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“A Critical Study on different modes of transfer of Properties under Customary and Islamic Law

“A Critical Study on different modes of transfer of Properties under Customary and Islamic Law.”
A dissertation submitted in partial fulfilment of the requirement for award of the degree
Master of Laws

Submitted By: —
Nafees Chaudhary
Roll no.:LS/LLM/1701/026
Enrolment no.:17SLLALLM1033
Under the supervision of:-
Dr. Pankaj Dwivedi
(Head of Department)
School of law and Legal Affairs
Noida International University
Gautam Budh Nagar,
Uttar Pradesh
I would take this opportunity to express my gratitude towards my research guide, Dr. Pankaj Dwivedi for guiding me during the whole process and being patiently understanding and supporting me. He showed me how to stay cool and work with full dedication. He always allowed me to explore and learn the process at my pace, which was encouraging for me to grow as a researcher.

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I would also like to thanks my team for guiding me through classes, formal discussions and presentations which helped me to expand the lenses to conduct my research from different angles. Thank you for teaching me technical software used for quantitative research, as it helped me in strengthening my base knowledge about the technicalities of
research. I am also thankful to the Secretariat Staff of our school for their timely guidance, response and cooperation.

I am grateful to all the respondents who participated in my research and were very coordinating towards me. Thanks to them for their time and experience.

I am in-depth thankful towards my family and loved ones for being there for me always and for being the pillars of love, trust, understanding, support and hope.

30th July 2018 Nafees Chaudhary
I, Nafees Chaudhary, LLM roll no. LS/LLM/1701/026 /enrolment no. at Noida International University, School of Law & Legal Affairs hereby declares that the present dissertation on “topic name” is a work in original, and it has not been submitted, either in part or full, anywhere else for the purpose, academic or otherwise.

I have faithfully and accurately cited all my sources, including books, journals, handouts and unpublished manuscripts, as well as any other media, such as the Internet, letters or significant personal communication.
I understand that
– Literal citing without using quotation marks and marking the references
– citing the contents of a work without marking the references
– using the thoughts of somebody else whose work was published, as of our own thoughts are counted as plagiarism. I declare that I understood the concept of plagiarism and I acknowledge that my thesis will be rejected in case of plagiarism.

If in future any part of my dissertation covered under copyright then university is free to take appropriate action against me.

Nafees Chaudhary
Roll no.: LS/LLM/1701/026
Enrolment no.:17SLLALLM1033
This is to certify that Nafees Chaudhary who is submitting this Dissertation titled “A Critical Study on different modes of transfer of Properties Under Customary and Islamic Law.” for awarding the degree of Master in Laws is a bonafide Student.He has worked on the above mentioned topic under the constant supervision and guidance of Dr.Pankaj Dwivedi and his Dissertation is worthy of consideration for the award of the Degree of Master of Laws. As this Dissertation meets the requirements laid down by Noida International University, Gautam Budh Nagar (U.P) for awarding the Degree of Master in Laws, hence, I recommend that this Dissertation be accepted for evaluation under the declaration given by student..
Name of Supervisor:
Dr. Pankaj Dwivedi
Noida International University
Gautam Budh Nagar (U.P.)
Acknowledgement……………. 2-2
Declaration…………………….. 3-3
Certificate……………………… 4-4
Plagiarism Report………… 5-5
List of Abbreviations…………………

Case laws…………………………….. 11-11

Literature reviews…………………
Research methodology……………
Chapter plan ………….. 14-15
1.1 Custom law1.2 Customary law and Codification1.3 Codification attempts in Islamic history1.4 Factors of codification debate
1.5 The muslim personal law
1.6 The shari’at application act
1.7 The schools of law
1.8 Reform of muslim marriage law17-29
3.1 Gift under Islamic Law and transfer of property
3.2 Concept of hiba under muslim law
3.3 Essentials of hiba
3.4 Subject matter of gift under muslim law
3.5 Hiba-ba-shartul-iwaz
3.6 Revocation of gift 50-57

Comparative study of gift under Islamic law and
Transfer of Property Act 1882 of India
4A.1. Introduction:
4A.2. Kinds of Gift
4A.2.1 Hiba bil Iwaz.
4A.2.2 Hiba ba Shartul Iwaz
4A.2.3 Mushaa (Hiba bil mushaa)
4A.3. Essential Elements of a Gift
4A.3.1 The Donor
4A.3.1.1 Extent of Donors right to gift
4A.3.2 Conditions for Donee (who can receive)
4A.3.3 Acceptance
4A.3.4 Voluntary Delivery of possession
4A.3.5 Existence of Property Necessary Also In Case Of Hiba
4A.4 Consideration
4A.5 Oral ‘gift’ of an Immoveable Property
4A.6 What can be the subject of Gift
4A.7 Exceptions in delivery of possession
4A.8 Revocation of Gift:
4A.9 Void Gifts
4A.10 Contingent & conditional gifts
4A.11 Conclusion 61-90
Women’s rights in muslim law
4B.1 Introduction: Historical Back ground
4B.2 the Impact of the Tribal System on Women
4B.3 Female Infanticide
4B.4 Marriage: In Pre-Islamic Arab Society
4B.5 Divorce
4B.6 Inheritance
4B.7 Emergence of Islam
4B.8 Origin of Muslim Law
4B.8 Women in Islam
The SpiritualAspect
The SocialAspect:
The EconomicAspect
The PoliticalAspect
4B.9 Muslim Personal Law in India 73-90
Chapter 5: Conclusion ; Suggestion 92-122
Reference 123-126
Case laws
Subramanian Chettiar v. Kumarappa Chettiar
Hur Prasad v. Sheo Dayal
Gherulal v. Mahadeodas
Fender v. St. John Mildmay (1938) AC 1
Budansa v. Fatima Bi
PremNath v. Jasoda
Saraswati Ammal v. Jagadammbal
Ahmed Khan V. Channi Bibi
Ram Kishore v. Kabindra
Ujagar Singh v. Mst. Jeo
JagatSingh V. Ishwar Singh
JaiKumar v. Sher Singh
Smt Hussenabi v Husensab Hasan
Ilahi Samsuddin v. Jaitunbi Maqbul
Md. Hesabuddin v Md. Hesaruddin
Maimuna Bibi v. Rasool Mian
Gulam Abbas vs Razia
Smt Hussenabi vs Husensab Hasan AIR 1989 Kar
Ranee Khajoorunissa v. Mst Roushan Jahan 1876
Nawazish Ali Khan v. Ali Raza Khan AIR 1984
Rahim Bux vs Mohd. Hasen 1883
Mohd Hesabuddin v. Mohd. Hesaruddin AIR 1984
AFDISN – Awqaf Fund for the Disabled and Individuals with Special
BIS -Bank of International Settlements
CAMEL – Capital adequacy, asset quality, management, earnings and
CEDAW- Convention on the Elimination of All Forms of
Discrimination agains Women
CERD- Convention on the Elimination of all Forms of Racial
CGAP- Consultative Group to Assist the Poor
CMW – International Convention on the Protection of the Rights of
All MigrantWorkers
CRC – Convention on the Rights of the Child CSR
Convention relating to the Status ofRefugees
D8 -Group of 8 developing countries
DfID-Department for International Development
ESCWA -Economic and Social Commission for Western Asia
FIG- Fédèration Internationale des Geomètres (International
Surveyors’ Federation)
ICCPR -International Convention on Civil and Political Rights
ICERD-International Convention on the Elimination of All Forms
of Racial Discrimination
ICESCR -International Covenant on Economic, Social and Cultural
IDP Internally displaced person
IFSB -Islamic Financial Services Board
ILO- International Labour Organization
IMF- International Monetary Fund
ISNA- Islamic Society of North America
KAPF- Kuwait Awqaf Public Foundation
MFI-Micro Finance institution
MNA -Middle East and North Africa Programme
NAFSA- National Awqaf Foundation of South Africa
NAIT- North American Islamic Trust
OECD -Organization for Economic Cooperation and Development
OHCHR- Office of the High Commissioner on Human Rights
OIC- Organization of Islamic Conference
OICC-Organization of Islamic Capitals and Cities
UDHR- Universal Declaration of Human Rights
UIDHR- Universal Islamic Declaration on Human Rights
UN -United Nations
UNCHS-United Nations Commission on Human Settlements
UNDP- United Nations Development Programme
UN-HABITAT- United Nations Human Settlements Programme
UNHCR- United Nations High Commissioner for Refugees
37.UNRWA – United Nations Relief and Works Agency (for
Palestinian Refugees in the Near East)
WLUML- Women Living Under Muslim
During the Muslim history, some attempts had been done to make the Islamic law more attainable and reduce its different jurisprudential views in a single code applying in the entire or a certain part of the Muslim world. However, the challenges of modernity had permanently posed the question of codification and differences of Muslim views are continuously observed. In this study, we will try to shed light on the historical progress occurred in the Muslim world pertaining this issue and then propose the main reasons made the act of this codification legally disputable.

Definition of Code and Codification
Code, literally, means the act, process, or result of arranging in a systematic form, and codification means the act of codifying. It does include, in the view of law, two main aspects, namely: the act, process, or result of stating the rules and principles applicable in a given legal order to one or more broad areas of life in this form of a code; and, secondly, the reducing of unwritten customs or case law to statutory form.

The term “Code” is defined by L. B. Curzon as a systematically collection, in comprehensive form, of laws, e.g., the Code of Hammurabi (Eighteenth Century BC), and the Code Napoleon (1804).’
The equivalent Arabic term for codification is “Taqn?n”. Sanh?r? defined the Arabic term as drafting the laws within arranged texts, in a systematic and consistent form.

From the foregoing definitions, one can conclude that the codification is to collect legal texts that are respective to a branch of law in an official document, e.g., civil law, commercial law, penal law, law of civil or criminal procedure, law of labor. A “code”, therefore, is the official document that contains the legal texts in a particular branch of law.

Literature Review
There is an abundance of literature exploring the history of Islamic law and the foundation of Islamic jurisprudence. The debate on codification of Islamic law and the controversy about its legitimacy have been virtually discussed by the profound Professor ?ub?i Ma?ma??n? in “Al-Aw??? al-Tashr??iyyah f? al-Duwal al?Arabiyyah M???h? wa ???iruh?” (Legal Systems in the Arab States: Past and Present)v and “Falsafat al-Tashr?’ f? al-Isl?m” (The Philosophy of Jurisprudence in Islam).vi As such, the issue is studied by Amin Ahsan Islahi in “Islamic Law: Concept and Codification” vii and Orhan Junbulat in “Qaw?n?n al-Dawlah al-?Uthman??iyyah” (The Laws of Ottoman State).

In these books, the authors discuss the development of legal status in the Arab world and explore in detail the historical events relevant to the compilation of Islamic law, with a special reference to the relation of law with the State and Judiciary policy. However, little English literature has been provided on this matter and the latest debate on legitimacy of codification is mainly absent.

This is a library research and the type of methodology adopted for this research is historical and analytical. It follows the historical method to exhibit the attempts done to codify the law from the early Islamic age until the contemporary time. The study also hinges upon the descriptive-analytical method to describe and critically analyse the main reasons could be manifested for supporting the codification of Islamic law, after shedding lights on the obstacles made it almost unattainable during the history. The material was collected from both primary and secondary sources and critically evaluated to finally come up with a reasonable and justifiable assessment of this matter.

In the first chapter, the researcher has attempted to set forth the introduction of subject and custom law, customary law and Codification codification attempts in Islamic history, factors of codification debate, the muslim personal law, reform of muslim marriage law.

In the second Chapter, the researcher has made an effort to trace out historical background of the subject. This Chapter is devoted to the Muslim law.

In the third chapter, the researcher has discussed theGift transfer under Islamic law and transfer of properties.

In the fourth chapter, the researcher has discussed the role Comparative study of gift under Islamic law and Transfer of Property Act 1882 of India.

In the fifth chapter, the researcher has discussed the Women’s rights in muslim law.

In the last chapter an endeavour has been made to set forth conclusion of the study. On the basis of this conclusion certain suggestions have been put forward which if operationalized by Liquidators.

Custom in law is the established pattern of behaviour that can be objectively verified within a particular social setting. A claim can be carried out in defence of “what has always been done and accepted by law.” Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

Customary law (also, consuetudinary or unofficial law) exists where: a certain legal practice is observed and the relevant actors consider it to be law Most customary laws deal with standards of community that have been long-established in a given locale. However the term can also apply to areas of international lawwhere certain standards have been nearly universal in their acceptance as correct bases of action – in example, laws against piracy or slavery (see hostis humani generis). In many, though not all instances, customary laws will have supportive court rulings and case law that has evolved over time to give additional weight to their rule as law and also to demonstrate the trajectory of evolution (if any) in the interpretation of such law by relevant courts.

1.2 CUSTOMARY LAW AND CODIFICATIONThe modern codification of civil law developed from the tradition of medieval custumals, collections of local customary law that developed in a specific manorial or borough jurisdiction, and which were slowly pieced together mainly from case law and later written down by local jurists. Custumals acquired the force of law when they became the undisputed rule by which certain rights, entitlements, and obligations were regulated between members of a community. Some examples include Bracton’s De Legibus et Consuetudinibus Angliae for England, the Coutume de Paris for the city of Paris, the Sachsenspiegel for northern Germany, and the many fueros of Spain.

In the period of the Prophet Mohammed (P. B. U. H) and of the four great Caliphs, the question of codification did not arise. With the passage of time, when a growing number of juristic schools appeared and the job of the courts was not as simple as before, it was not possible any longer to expect the harmony in scholars’ opinions and judges’ verdicts, as much as the rulers themselves, began to feel the necessity of a codified law.

The historians refer the very beginnings of codification in Muslim World, to the well documented event of Ibn alMuqaffa?s dialogue (d. 144AH/762CE), with the Caliph Ab? Ja?far al-Man??r (95-158AH/713-775CE). Ibn alMuqaffa?, a famous writer in Arabic literature, was the first to see the necessity of codification. He put a proposal before Ab? Ja?far al-Man??r in a formal letter named “Ris?lat al-?a??bah f? ?a?at al-Sul??n” (Message of Companions in the Obedience of the Sul??n) and because it was fruitless it was then called “al-Ris?lah alYat?mah” (The Orphan Message), stating:
‘And one problem of these two Islamic States (Chufa and Basra) and other provinces to which Am?r al-Mu’min?n has to give his deep thought is that of the divergence of opinion on Islamic Law, which has now reached such proportions that it is no longer possible to close our eyes to it… If Am?r al-Mu’min?n would like it, the answer could be; that Am?r al-Mu’min?n issue a decree that all decisions and judgments so far passed be compiled in the form of a book and placed before Am?r al-Mu’min?n, and every sect must attach with it all the arguments which support their viewpoint, duly based on reasoning and authoritative references. Am?r al-Mu’min?n may thereafter review the whole record, and give his own judgment in each case, and restrain the law courts from contravention thereof. In this way all the scattered decisions and judgments – covering a variety of subjects of all shades – shall assume the form of a regular, written code of law, free of errors. Accordingly, all Islamic States shall come to be governed by a uniform legal system. It is hoped that Allah Almighty shall bring about a consensus of the Ummah on the opinion and verdict of Am?r al-Mu’min?n.

The Caliph did not accept the proposal in this form, but he kept it in mind. When he went to perform the pilgrimage to Mecca in (148AH/765CE), he indicated the idea to Imam M?lik. M?lik opposed the proposal and said that the followers of each school found solace in following their respective doctrines. It is also maintained that the Caliph went again to the pilgrimage in (158AH/775CE), and he put the whole scheme before M?lik. It is also believed that M?lik did not formally agree with the proposal, but compiled his Muwa??a’ yet holding the opinion thereof of his own. History has it on record that during their reign, both Al-Mahd? (d. 169AH) and Har?n al-Rash?d (d. 193AH) also approached M?lik with the same question, which again was refuted by him.

It is recorded by history that during the first three centuries of Islamic history, the function of Ijtih?d remained free of the interference of rulers; and judges remained free to implement the law according to inspiration of courtesy and justice based on the fundamental evidences of Islamic Holy References and other relative sources of jurisprudence like Analogy (Qiy?s), Custom (?Urf) and Public Interest (Ma?la?ah Mursalah).

The concept of codification was presented in various forms in the later history of Islamic jurisdiction. It was improved and advanced in very slow and gradual steps in such a form that it is sometimes difficult to decide how to categorize them from a contemporary perspective. Generally, the historians of Islamic legal system indicate the different typical approaches, that to be discussed in the following sections, as the very beginnings of the codification concept.

A. Adoption of the four prominent doctrines of jurisprudence: After the confusion of political order and division of power that occurred during the Abbasid era, a beginning of juristic rigidity came to be grounded. The majority of scholars favored adopting certain schools founded by famous Mujtahids to the extent that this gradually led to severe doctrinism in juristic opinions. This became dominant, especially after the conflict of opinions became obvious as a result of freedom of juridical opinions. The four best known schools of four great Im?ms; Ab? ?an?fa (d. 150AH/767CE), M?lik, Sh?fi?? (d. 204AH/820CE) and A?mad b. ?anbal (d. 241AH/855CE) became dominant. The ?anaf? Doctrine diffused more due to the Abbasid’s adoption of this school and the appointment of major judges from its fellows, e.g. the popular judge Ab? Yosuf (d. 189AH/805CE). Sh?fi?? Doctrine was preferred in Egypt, the place where the doctrine had grown in. M?lik? Doctrine became prevalent in West Africa (Maghrib). The judges mostly were selected from these schools according to the historical contexts of each and based on opportunities. Under the jurisdiction of ??l?nid (254-292AH) and Akhshidid (323-358AH) the judges were selected from the four schools, with a certain favor to the Sh?fi?? School. Therefore, it became a judicial tradition for the judges to consult their doctrine in applying the rules. Yet, the rulers did not adopt a certain school to be the only reference of adjudication and people were free to choose the judge they preferred in accordance with the common acceptability of these doctrines.

B. Official adoption of a certain doctrine as a formal judicial reference: In F??imids era (358-654AH) in Egypt and West Arabia, the situation of judicial order totally changed. They, for the first time in Islamic history, created a new post of Super Judge “Q??? al-Qu??t”. They used to choose a scholar from Ism??iliyyah Shiite to the post, imposed the Shiite Doctrine over territories and adopted it as the only reference for Fatw? and Judgment. Also, history records that the M?lik? Doctrine was imposed in West Africa by Al-Mu?izz b. Bad?s b. Yosuf (d. 454AH/1026CE) in the middle of the Fifth Century of Hijrah. The Ayy?bid (566-648AH) adopted the Sh?fi?? Doctrine but selected the judges from the followers of the four Sunni Doctrines. In the age of Mam?l?k (648- 922AH) the post of judge was only entitled to the followers of the four Sunni Doctrines, even the post of disciplinary teaching (Mash?khah) was reduced to them.

In the beginning of the Ottoman jurisdiction, this situation lasted; no official adoption of a codified law and with multiple juridical doctrines in power. But, because the Ottoman rulers embraced the ?anaf? Doctrine, they used to select a ?anaf? scholar to the post of Sheikh al-Isl?m who was entitled to issue Fatw? according to his doctrine. The ?anaf? Doctrine, therefore, became powerful. Later on, Sul??n Sal?m al-Awwal (ruled between 1512 and 1520CE) issued a decree (Farman) announcing the ?anaf? Doctrine as the official doctrine of the State, both in aspects of Fatwa and judgment. As such, the ?anaf? Doctrine controlled the positions of Sheikh al-Isl?m, Fatw? givers (except the Fatw? in cases of Devotions) and the judges over the territories ruled by the Ottomans. The same policy took place in Egypt in the reign of Mu?ammad ?Al? B?sh? (1769-1849CE) when the Ottoman Caliph issued a decree specifying the legal approach of ?anaf? Doctrine to the official Fatw? and judicial affairs too. As concluded by ??b?? Ma?ma??n?, the adoption of a certain doctrine as a compulsory reference was a primary step to the codification of Islamic law, especially preparation of a scholarly version of officially preferable laws was evident too.

C. Official selection of laws from a certain doctrine of jurisprudence: As a result of the enforcement of ?anaf? Doctrine in the legal courts, the policy of courts, as well as the laws and juristic approaches became unified. Yet the diversity of opinions and disputes upon the best resolutions for juristic questions, within the ?anaf? Doctrine from inside, remained truly an obstacle to a full adoption of a uniform code of law. This pushed the Ottoman rulers think about a preferable selection of legal resolutions, aiming at a uniform opinion to be imposed over all territories of the Ottoman Caliphate.

The Ottomans promulgated a series of legislative commands to organize the financial and administrative policy, as well as the governmental institutions, in special decrees known as “Q?n?n N?ma” (the Massage of Law) that was mainly drawn from Islamic teachings and dominant customs. They used the word “Q?n?n” to distinguish these worldly commands from the Divine legal obligations. These took place in various forms such as “Farm?n, Kha??i Sherif of Gul?ane, Kha??i Humay?n and Ir?dah Saniyyah.” These official orders rarely surveyed the policy of private laws, abandoning it to the authority of Sheikh al-Isl?m. The “Q?n?n N?ma” of the Sul??n Mu?ammad al-F?ti? came to exist after he conquered Constantine (Istanbul) in 1455CE. It contains administrative directives and some penal laws. The then-Caliphs continued the same policy. In the reign of the Sul??n Mu?ammad II, a ‘Q?n?n N?ma’ concerning the distribution of conducting bills “Sanad?t al-Ta?arruf” respective to state-owned lands (Al-Ar??i al-Meriyyah) was promulgated.

The Sul??n Sulaym?n I (1520-1566CE) was known as “Sulaym?n Q?n?n?” due to the numerous legislative directives he ordered.xviii In his reign and the period of the next Ottoman Caliphs (in the middle of the Sixteenth Century) a trend to collect elective laws from the ?anaf? School of jurisprudence appeared. The Sul??n Sulaym?n Q?n?n? authorized Sheikh al-Isl?m Ab? al-Su??d b. Mu?ammad b. Mu?taf? al-?Im?d? al-K?rd? (898-982AH/1492- 1574CE) to perform the duty of an elective compilation of laws. He did author a compilation of Fatwa known as “Ma?r???t Ab? al-Su??d Afand?”. Sulaym?n Q?n?n? had also asked Sheikh A?mad al-?alab? (d. 956AH/1549CE) to author a book on Islamic law; easy to be understood by common readers, comprehensive in substance and encompassing an abstract to the outputs of former ?anaf? references like (al-Qadd?r?, al-Mukht?r, al-Wiq?yah and al-Kanz), then he authored “Multaq? al-Ab?ur”. Despite the great benefits that these books had facilitated, they were only advisory references and were authorized partially.

Later on, during the Eleventh Century of Hijrah (Seventeenth Century), another positive attempt was made under the orders of the Sul??n Mu?ammad Awrangzeb ??lamg?r. A scholarly Board of five members, from the best Indian scholars and under the leadership of Ni??m Burh?n Bur?, was constituted with the directive to compile a book that, in the Sul??n’s words, “should embrace such Fat?w? or judgments as had obtained the consensus of eminent scholars of jurisprudence, and which should be a treasure-house of valuable information, having the approval of religious luminaries”. The compilation of “Al- Fat?w? al-Hindiyyah/al-Fat?w? al-??lamg?riyyah”, within six volumes, was authored, but it did not fulfill the requisites of an official Code, owing to the fact that it was not compulsory applied, nor drafted in a systematical order and it encompassed both the rules of ?Ib?d?t and Mu??mal?t in which some of the rules were only imaginary and abstract truths. Although it was not compiled in the style of a modern Code, it was an important link in the chain of the works attempted in this direction.

In the second half of the Nineteenth Century, several law compilations emanated to organize the ownership of land, in which most of them basically quoted from the Islamic law principles of ownership. The most famous compilation was the land law (Ar??i Q?n?n Namasi” (Q?n?n al-Ar???) issued in 1274AH /1857CE.

The codification of Islamic law reached an advanced stage with the issuance of the compilation of “Majallaht alA?k?m al-?Adliyyah” (1869-1876CE). This compilation was an important event in the history of codification, due to it was derived from Islamic law and applied in most territories ruled by the Ottomans, except Egypt. It became the official code of civil law to entire countries ruled under the Caliphate, even for a period after their independence. The government constituted a panel of seven top ranking scholars under the presidency of A?mad Cevdat B?sh? (1822-1895CE) and entrusted them with the job, with a directive to compile a book on Islamic jurisprudence in a systematic form, which should be quite convenient to consult, free from disputes, be an authoritative reference on all well known pronouncements and decisions, and should be readily available to anyone. The committee finalized the job in (1293AH/1876CE). This compilation was authored in the form of the modern codes and it contained 1851 Articles divided into an introduction and sixteen chapters. The introduction contained 100 Articles elaborating the definition of jurisprudence (Fiqh), its categorization and main maxims.xxiii In drafting the code, the committee had never stepped outside the limits of the ?anaf? rite and the rules which they laid down were for the most part actually applied by the Fetv? Khan? (Fat?w? Qa??-Kh?n) of Fakhruddin ?asan b. Man??r al-Fargh?n? (d. 592AH). However, among the opinions of the most authoritative jurists of the ?anaf? rite there were some which were perceived as less rigorous and more suitable to the needs of contemporary times, and they adopted these opinions.xxiv Amendments to the Majallah were worked out by a committee in 1920-1921. The committee went beyond the ?anaf? rite and took various principles from other schools. The amendments were, however, never enacted into law, since Turkey soon embarked upon a radical legal reform.

Substantively the Majallah covered both less and more than a European Civil Code. It dealt with contracts (sale, hire, guaranty, dept, etc.) and some torts, but not with non-contractual obligations and did not regulate other areas of private law, such as marriage, divorce, inheritance, and various aspects of genuine property.

