Showing posts with label Family Law. Show all posts
Showing posts with label Family Law. Show all posts
Saturday, July 25, 2015
Monday, November 18, 2013
Project on privileged and unprivileged will - family law
WILL
Will is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every writing making a voluntary posthumous disposition of property. It is testamentary instrument by which a person makes disposition of his property to take effect after his death, and which, in its own nature, is ambulatory and revocable during his life. Thus, a Will can be changed by the executants as and when he so likes. It is a secret and confidential document which the executants is never ordered to produce.
There are two essential characteristics of a Will:-
(i) It must be intended to come into effect after the death of the testator; and
(ii) It must be revocable by the testator at any time. Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children. In one case, the Andhra Pradesh High Court has held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of heading of it.
A gift to take effect the life lime of the donor is a deed of settlement and not a Will. A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will[1].
When a person dies without having made a Will, he is said to have died intestate. His property is then inherited by his legal heirs in accordance with the law of inheritance applicable to him. It must be noted here that legal heirs generally include close family members such as one’s spouse, children, parents, brothers and sisters.
TYPES OF WILL
No Need to mention here that Wills are always effective after death, never in the life time of the testator. Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will, Therefore, the essential characteristic of a Will is its revocability.
Privileged and Unprivileged Wills
According to Sec 63 of The Indian Succession Act, 1925:-
Execution of unprivileged wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
The Madras High Court held in Radhakrishna v. Subraya[2], that if will is execued by affixing a mark, the mark should be fixed by the testator himself. So when the testatrix merely touched the pen and gave it to another who affixed the mark, it was held that there was no valid execution.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses[3], each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary[4].
In Nagulapati Lakshmamma v. Mupparaju Subbaiah[5], the Supreme Court opined that s.63 of the Indian Succession Act, 1925 makes a clear distinction between testator and attestors. The attestor may sign himself or put a mark by himself or direct some other person to sign on his behalf and in his presence. Such privilege or power is not extended to an attesting witness.
Related Cases:-
à In Jaswant Kaur Vs. Amrit Kaur and others [6], the Honourable Apex Court held that the cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. It is an acknowledged principle of law that each decision must be applied according to the facts and circumstances of the given case.
à In PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others[7], the Honoruable Apex Court held that there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
à In Savithri and others Vs. Karthyayani Amma and others [8], the Honourable Apex Court held that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstances.
à In R.Vasanthi Vs. Janaki Devi and others[9], the Hon'ble Court held that the registration of a Will may having regard to circumstances prove its genuineness.
à In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs and others[10], the Honourable Apex Court held that debarring natural heirs should not raise any suspicion with regard to execution of the Will in dispute.
à In Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005, in was held that ''It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.
According to Sec 65 of The Indian Succession Act, 1925:-
Privileged wills- Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.
ILLUSTRATIONS
(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged will.
(ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and, being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will
According to Sec 66 of The Indian Succession Act, 1925:-
Mode of making, and rules for executing, privileged wills
(1) Privileged wills may be in writing, or may be made by word of mouth.
(2) The execution of privileged wills shall be governed by the following rules:--
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator's directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, airman or mariner has written instructions for the preparation of his will, but has died before it could be prepared and executed, such instructions shall be considered to constitute his will.
(f) If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.
(g) The soldier, airman or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.
According to Sec 70 of The Indian Succession Act, 1925:-
Revocation of unprivileged will or codicil- No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privileged will, which purports to revoke his unprivileged will. This is a revocation.
According to Sec 71 of The Indian Succession Act, 1925:-
Effect of obliteration, interlineation or alteration in unprivileged will- No obliteration, interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will:
Provided that the will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.
According to Sec 72 of The Indian Succession Act, 1925:-
Revocation of privileged will or codicil- A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
Explanation.--In order to the revocation of a privileged will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged will.
According to Sec 73 of The Indian Succession Act, 1925:-
Revival of unprivileged will.- (1) No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
Wills executed according to the provisions of section 63 of the Indian Succession Act are called Unprivileged Wills and Wills executed under section 66 of the Act, by a soldier employed in an expedition or engaged in actual warfare, or by an airman so employed or engaged, or by mariner being at sea, are called Privileged Wills. It is provided in the Act that such a Will may be written wholly by the testator with his own hands and, in such a case, it need not be signed or attested; or it may be written wholly or in part by another person, in which case, it may be signed by the testator but need not be attested. If, however, an instrument purporting to be a Will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his Will, if it is shown that it was written by the testator’s directions or was recognised by him as his Will. Further, if a soldier, airman or mariner has written instructions for the preparation of his Will, but has not died before it could be prepared and executed, the instructions shall be deemed to be his Will; and if such a person has, in the presence of two witnesses, given verbal instructions for the preparation of his Will, and such instructions have been reduced to writing in his lifetime, but he has died before the Will could be prepared and executed, then such instructions are to be considered to constitute his Will, although they may not have been reduced into writing in his presence, nor read over to him. It is also provided that such a soldier, airman or mariner may make a Will by word of mouth by declaring his intention before two witnesses present at the same time, but such a Will shall become null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged Will.
An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same.
Mere loss of a Will does not operate as a revocation but where a Will is destroyed by the testator or with his privacy or approbation, it is to be deemed to have been revoked.
No obliteration, interlineations or other alternation made in any unprivileged Will after the execution thereof, can have any effect except so far as the words or meaning of the Will have been thereby rendered illegible or unidiscernible, unless such alteration has been executed in the same manner as is required for the execution of the Will; but a Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of ht witnesses is made in the margin or some other part of the Will opposite or near to such alternation, or at the foot or end or opposite to a memorandum referring to such alteration, and written at the and or some other part of the Will.
A privileged Will or Codicil may be revoked by the testator by an unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. In such cases, it is not necessary that the testator should, at the it time of doing the act which has the effect of revocation of the Will or Codicil, be in a situation which entitles him to make a privileged Will.
Every Will is revoked by the marriage of the maker, except a Will made in exercise of a power of appointment, when the property over which the power of appointment is exercised, would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
This rule as to revocation of a Will by marriage, does not, however, apply to Wills and codicils executed by Hindus, Buddhists, Sikhs or Jains.
An unprivileged Will which has once been validly revoked cannot be received otherwise than by the re – execution thereon with the prescribed formalities, or by a codicil executed with such formalities and showing an intention to revive the same. When a Will or a codicil, which has been partly revoked and afterwards wholly revoked, such revival cannot extend to so much thereof as has been revoked before the revocation of the whole thereof, unless and intention to the contrary is shown by the Will or codicil.
It has already been stated that in the case of Hindus, Buddhists, Sikhs and Jains a Will could validly be made orally and no formalities for the execution of a Will are required. This rule, however, did not apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on or after the 1st of September, 1870, within the territories which were subject to the Provincial Government of Bengal or in the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, and also, to all such Wills and codicils made outside those territories or limits so far as they related to immovable property situated within these territoes or limits. The execution of such Wills was previously regulated by the Hindu Wills Act (XXI of 1870). Except in the cases mentioned in that Act, oral Wills could be made by person’s professing the Hindu, Buddhist, Sikh and Jain religions. A question, however, arises whether the Indian Succession Act, 1925 has the effect of depriving such persons of the privilege of making oral Wills, or whether the previsions of section 63 of the Act do not merely provide for the formalities which must be observed, if any of such persons chooses to ‘execute’ a Will, i.e., chooses to reduce his testamentary dispositions to writing. It will be observe that section 63 of the Act provides for the manner of ‘execution’ of unprivileged Wills, it does not deal with the question of the ‘making’ of such Wills.
That the Act seems to make a distinction between the ‘execution’ and the ‘making’ of Wills, will appear from a comparison of the phraseology of sections 63 and 66 of the Indian Succession Act, 1925. While section 63 refers to the ‘execution’ of unprivileged Wills, section 63 refers to the ‘execution’ of unprivileged Wills, section 66 prescribes the ‘mode of making’ and rules for executing Privileged Wills’. A distinction, therefore, seems to be contemplate between the ‘execution’ and the ‘making’ of a Will. The former expression apparently applies to cases where the Will is to be reduced to writing, and the expression ‘making of a Will’ includes the execution of a Will and also an oral declaration by the testator of his testamentary disposition of his estate, if such declaration legally amounts to a Will. The matter is a debatable one, and no definite opinion, therefore, need be expressed on it at this stage.
Conditional or Contingent Wills
A Will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not be legally enforceable. Accordingly, where A executes a Will to be operative for a particular year, i.e.,. if he dies within that year. A lives for more years, after that years. Since A does not express an intention that the Will be subsisting even intestate. A Conditional Will is invalid if the condition imposed is invalid or contrary to law.
Joint Wills
A Joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint and is intended to take effect after the death of both, it will not be enforceable during the life– time of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or aster the death of one, by the survivor.
A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for tow or more Wills. On the death of each testator, the legatee would become entitled to the properties of the testator who dies.
Mutual Wills
A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct form the testators, there can be no position for Mutual Wills.
Duplicate Wills
A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.
Concurrent Wills
Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate will.
Sham Wills
If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have nay testamentary operation, but was to have only some collaterally object. one thing must be born e in mind that the intention to make the Will is essential to the validity of a Will.
Holograph Wills
Such Wills are written entirely in the handwriting of the testator.
NEED FOR MAKING A WILL
If one does not make a Will then his property will be inherited by legal heirs in accordance with the laws of inheritance applicable to him. However, most of the people would like to dispose of their property according to their own wishes. Thus, there arises the need for making one’s Will. Apart from it there are certain distinct advantages of making a Will.
§ When a person dies without having made a Will, there is often confusion amongst the family members and relatives as to whether the deceased did make any Will prior to his death or not, but if a Will is available, the only question that needs to be ascertained is whether it is the last Will of the testator.
§ A Will be absolutely personal document. More than anything it is an expression of the relationship with the members of family or relatives, etc. The views, opinions and feelings, etc., are indicated in this document. A Will allows the devolution of property in a personalized manner rather than letting the impersonal rules of inheritance take effect.
