FAMILY LAW-II (Muslim Law and Other Personal Laws) Unit III:

PAPER – II:

FAMILY LAW-II (Muslim Law and Other Personal Laws)

Unit III:

Parentage – Maternity and Paternity, Legitimacy and Acknowledgement

1. Explain the concept of parentage under Muslim Law. How are maternity and paternity established, and what is the legal significance of each?

(Long Answer)

Introduction:

Parentage is a foundational concept in Muslim personal law as it determines the legal relationship between a child and his or her parents. Under Muslim Law, parentage is of two types: maternity (relation with the mother) and paternity (relation with the father). The establishment of parentage has important legal consequences such as legitimacy, inheritance rights, guardianship, and maintenance obligations.

A. Maternity under Muslim Law:

1. Definition: Maternity refers to the legal recognition of a woman as the mother of a child. Under Muslim law, the identity of the mother is usually not disputed as childbirth itself provides sufficient proof.

2. Legal Principle: According to the principle “Al-walad lil-firash”, which means “the child belongs to the marriage-bed,” the woman who gives birth is presumed to be the lawful mother.

3. Legal Position:

A woman who physically gives birth is considered the mother, regardless of whether the child is born within or outside wedlock.
In surrogacy cases or disputed maternity, modern science (DNA tests) may be used, but traditionally, the physical act of childbirth is conclusive.
There is no requirement for formal acknowledgement by the mother.

4. Significance of Maternity:

Establishes the child’s right to be cared for and maintained.
Determines mahram (non-marriageable) relationships.
Entitles the child to inheritance from the mother and her relatives.

B. Paternity under Muslim Law:

1. Definition: Paternity refers to the legal recognition of a man as the father of a child.

2. Legal Establishment: Paternity may be established in two main ways:

Presumption of Paternity through Valid Marriage:
- If a child is born during a valid marriage or within a reasonable time after its dissolution (i.e., during the period of iddat), the husband is presumed to be the father.
- The minimum period of pregnancy is considered to be 6 lunar months, and the maximum is 2 lunar years in classical Sunni law.
Acknowledgement (Iqrar):
- If the child is born outside of marriage, paternity can be established by the father’s voluntary acknowledgement.
- Conditions:
  - The child must not be the child of another man.
  - The child must be capable of being born in the natural course of time.
  - The child must accept the acknowledgement if of mature age.

3. Denial of Paternity:

Under Sunni law, a husband may deny paternity through the procedure of Li’an (mutual imprecation), which results in separation and rejection of paternity.

4. Legal Significance of Paternity:

Grants the child status of legitimacy.
Entitles the child to inheritance rights from the father and paternal relatives.
Establishes guardianship rights and duties.
Fixes the father’s liability to maintain the child.
Creates mahram relationships with the father’s relatives.

Conclusion:

In Muslim Law, maternity is easily established through childbirth, while paternity requires either a valid marriage or a valid acknowledgement. The establishment of parentage is crucial in determining the legitimacy of a child and carries significant implications for inheritance, maintenance, guardianship, and other legal rights. Muslim jurists have provided a balanced approach combining presumption, acknowledgement, and judicial safeguards to protect both parental rights and the best interests of the child.

2. Discuss the concept of legitimacy in Muslim Law. How is a child considered legitimate, and what role does acknowledgement (Iqrar) by the father play in this context?

(Long Answer)

Introduction:

Legitimacy is a central concept in Muslim personal law, as it determines whether a child is lawfully born to parents and thereby entitled to certain rights such as inheritance, maintenance, and social recognition. Under Muslim Law, legitimacy is primarily governed by principles of marriage and paternity. One of the key mechanisms for establishing legitimacy, especially in cases of doubt or absence of marriage, is the acknowledgement (Iqrar) by the father.

A. Meaning and Importance of Legitimacy:

Legitimacy under Muslim Law means that a child is born of a valid marriage, or in certain cases, a voidable (irregular) marriage, and is thus legally recognized as the lawful offspring of the parents.

Importance:

Only a legitimate child can inherit from the father.
A legitimate child is entitled to maintenance and protection.
Legitimacy affects the child’s social status, guardianship rights, and mahram relationships.

B. Conditions for Legitimacy:

A child is considered legitimate under the following conditions:

1. Birth During Valid Marriage:

If a child is born during the subsistence of a valid marriage, he or she is presumed to be legitimate.
This is based on the principle “Al-walad lil-firash” (the child belongs to the marriage bed).
If the child is born at least six lunar months after the marriage, and within two lunar years of the dissolution of marriage (by divorce or death), legitimacy is presumed.