The Ottomans, in enacting this policy, relied on the maxim of Legal Politics (al-Siy?sah al-Shar?iyyah) to legitimize it and gain the force of obedience upon the citizens. It was stipulated in Majallat al-A?k?m al?Adliyyah (Article 1801) that if an official command emanated from the Sul??n to utilize a juristic opinion of a certain Mujtahid in a particular legal question because it was deemed more suitable to the contemporary age and more respondent to everyday life of people, the judge should be bound by it and not utilize the reverse opinions.

If such conduct happens, the verdict given will be out of validity and shall not take place to application with the executive personnel,
‘If an order has come from the Sul??n, that as regards some special matter the opinion of one of the founders of the Law should be acted on, on the ground that it is more convenient for the business of the time and for people, in that matter the judge cannot act by the opinion of another founder of the Law and contrary to the opinion of that one. If he does, his judgment is not executed (Nafiz).

In a report advanced by the Drafting Committee of the Majallah, the reporters sealed the statements with these words: ‘Finally, as most of the Articles written in this Mejelle refrain from going outside the ?anaf? doctrine, and are in force and acted upon in the Fetv? Khan? at the present time, there seems no necessity for a discussion about them…Because it is necessary to act according to whatever opinion his Majesty, the leader of the Muslims orders that people should act, the report is laid before the Grand Vizier also, in order that he may order it to be decorated with the Imperial writing of his Majesty the Sul??n, if on trial the enclosed Mejelle is approved by him.

D. Official selection of laws from various doctrines of jurisprudence: The policy of legal oriented politics (Siy?sah Shar?iyyah) followed by the Ottomans was also manifested in the form of adopting different schools of Islamic jurisprudence, in the creation of later codes. Commonly it was decided by the scholars that an unqualified person (Muqallid) is allowed to follow opinions of different qualified scholars if he is keen to protect the objectives of the law. However, if he is not aware of these objectives and boundaries, he may transgress the limits of Shar??ah at the end, especially when he consciously seeks the easiest opinion to apply, regardless of the authenticity it Combining this rule to right of a ruler to select the most suitable opinion, the Ottoman Caliphate drafted a code for the law of marriage, divorce, etc., which was known as “Q?n?n ?uq?q al-?A’ilah al?Uthm?n?” (Ottomans Law of Family Rights, 1917). It was authored in accordance with the ?anaf? approaches and incorporated selected opinions from other rites, considering public interests. As such, it considered rules of family in minorities’ religions. Although this code was repealed in Istanbul only two years later, it was, for a long time, applied in Lebanon, Syria, Palestine and Jordan. Also, it is noteworthy that the Arab States followed similar steps in their family law, with special reference to the area of personal statute, trusts “Awq?f”, inheritance, and will “Wa?iyyah”.

E. Adoption of the foreign legal codes (man-made law): Throughout its entire history, the Ottoman Caliphate had felt the necessity of a well-established legal system. Although Majallah was considered an attempt for Islamization of laws, on one hand, it was, on the other hand, counted as the Ottomans approach for adaptation of the foreign laws
J. Coulson, a professor in oriental laws, holds that the derivation of western law began as a result of the system of Capitulations in the Nineteenth Century. The Western powers ensured that their citizens residing in the Middle East would be governed by their own laws. This brought about familiarity with European laws particularly in mixed cases involving Europeans and Muslims in respect to trades and commerce. The laws applied under the Capitulatory system turned with the state’s desire for comprehensive legal codification to form the basic trends of this progress. At the same time the adoption of these European laws as a territorial system meant that foreign powers might acquiesce in the abolition of Capitulations that became increasingly irksome as a growing emphasis was placed on national sovereignty. As a result of these considerations a large-scale reception of European law was effected in the Ottoman Caliphate by the Tan?im?t reforms of the period between 1839 and1876.

The Tan?im?t reforms included the introduction of a European style army, codification of customary land tenure relations, reorganization of taxation, provincial and ministration, judiciary and education.

The codification reforms started as a mass reflection to the huge advances realized in Europe. The citizens of the Ottoman Caliphate put the state under serious pressure asking for constitutional reforms, especially after the draft of the Napoleonic Civil Code.

The Caliphate promised the citizens that the orders applied in the state would be similar to European orders. The “Tan?im?t” was the policy that adopted by Sul??n ?Abdul-Maj?d on 3rd November 1839, in his first year of jurisdiction.

The first constitutional document that came to ground was Kha??i Sher?f of Gul?ane (Chamber of Roses). Its primitive section includes a deep description of the backwardness and instability in the Caliphate due to misapplication of Divine laws. It ‘figured out’ that the legal reform is the way for a solution. It also declares the principles of human liberty, recognizes dignity of ownership and equality to all residents before the law without any discrimination based on religion or job.

Besides that, it decides that the fulfillment of disputed rights should be only attained through a judicial verdict in a public trial and the punishment should be after a public trial and in accordance with the rules of law. The document also promised a reform in administrative and judicial aspects by resetting the laws.

Except for the Commercial Code of 1850 and the old Penal Code of 1851, the promises contained in the Kha??i Sher?f of Gul?ane did not materialize. The disorder and disruption prevailed in the Caliphate territories and the foreign pressure enhanced on the Caliphate, the matter that pushed Sul??n ?Abdul-Maj?d to order a second supplementary document of reform known as Kha??i Humay?n (Imperial Edict) of 18 February 1856 which promised the reform of judicial tribunals and the creation of mixed tribunals, the reforms of penal and commercial codes to be administrated on a uniform basis and the reform of prisons. Moreover, the document reinsured the former one by posing more promises of reform and reorganization of the state. It emphasized again the privileges secured for the Christian minorities by Sul??n Mu?ammad F?ti? and indicated more positive amendments based on the new circumstances that were on the ground. The decree also guaranteed freedom of religion, declaring that no one could be compelled to change his religion. Also, equal opportunity was promised in competing for public offices, recruitment by civil, military and other public services, as well as schooling, regardless of religious or national differences. In addition to that, it declared the authenticity of religious courts for non-Muslim minorities to rule on and determine their personal statute. Mixed Courts or councils were introduced to hear commercial and criminal cases between Muslims and non-Muslims and among non-Muslims of different denominations. Other changes introduced included the abolition of corporal punishment, and a pledge to reform the criminal law, penal and prison systems.

These constitutional instruments did not create any effective mechanism to ensure the application of their provisions until 1876 when the Sul??n ?Abdul-?am?d II promulgated a more substantive constitution to check the absolute powers of the Sul??n but in the following years of his reign the constitutional regime was suspended in 1878 and it was restored only in 1908. As a result of Kha??i Humay?n reforms and later reforms done by ?Abdul?am?d II, the state ratified various codes in various respects of law, some of which purely quoted from European codes and others derived from the Islamic law. This situation continued until the Union and Progress Party announced the Republic of Turkey in 1923 and abolished the Caliphate system in 1924 and then a new constitution was introduced by the national assembly in 1924.

Despite historical attempts made for unification of Islamic law, there is a haggling debate amongst the Muslim jurists on making codification the means to realize this dramatic objective. After the Tan??m?t of the Ottoman Caliphate, in part, and because of compelling foreign laws on Muslim countries, codification became a prevailing model of jurisdiction for the majority of Islamic countries. Hence, a legal question had arisen: Is codification of Islamic law legitimate? Is it necessary to modernize legal theories of Islamic law in the light of man-made law?
The question of codification hereon shifts to a special atmosphere of critique. It became neither the question of necessity nor the case of any advantage it generates. It is, further, the question of legitimacy. This is due to variable causes; some of them back to ideas manifested in the early history of Islamic law. The main obstacles before the codification of Islamic law could be summarized in nature of Islamic law, freedom of Ijtihad and freedom of belief. The reference to Islamic law is found first in the texts of the Holy Qur’an and the authenticated traditions of the Prophet Mohammad (P. B. U. H). It implies that the law in Islam is mainly derived from the holy texts. A Mujtahid should not transgress a particular rule grounded by a text of Shar??ah. He can only apply his reasoning if there is no relevant definitive text or if the available text is speculative in meaning and surrounded by more than a possibility of understanding. Due to the sanctity of those refereed texts, the jurists had treated the texts keenly and favored an inductive method of application upon an analytical approach that may reduce the detailed laws in general maxims so that the particularity of each single law may get lost. The ???l Fiqh founders also recognized analytical applications in unpronounced cases to apply the analogy (Qiyas) or interests (Ma??li?). Yet, they deduced general disciplinary maxims of jurisprudence within a discipline called today “?Ilm al-Qaw??id al-Fiqhiyyah”, but it was only an advisory work, not fully authoritative in nature and not completely validated in application.

The freedom of Ijtih?d is admissible in Islamic law. It was often beyond the diversity of approaches that flourished in Islamic legal history. Under this tenet, it was difficult to unify un-stated laws, so contradicting the nature of Islamic legislation that obliges qualified Muslims to do Ijtih?d. It was assumed that the codification stands adversely to free Ijtih?d as it is drawing the last boundary of law and then undermining the lines of freedom in juristic works.

It is narrated that the Abbasid Caliph Ab? Ja?far al-Man??r (d. 158AH) asked Im?m M?lik b. Anas (d. 179AH/796CE) to draft the Islamic law. He said: ‘Take the subject of Islamic jurisprudence in your own hands, and do compile it in the form of different chapters. Avoiding the strictness of ?Abdull?h b. ?Umar (d. 73AH/692CE), the liberalism of ?Abdull?h b. ‘Abb?s (d. 68AH), and the individualism of ‘Abdull?h b. Mas??d (d. 32AH), compile a code which should reflect the maxim: (the best of affairs is the middle course) and which should be a collection of the legal decisions and verdicts given by the Im?ms and Companions of Prophet (P. B. U. H).

If you complete the job, we shall bring about a consensus of the Muslims on your school of jurisprudence and enforce it throughout our realm with a decree that contravention thereof be strictly avoided.’
M?lik politely declined on the plea that one man’s opinion could not be imposed on everyone. People should have the freedom to disagree. In other words, he refused the suggestion to preserve continuity of free Ijtih?d of the qualified Muslims forever. He stated: ‘Please ignore that. The people have already made different opinions and jurisdictions. They got and narrated speech and tacit of Prophet. Each group inferred the rulings of Shar??ah according to their own foundations.
They worked and applied rulings according diverse opinions succeeded to them by the first generation. It is, therefore, an extreme treatment and an intolerant behavior to bring them by force about uniform of opinion. Let them choose what they hold and do not enforce anything upon them.’
Despite the fact that Islam is a universal religion, it is clear that Islam gave the chance of free choice of belief. As a result, Islam tolerated diversity of religions and gave the chance to the existence of multiple religions in Muslim societies. The codification, therefore, may confront an obstacle in cases relevant to exclusive religious affairs. As such, it was difficult to reach a just conciliation between religions’ doctrines in affairs restricted to their full authority in which the reduction of their positions becomes unaffordable or even impossible.

India is a multi-religious nation. Here the followers of Hinduism are in an overwhelming majority and Muslims constitute numerically the biggest minority. Other prominent religious minorities in the country are Christians and Parsis (apart from Buddhists, Jains and Sikhs to whom that part of Hindu personal law which was codified in 1955-56 is applicable).’ During the Muslirri rule in India all these communities were governed, in matters relating to personal status, family law, succession and ancestral property, by their respective traditional laws and custom. ! When the British established political authority in the sub-continent they adopted a similar policy and guaranteed continued application of the various personal laws to the respective religious communities.” This policy remains unchanged till the present day and all the aforesaid communities continue to have their own personal laws.
The term personal law as traditionally used in India is not synonymous with either of the two corresponding terms used in Muslim ~countries, namely, law of family rights (huqliq al-‘iii/a) .and law of personal status. (ahwiil al-shakhsiyai. It has a rather wide scope and covers marriage and its dissolution, family rights and obligations, testamentary and intestate succession, personal property, religious and charitable endowments and pre-emption. These and the like matters relating to Muslim community in India are ordinarily governed by the Shari’a law, locally described as Muslim personal law.

Since 1937, the application of Islamic personal law in India has, been governed by the provisions of the Muslim Personal Law (Shari’at) Application Act. A word about the history of this Act is necessary here.

Under the traditional Hindu legal theory, an established local custom would prevail over a written text of the law, even if contrary to the latter.” This principle was given a general application during the British rule by some enactments enforced in certain parts of the country.” The Muslim community then realized that the principle was in conflict with Islamic jurisprudence which did not recognise custom and usage as having the force of law .! Therefore, as suggested by some Muslim scholars,” the Muslim Personal Law (Shartat) Application Act was enacted in 1937.

The Statement of Objects issued with the Act explained its purpose as follows:
For several years past it has been the cherished desire of the Muslims of India that customary law should in no case take the place of the Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. Jami’at-al-Ulama, the greatest Muslim religious body, has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary law is a misnomer in as much as it has not any sound basis to stand upon and is liable to frequent changes and cannot be expected to attain at any time in future the certainty and definiteness which must be the characteristic of aUlaws. The status uf Muslim women under the so-called customary law is simply disgraceful. The Muslim women organizations have condemned customary law as it adversely affects their rights and have demanded that the Muslim Personal Law (Shari’at) should be made applicable to them. ‘The introduction of Muslim Personal Law will automatically raise their position to which they are naturally entitled. In addition to this, the present bill if enacted, would have a salutary effect on the society because it would ensure certainty and definiteness in mutual rights and obligations of the public. Muslim Personal Law (Shari’at) exists in the form of a vertible code and is too well known to admit any doubt or entail any labour in the shape of research which is the chief feature of customary law.

Section 2 of the Muslim Personal Law (Shari’at) Application Act, 1937 provides that the law of the Shari:a, and not any custom or usage, will apply to all Muslims in India in the following matters: (a) marriage, various forms of its dissolution, dower, maintenance, guardianship, (b) intestate succession (except the questions relating to agricultural lands”), and (c) gifts, trusts and wakfs (with the exception of charities and endowrnents”).

Regarding adoption and wills, the Act empowers every Muslim, who is competent to contract under the provisions of the Indian Contract Act, 1872, to adopt the law of the Shari’a for himself or herself and also for his or her minor children and their descendants. 9 Thus, the ‘Act differentiates adoption, wills and legacies from other subjects of personal law mentioned in section 2. Unlike customs.relating to the latter, those regarding adoption, wills and legacies have not been wholly abrogated by its provisions. In respect of these matters, the Act only gives an option to the Muslims to adopt Islamic personal law if they so desire. Accordingly, if a Muslim who is competent to contract under the Indian COl/tract Act, 1872 makes declaration of a desire to avail the benefit of section 3 of the Act of 1937, the declarant, his (or her) minor children and their descendants will all be governed by Islamic law in respect of adoption, wills and legacies.
Section 4 of the Act gives power to the State governments to frame rules for the filing of such a declaration and for other details attached therewith.
Adoption (tahnia) has no recognition in Islamic law. If a person adopts a son or a daughter, the law of Islam will not confer on the adopted person the status or rights of a natural son or daughter. The provision of the Qur’lin is quite clear on the subject of adoption. It says, in effect, that one who is not another person’s son does notbecome his natural son merely by virtue of a declaration.” In India, however, the custom of adoption prevails in some Muslim tribes of the Punjab and some adjoining places.Under the Muslim Personal Law (Shari’at) Application Act. 1937, so long as aMuslim who establishes the custom of adoption does not make a declaration as mentioned in section 3, he will be governed by the said customary law of adoption. But if he wants he can free himself, his minor children and their descendants from the application of the customary law by opting for Islamic personal law.
The same is the position of testamentary succession under the provisions of the Act of 1937.
The Khoja and Cutchi Memon communities among Indian Muslims had, under custom, an unrestricted testamentary power. The Act of 1937 did not make an outright abolition of this power. It gave to Muslims, including those belonging to the said communities, an option either to continue to be governed by the customary law or to adopt the Muslim law of wills. The Khojasw continue to have this option.’! But the Cutchi Memon community11.” has been deprived of the right to retain the customary law of will. In accordance with the Cutchi Memons Act, 1938, it is now governed entirely by the Islamic law of testamentary succession. The Mapil/a Muslims of South Indian states are also governed, as provided under the special statute law applicable to them’s by the Islamic law of wills and cannot avail the benefit of retaining any contrary customs under the provision of section 3 of the Muslim Personal Law (Shari’at) Application Act, 1937.

Principles of the traditional Islamic law as applicable in India are not uniform. The Hanafi legal system governs a vast majority of the Sunni Muslims, whereas those in the southern states of the country generally follow the Shiifi’i school. The Shi’a Muslims of India mostly belong to the Ithnii ‘Ashar; (Jiijri) school.However, in Western India there is also a sizeable number of Muslims adhering to the lsmii’ili school.

A major portion of the Muslim law in India remains uncodified till this day. Legislation dealing with Muslim legal affairs has so far been undertaken in respect of only administration of wakfs and some aspects of the law of marriage and divorce. There are several central and state enactments dealing with the administration of either wakf properties in general or particular shrines. These are out of the scope of this study. A survey of the statute law pertaining to the Muslim law of marriage and divorce follows.

Principles of Muslim law relating to married women’s right to dissolution of marriage by the Court were reformed in India in 1939. The technique by which the said reform was introduced in India was the same as adopted in Egypt and some other Muslim countries, namely, adoption of principles of certain schools of Islamic law other than those prevailing in a particular country.

As has been repeatedly said in the preceding chapters of this book, the Hanafi school of Muslim law is too restrictive with regard to married women’s right to seek dissolution of marriage by a Court. As an overwhelming majority of Indian Muslims followed the law of this school, it created hardship for numerous Muslim women who desired dissolution of their marriages on various genuine grounds. On the other hand, if a Muslim wife renounced Islam, the renunciation effected an immediate dissolution of her marriage with the Muslim husband. Finding no other way to get rid of undesired marital bonds, many Muslim women felt compelled by their circumstances to renounce their faith. A reputed theologian of that time, Ashraf •Ali Thanav! rose to the situation and advocated introduction of certain Miilik; principles empowering married women to get their marriages dissolved by a court. In a monograph’! published in 1936, he made detailed proposals on the subject and got them approved by the leading ‘ulema in India and abroad. On the basis of the aforesaid proposals, the Dissolution of Muslim Marriages Act was enacted in 1939. Confirmingthe Maliki basis of the Act, the Statement of Objects and Reasons issued with the Act said:
There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her, or in certain other circumstances. The absence of such a provision has’ entailed unspeakable misery to innumerable Muslim women in British India. The Hanafi jurists have, however, clearly laid down that in cases in which the application of the Hanoi;law causes hardship, it is permissible to apply the provisions of the Malik, Shnfi’! or Hanbali law As the courts are sure to hesitate to apply the Maliki law to the case of a Muslim woman, legislation recognising and enforcing the aforementioned principle is called for in order to relieve the sufferings of countless Muslim women.

“The Dissolution oj Muslim Marriages Act, 1939 is applicable to all Muslims of India who may otherwise adhere to the Hanofi, Shnfi’L, 111m’ll “Asharl; or lsma’il! law. So, to the extent of matters covered by its provisions, the Act has effected uniformity in the Indo-Islamic personal law.
The Act is applicable to the whole of India except the State of Jammu and Kashmir.!
A Custom is any established mode of social behavior within the community. Various Dimensions of human behavior which are prescribed by the community or society hint at the conceptual frame of custom. It is considered as one of the mechanisms of social Control and an appropriate direction for humans to live in the community and to allow the Society to perpetuate. Custom in Chamber’s 20th Century Dictionary means, ‘what one is wont to do: what is usually done by others: any of the distinctive practices and Conventions of a people or locality, esp., those, of a primitive tribe’.

Custom has been defined and opined by various scholars, jurists and authors. “The word Custom” as defined by Sapir, “is used to apply to the totality of behavior patterns which are carried by tradition and lodged in the group, as contrasted with mere random personal activities of the individual.” Radin states that “customs are regarded as habitual ways of conduct among social groups.”While Carter maintains that, custom is the “uniformity of conduct of all persons under like circumstances.” According to Holland, “custom is a generally observed course of conduct.”
In Subramanian Chettiar v. Kumarappa Chettiar custom has been defined as, “A particular rule which has existed from the time immorial and has obtained the force of law in a particular locality.” In Hur Prasad v. Sheo Dayal, custom has been defined as ‘Rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from long usage obtained the force of law.’ Citing Hur Prasad v. Sheo Dayal, Sir Hari Singh Gour states that, ‘Custom is an established practice at variance with the general law.’
According to Sir John Salmond, “Custom is frequently the embodiment of those Principles which have commended themselves to the national conscience as principles of justice and public utility.” He further states that “The national conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.”
“Custom”, says Austin, “is a rule of conduct which the governed observed spontaneously and not in pursuance of law set by a political superior.” Sir C.K. Allen also defines custom “as legal and social phenomenon growing up by forces inherent in society— forces partly of reason and necessity, and partly of suggestion and imitation.”
Citing the Tanistry Case (1908), states that, “A custom, in the intendment of law, is such a usage as hath obtained the force of law, and is in truth a binding law to such a particular places, persons and things which it concerns….But it is ius nonscriptum, and made by the people only of such places where the custom is.” In Tanistry Case, custom is further described in these words “it is jus non scriptumand made by the people in respect of the place where the custom obtains. For where the people find any act agreeable to their nature and disposition, they use and practice it from time to time, it is by frequent iteration and mortification of the act that the custom is made and being used from time to time which memory rennet not to the contrary obtained the force of law.”According to Keeton, ‘Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law, because they are generally followed by the political society as a whole, or by some part of it. ‘The Hindu Code defines custom and usage as “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.”
2.2 CLASSIFICATION OF CUSTOMSTaking into consideration what has been discussed above, customs are habits of action or Patterns of conduct which are generally observed by classes or groups of people. Such habits of action or pattern of conduct (customs) can be classified into–
1) Customs without binding obligation and
2) Customs with definite binding obligation
Customs which are concerned with less important aspects of social life are covered in this category. Most societies have certain customs with respect to the kind of dress one is expected to wear on various occasions. For example, wearing a black dress at a funeral ceremony in England but, white in India. Well-established customs are observed at burials and other solemn ceremonies, etc. A large section of people observe customs of certain kind for the funeral of their deceased relatives, irrespective of the fact that it may not be affordable for them. Whatever it may be, none of these customs is completely obligatory binding. Their sanction, in many cases though powerful, is imperfect. No man is under an absolute compulsion to give a feast at the time of marriage or after the funeral of the deceased relative, etc. All these customs are followed due to the fear that non-observance of such customs may lead them to be socially outcaste. Such customs are non-binding in the sense that they are not obligatory to follow. People follow them due to the social pressure of public opinion. When a custom of this type is violated, society usually reacts by showing social displeasure or disapproval; but it has no sanction in the strict sense of the term. Such customs can be called as ‘Social Customs’.

In this category those customs are covered “which in a more definite and stringent sense are regarded as the specific duties and obligations of men. Such customs may regulate the obligation of marriage and the upbringing of children, the transmission of property at death, or the modes of consummating and fulfilling agreements. Such customs do not pertain to the sphere of social formalities, outward decorum, or aesthetics; rather, they are concerned with the serious business of society, the work that must be accomplished in order to secure and guarantee satisfactory conditions for collective life.”Customs covered in this category are backed by sanction which is more certain in its operation than any other social customs. Such customs, if satisfy certain standards or tests, acquire legal character, and their violation is met by typical sanctions employed by the legal order. Such customs are enforceable and obligatory. Such customs can be further divided into Legal Customs and Conventional Customs. For the purpose of the present study the researcher is more concerned with Legal Customs than to mere Social Customs.

2.4.1 Legal customs
‘Legal Custom’ occupies a place by itself in that its sanction is more certain in its operation than that of any other. “The effect of sanction”, writes Sir C. K. Allen “is negative rather than positive: if the custom is not followed, certain desired consequences will not be brought about.” For example, if a particular custom is not followed, the marriage will not be treated as valid; the desired consequences of becoming a husband and wife will not be brought about. Children out of such marriage will not be treated as legitimate. Law, back by the opinion at the earlier stage and at later stages by the tribunals of the community, will forbid those relationships to be effected. Customary rules are ‘legal’ in the sense that they are binding and obligatory rules of conduct (not merely of faith and conviction), and the breach of them is a breach of positive duty. In legal custom no option, however small, is left to the individual, as in other social customs. Legal custom is operative per se as a binding rule of law, independent of any agreement on the part of those subject to it. According to Salmond, ‘A legal custom is one whose legal authority is absolute—one which in itself and propriovigore possesses the force of law.’ Legal custom may further be classified as General Custom and Local Custom.

General custom is that which prevails throughout the country and constitutes one of the sources of the law of the land. It prevails throughout the territory of the state and is observed by all the members of the society. There was a time when common law was considered to be the same as the general custom of the realm followed from ancient time.

A local custom is a custom confined to a particular locality and constitute a source of law for that locality only. According to Salmond, “The term custom in its narrower sense means local custom exclusively.” The western concept of local custom which applies only to a defined locality such as a district or a town, does not similarly apply to the Indian situation. Local custom here implies to something more than a geographical locality. In India, local custom may be divided into two classes – Geographical Local Customs and Personal Local Customs. These customs are law only for a particular locality, sect, or family. ‘Tribal custom’, says Sir Hari Singh Gour, ‘is a custom confined to a particular tribe, caste or community’. Tribal custom, in certain cases, applies to geographical local custom where the population of a particular district or town or region is covered by the said tribal community at the most. However, in other cases it applies both to the geographical locality and the personal locality. Customs and the customary laws of the Advises, the subject-matter of the present study, fall in the latter category.

