Ques 01Discuss different schools sources of Islamic law. Will you agree that Imam Abu Hanifa is establisher of ideology and schools? Discuss with causes. 2010

AnsSources of Islamic LawVarious sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic law. The primary sources, accepted universally by all Muslims, are the Qur'an and Sunnah.

Primary sourcesThe QuranThe Qur'an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was written and preserved during the life of Muhammad, and compiled soon after his death.

The SunnahThe Sunnah is the next important source, and is commonly defined as "the traditions and customs of Muhammad" or "the words, actions and silent assertions of him". It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities. Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death.

Secondary sourcesAll medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines to follow in case the primary sources are silent on the issue.

IjmaThe Ijma’, or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize Ijma' as a source of legislation. Muhammad himself said:• "My followers will never agree upon an error or what is wrong", • "God's hand is with the entire community".

In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community. This is so because Ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time.

QiyasQiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources. Supporters of Qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to Hadith, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason." Further, he extended the right to reason to others. Finally, Qiyas is sanctioned by the Ijma, or consensus, amongst Muhammad's companions.

Abu Hanifa (R:) is the creator of ideology and schools of islamic jurisprudenceThe earliest school formed was by Imam Abu Hanifa (699-767 A.D.) of Kufa. It generally reflects the views of the jurists of Iraq. Abu Hanifa did not compose or write any books on law himself, but his numerous discussions and opinions as recorded by his disciples, form the basis of this school.

As a theologian and a religious lawyer, Abu Hanifa exercised considerable influence in his time. His legal thought is very consistent, uses high degree of reasoning, avoids extremes, and lays great emphasis on the ideas of the Muslim community. The Ahmadi Muslims generally follow the Hanafiyya School of law.

Ques 02What are the sources of Muslim Law? Which one is important and discuss with explanation.Pre-Islamic rule how can be changed by Muslim Law. 2010

Ans:Sources of Muslim Law

There are two sources of Muslim Law. These are: 1. Primary Source 2. Secondary Source

1. Primary Source :a. The Quran: The word Quran has been derived from the Arabic word which means to

read Quran. The word Quran which is the divine communication and revelation to the Prophet of Islam is the first source of Muslim Law. It contains the revelation of good to his Prophet Mohammad (SW) through Angel Jibrail (A). It is the paramount and universal authority of Muslim law. Thus it embodied the very words of good as they were communicated to the Prophet (SW). The Quran in its present forms is a book divided into 114 sura and 6666 ayat.

b. The Sunnat and Hadith: Hadith is the second sources of Muslim law. Under the Quran, Hadith means the model behaviors of Prophet (SW).

The Quran says: “Whatever the Prophet (SW) gives accept it and whatever forbids you abstain from it”. It also says: “He does not speak out of his desire it is not but the revelation revealed to him.”

Allah (SWT) also said in Quran: “Obey Quran and Obey the Messenger.”

c. The Ijmaa: Ijmaa can be defined as they agreement of the juridical of a particular period who were the followers the Prophet Hazarat Mohammad Mostafa (SW).

d. The Qiyas: Literal meaning of Qiyas is analogical deduction. It can be define as a process of deduction by which the law of the take is applied to different cases. Qiyas also covers those matters which are not covered by the language of Quran on Hadith on Ijmaa.

2. Secondary Sources: The sources which are collected from different scholars written.

Importance with ExplanationThe Quran has some salient features. For that its carry importance in Muslim Law.

1) Divine Origin: The religious book has a divine origin. It is believed that these were the words of God himself and the Prophet mere uttered these words. Thus, it is unchangeable and its authority is beyond reproach. The Quran is the Al-furqan, the one that shows the truth from falsehood and the right from the wrong.

2) First Source: It is the first and fundamental source of Muslim law and Islamic principles. It is ultimate source of laws.

3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There are 6237 ayats in 114 chapters, each called ‘Sura’. The holy book is arranged topic wise with respective titles. The first chapter praises the almighty God. Other chapters include, surat-un-nisa (chapter relating to women), surat-ul-noor (rules relating to home-life) and surat-ul-talaq (the rules relating to divorce).

4) Mixture of religion, law and morality: It is believed that the verses relating to law were revealed at Medina while the ones relating to religion and mortality were revealed at Mecca. In some places in the book, all three can’t be separated at all. Thus, the whole of Quran cannot be source of a law, instead we refer to the 200 odd law-making ayats scattered all over the book as the basic source of Muslim Law.5) Different forms of legal rules: It has many categories, the ones that remove social evils like child infanticide, gambling etc, and the ones that create specifics so as to solve daily life legal problems as well as providing for the basis of juristic interpretations or inferences.

6) Unchangeable: The Quran can be in no way altered or changed, thus, even the courts of law have no authority to change the apparent meaning of the verses as it does not have an earthly origin.

7) Incompleteness: In the 200 odd verses of law in the Quran, only 80 or so deal with the personal law. Hence, we say that it is not a complete code of Muslim personal law; it only lays down the basic principles.

Further, on many an issue, the Quran is silent. With the spread of Islam, the necessity arose to explain and supplement the Quran so as to deal with the new problems of a growing Islamic society.

Pre-Islamic Rule changed by Muslim Law1. Polygamy Marriage: Has been void by Muslim law to keep more than four.

2. Divorce: Pre-Islamic rule only man can divorce his wife but Islamic law does not invalid it but have given the power also to wife.

3. Exchange Marriage: In pre-islamic rule, man can marriage another one’s daughter or sister in law in exchange of giving marriage to that person with his daughter or sister in law.

4. In Relation between Man-Woman: There have four classifications in relation between man-woman.

a. If anyone wants to marriage another one’s daughter, can be married by giving some money which is kept valid in Islamic law.

b. Husband can give permission his wife to make a relation with another one for birthing a child and after than husband return to home which is invalid in Islamic law.

c. Not more than ten man can visit one’s lady house and then by whom she will pregnant, he will marry her.

d. Not more than 100 man can visit one’s lady house and if she is pregnant then called by her all man and leader of the village. And then decide by them who is father and marry her which is invalid by Islamic law.

5. Muta Marriage: Pre-Islamic rule muta marriage was in practice. After then Islamic law has banned this rule.

6. Will of Wealth: In pre Islamic rule giving wealth only depend on declaration but Islamic law has given a systematic direction.

All above perspective has taken changed by Islamic law and given a proper & scientific direction.

