Nature, Origin and Application of Mohammadan Law
SALIENT FEATURES OF MUSLIM PERSONAL LAW (SHARIAT)
The Muslim Personal Law (Shariat) Act of 1937 holds a significant place in India’s legal framework. This Act, enacted by the British Indian Government, aimed to codify and apply Islamic law or Shariat to matters concerning the personal lives of Muslims. The Act predominantly addresses the following fundamental areas of Muslim personal law, outlining the rules and principles that govern these aspects.
(1) Intestate succession—The Act regulates the distribution of property when a Muslim individual passes away without leaving a valid will.
(2) Special property of females—The Act acknowledges and protects the proprietary rights of women, encompassing personal property inherited, acquired through contracts, gifts, or governed by other provisions of Islamic Law.
(3) Marriage and dissolution—It addresses various aspects of marriage, including the processes and conditions for a valid marriage under Islamic law. Moreover, the Act delves into the dissolution of marriage through different means such as talaq (divorce), illa, zihar, lian, khula, and mubaraat, specifying the procedures and implications of each.
(4) Maintenance and dower—It sets guidelines concerning the financial support and maintenance obligations of spouses, ensuring that both parties are treated fairly in matters of sustenance and dower (mahr) obligations.
(5) Guardianship—The Act elucidates the principles governing guardianship of minors and their affairs, emphasizing the responsibilities and rights of guardians within the Islamic legal framework.
(6) Gifts, trusts, and trust properties—It provides regulations regarding gifts, trusts, and the administration of properties held in trust, outlining the rules and procedures in accordance with Islamic Law.
(7) Waqfs—The Act outlines the administration and management of waqfs (endowments) established for religious or charitable purposes.
The Muslim Personal Law (Shariat) Act essentially aims to ensure thatpersonal matters of the Muslims are governed by the principles of Islamic law, emphasizing equity and justice in resolving disputes and regulating personal affairs. It establishes a framework that allows Muslims in India to adhere to their religious laws in matters of personal life while ensuring conformity with the broader legal system of the country.
However, over time, there have been debates and discussions surrounding the Act. Critics argue that the Act may sometimes conflict with modern societal norms and principles of equality, especially concerning the rights of women in inheritance and divorce. While it seeks to uphold religious principles, there is ongoing discourse on how to reconcile it with modern legal and societal standards, particularly in terms of gender equality and individual rights. Efforts have been made to reform certain aspects of the Act to align them more closely with contemporary social values and gender equality.
In conclusion, the Muslim Personal Law (Shariat) Act of 1937 is a crucial legislation that codifies and applies Islamic law to various aspects of personal matters concerning Muslims in India.
Marriage (Nikah)
RELATIVE INCAPACITIES TO ENTER MARRIAGE IN ISLAM
Relative incapacity springs from cases, which render the marriage invalid only so long as the cause, which creates the bar, exists. The moment it is removed, the incapacity ends and the marriage becomes valid and binding. Thus, it differs from the case of absolute incapacity where the marriage is void ab initio and can never become valid. The following are the cases of relative incapacity—
(1) Unlawful Conjunction—It means contemporaneously marrying two women so related to each other by consanguinity, affinity or fosterage, that they could not have lawfully intermarried with each other, if they had been of different sexes.
(2) Polygamy or marrying a fifth wife—It means plurality of wives, i.e., marrying a fifth wife. It is unlawful for a Muslim to have more wives than four. Marriage with a fifth wife is irregular, but this irregularity may be removed by divorcing one of them. Under Shia Law, marriage with the fifth wife is not merely irregular, it is void.
(3) Absence of proper witness—It is essential amongst the Sunnis that at least two male witnesses or one male and two female witnesses are present to testify that the contract of marriage was properly entered into between the parties. In Shia School, the presence of a witness is not necessary.
