INTRODUCTION
Muslim family law encompasses a comprehensive framework governing various aspects of marriage, inheritance, wills, and gifts, reflecting the intersection of religious principles and statutory regulations. Central to this framework is the distinction between the application of Muslim law and the provisions of the Indian Succession Act, 1925, particularly in marriages contracted under the Special Marriage Act, 1954. This legislation ensures that the rights and obligations regarding succession are aligned with the provisions of the Indian Succession Act for Muslims and non-Muslims alike. The principles governing wills under Muslim law, while rooted in Quranic teachings and Hadis, impose specific restrictions, notably the limit on testamentary disposition to one-third of the estate. Additionally, the law of inheritance showcases significant differences between Sunni and Shia practices, emphasizing the importance of consanguinity and the structured categories of heirs. By exploring these dimensions, we can better understand the legal intricacies that shape familial and property relationships within the Muslim community.
WILLS
When a Muslim gets married under the Special Marriage Act, 1954, either to a Muslim or to a non-Muslim, he, along with his spouse and the children born of this marriage, would no longer be governed by the Muslim law of succession but will be governed by the provisions of the Indian Succession Act, 1925. The same consequences will follow if two Muslims get married under Muslim law and subsequently get this marriage registered under the Special Marriage Act, 1954. This marriage will be deemed to be a marriage solemnized under this Act, and the parties to the marriage and the issue of such marriage will, in matters of succession, be governed by the provisions of the Indian Succession Act, 1925, and not by Muslim law. There is no minimum and maximum time limit specified within which a marriage contracted under Muslim law can be registered under the Special Marriage Act, 1954.
Law relating to wills or testamentary disposition for Muslims is divine in nature, i.e., regulated by the Quran and supplemented by the traditions of the Prophet. There is a permissibility of making a will to the extent of only one-third of the property. Wills are declared as lawful in the Quran,[i] though it does not provide for the testamentary restriction of one-third. The permissibility of bequests up to one-third is traced to a Hadith of the Prophet. Thus, the law is that there should be minimum disturbance as far as the laws of inheritance are concerned, and if at all the testator wants to make a bequest, he should not exceed the one-third limit.[ii]
A will executed under Muslim law does not require a probate. Under Muslim law, a will can be in writing or even oral. [iii] If it is oral, the intention of the testator should be sufficiently ascertained. Every Muslim (man or woman) who is of sound mind and has attained the age of majority can dispose of his/her property under a will. Under Muslim law, a person becomes a major on the completion of the age of 15 years and till 1875, a 15-year-old Muslim was competent to make a valid will of his/her property. In 1875, the Indian Majority Act was promulgated, under which the age of majority was prescribed as 18 years ordinarily and in case a guardian was appointed by the court for a minor, such a person attained the age of majority on the completion of 21 years.
The restrictions on the testamentary powers under Muslim law are of two types:
- Restrictions with respect to legatees
- Restrictions with respect to the extent of property that can be bequeathed.
A bequest in favor of an heir to the extent of one-third of the property is valid under Shia law but invalid under Sunni law unless the other heirs give their consent.
GIFTS
A person during his lifetime enjoys full powers of disposal of his property. When the transfer is to take effect immediately, he is competent to make a disposition of the entire property, such as by sale or gift, etc., but if the transfer is to take effect after the death of the person, such as through a will, under Muslim law, his powers of disposing of the property are limited and do not extend generally beyond one-third of his net assets, calculated after his death. The latter is due to the reason that the just claims of the rightful heirs should not be unreasonably interfered with. If the owner genuinely feels that either of his heirs does not deserve to have his property, or somebody else or even one heir has a better claim over it for whatever reason, he can always make a gift of his property in his favor.
One of the primary requirements in the case of a gift is that it should be a voluntary or conscious act of the donor, who must be free from any mental infirmity, either natural or induced by pressure, undue influence, or fraud, etc. An ordinary gift does not indicate haste, but a gift under an apprehension of death is made with a sense of urgency. These gifts are made at a time when it is doubtful whether the mental faculties are functioning properly or are absolutely normal due to the apprehension of immediate death and have a separate status. Law treats them differently and terms them as gifts made during ‘deathbed illness’ or made by a person suffering from ‘marz-ul-maut.’. ‘Marz’ means illness, disease, or a malady, and ‘maut’ means death, thus the terms effectively refer to terminal diseases.