According to Salmond, ‘A conventional custom is one whose authority is conditional on its acceptance and incorporation in agreement between the parties to be bound by it.’ He further stated that, ‘In the language of English law the term custom is more commonly confined to legal custom exclusively, while conventional custom is distinguished as usage. Usages are not laws ex proprio vigore.’ A conventional custom or usage is a practice established by having been followed for a considerable period of time, and arising out of a contract between the parties; it does not arise out of its own force. Thus, a usage or conventional custom is an established practice which is legally binding, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned. Conventional custom may, again, be divided into two types—General Conventional Customs and Local Conventional Customs. General Conventional Customs are extensively practiced throughout the realm; whereas Local Conventional Customs are limited to a particular place or to a particular trade or transaction.2.5 TRANSFORMATION THEORY OF CUSTOM INTO LAW
The general criterion which distinguishes social customs from legal custom has already been discussed above. The lines of demarcation between the two are fluid. While some customs are non-legal, in the sense that they do not have absolute binding obligation whereas, some customs have absolute binding obligation. Customs having absolute binding obligation are legal customs and are elevated to the status of law if they satisfy certain judicial tests. At this point, it becomes necessary to consider the conditions under which the transformation of ‘custom’ into ‘law’ takes place. Broadly speaking, there are two theories regarding the question as to when custom is transformed into law. Those are the Historical and the Analytical theory of law.

Edmund Burke, who laid down the foundation of the historical school, pointed to history, habit and religion as the true guides to social action. Friedrich Carl Von Savigny and George Friedrich such are the main exponents of the historical school of law. This school maintains that, law was primarily the expression of the legal convictions and practices of the community. According to this school, custom carries its own justification in itself, because it would not exist at all unless some deep-seated needs of the people or some native quality of temperament give rise to it. The growth of law does not depend upon the arbitrary will of any individual. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people. It springs from an inner sense of right. Law has its existence in the general will of the people. Savigny calls it Volkgeist. According to Savigny, ‘Law was not something that should be made arbitrarily and deliberately by a lawmaker’. It was a product of “internal, silently-operating forces.” It was deeply rooted in the past of a nation, and its true sources were popular faith, custom and the common consciousness of the people. Like language, the constitution, and the manners of a people, law was determined above all by the peculiar character of a nation, by its national spirit (Volkgeist). To him, “law like language stands in organic connection with nature or character of the people and evolves with the people.” Therefore, according to Savigny, the true basis of positive law is its existence, its reality, in the common consciousness of the people. Custom therefore is the badge and not the ground of origin of positive law. Such agreed with Savigny and carried the theory even further. To him, custom was not only self-sufficient and independent of legislative authority, but was a condition precedent of all sound legislation. He founded the basis of customary law in the collective purpose of the nation, and express legislation could be useful only in so far as it embodied this purpose as already manifested in custom. The Historical theory of law has been criticized by many scholars and jurists. Without disrespect to the scholarly genius of Savigny and his followers, Allen criticizes their view as, ‘Many customs which have taken deep root in society do not appear to be based on any general conviction of their rightness or necessity, or upon any real or voluntary consensus utentium.’ Slavery, for example, was almost the universal practice of the ancient world. Slavery is frankly admitted to be ‘contra naturam’, whereas liberty is a ‘naturalis facultas eius quod caique facere libet.’ The truth is that slavery was a custom based upon the needs not of a popular majority but of a ruling minority. Many customs, again, says Allen, are so essentially local in origin that they cannot be said to arise from any widespread conviction…. The reason and utility on which (such) customs rest often arise from purely local conditions, and not from any widespread Geist. In cosmopolitanism of commercial customs and many other customs the Volkgeist loses much of its meaning. According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments.” Themistes were judicial awards which were dictated to the King by the Greek goddess of justice. He explained, “Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated to the judges.” Jethrow Brown also maintains that, “Custom is often posterior to judicial decision…. Under the pretence of declaring custom, judges frequently give rise to it.”
Austin, one of the main priests of the Analytical school, denies customs the force of law until they have been expressly recognized by the sovereign. This is consistent with his general doctrine of sovereignty, for, without the cachet of supreme authority, custom cannot be conceived as a command. To him a customary practice is to be regarded as a rule of positive morality unless and until the legislature or a judge has given it the force of law. According to this view, habitual observance of a custom, even though accompanied by a firm conviction of its legally binding character, does not suffice to convert the custom into law; it is the recognition and sanction of the sovereign which impress upon the custom the dignity of law. The sovereign may abrogate custom. A custom is law only because the sovereign allows it to be so. Custom is a source of law and not law itself. According to Austin, “A customary law may take the quality of legal rule in two ways: It may be adopted by a sovereign or subordinate legislature and turned into a law in the direct mode (statute law) or it may be taken as a ground of judicial decision, which afterwards obtains as a precedent and in this case it is converted into a law after judicial fashion. In whichever of these ways it becomes a legal rule, the law into which it is turned emanates from the sovereign.” Analytical theory has also been criticized by many scholars and jurists. According to Allen, “custom grows up by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law or by any other determinate authority. The characteristic feature of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted by a supreme arbiter, nor from any claim of meum against tuum, but from practices prompted by the convenience of society and of the individual, so far as they are prompted by any conscious purpose at all.” He further stated that, the starting-point of all custom is convention rather than conflict, just as the starting-point of all society is cooperation rather than dissension. Vinogradoff also states that, “It is not conflicts that initiate rules of legal observance, but the practices of every day directed by the give-and take considerations of reasonable intercourse and social co-operation. Neither succession, nor property, nor possession, nor contract started from direct legislation or from direct conflict. Succession has its roots in the necessary arrangements of the household on the death of its manager, property began with occupation, possession is reducible to de facto detention, the origin of contract goes back to the customs of barter. Disputes as to rights in primitive society are pre-eminently disputes as to the application of non-litigious customs to conclude, both the theories contain some element of truth but that is only partial and not the whole truth. Austin denies customs the force of law. He calls it a ‘positive morality’. But, according to Allen, Austin failed to explain satisfactorily why the body of rules which he classified as ‘positive morality’… lacked the true characteristic of law. This is true, especially when customs grow up by conduct and are derived from the common consciousness of the people. Therefore, it is a mistake to measure its validity solely by the elements of express sanction accorded by courts of law or by any other determinate authority. But it is also true that many customs do not appear to be based on general conviction of their rightness or necessity, or upon any real or voluntary consensusutentium. It also appears that the historical school has undermined the creative role of the judges in molding and shaping the customs. In India, especially, in order that a custom may have the force of law, it is necessary that it should satisfy all the essentials or requirements of a valid custom.

Essentials of a valid custom can, broadly, be classified into – Formative Essentials and Operative Essentials. Antiquity, Uniformity/Continuity, Certainty and Conscious acceptance as of right, etc. are the essential formative elements of a valid custom. Custom possessing these elements is prima facia valid though it may be unenforceable if it is unreasonable, opposed to morality, public policy, express enactments of legislature and for want of proof; all these are invalidating elements. Therefore, in order to be valid, a custom must be reasonable, should not be opposed to morality, public policy, express enactments of legislature and must be strictly proved. All these are operative elements. Hence, in order to be valid custom must possess all the formative as well as operative elements.

The word ancient denotes that the custom must be of some antiquity. The term ‘ancient’ is equivalent to the expression ‘from time immemorial’. According to Blackstone, “a custom, in order that it may be legal and binding, must have been used so long that the memory of man rennet not to the contrary.” Salmond also states that, custom, to have the force of law, must be immemorial. It must have existed for so long a time that, in the language of law, “the memory of man rennet not to the contrary”. In English law, the expression ‘time immemorial’ means ‘time so remote that no living man can remember it or give evidence concerning it. Custom was immemorial when its origin was so ancient that the beginning of it was beyond human memory, so that no testimony was available as to a time when it did not exist. ‘English law places an arbitrary limit to legal memory and fixes 1189 A.D. (accession of Richard – I) as enough to constitute the antiquity of a custom. But this was by no means the original interpretation. For instance, Professor Plucknett quotes Azo who said: ‘A custom can be called long if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years’. The rule that ‘a custom in order to be legal and binding must have been used for so long that the memory of man runneth not to the contrary’ is neither opposite nor useful when applied to Indian conditions. In India, there is no such fixed date or technical rule to determine antiquity of a custom. It will depend upon the circumstances of each case. The courts are; therefore, free to decide the question upon the facts of each case. The courts have time and again expressed an opinion that if a custom is established to be 100 years old it is sufficient antiquity to be called ancient. Derrett thinks that if it is 40 years old it is enough. Section 3(a) of the Hindu Marriage Act, 1955 lays down that custom to be valid must have been observed for a ‘long time’. What the law requires before an alleged custom can receive the recognition of the court and so acquire legal force, is satisfactory proof of usage so long and invariably acted upon in practice as to show that it has by common consent been submitted to as the established governing rule of the particular family, class, or district or country; and the course of practice upon which the custom rests must not be left in doubt, but proved with certainty. If a custom is found to have existed at a particular date within living memory, it must be taken to have the ordinary attribute of a custom that it is ancient, and may assume to have existed prior to that date. Sir Hari Singh Gour stated that, the custom must, in theory, at least, be of an origin as ancient as the law itself to which it constitutes an exception. This is true, especially; because, every custom is in some fundamental respect an exception from the ordinary law of the land. Sir Hari Singh Gour also maintains that, ‘Custom is an established practice at variance with the general law.’
2.6.2 CUSTOM MUST BE UNIFORM AND CONTINUOUSOne of the essential elements of a valid custom, as has already been discussed above, is that, it must be ancient. From the fact that the custom is ancient, it follows that it must be uniform (and not variable), definite and continuous, for these are the elements to establish its immemorial use. If there is discontinuance, such discontinuance destroys its stability. If a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never existed at all. Blackstone says that, interruption within legal memory defeats the custom ‘continua dico ita quod non fit legitime interrupta’. It is immaterial whether such discontinuance was accidental or intentional. In its effect it amounts to an abandonment of the custom. When it is said that the custom must be uniform what is implied is that, within its circle of authority, it must have been given effect to as often as there was occasion to have recourse to it. “A custom is not uniform”, says Sir Hari Singh Gour, “if it is intermittent and not continuous. But law distinguishes the interruption of a right from the interruption of its enjoyment. If there is interruption of right, no matter for how short a period the right is extinguished, and if the right is revived it may become the starting point of a new custom, but it ceases to be the continuance of the old custom, and if the new right arose within the time of legal memory so that its commencement is known, it ceases to be an ancient custom.” From the fact that the custom must be uniform it follows that it must be consistent. Custom must be consistent with each other. Two contradictory customs cannot exist in the same place with reference to the same people. Therefore, according to Blackstone,
“One custom cannot be set up in opposition to another. For if both are really customs then both are of equal antiquity, and both established by mutual consent, which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another’s garden, the other cannot claim a right by custom to stop up or obstruct those windows: for these are contradictory customs cannot both be good, nor both stand together.”2.6.3 CUSTOM MUST BE CERTAIN
In order to be valid, custom must be certain and definite. Willes C.J. in Broadbent v. Wilkes observed that, a custom must be certain ‘because, if it be not certain, it cannot beproved to have been time out of mind, for how can anything be said to have been time outof mind when it is not certain what it is?’ To the same effect Jessel M.R. observes:’When we are told that custom must be certain—that relates to the evidence of a custom.There is no such thing as law which is uncertain—the notion of law means a certain ruleof some kind.’ Custom must be certain in respect of (i) its nature; (ii) its locality; and (iii) the persons whom it is alleged to affect.Custom is observed ‘as of right’. Therefore, in the first place, the right asserted as acustomary right, must be clearly defined and definitely certain. For if the right isuncertain, the custom itself cannot be proved. Secondly, the custom must be certain asregards the locality where it is alleged to exist. Its local extents must be defined withreference to the geographical division of land, such as district, town, village, etc. Thirdly, custom must be certain in respect of the person or classes of persons to whom it is madeapplicable.

Openingnecessities, that is, Conviction on the part of the members of the community that a custom is legally binding and the source of enforceable rights and obligations is one of the most essential elements of a valid custom. It is this conviction which distinguishes a legal custom from social custom. Therefore, in order to be valid, custom must have been consciously accepted as having the force of law. It must have been observed as of right and must have been enjoyed peaceably. Allen states that, the public which is affected by the usage must regard it as obligatory, nor as merely facultative. According to Sir Hari Singh Gour, enjoyment of custom must be “as of right, and therefore, neither by violence, nor by stealth, nor by leave asked from time to time”. Dias puts it as, nec vi nec clamnec precario.For without this there is no evidence that it exerts obligatory pressure to conform. According to Bodenheimer, custom must be accompanied by the opinio juris or opinionnecessitatis before a court can carry it into effect as a rule of law. This requirement means that a custom cannot be recognized as a rule of law in the absence of a firm conviction on the part of the members of the community that the custom is legally binding and a source of enforceable rights and obligations. Custom which flow merely from feeling of sympathy or propriety or from habit are not capable of generating law.2.6.5 CUSTOM MUST BE REASONABLE
Malus usus abolendus est, that is, a custom must be reasonable is another essential lrequirement of a custom. The authority of usage is not absolute, but conditional on a certain measure of conformity with justice and public utility. This does not mean that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their judgment. According to Salmond, “Custom, in order to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of expectations and arrangements based on its presumed continuance and legal validity.” Reasonableness of a custom is an essential requirement of its validity. However, it cannot be said that custom is always founded on reasons. No amount of reason can make a custom. What is reasonable or unreasonable is a matter of social values. It may differ from time to time, from place to place. Therefore, whether a custom is reasonable or not is determined by the contemporary values of every society, though there are certain rules or practices which are considered unreasonable at all times and in all societies. The law courts will not enforce unreasonable customs, for law will not allow what is unreasonable or inequitable in spite of the fact that the people or a class of people in a locality has given their long acquiescence to a particular practice, if it finds that to allow it would do more harm than what might result by its disallowance. According to Allen, the unreasonableness of the custom must be proved and not its reasonableness. This is not a mere distinction without difference, for it seriously affects the onus of proof. If any party challenges a custom it must satisfy the court that the custom is unreasonable. The question of reasonableness is one of law and not of fact. The standard which the courts apply has been defined by a Divisional Court of the King’s Bench as ‘fair and proper, and such as reasonable, honest and fair-minded men would adopt’. Brett J. states the test more broadly: ‘Whether it is in accordance with fundamental principles of right and wrong.’ It has been held in Mahamaya v. Haridas that, ‘A custom is unreasonable if it is injurious to the multitude and prejudicial to the commonwealth.’ On the point of standard of reasonableness, Sir Edward Coke comments: “This is not to be understood of every unlearned man’s reason, but of artificial and legal reason warranted by authority of law.” To ascertain the reasonableness of a custom, it must be traced back to the time of its origin. The unreasonableness of a custom in modern circumstances will not affect its validity if the court is satisfied of a reasonable origin. A custom once reasonable and tolerable, if after it becomes grievous and not answerable to the reason whereupon it was grounded, yet it is to be taken away by Act of Parliament or any other appropriate statute. But where the court finds a custom in existence which, either by aberration or by a change in law since its origin, not merely differs from but directly conflicts with an essential legal principal, it has power in modern communities to put an end to the custom. In short, custom once indisputably proved is law, but the courts are empowered on sufficient reason to change the law which it embodies.

“It should not be opposed to Morality, Public Policy or an Express Enactment”
A custom to be valid must not be opposed to principles of morality or public policy and must not be expressly forbidden by an enactment of the legislature. A custom, to be valid, must not be immoral. The court cannot enforce immoral custom. There is, however, no fixed test or strait jacket formula to judge the morality of a custom. The question what customs are ‘immoral’ must be left to the conscience of the court. Morality is a necessary social convention as to which all agree up to a certain extent; but beyond it, it is a matter of opinion. A European would, for example, regard both polygamy and polyandry as highly immoral, but both these institutions are deep rooted in the Indian soil and though polyandry is now fast dying out, polygamy is a popular oriental custom. A Muslim, especially, may not think polygamy as immoral. But judging the validity of such customs, the courts generally adapts itself, as far as possible, to the standards of morality of the sect, tribe or caste to which the custom is sought to apply, remembering always that it has not only to pay due regard to the sentiments of the community but also to the general welfare of the society. A custom which is abhorrent to decency or morality however long practiced and recognized by a particular community can find no kind of enforcement by a court of law. A good many cases have arisen where the courts have refused to recognize and enforce certain customs on the ground that they are immoral. In Balusamy Reddiar v. Balkrishna Reddiar, marriage with the daughter’s daughter was held illegal as being abhorrent to morality though there was such a custom in the Reddiar community of Tirunelveli district. The custom by which the marriage ties could be dissolved by either husband or wife against the wish of the divorced party on payment of a sum of money was held immoral. A custom, otherwise good, may become void on the ground of public policy. Like morality, in public policy also no fixed test or strait jacket formula is available to judge whether the alleged custom is or is not opposed to public policy. Subba Rao J. in Gherulal v. Mahadeodas described the doctrine of public policy as: “untrustworthy guide”, “variable quality” and “unruly horse”. The general words ‘opposed to public policy’ may cover a very wide range of topics. With reference to the prevailing social values, customs having “tendency to injure public interest or public welfare” are opposed to public policy. In relation to custom, the term “public policy” in its broadest sense means that something which the court will, on “considerations of public interest”, refused to enforce it. In Fender v. St. John Mildmay (1938) AC 1, Lord Atkin observed: ‘The doctrine (of public policy) should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inference of a few judicial minds’. In Budansa v. Fatima Bi a custom which would enable a woman to marry again during the lifetime of her husband without any defined rules by the marriage with the first husband is dissolved before the second marriage is contracted was held to be contrary to public policy and morality. Similarly a custom of paying bride-price to the parents of a girl is held to be void. A custom must not be in conflict of with the statute law of the country. According to Coke, “No custom or prescription can take away the force of an Act of Parliament.” A statute can abrogate a custom and not vice versa. ‘Customs’, says Allen, ‘are localvariations of the general law. But they must not be more than variations. It is one thing for a custom to be a local variation of the general law, another for it to negate the very spirit of law.’ It is a well-established principle that though a custom has the effect of overriding the law which is purely personal, it cannot prevail against a statute law, unless it is thereby saved expressly or by necessary implication. Thus section 4 of the Hindu Marriage Act, 1955 lay down that, save as otherwise expressly provided in this Act, any custom or usage immediately before the commencement of the enactment shall cease to have effect with respect to any matter for which provision is made in this statute. Thus custom must yield where it conflicts with statute. Therefore, it has been held in PremNath v. Jasoda that, a custom compelling the second husband to pay compensation to the first husband’s family in respect of the expenses of the first marriage amounts to a restraint on a widow’s right to remarriage and cannot be enforced. Similarly, it has been held in Padala Latchmma v. Mutchi Appalaswami that, a custom prevailing in Golla community in Sirkakulam district of Andhra Pradesh, according to which a widow remarrying forfeits her claim to the jewellery and other gifts given to her at the time of marriage either by the husband or her relations is directly opposed to Section 5 of the Hindu Widows’ Re-marriage Act, 1956 and cannot be recognized as valid.

2.7 CLEAR PROOF OF EXISTENCE OF CUSTOMAnother essential requirement of a valid custom is that, it must be established by clear and unambiguous evidence; where it is in derogation of the general law it is construed strictly. Since custom claims a privilege out of the ordinary course of law, it must be strictly proved, strictiiuris. Custom goes back to the distant ages; they are set up with various motives for the furtherance of various interests, and the initial problem is always to decide whether the custom prayed in aid has a good foundation in fact.

Under the Indian law, custom is a question of fact and the burden of proof is on the party who relies on the custom. There is no presumption that a particular person or class of persons is governed by custom. A custom which is repeatedly brought to the notice of the courts may be held to be introduced into law without the necessity of proof in each particular case. Therefore, when a custom is recognized by the courts for a long time, it is not necessary to prove it each and every time as the court can take judicial note of the same. It has been held in Saraswati Ammal v. Jagadammbal that, a custom cannot be extended by analogy. It is not a matter of theory but of fact, and cannot be established by theoretical generalization, or by priori method. Custom is not a matter of theory but of fact. It is not always logical and cannot be deducted by inferences. In dealing with cases in which the question involved relates to the existence of a particular custom it is not permissible to court to extend custom by logical process. In the absence of authoritative statement of custom it can only be established by instances and not by a priori method. The courts should take cognizance of actual facts instead of being swayed by theories, even though they may be strictly logical, or considerations affecting the symmetry of the customary system. While enforcing custom or while considering the question whether a custom has been proved, the courts should not draw any analogy or guess what the custom is or should be; it should go by evidence and see what the custom really is and whether it has been proved. Custom must be proved by evidence and the courts are not permitted to deduce the existence of one custom from another. It is not the function of the judge to surmise what custom ought to be; its duty is to see whether, as alleged, custom has been established by evidence. Ratting’s Digest lay down that a custom may be proved by any one of the following modes—
(a) By opinions of persons likely to know of its existence, or having special means of knowledge thereon.

(b) By statements of persons who are dead, or whose attendance cannot be procured without reasonable delay or expense, provided they were made before any controversy as to such customs arose, and were made by persons who would have been likely to be aware of the existence of such custom, if existed.

(c) By any transaction by which the custom in question was claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence.

(d) By particular instances by which the custom was claimed, recognized or exercised, or in which its existence was disputed, asserted or departed from.

(e) By village oral traditions.

(f) Written memorials, such as the Wajib-ul-arz or the Rewaz-i-am.

(g) By judicial decisions.

(h) By authoritative manuals of customary law.

Opinion as a rule are inadmissible in evidence, as a witness is required to depose to facts of which he knows, and not merely of what he thinks. But to this rule there are certain exceptions wherein opinions are admissible in evidence. The existence of a custom can be proved by the opinion of a person likely to know of its existence, or having special means of knowledge thereon as provided under sections 48 and 49 of the Indian Evidence Act, 1872. The proof of custom should consist of those deliberate and well considered opinions of the people living under, and governed by the custom in question. The opinion must relate to “what custom is” and not to “what custom ought to be”. Section 48 lays down that when a court has to decide as to existence of any general custom or general right, the opinion of persons, who would have known the custom if it existed, is relevant. Section 49 deals with family customs or customs of any body of men. It is obvious from the provisions of the sections that only persons who are “likely to know” about the existence of a custom in question are competent to give opinion evidence. And it is for the court to appreciate their evidentiary value. Opinion is valueless without the grounds upon which it is based. This is true alike of an expert as of a layman witness. Both must disclose the data which the court is free to examine. The opinion must not be merely the repetition of a hearsay (ipse dixit) but a reasoned conclusion drawn from facts and conduct, tradition, observation, inquiry, research and study upon which a reasonable man forms his judgment. It is not absolutely necessary for the person giving his opinion, that he should have personal knowledge about the facts sought to be proved by him. However, such a witness should possess sufficient experience which would go to suggest that he is “likely to know” of the existence of the custom sought to have been proved by him. It is admissible evidence for a living witness to state his opinion on the existence of a family custom, and to state as the grounds of that opinion the information received from dead persons. But it must be the experience of independent opinion based on hearsay and mere repetition of hearsay. Mere ipse dixit is not admissible. In Chunni Lal v. JaiGopal, Bhinde, J., observed: “It is true that opinion of persons belonging to the same tribe on the question of custom are relevant…, but mere opinions unsupported by instances have to be taken with caution”. Hence, oral evidence must be supported by instances to prove the existence of a valid custom. One instance would not prove a custom. However it has been held in Hubraji v. Chandrabali that, specific instances need not be proved by the witness.

According to section 32(4) of the Indian Evidence Act, 1872, existence of customs can be proved by statements of persons who are dead, or whose attendance cannot be procured without reasonable delay or expense, if such statements were made before any controversy to such customs arose. It further provides that the said statements must have been made only by persons who would have been likely to be aware of the existence of such a custom if at all it existed. These statements must relate to the existence of any public right or custom or matter of public or general interest. Such statements are known as a declaration of public right. And the declarant must be disinterested at the time when he made the statement. If it is proved that the speaker had some interest to misrepresent, his declaration would be rejected. The reason why the statements of the deceased persons are admitted upon, the public right made ante litem motem (when there was no existing dispute respecting them) is that these declarations are considered as disinterested dispassionate and made without any intention to serve a particular cause or mislead the posterity.

Section 13(a) of the Indian Evidence Act, 1872 lays down that any transaction by which the rights or customs in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence is relevant to prove the existence of custom or right. Therefore, if in a transaction in which a custom was involved, such custom was taken notice of, claimed, modified, relied, asserted, demanded or its very existence or non-existence of such a custom may be proved by that transaction. In Channoo Mahto v. Jang Bahadur Singh, it has been observed that, “A transaction as its derivation denotes is something which has been concluded between persons by a cross or reciprocal actions as it were.” Therefore, a transaction is something already done and completed. Transaction as contemplated under section 13 is a genuine and bona fide transaction. Therefore, benami transaction which is not meant to be acted upon is fictitious transaction and in the eye of law is not a transaction at all. Section 13(a) speaks of transactions “by which” the right or custom is created, asserted, etc., and not those “in which” the right or custom is asserted, etc. The nature and scope of the transaction is thus the pertinent consideration. Section 13 is very wide, and includes judgments, decrees and orders in civil, criminal and revenue cases in which a custom was claimed, decreed, or disallowed and in fact any business or dealing in which the question of custom was gone into. Not only judicial or quasi-judicial records, but acts, conducts and proceedings of such bodies, as the caste panchayat, arbitrators and the like, would be admissible under theis section. It can broadly be said that, any document bearing on the custom may be proved in evidence.