Ques 03Discuss the characteristics of four Sunni schools in Muslim jurisprudence. Why this is called conventional law is differ from Islamic law? 2010

Ans:The jurists who developed this system of jurisprudence and after whom the four sub-schools of Sunni Muslim law are as follows:

1. Imam Abu Hanifa (699 – 767 AD)2. Imam Malik Ibn Anas (713 – 795 AD)3. Imam Mohammad Ash Shafei (767 – 820 AD)4. Imam Ahmad Ibn Hambal (780 – 855 AD)

1. The Hanafi Schools: This is the most important of the four schools of the Sunnis. Its founder was the great Imam Abu Hanifa. Imam Abu Hanifa based his doctrines on Quran and Hadith. According to him, the Quran is eternal in its original essence. The main features of this school are:

a. Less reliance on traditions unless their authority is beyond any doubt.b. Greater reliance on Qiyasc. A little extension of the scope of Ijmaad. Evolving the doctrine of Istihsan

2. The Maliki Schools: Imam Malik is the founder of this school. His doctrines were not, essentially different from Abu Hanifa. The main distinctions of this school are as follows:

a. Acceptance of Tradition which were in the opinion of Imam Malik, authentic, even if the tradition carried the authority of only one narrator.b. Acceptance of the practices of the people of Medina and of the sayings of the Companions of the Prophet Mohammad (PBUH).c. Resource to analogy (Qiyas) only in the absence of an explicit text.d. Making use of a source unique to this school known as al-ma-salih al mursalah

3. The Shafi School: Imam Shafi is the creator of the classical theory of Islamic jurisprudence and is regarded as founder of the science of usual. The school was compromise between the Hanafi and the Maliki. The philosophy of this school can be sum up as:

“He (Imam Shafi) would accept the four sources of law the Quran, the Sunnah, Consensus of opinion and the Analogy. He would also accept Istidlal. However, he rejected what the Hanafi School called Istihsan and what the Maliki School called al-masalih al-mursalah.”

4. The Hambali School: The founder of fourth Sunni School is Imam Hambal. He was a strict follower of the traditions than others and restricted Qiyas and Ijmaa. The foundation of this school rests on five main sources:

a. The Quranb. The Sunnahc. The Ijmaad. The Zaif and Mursal Traditionse. The Qiyas

Difference between Man’s Made Law and Islamic Law

Ans

Islamic Law Based Upon Principles & Truth (Inherent To Creation). Harmonized with, due to Knowledge & Understanding. Universal; exist and applies anywhere in the Universe regardless of location. Eternal and Immutable; exists and applies for as long as the Universe exists, and cannot

be changed.

Man’s Made Law Based Upon Dogmatic Beliefs (Constructs Of Mind). Compiled with, due to Fear of Punishment. Differs with location based upon the whim of legislators (Moral Relativism). Changes with time based upon the whim of legislators (Moral Relativism).

Positive law is made by people.  Natural law comes from sources that are universal.  To many people the source of natural law is God.  Natural law is universal; it applies to everyone.  Positive

law only applies to those people who are the subjects or citizens of the government that creates the law.  Positive law must be written down.  Natural laws are unwritten laws.  In short, then, positive law must be made by a given government and it relies on the government for its power. Natural law is not made by people and has moral power regardless of whether a government recognizes it and makes it into positive law or not.

Ques 04What are the legal essentials of marriage in Muslim law? In what areas marriage defined as irregular or fasid? What is consequences according to law in this marriage? 2010

Ans:

Legal Essentials of MarriageA marriage is done by observing the following requirements:

i. There should be made a proposal by a party to other party and acceptance is mandatory here.ii. The proposal and acceptance must both be expressed at once meeting.iii. The parties must be competent.iv. There must be two male or one male & two female witnesses who must be sane and adult Muslim present & hearing during the marriage proposal and acceptance. (No needed in Shia Law)v. Neither writing nor any religious ceremony is needed.

According to different scholars and cases laws the three essentials of a Muslim marriage are:a. Proposal and acceptanceb. Capacity of contract marriagec. Absence of any impediment

Irregular or fasid MarriageThose marriages which are outcome of failures on part of parties in non-fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed as irregular marriages. In following areas marriage count as fasid:

i. A marriage without witnessii. Marriage with fifth wifeiii. Marriage with a women undergoing Iddativ. Marriage with a fire-worshipperv. Marriage outcome of bar of unlawful conjunction

Effects or Consequences of Irregular MarriageIt may be studied by two angles.

a. Before Consummation : There is no legal effect. If the marriage has not been consummated, the wife is not entitled to dower. Spouses may separate from each other without divorce. Neither divorce, nor the intervention of a court is necessary. Wife is not bound to observe Iddat.

b. After Consummation : i. Wife is entitled to get specified or proper dower, whichever is less.ii. She has to observe Iddat. But in all circumstances, three courses.iii. She is not entitled to maintenance during Iddat.iv. The children of such a marriage are legitimate.

Ques 05a. Define dowry (Mohorana). Discuss importance and effect of dowry in Muslim marriage and divorce. For claiming dowry in which court can file a case? 2010

b. Laki marriage Jakir. In their marriage no dowry has been fixed. Before making physical relation Jakir divorce laki. Now laki want to marriage rashed and want to claim dowry from Jakir. Advice laki. If there is physical relation can it differ your advice? 2010

Ans

Definition of DowryAccording to Abdur Rahim: “It is either a sum of money or other form of property to which the wife becomes entitled by marriage. It is an obligation imposed by law on the husband as a mark of respect for the wife.”

According to Tyabji: “Mahr or Dower is a sum that becomes payable by the husband to the wife on marriage either by in agreement between the parties or by operation of law.”

Importance of Dowry in Muslim Marriage and DivorceThe following are the legal significance of Dower in Muslim Law:-

1. The reason of its significance lies in the protection that it imparts to the wife against the arbitrary exercise of the power of divorce by the husband.

2. Dower is a right of the wife is fundamental feature of marriage contract and has a pivotal place in the domestic relation affecting the mutual rights.

3. According to Muslim Law on the dissolution of marriage the wife can claim her dower money. It may be higher or it may be low depends upon on the source of income of the husband.

4. Legislature has given the power to make law providing that, the court will not be bound to award the amount of dower according to marriage deed. But only such sum as shall be reasonable with reference to the means of husband and the Iddat of the wife.

5. Another Significance of Dower is to place a check on the capricious use of divorce on the part of husband.

6. To impose an obligation on the husband as a mark of respect of the wife.7. To provide for her subsistence after the dissolution of her marriage so that she may not

become helpless after the death of the husband or termination of marriage by divorce.

Claiming DowryFor claiming dowry, one can suite case in lower assistant judge court. In the application must be mentioned dowry amount. If dowry amount not fixed then it will be decide by society or court considering husband’s income and societal position of wife’s family.

Answer (b)If there is no physical relation between laki and jakir, laki will not get any type of dowry from Jakir because here is not created rights. If there is physical relation but not fixed dowry, then dowry fixed by court in consideration wife’s father’s fame, dowry fixed in her family’s previous marriage and income of husband.

Ques 06What is the importance and objectives of divorce law in 1939? 2010Under 1939 divorce law which one is so called crucial and why? 2010

Ans:

Importance:In this subcontinent according to Muslim law divorce practicing is becoming very difficult. Even husband if did not pay any money to his wife or making torture on her wife can’t take any step against this situation. Maliki Schools giving independence to wife to make divorce where Hanafi Schools makes it difficult, so not easy. In this situation judges are in suspection which one should be followed. On this situation in 1939 Hanafi and Maliki were gathered to make law about divorce. This is called Divorce Law in 1939.

Objectives:

There are some objectives to make such law.1. This law is for divorcing by court.2. This Law is gathered sources of different schools.3. Under which conditions wife can file divorce in the court, those are legislated by this law

on 17th March, 1939.