§ Many disputes can be resolved at the very outset if there is a clear disposition of one’s property in a Will. It will not be out of place to mention the imbroglio of Late Mrs. Indira Gandhi and her daughter-in-law Manekar Gandhi, who were embroiled in a litigation concerning the assets of the late Sanjay Gandhi. Had Sanjay Gandhi left behind a Will, the possibility of any dispute surfacing between the mother and his wife would have been very remote.
§ By means of a Will, one can appoint in writing, a testamentary guardian for his infant children. A testamentary guardian is person, who is appointed b a testament or a Will. This point needs further clarification. In the event of the death of a parent the law would ordinarily uphold the right of surviving natural parent to be the guardian of the child. However, if there is no surviving parent, the law attaches great importance tot eh Will of a parent in deciding who to appoint as a guardian. This is a matter of great importance with regard to the future of the children and therefore, this issue must be discussed in details with the proposed guardian before appointing him testamentary guardian.
§ A Will provides more room inter se the laws of inheritance, which sometimes do not cater to the special needs and requirements of the members of a family. For instance, a father has two sons. One is healthy but the other is handicapped due to any chronic disease since childhood. The laws of inheritance would treat both these children on an equal footing. But by means of a Will one can have somewhat greater provision for a handicapped son, a widowed daughter or an invalid parent. Not only that by means of a Will, one can make some provision for a faithful servant, a nurse a friend in need of money, and so on. All such people could never receive any benefit whatsoever under the laws of inheritance in the absence of a Will.
§ In the absence of a Will even the most unwanted son, who had left the house for disobedience, fraud, violence, etc. may turn up to claim his share of estate from his father’s property. Similarly, an adulterous wife might demand her share as per inheritance laws.
There are however, some disadvantages also in making a Will and they are mostly psychological. In many cases it has been observed that people lose all their interests in life and idem such before the time they would have lived.
If there is no Will, the property would be dealt with as per the laws of inheritance. For Hindus, Buddhists, Jains and Sikhs the laws of inheritance have been codified in the Hindu Succession Act, 1956. For Christians the Indian Succession Act, 1925 will be applicable. Parsis have a different law of inheritance. Similarly, Muslims have their own law. That has, however, not been codified in nay legislation but is based on their religious texts. There are tow major sects of Muslims – Shias and Sunnis. Both of them have different laws of inheritance.
CONCLUSION
The Indian Succession Act, 1865, was originally introduced as the Indian Civil Code, Chapter I into the Governor General’s Council. In the statement of objects and reasons the Hon’ble Mr.Mayne pointed out the scope and the objects of the Act. The object was to prepare for India a body of substantive law relating to testamentary and interstate succession. The English La was to be the basis. But “the principal modification proposed to be effected on the English law consists in obliterating the distinction between real and personal property.” Another object was to do away with all the merely technical consequences of the feudal stage through which immovable property has passed in England. Later, in India, the Indian Succession Act of 1865 was replaced by the Indian Succession Act of 1925. This came into force from 30-09-1925.
BIBLIOGRAPHY
Ë Net Sources:
· wirc-icai.org
· www.vakilno1.com
· indiankanoon.org
· www.legalindia.in
· www.jurisonline.in
Ë Books referred:
· Family Law in India by Prof. G.C.V. Subba Rao
9th edition; Published by: S.Gogia & Co.
Ë Statutes referred:
· The Indian Succession Act, 1925.
[1] Sec 63, Indian Succession Act, 1925
[2] 40 Mad. 550
[3] Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, 1955 AIR 363 1955 SCR (1)1035
[4] Surinder Kumar Grover vs State & Ors on 24 January, 2011
[5] AIR 1998 SC 2904
[6] 1977 (1) Supreme Court Cases 369
[7] AIR 1995 Supreme Court 1852
[8] 2007 (11) Supreme Court Cases 621
[9] 1999 (III) CTC 378
[10] AIR 1995 Supreme Court 1684
Project on Solemnization of marriage under Christian law - Family Law
Introduction:
The law relating to solemnization in India of marriages of persons professing Christian religion was spread over two Acts of the English Parliament and three Acts of the Indian Legislature. To reduce into a smaller compass and to simplify the then prevalent law on this subject by the consolidation of different enactments, the Indian Christian Marriage Act, 1872 was passed.
The preamble of the Act states that since it is expedient to consolidate and amend the law relating to solemnization in India of marriages of persons professing the Christian religion that this Act has been passed. The Indian Christian Marriage Act, 1872 is divided into eight parts with the Preliminary section defining the expressions Church of England, Church of Scotland, Church of Rome, Church and, inter alia, Christians.
There has been no statutory law relating to solemnization of marriages of Christians in the State of Manipur and in the territories which comprised the former State of Travencore. As far as the territories which comprised the former State of Travencore are concerned, the solemnization of marriages of Roman Catholics are governed by the Canon Law of the Roman Catholic Church, the solemnization of the marriages of Syrian Christians by their Customary Law[1], the solemnization of the marriages of persons belonging to former Church of England by the Canon Law of England[2] and the solemnization of marriages of the rest of Christians by the Common Law of England.[3]
Marriage, as is seen in Christian tradition, is not merely a civil contract nor is it purely a religious contract. It is seen as a contract according to the law of nature, antecedent to civil institutions and by itself an institution. A marriage among Christians is traditionally understood as the voluntary union for life of one man and one woman to the exclusion of all others.
The Indian Christian Marriage Act, 1872, lays down elaborate procedure for the solemnization of marriages. Three sets of authorities are provided for the solemnization of marriage, viz., minister of religion, marriage registrars and persons licensed to solemnize marriage.
“Christian” means a person who professes the Christian Religion. It is not necessary that the person intending to be married under the Indian Christian Marriage Act, 1872 should have been baptized.[4]
The Indian Christian Marriage Act, 1872 is divided into eight parts.
Part I of the Act (Sections 4-9) lays down certain conditions for a marriage to be valid. As per the provisions contained in the Act, the marriage must be performed in a particular form and duly entered in the marriage register maintained for this purpose. The factum of marriage can be proved by producing entries from this register. Other evidence can also be produced for this purpose. It has been held that versions of eyewitnesses to the marriage and subsequent conduct of the couple living as husband and wife can also be good pieces of evidence to prove the factum of a Christian marriage.[5]
A Christian Marriage which takes place in the house of the bride’s mother needs no signing of the Marriage Registrar under the Act.[6]
A Christian Marriage, even if one of its parties is a Hindu, cannot be dissolved by a decree of divorce under Section 13 of the Hindu Marriage Act.[7]
A marriage performed under the Christian Marriage Act and validly registered under the provisions of Special Marriage Act is legal if the conditions laid down in that section are fulfilled.[8]
Part II (Sections 10 and 11) of the Act lays down the general rule that every marriage under this Act shall be solemnized between the hours of six in the morning and seven in the evening and the place of marriage should be a Church.
Part III (Sections 12-26) of the Act deals with notice of intended marriage and its publication before the actual marriage ceremony.
Part IV (Sections 27-37) of the Act deals with registration of marriages solemnized under this Act between Indian Christians.
Part V (Section 38-59) of The Indian Christian Marriage Act, 1872 deals with marriages solemnized by, or in the presence of, a Marriage Registrar.
A Marriage Registrar is authorized to solemnize marriages within the District for which he is appointed. Since the Act does not specify that a Marriage Registrar should solemnize marriages between Christians, he can solemnize marriages between Christians as well as marriages between Christians and non-Christians.
The age of consent is not specified in the case of marriages solemnized by Marriage Registrars. The act defines “minor” as a person who has not completed 21 years of age, and provides that a Marriage Registrar can solemnize marriage when either party to marriage is a minor.
The degrees of prohibited relationship are not specified in the Act. As far as Roman Catholic Church is concerned, they are specified in the Canon Law which provides for dispensation by the Bishop in whose jurisdiction the marriage was solemnized. It was held by the Supreme Court[9] that “once dispensation is granted by the appropriate authorities the priests cannot be regarded under the Canon Law as being within the prohibited degrees.”
Since degrees of prohibited relationship are not specified in the Act, they should be assessed from the law applicable to the Church to which the parties to marriage belong. The impediment of prohibited degrees cannot be dispensed by any authority in the case of non-Catholic Churches.
Notice Of Intended Marriage Before Marriage Registrar-
Section 38: When a marriage is intended to be solemnized by, or in the presence of, a Marriage Registrar, one of the parties to such marriage shall give notice in writing, in the form contained in the First Schedule hereto annexed, or to the like effect, to any Marriage Registrar of the district within which the parties have dwelt, or, if the parties dwell in different districts, shall give the like notice to a Marriage Registrar of each district, and shall state therein the name and surname, and the profession or condition, of each of the parties intending marriage, the dwelling place of each of them, the time during which each has dwelt therein, and the place at which the marriage is to be solemnized:
Provided that, if either party has dwelt in the place stated in the notice for more than one month, it may be stated therein that he or she has dwelt there one month and upwards.
According to Section 38 of The Indian Christian Marriage Act, 1872, whenever a marriage is intended to be solemnized by a Minister of Religion licensed to solemnize marriages under this Act, one of the persons intending marriage shall give notice in writing, according to the form contained in the First Schedule in the Act or to the like effect, to the Minister of Religion whom he or she desires to solemnize the marriage, and shall state therein the name and surname, and the profession or condition, of each of the persons intending marriage, the dwelling-place of each of them, the time during which each has dwelt there and the Church or private dwelling in which the marriage is to be solemnized provided that, if either of such persons has dwelt in the place mentioned in the notice during more than one month, it may be stated therein that he or she has dwelt there one month and upwards.
Publication Of Notice-
Section 39: Every Marriage Registrar shall, on receiving any such notice, cause a copy thereof to be affixed in some conspicuous place in his office.
When one of the parties intending marriage is a minor, every Marriage Registrar shall, within twenty-four hours after the receipt by him of the notice of such marriage, send, by post or otherwise, a copy of, such notice to each of the other Marriage Registrars (if any) in the same district, who shall likewise affix the copy in some conspicuous place in his own office.