(4) Difference of religion—A Sunni male can marry a Muslim female (of any sect) or a Kitabia. Marriage with the Kitabia, i.e, a woman who believes in a revealed religion possessing a Divine Book viz Islam, Christianity and Judaism is valid under Sunni Law. However, he cannot marry an idolatress or fire worshipper. A marriage with an idolatress or fire worshipper is merely irregular in Sunni Law, but void in Shia Law.
(5) A woman undergoing Iddat—Iddat is the period during which it is mandatory for a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband.
PRESUMPTION OF MARRIAGE UNDER MUSLIM LAW
The question of marriage is one of fact, and has to be proved by direct evidence, e.g., calling witnesses present at the time of marriage or producing the Nikahnama (marriage deed) signed by the parties. Thus, direct evidence is the best evidence. Sometimes, direct evidence is not available as a Muslim marriage often takes place without any ceremony. In the case of the absence of direct evidence, the marriage may be inferred from the circumstances. This is called the presumption of marriage.
A marriage in Islam may presumed in the following cases—
(1) A prolonged and continuous cohabitation as husband and wife. Mere cohabitation will not be sufficient. It must fulfill the following conditions—
(a) The cohabitation must be prolonged one.
(b) The parties must have been cohabiting as husband and wife.
(c) They should not come within the prohibited degrees.
(d) The woman should not be a prostitute or a concubine.
(e) The woman must have been treated as his wife and she should have been recognised as such with intention and knowledge of giving her the status of wife.
In Gazanfar Ali vs Kaniz Fatima, ILR 32 All 345, their Lordships of the Privy Council held that where a woman is a prostitute, cohabitation, however prolonged could never give rise to the presumption of marriage.
(2) From the recognition of the relation of the husband and wife, by friends, neighbors and relations.
(3) From the acknowledgement by the husband of the wife, provided the relation of husband and wife be not impossible between them.
(4) From the acknowledgement by the man of the children resulting from such union with a woman as legitimate.
(5) The presumption does not apply, if the conduct of the parties is inconsistent with the relation of husband and wife, nor does it apply, if the woman was admittedly a prostitute before she was brought to the man’s house. The mere fact, however, that the woman did not live behind the Purdah, as the admitted wives of the man did, is not sufficient to rebut the presumption.
Concept of Dower (Mehr)
NATURE OF WIDOW’S RIGHT TO RETENTION IN LIEU OF UNPAID DOWER
Right of retention is a right of Muslim wife or a widow to continue to be in possession of her husband’s property in those cases where her dower has not been paid. The right of retention is available when the marriage has been dissolved by death or divorce. During the subsistence of marriage, the right of retention is not available to the wife, unless she has, under a contract, a right of lien or possession over her husband’s property.
Widow should have lawful possession of property—It is necessary that the widow should have come into possession of the property lawfully and without any force or fraud.
Various High Courts in our country differ on the point whether widow’s possession should be with the consent, express or implied, of the husband or his heirs or whether it could be otherwise also. It is submitted that in the view of the nature of the rights of retention, the view that no consent is necessary is preferably particularly in view of the well-established proposition, that widow’s possession should be lawful and that she must have acquired it without force or fraud.
The outstanding features of the right of retention is that once a widow obtains possession of her husband’s property, she has right to retain it until her dower-debt is satisfied. If she is dispossessed, she can recover possession. Since it is a mere right to retention, she is liable to accounts.
No conferment of title of property on the widow—The widow’s right of retention does not confer any title to property on the widow, the title vests in the heirs. The right of retention has the following implications—
- The widow is liable to render full account of all the income and profits.
- She has no right to alienate the property.
- Her right of retention does not bar her suit for the recovery of her dower-debt.
Loss of right—A widow may lose her right of retention in the following cases—
- On satisfaction of the amount of dower out of the income and profits of the property;
- On her alienation of property together with possession;
- On her voluntarily handing over possession to heirs.
Right of retention, whether heritable and transferable—The law is still uncertain as to wether or not the right of retention is heritable and transferable. In Hadi Ali vs Akbar Ali, (1989) B 20 All 263, the Allahabad High Court took the veiw that right of retention being personal right is neither transferable for the value or gratuitously, nor it is heritable.
