muslim law

Vol. LII]

MUSLIM LAW

I INTRODUCTION

NO OTHER aspect of law is so debated in this country as that of Muslim law. The reason behind it is that the law which has been applied since long and still continues to be applied in this continent is not in fact Islamic law in its original form but a distorted version of it. This distortion was made by British judges who had no knowledge of Islamic law and they did not even try to read and conceptualize the essence of Islamic law in its Arabic form they rather tried to interpret Islamic law according to common law. Writers like Mc Naughten1 and Mulla2 also recorded the same rulings of such British judges in toto without taking any trouble to understand the law even from an elementary book of Islamic law in its original form. Last but not the least, our ill-educated maulvis have also shrugged their shoulders to acquire the knowledge of Islamic Law in its true spirit, rather they have been issuing fatawa from their local mosques for their clientele in accordance with their superficial knowledge. Ultimately these faulty rulings, ill-informed writings and misconceived fatawa emerged as the law of Islam in India which is unfortunately being followed by most of our Indian judges with the courtesy of learned lawyers who argued before them in the courts. These judges and lawyers do not try to understand the spirit of Islamic law from its original sources. However, in the present times all these sources are available in English on various websites. Sometimes they quote Mulla as the only source of Muslim law and its sections are sometimes quoted in the judgment as if they are enacted legislations. Krishna Iyer J has rightly observed and which is truly applicable on the present day judiciary that "when the judicial Committee of Downing Street interprets Manu and Mohammad of India and Arabia, marginal distortions are

* Professor, The Indian Law Institute, New Delhi. The surveyor gratefully acknowledges the assistance extended by Mr. Rishi Raj Singh, student LLM (ILI).

1 See for example William Hay Mc Naughten, Principles ofMuhammadan Law, (Premier Book House, 1973).

2 D F Mulla ,Principles ofMahomedan Law, (Lexis Nexis, 22nd Edition 2017).

3 YousufRowther v.Sworamma, AIR 1971 Ker 261.

Annual Survey of Indian Law

ine~itable".~ This survey year also encompasses the rulings of the same nature. About sixty decisions from Supreme Court and high courts have been covered in this survey year. Some of them relate to law of status i.e. marriage, divorce, maintenance, custody of child and related issues. The survey also covers the law of property which includes gift, will, inheritance and w a d & waqfadministration.

I1 LAW RELATING TO STATUS

The law of status is so intimately connected with the family, which is a unit of the society, that it cannot be disassociated from it. And, of course, it is also related to religious traditions and that is why Prophet himself did not abrogate all the customs of Pre-Islamic Arabs but only those practices which were based totally on immoral values were discarded and the remaining customary practices were retained with some reforms4 Perhaps, Mahmood J., in Inqatullah v. Gobind D q a P wanted to convey the same feeling when he observed that "it is to be remembered that Hindu and Muhammadan laws are so intimately connected with religion that they cannot readily be dissevered from it". Thus, law of status cannot be touched without proper intimation and approval of the society, otherwise, any development in it cannot be enforced easily. In India, not only laymen, but lawmen also sometimes issued their dictates according to their sentiments and wrong information that a reform is to be initiated mandatorily in order to bring uniformity. This sometimes may be problematic and will not serve its initial purpose. Laws relating to marriage, divorce, maintenance and custody of chldren have been deeply rooted in the society and therefore any innovation according to the circumstances and need should also be taken very cautiously, and should not be politicized. In this part of the survey, cases pertaining to marriage and other related issues viz. divorce, maintenance and custody of child, etc. have been discussed.

Nikah (Marriage) It is a popular fallacy among the lawmen, leave the laymen, that marriage under

Islam is a contract like Indian Contract Act. Recently, High Court of Allahabad in one of its judgements ruled that since marriage is a contract therefore it can only be broken down with the consent of both the parties. We don't want to comment whether marriage should be broken down according to the 'Contract' as defined under Indian Contract Act, 1872 but definitely the learned judge could not understand the nature of marriage under Islam during his tenure at bar and even after elevation to Bench. Marriage may be said to be a contract because it has also three essential ingredients viz. consent by

4 Abdur Rahim says that "the fact is, the ground work of Muhammadan legal system, like that of other legal systems, is to be found in the customs and usages of the people among whom it grew and developed." See Abdur Rahim, The Principles ofMuhammadan Jurisprudence 1 (All Pakistan Legal Decisions, Lahore, 1958).

5 ILR (1885) 7 All 775 (FB).

Vol. LII] Muslim Law

the bride (hijab), acceptance by the groom (qubool) and Dower (mehr) which is unfortunately always regarded as consideration as per the Indian Contract Act, 1872. However, under Islamic law, mehr is a unique feature which can't be understood either in common law system or Indian legal system that's why some people are confused by the concept as they perceive it either as 'dowry' or 'sale.' This is a pre- Islamic Arabian custom where mehr was given to father. The Prophet (PBUH) converted it into bridal gift and emphasized its importance in the verse that "no dower, no marriage". Thus we wish to submit that Islamic marriage may be a contract up to a certain extent but it is not mere contract as it is stipulated under Indian Contract Act. It is a sacramental contract. Abdur Rahim J says that it is a blend of ibadat (worship) and muamlat dealing^).^ Prophet himself proclaimed that it is half of the faith. Quran describes the parties as the libas of each other. Thus the parties, their well-wishers and the state are directed that they do not leave any stone unturned for the subsistence of marital ties. Thus marriage is a sacred union which ties up the parties in a bond of love & affection and therefore when it does not serve its purpose and if it becomes very difficult for the parties to live happily, only then instead of dragging their forced partnership and as a last resort they can opt for separation as a necessary evil. The famous scholar of Private International Law, G. C Cheshire also opines the same. With this background, given below is the discussion pertaining to the judicial decisions of Indian courts delivered in this survey year

Proof of marriage In Sh. Raisddin v. MST G u l ~ h a n , ~ the husband contended that he married the

wife in the presence of two witnesses, whereas the wife denied her consent for the same and according to her the husband obtained her signature by misrepresentation. The issue before the High Court of Delhi was whether the alleged nikahnama in question is relevant and whether the husband is entitled to a decree of restitution of conjugal rights against the wife. The court relied on Mst. Faridunnisa v. Munshi Mukhtar Ahmad and Hem Chandra Roy Chaudhaly v. Suradhani Debya Chaudhrani9 and held that when the petitioner failed to establish a valid marriage between him and the respondent, the document stated to be nikahnama cannot be termed as a valid nikahnama, having forbearance of law. Hence, the husband is not entitled for a decree of restitution of conjugal rights.

We respectfully submit that the learned judge tried his best to understand the essential ingredients of marriage and of course one of the ingredients i.e. the bride's consent was missing and therefore the valid Muslim marriage could not be performed.

6 See supra note 4 at 327.

7 (2016) 229 DLT 7.

8 AIR 1925 PC 204 (209).

9 AIR 1940 PC 134 (135).


Puberty In Sher Mohd. v. Govt. (NCT of Delhi), l o a writ petition for habeus corpus was

filed, before the High Court of Delhi, for petitoner's daughter, Shahista, 15 years of age. The daughter claimed that she had married a man, Shakeel, out of her own free will. The question before the court was whether the wife has the right to reside with her husband or not even if she is below eighteen years of age, as claimed by the petitioner. The court reiterated the decision of Mrs. Tara Begum v. State of Delhil1 and stated that Mohammedan Law is well settled in this regard that once the girl attains the age of puberty, she has a right to reside with her husband. It was therefore held that the court couldn't restrain a girl who has attained the age of puberty from joining the company of her husband.

The learned judge understood the concept of khyar al-bulugh (option of puberty) quite well and did not strictly adhere to the majority age fixed at 18 years because puberty or attaining of youth is dependent upon various geographical, economic and some other considerations of the boy or girl. And that's why the Islamic jurists themselves are not unanimous and they have fixed the age of puberty from 15-18 which seems quite reasonable.

In Saba Praveen v. State of Bihar12 niece, Saba Praveen (aged about 16 years) was abducted by one Arbind Paswan in conspiracy with a few others for the purpose of marriage. They also threatened to sell off his niece in some big city. The victim was recovered and her statement was recorded under section 164 of the Cr PC wherein she professed that out of her own accord she had gone with accused and had willingly married him without any pressure or coercion. She also expressed her desire to live with her husband. The petitioner was prima facie found to be minor. The court held that the petitioner was less than 18 years of age at the time of 'so called' marriage which is against the requirement of section 4(c) read with section 24 of Special Marriage Act, 1954. But the court also respected her desire to not be handed over to her parents and be allowed to stay in observation home and be released upon completing the age of 18 years. If the girl had not changed her religion then marriage was neither valid under Muslim law nor Hindu law. That's why this case is wrongly reported under the head of Muslim law.

In another case of Wahid Jakir Hussain v. State ofMaharashtra, l 3 prosecutrix and her friend ran away with the accused and his friend from their school but were later recovered from railway station. It was contended that the accused raped the girl. The accused claimed that that they wanted to marry each other. It has been held by the High Court of Bombay that under Muslim law the fact that a girl attaining puberty can give her own consent for marriage, is relevant in case of marriage but not at this stage

10 2016 SC OnLine Del3460.

11 (2012) 116 AIC 862.

12 2016 SCC OnLine 2583.

13 2016 SCC OnLine Born 7265.


In Sakirbhai ArzJbhai Memon v. State of Gujarat14 the issue before the court was whether a Muslim girl of 16 years age can be allowed to be with her husband and marry without the permission of her parents. The court opined that as per the Muslim law, girl over the age of sixteen years and who has also attained puberty is free to contract a marriage and hence should be allowed to go with her husband.

Dissolution of Marriage Islam has always had a practical outlook on all human affairs and hence

recognizes divorce, but only as a necessary evil. As a social policy, it has recognized divorce as an exit if things are in disarray and living together yields disharmony. Prophet denounced it as a necessary evil by pronouncing that "of all the permitted things divorce is the most abominable for God". Modem jurists of comparative law also justify the need for recognizing divorce to end the bitter and miserable existence of forced partnership enabling life to be more conducive to the welfare of the parties. Cheshire observes15:

Divorce since it distinguishes the family unity, is of course, a social evil in itself, but it is a necessary evil, it is better to wreck the unity of family than to wreck the future happiness of the parties by binding them to companionship that has become odious. Membership of a family founded on antagonism can bring little profit even to the children.

In Islam, matrimonial alliance is a social contract. It can be dissolved when it ceases to serve the values and purpose of living and co-existing together. A deeper study of the institution of marriage and divorce in Islam shows that the marital tie is to be respected and to be continued till the possible extent. The mutual adjustment and tolerance are emphasized for the sake of keeping the ties intact. The parties, their well-wishers and courts are required not to leave any stone unturned for the subsistence of marital ties in case of dispute and disagreement between the parties. All efforts by social groups, relatives and friends are directed to see the disputes of marital tie between parties get attenuated. The dissolution is thus a last resort. When the dissolution is initiated by the husband it is known as talaq. When it happens at the instance of wife it is termed as khula. When the parties mutually agree for it, it is referred to as mubarat. On certain grounds, quadilcourt orders to dissolve the marriage. This form of divorce is known as faskh. The Dissolution of Muslim Marriage Act, 1939 provides nine grounds on the basis of which a woman can seek divorce from the court.

With this background following decisions pertaining to talaq and other forms of divorce are being discussed:

14 2016 SCC OnLine Guj 4716.

15 G C Cheshire, "The International Validity of Divorce", 61 Law Quarterly Review 352 (1945).

79 8 Annual Survey of Indian Law

Harassment of second wife In Hina v. State of U.P.16, the husband contracted the second marriage after

effecting instant talaq (triple talaq) to his first wife for the sole reason to marry his second wife. The husband and second wife alleged that the respondents (police officers and mother of his first wife) are harassing them for living as spouses. A petition was filed to restrain the respondents from harassing the petitioners. The issue before the High Court of Allahabad was whether divorce given by petitioner to his first wife is valid. The court stated that judicial conscience is disturbed at this monstrosity as the first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of his age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. The court relying on Shamim Ara v. State of U.P.17 and A. Yousuf Rawther v. Sowramma18 held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbitrators- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.

Dismissing the petition, the court held that the legality of the marriageldivorce and rights of parties are kept open, the court further observed that instant divorce (triple talaq) though had been deprecated and not followed by all sects of Muslim community in country, however, is cruel and most demeaning form of divorce. Women could not remain at mercy of patriarchal setup held under clutches of sundry clerics having their own interpretation of Holy Book. Personal laws of any community could not claim supremacy over rights granted to individuals by Constitution.

This surveyor is unable to understand as to why the learned judge after interpreting the true aspect of Islamic divorce clubbed it with the tug of war between the Constitution and Muslim law. We have total agreement with the judgement that this type of talaq is a source of suffering for former wife and court should have paid attention towards it. But to allow sufferings towards other woman and put her at the mercy of police for no fault of hers (because the husband did contract marriage with her, whether she was aware of the first marriage or not) is difficult to understand. The court could not understand the sufferings of the second woman as is evidenced by the outright dismissal of the petition for restraining the harassment. Injustice is injustice whether it is meted out to first wife or the second

Divorce by Mutual Consent (Mubarat) InMustaqueem Alvi v. State ofDelhi19 the husband and wife married but due to

ideological differences, they started living separately. Pursuant to a settlement reached

16 MANU/UP/2603/2016.

17 (2002) 7 SCC 518.

18 AIR1971Ker261.

19 2016 SCC OnLine Del2711.


between the two, under the mediation done by Karkadooma court, Delhi, both parties mutually agreed to give talaq which is known as mubarat under Muslim law. Subsequently, the divorced wife lodged the FIR. The High Court of Delhi considered the issue as to whether the FIR filed by the wife under sections 406,498A, 34 of IPC be pursued. The court stating that since the settlement reached between the parties was legal, it quashed the proceedings under the FIR under article 226 of the Constitution. The court rightly understood and interpreted the Muslim law of divorce by mutual consent known as mubarat.

In Tipu Sultan Sazj v. State,20 the facts and question before the High Court of Delhi was similar to the one faced in the above mentioned case wherein the husband and wife married but due to ideological differences, they started living separately. They also had a child out of this wedlock. Pursuant to a settlement reached between the two, the High Court Delhi was faced an issue as to whether the FIR filed by the wife under sections 406, 498A, 34 of IPC should be pursued. The court stating that since the settlement reached between the parties was legal, quashed the proceedings under the FIR under article 226 of the Indian Constitution. The court also allowed for maintenance for the child. The court has settled the dispute very wisely and in accordance with the spirit of Islamic law of divorce and maintenance and deserves appreciation.

