LAWS OF KENYA. MOHAMMEDAN MARRIAGE, DIVORCE AND. SUCCESSION ACT. CHAPTER Revised Edition . Published by the National. LAWS OF KENYA. MOHAMMEDAN MARRIAGE AND. DIVORCE REGISTRATION ACT. CHAPTER Revised Edition . Published by the National. MOHAMMEDAN LAW. B. P. Bhatnagar*. I. INTRODUCTION. Fiqh1 or Muslim jurisprudence presents a diversity of juristric criteria in striking contrast. Sacred2.
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MOHAMMEDAN. LAW. M. S. RAMA RAO raukhamatfrogal.tk, M.A., M.L.. Class-room live lectures edited, laws prevailing in India, apart from learning the salient features . Mulla principles of Mohammedan law and Pakistan to the "Mohammedan law" has been retained but I may say that this expression was coined Format: PDF. AN ACT TO MAKE PROVISION WITH RESPECT TO THE MARRIAGES AND DIVORCES OF. MUSLIMS IN Act. 1. This Act may be cited as the Muslim. Marriage and Divorce Act. 2. This Act shall heretofore kept under the Mohammedan.
Log In Sign Up. Laws Relating to Presumption of Legitimacy; A Comparative Study between Law of Evidence and Muslim Personal Law Mohammad Sattar Mullah1 Introduction Parentage, a legal bondage between the children and parents, carries a vast importance in respect of determining the succession and inheritance deserved by the children from their parents. Parentage is important for the purpose of maintenance, custody and guardianship as well. The confusions and controversies arise in determining the paternity.
This ambiguousness has been made clear by the section of the Evidence Act. This Section consist of two part in which the first part deals with the birth of child during the continuance of a valid marriage between man and women and the second part indicates the birth of a child during days after the dissolution of that marriage.
If the husband wants to escape himself from the liability of born child fulfilling these two conditions, He should prove non-access which means non-existence of the opportunity of sexual intercourse. Legitimacy presumed unless non-access is proved. It has some dissenting views with the provision of Statutory law of Evidence. Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction.
Amount of property: a person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated. Public Wakf 2. However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.
Examples of beneficiaries include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and universities. This is meant to help financially-challenged individuals and communities. It is very similar to waqf khayri, though waqf al-sabil is usually used to establish and construct the public utility mosques, power plants, water supplies, graveyards, schools, etc.
For example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to finance maintenance of the utilities of a village or neighborhood.
Handbook of Mohammedan Law, in the Malaysian Language; Based on the Original
Such assets are managed to produce income that will be used in constructing and reconstructing waqf properties. Examples of such assets include schools, utilities, etc.
On basis of decided cases and the text of eminent Mohammedan Jurists, certain objects which had been declared to be valid objects of wakf are:- 1. Mosque and provisions for Imamas to conduct worship.
Celebrating the birth of Ali Murtaza 3. Repairs of Imambaras. Reading the Koran in public places and also at private houses.
Maintenance of poor relations and dependant. Payment of money to Fakirs.
Grant to an Idgah. Grant to the college and provisions for professors to teach in colleges. Bridges and Caravan Sarais. Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage to Mecca. Keeping Tazias in the month of Moharram, and provisions for camels and Duldul for religious processions during Moharram. Celebrating the death anniversary of the settler and of the members of the family.
Performance of ceremonies known as Kadam Sharif. The construction of a Cobat or free boarding house for pilgrims at Mecca. Performing the annual Fateha of the members of his family.
A Durgahor or shrine of a Pir which has long been held in veneration by the public. The following are not recognized as valid objects of the wakf, by the Muslim law. Objects prohibited by Islam, e. Providing for the rich exclusively. Objects which are uncertain. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways — 1.
By an act of a living person inter vivos — when a person declares the dedication of his property for Wakf. By will — when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by will but now it has been approved. By Usage — when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf.
No declaration is necessary and Wakf is inferred.