2. Birth During Iddat Period:

A child born within the iddat (waiting period) after divorce or death of the husband is presumed to be legitimate.

3. Birth Through Irregular (Fasid) Marriage:

Under Sunni Law, a child born from an irregular marriage is considered legitimate.
Under Shia Law, however, only children from valid marriages are legitimate; children from irregular or void marriages are not.

C. Acknowledgement (Iqrar) by the Father:

When legitimacy cannot be established through marriage (e.g., in the case of a child born outside wedlock), the acknowledgement by the father plays a critical role.

1. What is Acknowledgement (Iqrar)?

Acknowledgement means that a man voluntarily declares that a particular child is his son or daughter, thereby granting the child legitimacy and legal rights.

2. Conditions for Valid Acknowledgement:

The child must not be the child of another man.
The child must be capable of being born within the natural course of time (i.e., must be of appropriate age difference with the father).
There must be no known disqualification (e.g., the woman was married to another man at the relevant time).
If the child is of discerning age, he or she must accept the acknowledgement.

3. Legal Effects of Acknowledgement:

The child is legitimized and can inherit from the father.
The relationship of mahram is established.
The child is entitled to maintenance and social identity.
It does not legitimize the mother or make the woman a lawful wife.

4. Limitation of Acknowledgement:

Acknowledgement cannot override clear biological impossibilities.
It cannot be made if there is proof that the child belongs to another man.

D. Distinction Between Legitimacy and Illegitimacy:

Basis	Legitimate Child	Illegitimate Child
Birth	Born within valid/irregular marriage	Born outside of marriage
Inheritance	Can inherit from both parents	Can inherit only from the mother
Maintenance	Entitled from both parents	Only from the mother
Acknowledgement	Not needed, unless doubt arises	Required to establish legal paternity
Social Status	Full status as legal heir and family member	No recognition from father under classical law

Conclusion:

In Muslim Law, legitimacy ensures a child’s rightful place in the family and society. While birth within a valid marriage is the primary basis for legitimacy, acknowledgement (Iqrar) by the father plays a vital role in cases where marriage is absent or doubtful. The law aims to balance the protection of children’s rights with family integrity and religious norms. Legitimacy not only confers legal rights but also moral and social security to the child.

Guardianship – Meaning, Kinds of Guardianship, and Removal

3. Define ‘Guardianship’ under Muslim Law. What are its different types and what is the legal significance of each?

(Long Answer)

Introduction:

Guardianship, or “Wilayat” in Muslim Law, refers to the legal authority and responsibility assigned to a person to care for the person and/or property of a minor. A guardian is someone who protects the minor, manages his or her affairs, and represents the minor in legal and financial matters. Since minors lack the legal capacity to take care of themselves or their property, guardianship becomes essential for their welfare and protection.

Definition:

Guardianship under Muslim Law is the legal responsibility imposed upon a person to take care of a minor’s person, property, or marriage until the minor attains majority or legal capacity.

A minor, as per Muslim Law, is a person who has not attained the age of puberty, which is presumed to be 15 years. However, under statutory law (like the Guardian and Wards Act, 1890), minority continues until 18 years of age.

Types of Guardianship in Muslim Law:

Muslim law classifies guardianship into three major types:

A. Guardianship of the Person (Custody of Minor):

This refers to the right to physical custody and care of the minor. It includes the right to bring up the child, provide education, health, and general welfare.

Key Features:

The mother is generally entitled to custody (Hizanat) of the minor child, especially in early childhood.
The father’s right to custody arises after a certain age depending on the gender of the child.

Custody Rules (Sunni Law):

Mother’s right:
- Boy: Up to 7 years.
- Girl: Until puberty.
After this, custody shifts to the father or other male agnates.
In Shia Law, the mother’s custody ends at:
- Boy: 2 years.
- Girl: 7 years.

Legal Significance:

The guardian of the person ensures proper upbringing and protection of the child.
Courts prioritize the welfare of the minor in custody disputes.

B. Guardianship of Property:

This type of guardianship involves managing the movable and immovable property of the minor, making contracts, and dealing with legal matters on behalf of the minor.

Types of Guardians for Property:

Legal Guardian (Father and father’s executor):
- Has full power to manage minor’s property, but with certain limitations.
- Cannot sell immovable property without court permission unless necessary.
Testamentary Guardian:
- Appointed by the father through a will.
- In Sunni law, the father can appoint a guardian for both person and property.
- In Shia law, only father (not grandfather) can appoint a testamentary guardian.
Guardian Appointed by the Court (Certified Guardian):
- Appointed under the Guardians and Wards Act, 1890, when no natural or testamentary guardian exists.
- Court ensures the best interest of the minor is protected.

