Family Law Final
Family Law Final
Family Law Final
UNIVERSITY, LUCKNOW
2018-19
Family Law
Final Draft
1
Table of Content
Contents
Introduction................................................................................................. 2
Scope and Objectives................................ Error! Bookmark not defined.
Research Problem ....................................................................................... 4
Literature Review ....................................................................................... 4
Research Methodology ............................................................................... 5
Hanafi Law of Inheritence ....................................................................... 7
Sharers ....................................................................................................... 8
Residuaries .............................................................................................. 10
Distant kindered...................................................................................... 10
Doctrine of Aul and Radd ...................................................................... 11
Doctrine of Aul ........................................................................................ 12
Doctrine of Radd ..................................................................................... 12
Conclusion ................................................................................................ 13
Bibliography ............................................................................................. 14
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Introduction
Succession is the transmission of property having a place with a man at his passing to some
other individual or people. Succession and Inheritance can be of two sorts – Testamentary or
testate legacy which implies legacy according to the Will of the expired and Non
Testamentary or intestate progression, where the perished passes on without making a Will.
The law on intestate progression for various groups in India is administered by diverse
progression laws pertinent for that specific group. For e.g. the Hindu Succession Act, Indian
Succession Act, Shariat laws and so forth. The law on testate progression is represented by
the Indian Succession Act, 1925 for all groups aside from Muslims. The law in connection to
making of wills by Muslims is represented by the significant Muslim Shariat Law as pertinent
to the Shias and the Sunnis.
To the extent Muslims are concerned, the law of progression falls into two expansive streams,
the Hanafi law of progression and the Shia law of progression. Both these laws of progression
frame some portion of the custom-based law of India and are perceived as having the power
of law by ethicalness of the Shariat Laws (Application) Act. The Muslim law of progression
is gotten from the Sharia. The primary source of the Muslim law of progression streams from
the Holy Quran Ijmas, the Sunnis, and the Qiyas, from all of which rules relating to
progression can be gathered. The Muslim law of legacy is a superstructure built on the
establishment of pre-Islamic standard law of progression.
Under Hanafi law divides heirs into different classes in accordance with their relations to the
deceased. Even their shares have been specifically decided which keeps on fluctuating
depending on the presence or absence of other heirs. Basically muslim law recognizes two
types of heirs namely sharers and residuaries. A sharere will takes a specified part of the
property of the deceased irrespective of anything else but two rules being doctrine of Aul and
radd.
3
Scope and Objectives
Scope:
The scope of this project is limited to discuss only about Hanafi law of intestate
succession. Discussing about the same the research discuss about the emergence of
Hanafi law and gives a thorough view on the heirs under Hanafi law and how shares are
distributed among them.
Objectives:
Research Problem
Literature Review
Intestate Succession is the second volume in the Comparative Succession Law series
which examines the principles of succession law from a comparative and historical
perspective. This volume discusses the rules which apply where a person dies either
without leaving a valid will, or leaving a will which fails to dispose of all of the
person's assets. Among the questions considered are the following: What is the nature
of the rules for the disposal of the deceased's assets? Are they mechanical or is there
an element of discretion? Are particular types of property dealt with in particular
4
ways? Is there entitlement to individual assets (as opposed to money)? Do the rules
operate in a parentelic system or a system of some other kind? Are spouses treated
more favourably than children? What provision is made for extra-marital children, for
adopted children, for step-children? Does cohabitation give rise to entitlement? How
are same-sex couples treated? Broader questions also arise of a historical and
comparative nature. Where, for example, do the rules in intestate succession come
from in particular legal systems? Have they been influenced by the rules in other
countries? How are the rules explained and how are they justified? To what extent
have they changed over time? What are the long-term trends? And finally, are the
rules satisfactory, and is there pressure for their reform?
Dr. Iqbal Ali Khan, Textbook of Mohammedan law (21st edn, Central law agency, 2005)
373-402
The book expands and updates coverage of family reforms in marriage, divorce and
inheritance and analyzes the diverse interpretation of Muslim family law, identifying
shifts, key problems and challanges in the twenty first century. The book gives a
thorough view of the general principles of Sunni law while explaining different heirs
recognized under the Hanafi law making the understanding more clear about the
shares are distributed between them. The book also explains doctrine of Radd and
doctrine of Aul and all this has been explained with the help of various illustrations
and examples.
Research Methodology
Approach to Research
In this project doctrinal research was involved. Doctrinal Research is a research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles were used while making this project.
Type of Research
Explanatory type of research was used in this project, because the project topic was not
relatively new and unheard of and also because various concepts were needed to be
explained.
