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Introduction of Muslim Law

Islamic law, a divine law sent by Allah to prophet muhammad (PHB), is the result of a
continuous process of development till now.
Muslim Law, also known as Islamic Law or Sharia Law, is a set of rules and
guidelines for Muslims, based on the Quran and the Hadith (sayings and actions of the
Prophet Muhammad). It covers religious practices, family matters, inheritance,
business, and criminal issues. It also uses consensus of scholars (Ijma) and analogy
(Qiyas) to make decisions. Different interpretations, called Fiqh, create schools of
thought like Hanafi, Maliki, Shafi'i, and Hanbali. Muslim law varies by country and
culture, influenced by local traditions and modern laws.
Islamic Jurisprudence (Fiqh) is the understanding and interpretation of Islamic laws
based on the Quran, Hadith (sayings of Prophet Muhammad), and scholarly consensus
(Ijma). It guides Muslims in personal conduct, family matters, worship, transactions,
and governance through legal reasoning.
Islamic Law (Shariah) is the comprehensive system of divine laws and ethical
principles derived from the Quran and Hadith. It governs all aspects of a Muslim's life,
providing guidelines for religious practices, family relations, business dealings,
criminal justice, and societal governance, aiming to promote justice, fairness, and
moral conduct.
Sources of Islamic Law
The Sources of Islamic Law refer to the primary foundations from which Islamic
legal principles and rulings are derived. These sources include:
The Sources of Islamic Law are divided into two terms
1. Primary Sources
2. Secondary sources
1. Primary Sources: Primary sources of islamic laws are directed by the Prophet
(PBH) himself. Muslim personal law is based upon this and it has the highest quality.
The primary sources are as follows:
I. Quran.
II. Sunnah or Hadith.
III. Ijma.
IV. Qiyas.
I. Quran:
● Al-Quran is the first and the main source of islamic law.
● Al-Quran is the direct words of Allah. It was revealed in Mecca and Medina.
● The verses of the Quran of Mecca are philosophical and theological issues and
the verses of Medina are - Socio Economic Laws.
● It was written and preserved during the life of the Prophet (PBH) and compiled
after his death.
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● It is not entirely a legal code.

Surah Al-Ma'idah (5:3): "This day I have perfected for you your religion and
completed My favour upon you and have approved for you Islam as religion."
II. Sunnah or Hadith (Traditions):
● Sunnah or Hadith is the second source of islamic law.
● Sunnah of Hadith means the tradition or customs of the prophet (PBH).
● It includes everyday sayings, utterances, his Acts, Tacit, Consent,
Acknowledgement of statements and activities.
● The Sunnahs are as follows:
○ hadith-e-Qauli: saying of Prophet (PBH)
○ hadith-e-feli: behaviour of Prophet (PBH)
○ hadith-e-taqriri: Silence of Prophet (PBH) taken as his implied approval.
○ hadith-al-Qudsi: It is a message from Allah given in the prophet's
language.
III. Ijma (Consensus of Jurists Opinion):
● Ijma is considered as the third source of islamic law.
● It can be applied only in case of law, where it has not been covered by the first
two sources.
● Ijma is the consensus of opinion of muslim jurists of any age on any issue,
which warrants solution. It means when muslim jurist gives their unanimous
decision on an issue it is called Ijma.
● Muslim jurists are called Mujtahids.
● Ijma is regarded as the most important in Shafei school.
● There are 3 kinds of Ijma:
○ Ijma of Companions.
○ Ijma of Jurist.
○ Ijma of People or masses.
IV. Qiyas (To Establish Analogy):
● Qiyas is the fourth source of Islamic Law.
● Arabic meaning of Qiyas is measuring or equality
● It means measuring or comparing a thing to a certain standard.
● It is the process of deduction or discovers law and not to establish new law.
● Qiyas rejected by Hanbali school.
2. Secondary sources:
I. Custom.
II. Judicial Decisions.
III. Legislation.
IV. Equity, Justice and conscience.
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I. Custom:
● Before the emergence of Islam in Arabia, Custom was regarded as the basis of
social life, Religion, Morality, Trade and Commerce.
● It is not recognized as a source under islam.
● The Prophet (PBH) never repealed the whole of pre-islamic customary law of
Arabia.
● After the Shariat Act of 1937, Custom is applicable in matters not falling under
section 2 - Adoption, Will, legacies.
II. Judicial Decisions:
● In absence of a clear text of Muslim law about justice, equity and good
conscience, decisions made by the Supreme Court and High Court are called
judicial Decisions.
E.g. Shaiyara Banu vs. Union of India.
III. Legislation:
● Legislation passed by the parliament and state legislature.
● They modify rules of Muslim law according to present needs.
E.g. Shariat Act 1937, Dissolution of Muslim Marriages Act 1939.
IV. Equity, Justice and conscience:
● When law is silent on a certain point, the principal of equity comes to
supplement it.

Schools and Sects of Islamic Law

There are two main Sects in Muslim law.
1. Sunni.
2. Shia.
1. Sunni: A Sunni school refers to one of several major traditions of Islamic
jurisprudence (Fiqh) followed by Sunni Muslims.
There are four Sunni Schools:
I. The Hanafi School .
II. The Maliki School.
III. The Shafei School.
IV. The Hanbali School.

I. The Hanafi School:

● The Hanafi school is the first school of islamic law.
● The vast majority of the muslims in all parts of the world are Hanafi. The
founder of this school is Imam Abu Hanifa An Noman Ibn Thabit.
● This school relies on customs and precedents of muslim community as tradition
of the Prophet (PBH).
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● Whenever the Quran did not explain anything clearly this School relied on
prophets tradition.
● The Hanafi School defines how inheritance and succession should be handled.
● The Hanafi School is followed in Bangladesh, Pakistan, India, Afghanistan,
Turkey, Egypt, Arabia, China and other parts of other arabian countries.
II. The Maliki School:
● The Maliki school is the second school of islamic law.
● Founder of Maliki school is Imam Malik ibn Anas
● This school flourished in Medina and originated in sunnah.
● Imam Mohammad and Shafei were his famous students.
● The followers of Maliki school are Found in North Africa, Spain, Morocco,
Algeria, Tunisia, Sudan, Bahrain, and Kuwait.
III. The Shafei School:
● Founder of the School is Abu Abdullah Muhammad ibn Idris al Shafei.
● Shafei was the student of both Imam Hanafi and Imam Malik.
● This school follows the middle course of Hanafi and Maliki school in respect
of accepting Hadith as a source of law, a compromise between the two schools.
It means this school is a combination of Hanafi and Maliki School.
● According to this school Ijma is most important and this school contributed to
Qiyas.
IV. The Hanbali School:
● This school is a disciple of Imam Shafei and the founder is Ahmed Bin Hanbal.
● This school relied on sunnah and rejected Qiyas.
● The most important Characteristics of this school is that its followers would
accept any hadith however it is weak without any hesitation.
2. Shia: Shia, short for Shia Islam or Shia Muslim, believe that leadership of the
Muslim community should have passed directly to Hajrat Ali (R), the cousin and son-
in-law of the Prophet (PBH).
The Shias are divided into several sub-sects:
I. Ithna Asharia.
II. Ismailia.
III. Zaidiya.