According to section 39, the Marriage Registrar to whom the notice is given shall publish it by causing a copy of it to be affixed in some conspicuous place in his office and, if one of the parties to marriage is a minor, send a copy of the notice to each of the other Marriage Registrars in the District who shall publish the notice likewise.
Publication of such notice : If the persons intending marriage under this Act desire it to be solemnized in a particular Church, and if the Minister of Religion to whom such notice has been delivered be entitled to officiate therein, he shall cause the notice to be affixed in some conspicuous part of such Church. But if he is not entitled to officiate as a Minister, in such Church, he shall, at his option, either return the notice to the person who delivered it to him, or deliver it to some other Minister entitled to officiate therein, who shall thereupon cause the notice to be affixed as aforesaid. If it be intended that the marriage shall be solemnized in a private dwelling, the Minister of Religion, on receiving the notice prescribed in section 12, shall forward it to the Marriage Registrar of the district, who shall affix the same to some conspicuous place in his own office.
Notice To Be Filed And Copy Entered In Marriage Notice Book-
Section 40: The Marriage Registrar shall file all such notices and keep them with the records of his office, and shall also forthwith enter a true copy of all such notices in a book to be furnished to him for that purpose by the State Government, and to be called the "Marriage Notice Book", and the Marriage Notice Book shall be open at all reasonable times, without fee, to all persons desirous of inspecting the same.
According to section 40, the Marriage Registrar shall enter a true copy of the notice in the Marriage Notice Book to be kept by him, which shall be open to all persons desirous of inspecting the same and keep the notice with the records of his office.
Procedure on receipt of notice: The Marriage Registrar or Senior Marriage Registrar, as the case may be, on receiving any such notice, shall affix it to some conspicuous place in his own office, and the latter shall further cause a copy of the said notice to be sent to each of the other Marriage Registrars in the same district who shall likewise publish the same in the manner above directed. The Marriage Registrar shall enter a true copy of the notice in the Marriage Notice Book to be kept with him which shall be open to all persons desirous of inspecting the same and keep the notice with the records of his office.
Certificate Of Notice Given And Oath Made-
Section 41: If the party by whom the notice was given requests the Marriage Registrar to issue the certificate next hereinafter mentioned, and if one of the parties intending marriage has made oath as hereinafter required, the Marriage Registrar shall issue under his hand a certificate of such notice having been given and of such oath having been made:
Proviso- Provided
that no lawful impediment be shown to his satisfaction why such certificate should not issue;
that the issue of such certificate has not been forbidden, in manner hereinafter mentioned, by any person authorized in that behalf by this Act ;
that four days after the receipt of the notice have expired; and further,
that where, by such oath, it appears that one of the parties intending marriage is a minor, fourteen days after the entry of such notice have expired.
According to section 41, after the declaration is made by the parties, the Marriage Registrar shall, after the expiration of four days after he has received the notice, the period being fourteen days if a party to a marriage is a minor, issue a certificate in the form specified in the Second Schedule if no lawful impediment is shown to the marriage, provided the issue of such certificate is not forbidden.
Oath Before Issue Of Certificate-
Section 42: The certificate mentioned in section 41 shall not be issued by any Marriage Registrar, until one of the parties intending marriage appears personally before such Marriage Registrar, and makes oath-
(a) that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage, and
(b) that both the parties have, or (where they have dwelt in the districts of different Marriage Registrars) that the party making such oath has, had their, his or her usual place of abode within the district of such Marriage Registrar, and, where either or each of the parties is a minor,
(c) that the consent or consents to such marriage required by law has or have been obtained thereto, or that there is no person resident in India authorized to give such consent, as the case may be.
According to section 42, either party to marriage should appear before the Marriage Registrar and make a solemn declaration that there is no impediment of kindred or affinity or other lawful hindrance to the marriage, that the party making the oath resides in the District of the Marriage Registrar and, if either or both the parties is or are a minor or minors, that the consent of the father or guardian of the minor has been obtained or there is no person residing in India who is authorized to give such consent.
Petition To High Court To Order Certificate In Less Than Fourteen Days-
Section 43: When one of the parties intending marriage is a minor, and both such parties are at the time resident in any of the towns of Calcutta, Madras and Bombay, and are desirous of being married in less than fourteen days after the entry of such notice as aforesaid, they may apply by petition to a Judge of the High Court, for an order upon the Marriage Registrar to whom the notice of marriage has been given, directing him to issue his certificate before the expiration of the said fourteen days' required by section 41.
Order on petition: And, on sufficient cause being shown, the said Judge may, in his discretion, make an order upon such Marriage Registrar, directing him to issue his certificate at any time to be mentioned in the said order before the expiration of the fourteen days so required.
And the said Marriage Registrar, on receipt of the said order, shall issue his certificate in accordance therewith.
According to section 43, if one of the parties to the marriage is a minor and the parties who reside in Kolkata, Chennai or Mumbai desire that the marriage should be solemnized within fourteen days after the notice is given, they may petition to the High Court and on sufficient cause being shown, the court may order the Marriage Registrar to issue the certificate before the expiration of the said fourteen days.
Consent Of Father Or Guardian-
Section 44: The provisions of section 19 apply to every marriage under this Part, either of the parties to which is a minor;
Protest against issue of certificate- And any person whose consent to such marriage would be required thereunder may enter a protest against the issue of the Marriage Registrar's certificate, by writing, at any time before the issue of such certificate, the word "forbidden" opposite to the entry of the notice of such intended marriage in the Marriage Notice Book, and by subscribing thereto his or her name and place of abode, and his or her position with respect to either of the parties, by reason of which he or she is so authorized
Effect of protest- When such protest has been entered, no certificate shall issue until the Marriage Registrar has examined into the matter of the protest, and is satisfied that it ought not to obstruct the issue of the certificate for the said marriage, or until the protest be withdrawn by the person who entered it.
According to section 44, the person whose consent to marriage is required may protest against the issues of the certificate and when such protest is made, the Marriage Registrar shall not issue the certificate until he has examined the matter and is satisfied that the protest ought not to obstruct the issue of the certificate or the protests is withdrawn. The consent of the father or the guardian is required for the solemnization of the marriage of a minor.[10]
Petition Where Person Whose Consent Is Necessary Is Insane, Or Unjustly Withholds Consent-
Section 45: If any person whose consent is necessary to any marriage under this Part is of unsound mind, or if any such person (other than the father) without just cause withholds his consent to the marriage, the parties intending marriage may apply by petition, where the person whose consent is necessary is resident within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if he is not resident within any of the said towns, then to the District Judge.
Procedure on petition- And the said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way; and, if upon examination such marriage appears proper such Judge of the High Court or District Judge, as the case may be, shall declare the marriage to be a proper marriage.
Such declaration shall be as effectual as if the person whose consent was needed had consented to the marriage; and, if he has forbidden the issue of the Marriage Registrar's certificate, such certificate shall be issued and the like proceedings may be had under this Part in relation to the marriage as if the issue of such certificate had not been forbidden.
According to section 45, if the person whose consent is required is of unsound mind or if he (other than the father) without just cause withholds the consent, the parties to marriage may petition to the court and if the court declares that the marriage is proper, the Marriage Registrar shall issue the certificate as if it was not forbidden.
Petition When Marriage Registrar Refuses Certificate-
Section 46: Whenever a Marriage Registrar refuses to issue a certificate under this Part, either of the parties intending marriage may apply by petition, where the district of such Registrar is within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if such district is not within any of the said towns, then to the District Judge.
Procedure on petition- The said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way, and shall decide thereon.
The decision of such Judge of the High Court or District Judge, as the case may be, shall be final, and the Marriage Registrar to whom the application for the issue of a certificate was originally made shall proceed in accordance therewith.
According to section 46, when a Marriage Registrar refuses to issue the certificate, either party to marriage may petition to the court and the court may examine the allegations of the petition in a summary way and shall decide thereon and the Marriage Registrar shall proceed in accordance therewith.
Petition When Registrar Doubts Authority Of Person For Bidding-
Section 48: Whenever a Marriage Registrar, acting under the provisions of section 44, is not satisfied that the person for bidding the issue of the certificate is authorized by law so to do, the said Marriage Registrar shall apply by petition, where his district is within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if such district be not within any of the said towns, then to the District Judge.
Procedure on petition-The said petition shall state all the circumstances of the case, and pray for the order and direction of the Court concerning the same, and the said Judge of the High Court or District Judge, as the case may be, shall examine into the allegations of the petition and the circumstances of the case, and if, upon such examination, it appears, that the person forbidding the issue of such certificate is not authorized by law so to do, such Judge of the High Court or District Judge, as the case may be, shall declare that the person forbidding the issue of such certificate is not authorized as aforesaid, and thereupon such certificate shall be issued, and the like proceedings may be had in relation to such marriage as if the issue had not been forbidden.
According to section 48, if the Marriage Registrar is not satisfied that the person forbidding the certificate is authorized to do so, the Marriage Registrar shall petition to the court and if the court declares that the person forbidding the certificate is not authorized to do so, the Marriage Registrar shall issue the certificate.
Liability For Frivolous Protest Against Issue Of Certificate-
Section 49: Every person entering a protest with the Marriage Registrar, under this Part, against the issue of any certificate, on grounds which such Marriage Registrar, under section 44, or a Judge of the High Court or the District Judge, under section 45 or 46, declares to be frivolous and such as ought not to obstruct the issue of the certificate, shall be liable for the costs of all proceedings in relation thereto and for damages, to be recovered by suit by the person against whose marriage such protest was entered.
According to section 49, the person protesting against the issue of the certificate on the ground which the Marriage Registrar under s. 44 or the court under ss. 45 and 46 declare to be frivolous and such as ought not to obstruct the issue of the certificate shall be liable for the costs of the proceedings and for damages.
Form Of Certificate-
Section 50: The certificate to be issued by the Marriage Registrar under the provisions of section 41 shall be in the form contained in the Second Schedule to this Act annexed or to the like effect, and the State Government shall furnish to every Marriage Registrar a sufficient number of forms of certificate.