The proof of custom by instances is, probably, the largest aspect of proof of custom. “The most cogent evidence of custom is not that which is afforded by the expression of opinion as to its existence, but the examination of instances in which the alleged custom has been acted upon, and by the proof afforded by judicial or revenue records or private records or receipts that the custom has been enforced.” Instances of custom can be of various types. They may be oral instances, instances recorded in documents or judgments in which instances were asserted and accepted or rejected. Section 13(b) of the Indian Evidence Act, 1872, deals with “instances”. It says, where the question is as to whether a certain right or custom exists, the particular instances in which the right or custom was claimed, recognized, exercised, or in which its existence was disputed, asserted or departed from may be proved. The term “instance” means an example; something which has once occurred. According to Batuk Lal, it must be borne in mind that the instances in which the right or custom was claimed, recognized, exercised, etc., must be instances prior to the suit in question, because this clause is in the past tense throughout. In customary law it is an adage that, ‘custom grows out of the instances and acquired the force and sanctity on their multiplication.’ These instances may be in some record or document or they may be in the memory of people. The non-contest of right or custom may raise a presumption that the custom was so well recognized that one thought of contesting it. The uncontested cases are a very good proof of an alleged custom, for greater the strength of custom, the less probability is there for anybody attempting to controvert it. According to Robertson J., “The very best evidence of a custom is that which shows that it has been followed consistently in a number of instances without dispute.” The evidence of instances is very important to prove a custom but its absence is not fatal to the proof of custom. The instances, though an important evidence of custom, are not absolutely essential to its establishment. It has been observed by Privy Council that, a court cannot disregard the large body of general evidence before it in proof of customs merely on the ground that specific instances had not been proved, certain customs may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy. However, when a custom is sought to be proved by general evidence, the general evidence should be such that there is practical unanimity on a point of custom in village after village and among a large number of witnesses. So far as instances are concerned, no hard and fast rule can be laid down as to how many instances are sufficient to make out a valid custom. There should, however, be such a multiplication or aggregation of instances as is sufficient to establish a tangible recognition of custom as obligatory.

Village oral traditions have been considered to be a good evidence of custom. The deliberate and well-considered opinion of the people living and governed by custom is a recognized mode of proof of custom. The question ‘whether a particular custom does or does not prevail in any particular tribe’ is a matter on which tribesmen themselves are in the best position to pronounce an opinion. Whenever questions as regards to tribal customs are to be determined, the parties try to secure the evidence of the members of that tribe and even people living in the neighborhood, as regards the existence or nonexistence of the custom. The people of a particular community are the best and the most trustworthy repositories of the traditions which go to constitute a particular custom prevailing in that community and their evidence, therefore, is of a great value. A rule of custom may be established and held two of binding force, even where no instance is forthcoming, if there is an overwhelming preponderance of oral testimony of those governed by it and likely to know of its existence in its favor or if it is fairly deducible from the analogy of other well-known principles of customary law. It has been held by their Lordship of the Privy Council in Ahmed Khan V. Channi Bibi that, custom can properly be proved by general evidence given by members of the family or tribe without proof of specific instances. In the present case, there was overwhelming oral testimony that in this locality amongst Jats unmarried sisters succeed for life or till their marriage to the land of their deceased brother which was not ancestral quo reversioners. It was the most important consideration that not less than fourteen lambardars had deposed to this custom. Thus, village oral traditions is an important evidence to establish the existence ofa custom.

Custom can be proved by entries in any public document made—
i. By a public servant in the discharge of his official duty, or
ii. By any other person in the performance of a duty especially enjoined on him by the law of the country in which the public document is kept. Section 35 of the Indian Evidence Act, 1872 speaks of relevancy of entries in public or official book made by a public servant. An entry to be admissible under this section—(1) must be contained in any public or official book, (2) must be made by a public servant, (3) in the discharge of his official duty or by a person in performance of duty specially enjoined by the law of the country, a must be stating relevant factor in issue. Thus, records of rights or customs prepared by public officers (settlement officers) are important pieces of evidence, e.g., Wajib-ul-arz, Riwaj-i-am, mutation entries, etc.

A decision in a case of custom is not a judgment in rem. It is only relevant under section 13 of the Indian Evidence Act, 1872 as judicial instance of the custom being recognized. A judgment in a question of custom is relevant not merely as an instance under section 13, but also under section 42 of the Indian Evidence Act, 1872 as evidence of the custom. Section 42 of the Act says that, judgments, orders or decrees (other than those mentioned in section 41) are relevant if they relate to the matters of public nature, but such judgments, orders or decrees are not conclusive proof of that which they state. It has been held in Ram Kishore v. Kabindra that, a judgment as to existence or non-existence of a custom is a good evidence to prove the existence or non-existence of that custom. Section 42 permits custom to be proved by a judgment, decree or order not inter partes, in which it was recognized. But mere production of judgment, however relevant, is not conclusive proof of custom. Judgments under section 42 are only a piece of evidence of custom. As regards its evidentiary value, much depends upon the nature of the enquiry, the evidence adduced and the decision given thereupon. A judgment given ex parte cannot command the same value as one given after contest, or one suffered on compromise resulting after a contest. All these judgments cannot be placed on the same footing. The general opinion seems to be in favour of the view that, a decision on custom only becomes relevant instances under section 13 of the Indian Evidence Act, 1872, that such a right has been asserted and recognized. It is always necessary to assert and prove what the custom is. However, to the general rule that all the customs have to be proved, section 57 of the Indian Evidence Act, 1872 provides an exception. When a custom is repeatedly ascertained and acted upon judicially, the production of such judicial decision is
sufficient to prove the custom. In Ujagar Singh v. Mst. Jeo, the Supreme Court observed that, when a custom has been recognized by the courts, it passes into the law of the land and the proof of it then becomes unnecessary under section 57(1) of the Evidence Act.

Authoritative manuals of customary law are sometimes considered as valuable evidence for proof of customary law. The courts freely admit into evidence published works of repute on the subject of custom. But, of course, such works must be those compiled to instruct and not merely to entertain readers.Works such as Sherring’s Law of Caste, Steele’s Law of Caste, Tupper’s Punjab Customary Law, Rattigan’s Digest on CustomaryLaw of Punjab, Sant Ram Dogra’s Code of Tribal Custom, Craik’s Customary Law of theAmritsar District, etc. fall into the former category and command serious attention. Such manuals or digests as evidence of proof of custom have to be used with caution. In JagatSingh V. Ishwar Singh, rejecting a statement of custom in Craik’s Customary Law being opposed to the statement of law in Rattigan’s Digest, Abdul Qudir J. observed: “on this particular point the manual (Craik’s Customary Law of the Amritsar District) states the proposition too broadly to be accepted as correct in as much as it is materially at variance with the view embodied in Article 48 of Rattigan’s Digest…”It has been held in JaiKumar v. Sher Singh that, although Rattigan’s Digest is of the highest authority on the question of customs of the Punjab, the judicial notice of the custom stated therein can be taken only if it has been well recognized by the decisions of the courts of law. In a series of cases the Supreme Court has held that whatever there is conflict between an entry as to custom in Riwaj-i-am and Rattigan’s Digest, the presumption is the entries in Riwaj-i-am are correct.

Chapter 3:
Gift is a transfer of property where interest is transferred fromone living person to another, without any consideration. It is agratuitous and intervivos in nature. This is the general defnition
That is accepted by all the religions, including Muslim law. As perthe Muslim Law, a gift is called as Hiba.Under English laws, right in property is classified by a division onthe basis of immoveable and moveable (real and personal)property. Rights in land described as “estate” under English Lawdo not always imply only absolute ownership but it also includesrights which fall short of it and are limited to the life of thegrantee or in respect of time and duration or use of the same.Under Hindu Law, gift is regarded as the renunciation of theproperty right by the owner in the favor of done. According toJimutvahana, under Hindu law’s concept of gift, ownership isnot created by acceptance but by renunciation of the donor. Buthowever Mitakshara school of hindu law considers acceptanceas an important ingredient for gift. The donor can divest hisinterest by renunciation but cannot impose the same on the done if he is not ready to accept.

Under Muslim Law, the concept of Gift developed much duringthe period of 610 AD to 650 AD. In general, Muslim law draws nodistinction between real and personal property, and there is noauthoritative work on Muslim law, which arms that Muslim lawrecognises the splitting up of ownership of land into estates.What Muslim law does recognize and insist upon, is thedistinction between the corpus of the property itself (called asAyn) and the usufruct in the property (as Mana). Over thecorpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time. Limited interests inrespect of property are not identical with the incidents ofestates under the English law. Under the Mohammedan law theyare only usufructuary interest (and not rights of ownership ofany kind). Thus, in English law a person having interest inimmoveable property for limited periods of time is said to be the”owner” of the property during those periods and the usufruct isalso regarded as a part of the corpus. On the other hand, inMuslim law, a person can be said to be an “owner” only if he hasfull and absolute ownership. If the use or enjoyment of propertyis granted to a person for life or other limited period such personcannot be said to be an “owner” during that period. The Englishlaw thus recognises ownership of the land limited in durationwhile Muslim law admits only ownership unlimited in durationbut recognises interests of limited duration in the use ofproperty. This basically differentiates Muslim Law’s concept ofproperty and gift from that of English Law.

Under Muslim Law, the religion of the person to whom gift ismade is not relevant. In India, there is a separate statute thatgoverns the matters related to transfer of property. The Transferof Property Act, 1882 under Chapter VII talks about gifts and theprocedure for making the same. Yet as per section 129 of theAct, the Transfer of Property Act, 1882 does not apply to theMuslims making gift.

The conception of the term ‘gift’ as used in the Transfer ofProperty Act, 1882 is somewhat different from the practiceunder the Muslim Law. Under the Muslim Law a gift is a transferof property or right by one person to another in accordance withthe provisions provided under Muslim law. Hiba (Tamlik al ain) ,is an immediate and unconditional transfer of the ownership ofsome property or of some right, without any consideration orwith some return (ewaz); and The term ‘hiba’ and ‘gift’ are oftenindiscriminately used but the term hiba is only one of the kindsof transactions which are covered by the general term ‘gift’. Theother types of gifts include Ariya (Tamlik al manafe), where onlyusufruct is transferred and Sadqah where the gift is made by themuslim with the object of acquiring religious merit.

A Man may lawfully make a gift of his property to anotherduring his lifetime; or he may give it away to someone after hisdeath by will. The rest is called a disposition inter vivos; thesecond, a testamentary disposition. Muhammadan law permitsboth kinds of transfers; but while a disposition inter vivos isunfettered as to quantum, a testamentary disposition is limitedto one-third of the net estate. Muhammadan law allows a manto give away the whole of his property during his lifetime, butonly one-third of it can be bequeathed by will.The Hana lawyers done hiba as ‘an act of bounty by which aright of property is conferred in something speci?c without anexchange’. The Shias hold that ‘a hiba is an obligation by whichproperty in a specific object is transferred immediately andunconditionally without any exchange and free from any pious
or religious purpose on the part of the donor’. Muslim law allowsa Muslim to give away his entire property by a gift inter vivos,even with the specific object of disinheriting his heirs.

Since muslim law views the law of Gift as a part of law ofcontract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza). In Smt Hussenabi v Husensab Hasan, agrandfather made an offer of gift to his grandchildren. He alsoaccepted the offer on behalf of minor grandchildren.However, no express of implied acceptance was made by amajor grandson. Karnataka HC held that since the threeelements of the gift were not present in the case of the majorgrandchild, the gift was not valid. It was valid in regards to theminor grandchildren.

Thus, the following are the essentials of a valid gift-
1. A declaration by the donor: There must be a clear andunambiguous intention of the donor to make a gift.Declaration is a statement which signifies the intention oftransferor that he intends to make a gift. A declaration canbe oral or written. The donor may declare the gift of anykind of property either orally or by written means. UnderMuslim law, writing and registrations are not necessary. Inthe famous case of Ilahi Samsuddin v. Jaitunbi Maqbul it was held that under Muslim Law, declaration as well asacceptance of gift may be oral whatever may be nature ofproperty gifted. When the gift is made in writing, it isknown as Hibanama. This gift deed need not be onstamp paper and also need not be attested or registered. In the famous case of Md. Hesabuddin v Md. Hesaruddin, where the gift was made by a MuslimWoman and was not written on a stamp paper, GuahatiHigh Court held that the gift was valid.

The declaration made by the donor should be clear. Adeclaration of Gift in ambiguous words is void. In Maimuna Bibi v. Rasool Mian, it was held that while oral gift is permissibleunder Muslim law, to constitute a valid gift it is necessary thatdonor should divest himself completely of all ownership anddominion over subject of gift. His intention should be in expressand clear words. According to Macnaghten, “A gift cannot beimplie. It must be express and unequivocal, and the intention ofdonor must be demonstrated by his entire relinquishment of thething given, and the gift is null and void when he continues toexercise any act of ownership over it.”The declaration should be free from all the impediments such asinducement, threat, coercion, duress or promise and should bemade with a bona de intention.

2. Acceptance by the done: A gift is void if the done hasnot given his acceptance. Legal guardian may accept on behalf of a minor.Done can be a person from anyreligious background.Hiba in favor of a minor or a femaleis also valid. Child in the mother’s womb is a competentdone provided it is born alive within 6 months from thedate of declaration. Juristic person are also capable ofbeing a donee and a gift can be made in their favor too. Onbehalf of a minor or an insane person, any guardian asmentioned under the provisions of Muslim law can accept
that gift. These include:
Father’s Executor
Paternal Grand-Father
Paternal Grand Father’s Executor.

3. Delivery of possession by the donor and taking of thepossession by the done. In Muslim law the termpossession means only such possession as the nature ofthe subject is capable of. Thus, the real test of the deliveryof possession is to see who – whether the donor or thedonee – reaps the benefits of the property. If the donor isreaping the benefit then the delivery is not done and thegift is invalid.The mode of delivery of possession depends completely uponthe nature of property. A delivery of possession may either be:
1. Actual
2. Constructive
1. Actual Delivery of Possession: Where the property isphysically handed over to the donee, the delivery ofpossession is actual. Generally, only tangible propertiescan be delivered to the done. A tangible property may bemovable or immovable. Under Muslim law, where themutation proceedings have started but the physicalpossession cannot be given and the donor dies, the giftfails for the want of delivery of possession. However,in such cases if it is proved that although, the mutationwas not complete and the done has already taken thepossession of the property, the gift was held to bevalid.

2. Constructive Delivery of Possession: Constructive deliveryof possession is sufficient to constitute a valid gift in thefollowing two situations:
Where the Property is intangible, i.e. it cannot be perceivedthrough senses.

Where the property is tangible, but its actual or physicaldelivery is not possible.

Under Muslim law, Registration is neither necessary, norsufficient to validate the gifts of immovable property. A hiba ofmovable or immovable property is valid whether it is oral or in writing; whether it is attested or registered or not, provided thatthe delivery of possession has taken place according to therules of Muslim Law. Constitutional Validity of Hiba. The question of whether the first exemption was constitutionallyvalid in regards to the right to equality (article 14 of the IndianConstitution) was rather rapidly solved by the Courts, validatingthe disposition on the grounds of ‘reasonable classification.It is enough to say that it is now well settled by a series ofdecisions of this Court that while Article 14 forbids classlegislation, it does not forbid reasonable classification for thepurposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled,
(1) That the classification must be founded on an intelligibledifferentia which distinguishes persons or things that aregrouped together from others left out of the group; and,
(2) That differentia must have a rational relation to the objectsought to be achieved by the statute in question.The classification may be founded on different bases such as,geographical, or according to objects or occupations and thelike. The decisions of this Court further establish that there is apresumption in favor of the constitutionality of an enactmentand the burden is upon him who attacks it to show that therehas been a clear transgression of the constitutional guarantee;that it must be presumed that the legislature understands andcorrectly appreciates the needs of its own people and that itslaws are directed to problems made manifest by experience andthat its discriminations are based on adequate grounds; andfurther that the legislature is free to recognise degrees of harmand may restrict to those cases where the needis deemed to be the clearest.

It is well known that there are fundamental differences betweenthe religion and customs of the Mahomedans and those ofothers, and, therefore the rules of Mahomedan law regarding gift are based on reasonable classification and the provision ofSection 129 of the Transfer of Property Act exemptingMahomedans from certain provisions of that Act is not hit byArticle 14 of the Constitution.

The most essential element of Hiba is the declaration, “I havegiven”. As per Hedaya, Hiba is de?ned technically as:
“Unconditional transfer of existing property made immediatelyand without any exchange or consideration, by one person toanother and accepted by or on behalf of the latter”. According to Fyzee, Hiba is the immediate and unqualifiedtransfer of the corpus of the property without any return.

Now the question which we have in mind is what can be subjectmatter of Hiba, under Muslim law. As per the provisions ofTransfer of Property Act, 1882, the subject matter of the giftmust be certain existing movable or immovable property. It maybe land, goods, or actionable claims. It must be transferableunder s 6. But it cannot be future property. A gift of a right ofmanagement is valid; but a gift of future revenue of a village isinvalid. These cases were decided under Hindu andMohammedan law respectively but they illustrate the principle.In a Calcutta case, it was said that the release of a debt is not agift, as a gift must be of tangible property. It is submitted thatthe release of a debt is not a gift as it does not involve a transferof property but is merely a renunciation of a right of action. It isquite clear that an actionable claim such as a policy ofinsurance may be the subject of a gift It is submitted that in adeed of gift the meaning of the word ‘money’ should not berestricted by any hard and fast rule but should be interpreted having regard to the context properly construed in the light of allthe relevant facts. Therefore, in order to constitute a valid gift,there must be an existing property. In Mohammedan law any property or right which has some legal value may be the subjectof a gift.

Under the Muslim law, following constitute the subject matter of Hiba:
1. It must be anything (moveable or immovable, corporeal orincorporeal) over which the right of property may beexercised or anything which exists either as a specificentity or an enforceable right, or anything designable underthe term mal (property).

2. It must be in existence at the time when the gift is made.Thus, gift of anything that is to be made in future is void.

For example, a donor makes a gift the fruits of his mangogarden that may be produced this year. This gift is invalidsince the mangoes were not in existence at the time ofmaking the gift.

3. The donor must possess the gift.

4. A gift of a part of a thing which is capable of division is notvalid unless the said part is divided off and separated fromthe property of the donor; but a gift of an indivisible thing
is valid.
For example, A, who owns a house, makes a gift toB of the house and of the right to use a staircase used byhim jointly with the owner of an adjoining house. The giftof A’s undivided share in the use of the staircase is notcapable of division; therefore it is valid.

5. According to Hana law, the gift of an undivided share inany property capable of division is, with certainexceptions, incomplete and irregular (fasid), although itcan be rendered valid by subsequent separation anddelivery of possession. For instance, A makes a gift of herundivided share in certain lands to B, and the share is notdivided off at the time of the gift but is subsequentlyseparated and possession thereof is delivered to B, the giftalthough irregular (fasid) in its inception, is deemed validby subsequent delivery of possession.

Exceptions: Gift of such undivided share is valid which isincapable of division:
a) Hiba by one co-heir to the other; For instance, A muslimwoman died leaving a mother, a son, and a daughter. Themother made a gift of her unrealized one-sixth share jointly to
the deceased’s son and daughter. The gift was upheld by PrivyCouncil.

b) Hiba of a share in free hold property in a largecommercial town; For instance, A wons a house in Dhaka. He makes a gift of one third of his house to B. The Property beingsituated in a large commercial town, the gift is valid.

c) Hiba of a share in a zimindari or taluka; According toAmeer Ali the doctrain of Musha was applicable only to smallplots of land, and not to specific shares in large landedproperties, like zamindaris. Thus, if A and B are co-sharers in azamindari, each having a well –demand share in the rents ofundevided land, and A makes a gift of his share to B, there beingno regular partition of the zamindari, the gift is valid.

d) Hiba of a share in a land company Muslim law recognizes the difference between the corpus andthe usufructs of a property. Corpus, or Ayn, means the absoluteright of ownership of the property which is heritable and isunlimited in point of time, while, usufructs, or Mana, means theright to use and enjoy the property. It is limited and is notheritable. The gift of the corpus of a thing is called Hiba and thegift of only the usufructs of a property is called Ariya.In Nawazish Ali Khan vs Ali Raza Khan, it was held that giftof usufructs is valid in Muslim law and that the gift of corpus issubject to any such limitations imposed due to usufructs being
gifted to someone else. It further held that gift of life interest isvalid and it doesn’t automatically enlarge into gift of corpus.This ruling is applicable to both Shia and Sunni.

Hence a critical scrutiny of concept of Gift under Muslim law,gives us the following instances regarding what can be subjectmatter of Hiba:
1. Anything over which right of property may be exercised.

2. Anything which may be reduced to possession.

3. Anything which exists either as a specific entity or as anenforceable right.

4. Anything which comes within the meaning of the wordmal.

In Rahim Bux vs Mohd. Hasen, it was held that gift ofservices is not valid because it does not exist at the time ofmaking the gift.

There are several variations of Hiba. These include:
1. Hiba bil Iwaz
2. Hiba ba Shart ul Iwaz
3. Sadkah
4. Ariyat
‘Hiba’ means ‘gift’ and ‘Iwaz’ means ‘consideration’. Hiba BilIwaz means gift for consideration already received. It is thus atransaction made up of two mutual or reciprocal gifts between
two persons. One gift from donor to donee and one from done to donor. The gift and return gift are independent transactions.

Threrfore, when both i.e., hiba (gift) and iwaz (retarn orconsideration) is completed, the transaction is called hiba-biliwaz.For example, A make a gift of a cow to S and later Bmakes a gift of a house to A. If B says that the house was givento him by A by way of return of exchange, than both areirrevocable.

So a Hiba Bil Iwaz is a gift for consideration and in reality it is asale. Thus, registration of the gift is necessary and the deliveryof possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz:
1. Actual payment of consideration on the part of the done is necessary. In Khajoorunissa vs Raushan Begam, itwas held that adequacy of the consideration is not the
question. As long is the consideration is bonafide, it isvalid no matter even if it is insuficient.

2. A bonafide intention on the part of the donor to divesthimself of the property is essential.

Gift in lieu of dower debt – In Gulam Abbas vs Razia, thehon’ble High Court at Allahabad held that an oral transfer ofimmovable property worth more than 100/- cannot be validlymade by a muslim husband to his wife by way of gift in lieu ofdower debt which is also more than 100/-. It is neither Hiba nor
Hiba bil Iwaz. It is a sale and must be done through a registered

‘Shart’ means ‘stipulation’ and ‘Hiba ba Shart ul Iwaz’ means a’gift made with a stipulation for return’. Unlike in Hiba bil Iwaz,the payment of consideration is postponed. Since the paymentof consideration is not immediate the delivery of possession isessential. The transaction becomes final immediately upondelivery. When the consideration is paid, it assumes thecharacter of a sale and is subject to preemption (Shufa). As insale, either party can return the subject of the sale in case of adefect.

It has the following requisites –
Delivery of possession is necessary.

It is revocable until the Iwaz is paid.

It becomes irrevocable after the payment of Iwaz.

Transaction when completed by payment of Iwaz,assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar inthe sense that they are both gifts for a return and the gifts mustbe made in compliance with all the rules relating to simple gifts.

Although there is a tradition which indicates that the Prophetwas against the revocation of gifts, it is a well established ruleof Muslim law that all voluntary transactions, including gifts, are revocable. The Muslim law-givers have approached the subject of revocability of gift from several angles.From one aspect, they hold that all gifts except those which aremade by one spouse to another, or to a person related to thedonor within the degrees or prohibited relationship, are revocable.

The Hedaya gives the reasons thus “The object of a gift toa stranger is a return for it is custom to send presents to aperson of high rank that he may protect the donor; to a personof inferior rank that the donor may obtain his services; and toperson of equal rank that the donor may obtain an equivalentand such being the case it follows that the donor has the powerof annulment, so long as the object of the deed is not answered,since a gift is capable of annulment”.

The texts of Muslim law lay down a long list of gifts which areirrevocable. The contents of the list differ from school to school,and the Shias and the Sunnis have the usual differences. The
Muslim law-givers also classify gifts from the point of view ofrevocability under the following two heads:
Revocation of gifts before the delivery of possession
Revocation of gifts after the delivery of possession.

Revocation of gifts before the delivery of possession.

Under Muslim law, all gifts are revocable before the delivery ofpossession is given to the donee. Thus, P makes a gift of hismotor-car to Q by a gift deed. No delivery of possession has been made to Q. P revokes the gift.The revocation is valid. In this case, it will not make anydifference that the gift is made to a spouse, or to a personrelated to the donor within the degrees of prohibitedrelationship. The fact of the matter is that under Muslim law nogift is complete till the delivery of possession is made, andtherefore, in all those cases where possession has not beentransferred the gift is incomplete, and whether or not it isrevoked, it will not be valid till the delivery of possession is madeto the donee.

The revocation of such a gift, therefore, merely means that thedonor has changed his mind and does not want to complete itby the delivery of possession. For the revocation of such gifts,
no order of the court is necessary. Fyzee rightly says that this isa case of inchoate gift and it is not proper to apply the termrevocation to such a gift.

Revocation after the delivery of possession:
Mere declaration of revocation by the donor, or institution of asuit, or any other action, is not sufficient to revoke a gift. Till adecree of the court is passed revoking the gift, the donee is
entitled to use the property in any manner; he can also alienateit.

It seems that:all gifts after the delivery of possession can be revokedwith the consent of the donee,revocation can be made only by a decree of the court.

The revocation of a gift is a personal right of the donor, and,therefore, a gift cannot be revoked by his heirs after his death. Agift can also not be revoked after the death of the donee.

According to the Hana School with the exception of thefollowing cases, a gift can be revoked even after the death of thedonee.

According to the Hana School, with the exception of thefollowing cases, a gift can be revoked even after the delivery ofpossession. The exceptions to the same are:
When a gift is made by one spouse to another.

When the donor and the donee are related within theprohibited degrees.
When the donee or the donor is dead.

When the subject-matter of the gift is no longer in thepossession of the donee, i.e., when he had disposed it offby sale, gift or otherwise or, where he had consumed it, orwhere it had been lost or destroyed.