Why called 1939 law is CrucialFor the following reasons 1939 law is called crucial.

Husband’s Conduct1. If husband torture or physically hurt to his wife illegally or2. If husband make a relation with another illegal woman or live dishonesty or3. If husband force his wife to live in dishonesty or 4. If husband transfer his wife’s wealth to another or 5. If husband make provisions on wife’s religious belief or6. If husband have many wives and he not make relation equally.

Wife’s Conduct1. Humiliating her husband in the presence of family members and friends.2. Taunting her husband on his physical in capabilities.3. Neglecting her husband and avoiding him not to share family problems.4. Coldness and insults him openly.5. Deliberately wearing clothes which her husband dislikes.6. Purposely cooking food which her husband is not fond of.7. Visiting her parent’s family off and on against her husband’s wishes.8. Undergoing an abortion despite her husband asking her not to do so.9. Keeping husband outside the door of house.10.Refusing to do household work.11.Threatening to commit suicide.12.Disobedience her husband and the parent of the husband.

Mentioned on the above characteristics is called crucial side 1939 Muslim law.

Ques 07What do you understand declaration of legality in Muslim law? In what areas by probable father need to prove declaration of legality will be reliable and execute – Discuss. Discuss the result of case between Habibur Rahman and Altaf Ali. 2010Ans:

Declaration of LegalityLegitimacy is a status which directly results from the fact of paternity of a child. When the paternity of a child is established, its legitimacy is also established. Basis of legitimacy is paternity which depends upon the existence of a marriage. Therefore, under Muslim law the legitimacy of a child is established by a direct or indirect proof of marriage between the father and mother of the child.

When Need ProofIn cases where no direct proof of marriage is available, the existence of a lawful marriage may be presumed by(i) A prolonged cohabitation of a man and a woman (not prostitute), or(ii) By the fact that a man acknowledges a woman as his wife, or(iii) By the fact that man acknowledges himself as father of a child.

Thus, we find that the basis of legitimacy under Muslim law is the existence of marriage and the marriage itself may be presumed when a man acknowledges paternity to a child born to a woman (wife). It may be said that the marriage between a man and woman and the legitimacy of their off-springs are correlated.

Habibur Rahman and Altaf AliIn Habibur Rahman v. Altaf Ali, the Privy Council while explaining the Muslim law of legitimacy observed:

“A son to be legitimate must be the off-spring of a man and his wife…………………….; any other off-spring is the off-spring of Zina that is illicit connection, and cannot be legitimate. The term ‘wife’ necessarily connotes marriage; but as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available but if there be no such (direct proof), indirect proof may suffice. Now, one of the ways of indirect proof is by an acknowledgement of legitimacy in favour of a son.”

It is to be noted that acknowledgement here means a declaration ascertaining the paternity where, although the marriage exists but the child’s paternity is doubtful because there is no direct proof of the marriage under Muslim law. An acknowledgement cannot legitimatize a child who is proved to be illegitimate.

Ques 08Who are the legal guardian of minor’s wealth? When they can transfer minor’s wealth? 2010Who are natural guardian? Define their power of minor’s visible and invisible wealth. 2010

Ans:Legal GuardianThe person entitled in the order mentioned below to be guardian of the property of a minor 1. Father.  2. The executor appointed by the father’s will.  3. The father’s father.  4. The executor appointed by the will of the father’s father. 

Thus mother, brother and uncle etc. are not entitled as of right to be the legal guardians of the property of minor as held in the case of Sayed Shah Gulam Ghoshe v/s Sayed Shah Ahmad-1971.

Legal guardian can transfer wealth in case of to fulfill minors needed and the legal guardian is bound to deal with the property as carefully as he has dealt with it if it were his own property, as held by Madras High Court in l940.

Natural GuardianRegarding the nature and extent of the right to custody of a minor child, it was observed by the Privy Council in the case of Immambandi v/s Mutasaddi-1918, “It is perfectly clear that under the Muslim Law the mother is entitled only to the custody of the person of her minor child up-to a certain ages according to the sex of the child but she is not the natural guardian. The father alone or if he is dead his executor (under the Sunni Law) is the legal guardian. In Shia Law she is entitled to the custody of her male child till the age of 2 years and to a female child till the age of 7years.

Powers of Legal Guardian

1. Regarding Immovable Property Legal guardian cannot alienate by sale of mortgage the immovable property of the minor except when alienation is absolutely necessary or for the clear benefit of the minor. When the minor has no other means of livelihood and sale is absolutely necessary for maintenance. Where the double price of the property can be obtained by him. Where the expenses exceed he income of the property. When the property is falling into decay. The legal guardian has no power to carry on business of his ward especially if the business is one which may involve his minor’s estate in speculation or loss. When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution.  A legal guardian is empowered to enter into contracts on behalf of minor provided that such contracts are for the benefit of the minor.

2. Powers regarding movable properties The guardian is empowered to sell or pledge the goods and chattels of the minor for the minor’s necessities as food, clothing and nursing etc. Muslim Law does not impose upon minors any obligation to pay interest on sums advanced to them.  The legal guardian is bound to deal with

the property as carefully as he has dealt with it if it were his own property, as held by Madras High Court in l940. 

Ques 09What is Marz-ul-Maut or Death Illness? Why this is add in Muslim law? What is legal effect of Marz-ul-Maut gift? Difference between gift and Marz-ul-Maut? 2010, 2012

Marz-ul-MautA gift to be valid as Marz-ul-Maut gift must be made during Marz-ul-Maut, or death-illness. The most valid definition of Marz-ul-Maut is that a malady which, it is highly probable, will issue fatally. A gift must be deemed to be made during Marz-ul-Maut, if it was made “under pressure of the sense of the imminence of death. It is now established that in order to constitute a Marz-ul-Maut gift, the following conditions must be satisfied:

i. The malady or illness must result in death,ii. The malady or illness must cause a reasonable or genuine apprehension of death in the

mind of the sufferer,iii. There should be some external indicia of a serious illness or malady, andiv. Delivery of possession must be given to the done.

Importance of Marz-Ul-MautOne of the Muslim laws enshrined in the Shariat is the Marz-ul Maut or gifts made by a Muslim on his death bed. Muslim law means that portion of Islamic civil law which is applicable only to Muslims. Generally the trend among Muslims earlier was not to make a will or ‘Wasiyat’. Hence Islamic law thought it prudent to lay down a set of laws regarding disposal of property when a Muslim was on his death bed. This is referred to as Marz-ul- Maut. Gift during Marz-ul-Maut is one form of testamentary succession. Gift during Marz-ul-Maut means gift on the death bed. When a person is very seriously ill and on the apprehension of death and he makes a gift at that time, then it will be a gift during Marz-ul-Maut. Gift on the death bed is a hybrid of 'hiba' or gift and will. It includes some essential elements of will and some essential elements of gift.

As per Islamic law a gift made at a time when there is reasonable apprehension of death of the testator will be distributed as per the canons of the Shariat. This is called death bed gifts and is valid only if the testator dies after executing a will.