Legal Significance:

Prevents misuse or loss of minor’s property.
Legal transactions by minor are invalid; thus, the guardian steps in.
Must act in good faith and in the interest of the minor.

C. Guardianship for Marriage (Jabar):

This is the right to contract a marriage on behalf of a minor, usually exercised by the father or grandfather.

Rules:

Only father and paternal grandfather have the right to contract marriage on behalf of a minor (Sunni Law).
The guardian must act in the interest of the minor (e.g., in terms of equality and compatibility).
A minor has the right to repudiate the marriage (Option of Puberty) after attaining puberty if it was contracted by a guardian without proper consent or for improper reasons.

Legal Significance:

Prevents child marriage abuses.
Protects the minor’s future and legal rights.
Ensures that marriage decisions are made with wisdom and foresight.

Conclusion:

Guardianship in Muslim Law is a protective legal institution designed to safeguard the interests of minors in their personal life, property, and marriage. It is divided into guardianship of person, property, and marriage, each with distinct roles and legal implications. The law carefully balances customary principles, religious norms, and modern welfare-oriented judicial approaches, especially in determining what is best for the child.

4. Explain the various types of guardians under Muslim Law – Natural, Testamentary, and Court-appointed guardians. Discuss the powers and limitations of each.

(Long Answer)

Introduction:

In Muslim Law, the concept of guardianship—known as “Wilayat”—plays a vital role in safeguarding the welfare of minors, who are considered legally incompetent to manage their own affairs. Guardianship refers to the legal authority and responsibility of an individual to care for a minor’s person, property, or marriage.

Guardianship can be broadly classified into three types:

Natural Guardians
Testamentary Guardians
Court-appointed Guardians

Each category has its own source of authority, scope of powers, and legal limitations.

Who is a Minor?

Under Muslim Law: A minor is a person who has not attained puberty (presumed to be 15 years).
Under statutory law like the Guardians and Wards Act, 1890, a minor is a person below 18 years of age.

A. Natural Guardian

Definition:

A natural guardian is a person who, by virtue of relationship and personal law, is automatically entitled to take care of the person and property of the minor.

Who Can Be a Natural Guardian?

Father is the primary natural guardian under both Sunni and Shia law.
After the father, paternal grandfather becomes the natural guardian (only if alive).
Mother has the right to custody (Hizanat), but she is not the legal guardian of property.

Powers of Natural Guardian:

Can manage daily affairs and upbringing of the child.
Has limited authority over minor’s property.
Can contract a minor’s marriage under the doctrine of jabar (only father or grandfather).

Limitations:

Cannot sell or transfer immovable property of the minor without prior court permission (except in urgent necessity).
Cannot borrow money on behalf of the minor unless justified and necessary.
Cannot gift or lease minor’s property for long durations without permission.
In Shia Law, even the father cannot alienate property without judicial sanction.

B. Testamentary Guardian

Definition:

A testamentary guardian is appointed through a will (wasiyat) by a natural guardian, typically the father.

Who Can Appoint a Testamentary Guardian?

Sunni Law:
- The father has the right to appoint a guardian by will.
- If the father is dead, the paternal grandfather may also appoint a guardian.
Shia Law:
- Only the father can appoint a testamentary guardian.
- The grandfather cannot appoint one if the father is alive.

Powers of Testamentary Guardian:

Can act as a guardian of the person and property of the minor.
Can make decisions about the minor’s education, care, marriage (limited), and management of property.

Limitations:

Cannot act beyond the scope of the will.
His/her authority may be challenged or revoked if found to be acting against the welfare of the minor.
Does not override a court-appointed guardian if one already exists.

C. Court-appointed Guardian (Certified Guardian)

Definition:

When no natural or testamentary guardian exists, or if they are unfit or unwilling, the court may appoint a guardian under the Guardians and Wards Act, 1890.

Who Can Be Appointed?

A relative, well-wisher, or even a trust/institution.
Appointment is based on the best interest of the minor.

Powers of Court-appointed Guardian:

Can manage the person, property, or both, depending on the court order.
Must follow the directions of the court strictly.
Has legal backing and judicial supervision.

Limitations:

Cannot sell, mortgage, or lease immovable property of the minor without prior permission of the court.
Must periodically report to the court about the minor’s welfare and property status.
Can be removed if acting against the minor’s interest.