Solemnization Of Marriage After Issue Of Certificate-
Section 51: After the issue of the certificate of the Marriage Registrar, or, where notice is required to be given under this Act to the Marriage Registrars for different districts, after the issue of the certificates of the Marriage Registrars for such districts, marriage may, if there be no lawful impediment to the marriage of the parties described in such certificate or certificates, be solemnized between them, according to such form and ceremony as they think fit to adopt.
But every such marriage shall be solemnized in the presence of some Marriage Registrar (to whom shall be delivered such certificate or certificates as aforesaid), and of two or more credible witnesses besides the Marriage Registrar.
And in some part of the ceremony each of the parties shall declare as follows, or to the like effect :-
"I do solemnly declare that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D."
And each of the parties shall say to the other as follows or to the like effect:-
"I call upon these persons here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife [or husband]."
According to section 51, after the issue of the certificate by the Marriage Registrar within whose jurisdiction the parties to marriage reside or after the issue of the certificates of the Marriage registrars within whose jurisdictions the parties reside, marriage may be solemnized by a Marriage Registrar to whom such certificate or certificates are issued, according to the form and ceremony as he thinks fit to adopt. [11]
When Marriage Not Had Within Two Months After Notice, New Notice Notice Required-
Section 52: Whenever a marriage is not solemnized within two months after the copy of the notice has been entered by the Marriage Registrar, as required by section 40, the notice and the certificate, if any, issued thereupon, and all other proceedings thereupon, shall be void; and no person shall proceed to solemnize the marriage, nor shall any Marriage Registrar enter the same, until new notice has been given, and entry made, and certificate thereof given, at the time and in the manner aforesaid.
According to section 52, if marriage is not solemnized within two months after the notice was entered in the Marriage Notice Book, the notice and the Certificate, if issued, and all proceedings thereupon shall be void and the marriage shall not be solemnized until new notice is given and the certificate issued as aforesaid.
Marriage Registrar May Ask For Particulars To Be Registered-
Section 53: A Marriage Registrar before whom any marriage is solemnized under this Part may ask of the persons to be married the several particulars required to be registered touching such marriage.
Registration Of Marriages Solemnized Under Part V-
Section 54: After the solemnization of any marriage under this Part, the Marriage Registrar present at such solemnization shall forthwith register the marriage in duplicate; that is to say, in a marriage-register-book, according to the form of the Fourth Schedule hereto annexed, and also in a certificate attached to the marriage-register-book as a counterfoil.
The entry of such marriage in both the certificate and the marriage-register-book shall be signed by the person by or before whom the marriage has been solemnized, if there be any such person, and by the Marriage Registrar present at such marriage, whether or not it is solemnized by him, and also by the parties married, and attested by two credible witnesses other than the Marriage Registrar and person solemnizing the marriage.
Every such entry shall be made in order from the beginning to the end of the book, and the number of the certificate shall correspond with that of the entry in the marriage-register-book.
According to Section 54, after the solemnization of the marriage, the Marriage Registrar shall register the marriage in the form specified in the Fourth Schedule, that is to say, in the Marriage Register Book and in its duplicate called the Certificate of Marriage.
Certificates To Be Sent Monthly To Registrar General-
Section 55: The Marriage Registrar shall forthwith separate the certificate from the marriage-register-book and send it, at the end of every month, to the Registrar General of Births, Deaths and Marriages.
Custody of register-book-The Marriage Registrar shall keep safely the said register-book until it is filled, and shall then send it to the Registrar General of Births, Deaths and Marriages, to be kept by him with the records of his office.
According to section 55, the Marriage Registrar shall separate the certificate of Marriage from the Marriage Register Book and send it, at the end of the month, to the Registrar General of Births, Deaths and Marriages and also send the Marriage Register Book, when it is filled, to the Registrar General of Births, Deaths and Marriages.
Registrars To Ascertain That Notice And Certificate Are Understood By Indian Christians-
Section 57: When any Indian Christian about to be married gives a notice of marriage, or applies for a certificate from a Marriage Registrar, such Marriage Registrar shall ascertain whether the said Indian Christian understands the English language, and, if he does not, the Marriage Registrar shall translate, or cause to be translated, such notice or certificate, or both of them, as the case may be, to such Indian Christian into a language which he understands; or the Marriage Registrar shall otherwise ascertain whether the Indian Christian is cognizant of the purport and effect of the said notice and certificate.
Indian Christians To Be Made To Understand Declarations-
Section 58: When any Indian Christian is married under the provisions of this Part, the person solemnizing the marriage shall ascertain whether such Indian Christian understands the English language, and, if he does not, the person solemnizing the marriage shall, at the time of the solemnization, translate, or cause to be translated, to such Indian Christian, into a language which he understands, the declarations made at such marriage in accordance with the provisions of this Act.
Registration Of Marriages Between Indian Christians-
Section 59: The registration of marriages between Indian Christians under this Part shall be made in conformity with the rules laid down in section 37 (so far as they are applicable), and not otherwise.
Part VI (Sections 60-65), Part VII (Sections 66-76) and Part VIII of the Act deals with marriages of Indian Christians, penalties for false declarations or signing a false notice or certificate, miscellaneous matters concerning marriages under this Act respectively…
CONCLUSION:
It can be concluded that the Indian Christian Marriage Act is comprehensive enough to deal with matters regarding solemnization of marriages among Christians in India when both the parties to the marriage are Christians. But where one of the parties to a marriage in India is a Christian and the other party is a non-Christian the best course to adopt is to solemnize the marriage under the Special Marriage Act, 1954. Or in the alternative, if a marriage has been solemnized between a Christian and a non-Christian under the provisions of the Indian Christian Marriage Act, it can be registered again under the provisions of Section 15 of the Special Marriage Act of 1954 by way of caution. It may also be pointed out that while some other personal laws have been amended, the Christian Law has remained impervious to change despite demands and recommendations for reforms.
REFERENCE:
BOOKS REFERED:
1. Family Law, 2003,
Allahabad Law Agency
- PARAS DIWAN
2. Law relating to women and children, 2nd ed.
Eastern Book Company,
- MAMTA RAO
3. Family law in India, 9th ed.
S.Gogia & Co.,
- PROF.G.C.V. SUBBA RAO.
4. Family law lectures, 2nd ed.,
Lexis Nexis Butterworths
- POONAM PRADHAN SAXENA
STATUTES REFERED:
1. The Indian Christian Marriage Act, 1872
2. The Special Marriage Act, 1954
NET SOURCES:
1. www.indiankanoon.org
2. www.indianchristians.in
3. www.en.wikipedia.org
[1] Srikar V. Mathu Kuruvilla, 11 TLR 33
[2] Eapen Punnan V. Koruthu Maria, 10 TLR 95 (1892)
[3] Chriya Varkey V. Ouseph Threise, AIR 1955 Travencore-Cochin 255
[4] K.J.B. David V. Nilamoni Devi, AIR 1953 Ori. 10
[5] (1964) 2 Andh WR 136.
[6] AIR 1960 Ori 164.
[7] (1993) MLJ 31.
[8] (1995) MLJ 492.
[9] Lakshmi Sanyal V. Sachit Kumar Dhar, AIR 1972 SC 2667
[10] Lala Gokuldas V. John Kantaraj, (1937) 2 MLJ 590
[11] Mrs. Chandramani Dubey V. Rama Shankar Dubey, AIR 1951 All 529
Project on Marriages under Muslim Law
INTRODUCTION
Although in most systems of the world the individual has the freedom to marry or to remain celebrate, marriage is regarded all over the world as a social institution. Whether considered as a sacrament or as a contract, marriage, apart from giving rise to certain mutual rights and obligations, confers the status of husband and wife on the parties and of the legitimacy of their children.
The fundamental concept of individual liberty and responsibility which is the corner stone of Muslim jurisprudence is incorporated in the institution of marriage. In Muslim law, marriage depends upon the free volition of the parties concerned.
Marriage according to Mohemmadans is a civil contract what is necessary is the agreement between the parties arising out of proposal and its acceptance. Contractual capacity for purposes of marriage is governed by the Mohemmadan Law itself. According to that law attainment of puberty confers contractual capacity. It is presumed that on completion of 15 years of age a person attains puberty. A marriage under the Muslim Law may be unilaterally put to an end by the husband by pronouncing Talak (Divorce). The husband and wife may by mutual agreement also put an end to the marriage.
DEFINITIIONS OF MARRIAGE
“Marriage (nikah; zawi the husband; zawaja the wife) is a contract of civil law, and it shows trace of having developed out of the purchase of the bride; the bridegroom concludes the contract with the legal guardian (wali) of the bride, and he undertakes to pay the nuptial gift (mahr sadak) o ‘dower’ …..not to the wali as was customary in the pre- Islamic period, but to the wife heself” - SCHACHT
“Muslim marriage is a contact for the purpose of legalizing sexual intercourse and the procreation of the children” - WILSON
“Marriage is an institution ordained for the protection of the society, and in order that human beings may guard themselves from foulness and unchastity” –Ameer Ali
“Marriage among Mohammadans is not a sacrament , but purely a civil contact, though solemnized generally with recitation of certain verses from the Kuran, yet the Mohammadan law doesn’t positively prescribe any sevice peculiar to the occasion” – Mahmood .J
LEGAL REQUIREMENTS FOR A MARRIAGE UNDER MUSLIM LAW
The Muslim law does not require a ceremonial solemnization of marriage, though there is nothing in it specifically prohibiting the same. The legal requirements for a marriage by the muslim law are
· Ijab (proposal) – The marriage should be proposed by or on behalf of either party there to…
· Qubul (acceptance) – The proposal should be accepted by or on behalf of the other party.
· Form of Ijab and Qubul – Both ijab and qubul must be in definite words so as to result into a complete and not an inchoate transaction and must not be conveying a mere intention or promise to marry.
· Wilayat (guardianship) – Where legally the consent of a wali is essential, the ijab or qubul as the case may be should be made by the guardian. In all other cases a wali may do so on behalf and with the consent of the party concerned.
