The name given to a follower of the religion, Islam, is severally spelt in English – Mahomedan, Mohemadan, Muhammedan, Mohemaddan, and similarly. To spare such a sparring of spellings, in this presentation we shall refer to such a person simply as a Muslim, and the law governing such a person as the Muslim law,
Two major schools of Islam are Sunni and Shia. Muslims in India are largely Sunnis, while Shia sect prevails in a few Islamic countries in Middle and Far East. Each school also has sub-sects of its own, which are divided among themselves in minor matters of rituals, but not in the larger questions relating to succession of property, at least in India. However, under the law prevailing in Pakistan, a Muslim sub-sect, Ahmadis, is not recognised at all by the rest of Muslims as belonging to the Muslim religion. In that country, the Islamic law in its fundamental format neither protects nor punishes the members of this sect.
In this article, we confine ourselves to the process of succession of property among Muslims under the Shariat Law as operating in India.
LEGITIMACY OF CHILDREN FOR SUCCESSION OF PROPERTY
A Muslim child qualifies for succession of property only if it is born legitimate. The child is deemed legitimate, if the process of marriage of its parents had complied with the governing rules. A Muslim marriage is a civil contract and not based on religious vows. It is a contract fulfilled by both man and woman under the direction of a qualified priest (Khazi) and in the presence of stipulated number of witnesses. As in all contracts, there is an offer (Ijab) of marriage made by the bridegroom and its acceptance (Qabool) by the bride. The valuable consideration for the contract is an agreed sum of money or Dower (Mahr) paid by the bridegroom to the bride. Dower may be (i) prompt dower (Muajjal Mahr),which is, payable on bride’s demand made either immediately after the marriage or any time before she lets consummation to occur, or (ii) or deferred dower (Muwajjal Mahr) payable at agreed periods of time after marriage and its consummation.
The Sunni school classifies marriages under three categories: (i) Valid (ii) Illegal or Irregular and (iii) Void. For a Muslim child to acquire legitimacy to succession of property, the marriage of its parents should have been valid.
Under both Sunni and Shia sects, a marriage is deemed valid, if:
- the offer (Ijab) of marriage made by the bridegroom and its acceptance (Qabool) by the bride occur at one meeting;
- the consent of either party is given free from coercion or misrepresentation (This rule does not apply to the Hanafi sub-sect where consent obtained coercively or by misrepresentation does not render marriage void);
- the marriage (nikha) is performed in front of at least one priest (Kazi) and two male witnesses, or one male and two female witnesses;
- the husband does not commit default in payment of the stipulated prompt dower or deferred dower, as the case may be;
- the husband consummates the marriage, only after paying the stipulated prompt dower;
- the number of his living wives at any time does not exceed four;
- none among his living wives are sisters or bear any other type of consanguinity, such as, for example, a relationship of an aunt and a niece, or bear fosterage, that is, a foster mother-child relationship;
- the husband has not married while on a pilgrimage and wearing a pilgrim’s attire;
- the marriage has not occurred during the period specified after the death of an earlier husband or an earlier divorce (Iddat).
Illegal or Irregular Marriage
The Sunni sect considers a marriage as irregular, when it is not unlawful in itself. For example, a marriage of a Sunni woman with a non-Muslim man is unlawful altogether, whereas a marriage of a Sunni man with a non-Muslim woman is only irregular, until she converts to Islam. Thus, a marriage may be lawful but irregular when the disabilities are deemed as only technical in nature or where a prohibition is temporary or relative, and when it is possible to subsequently make such disabilities regular. Illustratively, irregular marriages are those contracted:
- under a Khazi who is not qualified to officiate;
- contracted without witnesses as specified;
- with a fifth wife when all the other four wives are alive and continue as such;
- with a woman before completion of Iddat;
- with a non-Muslim woman, until she converts to Islam.
The children born out of irregular marriage are treated as legitimate for inheritance of property, but the parties to such marriage do not possess the right of mutual inheritance.
Under the Shia school, however, there is no category called illegal marriage. A marriage is either valid or void. The Shia school considers all illegal marriages as void, and children born out of them as illegitimate and do not inherit property. The marriage itself being void, the right to mutual inheritance between the parties does not arise at all.