Legal Effect on Marz-Ul-MautIt was common ground that among Sunnis, who comprise the great majority of the Musalmans, a gift or waqf made in mortal illness (Marz-ul-Maut), unless assented to by the heirs, is valid only to the extent of one third. It was urged, however, that a different rule prevails among Shias. If this was so, they should have applied the case of Shias, the law of that sect under the rule of justice, equity and good conscience which they were bound to administer. They had, therefore, to determine whether under the Shia law a waqf made in death-illness was valid as regards the entire property if possession had been delivered under it.

In the appellate court’s opinion the weight of authority was in favor of the view that under the Shia law a waqf made in death-illness was valid only to the extent of one third, if not assented to by the heirs, even if possession had been delivered by the maker of the waqf. A similar view was held by Mr. Justice Piggott in the case of a gift in Nazar Husain v. Rafeeq Husain. The decision of the court was that it dismissed the appeal filed by the appellants.

Difference between Gift and Marz-ul-MautThe only difference between a simple gift and a death-bed gift is that if a gift is made by a donor during his death-illness, the gift is testamentary; if it is made normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the essentials of a valid Hiba are necessary.

There must be declaration, acceptance and the actual or constructive delivery of possession. In brief, the gift must be valid in all respects according to the provisions of Muslim personal law.

Ques 10

What is will? Discuss obligations to give wealth by doing will. Is can be will of different man? 2010

“There cannot be will in advise to legal heirs” – Discuss. Why muslim law has introduce it. 2010

Ans:

WillWill is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, after he is dead. Will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

Essential Elements to Will1. Competency of the   testator (who can make the will)

Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of majority is needed. A will made by a minor is invalid but it can be validated by ratification after he attains majority.

a. Will of a person committing suicide - Under Sunni Law the will of a person committing suicide is valid. Under Shia law, a will made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any act towards committing suicide, it is valid.

2. Competency of the   legatee Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar. However, no one can be made the beneficial owner of the shares against his will, therefore, to complete the transfer, the legatee must give his express or implied consent to accepting the legacy.

3. Validity of the subject of will - To be able to will a property, it must be -a. Capable of being transferred.b. In the ownership of the testator.

4. Extent of power of will The testamentary power of a Muslim is limited in two ways – 

a. Limitations as regards to person - A bequest in favour of an heir is not valid unless the other heirs consent to the bequest after the death of the testator.

b. Limitations as regard to the amount - The general principle is that a Muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the testator. In Shia law, such consent can be taken either before or after the death.

Legal HeirsFor a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the injury of the lawful heirs.

Ques 11What is pre-emption or Sufa? Who can apply pre-emption? For applying this what steps should be taken? Is there any time limitation for filing case? 2010

Ans:

Pre-EmptionThe technical Arabic term for its Anglo-Mohammedan equivalent ‘Pre-Emption’ is sufia which literally means ‘Adding’.

According to Mulla “The right of sheefaa or pre-emption is a right which the owner of an immovable property possesses to require by purchase another immovable property which had been sold to another person.”

According to Dr. Tahir Mahmood “The right of pre-emption is the legal privilege to acquire some property in priority to other prospective purchasers on the terms which the taken might have genuinely offer.”

Conditions for Applying Pre-EmptionThere are three conditions.

1. The Pre-Emptor must be the owner of immovable property.2. There must be a sale of certain property, not his own.

a. An intention to sell can never be a ground for claiming the right. b. According to the Muslim Law, a sale is complete when the purchase price is paid by

the purchaser to the vendor and possession of the property is delivered by the vendor to the purchaser.

c. But according to TPACT 1882, registration is also needed.3. The Pre-Emptor must stand in a particular relationship to the vendor in respect of the

property sold.

Formalities to be observed in Pre-Emption1. The First Demand (Immediate Demand)

On receiving the information of the sale the pre-emptor must immediately declare his intention to assert his right. No witness are necessary nor any particular language or form for making this demand.

2. The Second Demand (Confirmatory Demand)The pre-emptor must with the least practicable delay make second demand either personally or through an agent.

3. The Third Demand (Demand for Possession)The third demand or speaking more precisely a legal action is only necessary when the first two demands fail.

Filing CaseCan be filed case within one year of the purchaser taking possession of the property if it is corporeal or within one year of the registration of the instrument of sale if incorporeal.

Ques 12What is rule of Aul and Radd? 2010

Ans:

Rule of AulThere may be cases when the fractions taken together is more than unity or oversubscribed in that cases to obtain the necessary unity all the basic Qur’anic portions are reduced pro-rata or proportionally. But the result of this reduction is achieved by increasing the common denominator to a number which represents the sums of original numerators. Thus the process of obtaining a unity by increasing the denominator is called the Aul or Increase.

Rule of RaddThere may be cases when the net property is under subtracted. It will happen when only surviving relatives are Qur’anic sharers who is prescribed portions do not exhaust the estate. In such a case, the residence of property is distributed among the sharers according to the principle of return or Radd proportionally.

2012Ques 01Define Islamic Law. Islamic law is differ from man’s law – Discuss. Islamic law is created from divine sources – Evaluate it. 2012

Ans:Definition of Islamic LawThe law according to the Muslim faith and as interpreted from the Koran. Related Terms: Sharia Law, Muslim Law, Fiqh, Theocracy, Muslim, Law and Sunnah. The law according to the Muslim faith and as interpreted from the Koran; also known as Sharia law.

Difference Between Man’s Made Law and Divine LawIf we try a fair, conscious and rational assessment of the Islamic Laws and the Secular Laws in their diverse forms and philosophies, such as Capitalism, Socialism, Communism and the like, which are offshoots of ignorant thinking, we realize the most important differences which distinguish Islamic or Divine Laws from Secular or man-made Laws, and which define their respective identities and features are as follows:

1. Criterion of truth and justice The Islamic Canon is based on the criterion of Truth and Justice where the Secular Law knowing no ‘Truthful’ or natural base proves to be false.

2. Objectivity The objectivity of the Islamic Legislation is concentrated in its being free from the intrusion of personal interests of desires and the subconscious factors where Secular Law had been influenced by the environment, circumstances, psychological and social situations and the law-maker’s personal interests and emotions.

3. Clarity of Vision The Islamic Law which is Divinely revealed has a clear objective, and a defined goal, that charts out man's course in life but the Secular Law which has no obvious objective except that which serves the interests of the governing clan and its ambitions.

4. The Ethics of the Islamic Law The Islamic Law is based on its respect for morals, safeguarding them and maintaining close ties with them, contrary to the Secular Law, which does not adhere to morality, nor cares for it.

5. Capacity and Universality One of the major differences between the Secular Law and the Islamic Law is the latter's capacity and universality. The Islamic Law leaves no part of the human activity, big or small, without having it organized in one way or another, through well-defined laws, rules and regulations. As to the Secular Law, it miserably lacks all these characteristics, since it suffers from the narrowness and limits of its horizon and is incapable of organizing the different aspects of the human behavior, as the Islamic Law does.