I. Ithna Asharia:
● They believed that starting from Ali, there were 12 Imam’s.
● Everything which comes from the 12 Imam’s is law.
● This is the only school to recognize Muta-Marriage.
II. Ismailia:
● They are followers of 7th Imam Ismail.
● There have been only 7 Imam’s on this school.
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III. Zaidiya:
● They were the followers of Imam Zaid.
● He was the 5th Imam.
● This school is mostly found in Yemen.

Doctrines of Ijtihad & Taqlid

Ijtihad is the independent reasoning and interpretation of Islamic law by qualified
scholars, deriving rulings from Quran, Hadith, consensus, and analogy to address new
issues.
Taqlid is the practice of following legal opinions of qualified jurists, ensuring
consistency and adherence to established legal traditions like Hanafi, Maliki, Shafi'i,
and Hanbali schools of thought.
In summary, Ijtihad allows scholars to interpret Islamic law flexibly to meet new
challenges, while Taqlid lets Muslims follow these interpretations from qualified
scholars. This system ensures Islamic rulings stay true to tradition yet adapt to modern
situations.

Muslim Marriage

The Arabic word for marriage is Nikah. Marriage is a legally and socially sanctioned
union between two persons of the opposite sex.
Muslim Marriage is a contract and there are no ceremonies required for marriage in
Muslim law.
Muslim marriage is a contract agreement between a man and a woman, based on
mutual consent and guided by Islamic principles. It involves rituals like offering a
dowry (mahr) and aims to create a union focused on companionship, respect, and
family life within Islamic teachings.

In Islamic Jurisprudence it means ( AQD) or Union.

Human Beings may guard themselves from foulness, unchastity, bastardization by
marriage.

Nature of Muslim Marriage: Marriage is Islam is purely a civil contract and not a
sacrament like the Hindu Marriage. Muslim marriage is a voluntary contractual
agreement between a man and a woman, based on mutual consent and governed by
Islamic law (Shariah). It involves specific legal requirements, such as offering a
dowry (mahr), and aims to foster companionship, mutual support, and the procreation
of children within a religiously sanctioned framework.
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Condition or Requisites for a valid Contract of Muslim Marriage:

1. The parties must have capacity to contract Marriage:
a. Every Muslim of Sound Mind who has attained the age of puberty and
also free from slavery may enter into a contract of Marriage under
Muslim Law.
b. Persons who are not of sound mind or who have not attained puberty can
be married by their guardians.
c. A woman cannot marry any man who is not muslim under muslim law.
d. A Sunni Mohammadan can marry a non muslim woman if she is
kitabia( if the religion is revealed through a divine book then it is called
Kitabia, Hinduism is not a Kitabia.)
e. A Shia Mohammmadan cannot marry a non muslim woman even if she
is a Kitabia. If the other person converts to islam before marriage then
there is no bar.
2. Free Consent: If parties are the same and adults there consent should be free.
If parties are minor and insane consent of the guardian is required.
3. There should be a proposal (Izab) and an acceptance to the proposal
(Qabul):
a. The proposal(Izab) and Acceptance(Qabul) should be there for a valid
muslim Nikah.
b. Proposal and acceptance should be expressed in one meeting.
c. An assurance to marry in future does not constitute a proposal.
4. There should be no Impediment to the Marriage: For a valid Muslim
contract there should be no impediment like ambiguities and should be made
by the parties themselves or by others on their behalf.
5. There should be Guardianship in Marriage (Wali): In marriage of Minors
and of adults who are insane a guardianship is required for a valid muslim
marriage.
6. There should be Presence of witnesses: There should be two male witnesses
or one male or two female witnesses according to sunni law. According to
Shia law no witnesses are required.
7. There should be Equality in Marriage (Kafyat):
a. Equality in the point of freedom.
b. Equality in the point of character.
c. Equality in the point of property.
d. Equality in the point of profession.
8. There should be an absence of prohibitions: there are two types of
prohibitions.
a. Absolute Prohibition:
i. Prohibition due to consanguinity of blood relationship.
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ii. Prohibition on account of affinity (means certain relationships

that make marriage unlawful, like marrying siblings or close
relatives, as well as someone already married to a close relative).
iii. Prohibition on account of fosterage ( refers to relationships
forbidden because of breastfeeding. If a child is breastfed by a
woman other than their mother before age two, they cannot marry
their milk siblings or their foster family members.)
b. Relative Prohibition:
i. Unlawful conjunction.
ii. Marriage with 5th wife.
iii. Marriage with non-Muslim.
iv. Marriage without witnesses.
v. Marriage during iddat.

Types of Muslim Marriage

1. Valid Marriage. (Sahih)
2. Void Marriage. (Batil)
3. Irregular marriage. (Fasid)
4. Muta Marriage ( only found in Shia School)

1. Valid Marriage (Sahih): A valid marriage in Islamic law is a union between a

man and a woman that includes mutual consent, witnesses, a marriage contract, and a
dowry (mahr). This marriage gives both spouses legal rights and responsibilities, like
financial support, inheritance, and legitimacy of children.
All legal requirements of Nikah are present in this marriage.
Essential of a valid Marriage:
● Parities competency.
● Free consent.
● Formalities- Offer, Acceptance, Same-Meeting, witnesses.
● Absence of prohibition.
Legal Consequences of a valid Marriage:
● Consummation becomes legal.
● Children are legitimate.
● Wife will get dower and maintenance.
● Wife- iddat on desolation of marriage.
● Mutual rights of inheritance.
2. Void Marriage (Batil): Void marriage is a marriage with no legal consequences
and in this marriage no rights and duties are created.
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A marriage will be Void or batil under following circumstances:

I. A married woman can not contract another marriage while her husband is alive
and the marriage is subsisting. Such marriage is void

II. The bar of consanguinity renders a marriage void. The following are the
prohibited relationships of consanguinity. A man cannot marry his-
● Ascendants- Mother or grandmother.
● Descendants- Daughter or granddaughter.
● His Sister consanguine(father same mother different) or uterine (Mother
same father different)
● His niece or great niece.
● His aunt or great aunt. Whether paternal or maternal.
III. Marriage is also prohibited on ground of affinity- If a man cannot marry-
● His wifes mother/grandmother
● His wife's daughter or granddaughter.
● His father's wife or any other ascendant wife.
● His sons or any other lineal descendants wife.
IV. Fosterage is another impediment to a valid muslim marriage.
3. Irregular marriage (Fasid): Irregular marriage (Fasid) is a marriage where
marriage is contracted in violation of relative prohibition or
A fasid marriage is a marriage with the process of removing irregularity .
It is defined only in sunni law.
An irregular or fasid marriage is one which is not unlawful in itself but is unlawful
“for something else”.
The following marriages are considered irregular:
I. A marriage without witnesses.
II. A marriage with women without the consent of her guardian.
III. A marriage with a woman during her iddat period.
IV. A marriage prohibited on account of difference of religions.
V. A marriage with the 5th wife in the presence of 4 wives.
VI. A marriage with a woman who is pregnant, when the pregnancy was not
caused by adultery or fornication.
VII. Marriage during pilgrimage.
VIII. Unlawful conjunction.
The defects in the marriages of above mentioned kinds may be removed because these
defects are not absolute and can be removed so that the marriage may be considered a
valid marriage.