· Vakalat (representation) – Adults can make the ijab or qubul either personally or through an adult and sane vakil(representative). Guadians of minors have the option of naming the representatives.
· Shahabat (witness) – Except, if the parties are Isna Ashari, the ijab and qubul should be made in the presence and hearing of alteast two adult muslim witnesses. One of these may be replaced by two women.
· Majlis- I – wahid (single sitting) – the ijab and qubul should be made in the same sitting signifying continuity of transaction.
KINDS OF MARRIAGES
Being a civil contract, the validity of a Muslim marriage depends upon the conclusion of the marriage contract. Muslim law does not insist upon any particular form of marriage. If there is a proposal from one side, and its acceptance on the other side, a valid marriage will come into existence, provided that the other conditions of marriage are fulfilled. No writing is necessary. Even the presence of witness is not necessary (the sunnis do insist on the presence of two competent witnesses). There is only one form of marriage called nikah. A normal Muslim marriage is a permanent marriage in the same sense in which the modern Christian marriage is a permanent union even though the husband enjoys the power of unilateral termination of marriage at any time, without any cause and without going to a court of law. But, since, no term is fixed in a normal nikah, the Muslim marriage is a permanent marriage.
However, the Ithna Ashari law recognizes, as it is commonly, though incorrectly, called, temporary marriage, known by the name of Mut’a marriage. It would be proper to call Mut’a marriage as “term marriage”. No other sect of Muslim recognizes the Mut’a marriage. It should be noticed that even in a Mut’a marriage, there is Nikah. Just like the Sunnis, the Shias also recognize the regular permanent marriage.
MUT’A MARRIAGE
The word ‘Mut’a’ literally means ‘enjoyment, use’ and in its legal context it may be rendered, according to Heffening , a ‘marriage for pleasure’. It is a marriage for a fixed period, for a certain reward paid to the woman. The institution of Mut’a was fairly common in Arabia both before and at the time of the Prophet. “The believer is only perfect when he has experienced a Mut’a“, thus observed the Shia theologian Al–Hurr-Al-Amili. It may be difficult to say that when an Ithna Ashari Muslim enters into a mut’a marriage, he does so with the view to perfecting his belief. The fact of the matter is that a Mut’a marriage is a survival of a pre- Islamic Arab custom whereby the Arab women used to entertain men in their own tents. This union gave rise to no mutual rights and obligations. The man entering the tent had of course, to pay the entrance money. The man could get out of the tent when ever he wanted and the woman could throw him out whenever she chose , if any child was born of such a union , it belonged to the woman. It seems that later on it developed into a fixed term union on payment of some consideration by the man and acquired the name of Mut’a. This pre-Islamic institution of Mut’a continued to exist for some time even after the advent of Islam in Arabia. It appears that on account of its widespread prevalence, the fiat of the Prophet too tolerated it for some time, but ultimately came out against such unions and declared them to b unlawful. But the institution survived inspite of the Prophet. It was Caliph Omar who liquidate it ruthlessly. Since the Ithna Ashari do not accept the first three Caliphs (in which is included Omar), they continued to recognize the Mut’a.
ESSENTIALS OF A MUT’A MARRIAGE
According to Ithna Ashari law a Mut’a is a marriage for a fixed period of time. It may be for a day, a month, a year or a term of years. The essentials of such a union are four: the Form, the Subject , the Period , and the Dower.
· As regards the form, there must be a proper contract: declaration and acceptance are necessary.
· As regards the subject, a man may contract a Mut’a with a Muslim, Christian, Jewish or a Fire-worshipping women[1], but not with the follower of any other religion. Relations prohibited by affinity are also unlawful in temporary marriage. A man may contract Mut’a with any number of women.[2]
· As regards the term of Mut’a , this must be specified : else a life long Mut’a will be presumed If the original cohabitation commenced with the lawful Mat’a. In Shoharat singh v Mst. Jafri Bibi [3] it was held that of the “ cohabitation of a man and a woman commenced with the Mut’a , and there was no evidence as to the term of the marriage , the proper inference would , in default of evidence to the contrary , be that the Mut’a continued during the whole period of cohabitation”
In a recent Hyderabad case it was held
o That there is no difference between a Mut’a for an unspecified period and a Mut’a for life
o That a permanent Nikah for a life can be contracted by the use of the word Mut’a also.
o That specification of the period for which a Mut’a marriage is contracted alone makes a permanent marriage for life , a temporary Mut’a marriage for the period specified.
o That where the specification of period is omitted , whether intentionally or unintentionally , a permanent Nikah marriage results, with all the legal incidents of a Nikah marriage , including the right of inheritance between the contracting parties.
o That where the period is for life, Nikah marriage will result[4].
The learned judge in this case purports to follow the authority of the Jawahi- al-Kalam , an exhaustive commentary on the Shara I Al – Islam , by Shaykh Muhammad Hasan Al-Najafi , in six volumes. He says that it is of higher authority than the Shara I Al – Islam. In view of the remaks of Mahmood . J [5] and Sulaiman . J [6] it is difficult to accept the opinion of the learned judge. The view which he advocates may, in the circumstances prevailing in Hydrebad , have some justification : but in so far as it tends to obliterate the well known distinction between a Mut’a and a Nikah , it is respectfully submitted that the judgement requires reconsideration. The fixation of a period in the marriage contract destroys the concept of Nikah as
understood in Islamic law. The mere omission to specify the period may result in a valid Mut’a for life : but to equate a Mut’a for life with a regular Nikah is a serious step, which inter alia fails to take in cosideration the question of intention.
A Mut’a terminates by the efflux of time or by death. On the expiry of the term, no divorce is needed, during the period , the husband has no right to divorce the wife , but the husband may make a “gift of the term”[7] thereby terminate the contract , without the wife’s consent.[8]
· The dower (mahr) is a necessary condition of such a union. If it is not specified , the agreement is void. Where the marriage is consummated , the wife is entitled to the whole amount , if not , to half the dower. In case the wife leaves the husband before the expiry of the term, the husband is entitled to deduct a proportionate pat of the dower[9]. On the expiry of the period , where there has been cohabitation , a short idda two courses is prescribed , however, there has been no consummation , no idda is necessary.
The issue of the Mut’a union are legitimate and entitled to inherit. In the absence of a specific agreement, the husband o the wife does not inherit from the other, but if there is such a stipulation it will be effectual.
A Mut’a wife is not entitled to maintenance, for, according to Shara I al- Islam, ‘the name of a wife does not in reality apply to a woman contracted in Mut’a [10]
INCIDENTS OF MUT’A MARRIAGE
The main incidents of the Mut’a marriage are:
· In a Mut’a marriage, parties have no right to mutual inheritance, even if one of the parties dies when the Mut’a is subsisting. There is a difference of opinion among the Shia authorities whether a specific stipulation to the effect in a Mut’a is valid.
· A wife in a Mut’a marriage is not entitled to maintenance. But if in the contract of marriage, it is specifically stipulated, the wife will be entitled to maintenance during the whole term, even if the husband chooses not to cohabit with her. In the absence of such a stipulation the court has the power to grant her maintenance, under section 125 of the code of criminal procedure.[11]
· If the marriage is not consummated, the wife is entitled to only half of the dower. If the marriage has been consummated, then the wife is entitled to full dower, even if the husband does not cohabit with her during the entire term or part of the term. On the other hand if the wife leaves her husband before the expiry of the term she is entitled to only a proportionate dower[12].
· When the marriage has been consummated, the wife is enquired to undergo idaa of three courses; if there is no consummation of marriage, no idaa is required.
· It seems that in a mut'a marriage the husband has the right to refuse procreation, that is to say, Izl is allowed, and no permission of the wife is necessary.
· The off spring of mut'a marriage has the status of legitimate children, and is entitled to inherit the property of both parents in the same manner as the off spring of the permanent marriage.
· The mut'a marriage comes to an end automatically on the expiry of the term, unless extended, or on the death of either party. The question of husband’s right of Talak does not arise. However the parties my terminate the union by mutual consent if the husband wants to terminate the union earlier, he can do so by making “gift of the tem” or of any portion of it. This is called Hiba-i-muddat for which the consent of the wife is not necessary.[13]
CLASSIFICATION OF MARRIAGE
All the schools of Sunnis classify marriage into:
Ø Valid ( Sahih) marriage.
Ø Void (Batil) marriage.
Ø Irregular (Fasid) marriage.
The Ithari Ashari school of the Shias does not recognize the irregular marriage and therefore among them marriages are either valid or void.
ESSENTIALS OF VALID MARRIAGE:
For a valid marriage the following conditions should be satisfied:
(A) Capacity to marry:
· The parties[14] should have attained puberty or the marriage contract should be entered into by the guardian in marriage on behalf of the party concerned.
· The parties should be of sound mind otherwise the guardian in marriage should act on behalf of the person of unsound mind in arranging the marriage contract.
(B) Form of Marriage:
· There should be a proposal and its acceptance at one meeting. According to the Shias witnesses are not necessary but according to Sunis atleast 2 male witnesses or 1 male and 2 female witnesses are necessary. Where witnesses are necessary they have, of course, to be sane and adult persons. The absence of witnesses however can only render marriage irregular and not void.
(C) Prohibited Relationships:
· The parties should not be within prohibited degrees of relationship. The presence of any such forbidden relationship is an impediment to marriage. On ground of blood relationships, that is, consanguinity the following relationships are not suitable for marriage and make the marriage void.
o Mother and son
o Grandmother (how high-so-ever) and Grandson (how low-so-ever)
o Brother and Sister
o Uncle and niece (how low-so-ever)
o Nephew and aunt (how high-so-ever)
On ground of affinity, the following relations connected though marriage are prohibited for marriage.
o Wife’s mother or grandmother (how high-so-ever)
o Wife’s daughter or granddaughter (how low-so-ever) (if marriage with wife is consummated)
o Wife of father or paternal ancestor
o Wife of son on son’s son or daughter’s son (how low-so-ever)
Foster age also may give rise to prohibited degrees of relationship. Thus a foster mother would come under the ban as much as the mother herself.