In Shadab Ali v. Govt. (NCT of Delhi)21 arising out of similar facts and thereby raising similar issues, the parties had been in a wedlock and the wife had filed FIR under section 498A, 406, 34 of IPC but an amicable settlement was reached. The court relied on Gian Singh v. State of Punjab 22 and Narinder Singh v. State of Punjab, 23

to state that although the inherent power of the high court under section 482 Cr PC should be used sparingly, if the Court is so convinced, that offences are entirely personal in nature and that quashing of such proceedings would bring peace and secure ends of justice, it should do so. Here the court in this case also applied its wisdom and resolved the matrimonial dispute in a peaceful way according to the Islamic law of divorce.

In Mohd. Shajq v. State (NCT of Delhi),24 the petition filed before the High Court of Delhi pertained to section 482 Cr PC and dealt with FIR filed under section 498A IPC. The wife contended that after the solemnization of marriage, the husband along with his relatives started harassing her for dowry and threatened to marry someone else if the demands were not met with. Eventually, the wife was thrown out of the matrimonial home. During the pendency of the suit, matter was amicably resolved and they settled to take divorce and pay permanent alimony, etc. The court relying on

20 2016 SCC OnLine Del 1200.

2 1 2016 SCC OnLine Del 143.

22 (2012) 10 SCC 303.

23 (2014) 6 SCC 466.

24 2016 SCC OnLine Del 4446.


Gian Singh v. State ofPunjabZ5 recognised the need o f amicable resolution o f disputes in such cases and ordered quashing o f the FIR under the powers accorded to it under section 482, Cr PC. This judgment is also in accordance with Islamic law and is just and reasonable.

In Wasi Haider v. State (Govt. Of NCT of Delhi), 26 similar question o f quashing FIR arose before the High Court o f Delhi in similar facts and situations where FIR was lodged under sections 498A, 406 and 34 o f IPC. The High Court o f Delhi again relying on Gian Singh v. State of PunjabZ7allowed quashing o f the FIR.

In Salma Begum v. State (Govt. O f N C T ~ f D e l h i ) , ~ ~ the same question regarding quashing o f FIR filed by wife under sections 307, 323, 498A, 506, 34 o f IPC was raised owing to a mediation between the parties. In this case as well, the High Court o f Delhi relying on Gian Singh v. State of P ~ n j a b , ~ ~ allowed quashing o f the FIR. Similarly, High Court o f Delh in a number o f cases namely Azhamddin v. State (Govt. Of NCT of Delhi),30Mohd. Sakir v. State (GNCT of Delhi),31 Mohammad Zaigham v. State (Govt. of NCTof Delhi), 32Shahid Khan v. State (Govt. Of NCT of Delhi),33 Tahir Ansari v. State (Govt. Of NCT of Delhi),34Mohd. Akhlaq v. State (Govt. Of NCT of Delhi),35 Pawez Ahamad v. State, 36 Faimuddin Khan Sazj v. State (Govt. Of NCT of Delhi),37Afar Hussain v. State (Govt. Of NCT of Delhi),38 Nadeemv. State (Govt. Of NCT of Delhi)39 has taken a similar view.

InMahammadIsakv. State of Ori~sa,~O the High Court o f Orissa also followed the above view o f High Court o f Delhi and allowed the quashing o f the FIR owing to a settlement1 mediation reached between the parties. Thus, we find that judges o f these high courts are trying to conceptualize and implement true process o f divorce as given in Holy Quran which mandates mediation and conciliation between the parties before the divorce.

(2012) 10 SCC 303.

2016 SCC OnLine Del 2287.

(2012) 10 SCC 303.


(2012) 10 SCC 303.











2016 SCC OnLine Ori 462.


Triple Talaq In Nazeer v. She~neema,~~ the issue before the High Court of Kerala pertained to

triple talaq and its validity. The husband had divorced his wife by three pronouncements in one go and therefore the wife was entitled to maintenance under Muslim Women (Protection of fights on Divorce) Act, 1986. He had later challenged the validity of this kind of talaq, claiming that such talaq is not legal and therefore cannot be acted upon; hence, the wife is not entitled to make a claim under section 3 of the above Act. It was held by the high court that the form of talaq in question was valid as long as it was not uttered with three pronouncements in a single instance. It was also held that having different personal laws for different communities will not violate article 14 of the Indian Constitution as long as such communities do not discriminate against its members on grounds of gender, etc. This surveyor feels that learned judge of High Court of Kerala has construed the Constitution and Muslim law and at the same time it also interpreted the law of divorce quite beautifully under the true spirit of Islamic law.

In Amina v. Passport OBcel; Regional Passport O f J i ~ e , ~ ~ the husband was aggrieved by the proceedings of his wife under section 3 of Muslim Women (Protection of fights on Divorce) Act, 1986.The husband had divorced his wife by a talaq kuri but later challenged the validity of this kind of talaq, claiming that such talaq is not legal and therefore cannot be acted upon; hence, the proceedings initiated by the Magistrate under section 3 should be set aside. Moreover, the husband based his claim on the fact that passport authorities had asked for a divorce decree to change marital status of the husband. It was held by the high court that the form of talaq in question was valid as long as it (triple talaq) was not uttered with three pronouncements in a single instance. It was also held that court cannot become a party to a proceeding to recognize an ineffective divorce in the guise of directions being given to passport authorities to accept the divorce. The judgement is affirmative under Islamic law and is rational.

The recent judgement of apex court i.e. Shqra Bano v. Union of India43 on triple talaq reflects some confused thnking and expresses its wishes for the law reform so that it should not be used as a weapon against the women. We appreciate that the apex court has rightly described talaq-al-biddat and its position in various schools but they could only pose the problem without any proper solution. However, the solution is already prescribed in the Islamic Jurisprudence and even Hanaj law itself.

In 1993, Tilhari J. from High Court of Allahabad in the case of Khatoon Nisa v. State of U.P44 held triple talaq to be illegal and unconstitutional. But Constitutional Bench of Supreme Court did not take cognizance as the issue involved was not pertaining to triple talaq

41 MANU/KE/2403/2016.

42 MANU/KE/2096/2016.

43 MANUlSCll03 112017.

44 2002 (6) SCALE 165.


The remedy was prescribed by this surveyor long back through the medium of The Indian Express editorial on August 1, 1994 titled "Understanding the Islamic Divorce" and which later took the shape of a Book.45 The book contains a full chapter on Doctrine of takhyer (eclectic choice) based on which Dissolution of Muslim Marriages Act, 1939 was passed and thereafter it was adopted by a large number of Western Asian countries. This piece of legislation became a watershed development for Muslim women and that's why during the debate, non-Muslim women members of the Legislative Assembly were expressing their concerns as to why they were being deprived of this big relief i.e. getting rid of their undesired husbands.

Though the judgement has many facets, however, we should confine the discussion to the validity of triple talaq in sharia only and comment only on the verdict of Kurian J. who mentioned in detail the position of all the schools as well as the sources of Islamic law which talks about the validity of the triple talaq. However, the court seems a little confused to understand the concept of 'good in law but bad in theology' used by renowned legal scholar Prof. A. A. A. Faizi. It may be mentioned that everything which is bad in theology is not bad in law. The court further failed to conceptualize the Islamic law and to limit it upto the Holy Quran. Everything which is not clearly mentioned in Quran can still be held as part of Islamic law because Islamic law has four primary sources apart from secondary sources. The primary sources of Islamic law are Quran, Hadith, Ijma and Qiyas. For example, one third ceiling of will does not find mention in the Holy Quran and Prophet's Sunna has not expressly referred to this provision. However, all the Muslim jurists including Shia and Sunni are in agreement about one-third restrictions of the property to be bequeathed. It is admitted that here in case of will we find rationale in law unlike triple talaq. Perhaps this provision of Muslim law is borrowed from Roman law by Muslim jurists. It may be mentioned here that Islamic law is a jurist made law and not a judge made law and therefore under Islamic jurisprudence only the Muslim jurists can make, interpret and amend the law.

The other reservation that we have with the learned judge is that whether triple talaq has been coming down from the times of Prophet or is it the innovation of the second Caliph. It is still debatable. Though it has always remained controversial but at the same time, it has been recognised by some jurists and therefore not only Hana j school but all the other Sunni schools (Shafai, Hanbali andMaliki) have unanimously approved this form of talaq4(j and that's why apart from Quran three other sources of Islamic law are replete with the permissibility of t h s type of talaq, though with certain differences based on intention of the person who pronounces the talaq.

It is astonishing to note that our learned judges highlighted the problem trying to give relief to the women but could not provide any proper device for their emancipation and failed to refer the doctrine of takhayer based on whch all the Muslim countries initiated their reforms. The learned judge did not even mention whether

45 Furqan Ahmad, Triple Talaq: An Analytical Study with emphasis on socio-legal aspects (Regency Publication, New Delhi 1994).

46 See Supra note 44, Chapter V at 63-77.


triple talaq like other Muslim countries would be treated as a single revocable divorce or will have no effect at all.

The rules of Ahl-e-Hadith and Shia schools are indeed path breaking step in law of triple talaq in India and its opposition by some Hanaj ulema is unfortunate. If Quran, Hadith and other Islamic legal treaties will be interpreted by the legislature and the courts, they can never be without pitfalls as Krishna Iyer J. says "when judicial committee of Downing Street interprets Manu and Mohammed of India and Arabia, marginal distortions are inevitable" and this saying of Krishna Iyer is also very much visible in the present day judgments. The inescapable ambiguity in the court's judgement together with its directive to the legislature to formulate a law in this regard as well as the consistent indifference of Muslim jurists ultimately resulted in the Lok Sabha passing the Muslim Women (Protection of fights on Marriage) Bill on 2Sth December 2017. This proposed legislation, as was obvious, is replete with misunderstandings and drafting errors. Clause 2(b) of the bill defines talaq as (talaq- e-biddat and any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by the Muslim husband). Clause 3 says that any pronouncement of the talaq by a person upon his wife by words, either spoken or written or in an electronic form or any other manner whatsoever, shall be void and illegal, This surveyor fails to understand that when the Supreme Court deliberated only the issue of triple talaq and this is the only issue which is debatable among Muslim jurists then why apart from talaq-e-biddat any other form of talaq finds mention in the Bill. It would create a lot of confusion and open the floodgates of doubt and misunderstandings during the course of interpretation. The issue was whether triple talaq should be treated as a single revocable talaq or final irrevocable talaq and the apex court like in other Muslim countries seems to be inclined towards the former, so that the doors of reconciliation between the parties should always remain open. The apex court as well as the legislature talks about the laws of the Muslim countries saying that this type of divorce is not permitted there. However, the laws of Muslim countries as we know consider tripe talaq as single revocable divorce and do not make it void and illegal. Thus the provision of the proposed law is not in conformity with the Islamic law.

Clause 4 provides for punishment for imprisonment for term which may extend to three years and fine. The provision of punishment for misuse of divorce is in conformity with the Islamic law as this surveyor also mentioned this in his book twenty years ago.47 Marriage so its discution is covered under civil law hence if a husband arbitrarity breaks the marriage contract, then compensation and lor damages may be awarded even in an exemplenary manner. But the impliction of puishment as envisaged under criminal law does not make any legal sense. Law either should be instrumental or symbolic. How in case of failure of marriages (civil contract) can the state send the parties to jail? Moreover how this criminalization will help the divorced woman can only be known to the initiators of the proposed law. In family and society matters the punishment would be reformatory in nature rather than retributive otherwise

47 Supra note 45 at 129


its enforcement will be very problematic. The problem is that even woman organizations or other social organizations and legal scholars have not been consulted while proposing such drastic measures, let alone the question of consulting with Muslim Personal Law Board which is a joint organisation comprised of all.. . . . of Muslims viz., Shia, Sunni, Desbandi, Bareillevi, Ahlehadiths etc., Many members in the House questioned as to how could a man in jail provide subsistence allowance. Criminalization for a civil matter and absence of provision for maintenance of divorced wife in the bill is a recipe for disaster. It leaves no room for reconciliation and thus having no positive impact on Muslim families. The essence of the Islamic law of divorce is to proceed from mediation and reconciliation and to arrive at a harmonious resolution of the dispute. Most importantly the proposed law pays scant emphasis on the provision of dines which could have substantially aided the woman.

The provision relating to imprisonment will gravely strain the relationship, stigmatize the husband, and will sour the matrimonial relationship and adversely affect the mental development of the children involved. A bad husband sometimes proves to be a good father. This fact cannot be denied. However, the issue of custody of the children as provided in the bill is in consonance with Islamic law. It begs the question that if marriages fail, should the resultant outcome necessarily be the imprisonment of the husband. The correct penalty should only be monetary, for instance section 9 of the Hindu Marriage Act, 1955 which provides for restitution of conjugal rights also envisions "attachment of property" as a penalty for failing to obey the decree of restitution and there is no provision for jail.

Almost all the judgments as well as the law minister in debate refer to the laws of Muslim countries where triple talaq is either abolished or treated as a single revocable divorce. In this regard they refer to Pakistan also. However, on the initiative of Prof. Werner Menski when this surveyor studied the position of Pakistan relating to this issue, the position to different, its brief discussion is given as under:

If we look at the relevant provision i.e. section 7 (1) of Muslim Family Law Ordinance (MFLO) 1961 of Palustan whch states that "Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife", it becomes quite clear that it's not the triple talaq whch has been made illegal but that a requirement has been imposed upon the husband to give notice to the concerned authority subsequent to pronouncement of talaq and as Prof. Menski has quite succinctly pointed out that:48

Section 7 of the MFLO expects the husband to give notice only after the talaq. If he pronounced a triple talaq, which in traditional shari 'a law becomes instantly effective and legally valid, any form of notice is clearly pointless. The provisions of section 7 of the MFLO aimed to establish a fiction.. .

48 Werner Menski, Comparative Law in a Global Context: The Legal Systems ofAsia andAfrica, 377 (Cambridge University Press, 2nd Edition, 2006).


Since the talaq clearly favours men, a number of Islamic countries have attempted to regulate the husband's discretion to divorce at any time. In Pakistan, the Muslim Family Laws Ordinance of 196 1 (MFLO) effected some degree of state control in the sphere of family law by seeking to regulate inter-alia divorce. However, it is important to note that the statute first of all preserves the Muslim husband's traditional right to divorce in any form as is clear from section 7(1) which lays down that "[alny man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife". This provision raises more questions than answers and the prominent among them being what would be the legal position of the wife if the husband divorced her by talaq but never gave notice to anyone? section 7(3) of the 1961 Ordinance lays down that any talaq given by the husband will be effective only 90 days after notice of the divorce was given. This again raises another question that what consequences would ensue if the husband never gave formal notice of the divorce to anyone in the first place? The answers to both these questions would be in consonance with the classical sharia law, according to which a triple talaq would be instantly effective.