Comparative Table:

Type of Guardian	Appointed By	Powers	Limitations
Natural Guardian	By operation of personal law	Custody, upbringing, manage property	Limited power to alienate property
Testamentary Guardian	By will of father/grandfather	Person and property management	Must act within terms of will
Court-appointed Guardian	By civil court under GWA 1890	As directed by court	Acts under strict court supervision

Conclusion:

Guardianship under Muslim Law is a vital legal mechanism that ensures the protection of a minor’s rights and welfare. The classification into natural, testamentary, and court-appointed guardians provides a flexible and tiered system of care. However, all guardians—regardless of their origin—are legally and morally bound to act in the best interest of the minor, especially concerning property management, education, and overall well-being. Judicial oversight acts as an additional safeguard to prevent misuse of authority.

5. Discuss the grounds and procedure for the removal of a guardian under Muslim Law. How is the welfare of the minor considered in such cases?

(Long Answer)

Introduction:

In Muslim Law, guardianship is a legal responsibility to protect and manage the affairs of a minor in relation to person, property, and marriage. While guardians are entrusted with significant powers, their actions must always align with the welfare of the minor. If a guardian misuses authority or fails in their duty, provisions exist for their removal, primarily under the Guardians and Wards Act, 1890.

A. Legal Basis for Removal of Guardian:

Muslim Personal Law recognizes guardianship but does not lay out detailed removal procedures.
Statutory provisions under the Guardians and Wards Act, 1890 (Section 39) empower the District Court to remove a guardian.
The paramount consideration in all such cases is the welfare of the minor (Section 17 of the Act).

B. Grounds for Removal of Guardian:

The court may remove a guardian on the following grounds:

1. Misuse of Trust or Misconduct:

If the guardian acts dishonestly, misappropriates property, or harms the minor’s interests.

2. Incapacity or Unfitness:

If the guardian becomes mentally ill, physically disabled, or unfit by character to act as guardian.

3. Disobedience of Court Orders:

If the guardian willfully neglects or disobeys lawful orders of the court.

4. Conviction of a Criminal Offence:

Especially if the offence involves moral turpitude, violence, or fraud.

5. Adverse Interest:

Where the guardian’s personal interest conflicts with that of the minor.

6. Abuse, Neglect or Ill-treatment:

If the guardian physically or emotionally harms the minor or fails to ensure proper care.

7. Change in Circumstances:

Such as a change in religion, residence, or marriage of the female guardian which adversely affects the minor.

8. Minor’s Request:

A minor of sufficient understanding may object to the guardian or request removal for valid reasons.

C. Procedure for Removal:

The Guardians and Wards Act, 1890 provides a structured procedure for removal:

1. Application to Court:

Any relative, friend, the minor (if competent), or the Collector can file an application.

2. Issue of Notice:

The guardian is given a chance to respond and present their case.

3. Inquiry and Evidence:

The court conducts a proper investigation, reviews evidence, and may consult with the minor.

4. Decision by Court:

The guardian may be removed and a new guardian appointed based on the minor’s welfare.

D. Welfare of the Minor – The Paramount Consideration:

Section 17 of the Guardians and Wards Act states:

“In the appointment or removal of a guardian, the court shall be guided by the welfare of the minor.”

Welfare includes:

Physical safety
Emotional and moral well-being
Education and development
Religious compatibility
Proper care of minor’s property

Even if a person has a legal or religious right to guardianship (e.g., the father), they can be removed if they act against the minor’s best interest.

Case Law Example:

Rosy Jacob v. Jacob A. Chakramakkal (1973)
The Supreme Court held that welfare of the child overrides all legal entitlements and technical claims to guardianship.

Conclusion:

Guardianship under Muslim Law is not an absolute right but a trust governed by the welfare of the minor. The law provides sufficient grounds and procedures for the removal of an unfit or harmful guardian. The courts play a crucial role in ensuring that every minor is protected from negligence, exploitation, or abuse by those entrusted with their care.

Difference between Shia and Sunni Law of Guardianship

6. Compare and contrast the Shia and Sunni laws relating to guardianship. Highlight the major differences with respect to appointment, preference, and rights of guardians.

(Long Answer)

Introduction:

Guardianship or “Wilayat” under Muslim Law refers to the legal authority and responsibility to care for a minor’s person, property, and marriage. Both Sunni and Shia schools of Islamic law recognize guardianship, but there are important differences between them concerning the appointment, order of preference, powers, and rights of guardians.