Mohammedan law pdf
Dedication to God — The property vests in God in the sense that nobody can claim ownership of it. In Md. Ismail vs Thakur Sabir Ali, SC held that even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.
Also, the laws of inheritance for Twelver Shia, despite being based on the same principles, differ in a number of features due to the rejection of certain accounts of Hadith and based on their understanding of certain events in early Islam. On the other hand, the system of inheritance of the Kharajite Ibadisand Zaidis closely resemble that of the Sunni system. In modern Muslim countries, usually a mixture of different schools of jurisprudence including Shia is in effect, in addition to a number of important reforms to the traditional system.
The main achievements of such modern systems was the codification of inheritance laws. Details of General Law of Inheritance The foregoing general rules of inheritance are detailed as the following based upon Qur'an, Hadith and Fiqh. When a Muslim dies there are four duties which need to be performed. They are: Pay funeral and burial expenses.
Paying debts of the deceased. Distribute the remainder of estate and property to the relatives of the deceased according to Shariah Law.
Therefore, it is necessary to determine the relatives of the deceased who are entitled to inherit, and their shares. These laws take greater prominence in Islam because of the restriction placed on the testator a person who makes a will.
Islamic law places two restrictions on the testator: To whom he or she can bequeath his or her wealth. The amount that he or she can bequeath which must not exceed one third of the overall wealth.
The payment of legacies as far as one-third of the residue. The remaining two- thirds with so much of the one-third as is not absorbed by legacies are the patrimony of the heirs. A Muslim is, therefore, disabled from disposing of more than one-third of his property by will. In most cases, there must be a residue after the shares have been satisfied; and this passes to another class of persons who, under that circumstance, are termed residuaries or asaba in Arabic.
He may dispose of it in whatever way he likes. But such dispositions, in order to be valid and effective, are required to have operation given to them during the lifetime of the owner. If a gift be made, the subject of the gift must be made over to the donee during the lifetime of the donor; he must, in fact, divest himself of all proprietary rights in it and place the donee in possession.
To make the operation of the gift dependent upon the donor s death would invalidate the donations. So also in the case of endowments for charitable or religious purposes. A disposition in favour of a charity, in order to be valid, should be accompanied by the complete divestment of all proprietary right. As regards testamentary dispositions, the power is limited to one-third of the property, provided that it is not in favour of one who is entitled to share in the inheritance.
For example, the proprietor may devise by will one-third of his property to a stranger; should the device, however, relate to more than one-third, or should it be in favour of a legal heir, it would be invalid. In the absence of certain determinate rules, it would be extremely difficult to distinguish between the inheriting and the non-inheriting relations.
For example, if a person on his death leaves behind him a son son s son, this latter will not succeed to his grandfather s estate while his father is alive. Again if a person dies leaving behind him a brother s son and a brother s grandson and his own daughter s son, the brother s son, being a male agnate and nearer to the deceased than the brother s grandson, takes the inheritance in preference to the others.
The law of inheritance is a science acknowledged even by Muslim doctors to be an exceedingly difficult object of study. Although it is not easy to follow it out in all its intricacies, a carefully drawn table on the Sunni law of inheritance is given hereinafter: As mere residuary, when no successor but himself, he takes the whole: Paternal grandmother is excluded by both father and mother; maternal grandmother by mother only.
Full Sisters These take as daughters when no children, son s children how low so ever, father, true grandfather or full brother; with full brother, they take half share of male; when daughters or son s daughters, how low so ever, but neither sons, nor brothers, the full sisters take as residuaries what remains after daughter or son s daughter has had her share.
Several widows share equally. Corollary All brothers and sisters are excluded by son, son s son, how low so ever, father or true grandfather. Half brothers and sisters on father s side are excluded by these and also by full brother.
Half brothers and sisters on mother s side are excluded by any child or son s child, by father and true grandfather. Son s son. Son s son s son. Son of No. Father s father.