4. Muta Marriage: This formation of marriage is only found in shia school of law.
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Legal Incidents of a Valid Muslim Marriage: Legal incidents of a valid marriage in

Islamic law include rights such as physical intimacy, children's legitimacy, dowry,
maintenance, iddah, inheritance, and mutual respect and duties between spouses.
1. Consummation becomes legal: The physical union between the husband and
wife is lawful.
2. Legitimacy of children: Children born within the marriage are considered
legitimate and have legal rights.
3. Right to dowry (mahr): The wife is entitled to receive a dowry from the
husband.
4. Right to maintenance: The husband must financially support the wife.
5. Iddah (waiting period): The wife must observe a waiting period in case of
divorce or the husband's death.
6. Mutual inheritance rights: Both spouses have the right to inherit from each
other.
7. Mutual respect and duties: Both spouses must treat each other with respect
and fulfill their marital duties.
8. The prohibition regarding marriage due to the rules of affinity came into
operation.

Legal Incidents of Fasid Marriage:

1. Incomplete Legal Status: A Fasid marriage lacks essential requirements for
validity in Islamic law, such as proper consent or witnesses.
2. Limited Rights: Spouses may not have full legal rights and protections,
especially regarding inheritance and financial support.
3. Possible Annulment: It can be annulled if the defects are not resolved, leaving
spouses uncertain about their marital status.
4. Social and Legal Uncertainty: Fasid marriages create social and legal
uncertainties, affecting children's legitimacy and spouses' rights in the
community.
5. Challenges in Legal Recognition: Fasid marriages may face challenges in
legal recognition and enforcement of marital rights and obligations.
6. Impact on Children: The legitimacy and rights of children born from a Fasid
marriage may be questioned or compromised.
7. Social Stigma: Spouses in Fasid marriages may face social stigma or exclusion
within their communities.
8. Financial Disputes: Disputes over financial responsibilities and support may
arise due to the incomplete legal status of the marriage.
9. Legal Remedies: Resolving issues stemming from a Fasid marriage may
require legal interventions to clarify rights and responsibilities.
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10. Cultural Considerations: Cultural norms and expectations may further

complicate the recognition and acceptance of Fasid marriages within certain
communities.

Termination of a Fasid or Irregular Marriage:

1. Terminated by either party, if the termination is before consummation, it has

no legal effect.
2. But after consummation then-
a. Wife is entitled to a dower prompt or specified.
b. She is bound to observe iddat for three courses.
c. Children born out of such marriage are legitimate.
d. No legal rights of inheritance are created between the parties.

Dower or Mahr

Dower is an obligation imposed upon the husband as a mark of respect to the wife.
Dower (mahr) in Islamic law refers to the mandatory gift or payment that the husband
gives to the wife upon marriage, as stipulated in the marriage contract.
Payment of mahr is the duty of the husband and receiving the dower is the right of the
wife.
Classification of Mahr: It is two types-
1. Specified Dower (Al mahrul musamma)
a. Prompt Dower
b. Deferred Dower
2. Unspecified Dower/ Proper Dower (Al mahrul Mishal).

1. Specified Dower (Al mahrul musamma): Specified dower is that dower which is
fixed at the time of marriage or later on. In the case of a minor husband, his father has
the power to make the contract of dower on behalf of him. There are two types.
a. Prompt Dower: Prompt dower is a dower which is payable immediately after
the marriage, if demanded by the wife.
b. Deferred Dower: Deferred Dower is a dower which is payable on the
dissolution of marriage by death or divorce or on the happenings of a specified
event.
i. If marriage is dissolved by death, dower is given from the property of
the husband.
ii. If marriage dissolved by divorced-
a. Husband have to pay whole unpaid dower(consummated marriage)
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b. Husband have to pay half of the specified dower (non-consummated

marriage)
If the dower is not paid to the wife and she dies then her heirs would file a suit
for the payment of the dower within 3 years.

2. Unspecified Dower/ Proper Dower (Al mahrul Mishal): Unspecified or Proper

dower is a dower where the amount of dower was not fixed at the time of marriage or
later on, the wife is entitled to proper dower. Though the marriage was contracted on
the condition that the wife cannot claim any dower, then the amount is fixed at the
decision of the court by the following consideration.
a. The social position of the bride's father's family.
b. The personal qualification of the wife- beauty, virginity, personality, age,
education, understanding, virtue, fortune and wealth.
c. Thus the financial capacity of the husband.
d. The amount of dower fixed upon her female paternal relations.

Amount of Dower: If dower is fixed, then it cannot be lower than the minimum laid
down by law. According to Hanafi law, the minimum amount of dower is 10 dirhams
and according to Maliki law it is 3 dirhams. Under Shia law, the proper dower or
unspecified dower cannot be more than 500 dirhams. The amount of dower can be
increased but cannot be decreased by the husband. Dower, once fixed, can be inserted
by the husband and decreased by the wife (Al-Quran, Surah An-Nisa, chapter 4, verse
4,)

Remission of Dower: the wife may remit the dower wholly or partially, for remitting
the dower, the following conditions should be fulfilled.
1. Free Consent: There should be free consent of wife (no distress, force or
pressure)
2. Attainment of Puberty: The wife should have attained puberty.( she may or
may not be over 18 years old)
In Muslim law, the widow's right of retention means:
● Lifetime Possession: After her husband passes away, the widow can keep his
property like land or buildings for her lifetime.
● Financial Support: This ensures she has a place to live and gets support from
her husband's estate for her expenses.
● Protection: It safeguards her from being left without shelter or support after
her husband's death.
● Remarriage Condition: Usually, this right lasts until she remarries.
● Cultural Importance: It shows respect for widows and their well-being in
Muslim communities.
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Dissolution of Marriage( Talaque)

Dissolution of Muslim marriage refers to its termination through talaq (divorce),
khula (initiated by the wife), faskh (court-ordered), or death of either spouse.
Hazrat Muhammad (PBH) said, “with Allah, the most detestable of all things
permitted is divorce”.

Modes of dissolution of marriage: the dissolution of marriage can take place in the
following modes:
1. By death of the parties - husband or wife.
2. By the Act of the parties, this may either be by the husband or by the wife-
By the Act of husband-
a. Talaque or divorce.
i. Talaqul sunnat or approved form.
ii. Talaqul Bidyat or unapprove form.
b. I’lla (vow of continence).
c. Zihar ( injurious Assimilation)
By the Act of the wife- Delegated Talaque or talaque tafyees.
By common consent-
a. Khul’a (redemption)
b. Mubara’t (mutual freeing)
3. By Judicial Process.

