Islam is one of the most traditional major religions in the world. Although it originates from Arabia, people from all countries of the world understand it now. Due to its mostly uncodified nature, we must look at the sources of Muslim personal law to understand it. This also helps in getting many customs of Islam compared to marriage, divorce, succession, etc.
The major causes of Muslim law include the Quran, Sunna, Hadis, Ijma as well as Qiya. Qiya leads to interpretations of Muslim jurists on matters that neither the Quran nor Sunna explains. Since it was necessary for jurists to interpret all sources individually, conflicting interpretations often developed. Consequently, these variations of opinions led to the creation of many schools of law.
Sunnis and Shias are the two main sects of Islam and both of these sects have their own schools. Although there are varieties of ideas amongst these schools, the Muslim world holds all of them to be correct. Thus, no school has more influence over another.
MUSLIM PERSONAL LAW:
When we talk about Muslim law we know that it is a codified law and is directed by the Muslim Law (Shariat) of 1937 and all the laws related to Divorce, Maintenance, inheritance, etc. are ruled by it.
The source from where the Muslim law is received is essentially the Quran. Although the Muslim community is separated into 2 main groups:
· Shia Community (Shia)
· Sunni Community (Sunni)
Both these areas are governed and regulated by their own laws but these laws that govern them are largely derived from the Quran as it is understood that Quran is the Word of God and any person who is a Muslim follows this law (A person is considered to be a Muslim when he understands that there is one God and Muhammad is the Prophet).
The Islamic law does not understand the concept of adoption unlike the Hindu law and this was also shown in the landmark case of, Mohammed Allahabad vs Mohammad Ismail, where the court held that there is no idea of choice under the Mohammedan law related to adoption as under the Hindu practice but the Muslim law recognizes the concept of paternity. The basic difference between the two is that under adoption, the person who is selected is called the son of a different person while in creation the essentials of acknowledgment are that acknowledge must not be identified as the son of another.
Proviso Clause– If a person wants to adopt a child he can do so under the guardianship and wards act of 1890, with the rules of the court.
GUARDIANSHIP UNDER MUSLIM LAW:
These Powers of Muslim Law tell us of the guardianship of the property of the minor, as guardianship is just interference. Since these powers of Muslim law certainly speak about the guardianship of the property of the minor, the guardianship of the person is a mere inference and since the Muslim private law is not codified like the other laws there are some concepts and terms that we study under this.
RIGHTS OF THE GUARDIAN:
1. Power of withdrawal,
2. Power to grant the contract,
3. Power to carry on business on part of the minor child,
4. Power to manage partition,
5. Power to incur debts and start into contracts.
Further, the Muslim law dispenses with the concept of the natural guardian, testamentary guardian, and guardians designated by the court and also covers the idea of custody in terms of de facto, custody and guardianship which are of utmost importance which have been described under the Muslim law in particular as the Muslim law is not a codified law there are ideas related to every aspect.
The Muslim law is dictated by its own law known as the Shariyat. Muslim law does not understand the concept of separate property. There is only one property with same common rules (such as rule of representation, rule of separation, rule of primogeniture, rule of complete inheritance and of spec successions) for both male and female succession if a Muslim person dies without making a will then, after the death of an person as per the laws, the property under his ambit of ownership would be divided among the legal heirs after subtracting some expenses and liabilities from the left property which is also known as the Heritable Property. The Muslim law for succession orders as follows:
1. The Quran,
2. The Ijma,
3. The Sunna,
4. The Qiya,
DISTRIBUTION OF PROPERTY:
Under Muslim law, there are two schools known as the Shia and Sunni parties of law. Under the Shia law, the property of the dead person is divided as PER STRIP which also means per relationship they share in the house thus, the quantum depends upon the category in which they are and also the number of people that are present in their position while under the Sunni law, the heritable property is classified PER CAPITA which also means per head according to which they get even share in the heritable property. If a Muslim man or women wants to create a will of his separate asset then he can only make a will of the one-third property and not more than that and the left property will go to the legal heirs and if the person wants to will more than one-third part then he has to take the approval of other legal heirs and if he has not taken the consent of other heirs and wills more than his right of one-third the share of asset after his demise, then the person to whom the property was willed will be only to the range of one-third.
