KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai) STUDY MATERIAL for FAMILY LAW II Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi Compiled by Reviewed by Dr. Jyoti G. Hiremath, Asst.Prof. Dr. B Jayasimha, Principal B.V. Bellad Law College, Belagavi This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided. II SEMESTER LL.B. AND VI SEMESTER B.A.LL.B. COURSE - V : FAMILY LAW - II : MOHAMMEDAN LAW AND INDIAN SUCCESSION ACT CLASS NOTES Contents Part I - : Mohammedan Law : (127 pages) 1. Application of Muslim Law 2. History, Concept and Schools of Muslim Law 3. Sources of Muslim Law 4. Marriage 5. Mahr / Dower 6. Dissolution of marriage and Matrimonial Reliefs 7. Parentage 8. Guardianship and Hizanat 9. Maintenance 10. The Muslim Women(Protection of Rights on Divorce)Act,1986 11. Hiba / Gifts 12. Administration of Estate 13. Succession 14. Wassiyat / Wills 15. Shuffa / Pre-emption 16. Wakfs, Mutawalli, and Wakf Boards Part II- : Indian Succession Act, 1925, the Family Courts Act, 1984 and the Indian Divorce (Amendment) Act,2001 (105 pages) 1. Domicile 2. Christian Succession 3. Parsis Succession 4. Wills and Codicils 5. Succession Certificate 6. Family Courts Act, 1984 7. Indian Divorce (Amendment) Act,2001 8. Need for Uniform Civil Code References 1. Mulla, "Principles of Mohomedan Law", 22nd Edn, Lexiz Nexis 2. Diwan Paras, "Muslim Law in Modern India", 14th Edn., Allahabad Law Agency 3. Online Articles WHO IS A MUSLIM –application of muslim law -- Hindu law prevailed over all aspects of individual during ancient period. During muslim rule except personal law, every individual is governed by Mohammadan Law, when Britishers came that time also freedom in personal laws continued. -- In India, whenever personal matters come before a court of law, the first question that arises is : which law applies to the parties to litigation? If the parties are Hindus, then Hindu Law and so on. Hence it is necessary to see who is a Muslim in India? -- Muslim law or Mohammadan Law means –that portion of Islamic law which governs the Indian Muslims in their personal matters. -- Who is a muslim in India ? i) Muslim by origin and ii) Muslim by conversion:- a. Muslims who profess Islam b. Muslims who undergo formal conversion. i) Muslim by origin- A person who subscribes to the basic tenets of Islam, is a muslim. -Basic tenets of Islam are :- i) The principle of the unity of God. ii) Muhammad is the prophet of God. - Other essential beliefs- i) Holy book –Kuran. ii) Hazarat muhammad was the first Rasul (prophet) iii) there is a day of Judgement (Kayamat) followed by life after death (Akhirat) -- If a person is born to muslim parents, he will be a muslim and is not necessary to establish that he is orthodox believer of muslim tenets. -- Mere observance of some of rituals of hinduism / any religion, will not by itself make that person a non-muslim. 1 -- Even one of the parents is muslim, their child is muslim but general law in India is that a child carries religion of father. Muslim law can’t be modified by customs. ii. Muslims by conversion— a. Muslim who profess Islam - A non-muslim may become a muslim by professing Islam i.e. acknowledging that there is only one God and Mohmmad is his prophet or by undergoing the ceremonies of conversion to Islam. Such Muslim is governed by the Shariat Act. -Profession with or without conversion is necessary and sufficient to remove the disability/ having another religion—observed by Lord Macnaughten . 1. Abdul Razak v. Aga Mohammad (1893)21 I A at p. 64 -- A wealthy muslim died without heir. One AbdulRazak made claim to his estate on the plea that he was the son of the pre- deceased brother of Abdul - that brother married a burmese woman Mah Thai, buddhist by religion but it was not established that she had been converted to Islam before and after marriage- but she use to recite muslim prayers—held—marriage of Abdul’s brother with Buddhist woman was void under Muslim Law and Abdul Razak become illegitimate child, hence can't inherit property of the deceased. 