2. By the Act of the parties, this may either be by the husband or by the wife-
By the Act of husband-
a. Talaque : Any Muhammadan who is of sound mind and has attained puberty may
divorce his wife without any cause. Talaque could be be oral (spoken words) or in
writing( talaquenama)

Talaq in Islamic law is when a husband ends his marriage by saying or writing that he
divorces his wife.
Basically talaque is of two types-
1. Talaqul sunnat or approved form.
2. Talaqul Bidyat or unapprove form.
1. Talaqul sunnat or approved form: Talaqul sunnat is also called talaque e
raji or revocable talaque. Talaqul sunnat is again two types-
a. Talaqul ahsan or most approved: it has three conditions
i. Husband makes a single pronouncement of divorce.
ii. The pronouncement is made during tuhr (period when remain is
not menstruating)
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iii. Husband abstain from sexual intercourse for the period of iddat
(90 days), after iddat the divorce becomes irrevocable.
b. Talaqul Hasan or approved:
i. There are 3 pronouncement of talaque made during successive
tuhrs.
ii. There must be abstinence from sexual intercourse untill the third
pronouncement.
2. Talaqul Bidyat or unapprove form: It is also called bain talaque, which
means irrevocable talaque. This form of talaque is for instant divorce. Most of
the islamic nation banned this. It was held unconstitutional by the supreme
court of india in shayara banu vs. Union of India (2017)

Divorce becomes irrevocable

In the following cases talaque becomes irrevocable-
1. Talaque Ahsan becomes irrevocable on the completion of the period of iddat.
2. Talaque Hasan becomes effective on the third pronouncement and it becomes
irrevocable.
3. Talaque Bidyat either on triple or single pronouncement also becomes
irrevocable instantly.
4. Divorce becomes irrevocable right on the pronouncement where there was no
consummation.

b. I’lla or vow continence: It means to swear. I’lla means when a husband swears
that he will not have sexual intercourse with his wife and he abstains from it for 4
months or more and then talaque becomes affected.
c. Zihar: The word “zihar” is derived from the word “zahir” meaning “back”. Zihar
means when a husband compares his wife to any of his female relations with whom
the marriage is prohibited on account of consanguinity or fosterage.
If the husband does not expiate (kaffara), the wife has a right to apply for a judicial
divorce.

By the Act of the wife- Delegated Talaque or talaque tafyees: Husband can
delegate his power of giving talaque to some third person or to his wife. This
formation of talaque is called talaque of the wife by the husband.

By common consent-
a. Khul’a (redemption): Khul’a means “draw off” or “put off”. In this form of
talaque the wife offers for talaque and the husband accepts it and the talaque becomes
effective, mainly with consent from the wife.
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b. Mubara’t (mutual freeing): mubara’t means reels in this form of talaque both
husband and wife desire separation, consent of both husband and wife.

3. By Judicial Process: Dissolution of marriage can take place by judicial process in

the following cases.
I. Lian or mutual imprecation.
II. Faskh or judicial rescission.
III. Option of puberty or khyarul Bulug.
IV. Apostasy ( Murtad).

The legal effects of dissolution of marriage in Islamic law include:

1. End of Marriage: The legal relationship between husband and wife is
terminated.
2. Financial Settlement: Matters like dower (mahr) and financial support are
settled.
3. Child Custody: Decisions are made regarding who will have custody of the
children.
4. Inheritance Changes: Inheritance rights may change for spouses and children.
5. Remarriage: Both parties are free to marry someone else afterward.
6. Residency: Decisions on where each party will live post-dissolution.
7. Property Division: Distribution of jointly owned property, if applicable.
8. Legal Status: Official recognition of the divorce under Islamic law and local
legal systems.
9. Social Standing: Potential changes in social status or community perception.
10. Emotional Impact: Psychological effects on both parties and any children
involved.
These effects ensure that rights and responsibilities are properly managed following
the dissolution of a marriage in Islamic law.

Parentage, Legitimacy Acknowledgement

Parentage: Parentage is the relationship of parents to their children. Parentage is

established either by birth or by acknowledgement in certain cases.
Maternity: it is a legal relationship between mother and child.
Paternity: it is the legal relationship between father and the child.

Establishment of Maternity: Maternity is the natural relationship between mother

and the child the woman who gives birth to the child is its mother.
● Under Sunni Law, Child birth by marriage or zina, maternity is
considered or maternity is confirmed by childbirth, whether from
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marriage or zina (unlawful relations), so the rules of inheritance,

maintenance and guardianship are applicable for the child and its mother
only.
● Under Shia Law, to establish maternity it has also to be proved that the
birth was the result of lawful marriage or
maternity also requires proof that the child was born from a lawful
marriage to establish legitimacy.

Establishment of Paternity: Paternity is the natural relationship between father and

the child.
● The paternity of a child can only be established by marriage between its
parents.
● The marriage may be valid or irregular but it must not be void.
● Both Sunni and Shia law gives no recognition to paternity, if the
marriage is void or Batil.

Legitimacy: A child born in lawful wedlock is said to be the legitimate child of the
spouses. When paternity is established, legitimacy also established.

Presumption of legitimacy:
Islamic law prescribes different rules regarding presumption of legitimacy or
illegitimacy of a child which are as follows:

● A child born within six months of marriage is considered illegitimate unless the
father asserts paternity.
● After six months of marriage, the child is presumed legitimate unless the father
denies paternity.
● According to Shi'a law, a child born within ten lunar months after the
termination of marriage is legitimate.
● Hanafi law considers a child born within two lunar years as legitimate.
● Shafi'i and Maliki laws extend this period to four lunar years, provided the
mother has not remarried.

Acknowledgement or Iqrar: An Acknowledgement of legitimacy is the declaration

of legitimacy and not a legitimation. The establishment of paternity of a child can be
made by lawful Acknowledgement of the father. Acknowledgement may be either
expressed or implied.
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Condition of valid Acknowledgement:

1. Uncertain Parentage: Acknowledgment is considered when it's unclear who
the child's father is. This applies when the marriage status of the parents is not
proven but is in question.
2. Not Born Outside Marriage: The child cannot be born out of wedlock (from
parents who weren't legally married).
3. Age Difference: The person acknowledging paternity must be at least twelve
and a half years older than the child. This shows a serious relationship.
4. No Other Legal Father: The child cannot already have another recognized
father, avoiding legal and social issues.
5. Possible Legal Marriage: The parents must be able to legally marry each other.
They shouldn't be too closely related, as it would make their marriage invalid.
6. Sincere Intent: The acknowledgment must be made sincerely, not casually, to
legally accept the child as one's own.
7. Challenging Acknowledgment: The acknowledgment can be disputed if:
○ The acknowledged person denies it (if old enough).
○ The age difference makes it physically impossible for the acknowledger
to be the parent.
○ Proof shows the child belongs to someone else.
○ Evidence exists that the mother could have been married to someone
else when the child was conceived.
These conditions ensure that acknowledgments of paternity are legally valid and
respect the rights and duties related to parentage in Islamic law.

Legal Consequences of Acknowledging a Child:

1. Acknowledging a child means acknowledging the child's mother as your wife.

2. It assumes the parents were legally married.
3. It grants inheritance rights between the child, parents, and wife.
4. The father cannot undo his acknowledgment.
5. The child can sometimes reject the acknowledgment.