A void marriage is one which is unlawful in itself, its prohibition being perpetual and absolute. Under both Sunni and Shia schools, a marriage is void when it is contracted:
- by obtaining consent of either party under coercion or misrepresentation
- between persons related by blood or who have a fosterage relationship;
- with the sister of an existing wife;
- by a husband who remarries his wife after divorcing her, unless she is at that time a divorcee or a widow (after completion of iddat) under a subsequent marriage with another person;
- with a fifth wife, while all other four wives are alive and stay wedded;
- during pilgrimage;
- by a male or female with any non-Muslim
- with a woman during her iddat;
- with the wife or husband of another person when such marriage is still subsisting;
- in violation of the rule of consanguinity or fosterage.
Both schools hold that children born out of a void marriage are illegitimate and do not become qualified to inherit property. Needless to add, the parties to such marriage would have no right to mutual inheritance.
Muta is a temporary marriage contracted by a Muslim male for pleasure for a fixed period, however short or long – even for a day, for instance. The man pays a certain reward to the woman for being a wife for the period. The woman may not be necessarily a Muslim. The custom had prevailed in Arabia in times of war and on travels when men needed to be away from homes for long periods.
Such marriage may or may not be consummated, the reward paid to the woman being scaled down in the latter event. The children, if any, born out of a Muta marriage are deemed to be legitimate and acquire right to inheritance. Partners in such marriage do not possess right to mutual inheritance, however.
The Muta marriage is not accepted nowadays by any Muslim sect, except the Shia school.
EFFECT OF NON-PAYMENT OF DOWER ON HUSBAND’S PROPERTY
In the first place, the law looks at dower as an unsecured debt of the husband to his wife. The wife will become vested with the right to sue husband for dower, if the debt has remained unpaid and the husband intends to give her a divorce.
As a general rule, the wife is not entitled to take possession of husband’s property during the continuance of the marriage. If the husband during his life time and during the marriage places his property in his wife’s property in good faith, she can merely have the custody of the property and enjoy mesne profits arising from it to the exclusion of the heirs of her husband. She is, however, obliged to furnish accounts to the other future heirs for the mesne profits and expenses related to the property.
A husband in default of dower may place his property in the custody of his wife until he discharges his debt of dower. However, the property cannot be termed as a pledge, hypothecation or mortgage, as no such charge is created by any original written deed. The custody of property creates a lien, at best. The right of the wife to hold property of her husband in such a circumstance is a right of an unsatisfied creditor. The only validity for her custody of the property is that she should have come into possession of it by an act of the husband placing it in her possession lawfully and that the wife received such possession without force or fraud. Her right to hold the property ceases immediately after her claim to dower stands satisfied.
It is important to note that the Muslim Marriage Act, 1939 entitles a Muslim woman to get her dower amount, even on her husband divorcing her, or embracing any other religion. Where a Muslim woman holds custody of husband’s property as a security for dower, and the marriage ceases while the dower remains unpaid or partially paid, she may enjoy mesne profits arising from it, and may alienate the property in any manner in satisfaction of her unpaid dower, by obtaining, however, a decree by a court through a money suit.
In the same manner as under the Hindu law, a Muslim widow as an heir is entitled to inherit the property of her husband, along with other heirs. She can use her share of inheritance in the form of a self-acquired property in any lawful manner.
EFFECTS OF DIVORCE AND RE-MARRIAGE ON LEGITIMACY OF HEIRS
The Muslim law gives absolute power to the husband to divorce his wife at any time during the marriage without cause. In atonement of this seeming paradox, the Legislature passed the Dissolution of Muslim Marriages Act, 1939, which provides nine grounds for a Muslim woman to seek divorce from her husband.
Divorce, whether caused by the husband or the wife, is irreversible. It is not lawful for the husband to re-marry his former wife. Such marriage becomes lawful, however, only if, after the divorce, she has married another man, and the latter has divorced her duly or died but after consummating such marriage, and if the stipulated Iddat (period of cooling off) has transpired. Children born after such re-marriage become legitimate for succession of property.
Where a couple merely reviews their divorce and mutually consent to co-habit with each other after divorce, the children born to them subsequently are illegitimate and do not rank for succession of property.