Heritage under the Sunni Law:
3. Distant kindred.
The sharers are the person who is immediately entitled to a specific amount of share in the property as per capita and it is fixed by Koram(12) and after the sharers, if any assets are left it goes to the residuary and even after the residuary have taken their shares it will go back again to the shares. Distant kindred are those relationships that are neither sharer nor residuary and property will go to them only if neither of the sharers or residuary is alive. The right of heritage in Muslim law comes with birth, a child in a womb does not possess any right, he will have an equivalent right in the property only if he is born exiting in the family and the shariyat law even talks about the number of shares in case of a widow with children and other cases and if any character dies without any legal heirs then his whole property goes to the government in the method called as Escheat.
Inheritance under Shia Law:
The order of succession under the Shia law is as:
1. Heirs by consanguinity,
2. Heirs by special case
· Group 1( parents and children and descendants of children)
· Group 2( grandparents, brother, and sisters and their descendants)
· Group 3( paternal and protective aunt and uncles)
DOCTRINE OF AUL AND RADD:
There are cases where there appears a situation in which the total sharers exceed the heritable property, then the share is reduced proportionately. While in the case where the share of sharers is less than the heritable property the left part goes to the residuary and if there is no residuary then it moves on to the distant kindred.
In case of testamentary succession, there are subsequent cases:-
Revocation of Muslim Wills:
A will is, by its extraordinary nature, revocable. A testator may, whenever he feels like, cancel his will explicitly or implicitly. In this manner, when the dead testator demolishes the topic of his inheritance, or totally changes its inclination, or exchanges it to someone else, cancellation might be construed. In any case, the marriage of the testator after the creating of the will does not break the will. This rule of Muhammadan Law is completely different from the rule under the Indian Succession Act, 1925 where the marriage of the testator cancels his will.
Lapsing of Legacies:
Under the Sunni law, if the legatee does not survive the testator, the inheritance errors and forms some portion of the testator’s property, while under the Shia law If the legatee does not survive the testator, the inheritance does not lapse but rather goes to the recipients of the legatee. It is just when the legatee has no recipients, then the inheritance lapses.
1. Abatement of Legacies:
Under the Sunni Law, if the bequests surpass bequeath able third, and the heirs don’t agree, under the Sunni law, the estates abate rateably. Inheritances for pious objects are likewise reduced proportionately as bequests for common purposes and don’t have priority over them. Estates for pious objects are themselves divided into three classes:
1. Mandatory philanthropies, e.g., an inheritance for the performance of Hajj in the interest of the departed;
2. Suggested, yet not needed, e.g., an endowment for philanthropy on the below-average overshadow those of the third.
While Shia law does not see the standard of abatement. Of a few bequests, the first in time controls until the point that the bequeathable third is depleted. Where a few fields are to be found in a will, the need is defined by the request in which they are considered. It is to be regarded, in any case, that where there are continuous bequests of the correct third to two different people, the later inheritance prevails.
Executor of a Muslim Will:
Under the stern Muhammadan law, an executor was simply an administrator to complete the purposes of the testator. He was a trustee named by the testator to preserve and deal with his property and kids after his demise. He was not the legal proprietor of the property of the deceased and the property did not vest in him. He had no energy to offer or promise or estrange the property in some other way. Now, under the terms of Section 211 of the Indian Succession Act, 1925. An executor of a Muslim’s will is his legal agent for all purposes and all the property of the deceased vests in him; in this manner, he has the capacity to dispose of the property at the appointed time.
DIVORCE UNDER THE MUSLIM LAW:
The Divorce under the Muslim law is directed by the Muslim Marriages act of 1939. The act says that divorce can take place under two conditions that are:
1. Divorce by wife: When in a marriage the wife wants to grant divorce to the husband she can do it in 3 ways which are also recognized as the Judicial Divorce:
· Talaq-i tafweez
· Dissolution of Muslim marriage act
1. Divorce by Husband: When the husband gives the divorce to the wife it is called Extra Judicial Divorce and the steps are as follows:
· Talaq-i- Biddat
Under the Shia and Sunni Law, there are some conditions that are looked before and asking a divorce a valid one is a Position, Formalities, and Use of Express Words, Free Consent under the Shia law. Thus, divorce is legal under Muslim law and can be made in different ways and also there can be divorced by the way of mutual approval by both parties.
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