Understanding these differences is crucial for determining who may act as guardian, especially in cases of custody disputes, property management, and contracting marriage on behalf of a minor.

A. Points of Comparison Between Sunni and Shia Laws of Guardianship:

1. Natural Guardian

Sunni Law:
- The father is the primary natural guardian.
- In his absence, the paternal grandfather becomes the natural guardian.
- Mother is not considered the legal guardian of property but may have custody.
Shia Law:
- The father is the only natural guardian.
- After his death, the paternal grandfather becomes the guardian.
- No one else (not even brothers or uncles) can be a natural guardian.

✅ Key Difference:
In Sunni law, the order of guardianship can extend beyond father and grandfather to other male relatives, whereas in Shia law, guardianship ends with the grandfather.

2. Testamentary Guardian

Sunni Law:
- The father and the paternal grandfather both can appoint a guardian by will.
- The appointed guardian can have control over both person and property of the minor.
Shia Law:
- Only the father can appoint a testamentary guardian by will.
- The paternal grandfather cannot appoint a testamentary guardian unless the father is already dead.

✅ Key Difference:
Sunni law allows both father and grandfather to appoint a guardian by will, whereas Shia law allows only the father to do so.

3. Court-appointed Guardian

Both Sunni and Shia laws:
- If there is no natural or testamentary guardian, the court may appoint a guardian under the Guardians and Wards Act, 1890.
- The court considers the welfare of the minor as paramount.

✅ Similarity:
In both schools, when no suitable guardian is available, the civil court can step in to protect the minor.

4. Custody of Minor (Hizanat)

Sunni Law:
- The mother has the first right to custody of the child:
  - Boy: up to 7 years
  - Girl: until puberty
- After that, custody shifts to the father or male relatives.
Shia Law:
- Mother’s right of custody:
  - Boy: up to 2 years
  - Girl: up to 7 years
- After that, father gets custody.

✅ Key Difference:
Shia law limits the mother’s right of custody to shorter durations compared to Sunni law.

5. Guardianship of Property

Sunni Law:
- The father or paternal grandfather can manage the minor’s property.
- They may deal with the minor’s immovable property under certain conditions.
Shia Law:
- Even the father cannot alienate the minor’s immovable property without court permission.
- Stricter rules are applied to protect minor’s property.

✅ Key Difference:
Shia law is more restrictive regarding the management and alienation of minor’s property by guardians.

6. Guardianship for Marriage (Jabar)

Sunni Law:
- The father or paternal grandfather can compel marriage (jabar) of the minor.
- The minor has “Option of Puberty” to repudiate such marriage upon attaining majority.
Shia Law:
- Only the father and grandfather can contract a minor’s marriage, but with greater limitations.
- Shia law does not permit forced marriage; the minor’s consent is essential.

✅ Key Difference:
Sunni law recognizes the concept of jabar (compulsory marriage) by the guardian; Shia law insists on minor’s consent, making it stricter and more protective.

B. Summary Table of Differences

Aspect	Sunni Law	Shia Law
Natural Guardian	Father → Grandfather → Male agnates	Only Father → Grandfather
Testamentary Guardian	Father and Grandfather can appoint	Only Father can appoint
Court-appointed Guardian	Permissible under GWA 1890	Permissible under GWA 1890
Custody (Hizanat)	Mother: Boy up to 7, Girl till puberty	Mother: Boy up to 2, Girl up to 7
Property Management	Guardian can manage with some liberty	Court permission needed for immovable property
Marriage of Minor (Jabar)	Guardian can compel marriage; Option of Puberty	Consent required; no forced marriage allowed

Conclusion:

Though both Sunni and Shia laws aim to protect minors through the institution of guardianship, they differ significantly in their approach, hierarchy, and scope of powers granted to guardians. Shia law tends to be more restrictive and cautious, particularly in matters of property and marriage. Sunni law offers broader discretion to guardians but is still subject to overriding consideration of the minor’s welfare, especially when judicial intervention is required.

Succession – Sunni and Shia Law of Succession

7. Explain the general principles of inheritance under Sunni Law. What are the different categories of heirs and how is the property distributed among them?

(Long Answer)

Introduction:

The law of inheritance (Mirath) under Sunni Muslim Law is based on the Quran, Hadith, Ijma, and Qiyas. It is a well-defined legal system that ensures fair and proportionate distribution of the deceased’s estate among rightful heirs. The Sunni law of inheritance primarily follows the principle of blood relationship and recognizes both male and female heirs, though in unequal shares in many cases.