When the value of the subject-matter has increased.

When the identity of the subject-matter of the gift has beencompletely lost, just as wheat, the subject-matter of gift, isconverted into our.

When the donor has received something in return (iwaz).

When the object of gift is to receive religious or spiritualbenefit or merit, such as sadaqa.

The Shia law of revocation of gifts differs from the Sunni law inthe following respects: First, gift can be revoked by a meredeclaration on the part of the donor without any proceedings in
a court of law; secondly, a gift made to a spouse is revocable;and thirdly, a gift to a relation, whether within the prohibiteddegrees or not, is revocable.

The conception of the term gift and subject matter of gift hasbeen an age old and traditional issue which has developed into adistinct facet in property law . Different aspects related to gift inproperty act and its distinction with the Mohammedan law andits implications has been the major subject matter of this article.In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and must not be confused with thetechnical term of Islamic law, hiba. The concept of ‘hiba’ and theterm ‘gift’ as used in the transfer of property act, are different.As we have seen in the project that Under Mohammedan law, tobe a valid gift, three essentials are required to exist:

Section 122 of the Transfer of Property Act provides that a „gift? is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. In general, Islamic law draws no distinction between real and personal property, what Islamic law does recognize and insist upon, is the distinction between the corpus of the property itself and the usufruct in the property. Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a „gift? of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Muslim law they are only usufructuary interest (and not rights of ownership of any kind). There is no difference between the several schools of Islamic law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools. There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Hiba bil mushaa, Sadkah, and Ariya.
As in India uniform civil code is not applied so which law will govern the gifts of property. We have transfer of property Act, Indian Succession Act, Registration Act, Indian Majority Act, and Guardianship Act, Civil procedure code. There are personal laws of variouscommunities. So in the moment of conflict of law s Hiba which law will prevail?
The paper is divided into V Parts, Part I deals with the capacity to give and receive the gifts, Part II deals with different kinds of gifts, Part III deals with the transfer of possession, part IV deals with requirement of writing and registration, part V deals with contingent and conditional gifts. The paper compares Hiba under Islamic law and transfer of Property Law of India and concludes that Islamic law is more futuristic and easily applicable have less procedural requirements. While transfer of property law requires lot of procedures and poses difficulties in providing gifts.
The conception of the term “„gift?” as used In the Transfer of Property Act is somewhatdifferent from the practice under the Muslim Law. Under the Muslim Law a “gift? is a transfer of „property? or „right? by one person to another in accordance with the provisions provided under Muslim law are of two types Hiba and Aria. Hiba ( Tamlik al ain) , is an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and Aria ( Tamlik al manafe) the grant of some limited interest in respect of the use or „usufruct? of some property or right. Where a „gift? of any „property? or „right? is made without consideration with the object of acquiring religious merit, it is called sadaqah. The terms “hiba” and “„gift?” are often indiscriminately used but the term „hiba? is only one of the kinds of transactions which are covered by the general term “„gift?”. A „gift? by a Muslim man in favour of his co-religionist must be under the Muslim Law. Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafe, means the right to use and enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.
„Gift? as defined under Sec. 122 of the Transfer of Property Act is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those „gifts that are „gifts inter vivos or an absolute „gift?. Property under the above section can be both movable and immovable but however have to be tangible in nature. In order to constitute a valid „gift?, there must be an existing property as already earlier elaborated.

4A.2 Kinds of Gift
There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah, and Ariyat.Hiba Bil Iwaz .

Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for consideration already received. It is thus a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to donor. The gift and return gift are independent transactions which together make up.
In India, it was introduced as a device for affecting a gift of Mushaa in a property capable of division. So a Hiba Bil Iwaz is a gift for consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz – Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam 1876, held that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it is insufficient. A bona fide intention on the part of the donor to divest himself of the property is essential. Gift in lieu of dower debt – In Gulam Abbas vs Razia AIR 1951, All HC held that an oral transfer of immovable property worth more than 100/- cannot be validly made by a muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It is neither Hiba nor Hiba bil Iwaz. It is a sale and must done through a registered instrument.
Shart means stipulation and Hiba ba Shart ul Iwaz means a gift made with a stipulation for return. Unlike in Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the character of a sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect. It has the following requisites: delivery of possession is necessary; it is revocable until the Iwaz is paid; it becomes irrevocable after the payment of Iwaz; transaction when completed by payment of Iwaz, assumes the character of a sale. In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the gifts must be made in compliance with all the rules relating to simple gifts.
4A.2.3 Mushaa (Hiba bil mushaa)
Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and Ithna Asharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is invalid unless it is separated and delivered to the done.

Since Muslim law views the law of Gift as a part of law of contract without consideration, there must be an offer (ijab), an acceptance (qabul), and transfer (qabza).
The following are the essentials of a valid gift: A declaration by the donor – There must be a clear and unambiguous intention of the donor to make a gift. Acceptance by the donee – A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor. Delivery of possession by the donor and taking of the possession by the donee . In Muslim law the term possession means only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to see who – whether the donor or the donee – reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid. Another characteristic of Muslim law is that writing is not essential to the validity of a „gift? either of movable or immovable property.
In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, a grandfather made an offer of gift to his grandchildren. He also accepted the offer on behalf of minor grandchildren. However, no express or implied acceptance was made by a major grandson. Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid. It was valid in regards to the minor grandchildren.
The following are the conditions which must be satisfied for a valid gift.
Parties – There must be two parties to a gift transaction – the donor and the donee.
Donor’s powers are unrestricted in Muslim law-A man may lawfully make a „gift? of his property to another during his lifetime, or he may give it away to someone after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Muslim law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. While giving a hiba a muslim donor must fulfill the following conditions. The donor must have attained the age of majority – Governed by Indian Majority Act 1875; must be of sound mind and have understanding of the transaction; must be free of any fraudulent or coercive advice as well as undue influence; must have ownership over the property to be transfered by way of gift. A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee. Gift by a person in insolvent circumstances is also valid provided that it is bona fide and not merely intended to defraud the creditors.

General rule is that a donor?s right to gift is unrestricted. In Ranee Khajoorunissa v. Mst Roushan Jahan 1876, it was recognized by the Privy Council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following ways – He cannot gift more than one third of his property and he cannot gift it to any of his heirs.
Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also make a lawful gift to a non-muslim; donee must be in existence at the time of giving the gift; in case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void; gift to an unborn person is void unless the birth of the child took place within 6 months of the gift. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs. The donee is the person who accepts the „gift?, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the „gift? is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the „gift?.
A „gift? to two or more persons may be a „gift? to them as jointly. The presumption of English law in favour of joint tenancy does not apply to a Hindu „gift?, and in a Hindu „gift? the donees are presumed to take as tenants in common It is necessary in Muslim law that the donee should accept a Hiba and possession must be delivered to donee. As Hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. A Hiba and Aria in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.

Acceptance may be made expressly or impliedly by conduct, but acceptance would be unnecessary in a case where the „gift? is made by a guardian to his ward. Muslim law does not dispense with the necessity for acceptance of the „gift? even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a „gift? in favour of minor.’ A minor who has attained discretion ( sareer) may accept the „gift? even after it has been rejected. He may also refuse to accept the „gift?. The words ‘accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A „gift? can be made to a child en ventre se mere and could be accepted on its behalf.
There was a divergence of view between the two schools of Hindu law as to the necessity of acceptance of the „gift? by the donee, Dayabhaga holding that it was not necessary but Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the property in him subject to his right to repudiate the „gift?, even though he is unaware of the transfer and this is so even though the „gift?is onerous. The donee must be an ascertainable person so a „gift? cannot be made to an unregistered society.
Even when a „gift? is made by a registered instrument, the same has to be accepted by or on behalf of the donee to make it complete, failing which the „gift? will be bad, because it so provides in sec. 122. What the law requires is acceptance of the „gift? after its execution, though the deed may not be registered. Anterior negotiations or talks about the „gift? would not amount to acceptance. Person accepting „gift? on behalf of the minors appended his thumb-impression on the deed in token of acceptance. It was held that the „gift? was complete. Acceptance must be essentially made before the death of the donor. There must be something shown to indicate an acceptance. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Acceptance may be implied, but the rule of implied acceptance ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is shown. Acceptance will be presumed if there is possession, actual or on the parties where some right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the Transfer of Property Act 1882 to show that the acceptance under this section should be express. The acceptance may be inferred, and it may be proved by the donee’s possession of the property, or even by the donee’s possession of the deed of „gift.
A„ gift? of immovable property as per Transfer of Property Act 1882 can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a „gift? of immovable property is invalid without a registered instrument.

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 what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case. The donor should divest himself completely of all ownership and dominion over the subject of the „gift?. The delivery may be constructive or actual. Under the Muslim law it is not necessary that there must be actual delivery of possession to make a „gift? valid. When a „gift? is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that his consent was free and no undue influence or pressure was exercised.
4A.3.5 EXISTENCE OF PROPERTY NECESSARY ALSO IN CASE OF HIBA A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a „gift? of usufruct (Aria) produce (Manafe) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manafe may thus be transferred by the donor during his lifetime by „gift? or by bequest and be the subject of „gift? even though they are not in existence at the time of the „gift?.
Any oral „gift? of immovable property cannot be made in view of the provisions of sec. 123 of the Transfer of Property Act 1882. Mere delivery of possession without a written instrument cannot confer any right. But under the Islamic law, an oral „gift? is permissible. However, in order to constitute a valid „gift?, the donor should divest himself completely of all ownership and dominion over the subject of „gift?. It is also essential for the donee not only to prove that the donor had made an oral „gift? in his favour, but it is also essential for him to prove that he accepted the said „gift? and delivery of possession of the „gifted property had also been made
A „gift? is a transfer. But it does not contain any element of consideration. Complete absence of monetary consideration is the main, hallmark, which distinguishes a „gift? from a grant, sale, exchange, or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a „gift?, the transaction ceases to be a „gift?. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a „gift?. The word ‘consideration’ has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a „gift? inter vivos must be without ‘consideration’ of the nature defined in sec. 2(d) of the Contract Act. A „gift? in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a„gift?. Where a mother „gift?s property to her only daughter, who promises to maintain the former throughout her life, the promise is not enforceable in law because the „gift? has to be for natural love and affection and not for any consideration. A minor may be a donee and the minor’s natural guardian can accept the „gift? on behalf of the minor. But if the „gift? is onerous, the obligations cannot be enforced against the minor during his minority. But on his attaining majority, the minor must accept the burden or return the „gift?. The donee can even be a child in its mother’s womb.
4A.5 ORAL ‘GIFT’ OF AN IMMOVEABLE PROPERTY In view of sec. 123 of Transfer of Property Act, a „gift? of immovable property, which is not registered, is bad in law and cannot pass any title to the done . Any oral „gift? of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any title
Under the Islamic law, an oral „gift? is permissible. However, in order to constitute a valid „gift?, the donor should divest himself completely of all ownership and dominion over the subject of „gift?. It is also essential for the donee not only to prove that the donor had made an oral „gift? in his favour, but it is also essential for him to prove that he accepted the said „gift? and delivery of possession of the „gifted property had also been effected.
Although the Hindu law requires delivery of possession to complete a „gift? of immovable property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession.
Since delivery of possession is not necessary, it follows that if a Hindu executes a „gift? in favour of three villages by means of a duly registered instrument but reserves possession of the villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he would not alienate the property to anybody else, the „gift? is perfectly valid.

The intended property to be given in gift must be designable under the term mal; it must be in existence as the time when the gift is made. The subject matter of the „gift? must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable. A „gift? of a right of management is valid; The general principle is that the subject of a gift can be anything over which dominion or right of property may be exercised; anything which may be reduced to possession; anything which exists either as a specific entity or as an enforceable right; but a „gift? of future revenue of a village is invalid. Thus, gift of anything that is to be made in future is void; the donor must possess the gift. In Nawazish Ali Khan v. Ali Raza Khan AIR 1984, it was held that gift of usufructs is valid in Muslim law and that the gift of corpus is subject to any such limitations imposed due to usufructs being gifted to someone else. It further held that gift of life interest is valid and it doesn’t automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.
In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the gift. Gift of an indivisible property can be made to more than one persons.
Under the Muslim law, the essentials of a „gift? are: declaration of „gift? by the donor, an acceptance of the „gift? by the donee, and delivery of possession such as is the subject of the „gift? susceptible of. This rule of Muslim law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a „gift? of immovable property.
Possession means not always actual physical possession but possession which the property is capable of being given. So far as declaration is concerned, it must be shown that the donor either in the “presence of witnesses or otherwise made a public statement that he „gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering possession to the donee. A Muslim can make oral „gift? of his immovable property subject to these conditions.
Delivery of possession being essential to the validity of a „gift?, it follows that if there is no delivery of possession, there is no valid „gift?. Under the Muslim law, a valid „gift? can be affected by delivery of possession, and if there is delivery of possession, the mere fact that there is also an unregistered deed of „gift? does not make the „gift? invalid.
The transfer of property Act deals only with „gift?s of tangible properly; and so a release of a security without consideration does not fall under this section; because, though the release of the security may be said to be a „gift?, still the „gift? is not one of tangible property. When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register, though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the „gift? of such title to get on the register is complete when a deed of „gift? duly attested and registered, together with the shares and blank transfer form signed by the donor, is handed over to the donee.
The subject-matter of the „gift? must be certain existing movable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of „gift? of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of „gift? in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, „gift?s might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid „gift? if sums or funds are not available.4A.7 EXCEPTIONS IN DELIVERY OF POSSESSION
The following are the cases where deliver of possession by the donor to the donee is not required:
Gift by a father to his minor or linatic son. In Mohd Hesabuddin v. Mohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land; When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from the house is not required; Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide intention of making the gift; Gift by one co-sharer to other. Bona fide intention to gift is required; Part delivery – Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred; Zamindari villages – Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is impossible. Such gift may be completed by mutation of names and transfer of rents and incomes. The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee; Where the donee is in possession – Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.
4A.8.1. Revocation under T.P Act: Section 126 of the Transfer of Property provides that under the following conditions a gift may be revoked: That the donor and donee must have agreed that the „gift? shall be suspended or revoked on the happening of a specified event; such event must be one which does not depend upon the donor’s will; the donor and donee must have agreed to the condition at the time of accepting the „gift?; and the condition should not be illegal, or immoral and should not be repugnant to the estate created under the „gift?. Section 126 is controlled by sec. 10. As such, a clause in the „gift? deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A „gift?, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a „gift? deed can be cancelled only by resorting to legal remedy in a competent court of law.
A Muslim on the other hand can revoke a „gift? even after delivery of possession except in the following cases: When the „gift? is made by a husband to his wife or by a wife to her husband ; when the donee is related to the donor within the prohibited degrees; when the „gift? is Sadaka (i.e. made to a charity or for any religious purpose); when the donee is dead; when the thing given has passed out of the donee’s possession by sale, „gift? or otherwise; or the thing given is lost or destroyed; when the thing given has increased in value, whatever be the cause of the increase; when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and when the donor has received something in exchange for the „gift? Except in those cases, a „gift? may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.
Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee.
When the donor is dead; when the donee is dead; hewn the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable; when donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable; when the subject of the gift has been transfered by the donee through a sale or gift; when the subject of the gift is lost or destroyed, or so changed as to lose its identity; when the subject of the gift has increased in value and the increment is inseparable; when the gift is a sadqa; when anything as been accepted in return.
The following gifts are void: Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such interest opens out; Gifts in future – A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future is void; Contingent gift – A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.

A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void and B takes full rights of the house.
Before the passing of the Insurance Act 1938 it was quite doubtful regarding the validity of gift of life insurance by a Muslim. Now the Se. 38 of the insurance Act made it clear that assignment and nomination of insurance policy by a Muslim to his wife or vice versa or to any other person is valid. The same law is also upheld by various courts in different cases. 4A.11. CONCLUSION
The conception of the term „gift? and subject matter of „gift? has been an age old and traditional issue which has developed into a distinct facet in property law. Different aspects related to „gift? in property act and its distinction with the Muslim law and its implications has been the major subject matter of this article. In considering the law of „gift?s, it is to be remembered that the English word ‘„gift?’ is generic and must not be confused with the technical term of Islamic law, Hiba. The concept of Hiba and the term “„gift? as used in the transfer of property act, are different. Hiba under Muslim law is very easy to take into effect while gift under Transfer of Property Law in India is a long procedural matter.

Islam Emerged in Arabian Peninsula in the seventh Century A.D in the historic Arab City of Makah now situated in Saudi Arabia. In Arabic, Islam means ‘Surrender to God’, and a Muslim is one who submits completely to the will of God. Islam today has become the second largest religious community in the world, next only to Christianity. The vast majority of the people in north and sub-Saharan Africa and west and Southeast Asia are Muslims. A vast number of Muslims also inhabit Central and South Asia. Although this great geographical diffusion means a significant racial and cultural heterogeneity among the Muslims, all of them are bound by a common religion and sense of belonging to a single spiritual fraternity, a universal community united by fear of God. The absence of reliable historical sources and factual information aside from Islamic traditional sources and stories, make ascertaining the truth about the pre- Islamic way of life and culture almost impossible to substantiate.

4B.2 Women and Pre-Islamic Arabia
The Pre-Islamic era, known as the age of Jahiliya, meaning the age of barbarism, darkness and ignorance of God’s guidance. As Islam has its roots and beginning in the tribal society of the Arab, it is necessary to find out the position of women in Arabia, the birth place of Islam. Arabia before the advent of Islam was a Society where there were no rules, except that the strong dominated the weak. It seems reasonable to expect that a natural byproduct of such society would be the oppression of women. Women in the Arab world as in other areas of the world have throughout history experienced discrimination and have been subjected to restrictions on their freedom and rights.

In Pre-Islamic Arabia, women’s status varied widely according to laws and cultural norms of the tribes in which they lived. Women enjoyed no rights whatsoever and were treated no better than a commodity. Not only were they enslaved but they could also be inherited as a possession. One cannot fairly asses women’s position inpre-Islamic where woman’s sole purpose was to serve the man. One of the most important roles of the women within the household was to give birth to children and to produce male offspring.

Woman was a marketable commodity and regarded as a piece of inanimate property. Pre-Islamic Arab women endured a hellish existence. If a girl survived to adulthood, she would find herself essentially the property of her father ; then The history of women, no doubt was the history of subjugation and oppression. She was underestimated and condemned as a low and mean creature and was regarded as the root cause of all evils and disasters. She was bought and sold like animals. She did not enjoy any absolute or independent position in the society and was made subservient to men. Before Islam, Arabia was clearly a patriarchal society her husband with no economic ; social independence or rights. Moreover, pre-Islamic poetry treats women primarily as sexual objects, there is also a certain freedom and wildness about the portrayal that hints at a biggerpicture.
The birth of a daughter in a family was not an occasion for rejoicing, but was regarded with humiliation. The birth of a daughter was usually looked down upon by the Arabs, as a calamity and disgrace to the family. As a result of this, the custom of female infanticide was widely prevalent. Even when a girl was allowed to live, she was forced to marry at an early age of 7 or 8 years. The Arabs used to bury alive their daughters, it was not a new thing nor was it limited to one group of tribes.

The Qur’an refers to this custom and strongly condemns it in verse 81:9. The Qur’an says “And when the buried alive will ask for what sin she waskilled”
Muhammad Assad, noted modern commentator of Qur’an, says that burying alive seems to have been fairly widespread in pre-Islamic Arabia, though perhaps not to the extent as has been commonly assumed. The motives were two fold, the fear that an increase in female offspring would create an economic burden, as well as the fear of humiliation caused on account of girls being captured by a hostile tribe and they subsequently preferring their captors to their parents and brothers.
Marrying women for the most part had the purpose of increasing the number of the tribe member and in turn, its power. Marriage was a flexible, loose institution with no strict uniform rules. Based on the literary sources as well as the forbidden marriages mentioned in the Qur’an and Sunna, it is likely that the following forms of marriages existed in pre-Islamic Arabia at one time oranother:
Marriage by agreement: Consisted of an agreement between a man and his future wife’s family. This marriage could be within the tribe or between families of different tribes. Women in inter-tribal marriage received more freedom and retained the right to dismiss or divorce their husband at any time. The woman had precise rituals they used to inform their husband of their dismissal, such as this ‘if they lived in a tent they turned it around so that if the door faced east, now faced west and the man saw this, he knew that he was dismissed and did notenter.

Marriage by Capture: It was a common pre-Islamic marriage practice most often during times of war. Marriage by capture occurred when women were taken captive by men from other tribes.

Marriage by Purchase: This was a more traditional marriage practice. These marriages consisted of a woman’s family paying a man ‘Mahr’ or a dowry to marry their daughter. Women in these marriages were subject of their husbands control and had very little rights or freedom of theirown.

Marriage by Inheritance: It was a widespread custom throughout Arabia,. This practice involved the possession of a deceased man’s wife being passed down to his son. In such a case the son had several different options but the woman had little or no rights and was subjected to follow the orders of herinheritor.

(V) Temporary Marriage: The “Mutah” or temporary marriage took place between a man and woman with mutual consent, without any involvement of the women’s family. The marriage wasa contract between the two people involved and allowed for much more freedom for the women than the other types of marriages practiced during this time.

There were no written laws among tribes and only oral traditions or time honored customs were followed and these laws were violated by individuals who were wealthy and powerful. Laws such as those permitting the inheritance of and cohabitation with the father’s widows by the eldest son existed. Also, a man could marry as many women as he liked without any restriction, a woman could also be given away in marriage by her father or uncle or grandfather and the bride price would be pocketed by the male relative. Child marriage was quite common and such marriages could not be revoked later. It became binding when the child became an adult. It was a point of honor not to give away a woman to an unequal match. “If you cannot find an equal match, the best marriage for them is thegrave”.

Polygamy was also commonly practiced, not just by the Arabs but Jews and Christians as well. It is reported that a man could have as many as 100 wives. Wife lending was a practice in which husbands allowed their wives to live with the other man. A man could also have as many concubines as he could afford.

Of all the different forms of marriage and cohabitation practiced in pre- Islamic Arabia, only marriage by agreement slightly resembles the forms of marriage permitted under Islam. But what sets the Islamic marriage apart from the pre-Islamic practices is that Islam acknowledged woman as a human entity with rights of her own. Marriage, therefore, became a contract between a woman and the man she had chosen to marry and the dowry became a gift to her, rather than to her father.4B.5 DIVORCEAs marriage was often an arrangement between the husband and the woman’s father, so was divorce. To cancel the marriage and get his daughter back the father had to return the dowry or purchase price. The woman had no right to divorce, whereas the husband could divorce her any time he liked.
4B.6 INHERITANCEWomen were usually excluded from inheriting family properties. If a woman did have the right of inheritance, it was usually among the tribes where there were still traces of an ancient matriarchal culture which dictated that the women remain with her tribe after marriage.

In places such as Medina, where marriage by purchase was the rule, women faced much worse. She could not inherit because she herself was part of her husband’s estate to be inherited.

In most tribes of pre-Islamic Arabia, it has been shown that women were deprived of their basic rights, such as the right to choose a husband, to divorce and to inherit from their family. What dictated the statusof women, therefore, were the tribal customs and traditions. In the absence of a formal government, it was the tribe that served as the highest legal / political authority. Such was the condition of Arab, when Islam emerged in the seventh Century A.D. and brought about revolutionary changes not only in their age old customs and habits but in their outlooktoo.4B.7 EMERGENCE OF ISLAMIt is not correct to say that Hazrat Mohammed (SAW)) was the founder of Islam and that Islam is a new religion. In fact, Islam, according to Qur’an and the Prophet is the oldest religion and Adam was the first prophet. One lakh twenty four thousand prophets and messengers of God including Noah, David, Moses, Abraham and Jesus propagated Islam and God bestowed perfections to it through Prophet Mohammad (SAW) who is the last prophet and messenger of God. Islam itself is not projected in Qur’an as a new doctrine but as a continuation of the old religion which achieved perfection in the days of the holyProphet.

Today Islam is the 2nd largest religion of the world. Modern demographic sources put it as the predominant faith of Asia and Africa, having a large following also in Europe and North America. According to reliable sources, in as many as fifty nation-states scattered over the continents of Asia, Africa and Europe, followers of Islam are in a majority in most of these their population being 75% and above. In South Asia four of the eight SAARC Nations – Afghanistan, Bangladesh, Maldives and Pakistan – are predominantly Muslim. Including these, twenty four other Countries on the globe constitutionally proclaim Islam to be their state religion.

Muslim Law claims its origin from Divinity. Thus, the primary source of Muslim Law is Divine revelation which has been of two kinds – express and implied. The Qur’an is composed of such express revelations as were made in the very words of God to Mohammed, the prophet and messenger of God. It is divided into 114 Chapters and Composed of about 6237 Ayats
Just as Qur’an is the express revelation through Mohammed, the Ahadis and Sunna are implied revelations in the precepts, sayings and actions of the Prophet, not written down in his lifetime but preserved by traditions and handed down by authorized agents. Sunna means what the prophet did, while Ahadis means what he said. As regards the form and style of Qur’an, Shri Kashi Prasad Saksena writes in his introduction to ‘Muslim Law and itsOrigin”:
“The Holy Qur’an contains the very words of God as were communicated to the prophet. It is divided into sura or chapters each having a separate heading and is composed of verses. Most of them deal with rules of law, the principles for establishment of peace and order and questions that actually came up for decision. Some to repeal objectionable customs such as infanticide, gambling, usury and unlimited polygamy others for effecting social reforms such as raising the status of women, settling the question of inheritance and succession on equitable ground, and safeguarding the interest of minors and disabled persons. As far as the Holy Qur’an is concerned, it promulgated the doctrine of human equality, including sexual equality, in a comprehensive verse which negates all inequalities due to sex, race, color, nationality, caste ortribe.” Says the Qur’an:
“O people! Be careful of (your duty to) Your Lord, who created you from a single
being and created its mate of the same (Kind) and spread from these too many men
and women”.