In the famous case of Ali Nawaz G a r d e ~ i , ~ ~ a military man had stolen the heart of the attractive wife of a businessman and had purported to marry her a few days after an alleged divorce from the first husband. This became a high society scandal, and the Pakistani Supreme Court, to which the case was rapidly transferred because of the importance of the people involved, was under intense pressure to come up with a morally correct verdict. The court held that notice of divorce was essential to dissolve a Muslim marriage in Pakistan. In other words, in the absence of notice there was no divorce and the marriage was valid.

This case was treated as a precedent despite its peculiar facts (the parties were Shias, the wife a foreign national, and the second marriage took place within the iddat) and it was also followed in English law as representing the true state of Palustani law on the matter, with far-reaching consequences.

But soon after that cases began to appear in Pakistani courts by which it became obvious that notice of divorce could not possibly be made essential for legal validity of talaq in all circumstances. The decision in Noor Khan50 signifies this point. In this case a woman and her second husband stood accused of zina on the basis that the woman's first marriage had never been validly dissolved. The background to this case was that the husband, in a fit of anger, had thrown his wife, mother of many children, out of the house without any explicit talaq when she told him that a male relative had attempted to assault her sexually. She considered herself divorced and after some time, the woman had been remarried to a man with whom she now had another set of children. Several years later the relative of the first husband accused the woman and her second husband of zina and brought azina prosecution. The Federal Shariat Court, however, rightly noticed the abuse and set the woman and her second husband free.

49 SyedAli Nawaz Gardezi v. Lt.-Col. Muhammad YusuJ SPLD 1963 SC 51

50 Noor Khan v. Haq Nawaz, SPLD 1982 FSC 265


The important point to note here is that the Federal court dispensed with the requirement of notice of divorce, considered the woman divorced from her first husband and set her and her second husband free. It was further held that, in circumstances where the parties concerned did not even know of the existence of the MFLO, let alone any formal requirement to notify a divorce to some authority, it could not be held by the courts that notice was essential. There are quite a few other reported cases of this kind. Significantly, a whole group of cases on this subject shows that when the protection of women's and children's rights to inheritance or other financial benefits were at stake, the courts safeguarded such rights by holding that a divorce could be legally valid in Pakistan also in the absence of formal notice of the talaq.

Thereafter, new cases began to appear from 1988 onwards in which it was held that notice of divorce was not essential for legal validity in Pakistani law, simply because such notice requirements were against the letter and spirit of Islam. These intricate cases focused as much on complex questions of constitutional law as on the issue of divorce. In essence, an important constitutional amendment in 1985 turned the Preamble of the Constitution of Pakistan into a substantive provision of the Constitution, so that under the new article 2-A every law in the country had to be tested as to whether it was in line with Qur 'an and sunna. In these circumstances it was held that the requirement to give formal notice was un-Islamic, and attempts were made to have section 7 of the MFLO as a whole declared unconstitutional and taken off the statute book.

Thus the Pakistani law has maintained a precarious balancelcompromise between the uncodified shariat law and the codified Muslim law of the MFLO. During the early 1990s, the Supreme Court took cognizance of the two contradictory lines of cases on the question of notice of divorce though it did not go about resolving the conflict. The decision in Kaneez Fatima, 5 1 however, represents its skillful balancing resorted to by the court in holding that normally notice should be given in accordance with section 7 MFLO, which remains good law. Subsequent decisions held that it would depend on the facts and circumstances of the case whether a particular Muslim divorce was legally valid or not. This would lead one to presume that the word 'shall' in section 7 of the MFLO is in Pakistani law is interpreted so as to mean that a Muslim man 'should' give notice, rather than that he 'must' do so, as would be the effect of Western-style legal interpretation.

Significantly, Bangladeshi Muslim law, too, has now taken the view that notice of divorce is not essential, as reported in Sirajul Islam.52 Here, too, then the modem state has given up on seeking to regulate the field of Muslim divorce law through the introduction of modern, state-sponsored and state-supervised procedures.

5 1 Mst. Kaneez Fatima v. Wall Muhammad, lPLD 1993 SC 901.

52 Sirajul Islam v. Helana Begum, 1996 DLR 48.


Nafqa (Maintenance) Under the Muslim personal law, maintenance is termed as nafqa which literally

means "what a person spends over his family", and shall include all those things whch are necessary to support life such as food, clothing and lodging. It is a mandatory provision in Quran that a husband is bound to maintain his wife, children and parents. Holy Quran says that "[alnd for the divorced women, (is) a provision in a fair manner- a duty upon the r igh teo~s" .~~

The most popular case relating to this issue was Md. AAhedKhan v. Shah Bano Begum.54 The brief facts of the case were that Shah Bano Begum was married to an affluent lawyer Mohd. Ahmad Khan in the year 1932. There was a matrimonial dispute, which resulted into irrevocable talaq by the husband in 1932. The husband paid maintenance to Shah Bano at the rate of Rs. 200 per month for about two years and deposited a sum of Rs. 3000 in the court by way of dower (Mehr) during the period of iddat. Aggrieved by the meager amount, Shah Bano filed a suit. The husband contended that he is only required to pay maintenance till iddat period and no more as per Muslim personal law and section 127(3)(b) of Code of Criminal Procedure, 1973. Thereby Shah Bano filed maintenance proceedings under section 125 of Cr PC. The main issue raised was whether the payment of mehr and amount of maintenance paid till iddat period would absolve the husband from his duty of maintaining his wife beyond iddat period?

The two precedents where the court had ordered maintenance for wife even beyond iddat period were Bai Tahira v. Ali H ~ s s a i n ~ ~ and Fuzlunbi v. K. Khader Cali.56 The five judge bench of the Supreme Court held that if the divorced Muslim woman is unable to maintain herself after the iddat period, maintenance may be ordered under section 125 of the Cr. PC, in spite of mehr and maintenance being paid during iddat.

The aftermath of this judgment led to a social reaction. Uproar was caused by the representatives of Muslim community treating this decision as interference with their personal laws. Later Indian legislature passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, that provided: (i) a reasonable and fair provision and maintenance within the iddat period; (ii) maintenance for children; (iii) amount of mehr (iv) all properties given at or after marriage.

The above legislation negated the effect of Shah Banojudgement. The position post 1986 Act can be inferred from Danial LatzJi v. Union of India,57 where the constitutional validity of the Act was challenged before the Supreme Court. The Court declared the Act ultra vires while it reinterpreted section 3 of the Act, the constitutional bench of the apex court, concluded:

53 QuranII:241.

54 AIR 1985 SC 945.

55 AIR 1979 SC 362.

56 AIR 1980 SC 1730.

57 AIR 2001 SC 3958.


(i) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husbandas is made within the iddat period in terms of Section 3(l)(a) of the Act.

(ii)Liability of Muslim husband towards his divorced wife arising under Section 3(l)(a) of the Act to pay maintenance is not confined to iddat period.

This story opens the door of dualism to settle the dispute relating to maintenance. Sometimes it happens that when a party exhausts one remedy that is under Cr P C she with the courtesy of advocate further approaches the court for another relief under Muslim Women (Protection of Rights on Divorce) Act, 1986. Now it has become a common feature and found in most of the decisions decided by the high courts and Supreme Court. With this background following decisions of this surveyor are being discussed hereunder:

In another case of S. Rehana Sulthana v. B. Mohammad G h ~ u s e ~ ~ before the High Court of Andhra Pradesh, the wife claimed maintenance from husband under section 125 Cr PC on grounds of being validly married to her husband. She contended that upon being subjected to cruelty by in-laws she had filed a case under section 498A of IPC and two months prior to this, she was necked out of her matrimonial home. To the contrary, the husband argued that the wife was demanding to live separately from his family and upon husband's refusal to do the same, the wife left the matrimonial home. The issue before the court was whether the findings recorded by the trial court are perverse, warranting interference of this court. The trial court had arrived at a conclusion that the petitioner herself left the matrimonial home without any justifiable reason. The trial court further observed that the petitioner was a divorced woman, and was not entitled to claim maintenance from the respondent because she had left the home at her own will and dismissed the petition.

The High court averred with the finding of the lower court to hold that the lower court scrutinized the material available on record in the right perspective and said that their findings are based on sound reasoning. Hence, no maintenance was allowed to the wife. Both the high court and the trial court took proper stand by interpreting the law of divorce and maintenance in its essence.

In C. Nabi v. Mushthiri ban^,^^ the issue before High Court of Madras was enhancement of maintenance given by trial court under Muslim Women (Protection of Rights on Divorce) Act, 1986. The court in its order reproduced section 2(a), (b), 3 and 4 of the Act of 1986 of which section 4 is given here-under:

Notwithstanding anything contained in the foregoing provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 or in any

5 8 20 16 (2) ALD (Crl) 270 (AP).

59 MANU/TN/2393/2016.


other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.

Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her.

Provided . . .

Earlier the trial court awarded Rs. 5000 to divorcee during iddat period which was enhanced by the high court upto Rs 10000. However, the wife claimed Rs. 500000 towards fair and reasonable provision and maintenance provided under the Act of 1986. The trial court awarded Rs. 100000 towards this end. However, the high court, keeping in view the facts and circumstances, in the revision petition was inclined towards modifying the award and reduced the amount from Rs. 100000 to 50000 as reasonable and fair provision and maintenance. Though, it enhanced the amount of 5000 to Rs. 10000 as maintenance during iddat period. Moreover, the husband is directed to pay Rs.2500 per month to the wife towards maintenance till she is remarried and Rs.1500 each per month to the two children. And with this modification the criminal revision is partly allowed and the order of the trial court was partly allowed. This judgement also is not in consonance of Islamic law and provides proper protection to destitute wife. However, providing remedy in dual regime namely Cr PC as well as Act of 1986 is not in the interest of litigants and the overburdened courts.

In Sheikh Raheem Baqsh v. Salma60 the wife had filed a suit for maintenance under Section 125 of CrPC before the High Court of Madhya Pradesh. The wife contended that she agreed to the marriage when the husband had assured that he is unmarried and consequently, changed her religion from Hindu to Muslim before a notary. After entering into the wedded relationship with the husband, she came to know that he was already married and had children too and therefore, contended that he had married her with deception. Moreover, he also grew illicit relationship with some other women and used to beat his wife when she objected to it. The court held that since under Muslim law a man can have four wives, the later marriage is not

60 2016 SCC OnLine MP 2483


vitiated on grounds of prior marriage and granted maintenance to the wife under section 125 Cr PC.

In Rehana Sultana Begum v. Hashmi S y e d M ~ j i b , ~ ~ the wife and daughter filed a petition before the Bombay High Court seeking maintenance under section 125 of the Cr PC. The wife had also claimed that the husband doubted her chastity and demanded dowry, he had also threatened to kill her. The husband claimed to have served a divorce by notice. The lower court held that keeping in view the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, maintenance should be given to wife only for iddat period and rejected the claim for future maintenance and allowed the claim of maintenance by daughter. In the appeal, the wife contended that even if presuming that Act of 1986 is available to the parties, still the Apex court has already decided in Danial Latzj v. Union ~ f l n d i a ~ ~ the said issue by observing that the Muslim woman is entitled for maintenance beyond iddat period. The High court stated that divorced Muslim woman is entitled to fair and reasonable provision for her future, being made by the former husband which must include maintenance for the future extending beyond the iddat period; this liability of the former husband is also enunciated under section 3 (l)(a) of the 1986 Act.

It may be submitted that this surveyor has been involved in the research of Muslim law since long, even then, he could not understand the obiter in Danial Latzj case till date. This constitutional bench judgment is so diplomatic that it aimed at satisfying the protagonist and antagonist of both the regimes, that is, of Cr PC and the Act of 1986.

In Vakila v. State of Up, 63 the issue before the High Court of Allahabad pertained to maintenance under section 125 Cr PC claimed by the wife for herself and her minor daughter. The court relying on Chaturbhuj v. Sita BaP4 and Shamima Farooqui v. Shahid Khan65 observed that the principle is that when prima facie marriage is established, maintenance should be awarded because section 125 CrPC is intended to curtail and also to ameliorate orphancy; the object is to achieve the social purpose and to prevent vagrancy and destitution. The court further observed that the proceeding under section 125 Cr PC provides a speedy remedy for supply of food, clothing and shelter to the deserted wife where the opposite party has failed to provide for sufficient reason for refusing her to live with him. The court based on these reasonings ordered the maintenance to be paid.

The reason is best known to the judges as to why are they allowing dual regime for maintenance of divorcee which has increased the burden of the courts which are already overburdened. This system also provides a remedy for the lawyers to exploit their clients, time and again.

61 2016 SCC OnLine Born 5263

62 (2001) 7 SCC 740.

63 2017 (1) ACR 768.

64 (2008) 2 SCC 316.

65 2015a DLT (Crl.) 371 (SC).


mlayat (guardianship) & Hizanat (mother's right to custody of child) Generally, not even the layman but also lawmen sometimes fail to understand

these two different concepts of Islamic law. Hizanat has unique features and it is a special right of mother, her near relatives like mother's mother, mother's sister, father's mother, etc. in absence of mother. However, father's right to guardianship remains intact with him and during the period of hizanat (in case of boy, seven years and in case of girl till puberty) father is liable to maintain his son and daughter. Usually, we find confusion in the rulings given by the various courts about understanding of these two different concepts. They club together the two different aspects and in some cases it becomes against the interest of the minor chldren. Following are the decisions which cover this aspect in its confused understanding:

In Sheikh Simran Rahaman v. Sekh J i ~ u r R a h a m a n , ~ ~ the petition filed before the High Court of Calcutta by mother Sheikh Simran Rahaman stated that after the divorce, the custody of both the children should be given to her. She asserted this because both children belonged to the Muslim community and it has been a settled principle of Muslim law that mother is entitled to the custody of her male child till he attains the age of seven years and that of the female child till she attains the age of puberty. And that the right continues even if she is divorced by the father of the child unless she has re-married in which case the custody belongs to the father. She also pleaded that the father didn't have good character as he had been accused of rape and was also charged under section 498-A IPC by his ex-wife. It was held by the court that in granting custody of minor child, moral and ethical values cannot be ignored, particularly, when the children are minor and their father is a habitual drunkard involved in different immoral activities and does not bear good moral character. But since the daughter insisted upon living with her father and appears to have a mind of her own, they sent her in her father's custody and the son was sent to mother's custody.

It is astonishing to note that the learned court did not even try to understand the spirit of law of hizanat which is a special feature of Muslim law provided particularly in the interest of minor son and daughter. The company of mother for a daughter is necessary till puberty due to biological and social reasons, particularly in case where parents are already separated. The consent of minor daughter cannot be given preference over her welfare. Fuel was added to the fire when the court had itself admitted the immoral character of the father and even then it allowed daughter to live with the corrupt father instead of her mother, who is also legally entitled to have her custody.