Some leading cases on acknowledgments of paternity:

a. Muhammad Allahdad khan v. Muhammad Ismail khan
b. Habibur Rahman vs. Altaf Ali

Habibur Rahman vs. Altaf Ali

Plaintiff and Appellant: Habibur Rahman Chowdhury
Background: In this suit, the plaintiff and appellant, Habibur Rahman Chowdhury,
seeks a declaration that he is the legitimate son of the late Nawab of Bogra, who died
intestate on the 2nd July, 1915. The suit is opposed by the late Nawab's grandson, who
is the son of a legitimate daughter, and by two nephews, the sons of an elder brother.
 17

Issues:
1. Whether the existence of a marriage between the late Nawab of Bogra and the
plaintiff's mother is disproved.
2. Whether an acknowledgment of legitimacy in favour of a son can establish his
legitimacy under the Mahomedan law.

Ruling:
● In the Court of Appeal, the Chief Justice agreed with Greaves J. that the
marriage was in fact disproved. The plaintiff is thus faced by two adverse
concurrent findings of fact to the effect that the existence of a marriage is
disproved.
● The senior counsel for the appellants was unable to deny that there were
concurrent findings as to the non-existence of the marriage.
● The ruling principle under the Mahomedan law is that an acknowledgment of
legitimacy is a declaration of legitimacy and not a legiti-mation. A declaration,
though it cannot be withdrawn, may be contradicted, while legitimation is an
irreversible act. Therefore, the rules of logic remain unaffected.
● Lord Atkinson, delivering the judgment of the Board, stated that a statement or
acknowledgment by one man that another (proved to be illegitimate) is his son
cannot make the other legitimate. However, in the absence of proof to the
contrary, such a statement or acknowledgment serves as substantive evidence
of legitimacy if the person's legitimacy is possible.
● Their Lordships concluded that the statement made by Lord Atkinson is clear
and conclusive, and their elaboration in this case is in line with that statement.

Decision: Their Lordships will, therefore, humbly advise His Majesty to dismiss the
appeal with costs.
Summary of Habibur Rahman vs. Altaf Ali: Habibur Rahman Chowdhury wanted
to be recognized as the legitimate son of the late Nawab of Bogra, who died in 1915.
His claim was challenged by the Nawab's grandson and two nephews. The main
questions were whether there was proof of marriage between the Nawab and Habibur's
mother, and if acknowledging Habibur as a son made him legitimate under Muslim
law. Both the lower court and the Court of Appeal found no proof of marriage. The
ruling explained that acknowledging someone as a son does not make them legitimate
if they are not born within a valid marriage. Therefore, without evidence of marriage,
Habibur could not be considered legitimate. The appeal was dismissed, and Habibur
had to pay the legal costs.
 18

Muhammad Allahdad khan v. Muhammad Ismail khan

Facts : The plaintiff-appellant instituted a suit in the Court of the Subordinate Judge
of Meerut on May 13, 1884, seeking a declaration of his right to and possession of his
share of the property left by his deceased father, Ghulam Ghaus Khan, who passed
away on November 6, 1879.
Procedural History : The Subordinate Judge dismissed the suit, finding that the
evidence on record proved that the plaintiff was not the legitimate son of Ghulam
Ghaus Khan and that he was never acknowledged as such.
Issue : The crucial issue is whether the acknowledgments made by Ghulam Ghaus
Khan of the plaintiff as his son are sufficient to confer on him the status of a
legitimate son and the right to inherit.
Ruling : The Court concludes that the plaintiff has established his acknowledgment
and recognition by Ghulam Ghaus Khan as his son, thereby granting him the status of
a legitimate son and the right to inherit a share in the deceased father's estate.
Reasoning : The Court considers the requirements of the rule of the Muhammadan
law and concludes that the acknowledgment made by Ghulam Ghaus Khan satisfies
those requirements, granting the plaintiff the status of a legitimate son and the right to
inherit.
Disposition : The Court decrees the appeal, declaring the appellant as the legitimate
son of Ghulam Ghaus Khan and granting him the right to inherit a share in the
deceased father's estate.
Analysis : The Court examines the question of whether the Subordinate Judge
disposed of the suit upon a preliminary point, excluding evidence of fact. It is
determined that the
The Subordinate Judge only decided the preliminary question of the plaintiff's status
as the heir, and therefore the case is remanded for further proceedings on the
remaining issues.

Summary of Muhammad Allahdad Khan v. Muhammad Ismail Khan:

Muhammad Allahdad Khan filed a suit in 1884 to claim his share of his late father
Ghulam Ghaus Khan's property. The lower court dismissed the suit, saying Allahdad
was not Ghulam's legitimate son and was never acknowledged as such. The main
issue was whether Ghulam's acknowledgment of Allahdad as his son made him a
legitimate heir. The higher court found that Ghulam did acknowledge Allahdad as his
son, meeting the requirements of Muslim law, and thus Allahdad was entitled to
inherit. The appeal was successful, and the case was sent back to the lower court to
resolve the remaining issues.
 19

Guardianship (Waliyat)

Guardianship (Waliyat) in Islamic law means taking care of a minor's person, property,
and marriage.

Islamic law recognizes 3 kinds of guardianship for 3 purposes:

1. Guardian of a minor person.
2. Guardian for minors property.
3. Guardian for minors marriage (wali).

Guardian of a property of a minor/ classification of guardian of property:

Islamic law recognizes two types of guardian for the property of a minor. This are:-
1. De Jure or legal guardian.
2. De facto guardian.

De Jure or legal guardian:

A de jure or legal guardian is a person who is lawfully appointed to take care of a
minor's personal, financial, and legal affairs. This guardian is officially recognized by
the court or relevant legal authority and is responsible for making decisions in the best
interests of the minor. or
A de jure or legal guardian is someone appointed by the court to take care of a minor's
personal, financial, and legal matters. They are recognized by the law and make
decisions that are best for the minor.

De facto guardian:
A de facto guardian is someone who takes care of a minor and manages their affairs
without being legally appointed or recognized. They act like a guardian but don't have
official legal authority. or
A de facto guardian is someone who takes care of a minor and manages their affairs
without being legally appointed or recognized. They act like a guardian but don't have
official legal authority.

Types of Legal guardian: Legal guardians are 3 types:

1. Guardians are appointed by the court: Guardians are appointed by the court
to take care of minors or individuals who cannot manage their own affairs due
to legal incapacity.
 20

2. Natural guardian: A natural guardian is a person who has a legal relationship

with a minor based on family ties, such as parents or grandparents, and is
entrusted with the care and upbringing of the minor.

3. Testamentary guardian: A testamentary guardian is someone appointed by a

legal document, such as a will, to take care of a minor's affairs if their parents
pass away. This guardian's authority is based on the instructions left in the will
and is recognized by the court.