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Sources of Data Collection
Secondary source of data collection was used which involves in collection of data from
books, articles, websites, etc. No surveys or case studies were conducted
Mode of Citation
The researcher has used the Oscola mode of citation uniformly throughout the project
The Muslim law of inheritance is based on the pre-Islamic customary law of succession. In
Islamic law distinction between the Joint family property and the separate property has never
existed. Also under Muslim law all properties devolve by succession, the right of heir-
apparent does not come into existence until the death of the ancestor i.e. succession happens
only on the death of the ancestor and then only the property vests in the succeeding heirs.
Under the pre-Islamic law even the wife and children were excluded from inheritance. Its
four basic principles were: the nearest male agnates or agnates succeeded excluding the
remoter ones, for example if a Muslim died leaving behind a Son as well as son of a pre
deceased son then the son inherited the whole property leaving behind the son’s son.
Secondly, females were excluded and so were cognates. Thus a daughter or her son or a sister
or her son could never succeed. Thirdly, if the father was present than the brother could not
inherit. Fourthly, if there were more than one male agnates of equal degree all of them
inherited equally. For examples if a Muslim died leaving behind three brothers all of them
inherited one third. But after the advent of new Islamic law certain changes were made which
are as follows: firstly, now the female and cognates could inherit, spouses of deceased
became their legal heir, thirdly, the parents and certain other ascendants are made heirs even
when there are descendants. Fourthly, the newly created heirs (those who are not entitled to
inherit under customary law) are given specified shares. After allotment of specified shares to
the newly created heirs, whatever is left (residue) goes to the customary heirs known as
reliquaries.1
The primary source of the Muslim law of succession flows from Holy Quran which did not
create new structure of rules of succession but is merely amended and modified. As already
1
Lucy Carroll, The Hanafi Law of Intestate Succession: A simplified Approach (Vol.17, No. 4, Cambridge
University Press 1983) 629-670
6
mentioned above, what had happened is that in order to bring conformity with the Islamic
philosophy those persons who were not heirs under the customary law have been heirs and
specific shares have been allotted to them. These changes in the customary principles of
succession led to the divergence of opinion among the Shias and Sunnis, resulting into the
propagation of two different rules of inheritance. First, the Hanafis allow the framework or
principles of the pre-islmaic to stand, they develop or alter those rules in the specific manner
mentioned in Quran. Second, the Shias deduce certain principles, which they hold to underlie
the amendments expressed in the Quran and fuse the principles so deduced and thus raised up
a completely different set of rules.
The Hanafis interpret and blend the rules of customary and Islamic law so as to create a
harmonious construction.2
There are two question which commonly arise under law of succession i.e. who are the heirs
and what will be their shares. Law givers of Muslim have gone to a great extent in order to
categorise the persons who are entitled to inherit the property of the deceased. The heirs
under Hanafi law are mainly divided into Principal and Subsitute heirs. After sharers have
been allotted their shares the remaining property or the residue goes to the residuaries.
The principal heirs are further divided into primary and substitute heirs. Primary heirs are
further divided into sharers or Quranic heirs, residuaries and distant kindered.
Due to certain circumstances, the sharers can become residuaries due to fluctuating interest
that is presence of someone would result in exclusion of others. Primary heirs are those who
are never excluded. They include Husband, wife, son, daughter, father and mother. 3
2
Supra note (1)
3
Kenneth G.C. Reid, Marius Johannes De Waal, Reinhard Zimmermann, Intestate Succession (Vol. 2, Oxford
University Press 2015)
7
Sharers
If a Muslim male dies leaving behind a widow as well as children then the widows share will
be 1/8 and the residue that is 7/8 will be taken by children. In case he dies leaving behind
only widow and no children then the widow will take ¼. If he dies leaving behind more than
one widow along with children then widows will take 1/8 equally and if without children then
¼ is distributed among them equally.4
If a Muslim female dies leaving husband and children then the husband takes ¾ and children
will take ¼ as residuaries. If she dies leaving behind no child but husband then the husband
will take ½ as sharer.
The father is always an heir under Hanafi law of succession and cannot be excluded under
any circumstances. The true grandfather being a substitute is always excluded by the father
and a nearer grandfather will exclude remoter grandfather.
Where the deceased had left father and children the father will take 1/6 share. Where there
are no children or agnatic descendant the father and grandfather takes as a residuary. When a
Muslim dies leaving behind both mother and father then the mother takes 1/3 as sharer and
father will take 2/3 as residuary. In certain circumstances father takes in dual capacity. For
example if Muslim dies leaving behind a father and a daughter then the daughter takes ½ as
sharer, father takes 1/6 as sharer and the residue of the estate that is 1/3 will be taken by
father as residuary. In this situation the position of grandfather will be same as he is the
substitute of the father.