In M. Sarfudeen v. Ushaman Ali,67 the facts before the High Court of Madras were that the wife had committed suicide owing to depression which she suffered after her mother's death and upon finding out illicit relationship between her father and her mother's sister. The husband worked in Dubai and after the burial of the wife left his son with his parents in India. Meanwhile, the minor child was taken away by the dead wife's father. When the husband returned, he requested the father-in-law


(maternal grandfather of the minor boy) for the custody of the boy, but in vain. The husband then filed a suit of custody of the child in lower court which was decreed in his favor. Aggrieved from this decision the father-in-law (maternal grandfather of the minor boy) appealed in the high court. The high court upheld the judgment of the lower court stating that the father was a natural guardian and the step mother of child being well educated whereas child's maternal grandfather and mother are not well educated.

The court could not recognize the difference between the two different concepts of law that is wilqat (guardianship) and hizanat (custody of child). The judgment is not in consonance with sharia law according to which in absence of mother the mother's mother and her other maternal relative68 have the right to custody of child and father is only guardian, hence, he has to pay the maintenance of such minor children. Here again, the court did not bother to understand this special right of woman and her relatives which have more affiliation with the boy or girl whose real mother has passed away. How can the qualification of step-mother develop natural love and affection like that of nearest relatives or biological mother and how can it be in the interest of upbringing of the child. The rationale of this decision can be best known to the learned judge.

In Irfan Khan v. State o ~ M . P , ~ ~ the husband filed a writ of habeas corpus for production of his wife before High Court of Madhya Pradesh. He contended that at the time of marriage, he was twenty-two years and his wife was nineteen years old. They both belonged to Muslim community and had married in accordance with the Muslim law. However, later, a case was filed against the husband by the brother of the wife under sections 363 and 366A of IPC. The family contended that the girl was minor. The husband claimed the custody of his minor wife. The court relying on Rahul Amin Sekh v. State of West BengaPO dismissed the writ petition and held that since the girl was a minor and did not want to go with parents, she should be kept in Balika Grah.

68 It has been acknowledged in many leading cases for example in Imamband v.Mutsaddi, AIR 1918 PC 11. It was laid down that the mother is entitled to the custody of a male child up to 7 years and a female child till she attains puberty. Under Shia Law she has custody of male child till the age of 2 years and female child till the age of 7 years. Under Sunni Law failing the mother the custody of a boy up to 7 year and girl up to puberty goes to the following female relatives in order:- (i) Mother's mother how highsoever; (ii) Father's mother how highsoever; (iii) Full sister; (iv) Uterine sister; (v) Consanguine sister; (vi) Full sister's daughter (vii) Uterine sister's daughter; (viii) Consanguine sister's daughter; (ix) Maternal aunt in like order as sisters; (x) Paternal aunt in like order as sisters. In default of mother and female relatives, the custody goes to the following: (i) Father; (ii) Paternal grandfather (nearest) (iii) Full brother; (iv) Consanguine brother; (v) Full brother's son (vi) Consanguine brother's son; (vii) Full brother of the father; (viii) Consanguine brother of the father; (ix) Son of father's full brother; (x) Son of father's consanguine brother.

69 2016 (3) MPLJ 449.

70 MANU/WB/l029/2015.


How could the court send a major girl, who had attained puberty, to Balika Grah instead of her husband; only the court can understand the reason behind it. It should also be noted here that as per Muslim law husband can also be the guardian of his wife in certain circumstances, but the problem is that unlike Krishna Iyer J.and a few other exceptions, our learned judges do not want to understand and read the Muslim law and they decide the cases according to their own wisdom which lies only in the Common law system.

In Raju v. Mohd. Imran I ~ a n i , ~ l the case before the High Court of Bombay arose when the mother of a minor child committed suicide. The maternal uncle and the father of the child had both claimed her custody. The maternal uncle along with the maternal grandparents had taken the child under their custody since the day they got to know of the suicide. The father contended that he was the natural guardian of the child. The court placing huge reliance onMausamiMoitra Ganguliv. J q a n t G a n g ~ l i ~ ~ decided that bearing in mind the welfare of the child, child's interest and welfare will be best served if she continues to be in father's custody and fixed visitation days in favor of the maternal uncle and grandparents.

Had the learned judge known about the concept of hizanat which is for the welfare of child and which ensures special rights to mother and her relatives and had heaccordingly taken the pain to study the precedents replete in the law reports,73 the judgment would have been entirely reversed. In that situation, the right decision would have been that the maternal relatives would have had the right of custody of child (hizanat) and father being the guardian would have been liable to maintain the child. Also, instead of the maternal grandparents father would have been allowed to visit the child.

I11 LAW RELATING TO PROPERTY

It is important to note that unlike Islamic law of status, Islamic law of property is secular in nature in comparison to other legal systems and law of status of Islam itself. AMuslim can transfer his property to any non-Muslim. In order to understand the efficacy of property law of Islam, it is necessary to read all the institutions of property put together and not in isolation. For example, law of gift, will and Inheritance if studied in reference to each other, then many objections raised by some ill-informed persons would have no meaning. As per the doctrine of representation, if an heir (particularly orphaned grandchildren) is deprived of the property of the deceased he has to be compensated through law of will and gift. That's why in certain Muslim countries the law of obligatory bequest finds place in their statute books in order to

71 MANU/MH/2338/2016.

72 (2008) 7 SCC 673.

73 See for example Imamband v.Mustaddi (1918) 20 Bom LR 1022


compensate the orphaned grandchildren. In this survey law of property as has been discussed comprises of hiba (gift), wasiya (will) wirathat (succession & inheritance) and w a d

Hiba (Gift) and Wasiya (Will) Under Islamic law a person can be the owner of his whole property during his

lifetime and he has absolute right to the exclusion of everyone over his property. However, when he takes his last breath all of his rights are extinguished and automatically transferred to his heirs even if practically they do not partition the property. Thus during his life time a Muslim can gift his whole property to anyone whether he is a relative or a stranger other than heir or anyone of his heirs even irrespective of his caste, creed or religion. But the gift will be completed only after delivery of possession. It means the donor of the property must disown himself. Even if a father is donating his house to his son the possession must be given and for some time father should vacate the house and give complete ownership and possession to son, only then the gift will be valid. It is immaterial that father continues to live in his son's home. There is no joint property system and that's why there is only one property owner. Earlier it was the father who owned the house but now son is the exclusive owner of the house after gift (Hiba). Similarly the provision of one-third will is also provided in order to compensate the relatives and friends of whom, according to the wisdom of the person, his heir will not take care after his demise. This provision also provides a relief to orphaned grand children who otherwise have no right of inheritance because Islamic law of succession & inheritance follows doctrine of representation in its strict sense. That is why in some Muslim countries law of obligatory bequest for these orphaned grandchildren is operational. However in general case even one third will is not advisable and therefore this one third will is not permitted in favour of one heir without the permission of other heirs. In this survey we find rulings on the law of gift and few cases related to will. They are reproduced with brief comments as under:

Hiba In Khursida Begum v. Mohammad F a r ~ o q ~ ~ the appellant appealed against the

dismissal by High Court of Rajasthan pertaining to claim of rent from defendants for a gifted undivided property. The trial court dismissed the suit holding the gift of undivided property to be invalid and subsequently the high court dismissed the appeal against the decree. Thereafter the appeal came before apex court. The sole question of consideration was whether the musha (gift of undivided property) by appellant's father to his minor son is valid or not? The trial court and high court found the same to be gift of undivided share of property, capable of division, hence being Hiba-Bil-Musha, invalid. Appellants submitted that the once the gift was held to have been duly proved

74 2016 (2) SCALE 70


in favour of the appellant who was minor, transfer of possession was not required to be proved. The other contentions of appellants which were observed in the judgement included the submission that as mentioned in the plaint as well as in the gift deed, property in question was located in the city of Jaipur, which is a large commercial town and thus clearly comes under the ambit of the exceptions to the rule of Hiba-Bil- Musha, exempting the freehold properties in a large commercial town. While counsel for the respondents supported the impugned judgment, the division bench of Supreme Court of India found no infirmity in the gift under Muslim law either on the ground of non-delivery of possession or on the ground that the gift was hit by Hiba- bil-Musha. The fact that the gift through a registered and valid gift deed was effected by father to his minor son on February 24, 1976, the concerned property being under tenancy, is in itself strong enough to transfer the right to collect rent to the donee. Further, the property being in possession of the tenant, execution of gift deed by itself amounted to transfer of constructive possession. The court persuaded the exceptions whch clearly shows that while gift of immovable property is not complete unless the donor parts with the possession and donee enters into possession but if the property is in occupation of tenants, gift can be completed by delivery of title deed or by request to tenants to attorn to the donee or by mutation. It is further clear that gift of property which is capable of division is irregular but can be perfected and rendered valid by subsequent partition or delivery. Exceptions to the rule are: where the gift is made by one co-heir to the other; where the gift is of share in a zamindari or taluka; where gift is of a share in freehold property in a large commercial town, and where gift is of share in a land or company.

In the light of above mentioned observations the Supreme Court, while allowing the appeal, setting aside the impugned judgment of high court and decreeing the suit, observed that though it is clear that gift of property capable of being divided is irregular yet the principles of Mohammedan law do not restrict the perfecting of the same by subsequent partition or delivery. The court also found force in the submissions made by the appellant and held that courts below were not justified in not giving effect to the gift which had been held to be genuine.

As far as delivery of possession is the integral part of validating a gift in this case, constructive possession has the same meaning and therefore the interpretation given by the court is not contrary to the Islamic Law of gift. The delivery of possession is must and without it no gift is valid, the prophet says "no Qabza no Hiba', i.e., without delivery of possession gift cannot be effective. However, this does not mean that in all the circumstances the handing over the property and usufruct should be done. More so in the case of minor, possession will always be taken over by his guardian.Thus in the case of father's gift as mentioned above, constructive possession is more than sufficient and no actual possession is required. Here the father was the natural guardian and thus the gift to the minor son by him effectively results in deemed delivery of possession. However, in this case the gift in question is of undivided property which is known as musha. Quoting authority from Bailee, A.A.A. Fyzee, the leading scholars of Islamic Law, explain that the word musha means an undivided part or share in a common building or land. The gift of musha is valid and lawful on


acceptance. However, the gift of anundivided share in any property capable of divisions with certain exceptions is incomplete and irregular (fasid), although it can be rendered valid by subsequent separation and delivery of possession. The rule regarding musha is not only confined within the strictest limits, but is cut down by some exceptions. Here the exception applied pertains to freehold property in a commercial town. Fyzee holds that it must always be remembered that the doctrine of musha only renders the gift fasid (irregular) but not batil (void).75 Whether the gift in this case was invalid or irregular, it can be regularised.

However, the court could not point out the Islamic law of property as a whole which includes gift, will and inheritance. In this case after the demise of father if the gift was supposedly invalid then also the whole property according to Islamic law of inheritance had already been devolved among the heirs as soon the father passed away. If the deceased had sons and no daughters the minor son was already entitled for 113rd share of deceased property as an heir of deceased.

This surveyor feels that the reason of this gift was that the father was suspicious that his major sons might do injustice with the minor son after his demise. Therefore, he gifted the property according to approximate share of minor which he would have otherwise got from inheritance. And in case if the gift had been valid then the minor would have got the property under gift as well as 113rd share from the remaining property through inheritance. This aspect of Islamic property law got unfortunately overlooked by the apex court. Therefore either by the way of gift or if the property was not yet transferred, the minor son as an heir was entitled to get 113rd share of his deceased father's property as soon the father died and the same principle would also apply for the rent generating through the property of deceased entitling him for 113rd share in the same.

In Trishala Grih Nirman Sahkari Sanatha Mayadit Indore v. A n ~ a r ~ ~ the applicant, cooperative housing society (Regd.) purchased a piece of land of 15 acres. This cooperative society then applied for mutation which was objected to by the respondents and they filed a single suit to declare the sale void and for further release. This application was rejected by the trial court, thereafter the matter reached the High Court of Madhya Pradesh which allowed the petition. The main question which was to be decided by the court was relating to hiba. The land was gifted by the grandfather Mr. Alam Pate1 when the age of plaintiff number 1 was six years old, plaintiff number 2 was unborn at the time of hiba. However he was born in the same year. Plaintiff number 6 was three years of age. In this regard Principles ofMohammedan L a ~ ~ ~ i s referred to where it is mentioned that "Hiba or Gift is a transfer of property made with and without any exchange from one person to another and accepted by on behalf

75 AAA Fayzee, Outlines ofMuhammedan Law 267 (Oxford University Press Delhi 1974).

76 2016 SCC OnLine MP 5848.

77 M Hidayatullah (ed.), D F Mulla, Principles ofMohammedan Law, 19th ed. 1990)., s 138


of the latter."78 It was contended that for a valid hiba there should be declaration by the donor and acceptance by the donee as well as delivery of possession should also take place which is one of the essential ingredients of hiba. Since four plaintiffs were not born at the time of hiba which was executed by late Alam Pate1 and therefore the trial court erred in law and facts in dismissing the application. The reliance was placed on the judgment delivered in Bibi Riajan Khatoon v. Sadrul Ala~n,~~Abdul Rehman v. Smt. Athfa Begumso as well as leading case of the apex court namely Hafeeza Bibi v. Sheikh Farid,81 etc. And accordingly contended that the plaint averment does not disclose the ingredients of hiba. It has also not disclosed the manner and method that how it was done in favour of unborn persons. At the same time it does not disclose the acceptance of delivery of possession. On the other hand the respondent counsel argued that the trial court has rightly rejected the application as it is a matter of evidence whether the plaintiffs were born or not at the time when the hiba took place. It also referred to some leading cases as precedents and then stated that in the light of the above mentioned judgments delivered by Supreme Court that the law is very clear regarding acceptance on behalf of the minor's guardians. Since two plaintiffs were minor the suit was maintainable on their behalf whether the children were born or not and whether they were minor or not is a matter of evidence and the trial court was right in rejecting the application.

After hearing the contention of the parties at length, perused and recorded, the Supreme Court referred various precedents pertaining to validity of Muslim law on gift and was of the opinion that the above mentioned three essential ingredients of gift are necessary for it to become valid and held that when there is no compliance of the above three conditions the gift rendered is invalid. The learned judge seems appropriate to examine whether the settlement deed executed by Amathul Hadi in favour of respondent number 1 is in compliance with the above three conditions or not and for this purpose he quoted the entire settlement deed along with witnesses and then he referred to Hafiza Bibi's cases2 where it was held that the position is well settled which has been stated and restated time and again that the three essentials of gift are: declaration, acceptance and delivery of possession. However, Muslim law does not make writing essential for the validity of gift and an oral gift fulfilling all three essential conditions make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing in this case. Fyzee also referred to thats3 where it is mentioned that writing may be of two kinds namely, one, mere recitation

78 Supra note 2 at 150.

79 AIR 1996 Pat 156.

80 AIR 1998 Kar 39.

81 (2011)4SCC2421.