In Amir Hassan vs Mohammad, AIR 1932 All 345, on the other hand, the Allahbad High Court took the view that the right of retention is not a mere personal right; it is property, and therefore, it is transferable and heritable. This view has the support of some other High Courts also, where it has been held that the right is heritable, though the question whether it is also transferable is left open.
Where it has been held that the right of retention is transferable, a further question has been raised; can it be transferred independently of the dower-debt? In Amir vs Mohammad, ILR (1932) 54 All 499, the Allahbad High Court expressed the view that the right of retention could not be severed from the dower-debt, and therefore, where right of retention is transferred, the dower-debt also stand transferred.
Divorce (Talaq)
CONDITIONS FOR A VALID TALAQ
The Muslim concept of divorce is that, where it is impossible for the spouses to live together, they must separate peacefully. The Shias recognize only the express and the delegated forms of talaq. Among the Sunnis, talaq may be express, implied, contingent, constructive or even delegated. However, there should be the fulfillment of certain conditions to give effect to a valid talaq—
(1) Formalities—No specific formula or use of any particular word is required to constitute a valid talaq. Any expression, which clearly indicates the husband’s desire to break the marriage, is sufficient. It need not be made in the presence of the witnesses.
(2) Capacity—Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaq. A person is said to be of sound mind, if he is sane and not a lunatic or suffering from some disease similar to lunacy. It is not necessary for him to give any reason for his pronouncement.
A husband who is minor or of unsound mind cannot pronounce talaq. Talaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaq pronounced by him during ‘lucid interval’ is valid. A dumb man may also affect divorce by intelligible signs.
The guardian cannot pronounce talaq on behalf of a minor husband—When insane husband has no guardian, the Qazi or a Judge has the right to dissolve the marriage in the interest of such a husband. According to Tyabji, guardian of a husband of unsound mind may pronounce talaq on behalf of such insane husband, if such talaq is in the interest of the husband.
Regarding the capacity of the wife against whom, divorce is pronounced, Ameer Ali is of the view that “when she is of such tender age (minor) as to be unable to comprehend the legal consequences flowing from the act of repudiation, or does not possess discretion, a valid talaq cannot be affected against her.”
(3) Free Consent—Except under Hanafi Law, the consent of the husband in pronouncing talaq must be a free consent.
According to Shia School and Shafii sub-School of Sunni Law, a talaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
(4) Talaq may be oral or in writing—A talaq may be effected orally or by a written document called Talaqnama. A person who is not able to speak can also terminate his marriage by positive and intelligible signs.
Among Hanafis, no special form of talaq is recognized. All that is necessary is that, the words of talaq should show an intention to dissolve the marriage. However, under Shia Law, there is a prescribed formula, which must be recited orally in the presence of two competent witnesses in order to affect the talaq. According to Dr. Jung, the formula of talaq is in Arabic, but if the man is ignorant of Arabic, then he may use any language known to him.
A talaq communicated only in writing is not valid unless the husband is incapable of pronouncing it orally. According to Shia jurists, “As a marriage being a chaste or protected condition favoured by the law, and in its own nature, not admitting of being dissolved, in taking off the tie, it is necessary to adhere strictly to the terms of the legal permission.” —Baillie
(5) Indication of clear indication—The words used must indicate a clear and unambiguous intention to dissolve the marriage. They must be express, e.g., “You are divorced” or “I have divorced you”; in which case, no proof of intention is necessary. According to Dr. MA Qureshi, where the words are ambiguous, the intention must be proved. If the expression is ambiguous, talaq will not take place, even if the husband intended to divorce.
The Sunnis permit divorce in writing too. Nevertheless, the Shias insist that talaq should be oral; unless the husband is physically incapable of pronouncing it orally. The Ithna Asharis also require that, certain Arabic words must be used in the formula of divorce. So long as the intention is clear, no specific form is necessary. Any words may be used.
