Muslim Personal Law
Muslim Personal Law synonymous with the Arabic muamalat, which means rules and regulations of social life, or the rules that regulate the day to day life of a person. In other words, the rules that a person should follow in his/her personal and social life are collectively called 'muamalat' or social law. The branch of laws treated as 'personal law' in the general legal system is called 'social law' in Islamic shariah. Thus Muslim law means the personal and social laws of the Muslims.
Law in Muslim jurisprudence is essentially the revealed will of Allah, a divinely ordained system that guide a Muslim state and control a Muslim community. The Muslim law is not applied by the courts of Bangladesh as a whole, but in some specific areas. The power of the courts to apply Muslim law is derived from and regulated partly by statutes, and mostly by legislation.
In Bangladesh, the rules of Muslim law are applied to succession/inheritance, preemption (in purchase of land), gift of property, marriage, divorce, dower, guardianship, maintenance of family etc. To have an idea about the Muslim jurisprudence one must analyse the purposes and operation of the Shariah laws ie, the laws ordained by Allah that provides guidelines for the judicial and administrative system of the Muslim society. Muslim personal laws consist of laws relating to (a) marriage; (b) maintenance of families and guardianship; (c) inheritance of property; (d) waqf and charity; (e) pre-emptive rights in purchase of land.
Marriage laws regulate marital relations and deal with marriage (nikah) and divorce (talak). In Islam, marriage involves legal, social and religious matters. Marriage is a contract, which permits wedlock and procreation and gives legal recognition of the parenthood of children. According to a verdict given by Justice Mahmud, 'Muslim marriage is not a sacrament, it is absolutely a civil contract' (Abdul Karim vs Salema, 1886, 8, Allahabad, 149). The essential terms and conditions of Muslim marriage are: proposal and acceptance; eligibility for the marriage contract; presence of two witnesses; utterance of the proposal and acceptance in the same sitting; and absence of impediments. Marriage has four purposes: (a) formal recognition of conjugal relationship of men and women and refraining them from adultery (Surah Nisa: 24); (b) expression of love and cordiality between men and women in a sacred way (Surah Al-Rum: 21); (c) maintenance and protection of a family (Surah Al-Shura: 11); and (d) formation of a family. In Muslim marriage law, the following are prohibited: polyandry; marriage between persons who are related by consanguinity, close kinship, and fosterage; having a fifth wife; marriage in absence of proper witnesses; marriage with a person of a different religion; unlawful conjunction; and marriage with a women in iddat (period of waiting is obligatory on a Muslim widow/divorced woman for remarriage).
According to the provisions of the holy Quran (Surah Nisa: 26), a person can not marry his mother, daughter (and her offspring), sister, aunt, niece, foster-mother, foster-sister, and mother-in-law. A person also can not marry two sisters at a time. It may be mentioned that a Muslim male can marry a 'kitabia woman' (ahl-e-kitab ie, follower of Divine Book), but a Muslim woman cannot marry a non-Muslim.
Dower (Mahr) a symbol of honour offered by a bridegroom to the bride. According to Islamic Shariah, marriage is a legal bondage and dower is the most important among its terms and conditions. Islam declared dower as the honorarium paid by the husband to his wife for making the conjugal relationship legal. It said in the Quran that, 'pay mahr as a farz (obligatory) to your wives for the pleasure you get from them' (Surah Nisa: 24). The reasonable amount of dower is determined on the basis of financial solvency of the husband and the social status of the wife. The Prophet Muhammad (Sm) said, 'the best amount of mahr is that which can be paid easily'. According to the Hanafi school of thought, the minimum amount of mahr is ten dirham (Al Hidaya, Baili - 92).
Polygamy A Muslim can have as many as four wives, but not more at the same time. According to the clause 6(1) of the muslim family laws ordinance 1961, if a person already has a wife, he can not make a contract of second marriage without prior permission in writing from the Arbitration Council. The Muslim Family Laws Ordinance 1961, however, has not declared the second marriage of a person illegal or unacceptable. It has only imposed some restrictions on the practice of polygamy by Muslims. It is illegal for a Muslim woman to have more than one husband at a time. Moreover, if a woman does a second marriage while she has a husband, she is subject to punishment under section 494 of the penal code.