VALID MARRIAGE (SAHIH)
A marriage which conforms with all respects of the law is termed sahih, i.e. “correct”, in regard to legal requirements. For a marriage to be valid it is necessary that there should be no prohibition affecting the parties. In other words a marriage between the parties having full capacity to marry with all the necessary formalities is a valid marriage. Here the word ‘capacity’ is used in a wide sense, which includes all legal requirements of a valid marriage. If the marriage is sahih then all the consequences of a valid marriage flow from it.
THE LEGAL EFFECTS OF A VALID MARRIAGE
In the leading case of Abdul kadir V Salimma, Mahmood. J has discussed the legal effects of a Muslim marriage:
“the legal effects of marriage are that it legalizes the enjoyment of either of them (wife and husband) with the other in the manner which in this matter is permitted by the law; and it subjects the wife to the power of restrain ; that is she becomes prohibited from going out and appearing in the public; it renders her dower , maintenance, and raiment obligatory on him; and establishes on both sides the prohibitions of affinity and the rights of inheritance ; and the obligatoriness of justness between the wives and their rights, and on her it imposes submission to him when summoned to the couch; and confers on him the power of correction when she is disobedient or rebellious, and enjoins upon him associating familiarly with her with kindness and courtesy. It renders unlawful the conjunction of two sisters (wives) and of those who fall under the same category.”
The conception of mutual rights and obligation arising from marriage between the husband and wife bears in all main features similar to the Roman law and other European systems.
The legal effects of a valid marriage are summarized as follows:
· Sexual intercourse becomes lawful and the children born of the union are legitimate.
· The wife becomes entitled to her dower (mahr).
· The wife becomes entitled to maintenance.
· The husband is entitled to restrain the wife’s movements in a reasonable manner and to exercise marital authority.
· Mutual rights of inheritance are established.
· The prohibitions regarding marriage due to the rules of affinity come into operation.
· The wife is not entitled to re- marry after the death of her husband, or after the dissolution of her marriage, with out observing ‘Idda.
· Where there is an agreement between the parties, entered into either at the time of marriage or subsequent to it, its stipulations will be enforced, in so far as they are not inconsistent with the provisions or the policy of the law.
· A woman does not change her status on marriage. She remains subject to her own pre- marital school of law. Neither the husband nor the wife acquires any interest in the property of the other by reason of marriage.
VOID MARRIAGE ( BATIL)
When a marriage is performed in violation of absolute impediments or perpetual impediments, the marriage is batil, null and void and it is considered to be void-ab initio. A void marriage is no marriage and no legal consequences flow from it. Neither it confers the status of husband and wife on the parties, nor the status of legitimacy on the children, nor mutual rights and obligations arise from such marriage. It is called marriage because two persons have undergone the necessary formalities of marriage. But since they totally lack capacity to marry, marriage cannot come in existence between the two. Thus marriage performed in violation of rules of consanguinity fosterage of affinity or with another’s wife, are batil marriage. The issue of such a union is illegitimate and law knows no process whereby the union may be legalized.[15] Similarly, a marriage with the wife of another or re-marriage with a divorced wife when the legal bar still exists is void.[16] Since the marriage is void ab initio, the parties are free to go their own way. If the wife enters into another marriage, she will not be guilty of bigamy. Third persons can take a stand and say that the marriage is void, even though the marriage has not been formally terminated.
Thus A and B have undergone a ceremony of marriage, but their marriage is void, since they are related to each other within the degrees of prohibition. A dies leaving behind his father P and B. P claims A’s entire property by saying that since the marriage of A with B was void , B has no status of wife, and he is, therefore, entitled to the property. His claim will stand.
IRREGULAR MARIAGE (FASID)
If the impediment of prohibition to marriage is temporary or remedial, then the marriage performed in violation of such impediments is not void, but as Muslim law gives call, irregular. An irregular marriage under Muslim law is not same thing as voidable marriage under English law or Hindu law. A voidable marriage is perfectly valid till it is avoided, and it can be avoided only by either party to the marriage. No third person can take a stand on it.
A voidable marriage on its annulment has practically the same consequences as that of the void marriage. On the other hand irregular marriage is not a valid marriage: nor it is a void marriage. A fasid marriage is not a valid marriage to begin with, but it can be validated and made a fully valid marriage by removing the impediment or by remedying the prohibition. Thus, when a person marries his wife’s sister the marriage is irregular but he can validate it by pronouncing talak to his wife. Or, when a Sunni male marries an idolater the marriage is irregular, but, on his wife’s conversion to Islam, the marriage becomes valid.
An irregular marriage is totally an ineffective marriage before consummation. Either party to an irregular marriage has a right to terminate it at any time, either before or after consummation, by just expressing an intention to do so. Any words indicating such an intention are enough, such as one party may say to another “I have relinquished thee”. If consummation has taken place in an irregular marriage, then the wife is entitled to dower, proper or specified whichever is less. The wife is required to perform idda of three courses on dissolution of marriage, either by divorce, or, by death of the husband. The children of such marriages are fully legitimate, and have rights of inheritance to the property of both the parents. The parties to an irregular marriage have no right of mutual inheritance.
A marriage under Muslim law is irregular in the following cases:-
· A marriage performed without witness.
· A marriage performed with a woman undergoing idda.
· A marriage prohibited on an account of difference of religion.
· A marriage with two sisters, or contrary to the rules of unlawful conjunctions.[17]
· A marriage with a fifth wife.[18]
Since the Ithna Ashari law doen not recognize irregular marriages, a marriage with no witness is void under that law. But for a Shia marriage no witness is necessary.
CONCLUSION:
Human beings, at some stages of the development of the institution of marriage have attached some sanctity – some going to the extent of calling it a sacrament, a permanent union, just as Hindus and Christians did – to marriage and to that extent a Muslim marriage, too, maybe called an ibadat but the most remarkable feature of Muslim jurisprudence is, that even at the beginning of the development of their juristic thought, they squarely considered the marriage essentially as a civil contract – a concept which developed in the western world fully only after the industrial revolution. That of the two partners to a marriage, it accorded dominant position to the husband, was but natural at the stage in the development of human society which was starkly patriarchal. Thus it is submitted that in its formation the Muslim marriage is essentially a contact though in its dissolution the dominant position of the husband is recognized.
REFERENCE:
Books:
1. OUTLINES OF MOHAMADDAN LAW, 4th ed.
Oxford India Paperbacks
-ASAF A.A. FYZEE.
2. FAMILY LAW IN INDIA, 9th ed.
S.Gogia & Co.
-PROF. G.C.V.SUBBARAO
3. FAMILY LAW, 9th ed.
Allahabad Law Agency
-PARAS DIWAN
4. THE MUSLIM LAW OF INDIA, 3rd ed.
Lexis Nexis Butterworths
-TAHIR MAHMOOD
5. MUSLIM LAW, 9th ed.
Lexis Nexis Butterworths
-MULLA
Statutes Referred:
1. The Indian Constitution
2. Muslim Laws
3. The Civil Procedure Code
4. The Specific Relief Act, 1963
Net Sources:
1. en.wikipedia.org
2. www.indiankanoon.org
3. www.moj.gov.jm
4. www.jannah.org
[1] Syed V. Rajmaa, 1977 AP. 152.
[2] Mulla §269 (4)(b)
[3] (1914) 17 Bom LR 13 at 17.
[4] Shahzada Qanum V. Fakher Jahan, AIR 1953 Hyd. 6.
[5] Agha Ali V. Altaf Hasan, 1892 14 All. 429, 450
[6] Aziz Bano’s case 1952 47 All. 823, 828, 829.
[7] Otherwise called hiba-e muddat.
[8] Mulla §269 (4) (d)
[9] Mulla § 269 (4)(e)
[10] Mulla §269 (4)(f)
[11] Luddun V. Mirja Karma (1882) 8 Cal. 336.
[12] Mad. Abid V. Ludden 1887 14 Cal. 276
[13] There is a difference of opinion among the Shia Jurists itself on this matter.
[14] The Child Marriage Restraint Act 1929 applies to Muslims as it does to all other Indians, according to Art. 44 of The Indian Constitution.
[15] Mulla §§260 – 262, read with §264
[16] Rashid Ahmed V. Anisa Khaun, 1931 59 I.A. 21
[17] Mulla § 263
[18] Mulla § 264. Read with § 255
REFERENCE:
Books:
1. OUTLINES OF MOHAMADDAN LAW, 4th ed.
Oxford India Paperbacks
-ASAF A.A. FYZEE.
2. FAMILY LAW IN INDIA, 9th ed.
S.Gogia & Co.
-PROF. G.C.V.SUBBARAO
3. FAMILY LAW, 9th ed.
Allahabad Law Agency
-PARAS DIWAN
4. THE MUSLIM LAW OF INDIA, 3rd ed.
Lexis Nexis Butterworths
-TAHIR MAHMOOD
5. MUSLIM LAW, 9th ed.
Lexis Nexis Butterworths
-MULLA
Statutes Referred:
1. The Indian Constitution
2. Muslim Laws
3. The Civil Procedure Code
4. The Specific Relief Act, 1963
Net Sources:
1. en.wikipedia.org
2. www.indiankanoon.org
3. www.moj.gov.jm
4. www.jannah.org
[1] Syed V. Rajmaa, 1977 AP. 152.
[2] Mulla §269 (4)(b)
[3] (1914) 17 Bom LR 13 at 17.
[4] Shahzada Qanum V. Fakher Jahan, AIR 1953 Hyd. 6.
[5] Agha Ali V. Altaf Hasan, 1892 14 All. 429, 450
[6] Aziz Bano’s case 1952 47 All. 823, 828, 829.
[7] Otherwise called hiba-e muddat.
[8] Mulla §269 (4) (d)
[9] Mulla § 269 (4)(e)
[10] Mulla §269 (4)(f)
[11] Luddun V. Mirja Karma (1882) 8 Cal. 336.