Maintenance (Nafaqa)

Maintenance, known as Nafaqa in Islamic law, refers to the financial support that a
husband is obligated to provide for his wife, children, and dependents.
This support covers their basic living expenses, including food, clothing, shelter, and
other essential needs, ensuring their well-being and dignity. Or
Maintenance, or Nafaqa in Islamic law, is the financial support that a husband must
provide for his wife, children, and dependents, covering their basic living expenses
like food, clothing, and shelter.
Maintenance of Wife: Under Muslim law, a husband is obligated to provide
maintenance to his wife as a fundamental part of the marriage contract. This includes
food, clothing, and a place to live, known as lodging. Even if the wife is rich or poor,
Muslim or non-Muslim, the husband must fulfil this responsibility cheerfully and
without hesitation. If the husband is wealthy, he may also need to provide for his
wife's servants. If a husband divorces his wife, he must still provide for her during the
waiting period (iddat), regardless of whether the divorce can be undone or not, unless
she is pregnant according to some interpretations.
When wife is not entitled to Maintenance:
Here are the circumstances under which a wife may not be entitled to maintenance
from her husband:
1. Rebellious Behaviour: If she refuses to live with him or acts rebelliously.
2. Underage Wife: If she is underage, depending on legal interpretations.
3. Imprisonment or Elopement: If she is imprisoned, elopes with someone else,
or is forcibly taken away.
4. Apostasy or Desertion: If she leaves without a valid reason or renounces Islam.
5. Illegal Marriage or Unchastity: If the marriage is illegal or she is unfaithful.
6. Scandalous Accusations: If she makes serious false accusations against him.
7. After His Death: Typically, she does not receive maintenance after his death,
except if she is pregnant at the time.
These are general principles under Muslim law regarding maintenance entitlements
for wives in specific circumstances.
 21

Maintenance of children and descendants: In Islamic law, a father must support his
sons until they reach puberty and his daughters until they marry. He also supports his
widowed or divorced daughter. If a minor child refuses to live with him without a
valid reason, the father isn't required to provide separate support. Both parents share
responsibility for unmarried adult daughters and adult sons who are disabled, with the
father responsible for two-thirds and the mother for one-third. A father isn't obligated
to support an illegitimate child. If parents are poor and can't support their children, the
grandfather may be responsible if he's financially able. The principle that "the
subsistence of children rests upon those to whom they are born" guides these
responsibilities in Muslim family law.
Maintenance of Parents: In Islamic law, children must support their needy parents,
whether they are sons or daughters. This duty applies regardless of the parents'
religion. The Prophet Muhammad stressed the importance of treating parents well,
saying their happiness is linked to pleasing Allah. Not supporting parents when able is
a serious wrongdoing. Islamic scholars say children, even if they don't have much
money, must equally help their needy parents, giving priority to the mother if only one
parent can be helped.
Important case law on maintenance:

Here are the key details from the case of Hefzur Rahman (Md.) vs. Shamsun Nahar
Begum:
Facts:
○ The case involved a divorced woman, Shamsun Nahar Begum, who
sought “Mataa” (a voluntary gift) from her former husband, Hefzur
Rahman.
○ The High Court Division had equated “Mataa” with maintenance, but
the Supreme Court Appellate Division disagreed.
Issue:
○ The central issue was the interpretation of “Mataa” under Muslim law.
○ Specifically, whether “Mataa” could be claimed as maintenance under
the Family Court Ordinance.
Decision and Judgment:
○ The Supreme Court clarified that “Mataa” cannot be claimed as
maintenance.
○ The term “Mataa” refers to certain benefits, privileges, and gifts, not just
maintenance.
○ The quantum of “Mataa” is left to the husband’s sense of justice and
fairness.
○ Ultimately, it is a voluntary gift payable by the righteous.
 22

○ The court emphasised that the liberal view suggests a suitable gift for all
divorced women, not just those mentioned in religious texts.

Summary: In the case of Hefzur Rahman (Md.) vs. Shamsun Nahar Begum, the court
debated whether "Mataa," a voluntary gift sought by Shamsun Nahar Begum after
divorce, should be treated as maintenance under Muslim law. The Supreme Court
decided that Mataa isn't just about financial support but includes various benefits and
gifts, given voluntarily by the husband according to his fairness. The court stressed
that Mataa isn't obligatory but a gesture of goodwill, suggesting all divorced women
deserve a fair gift, not just those mentioned in religious texts.

Gift (Hiba)
Gift: A gift (Hiba) in Islamic law is when someone voluntarily gives something, like
money or property, to another person without expecting anything in return. The giver
must freely give it, and the receiver must willingly accept it. Once given, the gift
belongs fully to the receiver, and the giver can't take it back, unless they agreed on
conditions beforehand.
Essential condition of a valid gift:
here's a simplified version of the conditions for a valid gift (Hiba) under Islamic law:
1. Declaration by the Donor: The donor must clearly state their intention to give
something to the recipient (donee). This declaration should show a genuine
desire to transfer ownership without any conditions that could make the gift
invalid.
2. Donor's Intention: It's important that the donor's reason for giving the gift is
genuine. The gift should be given out of generosity or other valid reasons
accepted in Islamic principles. If a gift is given to cheat creditors or deceive
others, it can be canceled.
3. Acceptance by the Donee: The recipient must accept the gift, either by saying
yes (verbally or in writing) or by actions that show they accept it. Only people
who can legally receive gifts, like adults of sound mind, can accept them.
Minors or those not of sound mind can accept gifts through a legal guardian.
4. Delivery of Possession: The gift must be physically handed over to the
recipient for it to be valid, unless:
○ The donor and recipient live together, making physical transfer
unnecessary.
○ A husband gives property to his wife (or vice versa) and they live
together.
○ A parent gives property to their minor child, where the parent's
possession counts as the child's possession.
 23

○ The recipient already has the gift, like in cases of leased or mortgaged
property.
5. Exceptions to Delivery: While physical transfer is usually needed, there are
cases where it's not required, as mentioned above. But just registering a gift
without handing it over physically isn't enough to make it valid.
These rules ensure that gifts under Islamic law are legally recognized and fairly
transferred from the donor to the recipient.
Qualifications of Donor:
Every Muslim donor must possess the following qualifications:-
1. He must be major;
2. He must be a man of sound mind or sane and
3. He must be an owner of the thing given at the time when the gift is made.
In Islamic law, for a gift (Hiba) to be valid, the donor must meet specific criteria.
Firstly, the donor must be an adult and mentally sound. Minors and those who are
mentally incapacitated cannot legally make a gift.
Secondly, the donor must be the rightful owner of the property they intend to gift.
This ensures that the gift is given from their own possession. Additionally, if the
donor is a woman living a secluded life, there is a presumption of vulnerability to
undue influence unless proven otherwise. Gifts made during critical illness (Marz-ul
Maut) can't exceed one-third of the donor's estate without the consent of heirs after the
donor's death.
Lastly, a gift made with the intent to defraud creditors can be challenged by them.
These conditions ensure that gifts under Islamic law are made with clarity, fairness,
and legal validity.
Qualifications of Donee: According to Islamic law, for a gift (Hiba) to be valid, it
must follow these rules about who can receive it:
1. Recipient Must Exist: The person or legal entity receiving the gift must be
alive and capable of owning property. Gifts to mentally disabled or young
people are valid if their legal guardians accept.
2. Unborn and Womb Babies: Gifts to babies not yet born are not allowed. Gifts
to babies still in the womb are okay if born within six months.
3. Juristic Persons: Gifts to religious places like mosques are okay because they
can legally own property.
4. Non-Muslims: Gifts to non-Muslims are valid. Once accepted, the gift follows
the recipient's personal laws.
5. Clearly Identified Donee: It's crucial the recipient is clearly known. If unclear,
the gift might not be valid.
These rules ensure gifts in Islamic law are fair and legal for recipients who qualify
under these guidelines.
 24