Divorce The Arabic for divorce is talaq, which means repudiation. The morphological root of the word implies releasing a wife or freeing her from the bondage of marriage. According to Muslim law, divorce can be implemented in any of the following ways: (a) by the husband at his will or by mutual consent of the wife and the husband without the intervention of a court; and (b) by a decree of the court on the lawsuit filed by the husband or wife. The divorce made by the husband at his will is called talaq; when it is effected by a mutual agreement on terms and conditions, it is called khula or mubarrat. According to the Muslim Family Laws Ordinance 1961 the wife can divorce her husband, provided such right is delegated to her in the formal marriage documents.
The Muslim Family Laws Ordinance 1961 provides the rules of divorce under clause 7(1) which says that any person who wishes to divorce his wife should, after pronouncing 'talaq', inform the chairman (of union council) in writing as soon as possible and deliver a copy thereof to the wife. Clause 7(2) says, a talaq shall not be effective before the expiry of ninety days from the day of serving the notice to the Chairman under part (1). In fact, the Act makes a combination between 'talaq-e-hasan' and 'talaq-e-ahsan'. According to the Dissolution of Muslim Marriage Act 1939, a Muslim woman can apply for divorce under certain circumstances. These are: (i) when her husband is absconding or the whereabouts of him are not known for a period of four years or more; (ii) when her husband fails to pay for her maintenance for a period of two years; (iii) when her husband is imprisoned for a period of seven years; (iv) when she repudiates the fact of marriage; and (v) when she finds that her husband is impotent, cruel, insane, or an apostate. The issue of divorce is discussed at length in the Quran.
Laws relating to maintenance and guardianship Maintenance includes food, clothing and lodging. It also includes the expenses required for ensuring the mental and physical well being of a minor that suits his/her social status. Educational expenses are also included in maintenance. The following five classes of persons have the right to claim maintenance: infants and unmarried daughters, grown up children, parents, grand-parents, and wife. According to the Muslim Family Laws Ordinance 1961, the provision for maintenance is a legal obligation of a husband to his wife. The High Court Division of the Supreme Court of Bangladesh has suspended the provisions for maintenance in Section 5 of the Family Courts Ordinance 1985.
Guardianship Guardian means a person who takes care of and provides maintenance for him/her. A guardian may be natural such as father, or mother, or legal who is appointed by the court. However, anybody who takes care of or maintains can be a guardian. Guardianship means the acts of a guardian through which he/she discharges responsibilities in that capacity.
Minors All children of age below sixteen, unless symptoms of puberty appear earlier, are treated as minors. According to the Islamic Shariah, a minor attains adulthood as and when a boy or a girl attains puberty. The Muslim Family laws Ordinance 1961 has fixed the adulthood age at sixteen. Under the Adulthood Act 1875, a minor ceases to remain so when he reaches eighteen. But in case the court appoints a guardian for minor or a court of ward for taking care of his property, he continues to be treated as minor until he is twenty one.
According to Islamic Shariah, the natural guardian of a minor and the caretaker of his property is his father if he is alive. The court may appoint or declare, under the Guardians and Wards Act 1890, someone as the guardian of a minor. If a person, who is neither a legal guardian nor a guardian appointed by the court, voluntarily takes the responsibility of taking care of the property of a minor, he becomes his de facto guardian. A de facto guardian is merely a custodian of the minor and his/her property.
Inheritance laws The Muslim Law of Inheritance does not differentiate between ancestral and acquired property. The share of a daughter is half the share of a son whenever they inherit together. A will made in favour of one son, or of one heir, cannot take effect without the consent of other sons or heirs after the death of the testator or person making the will.