A. Basic Principles of Sunni Inheritance Law:

Succession opens upon the death of a Muslim, whether male or female.
No will (Wasiyat) can operate beyond one-third of the estate unless all heirs consent.
Inheritance is distributed after payment of:
- Funeral expenses
- Debts of the deceased
- Legacies (within 1/3 of estate)
Property is divided among heirs according to fixed Quranic shares and residuary rules.
There is no concept of joint family property like in Hindu Law. Property becomes individual upon inheritance.

B. Categories of Heirs under Sunni Law:

Sunni law classifies heirs into three categories:

1. Sharers (Qur’anic Heirs – Ashab al-Furudh):

Sharers are those heirs who are entitled to a fixed share in the deceased’s property as laid down in the Quran.

Examples of Sharers and Their Shares:

Heir	Share in Inheritance
Husband	½ (if no child), ¼ (if child)
Wife	¼ (if no child), ⅛ (if child)
Daughter	½ (if only one), ⅔ (if more)
Mother	⅓ (if no child), ⅙ (if child/siblings)
Father	⅙ (if child exists)
Paternal Grandfather	⅙ (in absence of father)
Full Sister	½ (if alone), ⅔ (if more)

✅ Note: If a sharer co-exists with other heirs, their fixed share may be reduced according to rules of doctrine of Aul (increase).

2. Residuaries (Asabah):

Residuaries are heirs who take the remainder of the estate after sharers have received their fixed portions. They inherit by virtue of their relationship to the deceased and only in the absence of sharers or after sharers’ shares are satisfied.

Types of Residuaries:

Agnatic Residuaries: Male blood relatives through the male line (e.g., son, father, brother).
Residuaries in their own right: Son, father, full brother, etc.
Residuaries through another: Son’s daughter (in presence of son), full sister (with daughter).
Residuaries together with another: Full sister with daughter.

Rules:

Male gets double the share of female in the same degree (e.g., son gets double the daughter’s share).
If no sharers are present, residuaries get the entire property.

3. Distant Kindred (Zawil Arham):

These are relatives not included among sharers or residuaries, e.g., maternal grandfather, daughter’s children, etc.

They inherit only when no sharer or residuary is present.
Their inheritance is not guaranteed and is determined case by case.

C. Distribution of Property:

The property is distributed according to a well-defined method:

Identify sharers and allot fixed shares.
Apply doctrine of Aul (increase) if total shares exceed 1.
Apply doctrine of Radd (return) if surplus remains and no residuary is present.
If sharers and residuaries both are present, residuaries take balance after sharers.
If only distant kindred are present, property is divided among them.

D. Doctrines Applied in Sunni Law:

1. Doctrine of Aul (Increase):

Applied when the total fixed shares exceed the whole (1).
All fixed shares are proportionately reduced.
E.g., If total shares = 13/12, each share is scaled down.

2. Doctrine of Radd (Return):

Applied when surplus remains after allotting shares and no residuary is present.
The surplus is returned to existing sharers, excluding husband or wife.

E. Illustrative Example:

Suppose a Muslim man dies leaving:

Wife
2 Daughters
Father

Step 1:

Wife (Sharer): 1/8
Daughters (Sharers): 2/3 jointly
Father (Sharer + Residuary): 1/6 + residuary

Step 2:

Total shares = 1/8 (wife) + 2/3 (daughters) + 1/6 (father) =
= 3/24 (wife) + 16/24 (daughters) + 4/24 (father) = 23/24

Step 3:

Residue (1/24) goes to father as residuary. He ends up getting 1/6 + 1/24.

Conclusion:

The Sunni Law of inheritance is a complex yet highly structured system that ensures fair and proportional distribution of property based on proximity, degree of relation, and gender. The classification into sharers, residuaries, and distant kindred, along with the application of doctrines of Aul and Radd, reflects the balance between divine command (Quranic shares) and social logic. Though it gives preference to male heirs, the system is inclusive and has built-in mechanisms to prevent injustice or exclusion.

8. Discuss the doctrine of ‘Aul’ (increase) and ‘Radd’ (return) under Sunni Law of Succession. How are these doctrines applied in the distribution of shares?

(Long Answer)

Introduction:

The Sunni Law of Succession is a detailed and mathematically precise system based on Quranic injunctions. However, situations may arise where:

The total prescribed shares exceed the estate (i.e., more than 1 or 100%).
The total prescribed shares fall short of the estate, and no residuaries are available to absorb the surplus.