According to Shias, talaq must be pronounced orally, except where the husband is unable to speak. If the husband can speak, but gives it in writing, the talaq is void under Shia Law. Here, talaq must be pronounced in the presence of two witnesses.
Legitimacy and Parentage
RIGHT TO PROPERTY OF ILLEGITIMATE CHILD
In Islamic Law, an illegitimate child typically does not have inheritance rights from his father, causing significant implications for both the child and his parents, especially the mother who might face severe consequences for the act of Zina. This lack of legitimacy makes it challenging for such children to claim property from their parents.
In all schools of Muslim Law, an illegitimate child usually does not have inheritance entitlement from their alleged father. However, according to the Hanafi School, the mother and her illegitimate children have the right to inherit each other’s property. The illegitimate child can inherit from his mother and her relatives, but is barred from inheriting from the father’s side.
There is a reciprocal inheritance right between illegitimate children and their maternal relatives, who are also considered residual heirs. In the absence of the father and his relatives, the child’s inheritance extends to maternal relations, spouses, and descendants. For instance, in the Hanafi School, if an illegitimate person leaves behind a mother, daughter, and father, the daughter would receive half, the mother a sixth, and the remainder would revert accordingly.
Under Shia Law, an illegitimate child is excluded from inheriting even from his mother. In Shia Law, illegitimacy results in complete exclusion from inheritance rights from either parent.
RIGHT TO MAINTENANCE OF ILLEGITIMATE CHILD
Tyabji asserts that in Islamic Law, there seems to be no specific obligation imposed on the natural father regarding the care of an illegitimate child. While Muslim Law does not inherently place any duty on either parent for the maintenance of illegitimate children, the Hanafi School recognizes the responsibility of nurturing a child until the age of seven. Conversely, the Shia School does not acknowledge this obligation.
According to Muslim Law, the father is not obligated to provide for his illegitimate child. However, section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, mandates the father’s responsibility to financially support such children, except in the case of a married daughter. This legal provision holds the father accountable for maintenance payments, even if the mother refuses to give custody of the illegitimate child to him.
Gift (Hiba)
DONOR’S RIGHT TO GIFT PROPERTY
In Muslim Law, a gift is a voluntary transfer of ownership in an existing property from one person called donor to another person called done. This transfer in gift is to be without any consideration or payment in return. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.
A gift is not valid without seisin (having both possession and title of real property)—The Prophet has said: “A gift is not valid without seisin.” The rule of law is that gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin. [See: Hamilton’s Hedaya]
Gift of land in the possession of a lessee or a mortgagee—Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdoer) or of a lessee or a mortgagee could not be given away. [See: Dorrul Mokhtar’s Book on Gift, p. 635 cited in Mullic Abdool Guffoor vs Muleka]
However, the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. [Abdul Rahim vs Abdul Zabar, (2009) INSC 497 (6 March 2009)]
Essential conditions—The conditions to make a valid and complete gift under the Mohammadan Law are as under—
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of making of gift.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.
REGISTRATION OF GIFT: WHETHER ESSENTIAL
Gift by a Mohammedan is not required to be in writing and consequently need not be registered under Registration Act. What is required is delivery of possession to complete the gift. However, once the gift of immovable property worth more than Rs.100.00 is evidenced by a document, it attracts section 17 of the Registration Act. The document is compulsorily registrable and if the same is not registered, it is inadmissible in evidence. [Shaik Khadaru Masthan vs Smt. Sayyed Fathimun Bee, AIR 2008 Andhra Pradesh 1]
The rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.
Fyzee in Outlines of Muhammadan Law, states in this regard that “writing may be of two kinds—
(a) It may merely recites the fact of a prior gift; such a writing need not be registered.
(b) Writing may itself be the instrument of gift; such a writing in certain circumstances requires registration.
Fyzee further says, “If there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.