6. Harmony and Non-contradiction The Islamic Law forms a perfect responsive and objective unit. Each part of it supports the other and helps it to be applicable. The Secular Constitutions, likewise, stiller from similar contradiction and discord, despite the fact that constitutions are the origins from which laws are derived.

7. Humanitarianism The Islamic Law is humanitarian, Regionalism, racialism, class-discrimination, opportunism and egoism are not found in the text and spirit of the Islamic Law as the call of Islam is addressed to the human race as a whole. The Secular Law reflects the legislator's understanding and his personal inclination.

8. Everlastingness The biggest characteristic distinguishing the Islamic Canon from other laws is the fact that it is everlasting. Islam represents the eternal logic of truth and justice in life, since it expresses the eternal will and wisdom of Allah in existence. The Secular Law avails of no such merits. It revolves within the limits of the will of its maker and his social conscience.

Islamic Law is Created from Divine SourcesThere is no doubt that Shariah is part of the revelation of Allah. The Shariah is revealed in the Quran. Man does not have the wisdom to lead the whole of humanity in all its complexity. Indeed, the Shariah will remain until the Day of Judgment. Man-made laws are applicable to societies only for a limited time and then they have to be revised or changed. But the laws given by Allah apply to all societies for all time till the Day of Judgment and are not changeable. This shows the tremendous depth of wisdom in these laws which can only come through the guidance of Allah, the Most Wise.

Allah Almighty states what means:{The truth is from Allah; so be not at all in doubt} (Al-Baqarah 2:147).

This means that truth only comes from Almighty Allah, and it remains the truth, regardless of how humanity might try to conceal, reject, deny or cast doubts upon it. If truth is rejected, truth does not suffer. Only the rejecters will suffer and perish in the end.

Finally, when we say either of the shahaadatain (the two testimonies of faith), it becomes obligatory upon us to give the Prophet (peace be upon him) our complete obedience. Allah has made this very clear in numerous places in the Quran.

Ques 02Discuss sources of different schools of muslim law. “Abu Hanifa (R:) is the creator of ideology and schools of islamic jurisprudence” – Discuss. 2010, 2012

Ques 03Discuss different kinds of divorce in muslim law. When divorce cannot be returned? How ordinance of muslim family law 1961 make a changes in muslim law – Discuss. 2012

Ans:Different Kinds of DivorceThere are 4 main methods of separation in Islam:• Granting of Divorce by the Husband – Talaq• Separation by way of consent between the parties – Khula• Dissolution of Marriage – Faskh-e-Nikah• When the power of Talaq is transferred to the Wife – Tafweedh-e-Talaq

Talaq is the unilateral right of the man and can only be given by him. However, if he agrees to transfer his power of Talaq, then the wife will also have the same right, known as Tafweedh-e-Talaq.

The biggest confusion within Muslims occurs in the mix up between Khula and Faskh-e-Nikah. Khula is when parties agree to separate by way of consent, usually upon terms such as the wife agreeing to repay her Mehr (dowry) to the husband upon him agreeing to grant Talaq. Faskh-e-Nikah is the dissolution of a marriage by an Islamic Court (in a Muslim country) or a Shariah Council (in the UK) when the wife wants to proceed with divorce but the husband unreasonably refuses to grant the Talaq. This refusal by the husband is contrary to the spirit of marriage and divorce as set out the Qur’an.

Divorce cannot be ReturnedIn case of Ahsan TalaqIf husband expresses to his wife that he wants to retain her before the expiration of the period of iddat.

In case of Hasan TalaqIt can be revoked by not making the third pronouncement of Talaq.

Talaq-ul-BidaBiddat means sinful. Reference Case: Ahmed Giri vs. Mst. Bigha AIR (1955). It was held that this is the form of Talaq in which the pronouncement of Talaq is irrevocable under Islamic Law. This type of Talaq is not good but valid U/Muhammadan Law.

Single Irrevokable TalaqIf the husband say to his wife “I divorce you irrevocably” It is enough and irrevocable Talaq.

Tripple Irrevokable Talaq If husband says to his wife I divorce you, I divorce you, I divorce you or says only that “I divorce you thrice” is sufficient & irrevocable.

Changes in Muslim Family Law 19611. Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement

of Talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

2. Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for term which may extend to one year or with fine which may extend to ten thousand taka] or with both.

3. Save as provided in sub-section (5), a Talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

4. Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

5. If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.

6. Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third-person, unless such termination is for the third time so effective.

Ques 04Define dowry. Importance of dowry in Muslim marriage and divorce. 2012Discuss rights of a widow on husband’s wealth in change of dowry. 2012To claim dowry in which court can file a case? What elements should be present in case application? 2010, 2012

Ans:Definition of DowryIn Islam, a Mahr or dowry is a mandatory payment, in the form of money or possessions paid or promised to pay by the groom, or by groom's father, to the bride at the time of marriage that legally becomes her property.

Importance of DowryThe following are the legal significance of Dower in Muslim Law:-

1. The reason of its significance lies in the protection that it imparts to the wife against the arbitrary exercise of the power of divorce by the husband.

2. Dower is a right of the wife is fundamental feature of marriage contract and has a pivotal place in the domestic relation affecting the mutual rights.

3. According to Muslim Law on the dissolution of marriage the wife can claim her dower money. It may be higher or it may be low depends upon on the source of income of the husband.

4. Legislature has given the power to make law providing that, the court will not be bound to award the amount of dower according to marriage deed. But only such sum as shall be reasonable with reference to the means of husband and the Iddat of the wife.

5. Another Significance of Dower is to place a check on the capricious use of divorce on the part of husband.

6. To impose an obligation on the husband as a mark of respect of the wife.7. To provide for her subsistence after the dissolution of her marriage so that she may not

become helpless after the death of the husband or termination of marriage by divorce.

Rights of a Widow on Husband’s WealthUnder the rules on succession, it is common knowledge that the surviving spouse is a legal heir of his or her deceased spouse. In fact, the widow or widower is considered a compulsory heir guaranteed by law to receive a portion of the estate of the deceased person called legitimate. The widow or widower referred to in the law is the legal spouse of the deceased person.

By legal separation, the husband and wife are entitled to live separately from each other, but the marital tie between them remains because legal separation does not sever the marriage bonds between the spouses. The legally separated couple remains married in the eyes of the law. This being the case, the fact that the husband and wife are legally separated does not mean that the surviving spouse is automatically disqualified from inheriting from his or her deceased spouse.

From the foregoing, it is clear that legal separation will not disqualify from inheriting from husband unless gave the cause for the legal separation.

As to the rights of husband’s half-siblings to the pieces of property he left, brothers and sisters are not compulsory heirs, and therefore not entitled to a legitimate. They are only entitled to inherit in accordance with the rules on intestate succession to the provisions of a last will and testament.