This is a declaration in plain terms that, in essential human dignity and fundamental rights all human beings of whatever sex or race or nationality stand on a footing of equality, because they all ultimately spring from a single source.

The advent of Islam brought profound changes to the Arabian society in general and to women in particular. Islam reversed or abolished the repressive and cruel practices committed against women such as female infanticide. Wherever women’s rights were taken away or ignored, Islam restored them, and where women enjoyed any degree of freedom, Islam reinforced and enhanced it. Islamic teachings emphasized the fact that the general principles of equality, freedom, independence and rights of women are not to be confined to or defined by social and cultural norms, but that they are ordained by God. The primary goal of divine law (Sharia) is to institute justice in the land & to eliminate injustice and protects the human rights of all membersof society, regardless of their gender, race orreligion.

The Islamic movement was truly a revolutionary movement in regards to women’s rights. It elevated the status of women to one of equal to that of man and secured their legitimate rights that women for centuries were deprived off, not just in Arabia, but all over the globe. The rights of women established in Qur’an, although progressive in their essence and content, were limited in their scope and implementation in order to suit the human society which received the divine message at thetime.

It is important to note that Islam is the first religion in the world which recognized women as a legal entity and gave her all the rights that man enjoyed. Islam provides women the right to enter into a marital contract on her own conditions. What is most revolutionary is that she can insist on what is known as Talaq-i-tafwid, i-(e) a delegated right to divorce. According to this provision in the marriage contract, she can insists on the delegated right to divorce her husband on her own behalf if he violates any of the conditions of the marriage. It would be seen that even the most modern laws have no such provision for the benefit of women.

In the Islamic Social System, women get certain special right such as:
The right to have a name and individual identity of her own. She does not get a status merely on her marriage or birth in a particularfamily.

The right to marry a person of her own choice and refuse imposedmarriage.

The right to receive inheritance from parents and relatives and maintenance from thehusband.

The right to acquire, sell or purchase property in her ownname.

The right to seek divorce(Khula).

The right to look after parents even aftermarriage.

The Holy Quran has at more than one place made it plain that in regard to moral and spiritual development, men and women stand on a level of perfect equality. There are no limits to the moral progress of a woman as that of a man. For example the Holy Quransays:
“Men shall have the benefit of what they achieve and acquire and women shall have the benefit of which they similarly achieve and acquire”.

“Whoever works righteousness, man or woman, and has faith, verily to him I will give a new life that is good and pure, and I will bestow on such their reward according to their actions”.

Islam & Social Status of Women
The status of women in Islam and its various aspect;
economical and
1. The Spiritual AspectThe Quran provides clear evidence that woman is completely equated with man in the sight of God in terms of her right and responsibilities. Few examples of Qur’an injunctions for the rights of women are as follows, The Qur’an States:
“Every soul will be (held) in pledge for its deeds”
In terms of religious obligations, such as the daily Prayers, Fasting, Pilgrimage, Poor-due woman is no different from man. In some cases indeed, woman has certain advantages over man. For example, the woman is exempted from the daily prayers and from fastingduring menstruations, pregnancy and when she is nursing her baby and if there is any threat to her health or baby’s health. She is also exempted from fasting during her pregnancy and forty day’s after childbirth. This is clearly a tender touch of the Islamic teachings, as far as women are concerned. If the missed fasting is obligatory (as during the month of Ramzan), she can make up for the missed days whenever she can. 2.The Social Aspect:As Child and as an adolescent
Despite the social acceptance of female infanticide among some Arabian tribes, the Qur’an forbid this custom and considered it a crime like any othermurder.

“And when the female (infant) buried alive is questioned for what crime she was killed.”
Criticizing the attitudes of such parents who reject their female children, the Qur’an states:
“When news is brought to one of them, of (the Birth of) a female (Child), his face darkens and he is filled with inward grief, with shame does he hide himself from his people because of the bad news he has had! Shall he retain her on (sufferance) or Contempt of bury her in the dust? Ah! What an evil (choice) they decide on?”
Far from saving the girl’s life so that she may later suffer injustice and inequality, Islam commands kind and just treatment for her. Among the sayings of Prophet Mohammad (Peace and blessings be upon him) in this regard are the following:
“Whosoever has a daughter and he does not bury her alive, does not insult her, and does not favor his son over her, God will enter him into Paradise”.

As a wife
The Qur’an clearly indicates that marriage is sharing between the two halves of the society, and that its objectives, besides perpetuating human life, are emotional well being and spiritual harmony.

Among the most impressive verses in the Qur’an about marriage is the following:
“That he created mates for you from yourselves that you may find rest, peace of mind in them, and he ordained between you love and mercy. So, herein indeed are signs for people, who reflect”

According to Islamic law, woman cannot be forced to marry anyone without their consent. Woman has the full right to her Mahr, a marriage gift which is presented to her by her husband; Islam emphasizes the importance of taking counsel and mutual agreement in family decisions. When the continuation of the marriage relationship is impossible for any reason, men are taught to seek a gracious end for it. As a mother
Islam considered kindness to parents next only to the lordship of God. A famous saying of the Prophet is “Paradise is under the feet of a mother.”
The EconomicAspectIslam decreed a right of which women was deprived both before Islam and after it (even as late as this century), the right of independent ownership. According to Islamic Law, women’s right to her money, real estate, or other properties is fully acknowledged. The right undergoes no change whether she is single ormarried.

With regard to the women’s right to seek employment it should be stated first that Islam regards her role in society as a mother and a wife as the most sacred and essential one. Neither maids nor baby sitters can possibly take the mothers place as the educator of an upright complex free and carefully reared children. Such a noble and vital role, which largely shapes the future of nations, cannot be regarded as idleness.

In addition, Islam restored to women the right of inheritance; her share in most cases is one half the man’sshare.

The PoliticalAspect
Both in the Qur’an and in Islamic history we find examples of women who participated in serious discussion and argued even with the prophet himself
Although there is some limitation, some decisions require a maximum of rationality and minimum of emotionality – a requirement which does not coincides with the instinctive nature of woman. The history of Muslims is rich with women of great achievements in all walks of life from as early as the seventh Century. There have been many highly respected female leaders in Muslim history, such as Shajar-al-Dur (13th Century) in Egypt, Oneen Orpha (d. 1090) in Yemen and Razia Sultan (13th Century) in Delhi. In the modern era there have also been examples of female leadership in Muslim countries, such as in Bangladesh, Pakistan and Turkey. Arab women are under-represented in Parliament in Arab States, although they are giving more representation as states liberalize their political system. The History of Muslim is rich with women of great achievements in all walks of life, the reputation; chastity and maternal role of Muslim women was object of admiration by impartial observers.

Some of the most important and fundamental reforms of customary laws were made by the Qur’an in order to improve the status of women and strengthen the family in Muslim Society. Three main areas of Qur’anic reforms were marriage, divorce and inheritance. In the realm of marriage, for example, the Qur’an commands that only the wife and not her father or other male relations should receive the dower (Mahr) from her husband and give the women (on marriage) their dower as a free gift. Thus, the woman becomes a legal partner to the marriage contract rather than an object of a transaction.

In the divine schemes of regulation of the relationship between men and women, Islam has assigned a position of dignity and honor to woman. Such beneficial regulation is essential for peace, comfort, happiness, continuation of the species and progress. It gives individuality, an independence of thought and opinion and formally acknowledged their natural rights, despite that it never induced her to revolt and mutiny against, or be cynical towards the male sex. The foundations of family life were not wrecked. Daughters respect their father’s and wife’s respect for their husband was not done awaywith.

Islamic law is a manifestation of God’s will. The primary sources, accepted universally by all Muslim, are the Qur’an and Sunna. Islamic law, irrespective of the variety of its ‘sources’ emanates from God and aims at discovering and formulating his will. It seems necessaryto examine the term law and its definition.

According to Austin, “Law is a command which obliges a person or persons to a course of conduct. It is a command from the political superior to a political inferior and its sole object is to regulate the conduct of the individual which is the unit of a community. The conditions of different societies and the stages through which they have passed are not exactly similar, the system of law which they have severally evolved is more or less dissimilar to one another yet the unity of the constitution and the universality of human reasons concurs in producing an essential similarity in the different systems of law”. According to a Muslim jurist, Sir Abdur Raheim – “Law (Hukm) is that which is established by a communication (Kitab) from God with reference to Man’s acts, expressive either of demand or indifference on his parts, or being merelydeclaratory.”
From the above definitions, it becomes obvious that there are basic differences between the Islamic Law and the other Laws. The fundamental difference is that in Islam, the only law giver is God while in other systems of law; the law makers are political superiors, who formulate laws for political inferiors. The second difference is that Muslim law is similar for all believers throughout the world, for all societies and for all times to come while other laws are dissimilar and different for different societies and for different religions. The third and the most important difference is that Islamic law cannot be amended, repealed and altered since it is divine law while all other laws can be repealed amended and altered. The forth difference is that all other laws are enforced by the authority of the government while the Islamic law postulates “Iman”, belief or faith. It is applicable to those who are believers and have belief in God and acknowledge his authority over theiractions.

It is quite evident from the above definition that, In Islam, God is the only law giver and a Muslim surrenders himself to God’s law. God is the Supreme Being of perfect knowledge and wisdom and of infinite power.

The second postulate is the belief that Hazrat Mohammed (SAW) is the messenger of God and his mission is to reveal God’s word (Kalam) i.e. Qur’an. It was revealed in fragmentary parts extending over a period of twenty two years in order to meet the needs of the Islamic society in Mecca and later in Medina. It gradually provided an Islamic ideology for the community and, in the process, modified or supplemented existing customs not meeting Islamic standards. The following are the classical sources of Muslim law.

According to Muslims, Qur’an is a holy book. It was revealed to Prophet by Allah through angel Gabriel. Qur’an is having only those manifestations which were made in the very words of Allah. As regard the form and style of Qur’an Shri Kashi Prasad Saksena write in his introduction to “Muslim Law and its origin.”
“The Holy Qur’an contains the very words of God as were communicated to the Prophet. It is divided into Sura or chapters each having a separate heading and is composed of verses. Most of them deal with rules of law, the principles for establishing peace and order and questions that actually came up for decision, some is repeal objectionable customs such as infanticide, gambling, Usury and unlimited Polygamy other for effecting Social reforms, such as raising the status of women, settling the question of inheritance and succession on equitable ground, and safeguarding the interest of minors and disabledpersons.”
The Qur’an is Al-Furqan i.e. it separates right from wrong and truth from falsehood. Mr. M. Hidayatulla writes in his introduction to Mulla’s Principles of Mohammedan Law:
“The Qur’an contains about 6000 verses but not more than 200 verses deal with legal principles and if we leave out of account those which concern the State as such, there are about 80 verses, more or less, which deal with the law of personal status. Most of them are concerned with inheritance, marriage, and divorce and such like matters. The Qur’an does not even set them out as a Code in one place. They are found in the portions of the Qur’an revealed to the prophet at Medina. The portion which was revealed at Mecca is singularly free of legal matters and contains the philosophy of life and religion,particularly Islam. The legal verses embody broad principles but do not explain or expound them”.

Qur’an deals with each and every aspect of human life, individual as wellascollective. Hence, Islam is thus the name of a total way of life and does not merely regulate the individual’s private relationship with God. Prophet Mohammed (SAW), who propagated Islam, waged wars, made peace and created social institutions, never claimed that he was a law giver, a ruler but referred to himself as a messenger of God, His Prophet.

It is therefore, evident that the primary and basic source of Islamic law is Qur’an or God’s law. As has been written earlier that a verysmall portion of Qur’an relates to law and it is different from a code in regard to its content as well as in regard to its form but it is the first source of law in point of time no less than in point ofimportance.

ii. SunnahThe Sunnah is the next important source and is commonly defined as “the traditions and customs of Mohammad” or “the words, actions and silent assertions of him”. It includes the everyday saying and utterances of Mohammad, his acts, his tactic, consent, and acknowledgments of statements and activities. According to Shi’te jurists, the Sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah (Mohammad’s daughter).

Mr. Mohammad Hidayatulla, former Chief Justice of India and former Vice President of India, writes about Sunnah or Traditions, “The word ‘Sunnah’ means “the trodden path” and as this meaning shows it devotes some kind of practice and precedent. At first this word was applied to custom and to the practice of the early schools of law but later and finally it means the practice and precedents of the prophet. The principles which were stated in the Koran found their application in the hands of the prophet. This gave birth to Hadis (practice-ph-Ahadis) of the prophet. As a source of law Hadis is as binding as the principles ofQur’an.”
‘Sunnah’ essentially means exemplary conduct of some person. In the Islamic jurisprudence, it refers to the model behavior of the Prophet (SAW). The Islamic concept of the Sunnah, originates with the advent of the Prophet (SAW). Since the Qur’an enjoins upon the Muslims to follow the conduct of the Prophet (SAW) which is distinguished as exemplary and great, it became ‘ideal’ for the Muslim community. It is the Sunnah that gives the concrete shape to the Qur’anic teachings. The Qur’an, for instance, mentions Salah and Zakat but does not lay down their details. It is the Prophet (SAW) who explained them to his followers in a practical form. The divine book made obedience to the Prophet (SAW) obligatory, hence the Sunnah, i.e. the model behavior of the Prophet (SAW), be it in the form of precept or example, and become ultimately a source oflaw.

Technically, Sunnah is divided into three categories;
Al-Sunnah-al-qawliyah, the Prophets Statements andsayings
Al-Sunnah-al-faliyah, his deeds:and
Al-sunnah-al taqriyah, his silent or tacit approval of certain deeds which he had knowledgeof
Sunnah is the mirror of Prophet’s life. Hadis is the index and vehicle of the Sunnah. According to al-Shafi, the Sunnah coming direct from the Prophet (SAW) in the form of Hadis through a reliable chain of narrators is a source of law, irrespective of whether it was accepted by the people or not, and even if it was an isolated tradition.

QiyasQiyas, the third source of law is a restricted form of Ijtihad (personal reasoning and interpretation); it is reasoning by analogy. It is in fact, a systematic and developed form of considered opinion. The plain meaning of Qiyas is the opinion of one individual only. In order to apply Qiyas to similar cases, the reason or cause of the Islamic rule must be clear. For example, the Qur’an clearly explains the reason that consumption of alcohol is prohibited (because it makes the user lose control of his actions), therefore same analogy can be drawn to drugs which induce the same affect. But because The Qur’an does not specifically state the reason why pork is prohibited, Muslims cannot justify banning another meat product with a similar cholesterol level, etc.

IjmaIjma, is another source of Islamic Law though its position is secondary as compared to the Qur’an and the Sunnah. It may be defined as the rule governing the Shariah which result from the consensus of Muslim jurists on a particular question of Law within the limits warranted by the Qur’an and theSunnah.

Both Qiyas and Ijma involve the application of human reasoning and interpretation of the Qur’an and the Sunnah. They were founded to meet the needs of the developing Islamic society and they both have played an important role in the development of the Islamic society.

4B.12 DIFFERENT SCHOOLS OF MUSLIM LAWThe first broad division of Muslims into two sets- The Shias and the Sunnis, took place after the death of the Prophet, over the issue of succession.

The Sunni Law has four recognized Schools knows after the names of their founders. These are:
Hanafi School: Hanafi School founded by Abu Hanifa (699-767) and this is the most famous school. The school is also known as ‘Kufa School’. The home of this school isIraq.

Maliki School: Maliki school founded by Malik-Ibn-Anas (713-795) A.D. who was an inhabitant of Medina. His principal work ‘Al-Muwalla’ is a collection of traditions, and ranks as the oldest work on Sunnite law.20 He was a believer in public welfare.

The Shafei School: The Shafei School founded by Mohammad-IbnIdis- ash-Shafei (767-820A.D) He perfected the doctrine of Ijmaa and made it a source ofLaw.

Hanbali School: Hanbali School founded by Ahmad-Ibn-Hanbal (780 – 855 A.D) He perfected the doctrine of Usul (infra). His great work is known as (Musnad us-Imam Hanbal)
The Shia School of law
It became evident from the above extract that the Qur’anic law is composed of do’s and don’ts; the violation of both is sinful in varying degrees. Unlike the laws framed by legislators or sovereigns, Mohammedan law is based wholly on morality and ethics and those who violate are guilty before the bar of their own conscience as well. While most of the law is negative in nature, Islamic law is both positive and negative, not only commission of an illegal act is an offence but deliberate omission or non commission of an act, which is enjoined upon to be done, is also an offence. For example no law of any country enjoins upon its citizens to speak the truth or treat women with kindness and due respect but Islamic law enjoins upon the believers to do so and non-compliance is an offence and a sin. No worldly law can ensure kind and generous treatment of wives hence there is no such law in existence but Islamic law enjoins upon its believers to treat the wives with kindness and benevolence. According to Encyclopedia Britannica, The Qur’an deals with the general behavior of human beings and as quoted below “It must finally be pointed out that when we speak of Islamic law, we mean all of human behavior, including for example intentions. This law is therefore very different from other systems of law in the strict sense of the term-Islamic law does not draw any line between law and morality, and hence much of it is not enforceable in a court, but only at the bar of conscience. This has had its advantages in that Islamic law is shaped with moral considerations, which in turn have given moral temper to Muslim society. But it has also suffered from the disadvantages that general moral preposition have very often not been given due weight and have been selectively construed by jurists as mere recommendations rather than commands that must be expressed in terms of concrete legislation. The result has been on over emphasis on the specific do’s and don’ts of the Qur’an at the expense of general prepositions.

It therefore, becomes evident that in some sections of the law, much of the teeth and bite which favored the female sex was gradually taken away by different jurists of Muslim Law.

In the contemporary Middle East the Sunni Muslims have been following one or another of the four sunni schools; referred to above
The Maliki School is dominant in North Africa and Hanbali School in Saudi Arabia and Qatar. In the rest of the world, the Shafei School is dominant in Southeast Asia, the Hanafis are in a majority in the west and south Asia and also in the westernCountries.

Among the Shia Muslims of the world the Ithna Ashari Jafari School is dominant everywhere and is the legally proclaimed state religion in Iran. The Zaidi Shia School has a large following in North Yemen and followers of the Ismaili School are scattered in East Africa and South Asia.

All these schools of Muslim law, both Sunni and Shia, have had for centuries together their own theological and legal codes and their respective followers have been religiously following them in all their aspects.

Islam in India
Muslims are the second largest religious community of India, next to the Hindus. Muslims constitute an overwhelming majority in the state of Jammu and Kashmir and the Union Territory of Lakshadweep. The majority of Muslims in India are Sunni, while the Shias are a small minority everywhere in the country. Lucknow, Rampur and Hyderabad have large population of Ithna Ashari Jafari Shias. Ismaili shias are concentrated in western and central India; the Ismailis constitute followers of both the Nizare and Mustali sub school – the former are locally known as the Khojas and later as the Bohras. 4B.13 MUSLIM PERSONAL LAW IN INDIA
Before the British rule in India the local rulers, both Hindu and Muslim wherever
they ruled, had adopted a system of community specific religion based system of law
to be applied in the matters of religious rites, personal status, family relations and
succession – in the Muslim ruled areas Hindus were governed by Hindu law and vice
versa. The British rulers of India inherited this system and retained it. The
Community specific laws applied under this system eventually came to be known as
“Personal Laws”.

Soon came in force the Muslim Personal Law (Shari’at) Application Act of 1937, making it necessary for the courts in India to apply to the Muslims, The Muslim Personal Law (any country custom not withstanding) in respect of the followingsubjects;25
Intestate succession and property rights ofwomen.

Marriage and dissolution of marriage (including Talaq and all forms of divorce recognized by the Muslim Law)
Maintenance, dower and guardianship and Gift, Trust and Waqfs.

Having enacted by the then Central Legislature under the provisions of the then constitution (namely, the Government of India Act, 1935) thus accorded fullest legal protection to the Muslim Personal Laws. No controversy on the status or application of that law arose until the advent ofIndependence.

In aftermath of independence, accompanied by the partition of the country, drew the attention of the Muslims from the need to secure proper legal and constitutional protection of their personal laws. Since 1950, whenever a new law was enacted and it was feared that it could have an adverse effect on the Muslim Personal Law Board, Government’s attention was drawn to it by the Muslim leadership and, generally, the Government did the needful to keep the Muslim Personal Law unaffected. So, in the Dowry Prohibition Act of 1961, a saving clause for the Muslim law of dower was included.

The Muslim Personal Law in India is not a uniform body of legal rules. By tradition two broad versions of non-statutory Muslim law have been and remain in force in the country, generally described as ‘Sunni Law’ and ‘Shia Law’. These are in fact the laws of the Sunni Hanafi and the Shia Ithna Ashari Jafari Schools of MuslimLaw.

Though largely un-codified in its substantive aspect, in respect of legality and judicial enforceability Muslim law stands apart with codified community specific laws applicable to other religious groups. The un- codified Muslim Law of Marriag e and Divorce has thus the same status and recognition as the Christian Marriage Act 1872 or the Hindu Marriage Act 1955.

Rights and Privileges of Women in Muslim Law:
In the midst of the darkness that engulfed the world, the divine revelation echoed in the wide desert of Arabia with a fresh, noble, and universal message tohumanity.

“O Mankind, keep your duty to your lord who created you from a single soul and from it created its mate (of same kind) and from their twain has spread a multitude of men and women …. “(Quran 4:1)
Islam is the first religion in the world which recognized woman as legal entity and gave her all the rights that man enjoyed. Islam brought about liberation of women from bondage and gave her equal rights and recognized her individuality as a human being. Islam improved the status of women by instituting rights of property ownership, inheritance, education, marriage (as a contract) anddivorce.

The Qur’an provides clear evidence that women are completely equated with man in the sight of God in terms of her rights and responsibilities.

“So their Lord accepted their prayers, (sayings); I will not suffer to be lost the work of any of you whether male or female. You precede one from another.” (Quran3:195)
Islam honors women as daughters and encourage raising them well and educating them. Islam states that raising daughters will bring a great reward. For example the Prophet said:
“Whoever takes care of two girls until they reach adulthood, he and I will come like this on the day of resurrection,” and he held his fingers together.

Islam gave an elevated position to women and sanctioned many rights against the customs that prevailed in the Pre-Islamic Arabia. The Prophet altered many prevailing customs of the ancient times and sanctioned better life for women.
Sanctions were commanded favoring women in the social customs of marriage, divorce and maintenance. The Quran acknowledges two greatfacts:
Equality of men and women in creationand
The Complete freedom for both men and women in maintaining their economic assets and earnings. The former fact, presupposes a metaphysical moral equality of the sense and latter opens the door for the larger sphere of activity for women. All other aspects of life are based on this basic concept of theQuran.

The right of women established in the Quran although progressive in their essence and content, were limited in their scope and implementation in order to suit the human society which received the divine message at that time. As we are in 21st century and taking into account the enormous socio economic changes that have taken place since the time of the prophet, women’s rights must be extended to the best of what they can mean in our modern time. Based on the Qur’anic teaching of what is fair (al adl) and what is generous and perfect (al- ahsan) we must go beyond the literal or interpretative limitations and examine the Qur’anic underlying principles which promote the equality of men and women, including morally, spiritually, intellectually, socially and politically. These are the general principle that should serve as our guiding light in defining women’sright.


The laws show scant regard to the intention of the parties. If given a choice, the parties prefer to be governed by law relating to lease as contained in the Transfer of Property Act, 1882.

The laws in India need to be revised to protect the owner and his property from the tenant. Special areas of focus should be on terminating old tenancies, removing constraints on increase of rentals and empowering owners in the sense of being able to reclaim their properties without any court proceedings.
The market forces should be allowed to determine the rental amounts and the owner must have full protection for his/her property. This will go a long way in providing security to the landlord and also reduce the deposit amount required with the lease agreements.
If these laws are enacted and strictly enforced, there is every chance that more investors will want to enter the real estate market to utilize the rental fees as income. This is especially true for the 251 commercial sector. The tax laws also need to be revised so that renting of properties becomes a financially viable option. Amendments in the Rent Acts of several states are a progressive move.
Critical analysis of rent control is divided into three parts – economic, social and legal.
Economic Analysis:
Fixation of fair rent (Worked out on the basis of the value of land and cost of construction when built, as per the provisions of the Rent Control Act) as a percentage of the cost of construction is a major disincentive for those wanting to invest in rental housing as it gives a very low rate of return as compared to other assets. This presents a gloomy picture of the future supply in the rental housing markets. The permission to increase rents by some percent after every three or four years, granted by most of the RCAs is also redundant as the rate of increase of market rents is much larger.
2. The low rate of return also leads to rapid deterioration of existing housing stock, as landlords have no incentive to invest any funds in the upkeep of their houses.
3. It’s difficult to evict a tenant once the house has been rented, thanks to the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Thus, the fear of losing perpetual control of houses by landlords might lead them to withdraw their vacant premises from the rental market, leading to reduced supply. 252
4. It’s difficult to resell a tenanted house from which it’s difficult to evict tenants. This reduces liquidity in the market for ownership housing.

5. Municipal revenues get eroded. As property tax is directly linked to the rent, it is now calculated on the basis of standard (controlled) rent rather than market rent.