2) Resham bibi V Khuda Baksha 1938 Lah 277- A Muslim wife to end her unhappy married life renounced Islam and prayed that muslim law of apostasy shall be applied to her & to dissolve marriage. The Judge ordered to eat her pork which she denied – showed that her apostasy was insincere –person’s religious belief is not a tangible thing-but is mental statues--- still court accepted her say of not having faith in allah etc. and granted her prayer. b. Conversation to Islam By ceremonies of conversion like - . Going to mosque . Affirmation to Imam’s questions like 'Are u voluntarily accept Islam ?' . Recitals of kalma- Imam gives muslim name to convert . Registration in a register kept in the mosques. Conversation of a muslim from one sect to another doesn’t amount to apostasy- when a convert doesn’t practice the new faith, he will continue to be muslim Conversation should be bonafide - Skinner v. order (1871) 14MIA309 – a Christian women related to married Christian man – to legalize both converted to Islam by 2 ceremony of conversation - issue of validity of marriage arose wherein the Court held it as null and vide as is done to deceive only. Many cases of fraudulent & dishonest conversation came up before courts. Ram kumari Case, 1891 wherein a Hindu woman adopted Islam for automatic dissolution of marriage and married another. Rakeyabibi v Anil Kumar (1948)22 Cal 119- a wife to get rid of impotent husband converted to Islam. In both the cases conversion was held as not a bonafide conversion. Effects of conversion : can be discussed based on following questions- How far conversation can change the existing rights & status of the convert? How far muslim law applies to the convert & his descendants? Rights & status of the convert – 1. On marriage he can enjoy polygamy - -- Sarla Mudgal v UOI AIR 1995 SC1531- if monogamously married husband converts to Islam & takes another wife, taking advantages of polygamy, he will be guilty of bigamy u/s 494 of IPC & second marriage will be void. 2. Conversion & dissolution of marriage – when one party accept Islam – if other spouse accepts within 3 months, marriage unaffected but in India marriage can’t be dissolved on the ground that other spouse demise for conversion. 3. Application of Muslim law to convert. On conversion, usually muslim law of succession applies. During British period several laws were passed stating a person may continue to be governed by custom after his conversion. But lastly the Shariat Act 1937 passed which prohibited application of customary laws in place of Muslim Personal Law. The Shariat Act, 1937 under Sec.2 enumerates 10 matters in which every muslim will governed by Muslim law (Marriage, dissolution of marriage maintenance, dower guardianship, gifts, trust and trust properties and wakf) Agricultural lands, charities other than Wakf, Charitable and Religious endowments are excluded. In certain matters, a convert may still be governed by customs – i) A convert may governed by custom in respect of adoptions, wills & 3 legacies unless he files a declaration on a prescribed from that he desires tobe governed by muslim law Ex. Khojas, Boharas, Kacchi & Halai memons & Girasias of broach – before Shariat and now also. Let us see in brief about history of these converts in India - . Khojas – Originally trading class of Hindus lived in Sind & Cutch- After conquest wholesale conversion taken place. Aga Khan was the head (Hazar Imam) –believe that he is final interpreter of religion after prophet – religious book is Desaavatar—khojas divided into 3 sects as — i) Ismaili ii)Ithana Ashari iii) Hanafi -- Before Shariat their Inheritance & Succession governed by custom now intestate by muslim law & testamentary under customary law. It means Khojas can will entire property but muslim can do 1/3rd only. Ii) Boharas- Original hindus now Ismails belonging to Gujarat- by profession they were traders & businessmen—divided into Daudis & Sulaymanis – head of Bohra was Dail-Multaq who written a holy book named Da’imce I-Ilam - before 1937 they were governed by custom for inheritence, now intestate succession is under muslim law & testamentary under custom. - Girias of Broach have similar position as Boharas. iii)Menons—Original hindus of i) Porbandar & Kathiawar called Halai memons & ii)Cutchi memous. - Prior to 1920 Cutchi memons were governed by hindu law of succession & for other matters u/ muslim law. The Cutchi Memon Act, 1920 gave choice to adopt muslim law of succession by a declaration. __After Shariat,the Ccutchi Memon Act 1938 provides that there are ruled by Hanfi school for inheritance. --Halai memons governed by hindu law for inheritance before Shariat & now purely under muslim law. iv) Mapillas - South Indian who governed by customs of Mapilla Succession Act, 1918 & Mapilla Wills Act, 1928 made applicable muslim law even to succession.