82 Ibid.

83 AAA Fayzee, Outlines ofMuhammedan Law, 182 (Edited and Revised by Tahir Mahmood Lexis Nexis 5th ed., Delhi, 2008)


of the fact of a prior gift, such a writing need not be registered. The other one is that it shall be the instrument of gift. Such writing in certain circumstances requires registration. The author is of the view that registration by itself without other necessary conditions is not sufficient. The court also referred to M ~ l l a ~ ~ where section 123 says whether the writing requires registration or not depends on the facts and circumstances of each case.

After profusely quoting from various books on Muhammedan law and the precedents referred to by the counsels of the parties in their arguments, the court held that the sale deed was executed in 2006 and the respondents number 1 to 7 and their fathers respondent number 8 to 10 were living under one roof which is reflected from the cause title of the plaint. The address is same in respect of respondents number 1 to 10 whch includes plaintiff number 1 to 7 and their fathers who were defendant number 2 to 5 in the plaint means all of them were residing at the same place. The children of the respondents number 8,9,10 argued that they were not aware of the sale deed executed in the year 2006 and therefore they had filed civil suit for permanent injunction in 2012.

The court was surprised that one generation was totally unaware about the sale deed executed by the earlier generation. The sale deed of the father was not in the knowledge of the children reveals that in order to overcome the limitation aspect it had not been challenged and the suit for declaration and possession had been filed by the plaintiff numbers 1 to 7. The court further said that the sale deed had been unsuccessfully challenged by the respondents i.e. by respondents number 8 to 10 and at the same time their children forming one set of litigants were also challenging the sale deed indirectly of the year 2006 stating that they got the property in hiba. Even though most of them were not born at the time when hiba took place. Finally the court held that the present petition deserves to be allowed as the plaint itself had been filed with ulterior motive which is certainly a bogus and vexatious litigation as it was observed by the Supreme Court in 7: Arivandadam v. 7: K S a t y a ~ a l . ~ ~ And the same has to be done at the earlier stage. Consequently the present civil revision was allowed and the order passed by the trial court was quashed.

Another case is reported in this survey year namely Abdu v. Authorised OfJicer Federal Bank Limited.86 In this case, the petitioner challenged the proceedings under the Securitization and Reconstruction of Finance Assets and Enforcement of Security Interest Act, 2002 (SARFAESI ACT) in order to obtain title and possession over a piece of land through an oral gift from his father. According to the petitioner since he and his father belonged to Muslim community and were governed by the Muslim law, they were entitled to maintain a proper conveyance of the property through an oral

84 Supra note 2, s. 123.

85 (1977) 4 SCC 467.

86 2016 (3) KLT 342


gift. He claimed that the property in question was gifted to him by his father through an oral gift and thereafter he had constructed a building on that piece of land wherein he is residing. Since the gift had taken affect prior to the mortgage made by his father to the bank that piece of property could not have been treated as a 'secured asset' enabling the bank to have recourse to SAFPAESI Act proceeding against it. According to him the lower court ought to have decided the question when it was especially raised by him before the court prior to passing of an order for taking possession of the property. The petitioner further contended that when such a question was mooted it was incumbent on the court to decide the question first, and the observation made by the lower court that it could not go into that question is not in order.

Contrary to it Respondent no. 1 and 2 had contended that the very same question was raised by the petitioner in the matter pending before the lower court and the competent civil court twice, though unsuccessfully. The petitioner also filed Original Suit (0s) against h s father before the Munsif's Court Tirur for an injunction simpliciter against the property. The father contested the said suit and the same was dismissed. Thereafter the petitioner filed OS against his father and the bank for declaration of his title over the said property & relief of injunction before the Munsif's Court, Tirur and this too was dismissed. Furthermore, the petitioner was estopped from forwarding such claims again in the matter.

The High Court of Kerala observed that if the petitioner's stand that no such oral gift had taken place is accepted and adopted, then it may lead to allowing all members of the Muslim community to take the same stand every time a similar issue under SAFPAESI Act when it comes before the court. The court further observed that the burden of proving the validity of the gift is on the donee especially in cases where the donor comes forward and says that he never made such an oral gift. Thus the petition being devoid of merit was dismissed.

In the case of Hfazath Hussain v. Sadiq Hussain, 87present appeal was filed by the plaintiff seeking declaration that heis the absolute and exclusive owner of suit schedule property, for recovery of possession of same and for recovery of mesne profits. Plaintiff claims that plaintiff is the absolute and exclusive owner of a portion of the house bearing comprising on an area of 372 sq. yards in which the plaint schedule is a part, that Smt. Ameerunnisa Begum, the mother of the plaintiff being original owner of the property, orally gifted the same to the plaintiff on 29th September 1985. The gifted property was in possession of three tenants at the time of gift and they were attorned to the plaintiff, that a small portion of 85 sq.yards out of the gifted property, which is the plaint schedule property, was in possession of one of the tenants by name Mohammad Osman till he vacated and delivered the vacant possession thereof to the plaintiff in the month of January, 199 1. Out of affection, plaintiff permitted his nephew i.e. the defendant to reside as a licensee with a condition to vacate the same by the end of February, 1994. The defendant instead of vacating the same, filed a criminal case against the plaintiff and his sons.

87 2017 (2) ALD 69, 2016 (4) ALT323, MANU/AP/0290/2016.


The defendant was in permissive possession of the suit schedule property under the plaintiff and neither any Will nor any gift was made and executed in his favour by the plaintiff's mother. Now since the defendant has malafidely denied the title of the plaintiff to the suit schedule property and also refused to vacate the same and is in illegal possession of the suit schedule property. Plaintiff had filed the suit for the reliefs supra. The issue before the High Court of Telangana & Andhra Pradesh was whether there was any oral gift in favour of Plaintiff for entire house property.

The decision was that no credence could be given to the evidence of the son of plaintiff, that too, when he claims as general power of attorney holder. Plaintiff miserably failed to prove alleged oral gift and memorandum of past transaction under memorandum of oral gift to claim any right therein over plaint schedule property. Even among memo of gift no record showing, if at all it was gift, what prevented to mutate property in name of defendant and his other paternal uncles. The high court found no infirmity in the lower court's decision and thus the appeal was dismissed.

In Mohd. Ayub v. Fouzia M ~ h i u d d i n , ~ ~ the reliefs sought were recovery of possession, mesne profits and declaration of title. The brief facts were that the owner of the suit property i.e. J Moosa divided the property among his four sons. Hashim, Ismail, Ibrahim and Alia. Alia gifted the property to Ibrahim's daughters (plaintiffs) and moved to USA. Ismail died and his wife (Ayesha) became the sole owner. Thereafter she gifted the property to her sons Younus and Ayub defendant no. 1. second defendant is the tenant who was living on lease given by Ayub.

The question before the high court pertaining to the gift executed in favour of the plaintiffs was whether the gift was executed in accordance with the principles of gift or not as enunciated by Mulla in his book.89 According to the high court, gift under Muslim personal law is the bone of contention in this case and therefore he produced the jurisprudence related to gifts under Mohammedan law. In this regard he referred to Mulla and reproduced Chapter IX which deals with Hiba. It runs thus:

(i) As per Section 138, a Hiba or Gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter.

(ii) ii) Section 139 says that every Mahomedan of sound mind and not a minor may dispose of his property by gift.

(iii) Then, Section 147 lays down that writing is not essential to the validity of a gift either of movable or of immovable property.

(iv) Then Section 149 speaks of the three essentials of a gift. It says, "the essentials for the validity of a gift are": (a) a declaration of gift by the donor, (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete.

88 MANUlAPl08 1712016.

89 Supra note 77.


(v) Section 150(1) lays down that: It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively, "is necessary to complete a gift.

(vi) Then Section 152(2) says that when the gifted property is in the occupation of tenants, the gift may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of the title deed or by mutation in the Revenue Register or the landlord's sherista.

After mentioning these relevant provisions of hiba the court referred to judicial precedent in this regard. With the reference to Hafeeza Bibi caseg0 where the apex court was engaged with the question whether High Court was right in holding that an unregistered gift deed was not a valid gift. Further in this context the court quoting the Mulla's Principles of Mahomedan Lawg1 noted that:

Under the Mahomedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case.

The high court also referred to Rashida Khatoons caseg2 andMaimoona Begum b case.93 The court further observed that the provisions of law and jurisprudential precedents conclude that:

(i) a gift under Mahomedan law can be either oral or written but a written gift is not a must for its validity;

(ii) (ii) the three essential requisites of a valid gift are: (a) declaration of the intention to gift by the donor, (b) acceptance of the gift by the donee expressly or impliedly and (c) delivery of possession to and taking possession thereof by the donee actually or constructively; and

90 AIR 2011 SC 1695.

91 See,l9th edn. 2010 at 120

92 (2014) SCC 738.

93 2016 (2) ALD 610.


(iii) solely because writing is contemporaneous of making of gift deed, it does not warrant registration under Sec. 17 of Indian Registration Act.

The court opined that in this legal backdrop the respective claims of the parties had to be scanned. The court finally held that the plaintiffs have failed miserably to prove the oral and written gift allegedly made in their favour by Alia through his general power of attorney (GPA). The court also said that Ayub does not stand on a better footing as even he did not examine the GPAand only relied on successive gifts.

The court said that GPA did not orally gift away the properties in favour of Ayub's father. The possession of Defendant cannot be held to be bad as the plaintiffs also have failed to prove their title. Plaintiffs cannot rely on the weakness of the defendant's case and therefore do not deserve reliefs.

Defendants do not have to pay any costs or mesne profits. Consequently the appeal filed by the respondentsldefendants was allowed by setting aside the decree and judgment passed by the trial court. Therefore the suit was dismissed.

Wasia (Will) In Dharma v. T a r ~ e m ~ ~ which has already been discussed under inheritance, we

discussed the same under will also. The observation of the lower court in this case was that a Muslim cannot bequeath more than one-third share. But the High court of Punjab and Haryana did not uphold the same because it was not in the light of section 3 of Shariat Act, 1937 which allows that a Muslim can retain its customary law as an option. It may also be mentioned that at the passage of Shariat Act, 1937, Muslim League initiated an amendment that women should not be given their share in inheritance and the feudals should continue their old practices of depriving the women from taking benefit of inheritance. Since section 2 mandates Islamic law for all the Muslims and accordingly every Muslim woman is entitled to inherit the property of their fathers and husbands, the land lord with the help of Muslim league did away this provision by getting section 3 inserted which was an exception to this rule.95

In, Iqbal Amiri v. The State,96 the petition was filed by the petitionerlsonlSh. Iqbal Amiri seeking probate of the Will dated January 12, 2007 of late father Sh. Mohammad Hussain Amiri who was a Sunni Muslim. Sh. Mohammad Hussain Amiri expired on July 9,2007 leaving behind only one immovable property being a Flat. On the death of Sh. Mohammad Hussain Amiri left behind five legal heirs with petitioner as a son, the widow Smt. Razia Amiri and his three daughters namely Smt. Shahnaz Amiri, Smt. Mumtaz Amiri and Smt. Rukhsana Amiri. All the three daughters and the widow have filed their No Objection Affidavits in the Court and are represented through

94 (2016)183PLR95, MANUlPHll33 112016.

95 For details see Furqan Ahmad, "The Muslim Personal Law (Shariat) Application (Amendment) Bill, 1986 in 6 Islamic & Comparative Law Quarterly 271 (1986).

96 (2016) 229 DLT 586.


counsel who affirms the no objections of the legal heirs to the Will of late Sh. Mohammad Hussain Amiri. The issue before the Punjab and Haryana High Court was about the validity of the oral will which was discussed in detail in the light of Muslim law as well as Indian Succession Act, 1925.

It was held by the high court that a probate case with respect to the Will of a deceased Mahomedan is not maintainable because the provisions of the Indian Succession Act pertaining to testamentary succession will not apply to Mahomedans. Hence the Will is proved.

It was further held by the high court that, Part VI of the Indian Succession Act, 1925 dealing with the testamentary succession does not apply to Mahomedans and this is clear from sections 57 and 58 of the Act. In this regard the court referred to M ~ l l a ~ ~ according to whom under Muslim law there is no format of a Will and in fact a Will of a Mahomedan can be an oral Will i.e. a Will even does not have to be attested as it need not be in writing.98

mrathat (Succession & Inheritance) Muslim law of inheritance is very complex. It is a combination of Quranic law

as well as the law of succession prevalent amongst the Arabs at the time when Prophet was framing the law relating to inheritance. And therefore Islamic jurists in their codification have put all the aspects of law of inheritance practiced since pre-Islamic Arabs. There is a famous saying of the Prophet that "learn the laws of inheritance, and teach them to the pupil; for these are half of the useful knowledge". Therefore the complexities of inheritance law are known to everyone and in our country it is already eclipsed under the shadow of other legal systems. Not only others, but Muslim feudal mentality is also responsible for confusion. Some Muslims do not want to divide their property according to sharia; rather their will is to dispose it on their own by fictitious adoption and legacies. The main purpose behind this was to deprive the women from inheritance. Under Islamic law women are given right to inherit the property of their children, husband and parents. It may be surprising to know that under Islamic law, woman as a daughter, mother and wife is a Quranic heir and the sons or some other male members are treated as residuary. No other system can claim giving of such high stature to woman which existed in Islam more than 1400 years ago. The confusion of the court is obvious because of ignorant Muslim scholars and the practices of a few ignorant Muslims to devolve the inherited property contrary to the principles of inheritance under Islam. Following are the cases reproduced in this survey pertaining to succession and inheritance:

In Ajambi v. R o ~ h a n b i , ~ ~ an appeal was filed before the division bench of the Supreme Court pertaining to partition of property against the order of High Court of

97 Supra note 2 at 138 (section 116).

98 The Indian Succession Act, 1925, ss.57,58.

99 MANU/SC/0702/2016


Karnataka at Bangalore. The brief facts were that the appellant was the original defendant in the suit. Respondents had filed a suit for partition and separate possession of the 718th share in the property. The property belonged to late Shaikaji, whose first wife had died and thereafter he had married Roshanbi. Out of the first marriage, late Shaikaji had two children and one of them had died whereas he had six children through his second marriage. The suit was filed by the second wife and her children against the child of first wife who was also heir of the deceased Shaikaji. The property was purchased by Shaikaji and was in occupation of all the family members.The suit was decreed and had been challenged but it was dismissed. The appellate court considered the validity of the document and concluded that the property had been divided earlier, recorded under a document signed by late Shaikaji and also been attested by two witnesses. However, neither Shaikaji nor the attesting witnesses were alive at the time when the said document was exhibited. Thus the court set aside the decree passed by the trial court holding that the property had been divided during the lifetime of late Shaikaji and thus, the plaintiffs were not entitled to 718th share in the property. This judgement was challenged before the high court as a second appeal and held that there is no concept of joint family in Muslim Law and therefore, there could not have been any partition or joint family property among the plaintiffs and the defendant, who belong to the family of Shaikaji. The appeal came before the Supreme Court.