6. Implementation of Haryana Urban (Control of Rent and Eviction) Act, 1973 also involves substantial administrative costs. Elaborate mechanisms to fix rents must be formulated and a dispute settlement body established.
Social Analysis:
The social impacts of Haryana Urban (Control of Rent and Eviction) Act, 1973 are more explicit and often, very bizarre. In absence of any fresh supply of rental housing, the existing tenants sit tight and the new entrants are the worst affected. Even after the death of the tenant the tenancy does not come to an end because the tenancy is inherited by his/her successors as provided under section 2(h)351 of Haryana Urban (Control of Rent and Eviction) Act, 1973. “Tenant” means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of his tenancy and in 351Schedule appended to section 2(h) of the Haryana Urban Control of Rent and Eviction Act, 1976: Son, daughter, widow, father, mother, grandfather, grandmother, son of a predeceased son, unmarried daughter of a pre-deceased son, widow of a pre-deceased son and widow of a predeceased son of a pre-deceased son. 253 the event of such person’s death, such of his heirs as are mentioned in the Schedule appended to this Act and who were ordinarily residing with him at the time of his death, but does not include a person placed in occupation of a building or rented land by its tenant, except with the written consent of the landlord, or person to whom the collection of rent or fees in a public market, cart-stand or slaughter-house or of rent for shops has been framed out, or leased by a municipal, town or notified area committee.
Legal Analysis:
1. The flawed nature of Haryana Urban (Control of Rent and Eviction) Act, 1973 The structure of Haryana Urban (Control of Rent and Eviction) Act, 1973 renders it contradictory to other laws of the land in some situations: If given a choice people would prefer to be governed by provisions relating to lease rather than rent act. E.g. if A (landlord) and B (tenant) enter into an agreement of rent for 11 months and are governed by the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 after expiry of 11 months B will become statutory tenant and will continue to pay the same rent, whereas, the intention of the parties might have been entirely different at the time of execution of the rent agreement. On the other hand, if A (lessor) and B (lessee) had executed a lease deed for 11 months and had been governed by provisions relating to lease under Transfer of Property Act, 1882 then after the expiry of 11 months the lease would have come to an end by efflux of time and if B chose to retain the possession of the demised premises then he would have to pay mesne profits (as per market 254 rates) and would not be considered a lessee but would become an unauthorized occupant of the property. Hence the intention of the parties is given due consideration under Transfer of Property Act, 1882.

Recognizing the depressing impact and strain created by the rent control Act, various commissions have been set up by the Central and State Governments to suggest reforms in the Act. At the center, Economic Administration Reforms Commission was set up in 1980 and National Commission on Urbanization in 1985.
There is no provision of right to receipt on payment of rent in Haryana Urban (Control of Rent and Eviction) Act, 1973. Though the tenant has a right to receipt on payment of rent in other states, viz., Andhra Pradesh, Delhi and Himachal Pradesh. The provision as contained in Himachal Pradesh Urban Rent Control Act, 1987 is reproduced here for ready reference: Section 20. Receipt to be given for rent paid.-
Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.

Every tenant who makes payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him duly signed by the landlord or his authorized agent.
If the landlord or his authorized agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorized agent, by order, direct the landlord or his authorized agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid. The right to receipt on payment of rent is an essential right of any tenant and also, the foundation of the tenants’ right to seek justice in court of law.
II. There is no provision of notice to controller of vacant building in Haryana. The Himachal Pradesh Urban Rent Control Act, 1987 provides for such provision which is being reproduced here: Sec.19 Leases of vacant buildings.-Whenever any building which was constructed before the commencement of this Act, and was being let out to tenants remains vacant for a period of twelve months, the Controller may on receipt of any application from a person serve the landlord a notice informing him that he should show cause why the vacant building be not let out to a tenant, who will pay fair rent to 257 the landlord. On hearing the landlord, the Controller may, on such terms on which the building was being let out, lease the same to a person who has in his occupation no other building either as an owner or as a tenant. This provision if inserted in Haryana Urban (Control of Rent and Eviction) Act, 1973, will be very helpful to both the tenant as well as to the landlord.
III. The framers of the Act did not insert provision for assessment of provisional rent which means that when there is a dispute between landlord and tenant qua the rate of rent and in most cases there is oral tenancy so prima facie a Controller is required to determine the rate of rent which a tenant must tender to avoid eviction on the ground of non-payment of rent.

IV. Once an order has been passed, rent controller cannot review the order no matter how grave the irregularity or how glaring the mistake under the Act has been there.

V. All tenancies should be mandatorily registered. This would help in providing security to the landlord. VI. Provision for temporary recovery of possession should be there so that the repair works can be done thoroughly and after the renovation or repair work is done the premises shall again be offered for rent to the previous tenant.
VII. There is no exemption provided to any building in Haryana on the basis of rent. Delhi Rent Control Act, 1958 provides for such provision: Sec. 3. Act not to apply to certain premises.- Nothing in this Act shall apply- (c) To any premises, whether residential or not, whose monthly rent exceeds there thousand and five hundred rupees.
VIII. Inheritability of tenancy should be limited to all legal heirs who had been living with the deceased and dependent upon him and do not own a house in the urban area. In case of minor children, the right of inheritability to be applicable only for a limited period. In case the heir owns a house in the urban area, he is to be permitted one year’s time to vacate the premises.
IX. All new constructions from this point on should be exempted from rent control.

X. A time-line could be drawn up to increase rents of rent controlled apartments up to market levels over a period of say six to ten years.

XI. Affirmative action may be considered for those below the poverty line, living in rent-controlled apartments. Their rent can be brought to market rate over a five to fifteen year period.
XII. Rents can be subsidized for elders, disabled and the needy by providing them housing vouchers that could be encashed by the landlords from the government. 259
XIII. Pro-poor schemes may be introduced: Properties freed up must contribute some percentage of the rental value into a housing for the poor fund on the lines of Madhya Pradesh where private developers contribute in cash/or land into the Ashraya Nidhi for pro-poor housing.
Mehr or Dower
Mehr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage”.

According to Mahmood J., ‘Dower under the Mohammedan Law is a sum of money or other property promised by the husband to be paid or delivered to the Wife in consideration of the marriage and even where no dower is expressly fixed or mentioned at the marriage ceremony, in the law confers the right of dower uponwife’.

The system of “Dower” is not new in Muslim Law. In Pre-Islamic Arabia, it was prevalent in some other form. In those days, there were two forms of marriage for the purpose of dower:
In first category of marriage, the wife did not accompany her husband to his home after marriage. She continued to live with her parent’s house and her husband usually visited her. In such marriages, it was customary to give to Wife, on marriage, which was called “Sadaq” (the wife was called sadiqa), Women friend and not a girlfriend.

In second category of marriage wife accompanied her husband to his matrimonial home after marriage. In such, the marriage, the husband had to pay an amount to the parents of his wife in consideration of her leaving parent’s home. Such an amount was called Mahr. In other words, it was like a sale-price of the bride.

In Islamic law Mehr absolutely belongs to the wife. The concept of Mehr is inherent in the marriage contract. It would be incorrect to describe Mehr as a bride price or as ‘consideration’ given by male to women for entering into marriage contract. Mehr is a unique concept of Muslims Matrimonial law. The Hidaya says “The payment of dower is enjoined by law as a token of respect for its subject, the women”. It is a necessary consequence of marriage contract that wife should claim, as consideration a sum of money or other property, which should absolutely be her own property.

Dower may be fixed after marriage:
The amount of Mehr can be fixed before or after marriage and even it can be increased during the continuance of marriage. There is no maximum or minimum limit to dower and can be fixed orally. The determination of the amount of dower depends on many factors and can be utilized as proper check on the arbitrary exercise of the right to divorce.

Dower is an-un-secured debt and is not a charge on the estate of the husband. She can obtain a simple money decree from a court against all the assets of her husband. Contract of dower may be made by father- Among Sunnis the father does not, by entering into such a contract, become personally liable for the dower debt, A person who guarantees the payment of dower by the husband is liable to the wife as surety.

Confirmation of dower-
The dower becomes confirmed:-
By Consummation of the marriage; or
By a valid retirement (Khilwat – e-sahiya); or By the death of either the husband or the wife
Prompt and deferreddower-There are two kinds of dower-Promptand deferred (Moajjal and Muwajjal). Prompt dower becomes payable immediately after the marriage contract and must be paid on demand; the deferred dower becomes payable on the termination of marriage either by death or by divorce or earlier by stipulation in the marriage contract.

The object and importance of dower is great in the sense that it puts a check on the arbitrary exercise of the powers of a husband to divorce and protects the wife; besides this in case of divorce the wife is not left in the lurch and absolutely helpless without any means. The importance of Mehr can be judged from the fact that any stipulation before marriage by a woman to forge her right to Mehr after marriage or even if she agrees to marry without Mehr, such agreement will be invalid and ineffectual and she would be entitled to customary dower. The amount of dower can be fixed before or after marriage and even it can be increased during the continuance ofmarriage.

Jewish law and Roman law also provide for dower but with some difference. There is no provision of dower in Hindu Law and there could not be, as Hindu Marriage is absolutely indissoluble and religious. English law also does not provide for dower. In this respect, women in Muslim law, ranks the highest and enjoys enviable position and protection. The right to dower (Mehr) once vested in her, she cannot be divested of this right by any act of hers, even if she commits suicide, or dies a natural death, her heirs are entitled to receive dower. The wife can realize her dower when it becomes payable, by refusing her husband his conjugal right and or by taking lawful possession of his estate till her dower (Mehr) ispaid.

Position in India:-
Unpaid Dower: In Muslim law Mahr (Dower) is an essential attribute of marriage – a liability towards the wife rests on the husband. Its form and the time for discharge may be decided by agreement between the parties at the time of marriage, failing which is determined by the law. Whatever be the terms settled for it, all unpaid Mahr becomes immediately payable in the case of divorce, except if in a case of a Khula (out of Court divorce at the behest of wife) or Mubaraat (Consensual divorce) the wife has agreed to forgoit.

In Musarrat Jahan v state of Bihar AIR 2008 Pat 69, the court rightly ruled that the claim of foregoing of Mehr by a divorced woman has to be proved by strict evidence that she had done so by her own free will and without any coercion, dues or undue influence. In fact in a case of unilateral Talaq by the husband, as distinguished from the cases of Mubarat and khula, such a claim should not be entertained at all.

Islam views marriage as a strong bond and a serious commitment. In theviewofprophetMohammad(PBUH),divorceisthemostdetestable
in the sight of Allah of all permitted things and holds the notion that of all things Allah has made lawful for his believers the most hateful to Him is divorce. Divorce, since it disintegrated the family unity, is off course, a social evil in itself, but it is a necessary evil. Divorce is necessary to safeguard rights and privileges of women.

“Either retain them with humanity, or dismiss them with kindness.”When the marriage is terminated by the husband, it is called talaq. The power of the husband to terminate his marriage is absolute. But in practice it has been restricted.

A Talaq is dissolution of marriage effected by the husband making a pronouncement to the effect that the marriage is dissolved or that the marital relation shall not any more subsist between himself and his wife. Islam has strictly forbidden using this right of divorce in haste as the matter pertained to two individuals and two families. Islam does not believe in giving divorce on trifling matters. It has been said by Allah’s Messenger (PBHU):
“With Allah, the most detestable of all things permitted, is divorce” “Allah has not created anything on earth more detestable than divorce”.

According to Fuqaha (Experts in Islamic Jurisprudence) talaq (divorce) is not allowed except in the case of extreme urgency or whenthe marital relations of husband and wife are poisoned to such a degree as make peaceful home life imposable for them & the hatred and enmity are aggravated to any intolerable extent or there exist a real danger to chastity andmorality.

Divorce laws
All the legal schools granted a husband the unilateral right to divorce his wife at his discretion:
Sunni Law- Accepted two forms of divorce: The regular form (talaq al-sunna)
Triple divorce (talaq al-bid’a)
The perilous positions of women in divorce matters can be further discerned from the fact that the Hanafis, Malikis and Shafi consider a divorce valid even if recited by mistake or in jest or under intoxication. The Hanbalis, however, do not consider such a divorce valid. Under the Sunni law a Talaq may be pronounced by the husband orally or in writing – in the latter case the written document is generally called Talaqnama. In none of these cases does Sunni law insists onwitness.

Under Shia Law a Talaq can be pronounced Only orally By using prescribed words in Arabic called the Seegha andThe number of witness should be two to be present at the time of repudiation.It is also necessary that the witness should be present together.

Different forms of Divorce
The Contract of marriage under the Mohammedan law may be dissolved in any of the followingways:
By the husband at his will, without the intervention of acourt
By mutual consent of the husband and wife, without the intervention of acourt
By a judicial decree at the suit of the husband or wife. The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage (S3,4) but she may in some cases obtain a divorce by judicial decree(SS328:334). The presence of the wife is neither necessary nor notice need to be given to her. In Hanafi Law no special formalities are required whereas Ithna Ashari law insists on a strict formula fortalaq.

Almost all the schools except Jafri, agree that the pronouncement of the word ‘talaq’ three times, even though it may be unjustly, capriciously and without any cause, are sufficient to bring about the dissolution of marriage. According to some jurists, if the pronouncement is clear and the words are express, it is a valid divorce, even if it is under a fit of anger or compulsion or in a state of voluntary intoxication or to satisfy one’s father or some relative.

According to some theologians divorce may be oral or in writing. Under the Shia Law divorce under compulsion, intoxication or fraudulently obtained or by mistake or in anger or in writing not accompanied by pronouncement, is not valid. Express intention in all senses is invariably essential for a valid divorce in Shia Law.

There are three main modes of Talaq:
Talaq-e-Ahsan: This form consists of one single pronouncement within the term of purity (tuhr). This kind of divorce is revocable during the period of iddat. There is specific direction in this regard in the Holy Qura’n {lxv:1}.

When you divorce women Divorce them for the period of Iddat Count the days of Iddat and fear God Do not turn them out of home Nor shall they go out These are the laws of GodThose who violate them wrong themselves You do not know that after all this God may create a new situation
It is true that the husband possesses the power to revoke the pronouncement of talaq. This is duty to see the feelings of his wife and not to retain her against her wishes. In case the wife is not interested in living with the husband, the husband may release her from marriage tie. The revocable divorce can be pronounced only twice in life – the husband cannot be allowed to play hide and seek with his wife by pronouncing and revoking a divorce again and again. The Ahsan form of divorce is most approved form because the husband is expected to treat his wife in a nicemanner.

Talaq-e-Hasan: In this form of divorce a man must make three pronouncements during three consecutive terms of ritual purity (tuhrs) no biological relations having taken place in between these periods. At the pronouncement of divorce for the third time, the divorce becomes final andirrevocable.

Talaq-e-bidaat i.e. this kind of talaq was introduced only later on during the second century of the Muslim era. There pronouncement made during a single tuhr (period between menstruations) either in one sentence or in separate sentences thrice or a single pronouncement made during a tuhr indicating the intention irrevocably to dissolve the marriage. This form is not recognized by the shias. It is a sinful form of divorce.

The first two modes of talaq namely talaq-e-ahsan and talaq-e-hasan give an opportunity to the husband to reconsider his decision, for the talaq in both these cases becomes absolute after a certain period has elapsed and the husband can revoke it before that. The Talaq-ul-bidda which is “good in law though bad in theology” is the most common mode of divorce prevalent in India. In this form re-marriage can take place only if the wife undergoes an intermediate marriage as in the case of the hasan talaq. This form of divorce is condemned. It is considered, heretical, because of itsirrevocability.

Pronouncement of Talaq: (Qualifications)
All Schools of the Sunnis and the Shias agree that every Muslim male of sound mind who has attained puberty, may pronounce divorce. A minor has no capacity of pronouncing talaq under any circumstances. It seems that under certain circumstances the guardian of a minor may pronounce talak on hisbehalf.

A dumb person may pronounce divorce by signs, but if he is literate, he should do so in writing.

Divorce at the instance of the wife:
Under Muslim Law a marriage can be terminated either by the husband or by the wife or under mutual agreement between the spouses.

A Hadith runs: “A woman who asks to be divorced from her husband without cause, the fragrance of the Garden is forbidden to her”
The implication is that if there is a cause she can ask for divorce. Several jurist of Muslim law hold the view that under certain circumstances, the wife is also entitled to ask for divorce.

Khula: The book on Islamic law frequently refers to the words and deeds of Prophet. He said “if a woman be prejudiced by a marriage, let it be broken off”. Some people would like the woman also to have the same right, of divorcing the husband which he enjoys. If she wants to get separation from the husband, there should be no restrictions on her and she may go her own way whenever she is pleased. According to them “Islam has not been unjust to the woman with the right given to man of divorcing a woman, it has granted to her in turn the same right in the form of khula. That means they believe ‘Khula’ to be the declaration of breaking the marriage tie or nikah on the part of the woman, no matter how the husband takes it (accept or reject it).

In the Islamic Shariat, Khula means to take the substance from the woman in return for ownership right enjoyed by virtue of nikah, using the word khula; Khula is the right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the husband from the wife. Based on traditional ‘fiqah’ and reference in the Quran and Hadith, Khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree. Technically, Khula demands that the Mahr already paid be returned along with any wedding gift. Khula bestows special right to women to seek dissolution ofmarriage.

Mubarat: it are considered by many as species of divorce by mutual consent. This is the form of divorce by mutual consent of the husband and the wife without the intervention of the court. In Mubarat either spouse may make the proposal.

The Arabic word ‘tafweez’ basically means empowerment or authorization; delegation is its secondary meaning. It is a legal device by which a woman can protect herself against misuse of some liberal rules of Muslim law by the husband in future. It is the marriage agreement that empowers or authorizes the wife to divorce herself.

Rights of Women after Divorce
Classical Islamic laws relating to Polygamy and divorce are quite fair to women in some respects, but these have lost their original spirit in actual practice. Thus in practice, power to divorce was primarily enjoyed by the husband, However, The passing of Sharia Act 1937 and the Dissolution of Muslim marriage Act VIII of 1939, gives substantial relief to MuslimWoman
If the marriage was consummated, wife may marry another person after the completion of Iddat, if the marriage was not consummated; she is free to marryimmediately.

If the marriage was consummated, the wife is entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred. If the marriage was not consummated and the amount of dower was specified in the contract she is entitled to half thatamount. The divorced wife is entitled to maintenance and lodging till her period of iddat expires.

Position in India
The dissolution of Muslim Marriage Act 1939 clarifies that if a marriage is dissolved by the Court under any of its provision the wife’s dower rights under Muslim Law will remain intact and will not be adversely affected. In the fitness of things the court dissolving a marriage under the 1939 Act must provide in the decree itself all the ancillary relief sanctioned by the Muslim Law for divorcedwomen.

All properties given to a women at the time of or after marriage by her relatives and friends (which is known in India as Jahez or Dahez ) or by the husband or his relatives or friends (which is in some placecalledBari) is her absolute property. In the case of divorce she can claim all such property from her husband and his relatives.

The Muslim women (Protection of Rights on Divorce) Act 1986 now provides for recovery of all such property in the event of divorce, along with unpaid dower and maintenancealso.

A divorced wife can file civil suit for the recovery of her unpaid dower under the provision of section 29 (3) of the Limitation Act 1963 – never be regarded as timebarred.

If a divorced wife is in possession of the husband’s property at the time of divorce, she will have a right to regain its possession until her dower has been paid by the husband. This right, recognized by the court mainly in respect of a widow in respect of unpaid dower, is in the fitness of things to be applied also in the case of a divorced wife whose dower remainsunpaid.

Attempt at Reform
Thus, there are two main issues in Muslim Personal Law, which are causing injustice to Muslim Women, these are: (i) Polygamy (ii) Triple divorce. If these two are properly regulated Islamic Personal Law will not only come much closer to the Qur’anic Spirit but would become much more progressive than what it is today. Early in Muslim history the practice arose of issuing three divorces at once, the husband ridding himself of his wife in one dramatic, fatal stroke. Triple divorce means instantly dissolving the marriage leaving no room either for revocation of divorce during Iddat or for renewal of marriage ever after that the Quran (II:229) clearly proclaims ” Divorce no more than twice” meaning thereby that a revocable divorce can be pronounced only twice in life.

Very unfortunately Muslim men in India are blissfully unaware of the true Islamic Law on divorce, and believe the so called Talaq- al – bidat to be the only Islamic way of divorcing wives. Abul Ala Maududi, an eminent Muslim theologian of the subcontinent has lamented:
“Due to ignorance, Muslims generally believes that divorce can be given only through triple divorce formula, although it is an innovation and a sin leading to terrible consequences. If people knew that triple divorce is
unnecessary and even a singly Talaq would dissolve the marriage leaving room for reconsideration, innumerable families could have been saved from destruction”
According to Asghar Ali, Engineer, noted Islamic sholar;
“Triple divorce should be replaced by Talaq –al- Sunnah or Qur’anic form of divorce both is quite fair to women. Even divorce where inevitable, has to be fair to women and Quran repeatedly exhorts man to either retain her (in marriage) in goodness or leave her (divorce her) in kindness (2 : 229). She cannot be thrown out arbitrarily as it is usually done through triple divorce and oral divorce. Law must prevail and proper procedure must be followed as laid down in Quran and Sunnah. Triple divorce is not in keeping with either of thetwo.

Criticizing the so-called Talaq –al- Biddat in a Kerala case a Muslim Judge called it tyrannical and observed “my Judicial Conscience is disturbed at this monstrosity of the law.”
In Masroor Ahmad Vs. State 2008 (103) DRJ 137 a Muslim Judge of the Delhi High Court gave a revolutionary Judgment citing and dittoing our exposition of the true law of Talaq by husband and reproducing some of the sources quoted by us. “He ruled that in the peculiar circumstances of India a Triple Talaq in every case should be a single revocable Talaq only. The judgment deserves to be affirmed by the Supreme Court in a suitable case so that it becomes the law of land.

Summary of Reforms: In Muslim Countries
In Egypt, Iraq, Jordan, Kuwait, Lebanon, Morocco, Sudan and Syria a Talaq is no more effective if pronounced by a person who is drunk, insane, imbecile, shocked, ill or angry. The concept of Triple Talaq in all those countries, every Talaq, even though repeated thrice or qualified with the word “Thrice” shall affect only a single revocabledivorce.

In Malaysia revocation of Talaq by the husband is to be duly registered with state authorities.

In Iraq, Jordan, Syria a husband wanting to affect a Talaq has to approach thecourt.

Under the laws of Pakistan and Bangladesh every Talaq is to be notified by the husband to a local government official to enable him to set up arbitration Council consisting of himself and one representative each of the parties. For ninety days from the date on which it is so notified the Talaq will remain ineffective and during this period the Council will make all possible attempts atreconciliation.

In India, the National Consultation on the codification has prepared a revolutionary draft, which among other things; bans triple talaqand restricts polygamy. After codification of the Personal Law, it will be sent to Parliament for amendments into the law and the Muslims masses will be made aware of what Islam gives and what some Mullahs have denied to them over thecenturies.

Codification of the Personal Law is the need of the hour. Through codification they are not bringing any new law but only reiterating the provisions which the Quran makes for Muslim Men and Women.

The Muslim law of maintenance differs from the laws of maintenance in most other systems. Except wife, in most cases the obligation of a Muslim to maintain others arise only if the claimant has no means or property out of which he or she can maintain him self or herself. Under the Muslim law, it is the duty of the husband to maintain his wife, irrespective of her financial position. Under Muslim law wife’s right of maintenance is a debt against the husband and has priority over the right of all other persons to receive maintenance.

Maintenance is called Nafqah, it includes food, clothing and lodging and other essential requirements for livelihood. In the words of Schacht: “The maintenance of the wife comprises food, clothing and lodging, i.e. a separate house or at least a separate room which can be locked, for the well-to-do also a servant; she is not obliged to bear any part of the expenses of the matrimonialestablishment.”
Persons entitled to claim maintenance: –
A Muslims is bound to maintain his following relatives:
Wife – She is entitled to be maintained in spite of the property and income of her own
Descendant – Children and grand children Ascendants – Parents
Collaterals within Prohibiteddegrees
Divorced wife’s right tomaintenance:
The Criminal Procedure (Amendment) Act, 1973, remodeled the old section 488 and the new provision (now section 125) and explanation
(b) to clause (1) of section 125 defines “wife” as to include a woman who has been divorced by or has obtained a divorce from her husband and has notre-married.

If a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under section 125 of the Cr.P.C after the expiry of iddat period, as long as she does not remarry. However, if she continued to remain unmarried even after iddat she has to be paid further maintenance by her former husbandincluding;
Nafaqa -e- Raza’at (maintenance during child fosterage) and Nafqa-e- Walayet (maintenance during childcustody)
According to the verses 241 and 242 of the Holy Qur’an; the divorced woman maintenance should be provided on a reasonable scale.

This is duty on the righteous.

Thus, doth God make clear his sings to you In order that you may understand
The translation of Ayat 240-242 as given by the board of Islamic Publication:
Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a years’ maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way. Allah is all –powerful & all wise. Likewise, the divorced woman should also be given something in accordance with the known fair standard. This is an obligation upon the God fearing people.

It is evident that Quran imposes an obligation on a Muslim to make provision for or provide maintenance to the divorced wife. Maintenance is available to only legally married wife; It is the mandatory requirement of Sec.125, Criminal Procedure Code that the wife must be legally married.The amount of custody period and fosterage period maintenance is to be determined in accordance with the financial position of the wife i.e. can she maintain herself, fully or partly, out of her own income or property.

Under the Muslim Law, a woman has no obligation to maintain her husband, however indigent he might be.

According to Paras Diwan:
A Muslim has a personal and absolute obligation to maintain his wife, irrespective of the fact whether he is or not in easy circumstances. This obligation of a person to maintain his wife is not shared by anyone.

A Muslim has a personal obligation to maintain his children but it is not an absolute obligation. He is required to maintain them if they are not able to maintain themselves. In the same way if the aged parents are not able to maintain themselves, they are to be maintained by the sons.

Maintenance of female children: – A father is bound to maintain his female children until they are married. The fact that the children are in the custody oftheir mother during their infancy (s.352) does not relieve the father from the obligation of maintaining them.