[12] Mad. Abid V. Ludden 1887 14 Cal. 276
[13] There is a difference of opinion among the Shia Jurists itself on this matter.
[14] The Child Marriage Restraint Act 1929 applies to Muslims as it does to all other Indians, according to Art. 44 of The Indian Constitution.
[15] Mulla §§260 – 262, read with §264
[16] Rashid Ahmed V. Anisa Khaun, 1931 59 I.A. 21
[17] Mulla § 263
[18] Mulla § 264. Read with § 255
Project on Wakf - Muslim
WAKF:
A Wakf formally
known as Wakf-alal-aulad is
an inalienable religious
endowment in Islamic law,
typically denoting a building or plot of land for Muslim religious
or charitable purposes. The donated assets are
held by a charitable trust. ‘Wakf’
means detention and the detention contemplated is the detention of the property
in the ownership of God. In other words, the property is dedicated to God for
religious or charitable purposes. The Wakif is the person who dedicates the
property. The effect of the dedication is the extinction of his ownership. The
Wakif may appoint himself as the Mutawalli, i.e., manager of the Wakf. This
does not mean that he becomes the owner in the eye of law. The Wakif or
Mutawalli is not the legal owner but only the manager of the property, which is
treated as vested in God according to the Islamic concept of Wakf. That is the
fundamental difference between a Trust under English Law and a Wakf under
Muslim Law. A trustee is he legal owner but a Wakif (Mutawalli) is not the
legal owner.
BENEFICIARIES
The
beneficiaries of the Wakf can be persons and public utilities. The founder can
specify which persons are eligible for benefit (such the founder's family,
entire community, only the poor, travelers). Public utilities such as mosques,
schools, bridges, graveyards and drinking fountains, can be the beneficiaries
of a Wakf. Modern legislation divides the Wakf as "charitable
causes", in which the beneficiaries are the public or the poor) and
"family" Wakf, in which the founder makes the beneficiaries his
relatives. There can also be multiple beneficiaries. For example the founder
may stipulate that half the proceeds o for his family, while the other half go
to the poor.
Valid beneficiaries must satisfy the
following conditions:
§ They must be identifiable. At least
some of the beneficiaries must also exist at the time of the founding of the
Wakf. The Malikis, however, hold that a Wakf may exist for some time without
beneficiaries, whence the proceeds accumulate are given to beneficiaries once
they come into existence. An example of a non-existent beneficiary is an unborn
child.
§ The beneficiaries must not be at war
with the Muslims. Scholars’ stress that non-Muslim citizens of the Islamic
state (dhimmi) can definitely be beneficiaries.
§ The beneficiaries may not use the Wakf
for a purpose in contradiction of Islamic principles.
There is
dispute over whether the founder himself can reserve exclusive rights to use
Wakf. Most scholars agree that once the Wakf is founded, it can't be taken
back.
The Hanafis hold that
the list of beneficiaries include a perpetual element; the Wakf must specify
its beneficiaries in case
TYPES OF WAQF
In
India
Ø
Waqf by User,
Ø
Mashrut-ul-Khidamat,
Ø
Waqf-al-Al-Aulad
- Waqf by user: where any piece of land or portion of a building has been used continuously for any religious or pious purpose the owner had no objection to it or has an intention to allow to continue such practice is called a Waqf by user; example Mosque, Madrasah, etc…
- Mashrut-ul-Khidmat is a Public Waqf where the Waqf has devoted the property for the general benefit of Muslim community
- Waqf-al Al Aulad is that unique feature of Islamic law where a property is made Waqf
for the welfare of the Waqif's own family or his children or children of
his children. It is called Waqf-al A/Aulad or Waqf for progeny.
WAQF AND COOPERATIVE
MOVEMENT: DISTINGUISHED
Islam strongly supports the idea of
mutual help, coordinated effort and efficient management for the sake of common
good. Thus the modern cooperative movement has close affinities with the
Islamic concepts and of course, it (Cooperative movement) can be very useful in
the healthy development of the economy.
However, the Islamic institution Waqf differs from the
cooperative movements. Only the members of the cooperative society are the
beneficiaries. In the Islamic Wafq System the Waqf (Investor) transcends his
personal interests and dedicates his personal property not for himself but for
the welfare of the entire community mostly economically weaker sections of the
society.
On the pattern of cooperative movement various activities can
be introduced in Awqaf and the scope of Awqaf can be extended so as to include
a chain of stores, cottage and major industries, hotels, public transport,
health clinics, industrial training centres and schools etc. For this purpose
the scope of the objects of waqf can be expanded and standard waqf deeds can be
introduced. If this experiment is successfully implemented the high ideals for
which the sacred institution of waqf stands will be fully achieved. This
experiment will be much better and nobler
than that of the corporate movement. If the enterprises as enumerated
above are taken up on behalf of waqf
institutions the spirit of selflessness and an awareness of the benefit of sharing the property with
the have-nots will be generated.
TRUST AND WAQF
DIFFERENTIATED
The Wakf in Islamic law,
which developed in the medieval Islamic world from the 7th to 9th
centuries, bears a notable resemblance to the English trust law. Every waqf
was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and
beneficiaries. Under both a waqf and a trust,
"property is reserved, and its usufruct
appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus
becomes inalienable; estates for
life in favor of successive beneficiaries can be created" and
"without regard to the law of inheritance or
the rights of the heirs; and continuity is secured by the successive appointment
of trustees or mutawillis."
The only significant
distinction between the Islamic waqf and English trust was
"the express or implied reversion of the waqf to
charitable purposes when its specific object has ceased to
exist", though this difference only applied to the waqf ahli (Islamic
family trust) rather than the Wakf khairi (devoted to a
charitable purpose from its inception). Another difference was the English
vesting of "legal estate" over the trust property in the trustee,
though the "trustee was still bound to administer that property for the
benefit of the beneficiaries." In this sense, the "role of the
English trustee therefore does not differ significantly from that of the Mutawalli."
The trust law developed
in England at
the time of the Crusades, during the 12th and 13th centuries. The trust was
introduced by Crusaders who may have been influenced by the Wakf institutions
they came across in the Middle East.
There are certain points in which Wakf and Trust differed.
The points are as follows:
TRUST
- No particular motive is necessary.
- The founder may himself be a
beneficiary.
- It may be for a lawful object.
- The property vests in the Trustee.
- A trustee has got larger powers
than a Mutawalli.
- It is not necessary that Trust
may be a perpetual, irrevocable or inalienable.
- It results for the benefit of
the founder when it is incapable of execution and the property has not
been exhausted.
WAQF
- It is generally made with a
pious religious or charitable motive.
- The Waqif cannot reserve any
right to benefit for himself; except to some extent under Hanafi law.
- The object must be recognized
by Muslim law as pious, religious and charitable and in case of family
settlement, the ultimate object must be some benefit to mankind.
- The property vests in God.
- A Mutawalli is not a manager
or Superintendent.
- A Waqf is perpetual,
irrevocable and inalienable.
- The "Cy-pres"
doctrine is applied and the property may be applied to some other objects.
Thus, the Islamic law of waqf differed
substantially from the English law of Trusts. Probably this was the reason
apart from religious bias, which persuaded English Courts to pronounce judgments
contradictory to or in violation of the Islamic rules of law. Since the English
Courts in British India followed the English
law, this bent of mind ulminated in the most revolutionary and controversial
judgment which came in direct conflict with Islamic law of waqf in the year
1894. Under the Islamic law, a waqf could be created not only for public charity
but also for the purpose of benefit to one's own family which is
called
Waqf-al Al-Aulad, whereas the English law knew only of public charity. Thus
their Lordships of Privy Council deciding the case of Abul Fatah Mohammad Ishak Vs. Russamoy Dhur Chowdhry held that, if
the primary object of the waqf was the aggrandizement of the family and the
gift to charity was illusory whether from its small amount or from its
uncertainty and remoteness, the Wakf, for the benefit of the family was invalid
and, thus, has no effect. This decision caused a great furore in the Muslim community
as this pronouncement, particularly, paralyzed the power of a Muslim to make a
settlement in favor of his family, children and descendants and what is
recognized by Islamic law of Waqf al
Al-Aulad.
DIFFERENCE BETWEEN
HANAFI AND SHIA LAW:
The
following points of difference between the Hanafi and Shia Law in egard to the
Law of Wakf are noteworthy:
- Creation of Wakf:- Under the
Hanafi Law a Wakf may be created by a mere declaration of intention to do
so. The Shia Law requires, in addition, transfer of possession to the
Mutawalli except when the Wakif appoints himself the first Mutawalli
(Manager of the Wakf): Avadi Begum v.
Kaniz Zainab[1]
- Reservation of Life Interest
for Wakif:- A Hanafi Muslim may reserve for himself a life
interest for his own maintenance and support during his lifetime. Under
Shia Law this cannot be done. Among Shias, a Wakf reserving a benefit to
the Wakif from out of the income of the Wakf is void. A Shia Mohammedan
can create a Wakf-alal-aulad so long as he does not reserve for himself
personally any interest out of income, i.e., he can provide for his
children and descendants but not for himself.
- Provision for Payment of debts
of Wakif:- A Hanafi Muslim may direct that the usufruct of
the Wakf property should be used for paying his personal debts. This
cannot be done by a Shia Mohammedan. If the debt is not a personal debt,
but is in the form of a mortgage over property, the mortgaged property may
be the subject matter of a Wakf, whether the mortgagor is a Hanafi or a
Shia. This is because the debts in question in such cases are not mere
unsecured debts.
DIFFERENCE BETWEEN
PRIVATE WAKF AND PUBLIC WAKF:
A public Wakf is a trust fo public
religious or charitable purposes. A private Wakf is one for the benefit of the
family and descendants of the settler. At one time it was thought that a
private Wakf was always invalid. This view is wrong. If the Wakf is for the
benefit of a settlor’s family and also substantially in favour of charity, it
is valid. But if the gift to charity is illusory, it would not e valid. The
privy council held that a Wakf for the family members though coupled with a
gift to charity on the failue of the line of descendants is not one
substantially for charity and so was invalid. Abdul Fata Mahomed v. Russomoy[2].