Revocation of Gift: In Islamic law, revoking a gift is generally discouraged, but it

can happen under specific circumstances:
1. Before Delivery: The donor can cancel a gift anytime before physically
handing it over to the recipient. Until then, the gift isn't legally finalized.
2. After Delivery: Once the recipient has received the gift, revoking it requires
either court involvement or the recipient's agreement. Just declaring revocation
isn't sufficient.
3. After Donor's Death: Only the donor themselves can revoke a gift after they
pass away, not their heirs.
Exceptions:
● Gifts between spouses can't be revoked, whether given before, during, or after
marriage.
● If the gift is lost or destroyed, it can't be taken back.
● Gifts involving close relatives or those already legally transferred.
● If the donor has been compensated for the gift.
● If the value of the gift has increased.
● If the gift has significantly changed and can't be recognized anymore, like
wheat turned into flour.
● Religious or charitable gifts are considered final once given.
● Gifts to needy individuals who have already received them.
These rules ensure clarity and fairness in gift transactions according to Islamic
principles.

Wasiyat or Will or Bequest

A "Wasiyat" or will in Islamic law refers to a legal declaration made by a person

(testator) during their lifetime, specifying how their property and assets should be
distributed after their death.
This document outlines the testator's wishes regarding inheritance, charitable
donations, and other matters, aiming to ensure that their estate is distributed according
to their desires and Islamic principles.
Testator: The person who makes the wasiyat or will is called the testator.

Qualification of a Testator
1. A testator must be a muslim: The person making a will (testator) must be a
follower of the Islamic faith.
2. He must be a major: The testator must have reached the age of adulthood as
defined by Islamic law.
 25

3. He must be a man of sound mind: The testator must be mentally capable and
of sound mind at the time of making the will.
4. He should not be insolvent: The testator should not be bankrupt or unable to
pay their debts.
5. A person condemned to death is entitled to make a valid wasiyat: Even if a
person is sentenced to death, they can still make a valid will.
6. Suicide by the testator: If the testator commits suicide, any will they made
before their death may be considered void.
7. Wasiyat during Marzul Maut ( Death-illness) is valid: A will made during a
terminal illness, known as Marzul Maut, is considered valid under certain
conditions in Islamic law.
Three main principle of Wasiyat
1. Wasit became effective only after the death of the testator: A Wasiyat only
takes effect after the death of the testator (the person making the will). Unlike
some legal systems where certain provisions might take effect immediately
upon execution, Islamic law specifies that the instructions in a will are
implemented only after the testator passes away.

2. No bequest to heir: In Islamic law, Wasiyat cannot be used to designate

inheritance shares to legal heirs prescribed by Sharia (Islamic law). The
distribution of inheritance is governed by specific rules that ensure fair and
equitable distribution among the relatives of the deceased. Therefore, a testator
cannot use a will to alter the predetermined inheritance shares of their heirs.

3. Limit of testamentary power: Islamic law imposes limits on the extent of

testamentary power that a testator has. While a person can distribute up to one-
third of their estate (after debts and funeral expenses) through Wasiyat to non-
heirs, this portion is subject to certain conditions. It must be done with the
consent of the legal heirs if it exceeds one-third, and it cannot be allocated to
beneficiaries who are already entitled to a share under Sharia rules.
These principles ensure that while individuals have some flexibility in distributing
their assets through Wasiyat, they do so within the framework of Islamic inheritance
laws that prioritise fairness and familial obligations.
Void Wasiyat
Some example of void wasiyat are the following:
1. Bequest in Future: This is when someone tries to give away property they
expect to own in the future. It's void because Islamic law only allows giving
what you already own.
2. Contingent Bequest: This occurs when a will depends on something uncertain
happening in the future. Islamic law doesn't allow this because it's uncertain.
 26

3. Conditional Bequest: This is when a will sets conditions that may not be
possible or conflict with Islamic inheritance rules. These conditions make the
bequest void.
4. Wasiyat to Heir is Void: Islamic law mandates how inheritance should be
distributed among heirs. Giving extra to an heir through a will goes against this,
so it's void.
5. Bequest More Than One-Third: In Islam, you can't give away more than
one-third of your property through a will unless all legal heirs agree. Any
excess is void.
6. Bequest to an Unborn Child: You can't give something in a will to a child
who isn't born yet. This type of bequest is void because the child isn't alive
when the will is made.
7. Refusal to Accept the Legacy: If the person chosen to receive something in a
will refuses or can't accept it (like if they pass away), the bequest becomes void.
8. Death of Legatee: If the person named in the will (legatee) dies before the
testator or before getting the bequest, the bequest is void because it can't go to
someone who's deceased.
These explanations outline why these types of bequests wouldn't be recognized under
Islamic law.
 27

here's a comparison chart between "wasiyat" (Islamic will) and "gift" (Hibah):
Feature Wasiyat Gift (Hibah)

Definition A will made by a Muslim to A voluntary transfer of

distribute assets after death ownership of property during
according to Islamic law. one's lifetime.

Timing Takes effect after death. Takes effect immediately upon

transfer.

Revocability Can be revoked or amended Generally irrevocable once the

during the lifetime of the testator gift is given.
(person making the will).

Legal Must comply with Islamic Must meet legal requirements

Requirements inheritance laws. for valid transfer, often less
formal than a will.

Purpose Ensures distribution of assets Transfers ownership of

according to Islamic principles property to another person
after death. while still alive.

Conditions Can include conditions and Usually no conditions attached

restrictions. once transferred.

Transfer Type Inheritance-based transfer. Immediate ownership transfer.

This chart highlights the key differences between "wasiyat" and "gift" (Hibah) in
terms of their purpose, legal implications, and timing of effect.

Waqf

Waqf: Waqf means detention. In Islam, waqf is when someone dedicates property
like land or money for a good cause, like building a mosque or helping the poor. Once
dedicated, the property is used forever for that purpose, with appointed trustees
ensuring it's used as intended.

