Maternity (Ummut): Established naturally and undeniably by the fact of birth. The biological mother is legally recognized immediately upon birth under all schools of Islamic law.
Paternity (Ubuwwat): Established legally through a valid or irregular marriage between the mother and the reputed father. Under Hanafi law, a child born within 6 months of marriage is illegitimate, whereas a child born after 6 months of marriage (or within 2 years of dissolution of marriage) is presumed legitimate.
B. Legitimacy and Acknowledgment (Iqrar)
Doctrine of Acknowledgment (Section 112 Evidence Act / Muslim Law): Where direct proof of marriage is absent, legitimacy can be established through acknowledgment of paternity.
Conditions for Valid Acknowledgment:
The acknowledger must have legal capacity.
The age difference between the acknowledger and the acknowledged must be consistent with the possibility of parentage.
The person acknowledged must not be known to be the child of another person.
The marriage between the parents must be legally possible (not an incestuous or prohibited union).
2. Guardianship (Hizanat and Wilayat)
A. Meaning and Kinds of Guardianship
Guardianship under Muslim law is divided into custody of the person (Hizanat) and guardianship of property (Wilayat).
Guardianship of the Person (Custody / Hizanat):
The mother is entitled to the custody (hizanat) of her male child until the age of 7 years (under Hanafi law) and her female child until she attains puberty.
Loss of Right: A mother may lose her right of custody if she marries a stranger (non-prohibited relative), neglects the child, or leads an immoral life.
Guardianship of Property (Wilayat):
Legal guardians of a minor’s property in order of priority: (1) Father, (2) Father’s executor, (3) Paternal grandfather, (4) Grandfather’s executor.
Mother is not a natural guardian of property under traditional Sunni law during the father’s lifetime, though she can be appointed by court or will.
B. Removal of Guardian and Shia vs. Sunni Law
Removal: Courts can remove any guardian if it is in the paramount welfare and best interest of the minor.
Shia vs. Sunni Law on Guardianship:
Sunni Law: Mother loses custody of a son at age 7 and daughter at puberty. Father is the sole natural guardian of property.
Shia Law: Mother is entitled to custody of a male child until 2 years and female child until 7 years. Under Shia law, the mother can act as a de jure guardian of property under certain limited circumstances if authorized.
Definition:Hiba is defined as a transfer of property, made immediately and without any exchange, by one person to another.
Three Essential Requisites:
Declaration (Ijab) by the donor.
Acceptance (Qabul) by the donee (express or implied).
Delivery of Possession (Qabza): Actual or constructive delivery of possession is mandatory. A gift of immovable property without physical delivery of possession is void under Muslim law.
B. Kinds of Gifts and Revocation
Kinds:Hiba (absolute gift), Hiba-bil-iwaz (gift for consideration/exchange), and Hiba-ba-shart-ul-iwaz (gift made with a stipulation for return).
Revocation of Gift:
Generally, a gift can be revoked by the donor before delivery of possession.
After delivery: Gifts cannot be revoked except through a decree of court or by mutual consent, except in gifts made to persons within prohibited degrees of relationship (e.g., father to child), which are irrevocable once delivered.
A. Meaning and Requisites of a Valid Will (Wasiyat)
Definition: A will is a legal declaration of the intention of a testator with respect to their property which they desire to be carried into effect after their death.
Formalities: No specific writing or attestation is strictly mandatory under Muslim law; an oral will is completely valid if proved with clarity.
B. Restrictions on Testamentary Power (The “One-Third” Rule)
A Muslim cannot dispose of more than one-third (1/3rd) of their net estate by will after payment of funeral expenses and debts, unless the other legal heirs consent to the excess bequest after the death of the testator.
A bequest to an heir is invalid without the consent of other heirs.
C. Revocation of Will
A testator may revoke their will at any time before death, either expressly (by oral or written declaration) or impliedly (by selling or destroying the subject matter of the bequest).
5. Summary Distinction: Gift (Hiba) vs. Will (Wasiyat)
Feature / Dimension
Gift (Hiba)
Will (Wasiyat)
Operation
Operates inter vivos (takes effect immediately during the donor’s lifetime).
Operates post mortem (takes effect only after the death of the testator).
Transfer of Possession
Delivery of possession (qabza) is mandatory for validity.
No delivery of possession is required during the testator’s lifetime.
Quantum Restriction
Can be made for 100% of the owner’s property (subject to deathbed gift rules).
Strictly restricted to a maximum of 1/3rd of the net estate without heirs’ consent.
6. In-Depth Landmark Case Studies
Case Study 1: Delivery of Possession in Gifts of Immovable Property
Case Title:Valayet Hossein v. Manzur Ahmad
Citation & Court: AIR 1930 Pat 312 (Patna High Court)
Related Legal Sections: Requisites of Hiba under Muslim Law (Delivery of Possession).
The Story & Real-Life Background: A father executed a registered gift deed of landed property in favor of his minor son. However, the father continued to collect rents and manage the property without formally handing over physical possession or evicting tenants on behalf of the minor. Later, other heirs challenged the gift.
Legal Issues Involved: Whether continued management by the donor vitiates the requirement of delivery of possession in a gift to a minor child.
Final Judgement & Ratio Decidendi:
Ruling: The court held that where a gift is made by a father to his minor child, strict physical delivery of possession is not required; a bona fide declaration of intent combined with the father acting as guardian of the property is sufficient constructive delivery.
Ratio: Delivery of possession in gifts to minor children by natural guardians requires a benevolent interpretation; explicit physical eviction is unnecessary if intention and constructive holding are established.
Case Study 2: Consent of Heirs to Bequest Exceeding One-Third Limit
Case Title:Ghulam Mohammad v. Ghulam Husain
Citation & Court: AIR 1932 PC 81 (Privy Council)
Related Legal Principles: Testamentary capacity and the one-third rule under Muslim law.
The Story & Real-Life Background: A Muslim testator executed a will disposing of more than 75% of his estate in favor of a specific relative, bypassing other legal heirs. The excluded heirs challenged the validity of the excessive bequest.
Legal Issues Involved: Whether a will exceeding the one-third threshold is void or voidable, and when heirs’ consent must be obtained.
Final Judgement & Ratio Decidendi:
Ruling: The Privy Council reaffirmed that a Muslim testator cannot bequeath more than one-third of their estate to a non-heir without the consent of the heirs. A bequest exceeding one-third is not void ab initio, but is merely invalid unless the other heirs give their free consent after the death of the testator.
Ratio: Testamentary power under Muslim law is strictly capped at one-third; excess bequests depend entirely upon post-mortem ratification by legal heirs.
Quick Reference Guide: Unit-III Family Law–II
Unit Number
Topic / Concept Name
Relevant Legal Scope
Core Description / Subject Matter
Unit-III
Guardianship (Hizanat)
Custody rules & age limits
Mother’s custody rights up to age 7 (boys) and puberty (girls); natural property guardianship.
Unit-III
Gifts (Hiba)
Essentials & Possession
Declaration, acceptance, mandatory delivery of possession (qabza), and irrevocability rules.
Unit-III
Wills (Wasiyat)
One-third rule
Testamentary restriction capping bequests at 1/3rd of net estate without heirs’ post-mortem consent.