Ques 05What is sufa? Who can claim it? How can be claimed? 2010, 2012

Ques 06Difference between guardian and custodian. When guardian can transfer of a minor wealth a. legally guardian b. guardian assigned by court c. actively guardian 2012

Ans:

DifferenceGuardianThe guardian of a minor child fulfills the role of a substitute parent. The guardian maintains physical and legal custody of the child, helps the child with daily tasks and makes financial and medical decisions on the child's behalf. When choosing a guardian, make certain the person you choose is comfortable with the appointment. In most jurisdictions, the court must approve the choice of guardian in the event both parents die or are unable to care for the child. If both parents die and did not leave a will or appoint a guardian, the court will appoint one for the children. If one parent dies naming someone other than the surviving parent as guardian, the court can override the appointment if it is in the child's best interests.

CustodianA custodian is also appointed by will, but serves a different role than the guardian. The custodian is responsible for managing, overseeing and protecting any inheritance received by a minor child until the child reaches an appropriate age. If no age is provided in the will, the custodian can release the assets when the child turns 18, 21 or 25, depending on the jurisdiction. Some wills require the custodian to wait until the child is older or a specific event occurs, such as the child's college graduation. The same person can serve as custodian and guardian.

Guardian Assigned by CourtHe can transfer the wealth if and only if

a. Sell value is double than purchase valueb. Maintenance needed for minor’sc. Died persons have loan and there is no way to repay it either selld. Income from wealth is less than expenditure

Actively GuardianHe cannot transfer wealth without taking permission from the court.

Ques 07What is Marz-ul-Maut or Death Illness? Why this is add in Muslim law? What is legal effect of Marz-ul-Maut gift? Difference between gift and Marz-ul-Maut? 2010, 2012

Ques 08What is the legal effect on Sahih, Fasid and Batil marriage? What are essentials to do the marriage? 2012

Ans:Legal EffectIn Muslim law, marriages are of three kinds:

1. Sahih i.e., true, which is a completed valid contract;2. Batil i.e., bad in its foundation, and one which is a completely void agreement; and3. Fasid, i.e., irregular, or one which is good in its foundation, but unlawful in its attributes.

Batil MarriageA batil marriage is altogether illegal, and does not create any civil rights and obligations between the parties. In such cases, there is neither dower, nor iddat, nor legitimacy of the children. Thus, a marriage which is prohibited on the ground of consanguinity, affinity, or fosterage, is void, the prohibition against such a marriage being unconditional and absolute. Similarly, a marriage with a woman who is the lawful wife of another is void.

Fasid MarriageAn irregular (fasid) marriage, on the other hand, is good in its foundation, but unlawful in its attributes because of the lack of some formality or the existence of some impediment. The lack of formality may subsequently be made up, or the impediment may subsequently be removed. In other words, such a marriage is not unlawful in itself. A fasid marriage has no legal effect before consummation. Even after consummation, the husband and wife have no mutual rights of inheritance between themselves, but the issues of such a marriage are legitimate. If consummation has taken place, the wife is (i) entitled to dower, proper or specified, whichever is less; and (ii) bound to observe iddat.

Essentials to MarriageFollowings are the essentials of Muslim Marriage/Nikkah

1. Every Muslim of sound mind who has attained puberty, may banter into a contract of marriage (Puberty means age when person become adult).

2. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

3. A marriage of a Muslim who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Puberty is presumed, in the absence of evidence, on completion of the age of sixteen years in case of female and eighteen years for female.

4. Consent of parties is absolutely necessary especially Islam lay emphasis on the consent of women. And adult female may engage in the contract, without her guardian’s consent. A

woman who is an adult, and of sound mind, may be married by virtue of her own consent although the contract may not have been made or acceded to by her guardians.

5. The manner and form in which a marriage is to be solemnized is unambiguously decreed in Islam. The particular characteristic of Nikkah is that it is performed publicly in the present of witnesses and ijab-o-kabool has to be ascertained by the Nikah Khawan and brought to the notice all present for their information.

Ques 09What do you understand declaration of legality in Muslim law? In what areas by probable father need to prove declaration of legality will be reliable and execute – Discuss. Discuss the result of case between Habibur Rahman and Altaf Ali. 2010, 2012

Ques 10Explain Talaq-E-Tawfiz and does any change in applying Talaq-e-Tawfiz by Muslim Family Law Ordinance 1961 – discuss. 2012Explain Iddat. Define amount in different conditions. 2012

Ans:

Talaq e TafweezA husband may delegate his power to give Talaq to any third party or even to his wife. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce herself from her husband under certain specified conditions (e.g. husband taking a second wife), is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy.

In Mohd Khan Vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement in which the defendant agreed to live in plaintiff's parental house after marriage and if he left the house, he would pay a certain sum to the plaintiff, the default of which the condition would act as divorce. It was held that the condition was not unconscionable or opposed to public policy.

Change in Talaq-E-TawfizWhere the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.

IddatIn Islam, iddah or iddat is the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a Nikah (marriage) would be known.

Different Forms of IddatIf the woman is divorced by Talaq before the man has entered upon her and been alone with her, i.e., before intercourse or intimacy with her, then she does not have to observe any ‘iddah at all. Simply by virtue of the divorce it becomes permissible for her to marry another man. But if he has entered upon her and been alone with her and had intercourse with her, then she has to observe the ‘iddah (waiting period) which takes one of the following forms: 

1 – If she is pregnant then her ‘iddah lasts until the pregnancy ends and she delivers, whether that is a long time or a short one. It may so happen that he divorces her in the morning and she gives birth at noon, in which case her ‘iddah is over.

2 – If the woman is not pregnant and she is of child-bearing age, then her ‘iddah is three complete menstrual cycles after the divorce, i.e., her period comes then she becomes pure, then her period comes again and she becomes pure, then her period comes again and she becomes

pure. That is three complete menstrual cycles, regardless of whether the time between them is long or short.

3 – If a woman does not menstruate, either because she is very young or old and past menopause, then her ‘iddah is three months.

4 – If a woman’s periods have ceased for a known reason and she will not menstruate again, such as if her uterus has been removed (hysterectomy), then she is like one who has passed menopause and her ‘iddah is three months. 

5 – If her periods have ceased and she knows the cause, she should wait for the cause to cease and for her periods to return, then she should observe ‘iddah according to her menstrual cycle. 

6 – If her periods have ceased and she does not know what caused that, then the scholars say that she should observe an ‘iddah of a full year, nine months for pregnancy and three months for ‘iddah. 

These are the categories of ‘iddah for women divorced by Talaq. 

Ques 11What are the demands on died muslim person before distribution his wealth? In what amount inheritance are liable to pay the dyed persons loan? If anyone kills another one does he will get wealth from that person? In this situation shia and sunni schools are agree or different? 2012

Ans:

Demand on Dyed Muslim WealthWhen a Muslim dies there are four duties which need to be performed. These are:

1. Funeral Expenses : That the expenses for the necessary requirements from the time of death until completion of the burial be drawn as a first charge from the estate.

2. Debts & Obligations : Thereafter, from the remaining Tarakah (estate) all debts including unpaid Mah-r (dowry) shall be paid. Both, or either one, of these debts shall be second charge to be drawn from the estate (Tarakah).