INHERITANCE
Laws of inheritance under Muslim law are derived from customs and usages prevalent among the tribes of Arabia before the revelations of the Quran, as supplemented and modified by the Quranic principles and the Hadith of the Prophet. Contrary to popular belief, Quranic revelations were not the starting point of Muslim law. It was in existence even prior to that, but it was systematized, concretized, and modified by the revelations and the traditions of the Prophet.
Laws relating to Shias and Sunnis with respect to inheritance are different in many respects. This difference is primarily due to the interpretation of the Quranic provisions and their incorporation in the already existing system. The Sunnis kept the old framework intact, such as preference to agnates over cognates, and superimposed the Quranic principles on this old set-up. The Shias, on the other hand, blended the old rules and the newly laid down rules. They revised the law prevalent under the Arabian customs and usages in light of the newly laid down principles and came out with a scheme widely different from the one propounded by the Sunnis.
Muslims do not have a concept of joint family, trading families, or rights by birth. There is, however, a single scheme of succession irrespective of the sex of the intestate. [iv] Blood relation or consanguinity is the primary principle on which succession is based and relations introduced in the family by marriage do not succeed. In terms of heritable property, a Muslim is not permitted to bequeath more than one-third of his estate without the consent of his heirs. Furthermore, a bare chance of inheritance can neither be transferred nor renounced in favor of anyone. [v] The heirs take a vested interest in the estate of the intestate the moment succession opens, and their ownership in their respective shares is not dependent upon its actual distribution by metes and bounds. [vi]
In accordance with the rules of exclusion, certain persons who otherwise would be heirs are disqualified from inheriting the property of an intestate. These grounds of exclusion are as follows:
- Difference in religion
- Homicide
- Illegitimate child
Under Sunnilaww, heirs are divided into related and unrelated heirs. The property in the first instance is to be distributed among those sharers who are entitled to get the property. Sharers are the heirs who were earlier excluded but were introduced as heirs by the Quranic revelations. Their shares are fixed. Once the property is distributed among the sharers, and anything is left, this surplus is called residue and goes to the next category called residuaries. Muslim law in general does not recognize the principle of representation and provides for the rule of nearer in degree, excluding the remoter.
The Shias group the heirs of a deceased Muslim in the two categories of consanguine heirs (related to the deceased by blood) and relations by marriage (husband and wife). These are also divided into sharers and residuaries.
CONCLUSION
Muslim family law provides a nuanced understanding of inheritance, wills, and gifts, shaped by both divine directives and cultural traditions. The distinctions in legal frameworks between Sunni and Shia practices underscore the complexity of inheritance rights and the implications of marital choices under various statutes. The limitations on testamentary powers and the emphasis on protecting the rights of rightful heirs reflect a commitment to justice within the family structure. Furthermore, the recognition of wills and gifts demonstrates the balancing act between individual autonomy and the preservation of familial integrity. As society evolves, the interpretation and application of these laws will continue to adapt, ensuring that they remain relevant in addressing contemporary issues faced by Muslim families. Understanding these legal principles is essential for safeguarding rights and navigating the intricate landscape of Muslim family law in India.
[i]Charles Hamilton’s Translation, The Hedaya, Or Guide: A Commentary on the Mussulman Laws, (2nd Ed., 1870).
[ii] Neil Benjamin Edmonstone Baillie, Digest of Moohummudan Law, (2nd Ed., 1875).
[iii] Mohammad Altaj v. Ahmad Buksh, (1876) 25 WR 121 (PC).
[iv] Mohammed Jaheer v. M V Mohammed Hussain Walayata, AIR 2013 Bom 77: (2013) 2 Mad LJ 294.
[v] Asa Beevi v. Karuppan, (1918) 41 Mad 365.
[vi] Jawai v. Hussain Baksh, AIR 1922 Lah 298.