But this has been statutorily superseded by the Mussalman Wakf Validating
Act, 1913.
THE RELEVANT SECTIONS
OF THE CODE OF CIVIL PROCEDURE, 1908
Although sections 92 and 93 of the
Civil Procedure Code of 1908 specifically refer to Public charity they,
however, did not successfully apply to Muslim Wakfs with all its derivative
forms. However, they were applicable to Muslim Wakfs also in as much as they
contained public purposes within the meaning of section 92. If the relief
mentioned in the section are claimed with reference to a Wakf property or its
trustee (in Islamic law, Mutawalli), the section does apply.
Section 92 of he Civil Procedure Code
1908, dealing with "Public Charities" gave crucial power to the
Advocate General, or two or more persons having an interest in the trust, with
the prior consent of the Advocate General, to invoke the Principal Civil Court
of original jurisdiction in the case of any alleged breach of any trust created
for public purposes of a charitable or religious nature. In such cases, the
direction of the court could be obtained for the purposes of:
a) removing a trustee;
b) appointing a new trustee;
c) vesting any property in a trustee; directing
a trustee who has been removed or a person who has ceased to be a trustee, to
deliver possession of any trust property in his possession to the person
entitled to the possession of such property;
d) directing accounts and enquiries;
e) declaring what proportion of the trust
property or the interest therein shall be allocated to any particular object of
the trust;
f) authorizing the whole or any part of the
trust property to be left, sold, mortgaged or exchanged;
g) setting a scheme or in general; and
h) granting such orders as the circumstances of
the case may demand.
While the Advocate General was empowered to invoke court
under sections 91 and 92 of Civil Procedure Code, within the presidency towns,
in the muffasils, the same power under section 93 of Civil Procedure Code with
the previous sanction of the State Government, was exercised also by the
Collector or by such Officer as the State Government may appoint in this
behalf.
THE MUSSALMAN WAQF
VALIDATING ACT, 1913
To allay the apprenhensions of the Mussalmans who were
agitated by the Privy Council decision in Russomoy’s case, the Mussulman Wakf
Validating Act, 1913, was passed. It came into force from 7-3-1913 but was
given retrospective effect by the Mussulman Wakf Validating Act of 1913. By
giving retrospective effect even Wakfs created prior to 7-3-1913 would be saved
by this legislation.
This Act defines Wakf as he permanent dedication by a
Mohammedan of any property for purposes recognized by the Mohammedan Law as
religious, pious and charitable[3].
A wakf may be created for the maintenance and support of the settlor’s family,
children or descendants provided the ultimate benefit is reserved for
religious, pious or charitable purposes[4].
Section 4 expressly supersedes Russomoy’s decision by providing that “No such
Wakf shall be deemed to be invalid merely because the benefit reserved therein
for the poor, or other religious, pious or charitable purpose of a permanent
nature is postponed until after the extinction of the family, children or
descendants of the person creating the Wakf”.
The ultimate gift to charity may be express or implied. It
cannot be implied by the mere use of the word ‘Wakf’[5].
In Tamilnadu Wakf Board
v. Ebrahim Musuee, Mutawalli[6],
the question arose whether a Wakf-alal-aulad with no dedication in presenti
for any religious or charitable purpose recognized as such by Muslim Law is
within the jurisdiction of the Wakf Board set up by the Wakf Act. The Wakf Act
defines a Wakf as including “Wakf-alal-aulad to the extent to which the
property is dedicated for any purpose recognized by the Muslim Law as pious,
religious or charitable,” Ismail, J., held that the expression ‘Muslim Law’ in
this context means only ‘Muslim Law’ as interpreted by the Privy Council in Abdul Fata v. Russomoy[7], though
that interpretation was at variance with the orthodox Muslim Law. So he
concluded that a family Wakf where the family is the exclusive beneficiary
while it existed is not a Wakf recognized by the Muslim Law as pious, religious
or charitable. Hence, the Wakf Board had no jurisdiction to protect the
property against improper alienation by the Mutawalli (in collusion with the
beneficiaries) to defeat the ultimate gift to charity on extinction of the
family of the author of the Wakf. It is respectfully submitted that the
ultimate gift to charity is sufficient to give a locus standi to the Wakf Board to protect the property from
improper alienation by the Mutawalli.
LAWS RELATING TO WAQF ADMINISTRATION
Since 1913, a good number of Acts have
been passed both by Central and State Legislatures to regulate administration
of waqfs, a brief introduction of these Acts is being furnished hereunder:
THE OFFICIAL TRUSTEES
ACT, 1913
By virtue of section 4 of the Official Trustees
Act, 1913, certain persons specified therein, could be appointed as trustee by
any person intending to create a waqf for a purpose other than the religious
purpose.
It covered in its scope waqfs created
mainly for charitable purposes. The trustees of any such trust, except
religious ones, and all beneficiaries of the trust could transfer their charge
to the official trustee with his consent.
THE CHARITABLE AND
RELIGIOUS TRUSTS ACT, 1920
This Act provided more purposeful
control over the administration of charitable and religious trusts. Although
this Act did not provide for any administrative machinery to exercise
supervision over the waqfs, any interested person could apply to the court of
the District Judge to seek information, from the trustee regarding value,
condition, management, nature and object of waqf. The court direction could be
obtained to get the accounts examined and audited. However, this Act applied
only to waqfs created for public charity, and in particular, it did not apply
to private waqfs.
THE MUSSALMAN WAQF ACT,
1923
In 1923, the Mussalman Waqf Act was passed
requiring mutawalli or every waqf, except of a waqf -al A/Aulad, to furnish to
the court of the District Judge, a statement giving information regarding
description of the property, gross annual income, gross income accumulated
during previous five years, amount payable as revenue, or rents, annual
estimate or expenditure incurred, etc. This Act did ensure auditing of the
accounts of mutawallis, but resulted in causing heavy burden of work of Civil
Courts. Since no separate administrative machinery was contemplated for the
supervision of Waqf administration, the Act could not help improving waqf
administration.
THE HYDERABAD
H.E.H. the Nizam of Hyderabad promulgated
a Regulation known as Hyderabad Endowment Regulations under which a Nazim
Umoor-e-Mazhabi i.e., Director Ecclesiastical Department was appointed to
supervise waqf administration on behalf of the Government. These Regulations,
though brief, provided for every important aspect of the waqf administration in
the erstwhile Hyderabad Government. It contained sixteen sections and provided
for registration of waqf properties, maintenance of "Kitab-ul-Awqaf "
(Waqf register) in the prescribed manner by the Director Ecclesiastical
Department.
The unique feature of the Hyderabad
Endowment Regulations was its secular character which provided for Registration
and the supervision of not only the Hindu and the Muslim Waqfs but endowments
of all religions. Therefore, the rules made under these Regulations were very
exhaustive numbering about 525.
The Regulations also laid down
procedure for administration of waqf property (S.12), Section 13, dealing with
the duties of the mutawalli, imposed heavy obligation on him, just in two
sentences that "it shall be the duty of the mutawalli to manage the waqf property
in accordance with terms and conditions as if it were his own property".
And in this regard the rights of the mutawalli as per the conditions of waqf
would be same as are given legally to any trustee.
Section 14 of the
Hyderabad Endowments Regulations was a crucial one
providing
for restoring/obtaining the possession of a waqf property (duly registered with
the Registrar of the Ecclesiastical Department) by the First Class Magistrate
in the same manner. The order of Director of Ecclesiastical Department was to
be executed as if it was a decree issued under the relevant provision of law
relating to execution of a court decree. The miscellaneous provisions relating
to the power/procedures of the Ecclesiastical Department, appeals and
supervision were provided under section 15 to 18. However, in pursuance of
Andhra Pradesh Adaptation of laws Order (1 of 1957) the Hyderabad Endowment
Regulations ceased to apply to Muslim Waqfs with effect from the commencement
of the Waqf Act of 1954.
ANOTHER SPADE OF WAQF
LAWS
Despite several statutory efforts to
improve Waqf Administration in India
- United Provinces Muslim Wakf
Act 1936.
Most of the above Acts were repealed and replaced by the
Central Wakf Act, 1954, except the State of West Bengal
where the Bengal Wakf Act, 1934 was applicable, the State of Utter Pradesh Kutch region. In the rest of the areas
of these States, the Bombay Public Trust Act, 1950 was applicable. Thus, there
were two systems of Wakf administration in the same states.
CONCLUSION
The concept of Wakf is rooted to
the Quranic injunctions, which deal with charity. The followers of Islam
transformed this concept of charity into an institution known as Wakf that
formed the "most important branch of Muslim Law for it is interwoven with
the entire religious life and social economy of the Muslims. Propagation and
expansion of Islam for its domination over all the other faiths are known to be
the basic duty of every Muslim whose ultimate aim of life is to derive divine
pleasure after the day of Judgment. Wakf is one of the pious means to achieve
this goal. Literally, the Wakf means endowment of moveable or immovable
property dedicated to God by the Muslims for the welfare of needy and poor
people. The Wakif (settler) in his deed appoints Mutawalli (Manager) for the
administration of the Wakf. The Wakif is having the right either to appoint
himself or any Muslim as Mutawalli.
Theologically, once the properties
are dedicated in the name of Allah (God) and endowed to Wakf they are
perpetual, irrevocable and inalienable and thereby once a Wakf it always
remains a Wakf. ''Wakf is a permanent dedication by a Muslim of any moveable or
immovable property for any purpose recognized by Muslim Law as pious, religious
or charitable. The institution of Wakf emerged during the formative period of
Islamic Law. Its history in India
BIBLIOGRAPHY
Ë Net Sources:
§
www.unhabitat.org
§
www.proz.com
§
en.wikipedia.org
§
arc.gov.in
§
www.turkishculture.org
Ë Books referred:
§ Family
Law in India
9th
edition; Published by: S.Gogia & Co.
Ë Statutes referred:
§ The
Mussalman Wakf Validating Act, 1913
§ The
Code of Civil Procedure, 1908
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