Characteristics of Waqf:
Here's a simpler explanation of the characteristics of Waqf:
1. Religious Motive: Waqf is set up with a religious purpose, like supporting
mosques, schools, or helping the needy.
 28

2. Perpetuity: Waqf assets are meant to last forever and are not sold or inherited.
3. Ownership of the Waqf: The ownership of Waqf assets is transferred to God,
and trustees manage them to achieve the waqif's goals.
4. Utilisation of Usufructs: The income generated from Waqf assets (like rent or
profits) is used to fund charitable or religious activities.
These characteristics ensure that Waqf assets continue to benefit communities and
fulfill charitable purposes indefinitely.
Kinds of Waqf: Waqf, in Islamic law, refers to an endowment or charitable trust
typically established for religious or charitable purposes. Here's an elaboration on the
different types of Waqf:
1. Public Waqf:
○ Definition: Public Waqf refers to endowments that are established for
the benefit of the general public or a broad community.
○ Purpose: It serves the public interest and usually involves large-scale
projects like mosques, schools, hospitals, or infrastructure projects that
benefit the community at large.
○ Management: Managed by public authorities or charitable
organizations entrusted with maintaining and utilizing the endowment
for public benefit.
2. Quasi-Public Waqf:
○ Definition: Quasi-Public Waqf is established for specific groups within
the community, such as certain professions, families, or specific
beneficiaries.
○ Purpose: It caters to the needs of a defined group or specific
beneficiaries within the broader community.
○ Management: Managed by trustees or administrators designated to
ensure the endowment is used according to the wishes of the founder
and benefits the designated beneficiaries.
3. Private Waqf:
○ Definition: Private Waqf is established for the benefit of specific
individuals, often families or individuals designated by the founder.
○ Purpose: It is used to support specific persons or families with financial
assistance, education, healthcare, or other personal needs.
○ Management: Managed by trustees or family members according to the
instructions set forth by the founder, ensuring that the endowment
benefits the specified individuals.
Each type of Waqf serves distinct purposes within Islamic society, aiming to support
charitable endeavours, social welfare, and education, among other noble causes.
 29

Difference between waqf and trust make a chart

Here's a comparison chart between Waqf and Trust:
Aspect Waqf Trust

Origin Islamic law Common law (English legal

system)

Purpose Charitable or religious purposes General or specific purposes

defined by settlor

Founder Waqif (founder) Settlor (founder)

Beneficiaries Must be charitable or public Can be individuals, charities, or

other entities

Management Managed by trustees or Managed by trustees appointed

administrators by settlor

Perpetuity Typically perpetual, intended Can be perpetual or for a fixed

for long-term benefit term

Revocability Generally irrevocable Can be revocable or irrevocable

depending on terms

Legal System Governed by Islamic law Governed by common law

principles

Assets Assets become Waqf property, Assets held in trust for

held for beneficiaries beneficiaries

This chart outlines the key differences between Waqf and Trust in terms of their origin,
purpose, management, beneficiaries, and legal characteristics.

Essential Elements of valid Waqf: Here are the essential elements of a valid Waqf
simplified and expanded:
1. Founder (Waqif): The person who creates the Waqf by dedicating assets or
property.
2. Purpose (Mauquf 'Alayhi): The lawful beneficiaries or specific charitable
purposes for which the Waqf is established (e.g., education, healthcare, support
for the poor).
 30

3. Property (Mawquf): The assets or property dedicated to the Waqf, which

become Waqf property and cannot be owned by anyone else afterward.
4. Declaration (Ijab and Qabul): Clear and unequivocal declaration by the
Waqif, expressing their intent to establish the Waqf and the acceptance (Qabul)
of this dedication.
5. Irrevocability: Once established, a Waqf is generally irrevocable, ensuring
that its assets are perpetually used for the intended beneficiaries or purposes.
6. Administration (Nazir or Mutawalli): Appointment of a trustee (Nazir or
Mutawalli) responsible for managing and administering the Waqf according to
the founder's wishes and Islamic principles.
7. Legal Compliance: The Waqf must comply with Islamic legal requirements,
including Sharia principles governing contracts and charitable acts.
These elements collectively ensure that a Waqf is valid, legally sound, and capable of
fulfilling its charitable or social objectives as intended by the founder.

Appointment of Mutawalli: Mutawalli is a person who is regarded as the manager or

superintendent of the Waqf property.
Here's an elaboration on each point regarding the appointment of a Mutawalli in
Muslim law:
1. By the Waqif (Donor):
○ The Waqif, or donor, has the primary right to appoint a Mutawalli for
the administration of the waqf (endowment).
○ This appointment is typically specified in the waqf deed or document
that establishes the endowment.
○ The Waqif may choose someone they trust and believe to be capable of
managing the endowed property in accordance with their wishes and the
principles of Islamic law.
2. By the Executor, if any:
○ If the Waqif has appointed an executor to oversee the execution of their
will and the administration of their estate, the executor may also have
the authority to appoint a Mutawalli.
○ This appointment would usually be in line with the instructions or
intentions of the Waqif as expressed in the will or other legal documents.
3. By the Beneficiaries, if their number is limited:
○ In cases where the waqf benefits a limited number of specific
beneficiaries (such as family members or a designated community),
those beneficiaries may collectively or through their representatives
appoint a Mutawalli.
○ This ensures that those who are directly affected by the administration of
the waqf have a say in who manages it and how it is managed.
 31

4. By the Last Mutawalli in Death-bed:

○ If the Mutawalli is nearing death and is unable to continue in the role,
they may appoint a successor.
○ This appointment is typically made to ensure a smooth transition of
administration without interruption in the management of the waqf
assets.
5. By the Court:
○ In situations where none of the above methods are feasible or applicable,
or if there is a dispute regarding the appointment of a Mutawalli, the
court may intervene.
○ The court has the authority to appoint a Mutawalli to ensure that the
waqf assets are properly managed and that the intentions of the Waqif
are upheld.
○ The court's decision is based on Islamic legal principles and
considerations of fairness and competence.
These methods provide a framework within Islamic law for ensuring that the
administration of waqf properties is carried out responsibly and in accordance with the
intentions of the donor and the principles of Islamic jurisprudence.
Qualifications of Mutawalli: In Islamic law, the qualifications of a Mutawalli
(administrator of waqf properties) generally include:
1. Islamic Knowledge and Integrity:
○ The Mutawalli should have a sound understanding of Islamic principles,
especially those related to waqf management and financial matters.
○ They should be known for their honesty, trustworthiness, and adherence
to ethical standards.
2. Competence in Management:
○ The Mutawalli should possess skills in administration and management
to effectively oversee the waqf assets and ensure their proper utilization.
○ This includes financial management, property maintenance, and
decision-making abilities.
3. Commitment to Waqf Objectives:
○ They must be dedicated to fulfilling the objectives set out by the donor
(Waqif) in establishing the waqf, such as supporting charitable causes or
maintaining religious institutions.
4. Legal Understanding:
○ Understanding of the legal framework governing waqf in Islamic
jurisprudence and the local legal requirements related to charitable trusts
and endowments.
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5. Accountability and Transparency:

○ Ability to maintain transparent records of income and expenditures
related to the waqf properties.
○ Willingness to be accountable to beneficiaries, donors, and regulatory
authorities as required.
6. Community Trust and Respect:
○ The Mutawalli should be respected within the community and trusted by
beneficiaries and stakeholders associated with the waqf.
○ They should act in the best interests of the beneficiaries and the waqf's
objectives.
7. A Mutawalli must be a Major and sane person.
8. A woman or a blind person may be appointed as Mutawalli.
9. Applicants for the post of Mutawalli must be free from a known sin.
These qualifications ensure that the Mutawalli can effectively manage and safeguard
waqf assets for the benefit of the community and in accordance with Islamic
principles.