3. Execution of Will : Thereafter, any Wa’siyah (testament or bequest) in favor of non-heirs shall be fulfilled from one-third (1/3) of the Tarakah (remaining estate). This due and liability shall be third charge drawn from the remaining estate. The Shariah disallows any portion of Wa’siyah, which is in excess of 1/3 (one third) of the Tarakah. This Wa’siyah shall be a first charge to be paid before the rightful inheritors receive their share from the Tarakah.

4.       Distribution: Lastly, the Tarakah (final residue) of the estate shall be distributed among the rightful heirs of the deceased Muslim according to the law of inheritance specified by the Glorious Quran, Sunnah, and Ijmaa.

Liable to Pay Dyed Persons LoanAccording to debt & obligations, after completing funeral expenses from the remaining Tarakah (estate) all debts including unpaid Mah-r (dowry) shall be paid. Both, or either one, of these debts shall be second charge to be drawn from the estate (Tarakah).

Ques 12Who are the sharers in Hanafi Muslim law? Why they are called sharers? 2012During death of Dabir he kept True grandfather, Father, Mother, Wife, Two daughters, one brother, one sister, and one daughter of his death sons. Distribution his wealth

1. Hanafi way 2. Regulatory law

Ans:

Who are SharersThe Hanafi jurists divide heirs into seven classes. The three are principal classes and the four are subsidiary classes.

In principal classes, Quaranic heirs are called sharers. They are:Male Female

1. Father 1. Wife 5. Consanguine Sister 2. True Grand Father 2. Daughter 6. Uterine Sister3. Uterine Brothers 3. Daughter’s daughter 7. Mother4. Husband 4. Full Sister 8. True Grandmother

Why called SharersKoranic Heirs or Sharers are those who are entitled to as prescribed share of the inheritance.

2014Ques 01Discuss the characteristics of four Sunni schools in Muslim jurisprudence. Why this is called conventional law is differ from Islamic law? 2010, 2012, 2014

Ques 02What is Shariah law? Importance of Shariah law in Bangladesh or discuss difference between Shariah law and modern jurisprudence.

Ans:

Shariah LawIn modern time Sharia is defined as a collection of ancient laws and regulations only. This modern definition of Sharia is not correct at all. Many people thinks that Sharia is not good any more for modern time and prefer secular laws in the state affairs. But the truth is that Sharia is not only a set of laws and regulation but also the proper way of life, the proper guidance of Allah. The one and only almighty Allah sent his prophet and messengers to the mankind to give the proper guidance which is Sharia.

Importance of Shariah LawThe importance of Shariah can be seen through the meaning of the concept. The word Shariah literally means a waterway that leads to a main stream, a drinking place, and a road or the right path. From this meaning, the word Shariah was used to refer to a path or a passage that leads to an intended place, or to a certain goal.

The importance of Shariah is evident in the denotations of the literal meaning. Water is life for everything, Shariah is life for the Muslims souls and a way of life for them.

On the other hand, Shariah, conceptually, refers to a set of rules, regulations, teachings, and values governing the lives of Muslims. However, these rules and regulations, contrary to how they are often described by many non-Muslims, cover every aspect of life. Shariah embraces worship, morals and conduct, as well as it embraces the political, social and economic, as well as other spheres.

Muslims believe that the purpose of their creation is nothing but servitude [being servants to the creator of mankind]. They also believe that without the guidance of Allah (God) no one will meet this purpose. Therefore Allah sent messengers and prophets with teachings, values, rules and regulations to guide mankind to His way, the right way.

The first step in the fulfillment of the servitude mission is the complete submission to Allah, which is Islam. The second step is following the guidance of Allah, which is the Shariah. In other words, accepting Islam as a religion and the adherence to the Shariah as the guidance.

Hence, the importance of the Shariah is its central role in guiding Man to the right way, whereby the mission of creation can be fulfilled. The Shariah, therefore, is a path - set by Allah for those who accept Him - to follow, in order to attain success both in the worldly life and in the hereafter.

Thus, to live in Islam is to live according to the Shariah, and ignoring the Shariah or even any part of it, deliberately, is ignoring Islam itself. Muslims have to adhere to the Shariah and observe its teachings throughout their lives.

Ques 03What is the objective of Muslim Divorce Law 1939 (2010)? In what grounds a Muslim woman can apply for divorce under this law? 2014Importance of this law for a victim Muslim woman. 2014

Ans:

Grounds for Decree for Dissolution of MarriageA woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:—i. that the whereabouts of the husband have not been known for a period of four years;ii. that the husband has neglected or has failed to provide for her maintenance for a period of

two years;iii. that the husband has been sentenced to imprisonment for a period of seven years or

upwards;iv. that the husband has failed to perform, without reasonable cause, his marital obligations for a

period of three years;v. that the husband was impotent at the time of the marriage and continues to be so;vi. that the husband has been insane for a period of two years or is suffering from leprosy or

virulent venereal disease;vii. that she, having been given in marriage by her father or other guardian before she attained

the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

viii. that the husband treats her with cruelty, that is to say,—a. habitually assaults her or makes her life miserable by cruelty of conduct even if such

conduct does not amount to physical ill-treatment, orb. associates with women of evil repute or leads an infamous life, orc. attempts to force her to lead an immoral life, ord. disposes of her property or prevents her exercising her legal rights over it, ore. obstructs her in the observance of her religious profession or practice, orf. if he has more wives than one, does not treat her equitably in accordance with the

injunctions of the Quran;

Importance for a Victim Muslim WomanYes this is like as blessing for a victim muslim woman.

Ques 04Define dowry (Mohorana). 2010, 2014Discuss importance and effect of dowry in Muslim marriage and divorce. 2010, 2014Discuss rights of a widow on husband’s wealth in change of dowry. 2012, 2014For claiming dowry in which court can file a case? What elements should be present there? 2010, 2014

Ques 05What is Hadith? How classified it? Importance of Hadith as a source of Islamic Law – 2014

Ans

HadithThe Hadith is the record of the sayings of Prophet Muhammad (swas). The sayings and conduct of Prophet Muhammad (swas) constitute the Sunnah.

The Hadith has come to supplement the Holy Qur’an as a source of the Islamic religious law. The Hadith is the second pillar after the Qur’an upon which every Muslim rests his faith. Hadith consists of Mat'n and Isnad. Mat'n means the text of the Hadith, while Isnad means the chain of transmitters to that Hadith.

Categories of HadithThe scholars of the Hadith literature divided the Traditions into categories according to the degree of authenticity and reliability, each category had to meet certain criteria.The categories are as follows:1. Sahih: The genuine Traditions, the authentic ones.2. Moothaq: Almost like the Sahih but the narration is not as strong as those of the Sahih.3. Hassan: The fair Traditions although inferior in matter of authenticity.4. Dha'eef: The weak Traditions which are not so reliable.In Shari'ah (Islamic Constitution) deeds and actions are divided into five classes:1. Fardh or Wajib: An obligatory duty the omission of which is Islamically punishable.2. Mustahab: An action which is rewarded, but whose omission is not punishable.3. Mubaah: An action which is permitted but legally is indifferent.4. Makrooh: An action which is disapproved by the Shari'ah but is not under any penalty.5. Haram: An action which is forbidden, and Islamically punishable.