The apex court was of the view that the lower appellate court was correct in its conclusion. The court further held that it is not in dispute that the property which had been divided by late Shaikaji was in occupation of the respective parties and the said fact has also been recorded in the revenue record. Though the apex court agreed with the opinion of high court that there is no concept of joint family in Muslim law but it was open to late Shaikaji to give his property to his children in a particular manner during his lifetime, which he rightly did, so as to avoid any dispute which could have arisen after his death. The arrangement so made was duly accepted by the family members and it was also acted upon. Only thereafter a formal record of the said fact was made by late Shaikaji. Accordingly the court set aside the judgment of the high court so as to give effect to the judgment and decree passed by the lower appellate court.

It is respectfully submitted that both the apex court and the High Court of Karnataka understood the concept that there is no joint family property under Islamic law. However, the explanation given by the lower court about the partition of property in dispute and the approval of the Supreme Court shows that Islamic Law of property, whether it is regarding gift or inheritance, seems to confuse both the courts. According to Islamic law, during lifetime, the owner of the property is the only owner unless he dispossesses himself by transferring the property to any other person including his son and daughters. Through delivery of possession of the property by way of gift, the other person whether wife or children, can be owner of that property. If it is not done by the late Shakaji the property would have belonged to him till his last breath. After his demise, the property automatically devolved among the heirs and in this case the widow is entitled to 118th share of the property and the rest 718th would have been


divided among sons and daughters. Each son will get twice of the daughters share. The facts of this case are very jumbled up, therefore the decision of the learned high court was little akin to the Islamic Law to a certain extent. According, to the Islamic Law of inheritance, the claim of 718th share by the child of first wife was also incorrect because after leaving 118th share of the widow Roshanbi, the remaining 718th will be divided amongst all the sons and daughters of late Shakhaji, irrespective of the fact who is born from which wife. Since they are all children of Late Shakhaji, therefore, they would all inherit the father's property according to the shares determined by the Islamic law of inheritance. It is further submitted that under Islamic Law, property of a father and the property of his children will always be separate and cannot be clubbed together.

In T Ravi v. China Narsimha,loO the dispute arose pertaining to an ancestral property of late Nawab Jung who died intestate. The legal heirs of late Nawab Jung succeeded to the estate as tenants in common and not as joint-tenants. The heirs succeeded to the estate in specific shares. Md. Hashim Ali Khan, slo late Nawab and one of the heirs to the property, sold parts of the property to Bala Ballaiah, including the share which was inherited by the other co-heirs of the property. The case ultimately reached to the apex court through trial court and hgh court and the main issue pertaining to Muslim law was that whether a co-sharer could have alienated the share of other co-sharers in the disputed property?

The apex court referred to Fyzeelol where it has been observed that general principles of Islamic jurisprudence do not contemplate administration, but a mere distribution of the estate as per the principles laid down in Sirajiyyah. As per the Sunni law, a testator can leave a legacy to an heir only to the extent of 1/31d of estate and not exceeding that. After death of a person the first step is to make payment of funeral expenses, debts and legacies. Thereafter, distribution of estate among legal heirs, firstly to 'sharers' (those who are entitled to a prescribed share of the inheritance), in the absence thereof, to 'residuaries' (those who take no prescribed share, but succeeded to the "residue "after the claims of the shares are satisfied), and in case of absence of both to 'distant kindred' (those relations by blood who are neither sharers nor residuaries).

Then the court viewed that the incidents of such joint tenancy and tenants in common as discussed in this case are further subject to the law by which parties are governed and in that context it examined the case and found no dispute with the general principles of joint tenancy and tenants in common. The court observed that in a case belonging to Muslims their law of inheritance would apply. The decision of the apex court is totally in consonance of Muslim law of inheritance.

In Munne Khan v. Ishhaq, lo2 deceased Inamatullah was owner of the disputed house. After his death, Inamatullah left behind his widow Nisar Begum and two

100 2017 (3) SCALE 740.

101 See supra 75 at 375.

102 MANU/UP/0629/2016


daughters namely Munno Begam and Jummo Begum. Post his death, Nisar Begum executed a sale-deed in favour of sons of Munno Begam. Then husband, sons and daughters of Jummo Begum (plaintiffs of original suit) had filed original suit for cancellation of sale deed dated June 18, 1999 executed by Nisar Begum in favour of defendants No. 1 .The original case of the plaintiff was that Nisar Begum had no right to execute the sale-deed of whole of the property and her two daughters are also co- sharer of the disputed property. Therefore, the sale-deed executed by Nisar Begum is liable to be cancelled. The plaintiffs had also pleaded that Inamatullah had executed an oral gift (Hibazubani) on December 25,198 1 of disputed property in favour of his two daughters.

Therefore, after death of Inamatullah, her two daughters, Munno Begum and Jummo Begum became owner of equal shares of the disputed house andNisar Begum had no right to execute sale-deed of this property. The plaintiffs had instituted suit for permanent injunction and cancellation of sale-deed regarding disputed property claiming themselves to be co-owners and in possession of this property. The trial court had decreed the suit by judgment dated July 10, 2015. Thereby the registered sale-deed dated June 18, 1999 executed by Nisar Begum in favour of defendants No. 3 to 6 was cancelled and defendants were directedto handover the possession of the portion of property. Further the first appellate court had dismissed the whole of the original suit only on the ground that since the plaintiffs are not in possession of disputed property so they are not entitled for relief of permanent injunction hence this second appeal before the High Court of Allahabad.

It was contended that the first appellate Court is erroneous on point of dismissing the appeal in absence of possession because plaintiffs were dispossessed by defendants during pendency of the original suit.

So far as claim of ownership is concerned, there is admitted legal position that after death of Inamatullah, his widow should could get maximum 118th share of his property. So the sale deed executed by Nisar Begum in favour of defendants No. 3 to 6 is liable to be cancelled for remaining 718th share of whole of the property, and this sale-deed was valid only for 118th share of Nisar Begum. Remaining 718th share of property of Inamatullah, in absence of any other evidence of transfer, came in equal shares of 7116th to each to his daughters Munno Begum and Jummo Begum. Thus adding 118th share of Nisar Begum the defendants (Munno Begum family) became owner of 9116th share of property left by Inamatullah, and plaintiffs (Jummo Begum family) became owner of 7116th share. Such finding given by first appellate Court is in accordance with Muslim law of succession and is correct, which is confirmed.

The judgment of first appellate court passed was set aside by the High Court of Allahabad and original suit was decided in the way that sale-deed executed by Nisar Begum in favour of defendants No. 3 to 6 was cancelled to the extent of 718th share. Relief sought by plaintiff-appellants regarding recovery of possession is allowed and original suit is accordingly decreed. The plaintiffs-appellants are entitled to get possession of all that portion of the disputed property over which they were in possession before December 26,2007, which was the date of their dispossession. The defendant respondents are directed to handover the possession of that property from


which the plaintiffs were dispossessed during pendency of the suit and maintain status quo ante, failing which plaintiffs-appellants would be entitled to recover its possession through process of Court of the expense of defendants-respondents. The case is decided according to the law of inheritance as well as the division of shares is also done by the court keeping in view the entitlement of the share of each and every heir.

In Dharma v.Tarsem. lo3 the appellants-plaintiffs, namely, Dharma and Gulzar instituted a suit for declaration claiming ownership, vis-a-vis the estate of Hazi and respondent No. 2 Karam Chand was made as proforma defendant and all three aforementioned sons are beneficiaries, whereas Tarsem fourth son, was arrayed as respondent No. 1, who was excluded. The trial Court on the basis of the oral and documentary evidence, found that the Will aforementioned being registered had been proved. Even the attesting witnesses, Sadhu Singh and Jeet Singh, have deposed in terms of the provisions of Section 68 of the Indian Evidence Act 1872 and proved the execution of the Will, even the scribe was also examined. However, the 1owerAppellate Court by applying the provisions of Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter called ' Shariat Act') held that Hazi being a Muslim cannot bequeath more than 113rd share and upheld the Will to the extent of 113rd share and release the remaining land from scope and purview of the Will.The appellants-plaintiffs aggrieved of the judgment and decree of the lower Appellate Court, whereby the appeal filed by respondent defendant has been partly allowed and the appellant-plaintiff has been held entitled to inherit only 113rd share out of the entire property of Hazi by virtue of registered Will dated September 3, 2001. The issues in the case were: (i) Whether Hazi was governed by the 1937 Act; (ii) Whether section 2 of the Shariat Act would apply or not; and (iii) Whether in the absence of any declaration under section 3 of the Shariat Act, theprovisions of section 2 of the Shariat Act, would apply or not.

The High Court of Punjab and Haryana considered the Sections 2 and 3 of the Shariat Act which reads thus:-

"2. Application of Personal Law to Muslims Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, 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 religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal law (Shariat).

103 (2016) 183 PLR 95, MANU/PH/l331/2016


3.Power to make a Declaration:- (1) Any person who satisfies the prescribed authority- (a) that he is a Muslim, and (b) that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872, and (c) that he is a resident of the territories to which this Act extends, may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified. (2) Where the prescribed authority refuses to accept a declaration under sub-section (I), the person desiring to make the same may appeal to such officer 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."

Hence, it was held that the Muslim Personal Law does not apply to the agricultural land. Assuming for an argument sake, the same applies, a person would be only governed by the Muslim Personal Law in case, he makes an application seeking declaration that he will be governed by the provisions of the Shariat Act, only then, the provisions of section 2 of the Act would come into play. No evidence has been led on behalf of the defendants that Hazi had sought any declaration and therefore, the Will could not be for more than 113rd share. The judgment and decree of the lower appellate court is hereby set aside and that of the trial court is restored. Substantial questions of law are answered in favour of the appellants-plaintiffs and against the respondents'-defendants. Cross-objection is dismissed. The case is decided according to the law of the land but it is beyond imagination that the law which was amended keeping in view the interest of feudals and Mr. Jinnah himself introduced this amendment in order to do away the women from inheritance to please the feudals and landlords. Why even after about seventy years of our independence this feudal amendment has not been repealed by the legislature who are always vociferous about the welfare of women and condemn the Muslim league and Mr. Jinnah himself. For the information of the readers this surveyor wants to disseminate the information that even in Pakistan and Bangladesh section 3 has been done away with from the statute books and women are entitled to inherit in all types of properties including agricultural property. lo4

In Srijan Realty Private Limited v. Anowar Hossain, lo5a deed of 1942 executed by the father of the plaintiffs along with other persons was void inasmuch as the

104 For details see supra note 195.

105 MANU/WB/0993/2016, (2017)lCal LT576(HC).


father of the plaintiff was a minor and an oral settlement was arrived between the defendants and the plaintiffs for amicable partition of the property and a minor being incompetent to do so the plaintiff seeks for cancellation of transfer. The defendants company filed an application under order 7 rule 11 of the Code of Civil Procedure for rejection of the plaint on two grounds. Firstly, the plaint does not disclose the cause of action and, secondly, the suit is barred by limitation. The trial court proceeded to dismiss the said application as it found that those pleas assume a mixed question of fact and law and can only be decided after full-fledged trial and it cannot be said that the plaint lacks material particulars and does not constitute cause of action.

Another issue that came before the court in this case was to decide the rights of inheritance of two co wives if the male dies without any issues under the Hanaj law. The court held while referring to the Holy Quran that the law is clear that the estate of widowlwidows shall go to her or their parental sides and not on the husband's heir. The court opined that on the conspectus of the enunciation of law as indicated above, there is no hesitation in its mind that the right claimed through two widows of deceased is not legally sustainable and therefore the plaintiffs do not have a clear right to sue on the basis thereof. The high court did not find that there is any infirmity and illegality in the order of the trial court rejecting an application under order 7 rule 11 of the Code. The revision application was thus dismissed.

In Moula Hasan Ambekari v. Smt. Roshanbee Noormahamad Shaikh (Deceased),lo6 Mrs.Jainab was the owner of the suit property. Smt. Jainab had no issue. The mother of Jainab expired in the year 1969 and her father expired prior to 1969. The husband of Jainab expired on 25th June 1991. Mr. Husen, father of the Jainab had five issues viz. Amir, Hasmat, Jaitunbee, Mehabubee and Roshanbee. It was the case of the plaintiff that Smt. Roshanbee acquired title and possession of the suit property by inheritance under the Muslim Law. Defendant is step son of Smt. Jainab. It was the case of the plaintiff that the defendant had no right to inherit the suit property as per Mahomedan law. Trial court declared that the plaintiff no. 2 was exclusive owner of the suit property and granted permanent injunction against the defendant. Hence the appeal came before the High Court of Bombay.

It was found that Smt. Roshanbee had inherited the suit property from the original owner Mrs. Jainab. Thereafter Smt. Roshanbee had given the said property by oral gift which was subsequently recorded in a separate deed witnessed by two witnesses. In so far as issue of possession is concerned, the witnesses examined by the plaintiffs have proved physical possession of the suit property initially in favour of the plaintiff no. 1 and thereafter in favour of the plaintiff no. 2. The defendant could not prove by evidence before the learned trial judge that he was in possession of the suit property in any manner whatsoever. The mutation entry cannot be conclusive proof of title in respect of the suit property of the defendant and the defendant failed to prove any adverse possession by plaintiff. According to the high court both the lower courts

106 2016 SCC OnLine Born 12072


have dealt with the issue in detail and after considering Muslim law and considering the oral and documentary evidence has rightly concluded that here in this case the inheritance law would apply and accordingly plaintiff's contention that Smt. Roshanbee acquired title and possession of the suit property by inheritance under the Muslim Law was held valid. Hence the appeal was dismissed as devoid of merits. The decision is not contrary to the spirit of the Sharia though the substantive law is not much involved in this case.

In Gulshera Khanam v. Afab Ahmad, lo7the brief facts were that the appellant was landlady of the Shop No. 6. The Respondent was the tenant in that shop. There were in all seven shops and except Shop No. 7, all were occupied by different tenants. Shop No. 7 was in occupation of the Appellant wherein her daughter was doing medical practice. The Appellant personally requested the Respondent to vacate Shop No. 6 but he did not vacate. Therefore, the Appellant filed an application under section 2 1 (l)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the Court of the Prescribed Authority seeking release of Shop No. 6 in her favour for her bonajde requirement and genuine need in comparison to the need of the respondent. The Prescribed Authority allowed the application and directed the respondent-tenant to vacate the shop and also pay by way of damages two years' rent amount. The respondent-tenant filed an appeal. The appellate court allowed the appeal and set aside the order on the ground that the Presiding Officer had no jurisdiction to pass the order. The High Court of Allahabad remanded the matter to the appellate court for deciding the same on merits in accordance with law. The appellate court dismissed the appeal of the respondent-tenant and confirmed the order passed by the Prescribed Authority. The high court allowed respondent-tenant's petition and set aside the order of the Prescribed Authority and order dismissing the appeal of the respondent-tenant. The high court held that firstly, the appellant's daughter was not a member of family as defined under section 3(g) of the Act because she was a married daughter whereas Section 3(g)(iii) include only an unmarried daughter. Secondly, it was held that for this reason, the Appellant could not seek eviction for the need of her married daughter and lastly, it was held that the Appellant's need was not bonajde. Hence, the present appealwas filed before the apex court.