Maintenance Rights of the Wife:
Maintenance may be monthly or daily
No right of transfer of future
maintenance Wife’s right of maintenance is a debt
Right of the wife to use her husband’s articles Right to pledge the credit of her husband Refund of Maintenance
Maintenance of Minor wife:- According to Hanafi and Shafei schools, where a wife has not completed the age of majority, she has no right of maintenance. The child Restrain Marriage Act 1929, is Central Act Applicable to all citizens of India including Muslims. A wife who has not attended puberty is not entitled to maintenance.

Maintenance under Muta Marriage – Muta Marriage has been recognized only by Ithna Ashri Shia Law. Under Shia Law a Muta Wife has no right to maintenance enforceable in Civil Court.

Widow’s right of Maintenance: A Muslim Widow has no right to maintenance out of her husband’s estate in addition to what she got by inheritance as his wife.

Position in India:
In 1986, The Muslim Women (Protection of Rights on Divorce) Act was passed. The Act has consolidated and harmonized the different school of the Muslim law in the matter of payment of maintenance to the wife on divorce. While the orthodox view of the husband’s liability to pay maintenance only up to Iddat period finds prominence in this Act, the modern trend as reflected in section 125 of the Cr. P.C has also been included making it optional on the choice of both parties. The Muslim Women (Protection Right of Divorce) Act 1986 now makes all these kinds of maintenance and compensation, payable as a package, by a Magistrate’sorder.

The maintenance law under section 125 – 128 of the Code of Criminal Procedure 1973 also by virtue of decision of the Supreme Court of India remains available to divorced Muslim women. Nothing in this law conflicts with any mandatory provision of Muslim Law. The conclusion is that there is no conflict between the provision of sec.125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself. If a divorce has resulted from a spell of domestic violence against the wife in the husband’s home, she can claim residential accommodation as per the provisions of the Protection of Women from Domestic Violence Act, 2005.

Reforms in Personal Law in other Muslim Countries:
According to Asghar Ali Engineer, in his new Urdu book Titled,”Quran Mein Aurat Ka Darja” make a noteworthy point that the Quran exhorts men to look after their wives in the same manner as they look after themselves rather than throw than out with apittance.”
To quote a verse from the Quran “Lodge them where you dwell according to your wealth and harass them not so as to straighten life for them. And if they were with child, then spend for them till they bring forth their burden. Then if they ask of you, give them due payment and consult together in kindness” The Quran did not fix any period for the maintenance of the divorcedwife.

In Malaysia, if a woman has been divorced by her husband without just cause the court can grant her a fair and just compensation.

In Several Muslim Countries, if a divorced woman is suckling an infant child or has the lawful custody of a grown up child, she is entitled to maintenance (for herself) from the former husband for the legal period of fosterage or custody as the case maybe.

In Bangladesh, the Supreme Court has held that a divorced woman is to be provided maintenance by the divorcing husband till she gets remarried.
Maintenance of Children:
Under the Muslim Law it is the father who is primarily and basically responsible to provide maintenance to his children, both male and female. The father has to provide maintenance even where the child is lawfully in the custody of the mother or any other person. The obligation on the part of father continues even though he may have divorced the mother of the child.

Male children under the Muslim Law are entitled to get maintenance from their father, until they attain majority. After a son becomes major, he can claim maintenance from his parents only if he is indigent or is physically or mentallyhandicapped.

Daughters are legally entitled to be maintained by their father’s till they get married even where the marriage takes place much after their attaining majority. Marriage does not necessarily absolve the father from the obligation of maintaining his daughter. The widowed and divorced daughters are also entitled to claim maintenance from their father when they have no property of their own.

Historical Background:
Prior to Islam and within the Arabian Peninsula, the system of inheritance was confined to male descendants. Women did not have any share of inheritance, but they themselves were inheritable. The pre-Islamic Arabs were against the inheritance of women because of her weakness in the performance of act of defense and bravery. The distant male of the family inherited the property. The Islamic Law of inheritance has its origin in the pre-Islamic days in Arabia. The Qur’anic Injunctions brought radical changes in the principles of succession that existed before the advent of Islam by eliminating all that was unjust and inequitable by introducing just and equitableprinciples.

The Law of Inheritance is a unique aspect of Muslim Law. It is a different system of law. Prophet Mohammed said; “learn the laws of inheritance and teach them to the people, for they are one half of useful knowledge”. Under Muslim Law all properties devolveby succession, the right of heir-apparent does not come into existence till the death of the ancestor. Succession opens only on the death of the ancestor, and then alone the property vests in the heirs.

Sir Willian Jones observes: “I am strongly disposed to believe that no possible question could occur on the Muslim Law of Succession which might not be readily and correctly answered.”
F.G. Tyabji Observes; “The Muslim law of Inheritance has always been admired for it completeness as well as the success with which it has achieved the ambitious scheme of providing, not merely for the selection of a single individual but to the homogeneous group of individuals, on whom the estate of the deceased should devolve under universal succession, but for adjusting the competitive claims of all the nearest relations.

Law of Inheritance in Islam and Women’s Right:-
Inheritance and the Quran: The Muslim law of succession and inheritance has been derived from Qur’anic verses, the tradition of the Prophet and some of the pre-Islamic customs which were approved by the Prophet. The Verses IV: 1–14 of the holy Quran deal with the matters of inheritance.The right of inheritance for the kindred was first established through the will in the following Qur’anic Verses;
“It is prescribed for you, when death approaches one of you, if he leaves wealth that he bequeaths unto parents and near relatives in kindness.That is a duty for all those who ward off (evil). And who so changeth (the will) after he hath heard it the sin thereof is only upon those who change it.”
This ruling was the first parting from the customary law which denied women and children the right to inherit, as parents include both father and mother and near relatives comprise both children and adults. The stage was now set for the final phase of legislation on inheritance. The Principle covering females and males is laid down in the famous verses of Surah An Nisa 7, it is given:
“Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parentsand near kindred leave, whether it be little or much- a legal determinate share”.

Four verses later, the detailed distribution of the shares is given in the Quran. In order to make these provisions imperative and enforceable, God promises divine reward for abiding by them and prescribes divine punishment for disregarding them in the following words of the Quran:
These are the limits (imposed by) Allah. Who obeyed Allah and His messenger, he will make him enter Gardens underneath which rivers flow, where such dwell forever. That will be the great success.

The Arab had a very strong tradition that only those who could use the spear and the sword were entitled to inherit and therefore, no portion of inheritance was given to such heirs who were not capable of meeting the enemy and fighting in battles. Owing to this tradition, this strongly appealed to tribal people, among whom fighting was a daily matter. This not only excluded all females (i.e. daughters, widows, and mothers), but even male minors had no right to inherit. Women, in fact, were looked upon as part of the property of the deceased and, therefore, their right to property by inheritance was considered out ofquestion..

The Qu’ran came out with a radical declaration that men and women are equal and women’s rights are equal to their duties. Maulana Abul Kalam Azad, a noted modern commentator on the Qu’ran, describes these verses as revolutionary declaration of gender equality, enunciated in 610 A.D. Thus there is no doubt that the basic principle in the Quran is of gender equality. The Quran also presented efforts to fix the laws of inheritance and thus forming a complete legal system. In general, the Quran improved the status of women by identifying their share of inheritance in clear terms.

The Principal heirs and their rule of succession:
The sharers : According to the Sunni Law of Inheritance, sharers are those heirs who have been named in the Quran and have been assigned specific shares. The peculiarity of the Muslim law of inheritance is that although the sharers are class I heirs and the residuaries are class II heirs, they to gether share the property.After shares have been allotted to sharers, the remaining property goes to the residuaries. There are as many as 8 female’s sharers who could inherit the property of a deceased Muslim among 12 sharers.

Mother: Under the Hanafi laws of inheritance the mother is a Qur’anic heir. The mother is another principal sharer and always inherits from her deceased son. She takes 1/6 of the estate of the deceased when she is survived by a child or child of a son. She takes 1/3 where there are no children; after deducting the share of the spouse.

Wife: The wife inherits 1/8 if there are children and 1/4 if there are none. In the case of plurality of wives, they share one eighth and one fourth respectively equally between them. The wife is also a Qu’ranic heir. Only the wife, who is validly married, is entitled to succeed to the share, but not a wife with an irregular marriage or Mutamarriage.

Widow: – A Childless widow does not take her share from immovable property of her husband; but she is entitled to her proper share in the valuables of the household effect, building and movable property, including debt due to the deceased. If a Muslim male dies leaving behind a widow and children, then the widow takes 1/8, and the residue 7/8 goes to children. If he dies leaving behind a widow and no child then the widow takes 1/4. If he dies leaving behind more than one widows then 1/8 (when there are children) or 1/4 (when there are no children) is distributed among them equally.

Daughter: – A daughter takes as a sharer only when there is no son. As a Sharer, the daughter if there is one, takes ½ of the estate of the deceased and if two or more they collectively take 2/3 of the estate, which they divide equally among themselves. With a son, she takes as a Residuary, a son taking double the portion of adaughter.

Son’s Daughter- The Son’s daughter is entitled to these shares only when there is no son, daughter, higher son’s sons, higher son’s daughter or equal son’s sons. The son’s daughter is, if there is one takes ½ of the estate of the deceased and if there are two or more, they collectively take 2/3 which they divide equally amongthemselves
Full sister- The full sister, if there is only one, takes ½ of the estate of the deceased and 2/3 collectively when there are two or more. But she is not a primary heir. She takes only in the absence of ason.

True Grandmother: There are two types of true grandmothers; paternal and maternal. The true grandmother takes 1/6 of the estate ofthe deceased in case he is not survived by his mother or a nearer true grandmother.

If we analyze the sharers and the residuary, we find that six sharers inherit as residuary in certain circumstances of which four are females who inherit as sharers or as residuary. They succeed as residuary when they co-exist with male heirs of equal proximity.

The Shia Law of Inheritance:
The Shias base the right of succession to the property on two principles;
Nasab or blood relations (ii) Sabab or specialcause.

Classification of Heirs:
Under the Shia Law, all sharers are not class I heirs. They are called sharers, since the Qur’an allotted them a specified share. In modern India, the heirs of a Shia Muslim fall under the following classes.

. Heirs byMarriage
. Heirs by intestate
Distribution of assets
Wife – Wife takes 1/8 share where there is a lineal descendent. She takes ¼ where there is no lineal descendant. These shares have been laid down by theQu’ran.

Mother- Mother takes 1/6 where there is: (a) lineal descendent or (b) two or more full or consanguine brother as (c) one such brother and two such sisters or (d) four such sister’s with the father. If there are no suchrelations, she takes 1/3. In her case also the share has been fixed by theQur’an.

Daughter- When there is no son she takes ½; when there are two or more they together take 2/3, provided there is a son, then she takes as residuary along with him. Under the Shafi’i and Maliki rules the daughter would only inherit ½ if there is no agnatic relative, and the remaining ½ of the estate would go to the Public treasury and not back to the daughter. While in Shia Inheritance Law, a sole surviving daughter can take the entire estate in the way that a sole surviving son can take all the inheritance in SunniLaw.

Under the rules of the four Sunni Schools, the Son’s daughter is entitled to half and the remainder goes to a residuary; the daughter’s daughter receives nothing. Under the Jaafari rules, each will receive the share of the person through whom they are related to the decendent. So the son’s daughter receives 2/3rd and the daughter’s daughter receives 1/3rd.

In the Shafi’i and Maliki Schools, daughters and sisters can inherit a minimum of 2/3rd of the estate; the residue would go to agnatic males, if there are none, to the pubic treasury. For the Hanbali and Hanafi School, if there is no agnatic male, the female heirs can inherit the residue – it would not go to the public treasury. In the Jaafari School one or more daughters can inherit the entire estate outright if there is no son. Agnatic males have no special rights, so either female or male relative could inherit asresiduary.

Even some of the rules that were divinely revealed were interpreted in different ways by different classical school of law, thus affecting the way the inheritance system developed.

The inheritance rules revealed to the Prophet (SAW) were major reforms from the pre-Islamic customary practices. Among themajor reforms of Islam were the provision which allow women and children to inherit required that inheritance shares were given to both parents and children and emphasis on the family relationships over that of the tribe. Most of the schools agree that before anything is distributed to the heir, thefuneralexpenses, the descendent debts,the differed portion of the.

wife’s Mahr and any bequest made by the descendent are paid out of the estate.

Islam and Women’s Right to Education
The word ‘rabbi’ means a teacher. Going by this definition, Islam gives women the rabbinical status centuries before any other faith. According to the sayings of Prophet Mohammed (SAW);
“It is obligatory for every Muslim, male or female to acquire knowledge” (Al-Bayhaqi)
1400 years ago, when the women were illtreated and were only used as property, Islam asked the women to be educated.Prophet Mohammed declaredthat;
‘If a daughter is born to a person and he brings her up, gives her good education and train her in the arts of life, I shall myself stand between him and hell fire.”
The first guidance given in the Quran to the humankind was to read. Education is compulsory in Islam. Islam has made it a duty on every Muslim male and female to gain knowledge, which is considered to be superior act of worship in Islam. Preventing a Muslim woman from gaining education is therefore un-Islamic.

Women have played a significant role in the cultural and intellectual advancement of Islam. The role of women scholars of Hadith is unique in the human history, prior to our moderntimes
Importance of Female Education in Islam
The primary objective of woman’s education is to prepare them for the biological and emotional aspect of their roles as daughter, sisters, wives and mothers. As someone has rightly said “When you teach a man, you only taught a person; when you teach a child, you taught a family, but when you teach a woman, you taught the whole nation. The woman as a mother has the crucial role as the early socializer and educator of the children. Yet another Hadith states that “A mother is a school, if she is educated, then a whole people areeducated. Quran emphasizes the importance of developing a good personal character through education. In the view of Islam, a society cannot be developed unless its human resources are properly trained and utilized through education. The Quran takes a positive position regarding the rights of women and their education. Numerous scriptures equally emphasize the education of both men and women and recognize education as means for women to care for themselves and their children.

There is no priority for men over women in relation to the right to education. Both are equally encouraged to acquire education from the cradle to the grave. Indeed all the Qur’anic verses which are related to education and knowledge were directed to both men and women. The Prophet Mohammed (SAW) instructed his followers to educate the women in any position in the society by saying, “A man who educate his slave girl, frees her and then marries her, this man will have a double reward”. Prophet Mohammed (SAW) also emphasized the importance of knowledge to his followers and encouraged them to seek it even if one has to travel across the world, even China (which was then considered as a far offland)
“Acquire knowledge, it enables its possessor to distinguish right from wrong; it lights the way to heaven”.

The status of women between Islamic Teachings and Today’s Reality
Islam brought various social and humanitarian reforms andProphet Mohammed (SAW) introduced positive changes that were radical in his time. These reforms also covered gender and women’s issues. Islam instituted for women numerous rights in order to safeguard their well being. Looking at Islam that the Prophet spoke off and practiced, one finds the spirit of protecting rights, empowerment, advancement and justice for women in all aspects of social, family ; political life.

Unfortunately, in many parts of the world today including the Muslim world, women suffer from injustice, systematic discrimination, targeted violence and being denied basic rights. In many Muslim communities Islam has been used as a justification and mask to promote exactly the opposite of what it essentially promotes. In many places women arestill
being denied access to education, despite the Prophet stating that ‘Seeking knowledge’ is a duty of every Muslim man or woman.” Why would Taliban shatter the dreams of young Malala to become a student, a teacher or a scholar?
Unfortunately, it seems that the spirit of reform that the Prophet initiated has stopped and in many cases, reversed. Why do many Muslim communities today disregard the Prophet’s teachings of protecting women’s rights and treating women with kindness and justice? For example, the status of women in Afghanistan, where girls are forced into early marriages and denied basic rights, numerous schools for girls have been burned down as a result 87% of Afghan women are illiterate and only 30 percent of girls have access toeducation.

The reasons, therefore for the educational backwardness of the Muslim women are as follows:
Misinterpretation of Islamic prescription by less educated religious leaders; strengthened the negative attitude towards women’s education.

Negligence of the parents because they themselves were not educated.

Poor economiccondition.

The maktabs and madarsas basically confined to education of religious matters and thereby sadly neglected the modern education.

Lack of awareness regarding the importance of woman education for the development of the Muslimsociety.

Backwardness of the Muslim society has created a social atmosphere which is not at all conducive for the growth of education among thewomen.

Practice of extreme Purdah & early marriages of the girls hinders their participation in educational discourse and alliedactivities.. Systematic discrimination against women and girls persists not only within Muslim communities, but across the globe. How can a woman learn if she is not allowed to speak? How can a woman grow intellectually if she is obliged to be in a state of full submission? How can she broaden her horizon if the only source of information is her husband athome?
Even in western countries, women did not enjoy equality till recently. In England the pioneering works for equality commenced in the field of education. In nineteenth century schools and colleges were established for imparting education to middle and upper class girls roughly at par with the boys. In Britain, Secondary education for girls was given statutory recognition by education Act 1906. Attempt to enfranchise women had a chequered history. Even in the case of employment, women suffered several disabilities which were removed only in 1990 through Sex Disqualification (Removal) Act 1990 which opened to women many professions and also the public services.

New Zealand was the first country to extend voting rights to women. This was way back in 1893. In the first four decades of the 20th century women got voting right in Austria, Germany, Turkey andUruguay.

The Quran and the Economic Rights of women
A woman’s right to gainful employment has existed since the earliest days of Islam and is guaranteed by the Quran. The Islamic religion bestows economic freedom upon men and women. When a woman is denied the right to exercise their freedom by family members, the blame lies with tradition, not religion. Prophet Mohammad (SAW) succeeded in making great progress in the elevation of the status of women.

In the pre Islamic and early Islamic period, women did enjoy economic freedom. The Prophet’s 1st wife, Khadija (P.B.U.H) was highly a successful business woman and entrepreneur and was one of the wealthiest persons of Arabia . There is much Quranic legislation referring to women’s rights to inherit as well as bequeath. Daughters are entitled to their share, as are wives and mothers, each according to her position in the family. They are free to invest their money or property as they wish without the approval of the closest male relative.A husband cannot force his wife to give him her money. Even among poor couples, a wife usually keeps her money or property separate from that of her husband.

Another example of Islam’s support for the economic independence of women is the fact that the bride price (Mahr) is given to the woman for her own personal use and not to her father. When the bride does receive the Mahr for her personal use, she uses it to buy assets like gold etc, which serve as a form ofsecurity.

In recent years female participation in wider Muslim society has increased. There are number of different reasons for this, i.e. the increase in educational opportunities for women, the influence of the feminist movement originating in western countries with its emphasis on economic independence for women. As women start to perform more visible roles in society, attitudes towards women’s role also tend to change at the ideological level. Interestingly, even among Muslim men, particularly those living in western countries, there is a tendency of drawing attention to those Hadiths which portray the Prophet (SAW) as performing domestic chores and those Hadiths which illustrate the father’s role in the upbringing and education of children. So as resources and conditions change, attitudes change in order to be relevant and compatible with contemporary life.

Islamic Fundamentalism and Women’s Right
American historian Ira Laphdus calls Islamic fundamentalism “an Umbrella designation for a very wide variety of movement, some intolerant and exclusivists, some pluralistic, some favorable to science, some anti scientific; some primarily devotional, some primarily political; some democratic, some authoritarian; some passive and some violent.

Islamic fundamentalism has displayed a terrifying face of Islam because of its characters, mainly in exerting an aggressive agenda for the politicization of the religion to achieve narrow sectarian political objectives – Fundamentalist believe in religious doctrines which put restrictions on women on the basis of Sharia and ‘Qudrat’ (Nature) women have to be controlled and live in the domestic sphere While analyzing Islamic fundamentalism, one must understand that the religion of Islam and Islamic fundamentalism are not one and the same thing. Islamic fundamentalism is a reactionary, unscientific movement aimed at returning society to a centuries old social set up, defying all material and historical factors. It is an attempt to roll back the wheel of history. Islam is an open minded and reasoning based religion ; not a religion which is forced on people to embrace. The Quran is very clear that “There is no force in religion”
Muslim fundamentalist subscribe to old doctrine where segregation of women from men and the use of hijab not only create a barrier between sexes, but also disallows women to pursue education and economic independence by restricting her mobility – thus reinforcing male superiority and control over them. Women are discriminated in all matters relating to marriage, divorce, guardianship, child custody, inheritance and ownership of property all in the name of Islam. To strengthen women’s religious duty of submission and obedience to men, the Muslim fundamentalist support the traditional gender segregated sphere of women requiring confinement at home caring for family which severely affects her economic independence. Women are forced to wear full veil, prohibited to go to working places and attend educational institutions.

The egalitarian message of Islam and its insistence on the spiritual equality of men and women however, were eroded as Muslim societies suffered moral and material decline. Abuses and discriminations against women got in Islam. Ironically, Islam is the only religion in which, there is no difference in the value given to the creation of women and men.
Islam totally repudiated the notion that man is dignified and honored merely because he is a man and woman is low and mean simply because she is a woman. Both man and woman are equal in the eyes of Islam. Neither the inferiority of anyone nor the superiority of anybody is written down for eternity. Whoever is adorned with faith and fair practices emerged successful here and in the hereafter and whoever is devoid of such qualities fails in this as well as in the eternalworlds.. Who-ever works righteousness, Men or Women, and has faith Verily, to him will we give A new life, a life That is good and pure, and we Will bestow on such their reward According to the best of these action Islam is a religion which moves forward and carries forward. The Quran lays the foundation of a society which is continuously in a state of growth extension, dilation and expansion. The most important thing is Islam has assigned women a prominent position at social level hence she can lead an honored and dignified life without becoming a victim of any inferioritycomplex.

Religion is by and large known as a path in search of spiritual truth but religious fundamentalism begins where spiritualism ends.Islamic fundamentalism in its interpretation of the faith has full stopped without even a provision for comma and claim to have achieved the ultimate truth.

Taliban used the old play;”Hide your rotten fears and cultural dogmas in the shopping bag of Islam.”
Women’s rights and Islam
In pre Islamic Arabia, the women enjoyed a secondary status in all respects when compared to men. The advent of Islam has contributed much for the amelioration of Muslim women and alleviation of their problems. Islam is the first religion which confesses a woman’s right to live with dignity on the most unequivocal terms. This right was very important as in modern times also when female infanticide is most common in India and elsewhere, which is now disturbing the sex ratioinmany so called developed states of the country. In Islam indignity of women is sin and assault on her chastity. The holy Quran gives equal rights to men and women and places women in respectable position. However, there are certain aspects in Islam that render the position of Muslim women especially the wives unsecured and inferior.

According to A.A. Engineer:
“There are two main issues in Muslim personal law, which are causing injustice to Muslim women. If polygamy and triple divorce are properly regulated Islamic personal law will not only come much closer to the Quranic sprit but would become much more progressive that what it is today.”
According to him, Triple divorce should be replaced by Talaq-al sunnah or Qur’anic form of divorce both are quite fair to women. Even divorce where inevitable one has to be fair to women and Quran repeatedly exhorts men to “either retain her (in marriage) in goodness or leave her (divorce her) in kindness (2.229 Quran). She cannot be thrown out arbitrarily as it is usually done through triple and oral divorce. Law must be followed as laid down in Quran and Sunnah, Triple divorce is not in keeping with either of the two.

According to Monica Chawla in her book “Gender Justice, Women and law in India”: in most of the matters of divorce the position of women is the most insecure compared to others. Particularly the method of divorcing the wife by the husband pronouncing ‘Triple Talaq’ is highly discriminatory. This is in spite of the clear message of Holy Quran which discourages “Talak-ul-Sunnat” and “Talaq-ul-Bidat” because the right of the husband to divorce his wife is unilateral and unfettered.

Recently Allahabad High Court has held that the practice of the triple talaq as unlawful and void.

In the matters of maintenance also, the divorced Muslim wife is not required to be maintained beyond the Iddat period. According to Monica Chawla, there is a controversy as to whether a Muslim husband can be directed to maintain his divorced wife even beyond the Iddat period undertheprovisionsofsections125Cr.P.C.InthefamouscaseofMohammad Ahmed Khan V Shah Bano, the Supreme Court, speaking through Justice Chandrachud, the then Chief Justice held that section 125 Cr.P.C. is applicable to Muslims as well and that a Muslim husband is liable to maintain his divorced life beyond the Iddat period. Because of the controversy, the parliament passed the Muslim Women (Protection of Right of Divorce) Act 1986 to overrule the judgment in Shah Bano case. The effect of this act is that a Muslim husband is not liable to maintain his divorced wife beyond the Iddat period unless both submit to the court at the appropriate time that they would like to be governed by Cr.P.C.

As far as her rights are concerned, Muslim women are still in an enviable position as compared to her other sisters, and cases like bride burning, dowry demand, cruelty and atrocities are few and far between but she lags behind educationally, socially and economically. She is ignorant of her legal and social rights. Even educated women do not know what their rights are and how they can seek redress of their grievances. Ignorance is bliss but not always and more often it causes suffering and hardship. Hence the Muslim women are more or less sailing in the same boat as far as exploitation isconcerned.

It does not mean to say that Muslim law is inadequate or deficient in any way and it has the flexibility to meet new challenges provided they are explored with an open mind. India may take the initiative in calling a conference of leading Muslim jurists and scholars of all shades of opinion and belonging to all schools of theology to suggest ways and means to meet the socio-economic challenges while retaining its progressive character.

The Need For Ijtihad
Islam has honored women, Islam has granted rights to women, Islam has protected women; that is the same old song that each man and woman hear when they happen to ask questions on the status of women in the Muslim world. Islam gave women rights fourteen centuries ago that western civilization has not given them to this day. Islam gives them- in the case of need- the right to work and the right to earn. The reality is surely very complicated; yes, the Muslim womenare oppressed in the name of Islam. She is repudiated and cast away in the street in the name of Islam; she is marginalized in the name of Islam, she lost her true identity in the name of Islam.

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