To address these situations, Sunni law developed two important doctrines:

Doctrine of Aul (Increase) – when the shares exceed the estate.
Doctrine of Radd (Return) – when there is a surplus and no residuary heir.

Both doctrines are applied only under specific conditions and help ensure fair and proportionate distribution of property.

A. Doctrine of ‘Aul’ (Increase)

Meaning:

The Doctrine of Aul is applied when the sum of the Quranic fixed shares allotted to various sharers exceeds the whole estate (i.e., more than 1 or 100%).

Purpose:

To adjust the shares proportionately downward so that the total becomes exactly one whole (1), and every sharer receives less than originally prescribed, but in proportion.

Legal Basis:

It is a principle of equitable reduction derived from Islamic juristic reasoning (Qiyas) and accepted by Sunni schools, particularly the Hanafi school. It is not recognized in Shia Law.

Application:

Let’s say total shares of heirs add up to 13/12 (i.e., 1.08). This exceeds 1.

So, each share is proportionately reduced by applying a common denominator, making the total exactly 1 (i.e., 12/12).

Example:

A Muslim dies leaving:

2 full sisters = (2/3)
Mother = (1/3)
Wife = (1/4)

Let’s calculate total shares:

2/3 = 8/12
1/3 = 4/12
1/4 = 3/12
Total = 15/12 (which exceeds 1)

Now apply Doctrine of Aul:

Make the denominator 15 instead of 12 (increase):

Sisters: (8/15)
Mother: (4/15)
Wife: (3/15)

Now total = 8 + 4 + 3 = 15/15 = 1

✅ All shares are proportionally reduced to fit into one full estate.

B. Doctrine of ‘Radd’ (Return)

Meaning:

The Doctrine of Radd is applied when the total fixed shares do not exhaust the estate, and there is no residuary heir to take the remainder.

Purpose:

To ensure that the surplus (residue) is returned proportionately to the sharers, excluding the husband or wife, as they are not eligible for Radd under classical Hanafi law.

Legal Basis:

This doctrine is based on equity and fairness, and ensures that property does not go to the State (Bait-ul-Mal) unnecessarily.

Application:

Let’s say total shares = 5/6, and no residuary heir is present. So, 1/6 remains.

This 1/6 is returned to the sharers in proportion to their original shares, except:

Husband or Wife: They do not get any Radd (as per Hanafi law).

Other Sunni schools (like Maliki and Shafi) may include husband or wife in Radd under certain circumstances.

Example:

A Muslim woman dies leaving:

1 Daughter = (1/2)
Mother = (1/6)
No residuary heir.

Total = 1/2 + 1/6 = 2/3
Surplus = 1 – 2/3 = 1/3

Now, apply Radd:

Total share to distribute = 2/3 + 1/3 = 1 (i.e., full estate)

So, Daughter and Mother will take:

Daughter: (1/2 ÷ 2/3) = 3/4
Mother: (1/6 ÷ 2/3) = 1/4

✅ Their original shares are proportionately increased to absorb the whole estate.

C. Comparison Between Aul and Radd:

Feature	Doctrine of Aul	Doctrine of Radd
When Applied	When total shares exceed 1	When total shares fall short of 1
Nature	Reduction of fixed shares	Enhancement of fixed shares
Residuary Present?	May or may not be	Only if no residuary heir is present
Affected Parties	All sharers, proportionately	All sharers except husband/wife
Recognized In	Sunni Law	Sunni Law
Recognized In Shia?	No	Yes, but with modifications

Conclusion:

The doctrines of Aul and Radd are essential for the proper application of Sunni inheritance law. They address situations where the fixed Quranic shares either exceed or fall short of the estate and help ensure just, proportionate, and complete distribution of property. While Aul protects the estate from being over-distributed, Radd prevents wastage or unclaimed residue when no residuary heir exists. Both doctrines reflect the mathematical precision and equity inherent in Islamic jurisprudence.

Difference between Sunni and Shia Law of Succession

9. Critically examine the differences between Sunni and Shia laws of inheritance. How do they differ in the classification of heirs, application of doctrines like Aul and Radd, and exclusion of heirs?

(Long Answer)

Introduction:

The Islamic law of inheritance is one of the most detailed and structured legal frameworks in personal law. While both Sunni and Shia laws derive from the Quran, Hadith, and Ijma, their interpretations and applications differ significantly. These differences are especially notable in the classification of heirs, the application of doctrines like Aul and Radd, and the rules of exclusion.