Father of No. Half-brother by father. Full paternal uncle by father. Half maternal uncle by father. Father s full paternal uncle by father s side. Father s half paternal uncle by father s side. Grandfather s full paternal uncle by father s side. Grandfather s half paternal uncle by father s side. The whole blood is preferred to and excludes the half-blood at each stage. II Residuaries in another s right, being certain females, who are made residuaries by males parallel to them; but who, in the absence of such males, are only entitled to legal shares.
Islamic law and English texts
The following four persons are made residuaries: III Residuaries in their own right, being males into whose line of relationship to the deceased no female enters: These are: If there be residuaries and no sharers, the residuaries take all the property. If there be sharers and no residuaries, the sharers take all the property by the doctrine of the return. Seven persons are entitled to the return. A posthumous child inherits. There is no presumption as to commorients, who are supposed to die at the same time unless there be proof otherwise.
If there be neither sharers nor residuaries, the property will go to the following class distant kindred: Children of daughters and son s daughters: Daughter s son. Daughter s daughter. Daughters of No. Son s Daughter s son.
Son s Daughter s daughter. CLASS 2. False grandfathers and false grandmothers. Maternal grandfather. Maternal grandfather s mother. Mother of No. Rules a and b , applicable to Class 1, apply also to Class 2.
Furthermore, when the sides of relation differ, the claimant by the paternal sides gets twice as much as the claimant by the maternal. CLASS 3. Parents Descendants: Full brother s daughter and her descendants. Full sister s son. Full sister s daughters and their descendants, how low so ever. Daughter of half-brother by father, and her descendants.
Son of half-sister of father. Daughter of half-sister by father, and her descendants, how low so ever. Son of half-brother by mother. Daughter of half-brother by mother, and her descendants, how low so ever. Son of half-sister by mother. Daughter of half-sister by mother, and their descendants, how low so ever. CLASS 4. Descendants of the two grandfathers and the two grandmothers. Full paternal aunt and her descendants, male or female, and how low soever.
Half paternal aunt and her descendants, male or female, how low soever. Father s half-brother by mother and his descendants, male or female, how low so ever. Father s half-sister by mother and her descendants, male or female, how low so ever. Where sides of relation differ, the claimant by paternal relation gets twice as much as the claimant by maternal relation. Where sides and strength of relation are equal, the male gets twice as much as the female.
General Rule. Each of these classes as above mentioned excludes the next following class. The State. Thus, illegitimate children and adopted children have no shares in inheritance. In general, a full brother will exclude a consanguine brother, but not uterine brother. In case where a deceased man leaves a pregnant woman, the unborn child's share will be reserved.
Also a woman during the time of waiting idda after divorce is considered as a wife of the deceased for purposes of inheritance. There are even further rules of exclusion and inclusion of different relatives. The only "practical situations" which may cause disqualification are differences of religion and homicide. But schools of Islamic jurisprudence differed whether a Muslim can inherit from a non-Muslim or not. All the jurists agree that intentional or unjustifiable killing would exclude a person form inheritance.
In Islam, women are entitled the right of inheritance3. In general circumstances, though not all, Islam allots women half the share of inheritance available to men who have the same degree of relation to the decedent. For example, where the decedent has both male and female children, a son's share is double that of a daughter's. Additionally, the sister of a childless man inherits half of his property upon his death, while a brother of a childless woman inherits all of her property.
However, this principle is not universally applicable, and there are other circumstances where women might receive equal shares to men.A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Publication Information J. In addition, the essay also argues that the discourse of Mohammedan law is developed and nurtured by the orientalist intellectuals.
Particularly after the withdrawal of the native law officers from the courts in the British judges sought to influence the indigenous laws, i. This dream became true after a century; the acquisition of diwany rights of Bengal, Bihar and Orissa in brought an occasion for the Company to participate in the administration of India officially.
Initially, it appears, the Company did not take major initiative to bring any change in the existing administration of justice system. Firstly, the situation in Shia law will not be very different had there been in the above example two grandsons from the predeceased son and one grandson from the predeceased daughter as paternal and maternal grandchildren are entitled to inheritance Morely, Administration of Justice in British India: