and the debts that were due to him at the time of his death.
5. Expenses to be paid before all debts.- Funeral expenses to a reasonable
amount, according to the degree and quality of the deceased, and death-bed
charges, including fees for medical attendance, and board and lodging for one
month previous to his death, shall be paid before all debts.
6. Expenses to be paid next after such expenses.- The expenses of obtaining
probate or letters of administration, including the costs incurred for or in respect
of any judicial proceedings that may be necessary for administering the estate,
shall be paid next after the funeral expenses and death-bed charges.
7. Wages for certain services to be next paid, and then other debts.- Wages
due for services rendered to the deceased within three months next preceding
his death by any labourer, artizan or domestic servant shall next be paid, and
then the other debts of the deceased according to their respective priorities (if
any).
8. Save as aforesaid, all debts to be paid equally and rateably.- Save as
aforesaid, no creditor shall have a right of priority over another; but the executor
or administrator shall pay all such debts as he knows of, including his own,
equally and rateably as far as the assets of the deceased will extend.
9. Application of moveable property to payment of debts where domicile not
in India.-
(1) If the domicile of the deceased was not in India, the application of his
moveable property to the payment of his debts is to be regulated by the law of
India.

(2) No creditor who has received payment of a part of his debt by virtue of sub-
section (1) shall be entitled to share in the proceeds of the immoveable estate of
the deceased unless he brings such payment into account for the benefit of the
other creditors.

(3) This section shall not apply where the deceased was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina or an exempted person.

BY

ANIL KUMAR K T LLB COACH