It was held, that "Family" includes in relation to landlord, any female having a legal right of residence in that building. A fortiori, any female, if she is having a legal right of residence in the building, is also included in the definition of "family" in relation to landlord regardless of the fact whether she is married or not. In other words, in order to claim the benefit of expression "family", a female must have a "legal right of residence" in the building. Such female would then be entitled to seek eviction of the tenant from such building for her need.

Since deceasedlowner was Mohamedan, his entire estate including the building in question, devolved on the Appellantlwife, his two sons and four daughters as per the shares defined in Hanaj Law of Inheritance. The daughter received her share and

107 AIR 2016 SC 4810.


became co-owner of the building along with the other co-sharers. Being a co-owner, she got a legal right of residence in the building as provided under section 3(g) of the Act mentioned above.

The Appellant was entitled to claim eviction of the respondent from the building in question for the need of her daughter for running her clinic as the daughter was having a legal right of residence in the building in question.

The apex court further held that both the courts below properly appreciated the facts and evidence adduced by the parties and on that basis recorded all necessary findings in favour of the appellant and granted decree of eviction against the respondent. The high court as was clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the Prescribed Authority. This was a jurisdictional error, which the high court committed while deciding the writ petition.

The question in relation to the bonajde need of the Appellant's daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the First Appellate Court in Appellant's favour by holding the appellant's need to be bonajde and genuine.

The Supreme Court further opined that the high court should have seen that the appellant's daughter had been running her medical clinic in Shop No. 7 for quite some time. The appellant's need for additional space for the expansion of clinic activities for her daughter could not be said to be unjust or unreasonable in any manner. The impugned judgment of the High Court of Allahabad was, therefore, not legally sustainable and was accordingly set aside.

Waqfand Waqfadministration The important institution of w a d in Islam provides economic protection of

families and stops delinquents from ruining the property of their ancestors. It is an institution under which a property can be tied up in such a manner that the corpus should remain intact and the usufict can be utilized for the benefits of the poor and for other religious and charitable purposes. According to Imam Abu Hanifa, the legal meaning of wad i s the detention of a specific thing in the ownership of waqfand the devotion of its profit and products "in charity of poor or other good objects".lo8 A w a d i s basically a contract and the objects of wadshould fulfill the requirements of a valid contract. There should not be any illegal purpose behind it. When a person gives his property into w a d he should have the title of the property and must be of sound mind. The wadproperty can only be used for public purpose. Wadis basically administered by a person known as mutawali. He is not the owner, but basically the care taker of the w a d He administers the wadproperty and disposes it off as per the will of the founder. A w a d i s created for perpetuity and cannot be sold off by the administrator.

108 Khalid Rashid, Muslim Law 228 (Eastern Book Company, Lucknow 5th., 2009).


The law provides various measures to protect the wadproperties and therefore its administration is also detailed out by the Islamic law which is now translated into various legislations in this country. The cases produced in this survey on substantive and procedural law on wadmay be reproduced with their analysis as under:

In Janab Pir v. Shamshadbi Shaikh, log Smt. Shamshadbi (Respondent no 1) had challenged the decision of the Chief Executive Officer which held that the suit property was waqfproperty. Her contention was that defendant No. 3 and 4 had transferred her tenancy rights (Mirasi rights) and therefore she is not a trespasser. The WadTribunal held that in 1953 no procedure was followed for registration of the suit property as a trust property and the registration was done behind the back of inamdars. Since it was personal inam therefore it was abolished by the Inam AbolitionAct, 1955. Tribunal further held that defendant No. 3 and 4 were mirasdars (tenants) and that the suit property was not a trust ( w a d property. Thereafter an appeal was filed before the High Court of Bombay.

The High Court of Bombay held that the pleading itself shows that the grant was for rendering services to dargah (religious institution). When muntakhab (document of grant, succession certificate) is not available from other record and circumstance, inference needs to be drawn as to whether the property involved is waqfproperty or not. It also needs to be ascertained as to whether the property involved had been used or was allowed to be used as wadproperty.

The court made a number of observations about the conduct, religious affairs of the institution and the hereditary appointments of mutawalis and concluded that the suit property is waqfproperty. The court also held that in view of section 3 of Bombay Personal Inam Abolition Act, 1952 inam in respect of wadproperty could not have been abolished and also said that if they contested as inams then they could have gotten more right. The court rightly decided the case keeping in view the purpose and intent of the legislature to strengthen the wadproperties and save them from encroachment.

InAbdul Gaffar v. Superintendent, Public Trust Regn. OfJice, 110 there were three issues before the High Court of Bombay. Firstly, whether a show cause notice can be issued to trustees of the trusts to enable them to show reasons as to why they cannot be compelled to produce record of the wadproperty before the Maharashtra State Waqf Board. Secondly, whether this court will pass an order (under article 226) in the form of mandamus ordering the state government to constitute tribunals in districts where the pendency of cases is very high and also determine the jurisdictional powers of the tribunal and thirdly, whether a direction can be passed to the superintendent, Public Trust Registration Office to hold an inquiry into the nature and establishment of public trusts created by the Muslim community under the Bombay Public Trusts Act 1950 and as per Muslim Personal Law. Out of the three issues the court only passed an order on the second issue as issue no. 1 and 3 were sub judice before the apex court.

109 2016 3 Born CR 454.

110 MANU/MH/2532/2016


The court went on to discuss the amended sub-section 4 of section 83 of the Wakf Act, 1995 wherein the three member composition of the tribunal, their salaries, the finality of their decisions (similar to civil court), procedure, decree enforcing powers, etc. were provided for.

The court cited an affidavit on record by Joint Secretary, Mmorities Development Department of State Government which provided that there were two tribunals established at Nagpur and Aurangabad. Other similar affidavits were pointed out by the court.

It was pointed out by the petitioners that constituting additional tribunal only at Aurangabad will virtually amount to 'denial of remedy' as poor people who are associated with waqfs cannot afford luxury of travelling to Aurangabad for attending to their cases.

The High Court of Bombay observed that while State government has the power to create as many tribunals as possible, it would not be viable to create a tribunal in each and every district of Maharashtra. Therefore, tribunal camps could be held in districts where the pendency of cases is more than 100 in number. The court also mentioned about additional tribunals in case of increase in volume of cases in future.

The court passed an order directing to constitute a tribunalat Aurangabad along with infrastructure by the end of February 2017 so that work could be started by March 1, 2017. The order contains details on the date of appointment of members, camp tribunals at Mumbai, Mumbai Sub-urban, Beed District and that the tribunal should meet at regular intervals. This surveyor is unable to appreciate the efforts of the learned court and it would not be wrong to give the name of this decision as 'Charter of Waqf Mkas' .

InMohd. Junaid v. Union ofIndia, ll1 the facts were that pursuant to the amended section 83 (1) and (4) of the Waqf Act, 1995 two tribunals were constituted by the State government in Lucknow and Rampur. Thereafter Parliament enacted the Repealing and Amending (Second) Act, 20 15 which repealed Waqf Amendment Act, 20 13. It contained the above section 83under which the reliefs sought were: (i) Issue writ or order specifically 'abolishing the waqftribunals' and (ii) Issue writ or order specifically in the nature of 'Prohibition on the functioning of the waqftribunals.'

The court clarified that the main purpose of the Repealing Act of 1952 was only to strike out the unnecessary Acts and to remove the dead matter from the statute book to reduce the number of legislations so as to clear the confusion from the public mind. Basically to remove those Acts which have served their purpose. Hence, by the repealing Act of 1952 and its provisions will not affect the Act in which such enactment has been applied, incorporated, or referred to. The court relied on the apex court's decisions in Jethanant Betab v. State of Delhi112and of the High Court of Bombay in K. K. Vasudeva Kump v. Union ofIndia.l13

111 2016 (4) ADJ 353.

112 MANU/SC/0032/1959

113 2002 (4) Mh.LJ 838.


In Shah Alam v. Union of India114 Shah Alam (appellant) sought the following reliefs from the court namely (i) To pass certiorari against the order of State Government and Registrar of the High Court of Allahabad and to declare the actions ultra vires and void.; (ii) Mandamus to constitute Wadtribunal at district level.; (iii) Mandamus to registrar high court to withdraw his notification regarding transfer of cases.; & (iv) Mandamus to prohibit Rampur WadTribunal to not hear certain cases.

Section 6 of the General Clauses Act was looked into by the court, wherein effect of repeal was revisited and its was observed that where this act repeals any other enactment, then this repeal shall not affect any rights, privileges, liability or obligation accrued under any enactment so repealed.

The court relied on the decision of Shiv Shakti Housing Co-op. Society v. Swaraj Developers115 and opined that the apex court had made it clear that no person has a vested right in procedure, he has only the right to proceeding in the manner prescribed. If by statutory change the mode of procedure is altered the parties are expected to proceed as per the altered mode.

The court also relied on the decision of La1 Shah Baba Dargah Trust v. Magnum Developers116 and held that section 83 (4) has not been impliedly repealed and also gave its reasoning as there are two types of repeal 'express repeal' and 'implied repeal'. In case of implied repeal it was said that implied repeal is not readily inferred and the mere provision of a new remedy does not necessarily take away the oldlexisting remedy. While applying the principle of implied repeal one has to see whether apparently inconsistent provisions have been repealed and re-enacted. The court in the same Dargah case also decided that the civil courts will not have jurisdiction as it was the main purpose of the Act to send such cases to specialized tribunals.

Therefore the wadtribunals which were established at Lucknow and Rampur in pursuance of the amended provision of section 83 would not cease to exist and would continue to function. If through the very act of notification the authorization has been rescinded then the net effect of the same is that Civil Judge (Sr. Div.) would cease to function as one man wadtribunal and new three member tribunals would hear the cases so that none of the petitioner's rights are infringed. The decision is given keeping in view the objects and reasons to establish the wadtribunals under the Waqf Act 1995 and ensures the jurisdiction of the tribunal in the interest of the security of wadproperties.

In Bhaskarrao v. Maharashtra State Board of Wads, 117 the earlier suit which was filed for declaration of the property as non- Wadproperty and cancellation of the entry in gazette & for permanent injunction was dismissed by the wadtribunal. It was the contention of the plaintiff that according to the amendment in Wakf Act in

114 AIR2016A11 163.

115 (2003) 6 SCC 659.

116 MANU/SC/l437/2015.

117 2017 SCC OnLine 7012


1964 inams were included in w a d But this amendment cannot be given retrospective effect. And in 1954, Mashrut-ul-Khidmat were not included in the definition of w a d and so the benefit of the amended provision cannot be taken by the wadboard.

Plaintiff's main contention is that one Kishhanlal Gawali got occupancy right under the Inam Abolition Act prior to 1960. And in 1969 commissioner gave him permission to alienate the land. And thereafter the plaintiff got the land through Kishan's successors.

The wadboard contended that the Hyderabad Inam Abolition Act 1954 does not apply to this wadproperty. The board also contended that at the time of abolition of the inam, no notice was given to the wadboard and therefore abolition is not binding on the waqfboard. The board also contended that the order of the commissioner was only consequential order and no occupancy right could have been given to Kishalal Gawali. The board also contended that the limitation period of three years has passed and the suit is barred by limitation.

The counsel for the applicants relied on The Board ofMuslim Wad Rajasthan v. Radhakishan118 wherein it was held that the limitation period of one year as mentioned in the Waqf Act is only applicable to Muslims. However, in this case even if the person is a non-Muslim, he will still be governed by the general law of limitation. (Section 58 Limitation Act, 1963). He submitted that Kishanlal Gawali had knowledge that the property was notified as wadproperty latest in the year 1986 and still he did not do anything to clarify the position. The court finally held that the conduct of the plaintiffs was improper. They first approached the civil court and after about 4 years they went to the tribunal. Their conduct shows that the plaintiffs are only trying to protract the things. It was held that the wadtribunal had considered that entire material and the decision of the Tribunal was proper in law. Revision Application stands dismissed. In this case the court also maintained the supremacy of waqfadministration in order to ensure the protection wadproperty.

In Abdul Kazem v. Jb. Sukhchand Mallick, 119 the appeal was against the order of the Waqf Tribunal wherein the tribunal ordered the suit property to be wadproperty. Tribunal had held that the suit property was 'Pirottar 'property of 'Pir Turkali Saheber Piran' and therefore it could not be personal property. The petitioners contended that the property was not 'Masrut-ul-Kidmat' and that they got the property via a settlement by the previous Zamindar (Fateh SinghDakahal). It was then contended by the opposite party that the petitioners were also mentioned as 'raiyat ' in the Land Record(LR).

The counsel for the petitioners pointed out that some rituals are to be performed in respect of the said property and that there must be cogent evidence in that record to show that the property is being used for such purpose. The petitioners contended that the waqfboard had not proven through any deed that the suit property is wadproperty. The petitioners further relied on a judgment namely Panchqat Deh, through Sarpanch

118 AIR 1979 SC 289.

119 2016 SCC OnLine Cal 3652.


and Gram Sabha, Garhi Brahman v. Punjab Wakf Board, Ambala120 and contended that 'a waqfby user' is a question of fact and it is to be proved by cogent evidence and mere entries in the record of rights will not serve the purpose.

Regarding limitation period, the counsel for the board said that the board had the power under section 60 to extend the time period as set out in section 36(8).

The petitioners contended that w a d i s based in two ways: (i) deed (ii) circumstances and inference relating to deduction or immaterial user. It was pointed out to the court that in one breath the petitioners are challenging the order of the w a d tribunal wherein the property was held to be a w a d And in another breath they are trying to get appointed as 'Mutawali 'by an order of this court. Therefore the contention of the petitioners was only to maintain possession of the property.

The court relied on the judgment of Sk. Abdul RouJ; Wadstate v. State of West Bengal121 and held that it is settled law that once property is made w a d i t will remain as wadproperty.

Finally the court held that it is true that in one sentence the Tribunal held that the suit property is W a d A1 - Aulad but, in fact, it is one w a d b y long user. The learned tribunal did not err in relying upon the revenue records (Cadastral Survey (CS) and Revisional Survey (RS) Record of fights (ROR)) which were in favor of the board. It is true that the Land Reform Record of Rights (LRROR) is in favor of the petitioners but the present petitioners failed to rebut the presumption of two finally published records of rights, being CS and RSROR. Thus the property is waqfproperty as held earlier by the tribunal. This decision is also in the interest of protection of wadproperty.