In the instant case, the court held that merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When Mohammadan could make a gift orally, its nature and character is not changed, because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites were satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered, but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to be in conformity with the rule of gifts in Mohammadan Law. [Hafeeza Bibi vs Shaikh Farid (Dead) by Lrs, Supreme Court of India Judgment Dated 5 May 2011]
Will (Wasiyat)
REGISTRATION OF WILL: WHETHER NECESSARY
The provisions relating to registration of the will have been given in sections 40 and 41 of the Indian Registration Act. The testator, after his death, or any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration. No time limit has been prescribed for registering the will and a will may be presented for registration at any time. A will presented for registration by the testator may be registered in the same manner as any other document.
Satisfaction of registering officer—A will presented for registration by any other person entitled to present it shall be registered, if the registering officer is satisfied—
(a) that the will or authority was executed by the testator;
(b) that the testator is dead; and
(c) that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the testator as the Registrar is not required to make an enquiry about the capacity of the testator except in case the testator appears to him to be a minor or an idiot or lunatic.
ABATEMENT OF LEGACIES
The abatement is a reduction in the legacies of the beneficiaries in order to maintain the rule of bequeathing only one-third of the property.
(a) In Sunni Law, the abatement of legacies is done in a rateable or proportionate manner. This means that each beneficiary’s share is reduced proportionally, according to the ratios specified in the will, while maintaining the same distribution ratio among them.
(b) In Shia Law, the abatement is done preferentially. This means that the distribution is made in order of preference, based in the order in which the names of the legatees are mentioned in the will. The first legatee mentioned receives full share as specified, while the remaining property is passed on to the next legatee and so on. The distribution continues until one-third of the property is exhausted.
LEGATEE AND HIS COMPETENCE TO MAKE WILL
Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed or religion is no bar to the taking of a bequest. No one can be made the beneficial owner of shares against his will. Therefore, the title to the subject of bequest can only be completed with the express or implied assent of the legatee after the death of the testator.
(1) Bequest to an institution—A bequest may be validly made for the benefit of an institution.
(2) Bequest to a non-Muslim—A bequest in favor of a non-Muslim is valid. But that person in whose favour the bequest is made should not be hostile towards Islam.
(3) Bequest to testator’s murderer—According to Sunni Law, a bequest to a person who caused the death of the testator whether intentionally or unintentionally is invalid. Under Hanafi Law, a will in respect of a person who has caused the death of the testator can be validated, if the heirs have given their consent. According to Shia Law, it is invalid, if the death is caused intentionally and not if it is caused accidentally or unintentionally.
(4) Bequest to an unborn person—A child who is born within six months of the date of making the will is treated as competent to take the bequest. In Shia Law, a bequest to a child in the womb is valid, if it is born in the longest period of gestation, i.e., ten lunar months.
(5) Bequest for a charitable purpose—A bequest for the benefit of a religious or charitable object is valid. The only requisite is a general intention to charity, e.g, where a bequest is made in the way of God, it is valid and the legacy must be spent on good and pious objects.
Waqf
WAQF UNDER MALIKI SCHOOL
In view of the scholars of the Maliki School, waqf means withholding from the matter of ownership of benefits, while the property still remains the property of the waqif, and can be utilized for charitable purposes. A person who waqf a piece of land or some tamar trees or a house to the poor, still has the right, until he dies to manage the waqf property either for rent or to distribute it to the poor. If the wakif has divided the waqf property to his heirs, then it becomes an inheritance and is no longer considered as waqf property. This is because the Maliki School does not require permanence or ta’bid as a condition for accepting waqf even if it is a mosque waqf.
WAQF UNDER HANAFI SCHOOL
According to Abu Hanifah, waqf of property means the detention of property (ayn) owned by another party to obtain benefits from the property by means of charity, either for the present or in the future. Based on this definition, the position of waqf property still remains under the control of the wakif. The waqf of property does not occasionally abrogate the ownership of the waqf. This is because it is a non-binding transaction (ghayr lazim) and its position is the same as the concept of borrowing (ariyah), which is also ghayr lazim. Waqf applies only to that benefit, and does not involve ‘ayn’ or property assets. Abu Hanifah required that his ownership would lapse, when the judge pronounced the property as waqf or upon the waqif’s death. This view is different from Abu Yusuf who is with the opinion that waqf happens even with verbal intent.