Just like father mother is also never excluded from inheritance. In presence of children she
will take 1/6 and 1/3 in their absence. The true grandmother inherits in certain
circumstances. First, the maternal grandmother is excluded by mother or nearer true
4
B. Sivaramayya, women Right of Inheritance in India- A Comparative Study of Equality and Protection (The
Madras Law Journal Press Pvt. Ltd. 1973) 159
8
grandmother, paternal or maternal. Second, the paternal true grandmother is excluded by the
father, the mother and by a nearer true grandmother, paternal or maternal.5
The mother takes 1/6th share if a Muslim dies leaving two sisters or one brother and a sister,
full consanguine or uterine.
When there is no agnatic descendant and not more than one sibling but if there is a
combination of mother with wife or husbafnd and the father then she takes only 1/3 of the
residue after deducing spouse’s share.6
When a parent dies and if there is one daughter and no son then she will inherit ½ but with
son she takes as a residuary. When there are two or more daughters all of them take 2/3 rd .
when daughter alone is there she takes her half share and other half as a residuary.7
The son’s daughter in case there is no Son, Daughter, higher son’s son, higher son’s daughter
or equal son’s son will take 1/2 . This is when there is only one daughter , when there is more
than one each shall take 2/3 collectively. The Son’s daughter takes per capita and not per
stirpes. The share of son’s daughter is divided into as many parts as are son’s daughter,
irrespective of the number of son’s.8
Sisters
The sister is a sharer and if there is only one she will take ½ and in case more than one each
shall take 2/3. But she is not a primary heir she will inherit only when there is no son, son’s
son HLS, father and true grandfather.
If there is a full brother she will become a residuary. If there is more than one full sisters,
consanguine sister is excluded but when there is only one sister than consanguine sister will
take 1/6.
5
Mulla, Principles of Mohammedan Law (14th ed Bombay 1879) 295
6
F.B. Tyabji, Mohammedan Law (3rd edn 1940) 853
7
William H Macnaughten, Principles and Precedents of Mohammeedan Law ( 2nd edn 1890) 94
8
Poonam Pradhan Saxena, Family Law Lectures (Vol. 2, LexisNexis, Butterworths 2007) 656
9
Uterine Brother and uterine Sister
Uterine brother and sister’s are not primary heirs. They will take property only in certain
circumstances. First, they are excluded by the children of the deceased, son of a child HLS,
father and true grandfather. Second, they cannot be excluded by a full brother or full sister.
A uterine brother and sister shall inherit equally and shall take 1/6 each. If there are more
than one uterine brother or sister then each of them shall take 1/3 together and share it equally
between them.9
Residuaries
All residuaries are related to the deceased through males they can be classified as:
descendants of the deceased, ascendants of the deceased and collaterals of the deceased.
There are six sharers which inherits as residuaries in certain situations. These are: the father,
tue grandfather HLS, Daughter, Son’s daughter, full sister and consanguine sister.
Among these only father and true grandfather inherit both as sharers and residuaries in certain
circumstances. No other heir inherits in double capacity except them. The four other, who
are all females inherits either as a sharer or as a residuary. They inherits as residuaries only
when there is a presence of male heir of equal proximity as them.10
Distant kindered
In the absence of both sharers and residuaries the estate will devolve upon the distant
kindered.11
These are descendant of the deceased other than sharers and residuaries. There are two
enteries in class I : first, Daughters children and their descendants. Second, children of son’s
daughter HLS and their descendants.
9
Supra note (8)
10
Dr. Iqbal Ali Khan, Text book of Mohammedan Law ( 21st edn, Central Law Publications 2005) 386
11
Abdul Sarang v. Putee Bibi (1902) 29 Cal. 738
10
These are descendants of parents of propositus other than sharers and residuries. There are
two enteris in Class II also. First, False grandfather how high soever, second, false
grandmother How high soever.
These are descendants of parents of the deceased other than sharers and residuaries. There are
six enteries in Class III:
These are descendants of immediate grandparents, true or false. There are seven entries in
Class IV:
Under the law of succession which assigns fixed shares to each heir, there are two anomalous
situations which may take place. The sum of shares distributed to different heirs according to
their entitlement , i) may be in access of the unity, ii) may be less than unity. The former
12
Supra note (4)
11
situation is solved by the applying Doctrine of Aul or increase whereas the latter is solved by
applying the Doctrine of Radd or return.13
Doctrine of Aul
When the sum total allotted to different heirs as per their entitlement exceeds the unity then
as per the doctrine of Aul the share of each heir shall be reduced proportionately. This is done
by reducing the fractional shares to be common denominator. Because the denominator is
increased it has been given the name of increase but in fact the shares are proportionately
decreased.