Importance of Hadith as a Source of Islamic LawVerse of the Quran“Whoever disobeys Allah and His Messenger and transgresses the limits set by Him, He shall admit him to the Fire, where he will remain forever. For him there is a humiliating punishment.” (Qur’an 4:14)

Another One "O you who believe! Obey Allah and obey the Messenger and those charged with authority among you; and if you differ in anything among yourselves, then refer it to Allah and the Messenger if you do believe in Allah and the Last Day. That is best and most suitable for final determination." (Surah Al-Nisa' 4:59)

A Hadeeth! "Avoid condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favor of innocence (pardon) than in favor of guilt (punishment)."

Why use the Hadeeth?As the Holy Qur’an deals mainly with the broad principles of Islam, the details were frequently supplied by Holy Prophet Muhammad (may peace and blessings of Allah be upon him), by his actions and his sayings. Since written communication was not very common in those days, the transmission of the actions and sayings of the Holy Prophet Muhammad (may peace and blessings of Allah be upon him), took place from one person to another by the word of mouth.

Ques 06Can implement the Child Marriage Act 1929? 2014What are the barriers to apply it? 2014Is there any amendment needed? 2014

AnsImplementation of Child Marriage Act 1929Under the Child Marriage Restraint Act, 1929 the policy of the government was to discourage child marriages by punishing those who promoted or engaged in the act of marrying underage girls and boys, however the new spouses were not liable for any action under the Act despite both parties being under the prescribed age, and such a marriage was considered to be valid and

legally enforceable. The reason behind such a policy was that it was in the best interests of the girls involved in such a marriage; for under the existing cultural and social ethos of the land a married girl was no more considered to be a part of the family of her birth and instead a part of the family of the groom. More importantly, since non-recognition of such marriages would imply that the off-springs of such marriage would be ill-legitimate, it was considered important to consider such under-age marriages valid.

BarriersChild Marriage is a violation of human rights, it is an evil practice which affects the very foundations of the society. However, even today the practice of child marriage is prevalent in India. Many factors are responsible for this practice, the most common ones are poverty, protection of girls, family honor and the provision of stability during unstable social periods, lack of opportunities for girls, lack of awareness about adverse health consequences another big problem is the lack of awareness of law and also inadequate implementation of the existing laws. Child marriage has many harmful consequences which include lack of freedom, decreased opportunities of education. Child marriage can also result in enslavement, sexual exploitation and violence against the victims.

Firstly, Child marriages are made voidable at the option at the parties but not completely void. That means child marriages are still lawful.

Secondly, The applicability of Child Marriage Restraint Act on various marriages of different communities and religion is unclear. Social customs and personal laws of different religious groups in Bangladesh allows marriage of minor girls and the CMRA does not mention whether it prohibit all the under age marriages that are sanctioned by religious laws.

Thirdly, registration of marriages has still not been made compulsory. Compulsory registration mandates that the age of the girl and the boy getting married have to be mentioned.

ReformMerging the national laws and personal laws in Bangladesh produce an incompatible outcome for the treatment of child marriage. The paradoxical relationship between the two legal systems warrants assessment of the challenges presented under the current framework in Bangladesh as well as inquiry into the possibilities for reform in order to better address the problematic practice of child marriage.

Divided Legal FrameworkUnder Bangladesh law, child marriage is both punishable and valid at the same time. As noted, child marriage is punishable under the CMRA; yet, although the CMRA provides penal sanctions for those who knowingly participate in the contracting of an underage marriage, at the same time, the resulting marriages remain valid under the law and continue to be supported by the religious personal laws of marriage.

Challenges to Successful ReformBangladesh’s religious personal laws whether Muslim, Hindu, or Christian incorporate and sanction the marriage of children. Although statutory law makes it a criminal offence to marry off a child, it does not invalidate child marriages conducted under personal law.

There is also an urgent need to amend the laws related to sexual assault to address the issue of child marriages and to protect the rights and ensure the safety of young girls.

Ques 07Difference between Gift and Will. To complete a gift when do not need to give possession? When a gift cannot be invalid? Do not birth but given will – this type of gift always invalid? 2014

Ans

Gift and WillTransfer of property made voluntarily without any consideration by one person on the name of the other is gift deed. It is important that the donee should accept the property gifted to him.

Will is concerned it is the legal declaration in which a person drawing the will can name one or any number of persons as beneficiary of his various assets including property and funds. Will comes into play only after the death of the testator.

Comparison between gift deed and WillBoth gift deed and Will are different as legal instruments. A ‘Will’ is always revocable during the lifetime of the testator, even though it is registered or not whereas, gift deed once given is irrevocable. The revocable term implies that if a person after drawing a Will changes his intentions; he can again execute a very new Will. However, law does not allow the donor to make a new gift deed or change his decision.

To Complete a GiftThree conditions must be met for a gift to be valid.The first one is that the individual making the transfer actually intends to make a gift; it must be demonstrated that the donor's objective was to make a gift when he or she transferred the property. The second condition is that the donee accepts the gift made to him or her; the donee must agree to the transfer of property that the donor made in his or her favour.

In general, such acceptance is presumed once the third condition is met, that is to say the delivery of the property that is the subject-matter of the transfer by the donor to the donee.

Void (Invalid) Gift The following gifts are void -

1. Gift to unborn person - A gift of life interest in favor on an unborn person is valid if he comes into existence when such interest opens out.

2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future, is void.

3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.

Gift for unborn is valid if this in favour of his or her life interest.

Ques 08Explain Radd and Awl with examples. 2010During death of Dabir he kept True grandfather, Father, Mother, Wife, Two daughters, one brother, one sister, and one daughter of his death sons. Distribution his wealth

1. Hanafi way 2. Regulatory law 2012, 2014

Hanafi WayGrandfather = NoFather = 1/6Mother = 1/6Wife = 1/4Two Daughter = Left oneOne Brother & One sister = NoOne daughter of his death son = Left one

By adding father, wife, mother1/6 + 1/6 + 1/4 2+2+3 7= --------- = ----------- 12 12

Left = 1 – 7/12 = 5/12Ques 09Explain Talaq-E-Tawfiz and does any change in applying Talaq-e-Tawfiz by Muslim Family Law Ordinance 1961 – discuss. 2012, 2014Explain Iddat. Define amount in different conditions. 2012, 2014

Ques 10Difference between Gift and Will 2014Short Notes Mushaa Gift, Hiba Bil Iwaz, Marj Ul Maut (Death Illness) Gift

Mushaa GiftRequirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift.

Hiba Bil IwazHiba-bil-iwaz is a gift for a consideration. It resembles a sale in that (a) transfer of title is complete without delivery of possession, and (b) all the incidents of sale attach to it, including —(i) the liability of being pre-empted, where the law of pre-emption is in force, and (ii) the right to return a thing for a defect.To constitute a valid Hiba-bil-iwaz, the following two conditions must be present:(a) Actual and bona fide payment of consideration (iwaz) on the part of the donee; and(b) A bona fide intention on the part of the donor to divest himself in praesenti of the property, and to confer it upon the donee.