The Sunni law, particularly the Hanafi school, follows a mathematical and formulaic approach, whereas the Shia law, especially the Ithna Ashari (Twelver) sect, emphasizes closer blood ties and proximity.

A. Differences in Classification of Heirs:

1. Sunni Law:

Sunni law classifies heirs into three categories:

Sharers (Ashab al-Furudh): Heirs with fixed Quranic shares.
Residuaries (Asabah): Take the residue after sharers are satisfied.
Distant Kindred (Zawil Arham): Take only in the absence of both sharers and residuaries.

2. Shia Law (Ithna Ashari):

Shia law does not classify heirs into sharers and residuaries. Instead, it follows a tiered system of priority based on degree of relationship:

Class I:

Children and their descendants, parents
→ Exclude everyone else.

Class II:

Grandparents, brothers and sisters, their children
→ Exclude Class III if they exist.

Class III:

Uncles, aunts, cousins, and other distant relatives.

✅ Key Difference:

Sunni law uses the residuary system, while Shia law follows classes based on proximity and does not recognize residuaries.

B. Application of Doctrines – Aul and Radd

1. Doctrine of Aul (Increase):

Sunni Law:
Recognized and applied when total fixed shares exceed the estate. All shares are proportionately reduced.
Example: Total = 13/12 ⇒ All shares are adjusted down to 13 parts.
Shia Law:
Not recognized.
If the shares exceed the estate, the excess claim is simply refused—heirs get only what the Quran specifies, and no proportional adjustment is made.

✅ Key Difference:
Shia law rejects the concept of Aul, favoring strict adherence to Quranic shares.

2. Doctrine of Radd (Return):

Sunni Law (Hanafi):
Applied when total fixed shares do not exhaust the estate and no residuary is present.
Surplus is returned to the sharers (except husband/wife).
Shia Law:
Recognized and applied more broadly.
Even husband or wife may receive a share in Radd if no other eligible heirs exist.

✅ Key Difference:

Shia law applies Radd more liberally and includes spouses, unlike Hanafi Sunni law.

C. Exclusion of Heirs (Disqualification or Blocking):

1. Sunni Law:

Operates based on the principle of exclusion.
A nearer heir excludes more remote ones of the same kind.
- E.g., Son excludes grandson.
- Father excludes paternal grandfather.
Full siblings are excluded by father, but may inherit with mother.
Distinction is made between agnatic and uterine relatives.

2. Shia Law:

More emphasis on degree of closeness rather than male line.
Maternal and paternal relatives are treated equally.
No exclusion among classes unless a closer relative is present.
- E.g., Brother and sister inherit equally in absence of closer heirs.

✅ Key Differences:

Sunni law prioritizes agnatic male relatives and follows strict exclusion.
Shia law emphasizes lineal closeness and gives equal treatment to maternal and paternal relatives.

D. Treatment of Female Heirs:

Sunni Law:

Male heirs generally receive double the share of female heirs.
Daughters inherit less than sons.
Widows and mothers have fixed smaller shares.

Shia Law:

Also follows the “male gets double of female” rule.
But allows greater scope for daughters when no son exists.
Widow may receive a larger portion under Radd.

✅ Key Similarity:

Both schools follow the 2:1 ratio in most cases but Shia law is more flexible in absence of male heirs.

E. Right of Inheritance by Acknowledgement:

Sunni Law: Allows a person to acknowledge another as his child, giving them inheritance rights.
Shia Law: Does not recognize acknowledgement as a valid basis for inheritance.

F. Summary Table:

Point of Difference	Sunni Law	Shia Law
Classification of Heirs	Sharers, Residuaries, Distant Kindred	Class I, II, III (based on proximity)
Doctrine of Aul	Accepted and applied	Not recognized
Doctrine of Radd	Recognized but excludes spouse	Recognized and includes spouse
Exclusion Rules	Strict exclusions based on agnatic ties	Based on closeness; no harsh exclusions
Female Heirs	Lesser shares than males	More flexible; equal in some cases
Acknowledgement of Heir	Allowed for inheritance	Not recognized

Conclusion:

The Sunni and Shia laws of inheritance, while rooted in the same religious foundations, differ fundamentally in structure, application, and philosophy. Sunni law relies on a rigid, formulaic system of shares and residuaries, guided by doctrines like Aul and Radd, while Shia law favors a more relational approach, emphasizing proximity, equality, and justice among heirs.

These differences reflect broader theological and jurisprudential divergences between the two sects, and they continue to influence inheritance disputes and estate planning among Muslims in various jurisdictions.