InMohammad Ghouse v. SyedIsmail, lZ2 there was a civil revision petition filed by the defendants against the order of the civil judge. The main dispute between the plaintiff and defendant was with regards to the management of the waqfproperty. The issue was not whether the property was w a d o r not but whether the dispute is of personal nature i.e. individual against individual or mutawali against the Managing Committee (President, General Secretary, & Treasurer). The plaintiff contended that since the property is w a d b y 'user' (section 3(r)(i)) and has not been registered, therefore the wadtribunal does not have jurisdiction. Moreover the plaintiff also contended the members of the managing committee had sued him in their individual capacity and therefore it is a case of personal dispute between individuals. The defendant contended that it is waqfproperty as the property is a permanent dedication. The claim made in the plaint is that the management of the affairs of the wadare being interfered with, therefore this dispute should be and can only be decided by the tribunal as the jurisdiction of the civil courts' is expressly barred as per section 85 of the Wakf Act 1995.

120 AIR 1969 P&H 344.

121 2008 (2) CHN 249.

122 MANU/AP/0890/2016


Plaintiff placed reliance on the case of Waheed Bin Mohammed v. Niazunnisa BegumlZ3 (High Court of Telagana) where the court held that the dispute was of a personal nature and it had nothing to do with the management of the wadproperty and that the Waqf Act, 1995 did not envisage resolution of individual disputes. Plaintiff placed reliance on another case of Ramesh Gobindram through LRs. v. Sugra Humqun, lZ4 wherein the Supreme Court held that eviction proceedings can only be decided by the civil court and not by the Wadtribunal. The court held that neither of the cases laid any weight in favor of the plaintiff and that the suit was not an eviction suit.

The court finally relied on the amended section 83 of the Waqf Act, 1995 and held that the tribunal is competent to decide any dispute or other matter relating to wadas per section 7 and section 85. The court also relied on the case of Bhanwar La1 v. Rajasthan Board ofMuslim WadlZ5 The court further relied on another case of Board of Wad West Bengal v. Anis Fatima BegumlZ6 and held that the words 'any dispute' in question or other matters relating to a wador wadproperty are of a very wide connotation.

The court finally decided that since the specific averment in the plaint is that the management of the wadproperty is being interfered with and since the suit is coming from a person who is claiming to be a mutawali therefore the dispute is within the purview of the WaqfAct, 1995. The civil revision petition was allowed. The court also held that the plaint is ordered to be returned instead of being rejected. The decision of the court secures the jurisdiction of the tribunal as intended through Wakf Act 1995 in the interest of protection of wadproperties.

InMoidu v. Narqan, lZ7there was revision petition against the order of the w a d Tribunal, Kozhikode. The tribunal had decided that the suit property was not w a d property. It was contended that wadboard having recognized the wadand having registered the same, the Tribunal is not entitled to examine the correctness of the same without there being a direct challenge to the order of the wadboard.

The respondent submitted that the various clauses in the Ext. B 1 (document) clearly indicate that the property was demised as a gift deed and title vested in 40 persons, who constituted the thavazhi. It was also contended that thavazhi has to manage and enjoy the property forever without any power of alienation and this proves that it is not a w a d He further submitted that what is of utmost importance is that there should be dedication of the property to the Almighty for permanent period of time, and that such element is conspicuously absent.

123 2006 (8) ALD 488.

124 Civil Appeal No. 1182 of 2006 dt. 1.9.2010. (unreported)

125 AIR 2014 SC 758.

126 2011 (1) ALD 61 (SC).

127 MANU/KE/2421/2016.


The court had to decide two points: (i) whether a suit is maintainable before the WadTribunal in respect of the property which is subject matter of registration before the WadBoard, without challenging the registration by way of an appeal before the Tribunal. (ii) Whether recitals in Ext. B1 (documentlgift deed) would constitute a Wad-alal-aulad or not.

The court relied on a judgement of High Court of Kerala namely Hydrose v. Ayi~umma'~~ where it was held that in the context of Wad-alal-aulad, a document showing the utilization of a fraction of the income which remotely referred to as religious though not charitable cannot invest the document with the characteristics of a waddeed and that the whole dedication should be religiouslcharitable and of a permanent nature. The court relied on another judgment of Mohd Khasim v. Mohd. Dastagir: lZ9 The court relied on the apex court's decision where the apex court relied on 'Mulla b Principles ofMohammedan Law'130 and held that in order to be a w a d there must be permanent dedication in favour of Almighty. Therefore in the absence of any dedication to the Almighty it has to be concluded that no valid wadis created. Accordingly the revision petition was dismissed.

In Hazarath Ameer Sha Vali Dargah Association v. State of A.8 131 petitioner was an Association registered under the Societies Registration Act, 1860 which manages the affairs of Dargah. Second respondent is the WadBoard. The issues before the high court were namely (i) Whether the petitioner has locus to file the writ petition challenging the munthakhab; (ii) Whether the judgment of the Civil Court rendered in OS No. 177 of 1996 is without jurisdiction; (iii) Whether the writ petition should be dismissed on the ground that the petitioner has an effective alternative remedy under section 83 of WaqfAct, 1995 and (iv) To what relief. It was held by the high court as follows:

(i) Since the impugned munthakhab issued under Sec. 36 of the Act affects the rights of the petitioner in respect of the Dargah obtained under the above decree of the Civil Court, the petitioner cannot be said to be not having locus standi.

(ii) The suit was filed by the petitioner after the commencement of the Wad Act, 1995 came into force but before the Tribunal could be formed. So the question was where the petitioner should go in such cases? Court relied on the judgment of P Rama Rao v. High Court of A.P. 132 wherein it was held that in similar cases it could not be said that that the legislature could not have foreseen or expected that there would be delay in the formation of the Wad Tribunal. Therefore the legislature could not have intended that the existing remedy or recourse to Civil Court should be extinguished as first

128 ILR 1981 (1) Ker 602.

129 (2006) 13 SCC 497.

130 Supra note 2 at 202 (s.173).

131 2016 (6) ALD 752.

132 2000 (1) ALD 298 (DB).


step and that the remedy should be made available only when the Tribunal is set up. It was held that if the aggrieved persons are left without any remedy to move the court or a judicial body during such period then it would amount to absurd and unintended results. In such events Section 85 (barring provision) would be vulnerable to attack on the ground of infringement of Article 14 of the Indian Constitution in as much as a particular class of litigants would be left without remedy to prevent invasion of their rights recognized by law. Therefore the decision of the Civil Court was within the jurisdiction of the court.

(iii) To answer this issue the court relied on the apex court's judgment titled Whirpool Corporation v. Registrar of Trademarks, Mumbai. 133 In this case it was held thatthe existence of alternative remedy would not operate as a bar to entertainment of a writ petition under Article 226 where (1) Writ Petition is filed for the enforcement of fundamental rights (2) violation of Principles of Natural Justice (3) order or proceedings are wholly without jurisdiction (4) vires of the Act is challenged. By taking recourse to Section 36 of the Act, the petitioner is trying to overrule a judicial verdict through an executive act. Action of the Second respondent is high handed, arbitrary and contrary to fundamental principles of law Therefore ths court is justified in entertaining the Writ Petition.

(iv) Petitioner is not an encroacher. Munthakhab is set aside. Second respondent's decision to register the property as waqf is illegal. Second respondent is directed to cancel the entry. Second respondent shall pay costs to the petitioner. All miscellaneous petitions pending in this Writ Petition stand closed.

IV CONCLUSION

The analysis of the cases reported in 2016 reveals that most of the courts are not conversant with the true spirit of Islamic law. However, there are some courts which have applied the Islamic law in its true sense and are well informed about the law of Islam. For example the nature of marriage according to certain courts is still a contract as envisaged under the Indian Contract Act, 1872 and they are unable to understand its sacramental value as given in the Holy Quran, Prophet's teachings and juristic opinions. Similarly, very few courts have perceived the true law of divorce. Fortunately in this survey year many courts have rightly interpreted the divorce by mutual consent known as mubarat. At the same time the very innovative concept of Muslim law i.e. puberty, sometimes is not accepted by the courts e.g. in a case where a girl who attained the age of puberty and wished to reside with her husband, was directed to be sent and kept under the supervision of Balika Grah at the initiative of the brother of

133 (1998) 8 SCC 1


the wife. This shows that still feudal families retain their so called honour to marry their daughters and sisters according to their sweet will with the same status and social class to which they belong. This also means that if a girl chooses her life partner she may be put in trouble by all means including honour killing by such feudal families. And unfortunately our courts are encouraging such type of social evil through these judgments.

A positive development that has divulged in this survey is that the Muslims are trying to reconcile their matrimonial matters and the courts approve the same. As far as talaq-al-biddat is concerned in the post Shqara Bano era, it is being debated across the length and breadth of the country not only by the lawmen but also by the laymen. It is astonishing to note that most of them have no knowledge of its historical background or its deep rooted existence in the society which is virtually impossible to uproot without taking adequate positive steps towards the education and sensitization of the masses. Most of the cases discussed under the head of status have been decided in accordance with the true Islamic law. However, some people fail to appreciate that the Supreme Court's judgment in Shqara Bano v. Union 0f1ndial~~" has resolved the problem of Talaq al-biddat prevalent in our country. This surveyor feels that the said judgment instead of resolving the problem has complicated it further. The judgment is 2: 1 :2 and is so full of pitfalls that it is difficult to locate the ratio of the judgment. The judgment did not even disclose whether the triple talaq would result into a single revocable divorce as in the case of many Muslim countries or will it be totally ineffective. The court did not take the pain to decide the fate of the divorcee and decide the competition to be paid to her by a person who practices triple talaq in this post judgment scenario. The court stayed away from taking a firm stand, however they were clearly inclined towards a reformation and therefore it directed the legislature to make the law in this regard. Commenting upon the judgment a woman activist was lamenting that had the same decision been taken by our ulema, we would have enjoyed better fruits.

Recently, the legislature passed a bill under which this type of talaq is declared null and void and the husband who divorces his wife by way of talaq al- biddat, he will be punished with fine and imprisonment upto three years. Whether this step would resolve the problem of woman and eradicate this social evil rather or will it open the floodgates for further social evil in the Muslim society. Had our ulema themselves come forward and formulated a draft following the doctrine of takhqer (eclectic choice) and istihsaan (principle that permits exceptions to strict andlor literal legal reasoning in favour of the public interest (ma~lahah) '~~ and declared triple talaq as one single revocable talaq like some Muslim countries it would have led to more clarity and would have been in conformity with sharia as well as in the true interest of Muslim women and society as a whole. All the judgments passed in this case mentioned the law reform of Muslim countries in this regard and particularly everyone pointed towards Pakistan and Bangladesh law on the subject. It is astonishing to note

133a Supra note 43.

134 See for details Title Triple Talaq supra note 45, at 80


that there is no positive development in Pakistan on the said subject and the situation in Bangladesh is no different.135 With due respect it is submitted that it does not seem to be very wise on the part of the Judiciary to rephrase certain para's from any learned scholar however renowned he is without verifying the facts from the original sources, in a judgement which has the ability to create history for the times to come.

Thus this situation warrants a serious academic engagement leaving aside the politics of reform which has been affecting the country for so long. And the present case should be commented upon and analyzed in the light of Islamic jurisprudence and the example of laws of the Muslim countries should only be cited after undertaking an in-depth study and if any reforms have been incorporated therein then their preceding grounds must be studied as well. At the same time the provisions of the law should be interpreted very carefully.

Another area relating to law of status is the custody of child which is, the most useful weapon which has been provided under Islamic law to a mother i.e. Hizanat custody of her minor child: boy: seven years; girl: till puberty) was totally misunderstood by the courts and in almost all the cases custody was handed over to the father. Of course, the father is the natural guardian of the child but in the case of separation, mother, and in her absence, the mother's close relatives are more apt to take care of the child, that's why Islamic law entitles them to have the custody of the children. This is a unique feature and is known as hizanat. The judges confused it with guardianship that is known as wilqat. 136 Fuel over the fire was added in one case where the learned court handed over the custody of the minor daughter to the father whom the court found to be of immoral and corrupt character. The logic behind this ironic decision is best known to the learned court itself. The concept of hizanat is a very special feature of Islamic law and being pro women it is appreciated by many legal scholars and therefore this surveyor fails to gather as to what do the proponents of law reform want, either they wish to achieve the target of upliftment of women or they just want to talk about it because of some of their vested considerations.

As far as the property law is concerned, maximum decisions reported on gift, will, wadand inheritance are in accordance with the Muslim law. However, some misconceptions have emerged in the judgments touching these issues. As mentioned earlier in Muslim law a person is the full owner of the property (whether it is ancestral property, self-acquired property or property acquired from any other source) during his lifetime. He can dispose it off by way of gift and sale. And in gift the delivery of possession is must even when the gift is given by the father to his son. As soon as the person dies, his property automatically devolves upon his heirs. There is no joint family property system in Islam. In some cases the decisions have been passed keeping in view the spirit of the Islamic law. However, in one of the cases the apex court has reversed the judgment of high court who decided the case in accordance with Islamic

135 Ibid.

136 For details see title Wilayat and Hizanat Supra.


law of inheritance and gift. However, the apex court confused the concept of gift and inheritance by giving validity to a mutual arrangement made by the father to look after the property by the sons in their capacity as co-owners which is not sanctioned by Islamic law.

As far as the waqfproperties are concerned the decisions highlighted the judicial concern about the protection of waqfproperties and accordingly jurisdiction was vested in the hands of the waqftribunal rather than the civil courts. They tried to maintain the economy of the community which is already economically very backward. Again this survey repeats the old practice of the judges that they quoted Mulla's sections as if they are codified provisions of Muslim law in India. This creates a lot of confusion and this surveyor further requests the learned courts to avoid the same.

With a heavy heart the surveyor is bound to conclude that the problem of different interpretations of Muslim law in the survey also lies due to lack of any codified law of Islam in India. If the codification of Muslim personal law following the doctrines of takhyar (inter school divergence) and taljq (legal term describing the derivation of the rules from material of various schools of Islamic law) on the lines of Muslim countries is initiated by the Indian ulema and the law is codified, the problem of confusion and conflict of judicial interpretation would automatically be resolved. The surveyor hopes that the ulema will take a note of this and will work towards the codification of the Muslim law. If this is done, the position of Muslim women which has deteriorated over years would automatically improve. If we will not put our home in order then, as this surveyor long back had stated, judiciary and legislature must step in to mete out justice to women and in that case it will definitely lead to confusion and chaos. According to Krishna Iyer J the true Islamic law is a superb law which will definitely ameliorate the condition of the Muslim women. If the above suggestion is taken into consideration then the dream of Krishna Iyer J will certainly see the light of the day in this country.

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