The incomes from the estate of a deceased Muslim is to be spent, in order of preference, for (i) meeting expenses during his last sickness and of the funeral, (ii) meeting expenses for obtaining probate or the succession certificate, (iii) paying wages in arrears to labour, technicians or servants who worked for the deceased during the last three months preceding his death, (iv) repaying debts, if there is any, of the deceased in an order of priority; and (v) other debts after meeting obligations on all the above counts. The residue is to be distributed among the heirs of the deceased according to the rules and regulations followed by the community of which the deceased was a member at the time of his death, and not according to the rules and regulations of the community of those, who claim inheritance of his property.
According to the provisions of clauses 39 and 40 of the Succession Act 1925, if a Muslim dies without making any will, all his property will devolve on his heirs immediately after his death. Also if someone dies after making a will but his property is not transferred until the moment of his death, his property is to be handed over to the heirs. The devolution can not be suspended for merely the reason that the deceased had any debt. The heirs succeed to the estate as tenants in common in specific shares. The Quoranic verses 11, 12 and 176 of Surah Nisa provide the instructions on apportionment of the property of the deceased and transfer of shares to them. Parents, children, husband and the spouse of the deceased will get shares of his property irrespective of the number of heirs or the amount accruable to them.
A will ordinarily becomes operative on the death of the testator and is construed as a comprehensive document. Every Muslim of sound mind and not a minor may dispose of his property by will. Hazrat Muhammad (Sm) had a concern about how to eliminate the probability that someone might make false commitment in a will. This is why Allah instructed in Sura Ma'ida (105, 106) that the will of a dying person should be attested by more than one trustworthy witnesses. Thus, in order to render a will valid, there should be at least two witnesses. A Muslim cannot dispose of by will more than one-third of what remains of his property after meeting his funeral expenses and the payment of his debts.
Hiba or gift donation of property without any consideration. For a hiba to be valid, it is a must on the part of the donor to forego ownership, and on the part of the recipient, to accept it. Hiba means a transfer of property of one person to another without anything in exchange, and the acceptance of that property by the recipient or someone on his behalf. The essential features of a hiba are: (i) a declaration of donation by the donor; (ii) an acceptance of the donation by a recipient or someone on his behalf; and (iii) transfer of ownership on the property donated to the recipient. Once these conditions are fulfilled a hiba is treated as perfect.
Laws relating to waqf and charity The term waqf 'literally means retention. The legal meaning of waqf, according to Imam Abu Hanifa (R), is the retention of a specific thing in the ownership of the waqif or appropriator, and devotion of its profits or usufruct 'for the purpose of charity to the poor or for other good work'. Waqf means the one-time donation of the property of a person by him for purpose considered by the Islami Shariah as religious, pious or charitable (Waqf Ordinance 1962, clause 174). All endowment or grant made by an appropriator for the aforesaid purposes are treated as waqf.
Five essential elements of waqf, according to Hanafi law, are: (i) permanent donation of the property; (ii) eligibility of the waqif for making waqf; (iii) ownership of the property by the waqif; (iv) the religious purpose of making waqf; and (v) unconditional transfer of property.
Laws relating to preemption Preemption (shuf'a) is a right to acquire immovable property by purchase from a person to whom the property has been sold earlier. It is the right of a third person called the preemptor, to step in, when a contract is made for the sale of immovable property, and claim to take the place of the buyer, ie, to buy the property at the same price and on the same conditions as in the first sale contract.
The purpose of the right of preemption is to prevent the inconvenience, which may result to families and communities from the introduction of a third parties as disagreeable stranger as a co-partner or near neighbour by purchase of a portion of a joint property. According to the Muslim Shariah, the right of preemption may be claimed by: (i) a shafi-i-sharik, ie, a person who has share in the ownership of the property sold; (ii) a shafi-i-khalit, ie, a person who has the claim of enjoying the amenities and appendages of the property (such as the right to use water bodies and roads, or common (public) facilities access); and (iii) a shafi-i-jar ie, a person who is the owner of an immovable property in the neighbourhood. The principle of preemption is applicable to all laws of the Islami Shariah in general. [Mohammad Abdul Hannan]