For example, if P dies leaving behind her husband H, two full sisters FD AND FD1 and a
mother M. Now on distributing shares husband will take ½ or 3/6 , FD and FD1 will take 2/3
or 4/6 and mother will take 1/6.
The proportionate reduction of shares here will be achieved by increasing the denominator
from 6 to 8. Thus the respective shares will be, H- 3/8, FD and FD1 – 4/8 and M- 1/ 8.
Doctrine of Radd
If there is surplus left after allotting the share to the sharers as per their entitlement and there
are no residuaries to take it then as per the doctrine of RADD that it shall be distributed in
proportion among the sharers in accordance their respective shares. Exception being, neither
the husband nor the wife can take the return so long as’ there is another sharer or distant
kindered is alive.
Under Muslim law of modern India; the doctrine of return says that, the surplus is distributed
among the sharers in proportion to their sharers but the husband or the wife is not entitled to
return, so long as there is a sharer or distant kindered is alive. If there is no sharer or a distant
kindered, then the surplus returns to the wife or husband.
For example, if P dies leaving behind his Mother M, and his daughter D. M takes 1/6 and D
takes 1/2. There remains a surplus of 1/3. Since there is no residuary, 1/3 will return to D and
M. M’s share will be increased to ¼ and D’s share to ¾.
13
Asaf A.A. Fyzee, Outlines of Mohammedan law (1st edn, Oxford University Press 2008)
12
Conclusion
It can be concluded that on comparing the old customary principles of Succession of Hanafi
law and the new principles of Hanafi law which have been achieved by amending the same
are positive and has proven to be good for and in favour of Muslim women’s. For example
earlier females were excluded from inheritance whereas under modern law females and
cognates are also recognized and enumerated as heirs. Also husband and wife, being equal, is
entitled to inherit to each other.
But despite all this even today certain inequalities can be seen in the way shares are divided
between various heirs in Muslim Law. For example in the absence of son the daughter
inherits ½ as a sharer but in presence of a son she becomes a residuary and her share
becomes half of his share. The same happens in the case of a son’s daughter. She inherits as a
sharer only in the absence of the son otherwise takes half of the share of the son as a
residuary.
As compared to Son’s daughter, the children of daughter suffer more in succeeding under
Sunni law. Because they are ranked as distant kindered and can inherit only after sharers and
residuaries will inherit. Thus, a male agnate, however remote, has a preferential right to
succeed over them.
A sister takes ½ if she is alone but in presence of full brother she becomes a residuary taking
half of his share. A consanguine sister is also excluded in presence of all those whose
presence excludes a full sister that is child, child of a son, father, true grandfather or a full
brother.
Thus it can noted that under Hanafi law of intestate succession a women is half the worth of a
man.
14
Paras Diwan, Peeyushi Diwan, Family Law: Hindu, Muslims, Christians, Parsis and Jews (6th edn, Allahabad
Law Agency 2001)
13
Bibliography
Paras Diwan and Peeyushi Diwan, Family Law: Hindu, Muslims, Christians, Parsis
and Jews (6th edn, Allahabad Law Agency, 2001)
Asaf A.A. Fyzee, Outlines of Mohammedan law (1st edn, Oxford University Press,
2008)
Abdul Sarang v. Putee Bibi (1902) 29 Cal. 738
Dr. Iqbal Ali Khan, Text book of Mohammedan Law (21st edn, Central Law
Publications, 2005) 386
Poonam Pradhan Saxena, Family Law Lectures (Vol. 2, LexisNexis, Butterworths,
2007) 656
William H Macnaughten, Principles and Precedents of Mohammeedan Law (2nd edn,
1890) 94
William H Macnaughten, Principles and Precedents of Mohammeedan Law (2nd edn,
1890) 94
F.B. Tyabji, Mohammedan Law (3rd edn, 1940) 853
Mulla, Principles of Mohammedan Law (14th edn, Bombay, 1879) 295
Sivaramayya, women Right of Inheritance in India- A Comparative Study of Equality
and Protection (The Madras Law Journal Press Pvt. Ltd. , 1973) 159
Kenneth G.C. Reid, Marius Johannes De Waal, Reinhard Zimmermann, Intestate
Succession (Vol. 2, Oxford University Press, 2015)
Lucy Carroll, The Hanafi Law of Intestate Succession: A simplified Approach
(Vol.17, No. 4, Cambridge University Press, 1983) 629-670
14