WAQF UNDER SHAFI SCHOOL
According to Shafi School, waqf is the permanent detention of property. The property can be utilized, while the owner of the property will be deprived of his ownership rights. The property is used in the form of charity for individuals to get closer to Allah SWT.
Imam al-Syarbini defines waqf as “withholding property that remains in its form and can be utilized, where the proceeds from the property can be used for the intended purpose (mubah), to be handed over to a party determined by the waqif according to Shariah, without renouncing the original property.”
The Shafi School condemns it as haram for a waqif to permanently possess property that has been waqfed. However, the wakif can be appointed as the manager of the waqf property, so he has the right to divide and distribute proceeds of the waqf. Unless the wakif stipulates that the property can be used and utilized by him, or by his other heirs, the wakif cannot take advantage of the proceeds of his waqf property because he has lost his right by handing it over absolutely to Allah SWT.
WAQF UNDER HANBALI SCHOOL
According to Ibn Qudamah, waqf is to retain a property and to distribute the proceeds in the way of Allah SWT. Al-Bahuti, defines that “waqf is the retention of the waqif or his representative’s right to a beneficial property, but it no longer belongs to him.” This is because waqf is not an ‘aqd’ in the form of exchange, but it abrogates property rights for getting closer to Allah SWT.
LEGAL CONSEQUENCES OF WAQF
Once a wakf is complete, the following legal consequences originate—
(1) Dedication to God—The property dedicated become vested in God in the sense that nobody can claim ownership of it. Even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.
(2) Irrevocable—In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his name or in any other’s name.
(3) Permanent or perpetual—Perpetuality is an essential element of waqf. Once the property is given in waqf, it remains for the waqf forever. Waqf cannot be of a specified duration.
(4) Inalienable—Since waqf property belongs to God, no human being can alienate it for himself or any other person. It cannot be sold or given away to anybody.
(5) Pious or charitable use—The usufructs of the wakf property can only be used for pious and charitable purpose. It can also be used for descendants in case of a private wakf.
(6) Extinction of the right of wakif—The wakif loses all rights, even to the usufructs, of the property. He cannot claim any benefits from that property.
(7) Court’s power of inspection—The courts have the power to inspect the functioning or management of the wakf property. Misuse of the property of usufructs is a criminal offence as per Wakf Act, 1995.
Inheritance [General]
PROPERTY RIGHTS OF WOMEN IN MUSLIM LAW
Property changes hands by way of transfer or inheritance and succession. The question of inheritance of property arises after the death of a person. When a person ceases to exist, his inherited and self-acquired property is given to his kith and kin.
As per the Muslim Personal Law (Shariat) Application Act, 1937, there is no distinction between the rights of men and women, which means, after the death of their ancestor, both girl and boy become legal heirs of the inherited property.
A female heir is entitled to half of that of the male heirs because as per Muslim Law, upon marriage, a female receives Mehr and maintenance from her husband whereas males only have the ancestral property.
Mehr is a woman’s property that she receives from her husband at the time of marriage and can use it in whatever way she wants. Mehr does not belong to a woman’s guardian or parents; therefore, this cannot be inherited by others. The quantum of Mehr is dependent upon the husband; he can also give his entire property to his wife as Mehr.
(a) After the death of the husband, a Muslim woman (widow) is entitled to one-fourth of his property, in case she does not have any child. However, a deceased’s wife with children or grandchildren is entitled to one-eighth share of his property.
(b) If the deceased has more than one wife, then the all the wives are entitled to one-eighth of his property. However, if they have children, then the property share of the wives becomes one-sixteenth each.
(c) If a man was ill during the time of marriage and subsequently dies without consummating the marriage then his widow will not have any right to his property. On the contrary, if the ill husband gave a divorce to his wife and dies afterward then that woman has the right to a share in his property, until she remarries.