Legitimacy of Child
The law determines legitimacy of a Muslim child as under:
- A child born within six months of the marriage is illegitimate, unless the father acknowledges it;
- A child born after six months of the marriage is legitimate, unless the father disclaims it;
- A child born after the termination of marriage is legitimate, if born –
- Within ten lunar months in the Shia law;
- Within 2 lunar years in the Hanafi law, and
- Within 4 lunar years in the Shafii or the Maliki law
Parentage is established either by birth during a regular or irregular marriage, but not by a void or unlawful marriage. Where it is difficult to prove parentage owing to unclear circumstances, it may be established by a valid acknowledgement by the father or the mother. For example:
- Where X acknowledges Z as his son, but fails to prove his marriage with Z’s mother, the acknowledgement is not valid.
- An acknowledgement of paternity by a person aged 30 years, of a child aged 17 years is patently invalid.
Also, the acknowledgement made by one must not be repudiated by the person who has been so acknowledged.
THE GIFT (HIBA)
Similar to the Hindu law in its content, a Gift of immovable property must be in existence at the time of making the gift; that is, a future property cannot be gifted. Likewise, a gift of a property which may be obtained by spes successionis (chance of succession) is also void.
A valid gift consists of a Donor who should
- possess title to the property
- be of sound mind
- be over 18 or 21 years of age, as applicable under the Indian Majority Act, 1875, and
- not be under any undue influence, force or coercion.
- not be in a position of a fiduciary relationship with the donee, such as, a servant with the master, a devotee with a religious head, or an assessee with the tax officer.
A valid gift requires
- declaration of intention of gift by the donor
- acceptance of the gift by the donee and, essentially,
- delivery of possession, either actual or constructive
- no consideration in cash or in kind to accompany the transfer of property
- no exchange of properties to occur by way of mutual gifts
However, the condition as to delivery of possession is exempted where:-
- the donor and the donee reside in the same house
- the gift is between married couple
- the gift is by a parent to his or her child
- the gift is by the guardian to his ward
A gift cannot be revoked after delivery of the corpus except with the consent of the donee or under a decree of a court. However, the donor may revoke his gift before delivery of possession.
A gift may be revoked by the donor even after delivery of possession, where the donor and the donee are related as husband and wife.
Where the property is indivisible, the gift made of an undivided share in property is valid, provided such share is not capable of partition. For example, A, a Muslim, has a share in using the staircase inside an apartment building, such staircase not being divisible among the shareholders. A can gift his share in the staircase to B.
Where the property is divisible, and the share of undivided interest in it is capable of partition, a gift of such undivided share is irregular but not void. The irregularity may be removed and gift may be made valid by executing a partition. Gift made without executing a partition is nevertheless valid, when the donor and the donee happen to be co-heirs of the divisible property.
The donee in a gift need not be a Muslim. The donee includes a minor, whose guardian will take the gift. The father, the testamentary guardian of the father, the grandfather, the testamentary guardian of the grandfather, or a person appointed by the Court is the legal guardian. Therefore, a wife is not entitled to take the gift on behalf of her minor son, unless authorised by the legal guardian. A Mosque, the Wakf Board, or any other juristic person can be a competent donee.
Stamp Duty and Registration
Unlike in the case of a gift by a non-Muslim, the Muslim law does not mandatorily require a gift to be in writing or under stamped document or registered. The Indian Stamp Act or the Indian Registration Act does not apply to a gift made by a Muslim.
Primo, a Muslim is entitled to bequeath his property by a will to any beneficiary or beneficiaries other than his legal heirs to an extent not exceeding one-third of his aggregate estate. Secondo, a Muslim cannot bequeath any property under a will to his own legal heirs. He may, however, exceed both these limitations, if he obtains the consent of his legal heirs for doing so. If the testator has no legal heirs, he may bequeath his estate under a will without any bar.
The testator may appoint an Executor; the Executor may not be necessarily a Muslim.
Validity of Will
A Muslim will does not require writing or registration. If made in writing, such document does not require the signature of the testator, nor attestation by any witness. Bequest to an unborn person is valid, if the child is in the womb and is born alive within six months of making the will.
C.R. Rao, M.Sc., B.L., CAIIB
Legal Consultant (Property Laws and Documentation), Bangalore
(Mob: 93428 79308)